Pang See Kit v Chai Teng Kooi @ Sua Ah Kau (JA-22NCvC-107-08/2021)

PANG SEE KIT

PANG SOON ENG (NO. PASPOT: E5246922F) Kedua-duanya selaku Wasi Harta Pusaka Pang See Suan) …PLAINTIF-PLAINTIF DAN CHAI TENG KOOI @ SUA AH KAU (NO. K/P: 360313-02-5145/0672109) selaku Wasi Harta Pusaka Ooi Tiong Joo ...DEFENDAN

This is an action by way of Writ and Statement of Claim by the Plaintiffs who are the executors of the estate of Pang See Suan (“PSS”) for an order of specific performance relating to certain sale and purchase and assignments agreements involving 45 acres of land or alternatively for a declaration that the Plaintiffs have beneficial 24/01/2026 12:47:44 JA-22NCvC-107-08/2021 Kand. 118 S/N e02XehX7UqCgBVouyvMw rights and interests over the said 45 acres of land which are held under the name of the late Ooi Tiong Joo (“OTJ”) whose estate is now under the care and management of the Defendant as the executor.

Due to the involvement of many parties, transactions and documents that formed much of its historical and background facts, perhaps there is a need to stay afloat than getting sunk into the facts by quickly framing a simple picture of what this instant action is all about at the outset, which in essence, is an action for an enforcement of a chose in action.

During the course of the proceeding, one Diane Chai who is the daughter of the Defendant was made the executor de bonis non of the estate of OTJ vide Grant of Probate De Bonis Non dated 01.03.2024, and has since then been recorded to be so in this action.

The Plaintiffs and Defendant produced only one witness each during trial, i.e. Ms. Pang Soon Eng (the Second Plaintiff) for the Plaintiffs and Ms. Diane Chai for the Defendant.

At the conclusion of the trial, this Court entered judgment in favor of the Plaintiffs by allowing the order of specific performance prayed for, the details of which will be elaborated a little later. S/N e02XehX7UqCgBVouyvMw

Dissatisfied with this Court’s decision, the Defendant had filed an appeal to the Court of Appeal.

This is the Court ‘s grounds of judgment for the said decision. Salient facts

Prior to 1964, OTJ was at all material times the proprietor of a piece of land with an area of more than 1500 acres known as Geran 98520 Lot 4004 located at Mukim Jeram Batu, District of Pontian, Johor (“Lot 4004”).

Between 1964-1990, OTJ through various sales and purchase agreements had sold undivided portions of Lot 4004 to various third parties. Some of the third parties in turn sold and/ or assigned their beneficial interest over the land that they purchased to subsequent purchasers and/ or assignees.

Of concern for the instant action is the Sale and Purchase Agreement (“1st SPA”) entered on 05.09.1964 between OTJ and three (3) individuals known as Chai Chan, Chai Ah Sim and Phang Moi (“First Purchasers”) for the sale of approximately 45 acres of land which formed part of the undivided portions of Lot 4004 for a consideration sum of RM 42,300.00. S/N e02XehX7UqCgBVouyvMw

Among the salient terms relating to the payment of the purchase price as stipulated in Clause 2 of the 1st SPA are as follows:-

a sum of RM 20,150.00 is to be paid at the time of execution of the 1st SPA;

a sum of RM 13,690.00 is to be paid on 25.07.2964;

a sum of RM 4,230.00 is to be paid upon approval of the layout plan for subdivisions of Lot 4004; and

a final sum of RM4,230.00 is to be paid upon the issuance of individual title for the said 45 acres of land.

The other relevant part of the 1st SPA is under Clause 5 which states that OTJ shall transfer the individual title to the 45 acres of land to the First Purchasers after completion of the subdivision process and issuance of individual titles for Lot 4004 by the relevant authority.

Few years down the line, the First Purchasers sold and assigned all of their beneficial rights and interest under the 1st SPA to Hussein Bin Salleh and Mariah Binti Omar (“2nd Purchasers”) via a Sale and Assignment agreement dated 04.09.1969 (“2nd SPA”) for a consideration sum of RM 54,000.00.

According to Clause 2 of the 2nd SPA, the First Purchasers admitted receipt a sum of RM 46,200.00 from the 2nd Purchasers. As for the remaining balance purchase price stated as RM7,062.00, Clause 3 of the 2nd SPA stipulates that the said balance is to be retained and S/N e02XehX7UqCgBVouyvMw paid to OTJ only upon completion of the subdivision and issuance of individual title to Lot 4004.

Moving on further, the 2nd Purchasers in 1979 sold and assigned all their beneficial rights and interest under the 1st and 2nd SPA to PSS via Agreement of Sale and Assignment dated 07.04.1979 (“3rd SPA”) for a consideration sum of RM99,000.00.

PSS paid RM 9,900.00 at the time of signing of the 3rd SPA and a further sum of RM 82,038.00 on 24.01.1980 to the 2nd Purchasers. A balance sum of RM 7,062.00 was retained for the purpose of it to be paid later to OTJ after the completion of the subdivision and issuance of the individual title to the said 45 acres of land pursuant to the terms relating to payment of the balance sum stipulated in the 1st and 2nd

It was contended by the Plaintiffs that PSS after making the payment of RM82,038.00 to the 2nd Purchasers had since occupied, maintained and cultivated the whole of the said 45 acres of land until his demised on 12.02.2012. Post PSS’s demise, the Plaintiffs continued to occupy, maintain and cultivate the said 45 acres of land.

The aforesaid fact relating to PSS and Plaintiffs’ occupation of the 45 acres of land appears to be not disputed by the Defendant due to no rebuttal evidence proffered by the Defendant during trial. S/N e02XehX7UqCgBVouyvMw

As mentioned earlier, other undivided portions of land under Lot 4004 were sold by OTJ to various purchasers including Ng Yan Pee, Dr Kooi Kee Lee and Suci Padu Sdn Bhd.

It is also undisputed that the sale made by OTJ was to Suci Padu Sdn Bhd in 1991 is the final sale made by OTJ covering the remaining portions of Lot 4004. The documents relating to the said final sale are to be found in Part B of the Common Bundle of Document, and they are as the following:-

Sale and Purchase Agreement dated 18.09.1990;

Supplemental Sale and Purchase Agreement dated 04.10.1991;

Memorandum of Understanding dated 04.10.1991; and

Power of Attorney (irrevocable) dated 04.10.1991.

Further, it is also not disputed that Suci Padu Sdn Bhd had funded OTJ to repurchase some of the portions of Lot 4004 earlier sold to third parties. The said repurchases in actual were made for and on behalf of Suci Padu Sdn Bhd to enable Suci Padu Sdn Bhd to increase its holding percentage of the portions of land in Lot 4004.

To that end, it is also an undisputed fact that prior to the subdivision and issuance of individual titles for Lot 4004, the final percentage hold by Suci Padu Sdn Bhd in Lot 4004 stood at 82% leaving the balance of 18% to Ng Yan Pee, Dr Kooi Kee Lee and PSS. S/N e02XehX7UqCgBVouyvMw

The subdivision process for Lot 4004 was eventually completed by Suci Padu Sdn Bhd which resulted with the issuance of 24 separate individual titles by the relevant authority on 02.05.2017.

Out of the 24 individual titles issued, 22 of the said titles were issued and registered under the name of Ng Yan Pee, Dr Kooi Kee Lee and Suci Padu Sdn Bhd according to their respective agreements with

The 45 acres of land, which was the subject matter of the 1st, 2nd and 3rd SPAs, were issued with 2 individual titles known as HS(D) 13674 and HS(D) 13675 (“the 2 titles”). The 2 titles however remained under the name of OTJ and not transferred to PSS.

On 27.05.2018, the 2nd Plaintiff entered a private caveat on the 2 titles to safeguard the Plaintiffs’ rights and interests as executors to the estate of PSS over the said 45 acres of land.

On 12.05.2021, the Defendant filed an application to remove the private caveat lodged on only one of the titles [HS(D) 13674]. Although the application was allowed by the High Court on 28.09.2022, the Court of Appeal on 07.03.2024 had set aside the said High Court’s decision on appeal by the 2nd Plaintiff. S/N e02XehX7UqCgBVouyvMw

There were also between 2018-2021 exchanges of correspondences between solicitors for both parties concerning the transfer of the two titles to the Plaintiffs but was not fruitful.

Hence the filing of the instant Writ action by the Plaintiffs against the Defendant. The remedies prayed for in the Statement of Claim are as follows:-

a specific performance of the 1st SPA,

whereby the Defendant is to execute and deliver Form 14A and other necessary documents to the Plaintiffs for the purpose of transferring the 2 titles of land to the

(ii) in the event of Plaintiff’s failure, the Senior Assistant Registrar is to execute Form 14A to effectuate the transfer of the 2 titles of land to the Plaintiff;

(ii) a vesting order for the 2 titles to be vested under the Plaintiffs name, Or in the alternative,

(i) a declaration that the Plaintiffs are the owner with beneficial interest over the 2 titles of land;

(ii) a vesting order for the 2 titles to be vested under the Plaintiffs name,

penal notice be endorsed in the judgment, S/N e02XehX7UqCgBVouyvMw

costs, and

other reliefs deem fit by the Court. The agreed issues

The parties through their respective counsel have agreed that there are six issues to be determined by the Court and they are as follows:-

Whether OTJ on 05.09.1964 entered into the 1st SPA with the First Purchasers to sell 45 acres of the land held under Lot 1004?

Whether the 45 acres of land is held under the two titles?

Whether the Plaintiffs are entitled to claim specific performance against the Defendant for the 45 acres of land based on 1st SPA, 2nd SPA and 3rd SPA?

Whether limitation and/ or laches apply?

Whether the late OTJ was trustee to the land?

Whether the late PSS was the beneficial owner of the land? Analysis and decision

Before this Court deals with the agreed issues, it is important for this Court to state its observation that all throughout the proceeding, the S/N e02XehX7UqCgBVouyvMw Defendant’s main contention centered on the admissibility or otherwise of the 1st and 2nd SPA as proof to support the Plaintiffs’ claim for the enforcement of the chose in action.

In this regard, the Defendant contended that the 1st and 2nd SPA, although being referred to and attached together in the 3rd SPA, cannot be admitted as evidence since both documents are photocopied documents.

As such, although the Defendant has no objection for the 3rd SPA to be marked as the Plaintiffs exhibit P1, the Defendant strongly insists that in the absence of their original copies made available to or their makers came to testify in Court, the 1st and 2nd SPA can only remain as ID documents and thus cannot be admitted as evidence for the Plaintiffs.

On this issue, this Court referred to the 1st SPA which was marked during trial as ID2 and the 2nd SPA as ID5. Both are also found to be referred to and annexed in the body of the 3rd SPA which was marked as exhibit P1 since the 3rd SPA is produced in Court in its original copy.

In this regard, this Court is of the view that although the 1st and 2nd SPA are photocopy documents, the references to them in the body of the 3rd SPA in substance had formed and ought to be treated as S/N e02XehX7UqCgBVouyvMw part of the 3rd SPA. Under the circumstances, it would also certainly be absurd to sever the 1st and 2nd SPA from the 3rd SPA.

Further from the evidence of the 2nd Plaintiff, this Court is satisfied that the Plaintiffs have discharged the burden of proof on the balance of probabilities that the original copy of the 1st and 2nd SPA could not be produced through no fault of theirs and efforts to locate the makers although had been made turned out to be futile.

Therefore, the question of original copy or otherwise should no longer be made an admissibility issue as contended by the Defendant. As such, this Court did not hesitate to treat the 1st and 2nd SPA as admissible evidence although they are only marked as ID documents.

The law relating to admissibility of secondary evidence such as ID2 and ID5 can be referred to in Section 65 (1) Evidence Act 1950 which states:- “Cases in which secondary evidence relating to documents may be given 65(1) Secondary evidence may be given of the existence, condition or contents of a document admissible in evidence in the following cases:

when the original is shown or appears to be in the possession or power-

of the person against whom the document is sought to be proved; S/N e02XehX7UqCgBVouyvMw

(ii) of any person out of reach of or not subject to the process of the court; or

(iii) of any person legally bound to produce it, and when after the notice mentioned in section 66 such person does not produce it;

when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

when the original has been destroyed or lost, or when the party offering evidence of its contents cannot for any other reason not arising from his own default or neglect produce it in reasonable time;

when the original is of such a nature as not to be easily movable;

when the original is a public document within the meaning of section 74;

when the original is a document of which a certified copy is permitted by this Act or by any other law in force for the time being in Malaysia to be given in evidence;

when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection.

(2)(a) In the cases referred to in subsection (1)(a), (c) and (d) any secondary evidence of the contents of the document is admissible.

In the case referred to in subsection (1)(b) the written admission is admissible.

In the case referred to in subsection (1)(e) or (f) a certified copy of the document but no other kind of secondary evidence is admissible. S/N e02XehX7UqCgBVouyvMw

In the case referred to in section (1)(g) evidence may be given as to the general result of the documents by any person who has examined them and who is skilled in the examination of such documents.

Thus, since it is this Court’s finding from the totality of evidence that the original copy for both ID2 and ID5 could not be produced due to no fault or neglect of the Plaintiffs and sufficient efforts were shown to have been made to trace their makers but had failed, this Court further hold that both the 1st and 2nd SPA are to be admitted as evidence under s.65(1)(c) read together with s.65(2) of the Evidence Act 1950 which provides as follows:- “(2) (a) In the cases referred to in paragraphs (1)(a), (c) and (d) any secondary evidence of the contents of the document is admissible.” Issue 1: Whether OTJ on 05.09.1964 entered into the 1st SPA with the First Purchasers to sell 45 acres of the land held under Lot 1004?

At the outset, the 1st SPA is dated 05.09.1964 which is more than twenty (20) years old. In this regard, this Court is empowered to rely on the statutory presumption provided by Section 90 Evidence Act 1950 to make a finding that the signature in the 1st SPA is that of OTJ. The aforesaid provision reads:- “Presumption of documents twenty years old S/N e02XehX7UqCgBVouyvMw

Where any document purporting or proved to be twenty years old is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of that document which purports to be in the handwriting of any particular person is in that person's handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.”

In Bakar Salleh v Hj Abdul Malik Bahadan [1991] 2 CLJ REP 319, it was held that:- “One would expect a document purporting to be a power of attorney to be in the custody of the donee. The document was produced by the plaintiff, the son of Salleh bin Pit. The plaintiff said that his father, the donee, had kept it and that when he died, his mother had kept it and that when she died, he took it into possession. To my mind the custody of the document was proper custody within the meaning of s. 90 of the Evidence Act 1950. Considering its honest face and that it was produced from proper custody I could presume under s. 90 of the Evidence Act that the document is genuine.”

Now, the custody of the 3rd SPA with the Plaintiffs was never an issue to the Defendant. In fact, it has to be reemphasized that the 3rd SPA had been admitted in evidence and even marked as P1 with no objection by the Defendant. S/N e02XehX7UqCgBVouyvMw

Secondly, the fact that OTJ did sell undivided portions of Lot 4004 to various third party purchasers are also admitted by the Defendant during cross-examination:- “CKY: Based on this paragraph, Ooi Tiong Joo is aware that some of the third parties had purchased undivided portions of the property from him and those third parties sold and assigned their beneficial interests of the property to the subsequent purchasers. Is that correct?

Next, the Defendant’s assertion during trial that the 1st SPA may be a forged document is bereft of any merit since it was not the pleaded case of the Defendant in the Statement of Defence but only raised during trial in Diane Chai’s evidence. It is trite that parties are bound by their pleadings and ought not to raise a new fact during trial when it was not pleaded before. Refer to Iftikar Ahmed Khan v Perwira Affin Bank Bhd [2018] 1 CLJ 415 (Federal Court):- [29] It is settled law that parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded: Samuel Naik Siang Ting v. Public Bank Bhd [2015] 8 CLJ 944; [2015] 6 MLJ 1, State Government of Perak v. Muniandy [1985] 1 LNS 117; [1986] 1 MLJ 490, Veronica Lee Ha Ling & Ors v. Maxisegar Sdn Bhd [2009] 6 CLJ 232. In Lee Ah Chor v. Southern Bank Bhd [1991] 1 CLJ 667; [1991] 1 CLJ (Rep) 239 it was held that where a vital issue was not raised in the pleadings, it could not be allowed to be granted and to succeed on appeal. A decision based on S/N e02XehX7UqCgBVouyvMw an issue which was not raised by the parties in their pleadings is liable to be set aside: Yew Wan Leong v. Lai Kok Chye [1990] 1 CLJ 1113; [1990] 1 CLJ (Rep) 330; [1990] 2 MLJ 152. In The Chartered Bank v. Yong Chan [1974] 1 LNS 178; [1974] 1 MLJ 157 the Federal Court set aside the judgment of the trial judge as it was decided on an issue not raised on the pleadings. In that case, the trial judge erred in concluding that the pleadings included a claim for breach of contract as well as a claim for libel.

Furthermore, there is no credible evidence to sustain the Defendant’s allegation that ID2 is a forged document. The burden to proof forgery is with the Defendant who alleges it. Merely stating facts is not sufficient. On this, reference is made to PP v Kuala Dimensi Sdn Bhd & Ors [2021] 3 CLJ 198 where the Federal Court at page 218 had held as follows:- “When applying the civil standard of proof on a balance of probabilities merely stating facts with scanty documentary evidence is insufficient. There must be more cogent documentary evidence to support the averments made and that all facts necessary to prove their case must be presented and are probably true.”

Defendant’s further assertion that ID2 could have been revoked and/ or cancelled is also without basis as it is unsupported by any evidence at all. In fact, Diane Chai said it was her father’s “guess” that ID2 was revoked and/ or cancelled:- “CKY: Ok. Your father guessed that even if there was an agreement by your grandfather to sell the two lands, it must have been cancelled in 1960. Your father guesses its baseless, isn’t it? S/N e02XehX7UqCgBVouyvMw Diane: Well, we do not have a copy of the purported agreement so he can only guess.”

Thus, with no supporting evidence to sustain Defendant’s, the allegation of forgery, revocation and cancellation would be speculative in nature and no inference of facts therefore could be drawn to support those assertions. In Caswell v Powell Duffryn Associates Collieries Ltd [1940] AC 152, the House of Lords at page 169 held that: “Inferences must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had actually been observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.”

Reference is also made to OTJ’s Last Will and list of assets which makes no mention to Lot 4004 at all. The Grant of Probate for OTJ’s estate and the Last Wills of OTJ can be found at pages 175-179 under Part B of the Common Bundle of Document. This is a sharp contrast with PSS’s Grant of Probate and Last Will which make specific reference to the said 45 acres land (see: pages 229-235 under Part B of the Common Bundle of Document) S/N e02XehX7UqCgBVouyvMw

Furthermore, there is also in existence a Statutory Declaration dated 20.11.2007 made by Chai Teng Kooi @ Sua Ah Kau, the original Defendant in this action and executor to OTJ’s estate, where at paragraph 4 it is stated that (see: page 217 under Part B in the Common Bundle of Document):- “(4) Although the said land is still registered in the name of Ooi Tiong Joo, the estate of Ooi Tiong Joo has no beneficial interest whatsoever in the said land and the said land does not form any part of the estate/ assets of Ooi Tiong Joo (deceased) in the Grant of

The aforesaid Statutory Declaration by Chai Teng Kooi also appears to be consistent with the fact that OTJ had sold all his interest in Lot 4004 to various parties, the final being with Suci Padu Sdn Bhd.

More importantly, the contemporaneous documents relating to Suci Padu Sdn Bhd being the final purchaser and lawful attorney of OTJ for Lot 4004 and the party that effectively completed the subdivision process until the issuance of the individual titles for Lot 4004, would stand towering to contradict the Defendant’s defence.

In this regard, the scope of Suci Padu Sdn Bhd’s authority as OTJ’s lawful attorney concerning Lot 4004 can be referred to in the Irrevocable Power of Attorney dated 04.10.1993 at pages 93 to 103 in Part B of the Common Bundle of Documents. The relevant paragraph in the said Power of Attorney states:- S/N e02XehX7UqCgBVouyvMw “Now therefore be known that I, Ooi Tiong Joo…do hereby nominate, constitute and appoint Suci Padu Sdn Bhd to be my true and lawful Attorney to act and conduct and manage my affairs in respect of the property held under C.T. 15717 Lot 4004, Mukim of Jeram Batu, District of Pontian, State of Johore.”

Further, the fact that OTJ had recognized PSS as one of the purchasers of certain portions of Lot 4004 and who had lodged a private caveat to secure his interest can be collectively found in the body of the documents relating to the final sale by OTJ to Suci Padu Sdn Bhd mentioned earlier, which are:-

the Sale and Purchase Agreement between OTJ and Suci Padu Sdn Bhd dated 18.06.1990 (pages 31-50 in Part B of the

the Supplementary Sale and Purchase Agreement between OTJ and Suci Padu Sdn Bhd dated 04.10.1991 (pages 55-83 in Part B of the Common Bundle of Documents); and

the Memorandum of Understanding between OTJ and Suci Padu Sdn Bhd dated 04.10.1991 (pages 84-92 in Part B of the

In addition, the fact that even Suci Padu Sdn Bhd had recognized PSS holds the beneficial interest in the said 45 acres of land can also be found in two (2) letters of offer to purchase the said 45 acres by Suci Padu Sdn Bhd to PSS dated 28.10.1991 and 02.01.1992 S/N e02XehX7UqCgBVouyvMw respectively (pages 107 and 108 in Part B of the Common Bundle of Documents).

Finally, the 1994 High Court Order dated 05.02.1994 which emanated from Suci Padu Sdn Bhd’s application to remove the caveat entered by PSS (pages 180-183 in Part B of the Common Bundle of Documents) also constitutes judicial declaration of PSS’s interest on the 45 acres of land. In this regard, paragraph 6 of the said 1994 High Court Order states that:- “setelah menerima bayaran seperti yang dinyatakan di atas, Pemohon (Suci Padu) hendaklah menandatangani dan memberi borang pindah milik untuk memindah milik bahagian tanah kepunyaan Responden Kedua (PSS) kepadanya dan suratan hak milik berasingan bahagian tanah tersebut kepunyaan Responden Kedua.”

It is not in dispute that the above High Court order remains intact and had not been set aside till this date.

In the circumstances, this Court finds that the evidence is so overwhelming to support the Plaintiffs’ position that OTJ had indeed sold the said 45 acres of land to the First Purchasers via the 1st SPA.

As to the standard of proof in civil cases, it is trite they are on the balance of probabilities. Guidance can be found in Supertindent of Lands And Surveys Kuching Division & Anor v Mohamad S/N e02XehX7UqCgBVouyvMw Rambli Kawi [2014] 1 LNS 851 where the Court of Appeal at paragraph 11 held that:- “The standard of proof in civil cases is upon a balance of probabilities. This balance of probabilities is not the proof beyond reasonable doubt required in criminal cases. This balance of probabilities may be visualised as a scale with the plaintiff placing his evidence on one side and the defendant likewise on the other. The court evaluates the evidence as to the weight it carries. Of course incredible evidence carries no weight. Denials without evidence to justify the denial likewise can carry no weight, and hence the term "bare denial". At the end of the case, the court determines who, between the plaintiff and the defendant, has placed such evidence that the scale tilts in his favour. Sections 101 and 102 mean that to succeed, the scale must tilt in his favour.”

As such, on the balance of probabilities, this Court finds that OTJ on 05.09.1964 had entered into the 1st SPA with the First Purchasers for the sale of the 45 acres of the land held under Lot 1004. Issue 2: Whether the 45 acres of land is held under the two titles?

Based on this Court’s earlier findings under Issue 1, this Court further affirms that Lot 4004 had indeed been subdivided into 24 individual titles where two of the titles are related to the 45 acres of land. In this regard. this Court also finds that there is no evidence in rebuttal by the Defendant to suggest otherwise S/N e02XehX7UqCgBVouyvMw

Thus, a short answer to the above issue must be in the affirmative. Issue 3: Whether Plaintiffs are entitled to claim specific performance against Defendant on 1st SPA, 2nd SPA and 3rd SPA?

It needs to be reemphasized that the Plaintiffs action is predicated on the enforcement of a chose in action relating to the sale and purchase and valid assignments of rights, title and interest originally cumulated from the 1st SPA (ID2) then subsequently the 2nd SPA (ID5) and finally the 3rd SPA (P1).

As such, upon the execution of the 3rd SPA, 2nd Purchasers had assigned their rights and interest over the 45 acres of land which they purchased from the 1st Purchaser to PSS thus transferring those rights and interest in the said 45 acres of land to PSS. Thus, this Court also finds that PSS’s is the lawful assignee of the 1st and 2nd SPA as governed by Section 4 (3) Civil Law Act 1956 which reads:-

Any absolute assignment, by writing, under the hand of the assignor, not purporting to be by way of charge only, of any debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee or other person from S/N e02XehX7UqCgBVouyvMw whom the assignor would have been entitled to receive or claim the debt or chose in action, shall be, and be deemed to have been, effectual in law, subject to all equities which would have been entitled to priority over the right of the assignee under the law as it existed in the State before the date of the coming into force of this Act, to pass and transfer the legal right to the debt or chose in action, from the date of the notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor.

Although the Defendant contends that such assignment is not valid due to no notice of such assignment was shown to be given to OTJ, this Court rejects such contention on the ground that from the background facts and the contemporaneous documents available before this Court, it is established that OTJ had consistently acknowledged PSS’s interests over the 45 acres of land. Thus, notice of PSS’s acquirement of rights, benefits and titles to the said land must be inferred to have been given by PSS or at the very least must have been in the knowledge of OTJ.

Accordingly, this Court hold that the Plaintiffs are entitled to enforce PSS’s rights under the chose in action by way of specific performance against the Defendant pursuant to Section 11 (1) Specific Relief Act 1950 which reads:- S/N e02XehX7UqCgBVouyvMw “11(1) Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced -

when the act agreed to be done is in the performance, wholly or partly, of a trust;

when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done;

when the act agreed to be done is such that pecuniary compensation for its non-performance would not afford adequate relief; or

when it is probable that pecuniary compensation cannot be got for the non-performance of the act agreed to be done.”

Moreover, that specific performance also ought to be ordered under the facts and circumstances of the case due to the chose in action concerns land, which is immoveable property, where inadequacy of monetary compensation can be presumed under Section 11 (2) Specific Relief Act 1950 which reads:- “(2) Unless and until the contrary is proved, the court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money, and that the breach of a contract to transfer movable property can be thus relieved.” S/N e02XehX7UqCgBVouyvMw

In the present case, since it is the finding of this Court that OTJ had executed the 1st SPA, the Plaintiffs being the executor of PSS’s have the right to enforce performance on the part of OTJ (now the Defendant being the executor) relating to 1st SPA.

There is also another issue raised by the Defendant that since OTJ never received the full purchase price, the legal and beneficial ownership of the 45 acres of land still retains with OTJ and OTJ cannot be held as a bare trustee to the said land under the law.

With respect, this Court does not see any merit in the said issue raised by the Defendant.

In this regard, it must be recalled that under the terms of payment in the 1st SPA, the balance sum of the purchase price is only payable to OTJ upon the happening of two events, firstly when the layout approval for the subdivision of Lot 4004 is obtained and secondly when individual titles for Lot 4004 are issued which by necessary implication shall include the 45 acres of land.

In Borneo Housing Mortgage Finance Bhd v Time Engineering Bhd (Formerly Known As Time Engineering Sdn Bhd) [1996] 2 CLJ 561, the Federal Court had this to say on the issue of bare trustee :- S/N e02XehX7UqCgBVouyvMw “... the contractual events which result in the vendor becoming a bare trustee of the land the subject matter of the agreement of sale and purchase for the purchaser, is on completion, that is to say, upon receipt by the vendor of the full purchase price, timeously paid and when the vendor has given the purchaser a duly executed, valid and registrable transfer of the land in due form, in favour of the purchaser, for it is then the vendor divest himself of his interest in the land.”

In Bachan Singh v Mahinder Kaur (1956) MLJ 97 it was held by the High Court that:- “... the point is that when that contract was made the purchasers acquired a right ad rem and in personam to the land which so far as the vendor was concerned they were entitled to have erected into a real right. I am not prepared to say that that amounted to an equitable right. I prefer to regard it as a legal right of the nature of a chose in action.”

From the facts, the subdivision of the Lot 4004 and the issuance of individual titles to the 45 acres of land were completed in year 2017. It is also in the evidence by the Plaintiffs that they were willing and ready to pay the balance purchase price as stipulated in the 1st SPA but shown to have been refused to be accepted by the Defendant.

In addition, although it is accepted that mere possession of land does not confer ownership to the occupier, the Defendant never disputed the fact that PSS and subsequently the Plaintiffs had been S/N e02XehX7UqCgBVouyvMw paying the quit rent for the 45 acres of land all these whiles. This, in this Court’s view has manifested PSS’s and the Plaintiffs fulfilling their obligations being the purchaser and assignee under the 1st and 2nd SPA. Such conduct also represents the readiness and willingness on the part of PSS and the Plaintiffs to perform the existing chose in action that would warrant the assistance of equity for the order of specific performance.

In this regard, reference is made to Wong Kup Sing v Jeram Rubber Estates Ltd [1969] 1 MLJ 245, where it was held by the High Court that:- “Has the plaintiff made out a case for specific performance? I say he has. It must be remembered that the ground upon which a Court of equity enforces specific performance of a contract affecting land is that it acts upon the equities arising out of the changed position caused by the acts of the parties done in execution of the contract and not upon the contract itself. The defendants by their indulgence in extending the date for completion on not less than six occasions have lulled the plaintiff into a sense of false security and have justified him in assuming that he would be given reasonable time to complete the contract. It would therefore be inequitable, in view of the dealings which had taken place between the parties, to allow the defendants to enforce his strict legal rights against the plaintiff which he had been led to believe would not be enforced against him. Another factor in his favour is that he has averred and proved a continuous readiness and willingness to perform the contract from the date of the contract to the time of hearing: (Ardeshir v. Flora Sasson [1928] PC 523). This is confirmed by the negotiations between the parties down to and including 30 December 1967. Mr. Sault from the Bar did say on the date of hearing that his client was ever ready, and willing to deposit S/N e02XehX7UqCgBVouyvMw the balance of the purchase money into Court on any day specified. In my view this further confirms the plaintiff's continuous readiness and willingness to perform the contract.

In sum, the Court’s answer to the above issue is a ‘yes’, the Plaintiffs are entitled to claim specific performance against Defendant on 1st SPA, 2nd SPA and 3rd SPA. Issue 4: Whether limitation and/ or laches apply

The Defendant in its amended defence states that Section 6 Limitation Act 1953 bars the Plaintiffs action. The said provision reads:- “6(1) Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say-

actions founded on a contract or on tort;

actions to enforce a recognisance;

actions to enforce an award;

actions to recover any sum recoverable by virtue of any written law other than a penalty or forfeiture or of a sum by way of penalty or forfeiture. S/N e02XehX7UqCgBVouyvMw

An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action.

An action upon any judgment shall not be brought after the expiration of twelve years from the date on which the judgment became enforceable and no arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due.

An action to recover any penalty or forfeiture or sum by way of penalty or forfeiture recoverable by virtue of any written law shall not be brought after the expiration of one year from the date on which the cause of action accrued: Provided that for the purpose of this subsection the expression "penalty" shall not include a fine to which a person is liable on conviction for a criminal offence.

Nothing in this section shall apply to-

any cause of action within the Admiralty jurisdiction of the High Court which is enforceable in rem other than an action to recover the wages of seamen, or

any action to recover money secured by any mortgage of or charge on land or personal property.

Subject to sections 22 and 32 of this Act the provisions of this section shall apply (if necessary by analogy) to all claims for specific performance of a contract or for an injunction or for other equitable relief whether the same be founded upon any contract or tort or upon any trust or other ground in equity.” S/N e02XehX7UqCgBVouyvMw

It is trite that limitation is a complete defence that can defeat the Plaintiffs’ claim. In Shamsudin Abd Hamid v Lembaga Tabung Haji & Anor [2013] 1 LNS 337, it was held that:- "It is trite that limitation is a complete and absolute defence to the Plaintiff's claim. See the case of Sakapp Commodities (M) Sdn Bhd v. Cecil Abraham (Executor of the estate of Loo Cheng Ghee) [1998] 4 CLJ 812; [1998] 4 MLJ 651. Once the defence of limitation is raised, the burden is upon the Plaintiff to prove that the action has been brought within time (see Ong Ah Bee v. Hii Chung Siong, Robin [1993] 1 CLJ 504and BPI International Finance Ltd v. Tengku Abdullah Ibni Sultan Abu Bakar [2009] 4 CLJ 599 CA). This, I find, the Plaintiff has failed to do."

However, this Court rejects the Defendant’s contention since firstly the Statement of Defence does not set out in what manner and more importantly when does the said limitation start to commence.

Be that as it may, it is this Court’s finding that P’s cause of action only arose in 2021 when the Defendant filed an application to remove the private caveat on the land and the Defendant had proceeded to reject the balance sum offered to be paid by the Plaintiffs. These actions of the Defendant would cumulatively form a threat to infringe the Plaintiffs’ rights under the said chose of action. The same could not be said prior to 2017 since OTJ had been held by this Court to be persistently and continuously S/N e02XehX7UqCgBVouyvMw acknowledged PSS’s interest during OTJ’s lifetime and nothing contrary to that occurred until 2021. In Nasri v Mesah [1971] 1 MLJ 32, the Federal Court had held that cause of action under the circumstances ought to be construed as follows:- “For the reasons I have stated, the period of limitation in the present case can be said to have begun to run only from the first clear and unequivocal threat to the plaintiff's right to a transfer of the land. The learned trial Judge has stated in his grounds of judgment that if Ng Moh's case [1969] 1 MLJ 46 was binding on him, then he would hold on the pleadings that the first clear and unequivocal threat to the plaintiff's right to possession was the refusal to the first request after the expiration of the moratorium as alleged in the statement of claim. With respect, there is not the slightest indication from the plaintiff's statement of claim that the defendant at any time clearly and unequivocally refused to sign a transfer. Not even in the defendant's statement of defence, which of course the Court is not entitled to look at, is there any mention of any refusal. As there is no specific averment in the statement of claim as to when the first of the plaintiff's requests was made, it would be a pure conjecture to say that such requests must have been made shortly after the lifting of the moratorium. There can therefore be no basis for the learned Judge's finding that such request were refused by necessary implication.”

In Bolo v Koklan AIR 1930 PC 270, it was held by the Privy Council that:- “There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the Respondent/Defendant against whom the suit is instituted.” S/N e02XehX7UqCgBVouyvMw

On the strength of the above authorities, the Plaintiffs instant action is not barred by limitation, and so this Court holds.

On laches, reference is made to Section 32 Limitation Act 1953 which reads:- “Nothing is this Act shall affect any equitable jurisdiction to refuse relief on the ground of acquiescence, laches or otherwise.”

Laches is clearly not applicable in the present case against the Plaintiffs since PSS and the Plaintiffs, apart from effecting the payment of quit rent, have shown to have consistently taken steps to protect their interest on the land such as by entering private caveats thus giving notice to the world of their interests in the 45 acres of land.

In Eagaivallinayagi Ammal v Chin Min Hua & Ors [2020] 4 CLJ 64, the Court of Appeal held that:- "[21] Again, the doctrine of laches is relevant here. The doctrine acts to deny a claimant who sits on his right. A delay in itself may not necessarily be fatal. It is an unexplained delay that the court shuns upon. It causes prejudice against the defendant, especially in the preparation of his plausible defence. Indeed in this case, the solicitor for the defendant was not able to show documentary proof of a certain document because under the Bar Council Rules 18.01 a solicitor is required only to keep records of transaction for a period of up to 12 S/N e02XehX7UqCgBVouyvMw years from the date of the said transaction. The delay had caused prejudice to the defendant's cause. He had been disadvantaged by the plaintiffs' undue delay initiating their purported claim against him for specific performance. The rationale behind this principle is that it recognises that an adversary can lose evidence, witnesses, and a fair chance to defend himself after the inevitable passage of time from the date that the alleged wrong or breach was committed. Equity does not lend her hand to assist an indolent litigant. While equity assists the vigilant, definitely she does not assist those who slumber on their rights.”

On the facts and evidence, this Court is also satisfied that the Plaintiffs had demonstrated that they have consistently and in good faith sought the transfer of the land with no acquiescence or abandonment of their rights on the 45 acres of land. Refer to Cheah Kim Tong & Anor v Taro Kaur [1989] 1 CLJ REP 378 (High Court):- “The word “laches" is one of the most over-worked words in legal arguments before the Courts and it does not seem to have been fully appreciated for its nature. It means definitely something more than a mere delay, it means such delay amounting to acquiescence. Here the word acquiescence is not quite the same acquiscence as used in equitable estoppel, where, generally a plaintiff stands by watching a violation of his right in progress and keeping silence, but here, there is a completed violation of rights and a plaintiff has become aware of it. He either assents to it, or his delay in asserting his right has been so long as to give rise to an inference of such assent. Regard must be had to the charge in a defendant's position which has resulted from a plaintiff's delay in bringing an action. On the facts in the instant case, the plaintiffs had not been guilty of laches in the sense just stated, S/N e02XehX7UqCgBVouyvMw though I had a suspicion that the Counsels were speaking merely of mere inordinate delay.

Further, due to no evidence in rebuttal, this Court also accepts as a fact that the Plaintiffs had been communicating with the Defendant between 2018-2021 for the transfer of the 45 acres of land to be done in favour of the Plaintiffs.

Finally, on the facts, this Court also finds that no detriment had been inflicted towards the Defendant as a result from the Plaintiffs purported delay in bringing this action against the Defendant since the Defendant did not produce any evidence to justify this.

As such, there seems to be no reason for this Court to find that the Plaintiffs are guilty of laches.

The agreed Issue 5 and Issue 6 concern with the issue of ownership of the 45 acres of land, either legal, beneficial or bare trusteeship.

In view of this Court’s finding and reasoning given under Issue 3, this Court is of the view that both Issue 5 and Issue 6 are no longer necessary to be dealt with specifically. S/N e02XehX7UqCgBVouyvMw

Accordingly, the Plaintiffs claim against Defendant is allowed. Specific Performance in respect of the 1st SPA dated 05.09.1964 is granted against the Defendant as per the terms prayed for in paragraph 53(1)(i) and (ii) of the Statement of Claim.

It has to be mentioned that no consequential vesting order was made by this Court due to the status of the PSS and the Plaintiffs being not the citizens of Malaysia. Acquisition of Malaysian land by foreign entities either actual or juridical has always been subject to certain rules and regulations or even restrictions which was not addressed to sufficiently by the parties during trial. Since specific performance falls within the discretionary powers of the Court, liberty is given to parties to make further applications should necessity arise in the future.

Defendant is also ordered to pay costs of RM 25,000.00 to Plaintiffs, subject to payment of allocator fee. Dated:20.01.2026 …………………………………………. (NOOR HISHAM BIN ISMAIL) Judge High Court, Johor Bahru S/N e02XehX7UqCgBVouyvMw Solicitors for the Plaintiffs: Messrs Arthur Lee & Company Suite 13A.01, Level 13A Menara Pelangi No 2, Jalan Kuning, Taman Pelangi 80400, Johor Bahru Johor Darul Takzim Solicitors for the Defendant: Messrs Francis Pereira & Shan Suite 8A Wisma TCT, 516-1 3rd Mile Ipoh Road, Jalan Sultan Azlan Shah, 51200 Kuala Lumpur S/N e02XehX7UqCgBVouyvMw