Bero Bin Ishak v Ahmad Faizal Bin Sarmin (BA-22NCvC-30-01/2022)

AHMAD FAIZAL BIN SARMIN (No. K/P: 730825-10-5339)

JAGUH BAKTI SDN BHD

PENTADBIR TANAH, PEJABAT TANAH DAERAH SEPANG … DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] The Plaintiff commenced a claim against the 1st Defendant and the 2nd Defendant for a declaration that the Plaintiff is the beneficial owner of a piece of land. The Plaintiff is praying for 06/07/2026 12:59:04 BA-22NCvC-30-01/2022 Kand. 154 S/N yopbHvWNs0Kia/kePB9g the transmission of the land from the previous owner to the 1st Defendant to be cancelled. The Plaintiff also prays for the transfer of the land between the 1st Defendant to the 2nd Defendant to be cancelled. [2] The matter proceeded to trial over a span of five days. Having considered the testimonies by the witnesses, the documentary records and the submissions of the learned counsels, I find that the Plaintiff has proven his case based on the reasons which I shall explain hereafter. Background facts [3] Sarmin bin Maarof (“Sarmin”) is the original owner of a piece of land held under PM 528, Lot 3559, Mukim Sepang (“Land”). [4] In 1975, Sarmin sold the Land to the Plaintiff. The Plaintiff paid the purchase price to Sarmin and was in occupation of the Land. However, Sarmin failed to transfer the Land to the Plaintiff. [5] The Plaintiff commenced legal action against Sarmin in 2012 at the Shah Alam High Court via Suit No. 22NCVC-239-02/2012 (“Suit 239”). Suit 239 proceeded to trial and the High Court found in favour of the Plaintiff and made the order dated 31.12.2012 (“Court Order”). [6] The Court Order made the following orders: S/N yopbHvWNs0Kia/kePB9g

Declaration that the Plaintiff is the beneficial owner of the Land since 25.6.1975;

Declaration that Sarmin is holding the Land on trust since 25.6.1975;

Sarmin is to sign a transfer within 7 days;

Sarmin is to surrender the title to the Land within 7 days;

The Plaintiff is to be registered as the owner of the Land. [7] However, despite the Court Order, Sarmin did not execute the transfer form nor surrender the title to the Land. [8] In August 2021, some people came into the Land and informed the Plaintiff that they have purchased the Land. [9] The Plaintiff conducted a land search and found out that:

Sarmin had died in 2013;

The Court Order was not registered by the 3rd Defendant;

The Land was transmitted to Sarmin’s son, the 1st

The 1st Defendant signed a sale and purchase agreement on 10.3.2021 with the 2nd Defendant; S/N yopbHvWNs0Kia/kePB9g

The 1st Defendant transferred the Land to the 2nd Defendant on 2.8.2021. [10] The Plaintiff is now praying for:

Declaration that the Plaintiff is the beneficial owner of the

The transmission between Sarmin and the 1st Defendant is cancelled;

The transfer between the 1st Defendant to the 2nd Defendant is cancelled;

Sarmin, the 1st Defendant and the 2nd Defendant are bare trustees of the Land. Summary of the 1st Defendant’s defence and counterclaim [11] The 1st Defendant disputes the fact that Sarmin has sold the Land to the Plaintiff. According to the 1st Defendant, Sarmin had merely leased the Land to the Plaintiff for 7 years. No purchase price was ever paid by the Plaintiff to Sarmin. The Plaintiff had only paid rental to Sarmin between 1975 to 1982 in order to cultivate the Land. S/N yopbHvWNs0Kia/kePB9g [12] Sarmin has already died in 2013. Consequent thereto, the Land has been legally transmitted from Sarmin’s estate to the 1st Defendant. The Plaintiff has also failed to take any further action to enforce the Court Order. The 1st Defendant is also not a party to the Court Order. [13] The 1st Defendant is now making a counterclaim against the Plaintiff for the sum of RM228,000.00, which is the rental for the Land which the Plaintiff has been illegally occupying, at the rate of RM6,000.00 per annum for the last 38 years. Summary of the 2nd Defendant’s defence and counterclaim [14] The 2nd Defendant is not aware of the background events surrounding the Land. The 2nd Defendant has signed the Sale and Purchase Agreement on 10.3.2021 and was registered as owner on 2.8.2021. The 2nd Defendant went to inspect the Land in August 2021 after receiving news that there are third parties illegally conducting activities on the Land. [15] The 2nd Defendant says that they are bona fide purchasers and they are not involved in the dispute between the Plaintiff and Sarmin. The 2nd Defendant also argues that the claim should be dismissed on laches and that the Plaintiff is now a trespasser. [16] The 2nd Defendant is now making a counterclaim for the Plaintiff to be estopped from trespassing into the Land. The 2nd Defendant is also claiming for damages. S/N yopbHvWNs0Kia/kePB9g Testimony by witnesses [17] The following witnesses have testified during the trial over a span of five days:

Plaintiff: Bero bin Ishak

1st Defendant: Ahmad Faizal bin Sarmin

2nd Defendant:

3rd Defendant: Azlina binti Zainal Rahayu Abdul Rahman Summary of the Plaintiff’s case [18] The Plaintiff submits that the Court Order is still valid up until today as it was never appealed nor set aside. This means the Plaintiff is the beneficial owner of the Land and that Sarmin has been holding the Land on trust since 1975. [19] The Plaintiff has also been in possession of the Land without interruption since 1975. The Plaintiff has been developing and cultivating the Land all these while. The 1st Defendant has never S/N yopbHvWNs0Kia/kePB9g tried to remove the Plaintiff from the Land. Similarly, there was also nothing done by the 2nd Defendant to evict the Plaintiff from the Land. [20] The Plaintiff has served the Court Order on the 3rd Defendant for registration. However, the 3rd Defendant failed to take any action. The Plaintiff says that the delay in enforcing the Court Order is only in respect of the administrative aspect, such as the application for the consent to transfer and the execution of the transfer forms. However, it cannot be denied that the Court Order has made declaratory orders that the Plaintiff is the beneficial owner and that Sarmin is holding the Land on trust. These declaratory orders still continue to stand. [21] The Plaintiff admits that although there was a delay in adhering to certain parts of the Court Order, the factual events show that the Plaintiff has continued to occupy the Land. Consequently, there cannot be any acquiescence, waiver or inaction on the part of the Plaintiff since the Plaintiff has been in occupation of the Land all these while. [22] The Plaintiff also points out that section 6(3) of the Limitation Act 1953 only provides for an action upon any judgment shall not be brought after the expiration of 12 years from the date on which the judgment becomes enforceable. The Plaintiff says that the Court Order is dated 31.12.2012. It lapses only in 2024, whereas this action was filed in 2022. S/N yopbHvWNs0Kia/kePB9g [23] The Plaintiff submits that since Sarmin is holding the Land on trust, Sarmin has no locus or good title to transmit to the 1st Defendant. [24] As regards to the 2nd Defendant, the Plaintiff argues that the 2nd Defendant is not protected by the provisions of section 340(3) of the National Land Code. This is because the 2nd Defendant is not a “subsequent purchaser”, but an “immediate purchaser”. Alternatively, the Plaintiff argues that the 2nd Defendant is not a bona fide purchaser for value as there was no due diligence by the 2nd Defendant. Further, the purchase price of the Land was also undervalued. Summary of the 1st Defendant’s case [25] The 1st Defendant says that he has the original title to the Land and had legally obtained the small estate distribution order when his father, Sarmin had passed away. The 1st Defendant also says that the Court Order does not bind the 1st Defendant. The 1st Defendant also submits that there has been an inordinate delay by the Plaintiff to take further action after the issuance of the Court Order. Summary of the 2nd Defendant’s case [26] The 2nd Defendant argues that they are bona fide purchaser for valuable consideration without prior notice of the beneficial interest of the Plaintiff. The 2nd Defendant also argues that the S/N yopbHvWNs0Kia/kePB9g 1st Defendant was registered as a proprietor by way of succession. Therefore, the 1st Defendant’s interest is indefeasible under section 340(1) of the National Land Code. [27] Alternatively, the 2nd Defendant argues that even if the transmission to the 1st Defendant is tainted with vitiating circumstance, the 2nd Defendant’s interest is derived from the subsequent registered transfer, which is indefeasible. Issues to be determined [28] The issues to be determined by this court are:

1st Issue: Is the Court Order still valid and effective?

2nd Issue: Is there laches relating to the perfection of the Court Order?

3rd Issue: Is the transmission from Sarmin to the 1st Defendant valid?

4th Issue: Is the transfer from the 1st Defendant to the 2nd Defendant valid? 1st Issue: Is the Court Order still valid and effective? [29] As rightly pointed out by the Plaintiff, the Court Order was never appealed nor was it set aside. In SBSK Plantations Sdn Bhd S/N yopbHvWNs0Kia/kePB9g v. Dynasty Rangers (M) Sdn Bhd [2002] 1 MLJ 326, the High Court held that: “I shall next consider the authorities relied on by the defendant which hold a contrary view, namely, where the statutory notice is founded on a judgment debt, the court will not grant a discretionary injunction to restrain the petitioner from presenting a winding up petition on the ground of abuse of process of court unless the judgment has been stayed or set aside. In the first case, namely, Patel's case, Wan Adnan Ismail J (now PCA) had set aside an ex parte injunction restraining the first defendant from presenting to the court, or any other court, a petition to, inter alia, wind up the plaintiff. In doing so, his Lordship rejected the plaintiff's contention that the debt claimed which was based on a judgment, although it was a judgment in default of defence to the defendant's counterclaim, was a disputed debt, and that the defendant's action in serving on the plaintiff a demand under s 218 of the Act based on the judgment debt was for the sole purpose of applying pressure on the plaintiff. He said, as follows at p 281: In my view, the judgment had been regularly obtained. A judgment remains regular and enforceable until it is set aside by the court. Although the plaintiffs had filed an application to set aside the judgment, the judgment remains regular and enforceable until it is set aside. Until the judgment is set aside the claim by the first defendant based on the judgment cannot be regarded as a disputed debt. It is in fact an enforceable judgment debt.” S/N yopbHvWNs0Kia/kePB9g [30] As such, I find that the Court Order remains valid and effective for as long as it is not set aside. 2nd Issue: - Is there laches relating to the perfection of the Court Order? [31] Although the Plaintiff is not registered as the proprietor, the fact is that the Plaintiff is the beneficial owner pursuant to the Court Order. The Plaintiff has also been in possession of the Land without interruption since 1975. It is also an undisputed fact that the Plaintiff has been farming and cultivating the Land the whole time. [32] In Zainab bt Ibrahim v. Limah bt Che Mat [2014] 6 MLJ 419, the Court of Appeal held that: “[13] In these circumstances, the reasoning that the plaintiff was indolent, and that her actions, or more precisely her non-actions, were inconsistent with her claim, is flawed. We hold that since the need to undertake litigation to enforce her right arose only when the defendant sought to recover the land to give to her son, no adverse inference ought to have been drawn against her for not enforcing her claim earlier. Nor should it be taken against the plaintiff as appropriate to have remained silent for 22 years, particularly in the face of the fact she was at all times in occupation without disturbance by the registered proprietors. [14] We concluded with an examination of in which direction the balance of probabilities tilt. The fact that the plaintiff was at S/N yopbHvWNs0Kia/kePB9g all times in occupation and quiet enjoyment of the part of the land she occupied is not inconsistent with her version that the registered proprietors accepted they held that part of the land in trust for her. The fact that the defendant, having purchased the land, proceeded to make a subdivision to separate that part of the land occupied by the plaintiff tends, in our view, to support the plaintiff’s version. This appears more so since there is no evidence adduced by the defendant to seek to remove the plaintiff before undertaking the subdivision …” [33] The 1st Defendant, although aware of the Plaintiff’s occupation on the Land, has never taken any steps to remove the Plaintiff from the Land. Similarly, the 2nd Defendant also failed to initiate any action to evict the Plaintiff from the Land which they have already purchased. [34] Neither the 1st Defendant nor the 2nd Defendant actually disputes the validity of the Court Order. They merely said that the Court Order is not binding on them. [35] The Court Order has made two important declarations. The first is that the Plaintiff is the beneficial owner of the Land. The second is that Sarmin is holding the Land on trust for the Plaintiff. These two declaratory orders are valid and continues to stand. These two declaratory orders do not relate to the technical aspect of the transfer of the Land from Sarmin to the Plaintiff. The delay by the Plaintiff relates solely to the S/N yopbHvWNs0Kia/kePB9g surrendering of the title, the signing of the transfer form and the registration of the new ownership of the Land. [36] For an argument on laches to succeed, certain criteria need to be satisfied. The Defendants would have to show that there was delay in the Plaintiff to commence legal action. It must also be shown that such a delay led to acquiescence or assent and consequent thereto, the Defendants’ position has been altered. [37] In Cheah Kim Tong & Anor v. Taro Kaur [1989] 3 MLJ 252, Peh Swee Chin J states: “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 acquiescence as used in equitable estoppel, where, generally a plaintiff stands by watching a violation of his right in progress and keeping silent, but here, there is a completed violation of a right 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 change 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, though I had a suspicion that counsel was speaking merely of mere inordinate delay.” [38] In Alfred Templeton & Ors v. Low Yat Holdings Sdn Bhd & Anor [1989] 2 MLJ 202, Edgar Joseph Jr J explains: S/N yopbHvWNs0Kia/kePB9g “Laches is an equitable defence implying lapse of time and delay in prosecuting a claim. A court of equity refuses its aid to a stale demand where the plaintiff has slept upon his rights and acquiesced for a great length of time. He is then said to be barred by laches. In determining whether there has been such delay as to amount to laches the court considers whether there has been acquiescence on the plaintiff's part and any change of position that has occurred on the part of the defendant. The doctrine of laches rests on the consideration that it is unjust to give a plaintiff a remedy where he has by his conduct done that which might fairly be regarded as equivalent to a waiver of it or where by his conduct and neglect he has, though not waiving the remedy. put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted: 14 Halsbury's Laws of England (3rd Ed) paras 1181, 1182. Laches has been succinctly described as ‘inaction with one's eyes open’.” [39] Following the principle set out in Cheah Kim Tong & Anor v. Taro Kaur and Alfred Templeton & Ors v. Low Yat Holdings Sdn Bhd & Anor, although there is a delay by the Plaintiff to enforce the transfer of the Land from Sarmin to the Plaintiff, the Plaintiff carried on to occupy the Land without any interruption. The Plaintiff’s continued action to occupy, develop and cultivate the Land cannot be said to be an acquiescence, waiver or inaction on the part of the Plaintiff. [40] I also accept the Plaintiff’s submissions that section 6(3) of the Limitation Act 1953 provides for an action upon any judgment shall not be brought after the expiration of twelve years. The S/N yopbHvWNs0Kia/kePB9g Court Order is dated on 31.12.2012. It lapses only in 2024. The present action was already filed in 2022. 3rd Issue: - Is the transmission from Sarmin to the 1st Defendant valid? [41] The Court Order had clearly declared the Plaintiff’s status as the beneficial owner of the Land. The Court Order has also declared that Sarmin is holding the Land on trust. Therefore, it is clear that Sarmin has no more interest in the Land. Consequently, Sarmin has no locus or good title to transmit the Land to the 1st Defendant. This would be in line with the nemo dat quod non habet principle. [42] In Nur Amira bt Jainudin v. Diwi Kenchana bt Mokhtar & Ors [2021] MLJU 1976, The High Court held: “[63] This is because of the Nemo Dat principle. [64] “Nemo dat quod non habet”, literally means “no one gives what they do not have” is a legal rule, sometimes called the nemo dat rule, that states that the purchase of a possession from someone who has no ownership right to it also denies the purchaser any ownership title. The legal maxim is “Nemo plus iuris ad alium transferre potest quam ipse habet” rule, which means “one cannot transfer to another more rights than they have”.” S/N yopbHvWNs0Kia/kePB9g [43] In Eko Property Holdings Sdn Bhd v. Soo Jia Xuan dan satu lagi [2025] MLJU 37, the Court of Appeal applied the nemo dat principle for land transactions: “[28] Mengaplikasikan keputusan Mahkamah Persekutuan dalam kes He-Con dan juga beberapa kes autoriti lain sebelumnya kepada kes rayuan D2 di hadapan kami, jelaslah bahawa setelah D1 menerima bayaran penuh penjualan Lot 13 dan Lot 14 di bawah PJB 2007 daripada plaintif-plaintif, serta telah memberikan milikan kosong kedua-dua hartanah tersebut kepada plaintif-plaintif, maka status D1 berubah daripada tuan punya kepada pemegang amanah semata-mata bagi pihak plaintif-plaintif di bawah undang-undang. Oleh itu, D1 tidak lagi berhak dan tidak berupaya untuk berurus niaga dengan D2 ke atas Lot 13 dan Lot 14, dan urus niaga yang telah dimasuki D1 dengan D2 sudah tentulah menjadi tidak sah ab initio. Jelasnya, prinsip ekuiti memihak kepada plaintif-plaintif dalam tindakannya terhadap D2.” [44] The status of the Land as an asset held on trust is also binding on Sarmin’s heirs. When Sarmin passes away, the Land cannot form part of the estate. A trust is enforceable against a deceased or his estate. In TM Feroze Khan & Ors v. Meera Hussain TM Mohamed Mydin [2006] 5 MLJ 217, the Court of Appeal decided that a trust is enforceable against the deceased or his estate, irrespective of whether or not possession of the property was given to the respondent during the lifetime of the deceased and whether or not the property was vested in the name of the respondent during the lifetime of the deceased. S/N yopbHvWNs0Kia/kePB9g 4th Issue: - Is the transfer from the 1st Defendant to the 2nd Defendant valid? [45] The 2nd Defendant had relied primarily on section 340 of the National Land Code to argue that it is a bona fide purchaser with value. The 2nd Defendant therefore argues that the transfer between the 1st Defendant and the 2nd Defendant is indefeasible. [46] Section 340 of the National Land Code reads: “Registration to confer indefeasibility title or interest, except in certain circumstances 340 (1) The title or interest of any person or body for the time being registered as proprietor of any land, or in whose name any lease, charge or easement is for the time being registered, shall, subject to the following provisions of this section, be indefeasible.

The title or interest of any such person or body shall not be indefeasible:

in any case of fraud or misrepresentation to which the person or body, or any agent of the person or body, was a party or privy; or S/N yopbHvWNs0Kia/kePB9g

where registration was obtained by forgery, or by means of an insufficient or void instrument; or

where the title or interest was unlawfully acquired by the person or body in the purported exercise of any power or authority conferred by any written law.

Where the title or interest of any person or body is defeasible by reason of any of the circumstances specified in subsection (2):

it shall be liable to be set aside in the hands of any person or body to whom it may subsequently be transferred; and

any interest subsequently granted thereout shall be liable to be set aside in the hands of any person or body in whom it is for the time being vested; Provided that nothing in this subsection shall affect any title or interest acquired by any purchaser in good faith and for valuable consideration, or any person or body claiming through or under such a purchaser.” [47] The Plaintiff had tried to argue that the 2nd Defendant is not a subsequent purchaser. The Plaintiff explained that the 2nd Defendant had purchased the Land from the 1st Defendant. On the other hand, the 1st Defendant had obtained ownership of the S/N yopbHvWNs0Kia/kePB9g Land by way of a transmission. In that sense, the 1st Defendant is not a bona fide purchaser for value. The 1st Defendant is a rogue. As the 1st Defendant is not the immediate purchaser, the Plaintiff argues that the 2nd Defendant would now be the immediate purchaser. [48] In relying on this argument, the Plaintiff had relied on the case of He-Con Sdn Bhd v. Bulyah bt Ishak & Anor (as administators for the estate of Nor Zainir bin Rahmat, the deceased) and another appeal (2020) MLJU 916, where it was held that an immediate purchaser is not protected by section 340(3) of the National Land Code. [49] The facts in He-Con Sdn Bhd v. Bulyah bt Ishak & Anor show that the appellant had sold the property to the respondent. However, when the individual title to the property was issued, it was registered in the appellant’s name rather than the respondent. The appellant took this opportunity to charge the property to Ambank (M) Bhd. The respondent then applied to set aside the transfer and the charge of the property. The Federal Court had found that the transaction between the appellant and Ambank was that of a direct and immediate purchase. Ambank was therefore an “immediate purchaser” when it registered its charge over the property and could not avail itself of the protection offered in section 340(3) of the National Land Code. S/N yopbHvWNs0Kia/kePB9g [50] However, having perused the facts in He-Con Sdn Bhd v Bulyah bt Ishak, I am not able to agree with the Plaintiff’s submissions. The facts in He-Con Sdn Bhd v Bulyah bt Ishak are different from the facts of this suit. Here, it is not disputed that Sarmin is the first registered proprietor of the Land. The second registered proprietor is the 1st Defendant. Therefore, it is my view that the 1st Defendant is the immediate purchaser. The third registered proprietor is the 2nd Defendant. I would therefore accept that the 2nd Defendant would qualify to be the subsequent purchaser. [51] Having accepted that the 2nd Defendant is a subsequent purchaser, I would now examine whether the 2nd Defendant is a bona fide purchaser with value without notice. [52] In Dato’ Capt Mohd Najib bin Abdullah v. Natarjaya Sdn Bhd & Ors [2016] 7 MLJ 532, the High Court held that the burden of proof lies on the defendant as purchaser to show that it is a purchaser in good faith and for valuable consideration: “Bona fide purchaser for value The burden of proof lies on the fourth defendant as purchaser to show that it is a purchaser in good faith and for valuable consideration (see Ong Chat Pang’s case). The fourth defendant had not testified in court personally, but had given a power to attorney to DW2, through whom documentary evidence was tendered. S/N yopbHvWNs0Kia/kePB9g The applicable test to determine good faith is summarised with characteristic perspicuous-ness in the judgment of Harmindar J in Overseas Realty Sdn Bhd v Wong Yau Choy & Ors; Tetuan Tay Ibrahim & Partners (Third Party) [2014] 8 CLJ 107. I can do no better than to reproduce the relevant passages here: [22] Now who is a good faith purchaser or sometimes known as a bona fide purchaser has been considered in a number of cases. In State Tailor Sdn Bhd v Nallapan [2005] 2 CLJ 167 the Court of Appeal held that the basic element of good faith is the absence of fraud, deceit or dishonesty and the knowledge or means of knowledge of such at the time of entry into a transaction but the overriding consideration is the particular circumstances of each case (per Richard Malanjum JCA (as he then was) at p 184). [23] In another Court of Appeal decision in Au Meng Nam & Anor v Ung Yak Chew & Ors [2007] 4 CLJ 526, Raus Shariff JCA (as he then was) in a separate but supporting judgment held that a purchaser in good faith does not include a purchaser who is careless or who had been negligent. His Lordship took the view that a subsequent purchaser was ‘under an obligation to investigate properly all matters relating to the sale of the said land and not to just blindly accept what was claimed by the vendor as correct and genuine’. When the purchaser ‘failed to take the ordinary precautions which ought to be taken in such a matter he is not entitled to the protection of the court’ (at p 554). S/N yopbHvWNs0Kia/kePB9g [24] It may therefore be surmised that in order to prove there was a bona fide purchase what is required of the purchaser is to establish that there was an honest dealing or honest conduct in the acquisition of any title or interest in any property (see also Ong Chat Pang & Anor v Valliappa Chettiar [1971] 1 LNS 96; [1971] 1 MLJ 224). In this regard, there is a duty to make the necessary enquiries regarding the dealing as the particular circumstances of the case demands so as to acquire knowledge of any improper conduct. Any person who in the circumstances ought to have made the necessary inquiries but fails to do so may be guilty of wilful blindness or voluntary ignorance such that it would amount to unfair conduct. Even carelessness or negligence in doing so would disentitle the subsequent purchaser to the title or interest of any such property. It cannot be gainsaid that the duty to do so cannot be a light one as otherwise gross injustice would befall the innocent owner of the land.” [53] The testimonies by the 1st Defendant, the 2nd Defendant’s witness would show that there was no due diligence conducted by the 2nd Defendant on the Land and as to its ownership. The 1st Defendant had firstly testified that he did not enter into the Land since 1975. “[NOTA KETERANGAN (ENCL 130), MS 77-DW1 (Ahmad Faizal)] “SM Tak ada. So, jangan gunakan Covid sebagai satu alasan. Encik tak pernah pergi ke tanah itu sebab S/N yopbHvWNs0Kia/kePB9g daripada 1975 Bero yang usahakan tanah itu dan dia yang ada atas tanah itu. Encik tak pernah pergi tanah itu. Setuju tak? Ya, betul. Ada tak pembeli pergi tengok tanah itu ataupun Encik tunjukkan tanah tu kepada dia? Pembeli pergi sendiri menengok tanah itu. Pembeli pergi sendiri tengok tanah itu. Bila dia pergi? Sebelum perjanjian jual beli ni berlaku.” [54] The 1st Defendant had also testified that had the 2nd Defendant inspected the Land, they would have found out about the Plaintiff’s occupation of the Land. “[NOTA KETERANGAN (ENCL 130), MS 78-DW1 (Ahmad Faizal)] Sebelum perjanjian jual beli buat, pembeli Jaguh Bakti dah pergi tengok tanah itu? Kalau dia tengok tanah itu, dia boleh tahu yang Bero ada usahakan tanah itu. Ada kelapa sawit dan sebagainya. Sebab Encik tak pernah pergi tanah itu. Setuju? Ya, setuju.” S/N yopbHvWNs0Kia/kePB9g [55] There are also conflicting testimonies by the 1st Defendant and the 2nd Defendant’s witness, Mohd Amin Adno (“DW5”). The 1st Defendant says he has never been to the Land but DW5 says the 1st Defendant had brought him there. “[NOTA KETERANGAN (ENCL 130), MS 193-194-DW5 (Amin)] I see. So, Encik kata, tadi Encik ada tengok tanah yang Ahmad Faizal nak jual. Encik ada pergi tengok. Siapa yang tunjukkan? En Faizal. Faizal tunjukkan? Dan Encik nampak ada pokok kelapa sawit – Ya, pokok kelapa – Lebih kurang tahun berapa pergi tengok, ya? S/N yopbHvWNs0Kia/kePB9g Dalam 2020. Hujung 2020. Hujung 2020. Ya? Pergi tengok. Dan apa Faizal cakap? Dia ada usahakan tanah itu ke atau orang lain? Tak ada. Ya? Tak ada usahakan. Cuma dia dulu, dia ada cerita, dulu dia ada serahkan satu orang untuk mengerjakan kebun. Dia ada cakap. Dia ada cakap, dulu dia ada serahkan kepada orang untuk kerjakan kebun tu. Dia ada cakap siapa tu semua tak ada? Dia tak cakap. Dan Encik pun percayalah apa dia cakap? S/N yopbHvWNs0Kia/kePB9g Ya.” [56] In fact, DW5 also agreed that he saw palm oil being cultivated but did not make any further inquiries. “[NOTA KETERANGAN (ENCL 130), MS 195-DW5 (Amin)] Encik tak buat siasatan lanjut? Tak ada, tak ada. Siapa orangnya, apa haknya, semua tak ada, ya? Saya, tak ada. Tak ada, ya? Tapi Encik ada pergi tanah tu dan Encik lihat apa, ya? Maksudnya lihat macam mana? Ada pokok kelapa sawit? Ya. Dalam kebun sebanyak 5 ekar tu,memang ada pokok sawit tapi tak sepenuhnya. Sebab macam anak-anak kayu semua dah besar. Dah besar? Baik. Ada tanya tak dengan En Ahmad Faizal sama ada dia yang tanamkan pokok tu? S/N yopbHvWNs0Kia/kePB9g Saya tak tanya. Tak tanya? Tak tanya.” [57] The 2nd Defendant argued that they had acted in good faith as they had engaged solicitors and had conducted a land search. [58] However, I do not think that that there was sufficient due diligence. The 2nd Defendant themselves had stated that they have visited the Land in 2021 and discovered third parties occupying and engaging in some agricultural activity. This occurred in August 2021, which was after the sale and purchase agreement has been concluded. This would mean that the 2nd Defendant did not visit or inspect the Land at all prior to the signing of the sale and purchase agreement. I do not find it reasonable to accept that the 2nd Defendant, as purchaser, can agree to purchase a piece of land without prior physical inspection and merely relying on the 1st Defendant’s representation. [59] Accordingly, I accept that the 2nd Defendant has failed on the “good faith” and “bona fide purchaser for value” criteria. [60] The purchase price of the Land is also undervalued. In Dato’ Capt Mohd Najib bin Abdullah v Natarjaya Sdn Bhd & Ors [2016] 7 MLJ 532, the High Court held: S/N yopbHvWNs0Kia/kePB9g “Against this evidence is the fact that the purchase price paid by the fourth defendant was only RM45,000, which is lower than the price that the plaintiff paid for the property some 20 years previously, and less than half of the selling price to the fifth defendant five years later. As the fourth defendant did not testify in person, there was no explanation as to why the purchase price paid by the fourth defendant was lower than the original purchase price paid by the plaintiff and much lower than the subsequent sale price to the fifth defendant. The fourth defendant could have tendered evidence to show that the market price for the apartment unit at the material time was reflective of the purchase price paid. As explained by Harmindar J in the Overseas Realty case, the duty on a purchaser is not light one. If the purchase price was lower that the market price at the material time, a reasonably prudent purchaser would have been placed on a duty to make further inquiries.” [61] The 1st Defendant himself had admitted that the purchase price is undervalued. “[NOTA KETERANGAN (ENCL 130), MS 73-DW1 (Ahmad Faizal)] So, Encik jual walaupun harga dia di bawah harga pasaran? Setuju? Setuju. S/N yopbHvWNs0Kia/kePB9g Encik telah jualkan harta ini di bawah harga pasaran lebih kurang RM200,000. Setuju? Setuju ataupun tidak? Harga pasaran adalah RM708,000. Paling kurang pun RM150,000 bawah harga pasaran. Setuju tak?” [62] DW5 did not offer any explanation as to whether they had made inquiries as to the market value of the Land. DW5 merely said that the purchase price was a matter that has been agreed between them after negotiations. “[NOTA KETERANGAN (ENCL 130), MS 199-2003-DW5 (Amin)] Tapi kita tak ada depan Mahkamah. Yang ada depan Mahkamah, harganya adalah lebih dari RM700,000. Itu sebab bila saya beli-beli kebun ni, ikut perundingan persetujuan bersama. Baik. Ok, misal kata tuan tanah nak jual RM700,000, saya tak mampu. Saya boleh beli, saya minta dengan harga RM550,000 hingga RM500,000. Kalau tuan tanah setuju, benda ni dijalankan.” [63] There are also some pertinent background facts which I have taken into consideration in respect of the arrangement between the 1st Defendant and the 2nd Defendant. S/N yopbHvWNs0Kia/kePB9g [64] The 2nd Defendant is a company. It was incorporated on 19.12.2021, which is before the signing of the sale and purchase agreement. There are four individuals involved in the 2nd Defendant, namely Mohamad Akmal Amin, Mohd Amin Adno (DW5), Tan (“DW4”) and Phoa. [65] The purchase price was paid by Tan and Phoa. However, when the company was incorporated, Amin and Akmal were the directors. Amin and Akmal were appointed by the 1st Defendant as introducers, to introduce the land to Tan. After the 2nd Defendant was registered as proprietor, Amin and Akmal resigned. Tan and Phoa took over as directors. Tan, Amin, Akmal and the 1st Defendant agreed that there is an introducer fee of RM45,000.00 to be paid to both Akmal and Amin. The introducer fee will be deducted from the purchase price. [66] The Plaintiff had raised issues of potential illegality as the Land is a Malay reserve land. However, I do not find this issue pertinent to this dispute. [67] The 2nd Defendant had argued that dishonesty and bad faith should not be attributed to the arrangement between the shareholders and directors of the 2nd Defendant with regards to the incorporation and composition of the company and the agreed method of financing. S/N yopbHvWNs0Kia/kePB9g [68] Although I agree that on its own, arrangements between shareholders and directors would be an internal matter, but in this particular case, I would have to take these factors into account in deciding whether the purchase of this Land is bona fide and for value. [69] The evidence shows that there are substantial commissions being paid to Amin and Akmal. The evidence also show that the Land is undervalued. The fact that the Land is sold below the market rate is compounded further by the fact that there are substantial commissions being deducted from the purchase price, which was then paid to Amin and Akmal, who essentially are the directors of the 2nd Defendant at that material time. [70] Therefore, I find that although the 2nd Defendant is a subsequent purchaser, the transaction was not bona fide and without valuable consideration. [71] There is an argument brought up by the 2nd Defendant in that the Plaintiff had failed to plead section 340(2) of the National Land Code on fraud and illegality. However, on this issue, I accept the Plaintiff’s submissions that points of law is not mandatory to be pleaded. Conclusion [72] Accordingly, for the reasons above, I allow the Plaintiff’s claim for the following: S/N yopbHvWNs0Kia/kePB9g

Declaration that the Plaintiff is the beneficial owner of the

The transmission between Sarmin and the 1st Defendant is cancelled;

The transfer between the 1st Defendant and the 2nd Defendant is cancelled;

Sarmin, 1st Defendant and 2nd Defendant are bare trustees of the Land;

The 3rd Defendant is to register the title into the Plaintiff’s name within 14 days;

The 3rd Defendant is to cancel the 2nd Defendant’s name within one month;

The Plaintiff is to apply for the consent to transfer within 14 days;

The 1st Defendant is to sign the Form 14A to the Plaintiff within 14 days;

Failure to do so, the Registrar will sign the Form 14A to the Plaintiff;

The 1st Defendant or the 2nd Defendant is to re-deliver the title to the Land to the Plaintiff; S/N yopbHvWNs0Kia/kePB9g

Failure to do so, the 3rd Defendant is to cancel the title to the Land. [73] I also make an order for general damages to be assessed by the Court (together with interest). However, I make no order for exemplary damages. [74] I make the following orders as to costs:

Cost of RM15,000.00 payable by the 1st Defendant;

Cost of RM15,000.00 payable by the 2nd Defendant;

Cost of RM5,000.00 payable by the 3rd Defendant. [75] The 1st Defendant’s and the 2nd Defendant’s counterclaims are dismissed. Dated the 6th day of July 2026. (SEOW HOCK PENG) JUDICIAL COMMISSIONER HIGH COURT OF MALAYA SHAH ALAM, SELANGOR S/N yopbHvWNs0Kia/kePB9g Counsel: For the Plaintiff : Sharif bin Mohamed Nurliyana binti Azis (Messrs Sharif & Khoo) For the 1st Defendant : Abdul Razak bin Abu Bakar (Messrs Abdul Razak & Parners) For the 2nd Defendant : Mak Yin Wah (Messrs E J Ong & Partners) For the 3rd Defendant : Mohd Khairudin bin Idris (Pejabat Penasihat Undang-Undang

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