B. WHETHER OR NOT THE DEFENDANT HAS ANY CAVEATABLE INTEREST [7] The Defendant, after abandoning the SPAs, now made a u-turn and contends that it is the beneficial owner of the Properties as purchaser under the SPAs. However, it is easy for this Court to find that the Defendant clearly has no caveatable or any registrable/beneficial 8 interest in the Properties. This is simply because of the following facts: i. Even if the SPAs were valid, the State Authority had never consented and will never give the consent to transfer the Properties to the Defendant. Thus, however the stone is turned, the SPAs remain unenforceable and the Defendant shall never be the owner or prospective owner of the Properties. ii. The Defendant has itself admitted to the non-enforceability of the SPAs and the Defendant shall be estopped to contend against its own admission. [8] Firstly, it is trite law that no future rights or rights contingent to a future condition can be good basis of a caveatable interest. The restriction in interest attached to the Properties as well as the terms of SPAs stipulate that consent of the State Authority is required. It remains undisputed that to date, and at all material times, the consent of the State Authority was never obtained or even applied for in view of the SPAs. Thus, at the time when the Defendant lodged the 9 caveats hinging on the SPAs, the Plaintiff was never in any position to transfer good title to the Defendant and the Defendant was never in any position to obtain good title over the Properties. At the time when the caveats were lodged, the SPAs remain unenforceable. Clearly now, that no rights, be it registrable or beneficial rights, can ever be found in an agreement which in essence is entirely unenforceable. Thus, this Court similarly should not allow such contention of a right as doing so would contradict the very fabric of land law as well as the law of contract. [9] This finding is not without precedent. This Court finds valuable guidance in the decision of Mahadev Shanker J (as he then was) in the case of Goh Hee Sing v Will Raja & Anor [1993] 3 MLJ 610 which had held the following: “In order to file a caveat, the caveator must have a caveatable interest. What is a caveatable interest has been the subject of many decisions, some of the most recent cases being Tan Heng Poh v Tan Boon Thong &Ors 1, Hew Sook Ying v Hiw Tin Hee 2, and Khoo Cheng Yee (f) in Khoo Teng Seong & Anor 3. 10 To put it in a nutshell, on 29 September 1989, the plaintiff should have been able to claim title to the said land, or a right to such title by virtue of the deed of sale aforesaid. Alternatively, he should be a person who could validly claim a right to such title. The point however is that the claim must be to title or a right thereto in praesenti, and not to some contingent title or right thereto in futuro. This to my mind raises a question of paramount importance to the administration of land law in Malaysia, whenever the title contains a restriction in interest of the present kind. Because the prohibition in dealing with the land is total, nothing can happen without the consent of the pihak kuasa negeri. Consequently, it must follow that a prospective purchaser, chargee, or lessee of such land can have no caveatable 11 interest in such land until the consent of the pihak kuasa negeri has first been irrevocably obtained.” [10] The same principle was echoed by the Federal Court where YAA Arifin Zakaria CJ has decided in the case of Score Options Sdn Bhd v Mexaland Development Sdn Bhd [2012] 6 MLJ 475: It is also our considered view that the caveator under s 323(1)(a) of the NLC must have a present interest as opposed to a potential interest in the land. The registrable interest that the caveator is claiming for, must be an existing interest. The caveator under s 323 (1)(a) of the NLC must be limited to those who are claiming to an existing interest in the land or right to such existing interest and cannot include potential interest or interest in future”… … This principle is also applied by other jurisdictions where the Torrens system is in place, Shannon Lindsay in her book 12 Caveats Against Dealings in Australia and New Zealand, the Federation Press Australia, 1995 at p 67 states that: “A caveator must have an interest in the land at the time that it lodges the caveat – it is insufficient that it has some potentially enforceable right against the registered proprietor which has not yet ripened into an interest in particular land” [11] Similarly so in the present case, the Defendant’s claim for interest in the SPAs, not only has not yet ripened, in fact the Defendant’s claim in the SPAs has no chance at all to ripen as the State Authority has no interest to transfer the land to the Defendant. [12] Very similar to the present case, Mohamed Dzaiddin J (as he then was) had dealt with an application to remove caveat in view of a sale agreement which was contingent upon the approval of the Johore State Government. In allowing the application and ordering the removal of the caveats, the Court had held the following: 13 “Relying on the above authorities, in my judgment, the completion of sale of the said lands was contingent upon the defendants obtaining the approval of the Johore State Government. Hence, the refusal of the Johore State Government had put the agreement to end because of the non-fulfilment of one of the conditions under Clause 3.1 of the agreement. In the result, the plaintiffs can no longer claim any right to such title or interest in the said lands. In another word, the plaintiffs ceased to have any caveatable interest in the said lands. For these reasons the defendants' application was allowed with costs.” [13] Thus, even at this juncture it is patently clear that the Defendant does not have any caveatable interest whether or not the SPAs were valid. [14] Secondly, this Court finds that it is verily more probable than not that the SPAs were never intended to be legally enforceable or executed as the Defendant itself has admitted that the Plaintiff may deal with the Properties in total abandonment and contradiction of the SPAs. In response to the Consent Judgment and the intended transfer of the 14 Properties to PPSB, the Defendant has issued a letter dated 13.3.2016 stating that the Defendant has no objection against the transfer to PPSB. The letter reads: “Kami, CITRA TANI SDN BHD (No. Syarikat 189592-X) … dengan ini mengesahkan bahawa kami tidak mempunyai apa-apa halangan kepada Penjual di atas untuk memindahmilik hartanah yang tersebut di atas kepada Penerima/Pembeli dan seterusnya untuk Penerima/Pembeli menggadaikan hartanah tersebut kepada mana-mana institusi kewangan dengan syarat bahawa kepentingan kami sebagai Pemegang Kaveat Persendirian tidak terjejas” [15] Albeit that the Defendant wrote that it intends to preserve their rights as caveat holders, it must be made clear that what interest the Defendant purports to preserve here is non-existent. It is clear that the Defendant itself is unsure of what right it is attempting to protect or preserve. What remains undisputed is that, in direct contradiction of this supposed preservation of a non-existent right, the Defendant itself has admitted to abandon and to put the SPAs to their demise. It 15 is illogical that the Defendant is allowed to contend a right over the properties as a prospective purchaser under the SPAs, while at the same time the Defendant is agreeable to have the properties be transferred to PPSB. The Defendant is clearly confused itself. The only rights that may arise under the SPAs is the rights to be the consequent owner of the Properties, and this is the same rights that the Defendant agrees should be transferred to PPSB. In agreeing that the SPAs may be abandoned, the Defendant automatically agrees that it abandons any rights or prospective rights under the SPAs. This unequivocal abandonment of rights is verily indicative that the SPAs were never intended to take effect in the first place. The preservation of rights purported by the Defendant is merely a confused preservation of a non-existing right. [16] Be that as it may that the Defendant may have attempted (but failed to) preserve its rights (which were never in existence) under the SPAs, the Defendant cannot be allowed to approbate and reprobate its stance. It is only fitting that the Defendant be estopped from going against its own words, especially when the Plaintiff has already acted on the Defendant’s agreement to not object against the transfer to 16 PPSB. The Defendant has already agreed to the transfer of the Properties to PPSB and accordingly, the Defendant shall not be allowed now to go against its own agreement, admission and acknowledgement to the abandonment and non-enforceability of the SPAs. Furthermore, it has been years since the SPAs were initially entered into in 2010, and the Defendant has done absolutely nothing to ensure the performance of the SPAs. In fact the caveats were only lodged between 2012 and 2015. These facts certainly add more indication that the SPAs were never intended to be enforced upon and were merely internal measures of management. [17] This Court draws guidance from the decision of the Federal Court in the case of Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 where the Federal Court referred to Lord Denning’s decision in the Amalgamated Investment case which reads: “The width of the doctrine has been summed up by Lord Denning in the Amalgamated Investment case (at p 122) as follows: 17 The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with case. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time, it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so.” 18 [18] Thus, with the foregoing deliberations in mind, it is this Court’s finding that the Defendant has no caveatable interest at all over the Properties be it a registrable interest or a beneficial interest. This Court also finds that the SPAs are unenforceable and no caveatable interest may arise out of the SPAs. [19] Consequently, the Plaintiff as the current owners of the Properties is an aggrieved party to the entry of the caveats as the Plaintiff has never surrendered its rights as proprietor of the Properties or ever held the same rights on trust to the Defendant. Therefore the Plaintiff’s present application falls squarely on Section 327(1) of the National Land Code 1956 (“NLC”). [20] Thereto, the Defendant is liable to compensate the Plaintiff for its wrongful entry of the caveat under Section 329(1) of the NLC as the Defendant has been proven to have wrongfully entered the caveats.