Osaka Tyre Services Sdn. Bhd. v 1. ) Krishenty A/P Manavalan @ Krishnan (WA-21NCvC-86-08/2017)

KRISHENTY A/P MANAVALAN @ KRISHNAN

KERAJAAN NEGERI SELANGOR …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT A. Introduction [1] This is the Plaintiff’s claim (“this Suit”) against the alleged negligence done by the 1st Defendant in removing the Plaintiff’s private caveat on all that piece of land held under G.M. 323, Lot 865, Mukim Semenyih, Daerah Ulu Langat, Negeri Selangor (previously known as EMR 2518, Lot 865, Mukim Semenyih) (“the said Land”). i) Background [2] On 17.06.1998, the Plaintiff and Barisan Perdana Sdn Bhd (“Barisan Perdana”) entered into a sale and purchase agreement where the Plaintiff purchased the said Land from Barisan Perdana. The said Land was originally owned by several individuals: Loh Ah Kau, Too Yin Kiau, Low Ah Choi, Liew Siew Ken and Wong Yeng @ Wong Yuan Moi (“the Registered Owners”). 18/06/2022 00:58:56 WA-21NCvC-86-08/2017 Kand. 97 [3] The Plaintiff had filed two originating summons: Case No. MT3-24-806-1998 (“OS 806”) and Case No. MT-21-155-1998 (“OS 155”) to remove a private caveat entered by Liew Siew Ken, Low Ah Choi and Wong Sew Yeng and a registrar caveat, respectively. Both caveats were ordered to be removed accordingly by the High Court. [4] Another private caveat (No. 72/2010) was entered by one Loh Yoon Chun dated 07.01.2010. At the same time, the Plaintiff had also entered a private caveat (No. 6584/2010) dated 26.10.2010 (“the Plaintiff’s Private Caveat”) to secure its interest. Upon knowledge of another private caveat, the Plaintiff filed another originating summons: Case No. 24-982-2011 against the caveator, Loh Yoon Chun to remove his private caveat. [5] Loh Yoon Chun then filed a writ of summons: Case No. 21NCVC-72-2011 (“Suit 72”) against Barisan Perdana and Pentadbir Tanah Hulu Langat. Nonetheless, on 18.11.2011, his private caveat was removed. [6] Next, the Plaintiff filed an Originating Summons which was later converted into a writ: Case No. 22NCVC-501-07/2013 (“Suit 501”) against Barisan Perdana for specific performance of the sale and purchase agreement for the said Land. At this point in time, the Plaintiff’s Private Caveat was still in existence. [7] On 10.09.2012, the 1st Defendant removed the Plaintiff’s Private Caveat and a month later, the said Land was transferred by Barisan Perdana to another company, My Regal Sdn. Bhd (“My Regal”). [8] Afterwards, at the request of the parties, OS 806 and Suit 72 were heard together with Suit 501. The trial judge for those proceedings decided in favour of the Plaintiff and ordered Barisan Perdana and My Regal to transfer the said Land to the Plaintiff. Displeased with the trial judge’s decision, the parties filed two separate appeals. The 2 appeals were heard and adjudicated together (“the Appeals”). In the Appeal, the Court of Appeal decided against the Plaintiff and ordered for the said Land to be transferred from My Regal to the Registered Owners. The Plaintiff tried to appeal further to the Federal Court but the same was dismissed by the apex court. [9] Thus, the Plaintiff in this Suit is, in essence, seeking the following: “a. Bahawa Defendan-Defendan secara bersama atau berasingan membayar ganti rugi kepada Plaintif; b. Jumlah ganti rugi yang harus dibayar oleh Defendan – Defendan kepada Plaintiff adalah harga pasaran hartanah tersebut pada tarikh Perintah ini; c. Bahawa Plantif melantik seorang juruhartanah bertauliah dan nilaian juruhartanah tersebut menjadi jumlah ganti rugi yang harus dibayar oleh Defendan – Defendan kepada Plaintif; d. Defendan – Defendan secara bersama dan berasingan membayar ganti rugi kepada Plaintif dalam masa 14 hari setelah selesai penilaian hartanah tersebut; e. Kos dan yuran juruhartanah ini adalah ditanggung dan dibayar oleh Defendan – Defendan secara bersama atau berasingan; Sekiranya kos dan yuran juruhartanah ini adalah telah dibayar oleh Plaintif, Defendan – Defendan adalah untuk membayar balik Plaintif kos dan yuran ini dalam masa 14 hari setelah selesai penilaian hartanah tersebut; f. Faedah dari tarikh perintah ini sehingga pembayaran penuh ganti rugi pada kadar 5% setahun; g. Kos; h. Relief selanjutnya dan lain yang dianggap wajar oleh Mahkamah yang Mulia ini.” ii) The Plaintiff’s Case [10] The Plaintiff submitted that the 1st Defendant was negligent and was wrong in removing the Plaintiff’s Private Caveat without a court’s order or consent from the Plaintiff. The Plaintiff argued that had it not because of the 1st Defendant negligence, the said Land had already been transferred to the Plaintiff and it would have the indefeasible title on the said Land in accordance with Section 340 of the National Land Code 1965 (“the NLC”). Moreover, the said Land had already been transferred from the Registered Owners to Barisan Perdana. Thus, the Plaintiff would be a registered bona fide purchaser and was protected under the law. To support, the Plaintiff refers to the case of Kamarulzaman bin Omar & Ors v Yakun Bin Husin & Ors [2014] 2 MLJ 768. [11] As for the 2nd to 4th Defendants, the Plaintiff premised that they were vicariously liable as the employer of the 1st Defendant. Here, the Plaintiff cited a few cases to support its contention. PW1 [12] The Plaintiff’s sole witness (“PW1”) was the Plaintiff’s Director. PW1 had testified during trial that the Plaintiff has suffered loss because of the 1st Defendant’s action in removing the Plaintiff’s Private Caveat. PW1 informed this Court that no registration of title was made because Barisan Perdana had never given the Plaintiff the title of the said Land. PW1 also confirmed that after the Plaintiff had lost its case at the Court of Appeal, the Plaintiff did file an appeal to the Federal Court but was later dismissed. iii) The Defendants’ Case [13] In response, the Defendants’ argued that there was no negligence by the 1st Defendant as the removal of the Plaintiff’s Private Caveat was following the court order in suit No. 24-982-2011 dated 29.09.2011 (“the 2011 Court Order”). It was the Defendants’ submission that the removal caveat was in accordance with section 327 of the NLC. [14] The Defendants’ further premised that the Plaintiff has failed to prove to this Court that the removal of the Plaintiff’s Private Caveat was done with male fide. Here, the Defendants refer to the case of Dato’ Dr Loke King Loong v Kerajaan Negeri Selangor & Ors [2015] 1 LNS 1047. [15] Likewise, the Defendants contended that the Plaintiff also failed to proceed with the registration for the transfer of the said Land in favour of the Plaintiff after receiving the 2011 Court Order. [16] It is also the Defendants’ case that the Plaintiff was not a bona fide purchaser as had been determined previously by the Court of Appeal. Therefore, the Plaintiff was not protected under Section 340(3) of the NLC and the Plaintiff would never have been registered as the owner of the said Land. DW1 [17] DW1 was the Pembantu Tadbir Gred N19 stationed at Hulu Langat Land Office at the material time. DW1 testified that she did the data entry for the removal of the caveats. This led to the removal the Plaintiff’s Private Caveat. DW1 further admitted that she did not understand the word ‘injuk’ that was written in the 2011 Court Order. She also admitted that there was a mistake in removing the Plaintiff’s Private Caveat. DW2 [18] At the material time, DW2 was the ‘Pegawai Pejabat Daerah dan Tanah Hulu Langat’ under the Registrar Department until 2012. DW2 testified that his job was amongst others to monitor the clerks and staff of their duties. He further mentioned that he was gazetted as land administrator to register dealings, which include caveats. [19] DW2 also stated that DW1’s job was for data entry of any entry and removal of caveats. In respect of the removal of the Plaintiff’s Private Caveat, DW2 testified that a representative from Nagarajan Peri & Co (the Plaintiff’s counsels for the Appeals) had come to the land office and informed the land office about the 2011 Court Order. In order to fulfil the 2011 Court Order, DW2 had removed all private caveats including the Plaintiff’s Private Caveat on 10.09.2012. B. Decisions and Findings of the Court [20] After perusing the cause papers, the witnesses’ statements, the notes of proceeding and the written and oral submissions and replies by the parties, I dismiss the Plaintiff’s claim. Herein are my reasons. [21] The crux of the dispute between the parties was whether the 1st Defendant had negligently removed the Plaintiff’s Private Caveat which has allegedly resulted in the Plaintiff being unable to register its name as the owner of the said Land. The Plaintiff’s main argument was that if it was not because of the 1st Defendant’s action in negligently removing the Plaintiff’s Private Caveat, the Plaintiff had already registered itself as the owner of the said Land. i) Whether the 1st Defendant had Negligently Removed the Plaintiff’s Private Caveat? [22] The Plaintiff argued that the removal of the Plaintiff’s Private Caveat was not done in accordance with the 2011 Court Order and it has never consented for such removal. During DW1’s cross-examination, she admitted that there was a mistake by the 1st Defendant in interpreting the 2011 Court Order. [Notes of Proceeding (“NOP”) at pages 86 – 87] What is written here? Diinjuk. Diinjuk, correct? What did you do? Here is written di injuk, what did you do to Osaka caveat? I remove it as well. You remove it isn’t it? I did the kemasukkan for removal. You did the kemasukkan for removal. You see this perintah, it says injuk, do you understand what is the meaning of injuk or not? At that time I didn’t understand what is the meaning of injuk. At that time you didn’t understand, correct? So now you agree with me diinjuk okay and to batalkan or do you kemasukkan to batalkan private caveat is totally different, correct or not? … This perintah is only say injuk what. That means you setuju or not you already made a mistake? So you setuju you sudah buat satu kesilapan apabila memotong kaveat Osaka dengan perserahan nombor 6584 pada masa tersebut, setuju kan? [23] For ease of reference, the relevant portion of the 2011 Court Order is produced below – “(a) Keveat persendirian di bawah perserahan 72/2010 yang dimasukkan oleh defendant ke atas tanah yang terkandung dalam GM323 Lot 865 Mukim Semenyih, Daerah Ulu Langat, Negeri Selangor dibatalkan dan diketepikan;

Defendant diarahkan untuk membatalkan dan mengetepikan Kaveat persendirian tersebut dengan serta merta;

Defendan samaada secara sendiri, agen atau pengkhidmatan mereka atau sebaliknya di injuk daripada memasukkan dan menyebabkan dimasukkan sebarang kaveat atas tanah yang terkandung dalam G.M 323, Lot 865, Mukim Semenyih, Daera Ulu Langat, Negeri Selangor bagi membolehkan tanah yang terkandung dalam G.M. 323, Lot 865, Mukim Semenyih, Daerah Ulu Langat, Negeri Selagor didaftarkan dengan sempurna di bawah Plaintiff dan/atau nominee Plaintif;” [24] The Defendants’ contended that it was clear that the purpose of the 2011 Court Order was to properly register the Plaintiff as the owner of the said Land. If there were caveats still existing on the said Land, any attempt of registration could not be implemented. Thus, the 1st Defendant’s action in removing the Plaintiff’s Private Caveat at the time was in accordance with the 2011 Court Order and was done under Section 327 of the NLC. This was also testified by DW2 during his cross-examination at NOP at pages 139 - 140. [NOP at pages 139 - 140] Okay, lepas itu you tulis di sini dibawah demi memenuhi kehendak Mahkamah berdasarkan perintah Mahkamah tersebut saya telah membatalkan dan menarik balik kaveat-kaveat persendirian tersebut di bawah nombor perserahan 6174/201. Okay, kamu kata kamu telahpun membatalkan, okay, setuju? Encik Fadhli, this is your penyata saksi? Saya setuju. Okay, you setuju. So terangkan kepada Mahkamah kenapa you batalkan ini kaveat Osaka Tyre? Bagi you punya perkataan sendiri lah, give your own words senanglah, explain kepada Court kenapa you batalkan ini kaveat? Kaveat persendirian yang dimasukkan oleh Osaka Tyre iaitu 6584/2010 telah dibatalkan. Saya telah pun membatalkan dan menarik balik bagi memenuhi kehendak perintah Mahkamah iaitu perintah Mahkamah. … Saya tak faham jawapan Encik Fadhli. Saya punya soalan saya ulang balik, okay kamu kata Justeru, demi memenuhi kehendak Mahkamah berdasarkan perintah Mahkanah tersebut saya telah pun membatalkan dan menarik balik kaveat persendieian tersebut di bawa nombor perserahan 6174/2012 pada 10 September 2012. Ini you kata tarikh balik dua kaveat ini, setuju kan? J: Setuju. [NOP at page 145] Now see your soalan nombor 9, soal jawab nombor 9, sebagai tambahan perenggan (c) perintah Mahkamah tersebut juga mengandungi tujuan untuk perintah tersebut dikeluarkan oleh Mahkamah. Jika diteliti perintah tersebut menyatakan bahawa bagi membolehkan tanah terkandung di dalam GM323 865, di daftarkan dengan sempurnya di atas nama Plaintif atau nominee Plaintif. Apakah fahaman kamu berkenaan ini, tolong beritahu Mahkamah? Yang Arif, pemahaman saya tentang perintah ini bagi membolehkan… No, perenggan ini? Ya, perenggan ini bagi membolehkan pendaftaran tanah dilaksanakan dengan sempurna di atas nama Plaintif, jadi sebarang kaveat tidak boleh ada kerana dia akan menghalang untuk pendaftaran secara sempurna ke atas Plaintif. [25] Here, I am of the opinion that there were indeed some mistakes in the removal of the Plaintiff’s Private Caveat due to the following reasons. (1) The fact that DW1 herself admitted that she did not understand and was mistaken in interpreting the 2011 Court Order and (2) DW2’s understanding that all caveats must be removed to enable the transfer in favour of the Plaintiff as per the 2nd limb of the 3rd order in the 2011 Court Order. Both DW1 and DW2 have confirmed this during their cross examination. DW1, for example, has said, [NOP at pages 91] Correct? Earlier you said you removed Osaka punya kaveat and the other kaveat because you want to make sure there is no caveat on this property so that can daftarkan to Osaka name, correct or not? [26] After being grilled by the Plaintiff’s counsel, DW1 during her cross-examination, admitted that there was a mistake in the removal of the Plaintiff’s Private Caveat: [NOP at page 93] Okay, sekarang tadi you sudah mengaku bahawa you melakukan cuai bila you membuka kaveat Osaka, betul tak? Yes [27] At this stage, it seems that our present case leans in favour of the Plaintiff. However, this Suit is not as simple as it seems to be. Yes, procedural wise, there was such a mistake committed by the Defendants in removing the Plaintiff’s Private Caveat. However, in our present case, the Defendants are seeking the shield of Section 22 of the NLC. ii) Section 22 of the NLC [28] The Defendants in their submission had premised that they had acted in good faith and without any malice in removing the Plaintiff’s Private Caveat. So much so that, they shall not be liable to be sued as long as they have acted in good faith in exercising the statutory power and duty. This was pursuant to Section 22 of the NLC which says, “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.” [29] The learned author, Judith Sihombing in her authoritative textbook, “National Land Code: A Commentary 2021 Desk Edition has stated this (in Vol2, page 295): “[164] This section applies to action taken against an officer pursuant to s 386 in respect of any error in an official search. Similarly, it applies to an action in which the plaintiff seeks compensation in an action claiming the Registrar has failed to perform his duty under the Code. The section provides for exemption from prosecution of an officer who is carrying out his duties under the Code:

in good faith; and

in the intended exercise of a power, or in the intended performance of any duty imposed by the Code.” [30] Here, the Defendant also cited the case of Supreme Tribute Sdn Bhd v. Dato’ Mohd Amin Ahmad Yahya & Ors [2018] 1 LNS 1006 where His Lordship Abdul Rahman Sebli JCA articulated that section 22 does not simply provide blanket immunity to a land administrator from civil action. Nonetheless, a land administrator could seek protection under section 22 of the NLC if he had acted in good faith and in the intended exercise or performance of his duty conferred or imposed on him by or under the NLC. [31] In response, the Plaintiff argued that the Defendant had not acted in good faith and should not be allowed to hide behind the protection of Section 22. To support its contention, the Plaintiff referred to the case of Pendaftar Hakmilik Negeri Selangor v Caesius Development Sdn Bhd & Ors and Another Appeal [2020] MLJU 25 where it was held that such negligent act and breached of statutory duty conducted by the land officer cannot be protected under section 22 of the NLC. I have no qualm about the principle of law there. However, this Court view that the case of Caesius (supra) can be easily distinguished from our present case. In Caesius (supra) not only does it involve negligence, but it also involves a breach of the statutory duty. The land officer in that case was clearly in breach of paragraph 8(9)(c) of the 14th Schedule of the NLC. Her Ladyship Zaleha binti Yusof JCA (as she then was) in delivering the judgment stated that, “[40] We find no reason to disturb this finding of the learned High Court Judge. Not only had the 7th defendant been negligent in handling the Change of Name under section 378 of the NLC, the scheme provided under section 8 of the 14th Schedule had also been breached. It must be emphasized that the Change of Name envisaged under section 378 is only in respect of the name of the proprietor and NOT on the ownership of the land. The ownership of the land remains unchanged. However the evidence showed that after the Change of Name was registered the computerised issue of document of title was issued by the 7th defendant in the name of the 3rd defendant as the registered proprietor of the said land. There was no reasonable explanation given by the 7th defendant as to why he allowed these utterly questionable transactions to take place. Paragraph (c) of subsection 8(9) of the 14th Schedule clearly states that where conversion is effected by the Registrar on his own accord, he shall not be obliged to deliver to the proprietor the computer printed issue document of title unless the existing issue document of title is produced to him. It is not disputed that the existing issue document of title has always been and is still with the plaintiff. [41] Therefore, the act of 7th defendant in delivering the new computerised issue document of title to the 3rd defendant was clearly in breach of paragraph 8(9)(c) of the 14th Schedule of the NLC…” [Emphasis added] [32] In our present case, by adopting the ratio of the above cases, I do not find any facts to show that the 1st Defendant had acted in bad faith in removing the Plaintiff’s private caveat. It is undeniable that the 1st Defendant had acted wrongly and mistakenly in removing the Plaintiff’s Private Caveat. But the question remains as to whether the action falls under the category of breaching her statutory duty or is a male fide action? I do not think so. The Plaintiff did not establish to this Court that the 1st Defendant’s action was considered a statutory breach. Moreover DW1 has provided a reasonable explanation with regard to the removal of the Plaintiff’s Private Caveat: to make way for the registration of the transfer in favour of the Plaintiff. [33] I also refer to JW Properties Sdn Bhd v Perbadanan Kemajuan Pertanian Selangor of Anor and another appeal [2016] 1 MLI 341.There, the Court of Appeal find nothing to be able to say that the officer had acted otherwise than in good faith in conducting the land enquiry. He was merely performing his public duty under the National Land Code. Also, in CIMB Islamic Trustee Berhad v Pendafiar Hakmilik Negeri Selangor & Ors [2018] 1 LNS 1356 the Court held that there was nothing to suggest any breach or negligence or bad faith on the part of the Registrar. Hence, Section 22 shielded them from any liabilities. [34] Likewise, I do not find anything other than a bad interpretation mistake in the wrongful and mistaken removal of the private caveat in this case. I do not find anything to suggest that the action was done in bad faith. Therefore, I am unable to agree with Plaintiff’s contention that Section 22 of the NLC does not apply in the present case. iii) Damage [35] The biggest flaw in the Plaintiff’s case is with regard to the causation and the remoteness of damage. The Plaintiff contended that due to the Defendants’ negligence, it is entitled to damages. The Plaintiff in its statement of claim pleaded that at para 41– “41. Plaintif memplidkan bahawa dengan kecuaian Defendan Pertama: - a. Plaintif telah kerugian haknya untuk memiliki hartanah tersebut dimana harga pasaran hartanah tersebut telah meningkat berlipat kali ganda dari masa Plaintif memasuki perjanjian jual – beli dengan Barisan Perdana iaitu pada 17.06.1998; b. Plaintif kerugian haknya untuk didaftarkan sebagai pemilik berdaftar hartanah tersebut dan kerugian haknya untuk memilik satu ‘indefeasible title’ selaras dengan Seksyen 340 Kanun Tanah Negara 1965, apabila pada 10.09.2014 Mahkamah Tinggi telah membuat keputusan memihak kepada Plaintif, dan telah membenarkan tindakan pelaksanaan spesifik Plaintif terhadap Barisan Perdana. c. Plaintif kerugian satu jumlah wang dengan terdapatnya peningkatan berlipat kali ganda dalam harga pasaran hartanah tersebut dari masa Plantif memasuki perjanjian jual – beli dengan Barisan Perdana pada 17.06.1998 sehingga tarikh ganti rugi dibayar oleh Defendan – Defendan kepada Plaintif.” [36] It is trite that in order for the Plaintiff to succeed in its claim for damages, there must be a causal link between the negligence and the damage suffered, and the damage is not too remote from the causative act. [37] I quote here para [380.011] “Causation” of the Halsbury’s Law of Malaysia – Tort, which says – “The principle of causation is concerned with the relationship between the tortious act and the injury sustained. There must be a casual connection between the breach of duty and the injury suffered. The law places a burden on the plaintiff to prove on a balance of probabilities, that it was the defendant’s breach of duty which caused the injuries. Courts often look to the test of causation commonly known as the ‘but for’ test. It simply means that ‘but for’ the defendant’s negligence act, the injury would not have occurred. It is in essence a factual inquiry and in medical negligence it is often resolved through expert evidence.” [Emphasis added] [38] This Court accordingly refer to the Court of Appeal case of Chua Seng Sam Realty Sdn Bhd v Say Chong Sdn Bhd & Ors and other appeals [2013] 2 MLJ 29 where His Lordship Mohd Hishamudin Yunus JCA in delivering judgment of the court held that – “[30] It is significant to note that despite the first defendant having a counterclaim, yet she did not come to court to give evidence to prove her claim against the first plaintiff. [31] In our judgment, the plaintiffs’ have failed to prove on a balance of probabilities that it was the excavation work, that was being carried out by the third defendant (the independent contractor) on the first defendant’s land (now leased to the second defendant), that had caused the retaining wall on the first plaintiff’s land to collapse. [32] It is trite law that in an action for negligence the plaintiff has to prove that the defendant’s act was the effective cause of the injury suffered by the plaintiff. Without a causative link being established by the plaintiff, the claim cannot succeed. The passage found in para 2-01 of the text of Clerk & Lindsell on Tort (20th Ed), states this basic principle in the following manner: In the majority of torts the claimant must show that the defendant’s wrongdoing caused him actual damage. In these torts, and indeed in torts actionable per se if substantial damages are sought, the claimant must establish that:

The defendant’s conduct did in fact result in the damage of which he complains, and

The damage is not in law too remote a consequence of the defendant’s wrongdoing [33] As such the plaintiffs’ are duty bound to prove that it was the defendants’ act which caused the damage and that the damage caused is not too remote to the defendants’ act.” [Emphasis added]. [39] Hence, the question that comes to mind is that if the 1st Defendant has not removed the Plaintiff’s Private Caveat whether the Plaintiff was able to register the title of the said Land under the Plaintiff’s name? This is crucial in establishing the last element in such a negligence suit: damage and remoteness of damage. Here, I have to answer negatively due to the following reasons. [40] The Plaintiff argued that if the 1st Defendant has not removed the Plaintiff’s Private Caveat, the Plaintiff could surely register its name at the land office and would be protected under Section 340 of the NLC. The Plaintiff further argued, that because of the 1st Defendant removal, the Plaintiff had to face the Court of Appeal without the protection of indefeasible title. This has resulted in the Plaintiff’s loss. With all due respect, I have to disagree with its contention. [41] Section 340 of the NLC says this – “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

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 sub-section (2) –

if 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 there out 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 by any person or body claiming through or under such a purchaser. [42] During the Appeals, the judgment of the trial judge decision decided in favour of the Plaintiff and ordered for both Barisan Perdana and My Regal to transfer the said Land to the Plaintiff without any restriction for the purpose of title registration was overturned. Her Ladyship Alizatul Khair Binti Osman Khairuddin JCA (as she then was) in delivering the judgment of the Court of Appeal in respect of the position of the Plaintiff has decided and concluded that – “[8] On 17th June 1998 Barisan Perdana entered into a sale and purchase agreement with Osaka for the said land at a price of RM680,000-00. A deposit of R250,000 was paid but the balance sum was held by Osaka’s solicitor as stakeholders. The sale and purchase agreement was never completed largely because Osaka became involved in litigation relating to the removal of caveats. As such beneficial ownership or interest never passed to Osaka. It therefore follows that Osaka is not able to avail itself of the protection available under the proviso to section 340(3). The title therefore did not pass to Osaka was entitled to specific performance, in view of our finding the P- 13 was forged. He also erred in applying section 340(3) of the National Land Code in arriving at his conclusion that Osaka was a bona fide purchaser for value without notice, given his earlier finding that P-13 was not forged. [9] Any remedy that Osaka may have against Barisan Perdana is in contract. Osaka is entitled at best to damages for breach of contract or damages in lieu of specific performance as against Barisan Perdana. We therefore order that Osaka be awarded damages in lieu of specific performance as against Barisan Perdana. These damages are to be assessed by the Registrar.” [Emphasis added] [43] Thus, based on the Court of Appeal judgment quoted above to which I am bound, it is clear to me that the Plaintiff does not have any caveatable interest in the said Land from the beginning. Verily, to substantiate the Plaintiff’s claim, the Plaintiff must establish that the Plaintiff’s Private Caveat is sustainable. This the Plaintiff has not done so in our present case. It is my finding that the Plaintiff’s Private Caveat was bound to be removed due to numerous reasons. Firstly, it was held that the sale and purchase agreement entered between the Plaintiff and Barisan Perdana was never completed. Secondly, Baris Perdana has obtained the title by way of forgery, no title or interest has been passed to Barisan Perdana or even the Plaintiff in the first place. Thus, the Plaintiff cannot seek protection under the proviso of Section 340(3) of the NLC. I shall elaborate these now. [44] To begin with, it is to be mindful that any private caveat entered over a piece of land can be removed if the caveator has no caveatable interest. In Score Option Sdn. Bhd v Mexaland Development Sdn. Bhd [2012] 6 MLJ 475, the Federal Court has made it clear that: “…the only parties who were authorised to lodge a private caveat were those who could effect dealings in the particular interests in the land. The caveator had to have a ‘registerable interest’ under s.323(1)(a) of the NLC. In order to be a caveatable interest, the interest should represent a transaction that could ultimately lead to its registration on the register.” [45] As mentioned earlier,it is my finding that the Plaintiff had no caveatable interest. It was found by the Court of Appeal that Barisan Perdana had obtained the said Land from the Registered Owners by committing forgery. Thus, it renders Barisan Perdana’s title defeasible under Section 340(2) of the National Land Code. To this, Her Ladyship Alizatul Khair JCA (as she then was) in her decision to the Appeals has referred to the Mohamad Salim bin Said & Ors v Tang Pheng Kee & Anor [2014] 3 MLJ 504 where Mohd Zawawi Salleh JCA (as he then was) has held at p. 516 that– “[31] … The instrument of transfer purportedly signed by the deceased persons would nevertheless be a void instrument being a document of transfer bearing a purported forged signature. Therefore, Tan and Woon’s title is to be set aside (see Tan Ying Hong v Tan Sian San & Ors [2010] 2 MLJ 1; [2010] 2 CLJ 269.” [Emphasis added] [46] It has been similarly decided by the High Court in the case of Elizabeth Chiew Yee Fung & Ors v Leong Fook Ngen & Ors [2001] 6 MLJ 403 where His Lordship Richard Malanjum J (as he then was) held at p. 415, para D that: “…’it is axiomatic that a forged instrument is null and void and of no effect’ (see Kreditbank Cassel GMBH v Schenkers Ltd [1927] 1 KB 826 at p 834, per Bankes LJ). It is not merely voidable. In the absence of an express statutory direction to the contrary, no rights whatsoever arise in favour of one who acquires title under a void instrument. The extent to which statute has intervened in the case of a registration of title obtained by means of a forged instrument is a matter that we will deal with separately at a later stage’ per Gopal Sir Ram JCA in Boonsom Boonyanit v Adorna Properties Sdn Bhd at p 85” Perhaps it should be noted here that the Federal Court reversed the decision of the Court of Appeal in the above case but it was on the basis of the proviso under s 340(3) of the NLC, namely, a purchase in good faith and for valuable consideration. In the instant case, I have found that the purported signature of the deceased in exh P3a was forged and that the defendant must have know or ought to have known of the forgery. Hence, the inevitable conclusion is that such instrument did not convey any title, interest or rights to the subsequent registered owner. As such, Liew Ah Tai, Leong Fook Ngen and the defendant acquired no title, interests or rights in respect of the said share.” [Emphasis added.] [47] Therefore, as per the finding of the Court of Appeal that the transfer of the said Land between the Registered Owners and Barisan Perdana was forged, the Plaintiff position is questionable. Automatically, if the initial instrument of the title was forged, Barisan Perdana the vendor has no right or title in the said Land. The Plaintiff accordingly did not have the indefeasible title nor the caveatable interest on the said Land. Section 340(3) of NLC is clear that where title or interest of any person is defeasible by reason provided under subsection (2), said title or interest shall be liable to be set aside. [48] The Plaintiff was adamant that it was a bona fide purchaser as a subsequent purchaser for value; And if it was not because of the Defendants’ negligence in removing the Plaintiff’s Private Caveat, it had already been registered as the owner of the said Land. With due respect, I have to disagree with the Plaintiff. The finding of the Court of Appeal is clear: that Barisan Perdana obtained the said Land by way of forgery. Thus, any interest or dealings that were subsequently made were void. Also, it is to be noted that the Plaintiff here is not a subsequent purchaser but an immediate purchaser and thus it cannot be protected by the proviso of Section 340(3). The proviso of Section 340(3) is only available to a subsequent purchaser who is a bona fide purchaser for value. [49] This Court find valuable guidance from the case of OCBC Bank (M) Bhd v Pendaftar Hakmilik, Negeri Johor [1999] 2 MLJ 511, p. 520 – 521 (B – C), where His Lordship NH Chan JCA (as he then was) held that – “In the instant case, the registered title of Ng See Chow as proprietor of the land in question is rendered defeasible (meaning, capable of annulment; see the Concise Oxford Dictionary) by forgery (if proved) under s 340(2)(b) and that makes the registration of the title in his name liable to be invalidated (annulled) at the instance of Mr Ng Kim Hwa. … In other words, s 340(2)(b) makes the registered title of Ng See Chow defeasible (meaning, capable of annulment) and that makes it liable to be annulled at the instance of Mr Ng Kim Hwa if the registration of the title in his (Ng See Chow’s) name as proprietor was obtained by forgery. The result is this. If the registered title of the land in Neg See Chow’s name is defeasible under s 340(2)(b) because its registration was obtained by forgery, it (ie the registered title in the name of Ng See Chow) is liable to be annulled by the true registered owner Mr Ng Kim Hwa (Boonsom Boonyanit). This is because a forged instrument is a nullity. It is void and of no effect. And, as a consequence, the setting aside of Ng See Chow’s title to the land will also make the charge, which Ng See Chow had created by using his defective title to charge the interest in the land (which is not Ng See Chow’s in the first place) to the appellant bank (OCBC Bank (M) Bhd), similarly liable to annulment. This is because a forged instrument is a nullity, incapable of conferring any right, interest or title in favour of the acquirer of immovable property, which in this case is Ng See Chow. And, if Ng See Chow had no right, interest or title in the land then, he had nothing that was his to charge to the appellant. Gopal Sri Ram JCA put it aptly when he said in Boonsom Boonyanit at p 85: …If, on the facts of a given case, it is demonstrated to the satisfaction of the court that the particular instrument was forged, or was, for the some other reason, insufficient or void, then, the title of the registered proprietor may be set aside…it is axiomatic that a forged instrument is null and void and of no effect (see Keditbank Cassel GMBH v Schenkers Ltd [1927] 1 KB 826 at p 834, per Bankes LJ). It is not merely voidable. In the absence of an express statutory direction to the contrary, no rights whatsoever arise in favour of one who acquirs title under a void instrument. … And further down the page, he said: …Defeasibility is occasioned in this instance because a forged instrument is a nullity, incapable of conferring any right, interest or title in favour of the acquirer of immovable property. So that, since a forged instrument (such as a forged transfer) is a nullity, it does not confer any right or title to the land. A person who has no right or title to the land has no right to charge it because the land is not his, in the first place, for him to grant any interest (like a charge or a lease) in the land to someone else (such as a chargee or a lessee).” [Emphasis added] [50] When the initial transaction is void, Barisan Perdana has no right or interest whatsoever to sell or transfer to the Plaintiff. In such situation, the Plaintiff consequently as no right or interest whatsoever over the said Land. [51] In fact, the case of Kamarulzaman (supra) relied heavily by the Plaintiff has answered and illustrated this situation succinctly when Jeffery Tan FCJ observed that: “[43] In the instant case, both the trial court and the Court of Appeal held that the fifth and sixth respondents were bona fide purchasers. But unfortunately, both the trial court and the Court of Appeal failed to inquire whether the fifth and or sixth respondents were immediate or subsequent purchasers. Only a subsequent purchaser is entitled to raise the shield of indefeasibility. An immediate purchaser of a title tainted by any one of the vitiating elements acquires a title that is not indefeasible. It flows from Tan Ying Hong that the bona fides of an immediate purchaser is not a shield to defeasibility. The defeasible title of a bona fide immediate purchaser is still liable to be set aside. The defeasible title of a bona fide immediate purchaser only becomes indefeasible when it is subsequently passed to a bona fide subsequent purchaser. That the fifth and sixth respondents were bona fide purchasers could not by that fact alone give a shield of indefeasibility. The fifth and or sixth respondents only acquired an indefeasible title if they were bona fide subsequent purchasers. But for the fifth and sixth respondents to have been bona fide subsequent purchasers, there must have been an immediate purchaser in the first place. The first to fourth respondents, from whom the fifth and sixth respondents obtained title, were not immediate purchasers. Rather, they were imposters of those entitled to the estate of the deceased. They, like the fake Boonsom who impersonated the true Boonsom, had no title to pass to the fifth and sixth respondents. The fifth and sixth respondents who were the immediate purchasers, acquired a title that was not indefeasible. But when the fraudulent title of the first to fourth respondents were set aside by the default judgment, the defeasible title of the fifth and sixth respondents was also defeated.” [ Emphasis added] [52] Thus, in any event, the Plaintiff does not have any caveatable interest in the said Land since the beginning because the title of the said Land held by Barisan Perdana was obtained by way of forgery and the Plaintiff accordingly have obtained no title or interest from Baris Perdana. [53] Being an immediate purchaser, the proviso of Section 340(3) of the NLC is not available for the Plaintiff. The inapplicability of the proviso under Section 340(3) of the NLC to an immediate purchaser is as affirmatively pronounced by our apex court in Tan Ying Hong v Tan Sian San & Ors [2010] 2 CLJ 269 where Arifin Zakaria CJ (Malaya) (as he then was) ruled that– “[52] Furthermore, even though sub-s (3)(a) and (b) refer to the circumstances specified in sub-s (2) they are restricted to subsequent transfer or to interest in the land subsequently granted thereout. So it could not apply to the immediate transferee of any title or interest in any land. Therefore, a person or body in the position of Adorna Properties could not take advantage of the proviso to sub-s (3) to avoid its title or interest from being impeached. It is our view that the proviso which expressly stated to be applicable solely to sub-s (3) ought not to be extended as was done by the court in Adorna Properties, to apply to sub-s (2)(b). By so doing, the court had clearly gone against the clear intention of Parliament. This error needs to remedied forthwith in the interest of all registered proprietors. It is, therefore, highly regrettable that it had taken some time, before this contentious issue is put to rest.” [Emphasis added] [54] Thus, the notion of bona fide purchaser is not relevant here. The Plaintiff could not use the proviso of Section 340(3) to boost its right. [55] Even if I were to agree that the proviso in Section 340(3) of the NLC is applicable, to be able to obtain a valid title or right in such situation, the Plaintiff must establish to the court that it is a bona fide purchaser for value. The burden is on the Plaintiff to prove/ establish this. This is as per the ratio in Teoh Kim Heng V. Tan Ong Ban [2014] 8 CLJ 316 where Aziah Ali JCA (as she was) held that: “[18] On the evidence it is clear that the appellant is a subsequent purchaser. Being a subsequent purchaser, the appellant would obtain an indefeasible title if he could prove that he was a purchaser in good faith for valuable consideration. This is a statutory protection accorded by s. 340 of the National Land Code (NLC). The burden of proving that there was a valuable consideration and good faith in the conveyance of the property lies on the appellant…” [Emphasis added] [56] However, in our present case, nothing much has been forwarded by the Plaintiff for this. They have not established that the purchase price has been paid in accordance with the sale and purchase agreement and the normal conveyancing practice. This is crucial for the Plaintiff to establish that they are indeed bona fide purchaser who has done their proper precaution. And that they have no constructive notice of any irregularity of the sale by Barisan Perdana. The Plaintiff has not tendered anything to this Court but for the statement of PW1 who claimed that full payment has been made. No document nor any collaborating evidence / testimony has been tendered or forwarded to explain the payment of the full purchase price despite no title has been deposited or surrendered to the Plaintiff’s solicitor. The solicitor in charge of the transaction was not called as witness. This left many issues unanswered. When he was asked further about the reason the same was released before the title deed was given/ deposited, PW1 times and agains claimed ignorance of what his lawyer had done. In fact, in most instances PW1 was not able to answer most questions concerning the conveyancing process. Issues about any title searches had been done was met with an answer, “it should have been done.” Also, the question about the full payment was answered by him saying he has given the money to the solicitor and he no idea about what the lawyer has done. [NOP at page 22] Okay, sebelum dia tandatangan perjanjian itu, ada tak dia buat land search ke atas hartanah itu? Peguam saya telah lakukakn land search terhadap tersebut dan tiada apa-apa masalah dan suruh saya buat bayaran. Boleh tunjukkan dokumen land search sebelum kamu tandatangan perjanjian ini? Ada dokumen di sini? Ia telah lama, saya perlu tanya kepada lawyer samada dokumen tersebut masih wujud atau tidak. [NOP at page 23] Saya katakan bahawa tidak ada land search dokumen yang ditunjukkan land search telah dibuat oleh Peguam Ling Theng Book? Leong, just ask him yes or no. The rest I think apa nama, Ekbal will do the RE-afterwards Saya tidak tahu, semua saya serahkan kepada peguam [NOP at page 39] Begini, if the balance purchase price has been paid to the lawyer, the lawyer has the responsibility to hold the balance purchase price as the stakeholder? Betul, lepas pindah nama, baru dia bayar Lepas dia pindah nama kepada M.D.O baru dia bayar kepada Barisan Perdana, betul? Yang ini kena tanya lawyer, saya tak berapa tahu. Encik Yap, setuju kalau saya katakan bahawa bayaran yang Encik Yap bayar kepada lawyer, tak boleh dikeluarkan lagi kepada Barisan Perdana sehingga process jual beli telah selesai? Saya tak tahu, untuk saya selagi lawyer kata tiada masalah, saya buat bayaran sahaja. [NOP at page 40] Berdasarkan klausa ini, bersetuju saya katakan secara ringkasnya, peguam Encik hanya boleh membuat bayaran kepada Barisan Perdana selepas 14 hari perserahan dibuat kepada Pejabat Tanah? Saya tidak tahu Jika Encik Yap tidak diberikan tanah tersebut, setuju saya katakan bahawa bayaran tidak boleh sepatunya diberikan kepada Barisan Perdana? Yang saya tahu peguam suruh saya bayar, saya bayar sahaja. Sama mana tahu. Jadi Encik Yap tak pernah tanya kepada bayaran telah diberikan kepada Barisan Perdana tadi Encik Yap tak dapat tanah sampai sekarang> Peguam ada beritahu saya, down-payment mesti bayar dan selepas pindah nama dibuat, baki harga mesti dibuat tetapi saya serahkan kesemuanya kepada peguam. [NOP at pages 41-42] Encik Yap, adakah Encik Yap tahu bahawa bayaran tersebut dibuat daripada peguam Encik Yap kepada Barisan Perdana? Saya tahu. Tahu? Tahu? Encik Yap ingat tak bila lawyer ada beritahu yang lawyer transfer that balance purchase price kepada Barisan Perdana? Sudah lama saya tak ingat, perlu buat semakan. Jadi setuju saya katakan bahawa Encik Yap tahu lawyer telah buat bayaran kepada Barisan Perdana? Sudah lama saya tak ingat, perlu buat semakan. Jadi setuju saya katakan bahawa Encik Yap tahu lawyer telah buat bayaran kepada Barisan Perdana? Saya tak berapa tahu Tadi Encik Yap beritahu Encik Yap tahu lawyer ada buat bayaran. Encik Yap tahu atau tidak sebenarnya ni? JB: Soalan tadi itu bila? Bagitahu bila. Which bayaran also? PD1: Yang Arif, I’m referring to balance purchase price all these while Yang Arif. Okay, sebentar tadi dia ada jawab ke? PD1: Ya, tadi dia cakap dia tahu bayaran tersebut telah dibuat kepada Barisan Perdana namun dia tidak tahu bila. … Ya, jadi soalan saya nak confirm kan sebenarnya dia memang tahu bayaran tersebut telah dibuat, Saya tahu bila Barisan nak jual tanah ini, Barisan minta RM250,000. Jadi lawyer beritahu saya tiada masalah, so saya bagi RM250,000 itu kepada peguam dan peguam pun bayar kepada Barisan Perdana tapi RM430,000 itu saya tak tahu. Kebiasaan untuk pembelian tanah, down-payment mesti dibuat. [57] Yet his solicitor handling the conveyancing of the said Land was not called as a witness. During submission, the counsel for the Plaintiff has stressed that they have discharged their duty to establish their case and any need to call the lawyer must rest on the Defendants. [58] However, I disagree with this. The solicitor is crucial to establish the Plaintiff’s case specially to establish that it is indeed a bona fide purchaser for value. For the fear of repeating, it is trite law that the burden is on the Plaintiff to prove that it is indeed a bona fide purchaser for value in this case. This is the only way for the proviso to Section 340(3) of the NLC be operative to shield the Plaintiff. Without even establishing that the proper and due conveyancing process and practices have been observed, how could the Plaintiff establish that it is a bona fide purchaser for value who would still obtain the good title to the property have it not been the removal of the Plaintiff’s Private Caveat? [59] The decision of the earlier decision and findings of the Court of Appeal in the Appeals has succinctly analysed the position of My Regal which was another purchaser of the said Land from Barisan Perdana which has even have itself registered as a subsequent proprietor of the said Land. [60] My Regal was in the same shoes as the Plaintiff. Even with the subsequent registration of transfer, the Court of Appeal had decided that My Regal was not a bona fide purchaser. Her Ladyship Alizatul Khair says as follows – “[10] On 7th September 2012, My Regal entered into a sale and purchase agreement with Barisan Perdana for the said land at a purchase price of RM3,419,080.69. My Regal contends that it is entitled to ownership of the said land as a bona fide purchaser for value without notice. We however agree with the learned Judge that My Regal is not in fact a bona fide purchaser for value without notice. However, it should be noted that the learned judge was wrong in applying section 340(3) of the NLC in relation to My Regal, given his finding that P-13 was not in fact forged. … [12] Taken in totality it may reasonable be inferred from the foregoing that My Regal deliberately turned a ‘blind eye’ to the existence of subsisting interests in the said land in order to procure registration in its own name (see Au Meng Nam & Anor. v Ung Yuk Chew & Ors [2007] 5 MLJ 136 Court of Appeal; and Yap Ham Seow v Fatimawati bte. Ismail [2014] 1 MLJ 645). [13] This is not a mere lack of prudence as stated by the learned Judge but amounts, in our view, to deliberate and less than honest conduct on the part of My Regal in seeking to procure ownership of the said land. In so concluding we have applied the test enunciated in Pekan Nenas Industries Sdn Bhd v Chang Ching Chuen & Ors [1998] 1 CLJ 793.” [Emphasis added] [61] My Regal has shown that it has done all its duties that and yet the Court of Appeal has found that turning ‘a blind eye’, would deprive it the ‘bona fide purchaser’ status. In this Suit, all these have not been tendered/ proven to show that the Plaintiff has even done these. How could the Plaintiff claims that it is a bona fide purchaser for value without even proving it has done its due diligence and precaution throughout this process? The circumstances are as such that even with numerous land searches, My Regal was still held as a non-bona fide purchaser for value in the Appeals. The Plaintiff in our present case did not even tender witness testimony to establish that all these proper checking and searches have been done and that the payment was done in accordance with the Sale and Purchase Agreement or the normal conveyancing practice. How then could this Court be convinced that the Plaintiff is a bona fide purchaser for value who would be protected by the proviso of Section 340 (3) of the NLC? [62] As correctly highlighted by the learned counsel for the Defendants, the Plaintiff has not presented any transfer form of the said Land in the land office. Also, the Plaintiff has confirmed that at all time, it has never obtained the title deed to the said Land. The Court of Appeal has also held that the Plaintiff has no title/ right in the said Land. Thus, it would not make any sense for the Plaintiff to seek compensation from the Defendants for the loss of the said Land. [63] The Plaintiff cited the case of Pendaftar Hakmilik Negeri Selangor & Ors v Shaifulizam bin Mohd Saleh & Anor and another appeal [2020] 5 MLJ 1 where it was held that the concept of indefeasibility does not exclude the court’s jurisdiction to grant relief in a claim in personam. This I concur. However, I am mindful of the another ratio of Her Ladyship Zaleha Yusof JCA (as she then was) (at p. 25 para [63]) of the same case which is extremely relevant to our discussion at hand– “However, we must also bring the parties’ attention to what the Federal Court in Sum Kum v Devaki Nair & Anor [1964] 1 MLJ 74 had held: ‘In an action for damages, it is for the plaintiff to prove his damages, it is not enough to write down the particulars, and ‘throw them at the head of the court, saying: This is what I have lost; I ask you to give me this damages’. He has to prove it.” [Emphasis added] [64] In the same veins, in the present case, it is insufficient for the Plaintiff to list down the alleged tortious action without giving enough proof to support its contention. The fact that the Plaintiff, as discussed earlier, has no interests or rights upon the said Land makes the Plaintiff’s claim for compensation against the Defendant went down the drain. [65] Also, the Plaintiff did not even have the title of the said Land in the first place. PW1 during his cross-examination admitted to this Court that from the very beginning the Plaintiff has never in the possession of the title. [NOP at pages 49 - 50] Saya katakana kepada Encik Yap dalam tempoh 4 tahun itu tidak ada apa-apa yang menghalang peguam Encik Yap untuk melaksanakan tanggungjawab dengan membuat serahan ke Pejabat tanah within these 4 years? Serahan untuk? Untuk pindah milik atas nama M.D.I? Geran untuk Barisan itu pun tiada macam mana nak pindah milik. Kalau dapat untuk pindah milik, saya akan cepat-cepat pindah milik. [NOP at pages 51 - 52] Okay Encik Yap di jawapan A4 Encik Yap, berdasarkan statement jawapan A4 ini, Encik Yap menyatakan telah mengambil tindakan terhadap Barisan Perdana. Okay soalan saya, mengapakah Plaintif mengambil tindakan terhadap Barisan Perdana? Sebab saya dah beli tanah ini dan geran tidak diberikan kepada kami oleh Barisan. Tambahan pula, tanah ini dikaveat oleh orang lain, maka saya mengambil tindakan terhadap kesemua pihak. Sebab saya telah tunggu amat lama, saya hanya tinggal satu pilihan iaitu mengambil tindakan undang-undang ke Mahkamah dan biar Hakim tentukan. Adakah tuntutan Encik Yap Berjaya terhadap Barisan Perdana? Berjaya. Adakah Encik Yap telah memperolehi geran yang dituntut daripada Barisan Perdana? Macam mana saya nak ambil geran itu, Pejabat Tanah pergi buka kaveat saya dan Barisan pergi jual dekat orang lain. Tanah ini dah jadi nama orang lain, macam mana saya nak pindah milik. Tiada dokumen, semua pun tak ada. [NOP at page 53] Okay, saya rujuk kepada muka surat 11 witness statement jawapan A3. Sorry, saya patah balik ya. Berdasarkan perenggan A3 ini, Plantif menyatakan telah memperolehi perintah untuk membatalkan kaveat Loh Yoon Chun. Setuju saya katakan dengan perintah 29 September 2011 ini, membolehkan pindah milik hartanah dibuat kepada Plaintif? Saya dah cakap tiada geran macam mana nak pindah milik. Kalau boleh pindah milik saya tak perlu lah buat tindakan kepada Mahkamah. [66] Given the testimony above, it is impossible for this Court to ignore the fact that the even if the Plaintiff’s Private Caveat was not removed by the 1st Defendant, the Plaintiff would not be able to register the title onto its name as it has never have the document of title of the said Land. This was indeed a part of the Plaintiff’s submission as well. Thus, regardless whether the Plaintiff’s Private Caveat was removed or not, the Plaintiff was unable to proceed with the transfer anyway. [67] Thus, the facts and circumstances of our present case are quite clear that: even if the 1st Defendant had not removed the Plaintiff’s Private Caveat, the Plaintiff would still unable to continue with the registration Thus, as far as this Court is concerned, the Plaintiff could still not be able to proceed with the transfer without the title deed even with if the Plaintiff’s Private Caveat has not been removed. This coupled with the other material facts of this case make the Plaintiff’s claim here untenable. [68] Thus, I am of the opinion that by applying ratio in Shaifulizam (supra) and Sum Kum case (as quoted in Shaifulizam), and the ‘but for’ test, it is clear that regardless of the removal of the Plaintiff’s Private Caveat, the Plaintiff would not be able to acquire the said Land. No title has even been in the possession of the Plaintiff. Thus, the registration of the transfer could not be done. The remoteness of damage is also not in favour of the Plaintiff as in any event the Plaintiff has never established itself as a bona fide purchaser. It does not have any caveatable interest over the said Land. [69] Next, I also find that the Plaintiff’s case is lacking in the sense that the Plaintiff has not called the lawyer, Ling Theng Book as its witness. Ling Theng Book was the Plaintiff’s lawyer in dealing with the sale and purchase agreement with Barisan Perdana. Throughout the trial, there were some key issues that only the lawyer himself could be able to answer. To some of the crucial questions posed by the Defendants’ counsels, PW1 has claimed no knowledge about them and that his lawyer should have done so. [NOP at page 22] Okay, sebelum dia tandatangan perjanjian itu, ada tak dia buat land search ke atas hartanah itu? Peguam saya telah lakukakn land search terhadap hartanah tersebut dan tiada apa-apa masalah dan suruh saya buat bayaran. Boleh tunjukkan dokumen land search sebelm kamu tandatangan perjanjian ini? Ada dokumen di sini? Ia telah lama, saya perlu tanya kepada lawyer samada dokumen tersebut masih wujud atau tidak. [NOP at page 24] Okay. Encik Yap, ada tak Encik Yap sendiri ataupun peguam Encik Yap buat satu carian company search ke atas Barisan Perdana? Tak tahu, perlu tanya peguam. Which peguam? Kesemuanya Ling Theng Book. Saya rujuk Enck Yap ke Ikatan Bundle B, B for Bangkok, muka surat 7 hingga 8. This is geran mukim untuk Lot 865 Mukim Semenyih. Soalan saya, pernah tak Encik Yap tengok dokumen asal ini sebelum tandatangan perjanjian? Saya tak beberapa ingat sebab ia telah lama. Yang saya ingat bahawa saya serahkan kesemuanya kepada peguam dan sekiranya peguam suruh saya sign, saya sign sahaja sebab saya buta huruf. … Yes ini. Berdasarkan dokumen ini, Barisan Perdana telah didaftarkan sebagai pemilik berdaftar pada 3 Jun 1998? Saya tak berapa tahu, saya serahkan kesemuanya kepada lawyer dan selepas semakan telah dibuat oleh peguam, peguam kata okay, tiada masalah dan saya beli. [70] During the trial, PW1 adamantly averred that in his testimony that his lawyer for the sale and purchase agreement, Ling Theng Book was the one who handled the transfer of the said Land and he has little knowledge of what happened. [PW1’s cross-examination, NOP at pages 39 – 40] Encik Yap, setuju kalua saya katakan bahawa bayaran yang Encik Yap bayar kepada lawyer, tak boleh dikeluarkan lagi kepada Barisan Perdana sehingga process jual beli telah selesai? Saya tak tahu, untuk saya selagai lawyer kata tiada masalah, saya buat bayaran sahaja. Encik Yap, saya rujuk kepada perjanjian jual beli Encik Yap dan Barisan Perdana yang mana perjanjian ini Encik Yap sendiri yang menandatangani. Saya rujuk di muka surat 6, maaf Yang Arif, saya cuba untuk… PD1: Maaf Yang Arif, page dia lari sedikit. Okay. Saya rujuk kepada klause 10, memandangkan ini adalah perjanjian jual beli antara Encik Yap dengan Barisan Perdana dan saya pasti Encik Yap telah membaca isi kandung perjanjian jual beli ini? Mana saya tahu, saya buta huruf. Tapi Encik Yap yang sign dokumen ini betul? Mana tandatangan saya? Tandatangan di muka surat 28. Ini tandatangan Encik Yap dan isteri bukan? Itu betul, peguam suruh sign, saya sign sahaja. Kandungan saya mana tahu. Berdasarkan klausa ini, setuju saya katakana secara ringkasnya, peguam Encik hanya boleh membuat bayaran kepada Barisan Perdana selepas 14 hari perserahan dibuat kepada Pejabat Tanah? Saya tak tahu. Jika Encik Yap tidak diberikan tanah tersebut, setuju saya katakan bahawa bayaran tidak boleh sepatutnya diberikan kepada Barisan Perdana? Yang saya tahu peguam suruh saya bayar, saya bayar sahaja. Saya mana tahu. Tapi tanah ini Encik Yap yang nak beli kan? Bukan peguam? Betul. [71] The Defendants’ counsel further submitted that PW1 himself was not aware or did not have any knowledge on whether the balance of the purchase price has been released to Barisan Perdana or not. PW1 affirmed this when questioned by the Defendants’ counsel, [NOP at pages 41 – 42] Tadi Encik Yap beritahu Encik Yap tahu lawyer ada buat bayaran. Encik Yap tahu atau tidak sebenarnya ni? JB: Soalan tadi itu bila? Bagitahu bila. Which bayaran also? PD1: Yang Arif, I’m referring to balance purchase price all these while Yang Arif. Okay, sebentar tadi dia ada jawab ke? PD1: Ya, tadi dia cakap dia tahu bayaran tersebut telah dibuat kepada Barisan Perdana namun dia tidak tahu bila. Okay, dari situlah soalan ini. Ya, jadi soalan saya nak confirm kan sebenarnya dia memang tahu bayaran tersebut telah dibuat. Saya tahu bila Barisan nak jual tanah ini, Barisan minta RM250,000. Jadi lawyer beritahu saya tiada masalah, so saya bagi RM250,000 itu kepada peguam dan peguam pun bayar kepada Barisan Perdana tapi RM430,000 itu saya tak tahu. Kebiasaan untuk pembelian tanah, down-payment mesti dibuat. [72] I am therefore agreeable with the learned Defendants’ counsels that adverse inference is to be casted upon the Plaintiff in such situation. The court is entitled to the best evidence available before it can be called upon for a decision and if the Plaintiff has failed to call a material or essential witness, the court is entitled to presume, in his absence, that his evidence would not be in favour of the Plaintiffs’ case. (See See Keng Wah v Lim Tew Hong [1957] 1 MLJ 137 & Section 114(g) of the Evidence Act 1950). [73] To further, I also rely on the Supreme Court case of Guthrie Sdn Bhd v Trans-Malaysian Leasing Corp. Bhd [1991] 1 CLJ Rep 155 where His Lordship Hashim Yeop Sani CJ (as page 158, para a-c) held that – “It must be appreciated in this case that the learned trial Judge had only the evidence adduced on behalf of the respondents and documents which speak for themselves. DW1 had no personal knowledge of what went on in respect of the transaction involving the two machines. It was not dispute that an important official of the appellants involved in the transactions was in fact on Bart Chew who signed the documents P1E and P2E. DW1 also stated that Mr. Mah Kim, the financial controller of the appellant company must also sign the certificate but Mr. Mah Kim was not called to give evidence. Another person who should have first-hand knowledge of the transaction was one Mr. Lazar Fredericks who was the credit controller of the appellant company at the material time. Mr. Lazar Frederick’s duty was to monitor the payments and to chase customers for money in respect of equipments sold by the appellants. He was also not called to give evidence. No reasons were given why all these persons were not called to give evidence. The learned trial Judge invoked s. 114(g) of the Evidence Act against the appellants and we think he was quite correct under the circumstances to do so.” [Emphasis added] [74] In the present case, the lawyer was never called upon even though he was often mentioned by PW1 in his testimony. The learned counsel for the Plaintiff contended that the lawyer should have been called by the Defendants if they wanted his testimony. Regrettably, for the reasons mentioned earlier, it should be called by the Plaintiff to establish its case. This, the Plaintiff has not done. Without the assistance of the testimony of the Plaintiff lawyer for the conveyancing, the Court would not be able to know the details of the conveyancing process of the said Land to ascertain the bona fide status and how far the Plaintiff has mitigated its losses. [75] As mentioned earlier, all these are crucial to establish the linkage of the damage with the alleged negligence/ mistake by the 1st Defendant. At this juncture, it is clear that even if the Plaintiff’s Private Caveat remained intact, there is no guarantee that the Plaintiff would obtain the said Land in its favour. It has never in possession of the title deed which would render the transfer in its favour impossible. Also, its position as an immediate purchaser purchasing the said Land from a vendor who has obtained the said Land by way of forgery means clearly that it has obtained no title or interest to the said Land. How then could the Plaintiff’s Private Caveat be sustainable? The proviso of Section 340(3) of the NLC is also not available to the Plaintiff on all counts. This deprives the Plaintiff the linkage to relate the alleged breach of duty by the 1st Defendant (in mistakenly removing the Plaintiff’s Private Caveat) with its alleged losses. [76] Besides, the Plaintiff has also failed to show to this Court that it had acted diligently in ensuring the transfer and registration for the title of the said Land. Clearly, the Plaintiff had obtained an order in its favour at the High Court but it has never proceeded with the registration. As sensibly submitted by the learned counsel for the Defendants, the Plaintiff simply blames the Defendants for its own failure. The Defendants’ counsels have highlighted a few cases in which I concurred. [77] In Dato’ Yasmeen binti Muhammad Shariff lwn Pentadbir Tanah Daerah Hulu Langat [2016] MLJU 1142 Her Ladyship Azimah Omar PK (as she then was) held in her judgment that the Defendant should not be held accountable and to suffer the consequences of the Plaintiff’s careless attitude in not filing the application under Form N within 6 weeks from the date of the Land Administrator’s award as provided under Section 38 of Land Acquisition Act 1960. [78] Likewise, in the case of Ganesan a/l A Veerappan dan satu lagi lwn Krishnan a/l Gopalan dan lain-lain [2021] MLJU 1117 where it was held at paragraph [40] that– “Bagi Mahkamah ini, nampaknya Plaintif Pertama cuba mempotretkan dirinya tidak mengetahui langsung mengenai tarikh 18.12.2020.; Mahkamah ini berpendapat bahawa percubaan Plaintif Pertama sebegini adalah sia-sia kerana di sini telah menunjukkan sikap sambil lewa Plaintif Pertama. Kalaulah betul Plaintif Pertama begitu serius untuk meneruskan tindakannya, perkara pertama seorang litigan yang serius dengan tindakannya adalah membuat semakan fail dan semestinya mahu mengetahui apa yang berlaku pada kesnya dan seterusnya dengan pantas memfailkan tindakan yang sewajarnya, namun Plaintif Pertama tidak berbuat demikian.” [79] Applying the same principle to our present case, the Plaintiff should have been more diligent, attentive and prompt in enforcing its rights upon the said Land. [80] The Plaintiff has thus failed to prove its case under this crucial element for any negligence claim. The alleged damage is too remove to be attributed to the 1st Defendant’s removal of the Plaintiff’s Private Caveat. C. Conclusion [81] To sum up, this Court find that the Plaintiff is unable to prove to this Court that the wrongful removal of the Plaintiff’s Private Caveat was in anyway not shielded by Section 22 of the NLC. Even if Section 22 of the NLC is not operative, the Plaintiff has also failed to show on the balance of probabilities that the damage (if any) suffered by the Plaintiff can be in any way attributed to the Defendants. As held by the Court of Appeal in the Appeals, the remedy available to the Plaintiff is to claim for contractual remedy against Barisan Perdana. I, therefore, order that this Suit be dismissed with costs. Dated: 16th June, 2022 Dr John Lee Kien How @ Mohd Johan Lee Judicial Commissioner High Court Malaya Kuala Lumpur For the Plaintiff Ekbal Singh Sandhu Messrs. Tetuan Azian & Co For the Defendants SFC Nur Irmawatie Daud SFC Amelia Masran State Counsel of Selangor Table of Authorities Cases Chua Seng Sam Realty Sdn Bhd v Say Chong Sdn Bhd & Ors and other appeals [2013] 2 MLJ 29 Dato’ Yasmeen binti Muhammad Shariff lwn Pentadbir Tanah Daerah Hulu Langat [2016] MLJU 1142 Elizabeth Chiew Yee Fung & Ors v Leong Fook Ngen & Ors [2001] 6 MLJ 403 Ganesan a/l A Veerappan dan satu lagi lwn Krishnan a/l Gopalan dan lain-lain [2021] MLJU 1117 Guthrie Sdn Bhd v Trans-Malaysian Leasing Corp. Bhd [1991] 1 CLJ Rep 155 Low Huat Cheng & Anor v Rozdenil Toni & Another Appeal [2017] 3 CLJ 257 Mohamad Salim bin Said & Ors v Tang Pheng Kee & Anor [2014] 3 MLJ 504 OCBC Bank (M) Bhd v Pendaftar Hakmilik, Negeri Johor [1999] 2 MLJ 511 Pendaftar Hakmilik Negeri Selangor & Ors v Shaifulizam bin Mohd Salleh & Anor and another appeal [2020] 5 MLJ 1 See Keng Wah v Lim Tew Hong [1957] 1 MLJ 137 Statutes Section 340 National Land Code 1965 Section 114(g) Evidence Act 1950