Cimb Islamic Trustee Berhad v Pendaftar Hakmilik Negeri Selangor (B-01(NCVC)(W)-67-02/2018)

1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO: B-01(NCVC)(W)-67-02/2018 BETWEEN CIMB ISLAMIC TRUSTEE BERHAD (Company No. : 167913-M) (As the Administrator of the Estate of Hussein Bin Noor, Deceased) ... APPELLANT AND

1. PENDAFTAR HAKMILIK NEGERI SELANGOR

2. PENGARAH TANAH DAN GALIAN NEGERI SELANGOR

3. HOO CHIA CHOON (NRIC No: 810131-06-5029) 2

4. HOO MOOI HWA (NRIC No: 570214-06-5163) (sebagai wasi harta pusaka Hoo Hwang Boon, si mati)

5. HONG LEONG BANK BERHAD (Company No.: 97141-X) ...RESPONDENTS [In the High Court of Malaya at Shah Alam Suit No. BA-21NCVC-70-09/2016 BETWEEN CIMB ISLAMIC TRUSTEE BERHAD (Company No. : 167913-M) (As the Administrator of the Estate of Hussein Bin Noor, Deceased) ... PLAINTIFF AND

1. PENDAFTAR HAKMILIK NEGERI SELANGOR 3

2. PENGARAH TANAH DAN GALIAN NEGERI SELANGOR

3. HOO CHIA CHOON (NRIC No: 810131-06-5029)

4. HOO MOOI HWA (NRIC No: 570214-06-5163) (sebagai wasi harta pusaka Hoo Hwang Boon, si mati)

5. HONG LEONG BANK BERHAD (Company No.: 97141-X) ... DEFENDANTS] CORUM VERNON ONG LAM KIAT, JCA (NOW FCJ) YEW JEN KIE, JCA HAS ZANAH MEHAT, JCA 4 JUDGMENT OF THE COURT INTRODUCTION [1] The subject matter of this appeal is about the competing claims on the ownership of a double storey office/shop lot situated on a piece of land presently known as HSD 77602, PT No. 11929, Mukim Batu, Daerah Gombak, Negeri Selangor (“HSD 77602” or “the Property”) between three parties namely the appellant/plaintiff being the trustee on behalf the beneficiaries of the estate of the original owner one Hussein bin Noor (“Hussein”), the 3rd respondent/3rd defendant as the current registered proprietor of the land in the computerised land title and the 5th respondent/5th defendant being the chargee. [2]

In exercise of its trusteeship, the appellant has filed a claim against various parties:

(ii) the Director of the Selangor Land and Mines (the 2nd respondent); 5

(iii) an individual by the name of Hoo Chia Choon (the 3rd respondent), the registered land owner in the computerised land title issued by the 1st and 2nd respondents;

(iv) an individual by the name of Hoo Mooi Hwa (as the executor of the late Hoo Hwang Boon’s will (the 4th respondent); and

(ii) the 4th respondent being the executor of the late Hoo Hwang Boon’s estate, also applied for a replacement of the tittle HSD 40222; and

(iii) on 23.8.2013, HSD 77602 was issued as a replacement title for the lost title HSD 40222. The same was gazetted and notified via Form 110. [7] Subsequently, HSD 77602 was then transferred from the 4th respondent (the executor of the late Hoo Hwang Boon’s will) to the 3rd respondent being the beneficiaries in the will. The 3rd respondent became 8 the registered owner of the property vide a probate granted by the Kuala Lumpur High Court OS No. 32NCVC-522-05/2013 dated 29.5.2013. On the face of HSD 77602, the 3rd respondent is the registered proprietor of HSD 77602 or the Property. [8] On 18.10.2013, the 3rd respondent, had charged the Property to the 5th respondent via Charge No. 89214/2013 (“the Charge”). It was not in dispute that at all material times, the 5th respondent had no knowledge of the purported competing claims by the appellant. [9] It was not in dispute that:

(ii) there was no record of any application for replacement title made by Hussein’s beneficiaries or the appellant; and

(iii) on 16.4.2002, QTR 5371 was converted to a new tittle under HSD 40222 due to the implementation of the computerised 9 registration system at the land office. It was not in dispute that the late Hoo Hwang Boon was registered as the proprietor and owner of Property in HSD 40222 and his name appears on the same after the conversion. AT THE HIGH COURT [10] At the High Court, the appellant sought inter alia to annul the title HSD 40222 PT 11929 issued on 16.4.2002, HSD 77602 PT 11929 issued on 23.8.2013, the transfer of the said property to the 3rd respondent, the Charge created in favour of the 5th respondent; to declare that Hussein bin Noor was/is the lawful and legal owner of the said property and the 1st and 2nd respondent to rectify the registration of the said property; and to injunct the 3rd respondent from initiating an action for vacant possession. [11] The 1st and 2nd respondents deny any irregularity or breach of any statutory duty and seek protection under section 22 of the National Land Code 1965 (“NLC”). The 3rd and 4th respondent maintain that the said property is legally owned by the 3rd respondent which he inherited from his grandfather. The 5th respondent pleads that based on the land search the 3rd respondent is the legal proprietor and the Charge created is regular 10 and further states that being a bona fide purchaser for value and a subsequent purchaser, the 5th respondent is protected by the proviso of subsection (3) of section 340 of the NLC. [12] The 1st, 2nd and 5th respondents further plead that the appellant is time barred in that the cause of action arose in 2002. The 1st and 2nd defendants rely on subsection 2(a) of the Public Authorities Protection Act 1948 (“PAPA”) while the 5th respondent relies on sections 6 and 9 of the Limitation Act 1953 (“Limitation Act”). [13] The 3rd respondent in his counterclaim alleges that the appellant has failed in its duty as an administrator to advise the beneficiaries of the estate of Hussein to deliver vacant possession instead has proceeded to file an OS No. WA-24NCVC-982-06/2016 to restrain the 3rd respondent from seeking for vacant possession which deprives him from utilising the said property and at the same time has to continue paying monthly instalments to the 5th respondent. He is seeking for damages by way of a counterclaim in the appellant’s suit. [14] On 25.9.2018, the trial Judge found in favour of the 1st, 2nd, 3rd, 4th and 5th respondents. His Lordship dismissed the appellant’s claim and 11 allowed the 3rd respondent’s counterclaim on the 15 months’ unpaid rental (from August 2015 to October 2016) and payment of rental for a sum of RM6,500.00 per month until delivery of vacant possession. The appellant was ordered to pay costs of RM15,000.00 to the 1st and 2nd respondents jointly, RM15,000 to the 3rd and 4th respondents jointly and RM15,000.00 to the 5th respondent. [15] The salient findings of the learned trial Judge were as follows:

(ii) the 1st and 2nd respondents were protected against the appellant’s action pursuant to Section 22 NLC;

(iii) the appellant has failed to discharge its burden in showing that the 1st and 2nd respondents have breached their statutory duty; and 12

(iv) the 3rd respondent is the legal and lawful owner of the said Property, and he has obtained an indefeasible title over the Property under Section 340(1) of the NLC. Consequently, the Charge is valid and the appellant’s claims against the 5th respondent was dismissed [paragraph 40 and 41, page 1304 of Enclosure 5]. [16] Several issues arose for our consideration. They are as follows:

(ii) whether the 1st and 2nd respondents had breached their statutory duty;

(iii) whether the 1st and 2nd respondent are protected under section 22 of the NLC; and

(iv) who is the legal and lawful owner of the Property. 13 THE SUBMISSIONS OF THE PARTIES The submission of the Appellant [17] On the issue of limitation, whether the appellant’s claims is barred by section 2 (a) of PAPA, the appellant’s learned counsel submitted that the 1st and 2nd respondents are not protected under section 2(a) of PAPA due to their breach of statutory duty which amount to an ultra vires act. The appellant is relying on this Court decision in Leo Leslie Armstrong (sebagai presiden dan pemegang jawatan the Young Men's Christian Association Of Kuala Lumpur) (Persatuan Pemuda Kristian Kuala Lumpur) v. Jawatankuasa Kerja Tanah Wilayah Persekutuan Kuala Lumpur (Yang Dahulunya Di Pegang Oleh Majlis Mesyuarat Kerajaan Negeri Selangor) [2015] 2 CLJ 10 (“Leo Leslie Armstrong”). [18] The appellant further submitted that the 1st and 2nd respondents are also not protected under section 22 of NLC because their exercise of power by converting the title to someone who is not the owner is not the power exercisable under and incompliance of the Fourteenth Schedule of the NLC. To warrant the invocation of section 22 of the NLC they must show the act done by the 1st and 2nd respondents were in good faith. 14 [19] On the learned Judge’s findings that the appellant has failed to discharge the burden in showing the 1st and 2nd respondents have breached their statutory duty, the appellant's case premised on the 1st and 2nd respondents failure to convert title no. QTR 5371 to HSD 40222 in accordance with the Fourteenth Schedule of the NLC. As the fact reveals, the title HSD 40222 which is a continuation of QTR 5371 has in 2002 registered a proprietor other than the one named in QTR 5371, the burden shifts to the 1st and 2nd respondents to explain the discrepancy which the latter has failed to discharge. There is no necessity for the appellant to prove why the late Hoo Hwang Boon was not the proprietor. In fact, the 3rd and 4th respondents could offer no evidence of any dealing of the property from Hussein to the late Hoo Hwang Boon. Hence, the calling of appellant’s representatives and Hussein’s widow were irrelevant to prove the appellant’s case. [20] The appellant also contends that the learned trial Judge has erred in taking into account irrelevant consideration such as the failure of the appellant as a trustee to apply for the replacement of the lost title and no explanation by the beneficiaries on the payment of the quit rent and assessment. The appellant further contends that even if the appellant or Hussein’s beneficiaries applied for a replacement title from 1990, it is of 15 no relevance. Any replacement title issued in 1990 or thereafter would not prevent or deter entry of the wrong ownership into the Computerised Land Registration System or SPTB by the 1st and 2nd respondents during the conversion exercise in 2002. This is a case where the mishap happened in the register of titles within the control of the 1st and 2nd respondents resulting in Hussein's name disappearing from the register of titles, but not a forged or fraudulent transaction whereby Hussein was deprived of ownership of the said Property. [21] Therefore, the learned trial Judge had erred in taking into consideration of the inaction of the appellant and Hussein’s beneficiaries to apply for the replacement title for QTR 5371 and on the issue of payment of the quit rent in arriving at his Lordship decision as the computerised document of title was issued to a wrong person and not to the same person as stated in the original manual document of title. Consequently, the 5th respondent cannot derive an indefeasible interest over the Property out of a void instrument. [22] On the non-attendance of the appellant's representative, Hussein’s widow and the tenant of the said Property as witnesses, it has no bearing on the outcome of the case since the material facts have been tendered 16 to enable the court to make its findings. Therefore, the learned trial Judge had erred in taking into consideration of the inaction of the appellant and Hussein's family members or beneficiaries to apply for the replacement title for QTR 5371 and no explanation for the payment of the quit rent, in arriving at His Lordship decision. On the non-attendance of the above said witnesses, the appellant relies on the decision of Federal Court in Tong Soon Tiong & Ors v. FA Securities Sdn Bhd [2013] 2 CLJ 448 and the decision of this Court in Ranbaxy (Malaysia) Sdn Bhd v. E.I Ou Pont Nemours & Co [2012] 9 CLJ 79 that nothing should be inferred from the absence of the plaintiffs to appear in court as there is no requirement in law for them to personally testify in support of their respective claims and success of any claim depends on sufficiency of the relevant and admissible evidence made available to the court which may come from various sources. [23] As regards the issue on indefeasibility of title under section 340 of NLC in relation to the computerised land titles when there was no fraud involved, the appellant contends that this Court is bound by the recent Federal Court decision in Pushpaleela R Selvarajah & Anor V. Rajamani Meyappa Chettiar & Other Appeals [2019] 3 CLJ 441 (“Rajamani”). The appellant said in Rajamani, the Federal Court has 17 endorsed the decision in the earlier cases namely Shayo (M) Sdn Bhd v. Nurlieda Sidek & Ors. [2013] 7 MLJ 755; [2013] 1 CLJ 153; Uptown Properties Sdn Bhd v. Pentadbir Tanah Wilayah Persekutuan & Ors [2012] 8 MLJ 713; [2012] 3 CLJ 271; and Overseas Realty Sdn Bhd v. Wong Yau Choy & Ors [2014] 8 CLJ 107. The submission of the 1st and 2nd respondents [24] The 1st and 2nd respondents contend that they acted in good faith when they issued the replacement title in continuation, HSD 77602 PT11929 and recorded in SPTB that the owner is Hoo Hwang Boon. In their written submission, the 1st and 2nd respondents rely on sections 5 and 6 of the Government Proceedings Act, the 1st and 2nd respondents submitted that in the suit for tort against the government’s employee, the appellant should have cited the proper party namely the government. In this case it was not done so. However, in the oral submission the 1st and 2nd respondents only submitted on limitation issue under section 2 (a) of PAPA. The 1st and 2nd respondents submitted that the cause of action had accrued on 16.4.2002 and under PAPA, the appellant must bring an action against the 1st and 2nd respondents within 3 years or 36 months from that date. In this case the action was filed beyond the three (3) years or 36 18 months. Therefore, it is a clear case that the appellant’s action is barred by limitation. The 1st and 2nd respondents are relying on the case of Litus Jau & Anor v. Boustead Pelita Tinjar Sdn Bhd & Others [2014] 1 CLJ The submission of the 3rd and 4th respondents [25] The 3rd and 4th respondents are also relying on section 89 of the NLC that every register document of title shall be a conclusive evidence of the proprietorship. In the absence of fraud, the learned trial Judge has no other option unless to conclude that the Property is owned by the 3rd respondent. Further, to compound the matter, no witness from the appellant was called to prove otherwise. The 3rd and 4th respondents supported the conclusion by the trial Judge that the 1st and 2nd respondents are protected by section 22 of the NLC. On the counterclaim, 19 there is nothing to suggest that the 3rd respondent is not the owner of the said Property. Therefore, the learned Judge was correct in holding that the 3rd respondent’s title is indefeasible and thereby the 3rd respondent has been deprived of the use of the property. Consequently, the counterclaim is rightly allowed by the trial Judge and it follows that the claim against the 5th respondent is dismissed as a matter of course. The submission of the 5th respondent [26] It was submitted on behalf of the 5th Respondent that the 5th respondent has taken all ordinary precautions available and had exercised reasonable due diligence in ascertaining that the 3rd respondent is the registered owner. Hence, the 5th respondent had acted in good faith. The contention of the 5th respondent is supported by the following facts:

(ii) in the original copy of the HSD 77602 at pages 1034 to 1035 of Enclosure 4, the 3rd respondent’s name is on the face of the tittle, and the 5th respondent is entitled to rely on this information to be conclusive upon sighting of the original;

(iii) up until the approval of the loan to 3rd respondent, and the registration of the Charge on 18.10.2013, the 5th respondent had no knowledge of the appellant’s or the late Hussein’s beneficiaries claims against the Property; (see Q&A 7 of DWS5 and Q&A 15 of DWS6 witness statement);

(iv) at all time, the 3rd respondent has also never informed the 5th respondent about Hussein’s trustee or beneficiaries competing claims against the Property;

(vi) furthermore, as at 21.10.2013, the 5th respondent had also procured a valuation report by TD Azis Sdn. Bhd dated 8.10.2013, which stated that the registered owner of HSD 77602 is the 3rd respondent. [27] Learned counsel for the 5th respondent submitted in reliance of the Federal Court decision in CIMB Bank Berhad V. Ambank Berhad And 2 Others [2017] 5MLJ 142, it is settled law that the chargee is recognised as the subsequent purchaser under the proviso to subsection (3) of section 340 of NLC. The 5th respondent is a bona fide purchaser under the proviso of subsection (3) of section 340 NLC, as evidence, the 5th respondent had done two (2) searches before the disbursement of the loan. Based on the search, on the face of the title, the 3rd respondent’s name is on the title, no caveat and the Hussien’s name or interest is also not on the title. Learned counsel submitted that Rajamani (supra) affirmed the position of a bona fide purchaser for value. Hence, the title of the 5th respondent is indefeasible based on the principle of deferred indefeasibility. In Rajamani (supra), even though the original owner is still holding the original title, the Court favours the subsequent purchaser for value in good faith. The status of the 5th respondent is similar to the first defendant in Rajamani (supra). Learned counsel also referred to 22 Liputan Simfoni Sdn Bhd v. Pembangunan Orkid Desa Sdn Bhd [2019] 1 CLJ 183; See Leong Chye @ Sze Leong Chye & another v. United Overseas Bank Berhad & Another appeal [2018] 10 CLJ 1. [28] On the limitation issue, learned counsel for the 5th respondent also submitted that the appellant’s claims against the 3rd and 5th respondents are barred by limitation under sections 6 and 9 of the Limitation Act.

Whereas the claims against 1st and 2nd respondents are barred under section 2 of PAPA. The section envisaged on default of any written law. Therefore, it should not be subject to any qualification as decided by this Court in Leo Leslie Armstrong (supra). Further, based on the facts of Leo Leslie Armstrong (supra) is only confined to the special fact of that case. There is a case in support of the 5th respondent’s position namely; Litus Jau & Anor V. Boustead Pelita Tinjar Sdn Bhd & Ors [2014] 1 CLJ 880. In Litus Yau, Raus Shariff JCA (as he then was) stated that the plaintiffs' cause of action against the second and third defendants accrued after the issuance of the provisional lease in 1992. Given this scenario and premised on the 36 months limitation provided under section 2(a) of PAPA, there can be no doubt that the plaintiffs' action against the defendant is time-barred. 23 [29] Further, there was an inordinate delay of action taken by the appellant, it was a long delay of 14 years. The appellant asked for various declaratory reliefs, which are equitable reliefs, therefore, the appellant must explain the delay, if not, the court ought not assist the appellant. The appellant did not give any evidence on the delay. No evidence was forthcoming from the appellant as a trustee to explain the delay. The appellant had slept on their rights. OUR ANALYSIS AND DECISION [30] We have considered the submissions of the parties both oral and written. We unanimously allowed the appellant’s appeal and reversed the High Court’s decision in dismissing the appellant’s claim and in allowing the 3rd defendant’s counterclaim. We now give our reasons.

(3) Upon the coming into force of the Computerized Land Registration System in any land Registry-

(1) provides the following:

8. Conversion to computer register document of title

(1) Upon the coming into force of the Computerized Land Registration System in a land Registry, the Registrar shall convert the existing register documents of title to the computer printed register documents of title and shall sign and seal the same. [Emphasis added] [36] In this case after the conversion was done the 1st and 2nd respondents had endorsed on the existing manual title the confirmation “TELAH DIBUAT ENTRY”. Effectively, it means the ownership data of the existing manual title had been entered into the computerised system. The effect of this phrase has been confirmed by the officers of the 1st and 2nd respondents (DW1 and DW2). The words “shall convert” found in paragraph 8 (1) of the Fourteenth Schedule and the confirmation of entry of the said data into the system can only be interpreted that the ownership details in the computerized title would reflect what is in the manual title. It follows that the original manual title bearing the name of Hussein must be 28 mirrored in the computerised title, then the computerised title must mirror it. But it was not so. Instead, the name of Hoo Hwang Boon was displayed in the computerised title. No one could explain this discrepancy. [37] We find that the learned trial judge has failed to appreciate the provision of paragraph 8 (1) of the Fourteenth Schedule and gave weight to the endorsement made on the face of the manual title which purportedly confirmed that ownership data in the existing manual title had been entered into the computerised system. The learned trial judge should have concluded that since the name of Hoo Hwang Boon in the computerised title did not reflect Hussein as the owner, as it is in the original manual title, the computerised title is a void ab initio title. [38] It is not of relevant even if the appellant’s failure to apply for the replacement of the original title (QTR 5371) when it was reported lost in 1991 and failure to offer explanation about payment of quit rent and assessment of the said Property. The learned trial Judge had erred in taking into consideration when coming to His Lordship decision on the issue of ownership when repeatedly pointed out the appellant’s failure to apply for the replacement of the original title (QTR 5371) when it was 29 reported lost in 1991 and failure to offer explanation about payment of quit rent and assessment of the said Property. [39] This is a case where a registered owner is deprived of the ownership to his property through the wrongful act of the land officials in exercise of their statutory duty. The ownership of Hussein was supposed to be registered in the computerised title but not so registered upon implementation of the Computerised Land Registration System around

2002. The 1st and 2nd respondent are entrusted with the duty to upkeep and maintained the register of titles but had failed to do so, in this instant case resulting in an unlawful deprivation of the rightful owner his lawful right to the property. As found by the learned trial Judge, based on evidence, it was not disputed that no verification was done by the 1st respondent’s officers with the copy of the manual title QTR 5371 kept at the land office strong room. In our view this is one of the mandatory process that the 1st respondent must do in order to comply with the mandatory requirement of paragraph 8 (1) when converting from the existing register in the manual form to that of the computer printed register documents of title. In failing to do that it is a clear case of breach of statutory duty. 30 [40] We find the learned trial Judge was plainly wrong in coming to the finding that the appellant had not proved on the balance of probabilities that the 1st and 2nd respondents had committed a breach of their statutory duty. The duty of the 1st and 2nd respondents in the implementation of the Computerised Land Registration System or STPB is to convert the existing QTR 5371 to a computer printed document of title which naturally shall mirror the ownership endorsement as in QTR 5371 as provided under paragraph 8 of the Fourteenth Schedule of the NLC. [41] At the trial, PW1 has testified that based on the title no. QTR 5371, the registered proprietor was Hussein and his name “Hussein Bin Nor” should have been taken to be registered in the title no. HSD 40222. DW1 and DW2 in their cross examination have also agreed that based on the document of title QTR 5371, Hussein was the registered proprietor. However, none of the aforesaid 3 witnesses were able to explain why Hoo Hwang Boon’s name was taken to be registered in the computerised title no. HSD 40222 in 2002. [42] The trial Judge has accepted the evidence that on 16.4.2002 when the first computer printed register document of title was issued, the registered proprietor was Hoo Hwang Boon instead of Hussein Bin Nor. 31 In the Grounds of Judgment, the trial Judge has taken note of the evidence as follows: “[32] ... PW1 admitted that when PW2 came to see him he checked both QTR 5371 and HSD 40222 and found that two different persons owned the said property.” [35] As I have said earlier no one knew what happened between 1977 and 2002 or at least until 1985 when Hussein bin Noor died. There is only one QTR

5371. According to the land officials between 1977 after Hussein was registered as the proprietor until 2002 there was no transaction recorded and they cannot explain the change in the registered ownership. If they obtained the details during the conversion from QTR 5371, then Hussein's name should be appearing in HSD 40222. However, it was Hoo Hwang Boon's name appeared as the registered owner instead when the conversion took place … [Emphasis added] [43] If his Lordship’s had properly directed his mind to the above-mentioned portion of his judgment (“two different persons owned the said property” and “Hussein's name should be appearing in HSD 40222”), his Lordship would have come to the conclusion that the 1st and 2nd 32 respondents have breached their statutory duty under the Fourteenth Schedule of the NLC. [44] Since the computerised title is void ab initio, no one can derive a good title from it. The computerised title which displayed the name of Hoo Hwang Boon is an invalid title. No one can gain a good title by subsequent transaction on an invalid title. Hence, the late Hoo Hwang Boon cannot by his will bequeath the said property to the 3rd respondent. Consequently, the 5th respondent also holds a charge on an invalid title. In the case of Tan Chiw Thoo v. Tee Kim Kuay [1997] 1 CLJ 541 which concerned a single piece of land for which two documents of title were issued. The respondent was issued with a document of title registered in September 1968 whilst the appellant was issued with another document of title registered in December 1972. As it transpired, the respondent issued a writ against the appellant claiming vacant possession and damages for loss of income. The trial Judge allowed the respondent’s claim on account that his title prevailed over that of the appellant as it was registered earlier. Peh Swee Chin FCJ (delivering the judgment of the Court) affirmed this part of the judgment of the learned High Court Judge that the indefeasibility of the title of the respondent could not be challenged. The document of title of the appellant was void against the respondent. 33 Alternatively, the appellant's document of title was also void because the said land could not be alienated by the state authority as it was no longer state land. The purported alienation of the said land to the appellant was a nullity and his title would not be protected and not indefeasible under section 340 of NLC. [45] Similarly in our present case the late Hoo Hwang Boon’s name as the registered owner in the computerised document of title is not valid as there was no evidence of dealing between Hussein and the late Hoo Hwang Boon when the computerised title was issued in 2002. The name in the title should remain with Hussein’s name at that point of time in the absence of any dealing.

(ii) Whether the appellant’s action is barred by limitation [46] The learned trial Judge opined that the appellant should have filed an action against all the respondents at the earliest time on 16.4.2002 when HSD 40222 was issued. However no further action taken by Hussein’s beneficiaries except PW2 handed over the police report to the appellant. However, the appellant did nothing. Based on this His Lordship found in favour the respondents and his Lordship stated that the appellant 34 as an administrator did not bother to make any inquiry therefore the appellant’s claim is time barred as against the 1st and 2nd respondents under PAPA. His Lordship further stated that the claims against the 3rd respondent and the 5th respondent, the bank was also time barred. The reasons being that:

(ii) no explanation offered as to the inaction;

(iii) the appellant and Hussein family members did not attempt to find out and appellant made no attempt to find out;

(iv) as an administrator of Hussein estate the appellant should apply for the replacement title. However this was not done; and

(iii) Whether the 1st and the 2nd respondents are protected or immune from legal proceedings under section 22 of the NLC [55] Section 22 of NLC provides the following:

22. Protection of officers No officer appointed under this Part shall be liable to be sued in any civil court for any act or matter done, or ordered to be done or omitted to be done, by him in good faith and in the intended exercise of any power, or performance of any duty, conferred or imposed on him by or under this Act. [56] His Lordship at paragraph [39] of his judgment agreed with the learned Federal Counsel that this case is a fit and proper case to apply the protection as provided for under section 22 of the NLC. With respect we disagree. The protection accorded under section 22 is only when the act is done in good faith. In our view when the officials of the 1st and the 40 2nd respondents failed to comply with the strict requirements of the Fourteenth Schedule of NLC, which resulted in the wrong person name appeared in the title, is not an act done in good faith. The act of registering the title no. HSD 40222 in the name of Hoo Hwang Boon, instead of Hussein Bin Nor who is the rightful owner according to the original title QTR 5371 is not an act done in good faith due to their failure to verify with the copy of the manual title kept in the strong room of the Land office. DW 1, En. Izham the official from the 1st and 2nd respondents testified of the following: pegptf : yang Arif, If I may , I will continue. En. Izham, pada masa prosiding yang lepas saya tanya di manakah dokumen hak milik QTR 5371 asal di simpan, En. jawab di bilik kebal. adakah En. mempunyai ekses kepada bilik kebal? : Akses ke bilik kebal boleh dimasuki dengan pegawai daripada bilik kebal itu sendiri…maksudnya saya bersama pegawai bilik kebal ..pegawai yang menjaga bilik kebal. Saya sendiri tidak boleh akses sendiri. Saya mesti bersama dengan pegawai yang menjaga bilik kebal. Peg pltf : Boleh minta kebenaran untuk akses? 41 : Boleh minta kebenaran untuk akses. Peg ptf : Dalam proses permohonan hak milik gantian pada masa itu En. Tidak merujuk kepada QTR 5371 inilah? : betul : saya tidak merujuk hanya berpandukan carian resmi sahaja [57] The burden is on the 1st and 2nd respondents to prove that they acted in good faith and in our view the burden has not been discharged. Therefore, the 1st and 2nd respondents are not entitled for the protection of section 22 of NLC.

(iv) Who is the legal and lawful owner of the Property. [58] In case where the registration in the name of the late Hoo Hwang Boon is bad, the Court has to determine whether the subsequent registration is valid. In this regard, it is plain that this is solely dependent upon whether the subsequent purchaser such as the 5th respondent enjoyed the protection of the proviso of s. 340(3) of the NLC as a bona fide purchaser for valuable consideration. Learned counsel for the 5th 42 respondent submitted that based on the facts, the charge was validly created in favour of the 5th respondent, hence, the 5th respondent is a bona fide purchaser within the meaning of the proviso to section 340 of the NLC. Section 340 of the NLC provides the following: 340 Registration to confer indefeasible title or interest, except in certain circumstances

(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.

(2) The title or interest of any such person or body shall not be indefeasible-

(3) Where the title or interest of any person or body is defeasible by reason of any of the circumstances specified in sub-section (2)-