Tan Tay Vui v MC Global Sdn Bhd (S-02(NCvC)(W)-854-04/2017)

1 IN THE COURT OF APPEAL, MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. S-02(NCvC)(W)-854-04/2017 BETWEEN TAN TAY VUI ... APPELLANT (NRIC No. 701220-12-5465) AND MC GLOBAL SDN BHD ... RESPONDENT (Company No. 879424-X) [In the Matter of the High Court in Sabah and Sarawak at Sandakan Civil Suit No. SDK-22NCvC-22/8-2015 Between Tan Tay Vui … Plaintiff And MC Global Sdn Bhd … Defendant] (Company No. 879424-X) 2 CORAM: TENGKU MAIMUN BINTI TUAN MAT, JCA (now CJ) MARY LIM THIAM SUAN, JCA YAACOB BIN HAJI MD SAM, JCA JUDGMENT OF THE COURT Introduction [1] In essence, the appellant was in Court to invalidate two agreements: a joint venture agreement [JVA] and a Deed of Power of Attorney [DPA], both dated 22.3.2010 on inter alia the ground of lack of certainty. The appellant further sued the respondent for breach of JVA; and trespass. The reliefs sought included– i. a declaration that the JVA and the DPA had contravened section 30 of the Contracts Act 1950 due to uncertainty and was thus voidable at the election of the appellant; ii. a declaration that the JVA and the DPA had contravened sections 11 and 12 of the Weights and Measures Act 1972 and

Schedule 1 of the National Measurement System Act 2007 by reason of the unit of measurement “acres” as used in the JVA and the DPA; 3 iii. a declaration that the JVA and the DPA are void or voidable at the appellant’s election as the respondent had breached the JVA and DPA and/or violated Article 13 of the Federal Constitution; iv. an order that the respondent return possession of certain “excess areas”; v. a declaration that the appellant is entitled to select “2 units (of 2 storey intermediate Shop/Office) from any location with the mutual consent of the respondent based on the appellant approved development plan.” [2] The appellant originated his claim against the respondent by way of an Originating Summons [OS] which was then ordered to be converted to a writ. A full trial subsequently ensued with the appellant calling 4 witnesses including himself while the respondent called 3 witnesses. After written and oral submissions, the appellant’s claim was dismissed on 29.3.2017 on the principal ground that the claim was not proved. Being dissatisfied, the appellant appealed. [3] After hearing learned counsel for the respective parties before us on 6.8.2018, we adjourned the matter for consideration. [4] On 8.8.2018, this Court unanimously dismissed the appeal with costs after finding that there was no appealable error in all the findings of the learned Judicial Commissioner [as His Lordship then was] [learned JC]. We found that the learned JC had considered all the issues canvassed and we 4 also found that the learned JC could not be said to have been plainly wrong to warrant appellate intervention by this Court. Salient facts [5] This is the Sandakan Town Board Plan of 2003 for the relevant area [see page 535 of the record of appeal]: [6] The appellant, together with two others, Chin Yu Hai @ Chin Hen Wah [DW2] and Tan Yew Hun jointly own Lot CL 075209433 held under a country lease and located in the District of Sandakan measuring “5.142 acres more or less” [the Land] – see shaded area in the above Sandakan Town Board Plan. DW2 and Tan Yew Hun are brothers as was the appellant’s late father. 5 [7] The area to the north of the Land [or top of the plan as shown above] had already been developed and the appellant as well as the other joint landowners were desirous of developing the Land. There were already several unsuccessful prior attempts with other developers. [8] DW2 and the appellant’s brother, Tan Tay Gim, a qualified quantity surveyor, representing all three landowners successfully negotiated with the respondent on the development of the Land. [9] All three joint landowners signed the JVA and DPA, both dated 22.3.2010, with the respondent. The object of the JVA being to develop, at the respondent’s own costs and expense, “an area of 2.199 acres more or less of the said Land” into commercial development comprising 25 units of mixed two (2) and or three (3) storey Shop/Office subject always to the approval and the requirements of the appropriate authority” [the said Land] subject to the terms and conditions as found in the JVA. [10] In return, under clause 8 of the JVA, the appellant and the other landowners, were entitled to “six units of two (2) storeys intermediate Shop/Office where the location of each unit is to be deemed at the mutual consent of the Landowners and the Developer based on the approved Development Plan. The Developer shall deliver the Landowners Entitlement free from encumbrances and costs in accordance to the provisions herein this Agreement.” 6 [11] Pursuant to the DPA, all three landowners appointed and authorized the respondent to be “the Donor’s true and lawful Attorney for and in the Donor’s name or in the name of the Attorney to do all or any of the following acts and things in relation to including any instrument(s) and or document(s) in connection from the Land and or the said Land” for the purposes of the JVA. A site plan or sketch plan was attached to the DPA [see page 493 of the record of appeal]: [12] The said Land was duly developed in accordance with the approval and requirements of the local authority, in this case, Majlis Perbandaran Sandakan [MPS]. Amongst the conditions imposed by MPS vide letter dated 11.10.2011 was that the respondent was required “to construct the access road to link the existing carriageway of the adjacent development and shown clearly in solid lines on plan” – see page 536 of the record of appeal. 7 [13] By letter dated 6.2.2014, the respondent notified the appellant to inter alia choose his two units of entitlement. Vide letter dated 8.2.2014, the appellant chose 2, “Lot No. 21 and 22 of two (2) storeys intermediate shop/office as my entitlement”. See pages 516 and 544 respectively in the record of appeal. [14] On 5.2.2014, the appellant caused a survey to be done on the said Land. The survey plan completed by Jurukur TN Wong Sdn Bhd dated 15.9.2014 is found at page 495 of the record of appeal: [15] The appellant claimed the survey showed that instead of 2.199 acres being developed, the respondent had developed 2.405 acres, an increase of 8 0.206 acres. The survey further showed that a “reserve road” mentioned on the site plan attached to the DPA “had been converted to a tarred road adding another 0.509 acres.” The total increase areas of 0.715 acres being referred to as “excess areas”. According to the appellant, this meant that Lot CL 075209433 was reduced “to 2.23 acres only in breach of the JVA”. [16] The appellant sued the respondent for the reliefs earlier mentioned claiming that-i. the respondent had “unreasonably exceeded by 0.715 acres in total in breach of the terms of the JVA”; ii. he had not “surrendered this excess areas for the benefit of the Defendant’s development”; iii. the respondent had “hijack further 0.715 acres from the limited land area of 5.142 acres (of which the plaintiff is 0.3333 share owner) without notice, agreement and compensation”; iv. the respondent had “hijack ‘reserve road’ or ‘tarred road’ (as it is now) for the benefit of getting approval by MPS or otherwise without compensation in contravention of Art 13 of the Federal Constitution”; v. the respondent had failed to deliver practical completion of the 6 units of shoplots to the landowners and that was no Issuance of Practical Completion as certified by the Consultant as per clause 5.3 of the JVA in which case the JVA was “terminated” on 10.11.2014; 9 vi. the respondent had deprived the appellant of his share of his entitlement as per JVA and had thus suffered loss and damage due to excess areas and trespassing by the respondent; vii. the JVA was “void for uncertainty as the term “more or less” is indefinite (see section 30, 74, 75 of Contracts Act 1950)”; viii. the measurement unit of “acres” in the JVA is in breach of section 5 of National Measurement System Act 2007 and Weights and Measures Act 1972 and the JVA was thus void. [17] In resisting the claim, the respondent relied on the terms and conditions of the JVA and DPA besides pleading inter alia as follows: i. it was an understanding between the parties that the acreage of 2.199 acres more or less as stated in the JVA was merely an estimation; ii. the 0.206 acres was within the scope of 2.199 acres more or less; iii. the 0.509 acres of reserve road mentioned in the site plan was clearly marked in the plan attached the DPA; iv. the parties had mutually agreed that all the shoplots would be built on the left side of the said Land with the existing road reserve to be used as a boundary line; v. had the road serving the project being built on the left side of the said Land, the land available for developing the 25 shoplots would have been significantly affected as would the appellant’s entitlement; 10 vi. out of goodwill, the respondent left the appellant’s entitlement “undisturbed”; vii. the road reserve had been gazetted by the local authority and all parties are deemed to have actual knowledge of the same; viii. the appellant and his representative had prior knowledge of the existence of the road reserve as they were involved in previous proposed joint venture arrangements and/or development with other developers; ix. relevant copy of the development plan was given to the appellant and/or his representative at the material time; x. the appellant had chosen lots 21 and 22 as his entitlement under the JVA; xi. the appellant’s claim is time barred under section 3 of the Limitation Ordinance (Sabah Cap 72); item 30 of the Schedule. [18] From the pleadings and suggestions of both parties, the learned JC identified the following to be the relevant issues for determination: i. whether the JVA and DPA are void for using ‘acres’ and ‘more or less’; ii. whether the JVA and DPA are terminated for failing to satisfy clause 5.1 of the JVA. In the event of termination, sub-issues on trespassing and limitation; iii. whether the development had breached the JVA and DPA by exceeding the agreed development area by 0.705 acres; 11 iv. whether the excess in land use of 0.705 acres for the development was justified under the JVA and understanding of the parties. Decision of the High Court [19] After going through the evidence, the learned JC made the following findings. [20] In relation to the first question, His Lordship found that the appellant’s contention that the JVA and PDA were void for uncertainty under section 30 of the Contracts Act 1950 to be without any basis. [21] On the issue of whether the JVA and PDA had been terminated by reason of breach of clause 5.1 of the JVA, the learned JC found that the respondent had in effect satisfied clauses 5.1 and 5.2 of the JVA in which case the JVA and PDA were valid and subsisting. Consequently, the issue of trespass did not arise. [22] The last two issues were taken together. Here, the learned JC agreed with the respondent that the appellant’s complaints were without basis. Not only had the appellant admitted to knowing of the existence of the road reserve; he had also received various documents which clearly indicated the existence and location of the road reserve. Amongst such documents was a preliminary sketch plan received by the appellant before signing the JVA 12 and PDA; a site plan attached to the DPA and a development plan, all clearly showing the location of the road reserve, the shoplots and the boundary line between the road reserve and the shoplots. There was also the town and country plan which similarly indicated the location of the road reserve. [23] The learned JC invoked the principle of estoppel against the appellant finding further that despite the matters mentioned above, the appellant never disputed the manner of construction at any point in time; that the appellant even had the respondent build a small road from the road reserve to his residence. The respondent was therefore entitled to rely on the appellant’s conduct and proceed to accordingly complete the construction. [24] The learned JC further found it “impossible to declare the JVA void because the shoplots had been fully built with OC issued”; noting that without construction of the road reserve, the development or the project would not have been approved and the appellant would “never get his 2 units of shoplots. The manner in which the construction has been done is in accordance with the intention of the parties and for the benefit of all the parties”. Our deliberations and decision [25] There were no less than 12 grounds of appeal identified in the memorandum of appeal. At the hearing of the appeal before us, these were the principal issues canvassed- 13 i. that the learned JC erred in law and in fact in holding that the JVA and the DPA were not void for using the words “more or less: and the unit of measurement “acres”; ii. that the learned JC erred in law and in fact in holding that the JVA and the DPA were not terminated in view of clause 5.1 of the JVA. [26] In the event the appellant was successful in establishing his case on the first basis of uncertainty, the appellant wanted the respondent to be ordered to return the land title and give vacant possession to the appellant and the other landowners. As for the second basis, if successful, the respondent was to be ordered inter alia to cease and desist from applying the excess areas for any or all purposes and to revert to its original natural state forthwith together with damages. Uncertainty & illegality [27] In a nutshell, the appellant alleged that the JVA and DPA were void for uncertainty due to the use of the words “more or less” and, for violating the Weights and Measures Act 1972 and the National Measurement System Act 2007 in that the unit of measurement of the Land and the said Land in the JVA was in “acres”. [28] From what we can discern from the JVA, the words “more or less” appear twice in the JVA, and both times it is in the preamble to the JVA: 14 WHEREAS: A. The Landowners are the registered and beneficial owner of a parcel of land held under Sandakan Country Lease No. 075209433 containing 5.142 acres more or less and situated at Mile 8, Jalan Labuk, in the district of Sandakan, Sabah, Malaysia (hereinafter referred to as “the Land”). B. The Landowners are desirous of developing an area of 2.199 acres more or less of the said Land (the portion of the Land to be developed shall hereinafter referred to as “the said Land”) into a commercial development comprising approximately twenty five (25) units of mixed two (2) and or there (3) storey Shop/Office subject always to the approval and the requirements of the appropriate authority (hereinafter referred to as “the Development”) C. The Landowners are desirous of appointing the Developer to undertake, carry out and complete the Development at the Developer’s own costs and expense and the Developer is desirous of accepting such appointment on a Joint Venture basis and upon the terms hereinafter provided. [emphasis added] [29] In the first reference, it was in relation to the whole land which the appellant co-owned with two others. In the second, it was in relation to the portion of the whole land which was being developed and formed the subject matter of the JVA. [30] This plea of the JVA being void for uncertainty is actually an alternative plea in the appellant’s claim – see paragraph 42 of the Statement of Claim: 42. In the alternative, Plaintiff avers the JVA is void for uncertainty as the term “more or less” is indefinite (see Section 30, 74, 75 Contracts Act 1950). 15 [31] The element of certainty is required to ensure that agreements made may be executed and performed without issue. It is required so that the critical elements for the formation of a valid contract may be established. Those elements being that there is an intention to create legal relation, subject matter and consideration; all these elements being ascertained objectively. This is reflected in section 30 of the Contracts Act 1950 which states: 30. Agreements, the meaning of which is not certain, or capable of being made certain, are void. [32] It is the appellant’s argument that because the words “more or less” import the meaning of indefiniteness, there is uncertainty. However, nowhere in the submissions before us or at the High Court, or even in the evidence of the appellant himself does he quite explain how these words, “more or less” have rendered the JVA, the agreement itself, or even the DPA, uncertain and thereby void. [33] Section 30 provides that agreements are void where the meaning of the agreement is not certain, or where the meaning of such agreement is not capable of being made certain. It is the meaning of the agreement which requires certainty and not particular word(s) used because the meaning of any of the words or terms in the agreement may be gleaned from reading the whole agreement, and not the particular words complained of in isolation. 16 [34] The whole object of construing or interpreting any agreement is to determine the real intention of the parties so that effect can be given to their bargain. When construing and interpreting commercial agreements, the Court frequently reminds itself to give business efficacy to the agreements made, upholding them as opposed to examining them as if some lab specimen under a scientific microscope, subjecting each and every word used in the agreement to the kind of scrutiny that one may deploy in a language and grammar exercise. [35] What the Court does is to presume that each word used in the agreement was intentionally chosen for a purpose, and then proceed to give the words used their plain and ordinary meaning. A purposive construction will be engaged where it gives the words used a meaning that would accord with the purpose of the agreement. [36] The Federal Court has expressed clear guidelines in SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 CLJ 177; [2016] 1 MLJ 464 on how contracts ought to be interpreted: [34] Where the natural meaning of the contract is not clear and in the particular absence of words to the effect mentioned above, the principles in ICS in their qualified form (see [28] which qualifies its application vis-à-vis rectification), remain applicable and relevant to the construction of the construct such as to enable the court to objectively determine "the meaning which the contract would convey to a reasonable person having all the background knowledge ... available to the parties. 17 [35] The principles of Lord Hoffman were summarised in Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 CLJ 269; [2010] 1 MLJ 597 at p. 296 CLJ; [42] 620G (MLJ). Gopal Sri Ram FCJ, who delivered the leading judgment of the court stated: “Here it is important to bear in mind that a contract is to be interpreted in accordance with the following guidelines. First, a court interpreting a private contract is not confined to the four corners of the document. It is entitled to look at the factual matrix which forms the background to the transaction. Second, the factual matrix which forms the background to the transaction includes all material that was reasonably available to the parties. Third, the interpreting court must disregard any part of the background that is declaratory of subjective intent only. Lastly, the court should adopt an objective approach when interpreting a private contract.” [37] Inferences may also be drawn from the conduct of the parties in order to assist in that construction and interpretation. This was explained in the Supreme Court decision of Ayer Hitam Tin Dredging Malaysia Bhd v YC Chin Enterprises Sdn Bhd [1994] 3 CLJ 133: A clear and helpful an enunciation of the principles as any which should guide the Court in determining the ever recurring question of whether there has been a contract between the parties is provided by Saville J in Vitol B.V. v Compagnie Europeene des Petroles [1988] 1 Lloyd's Rep 574 at 576 in the following words: The approach of the English law to questions of the true construction of contracts of this kind is to seek objectively to ascertain the intentions of the parties from the words which they have chosen to use. If those words are clear and admit of only one sensible meaning, then that is 18 the meaning to be ascribed to them - and that meaning is taken to represent what the parties intended. If the words are not so clear and admit of more than one sensible meaning, then the ambiguity may be resolved by looking at the aim and genesis of the agreement, choosing the meaning which seems to make the most sense in the context of the contract and its surrounding circumstances as a whole. In some cases, of course, having attempted this exercise, it may simply remain impossible to give the words any sensible meaning at all in which case they (or some of them) are either ignored, that is to say, treated as not forming part of the contract at all, or (if of apparent central importance) treated as demonstrating that the parties never made an agreement at all, that is to say, had never truly agreed upon the vital terms of their bargain. [38] Applying those principles to the factual matrix of this appeal, we find the JVA is not in the least uncertain even with the presence of the words “more or less”. It seems to us quite clear what the contracting parties had agreed to, their terms and conditions; and why those words were incorporated into the JVA. [39] Although the appellant had relied on the case of Brawley v US (96 US 168 (1877) at 172) to suggest that the JVA is invalid because the 0.2 acres is not accidental, we are of the view that the size of the Land to be developed was not a material consideration in the JVA. In any case, the respondent never suggested the impugned words to be accidental. What was and is material in the JVA was the development of the said Land into a commercial development comprising 25 units of shoplots/offices; that this development 19 was to take place on the left side of the said Land with the road reserve of 0.5 acres forming its boundary; that the appellant and the other co-owners of the said Land will enjoy their entitlement, as defined in the JVA. All this was to be completely at the respondent’s costs and expense; the appellant and the co-owners came up with the land or site for the commercial development and in return, each would receive their respective entitlement of 2 units of shoplots/offices. [40] There is no dispute that the parties were ad idem in making the JVA and DPA, with the appellant’s brother, Tan Tay Gim and DW2, representing him and the other landowners in the negotiations. It is also not in dispute that the negotiations materialized into the JVA and DPA, which the appellant signed without complaint. In fact, the appellant’s brother saw to the inclusion of the site plan as set out earlier. The appellant did not call his brother to testify. The learned JC had drawn an adverse inference from this failure to call Tan Tay Gim. We have no reason to disagree. [41] Thus, the written documentation of agreement, the JVA and the DPA must be the sum total of their agreement. Sections 91 and 92 of the Evidence Act 1950 prohibit the introduction of any other evidence to contradict or vary such agreement. [42] There is clear identification of the said Land and the consideration; that the purpose of the JVA was for the joint development of the said Land into 25 shoplots/office of two and or three storey at the full cost and expense of 20 the respondent and where the appellant, like his co-owners, will each receive two of those completed shoplots/office. [43] The parties were clear in their deliberate choice of the words “more or less” since it was even used to describe the appellant’s own land before it was used to describe the portion that was being developed. Surely the appellant would know his own land of which there is a land title, and the use of those words does not alter that knowledge. [44] The appellant did not, for any moment, suggest that the presence of those words brought about a measure of uncertainty to the extent that he or even the respondent was unsure or uncertain which lands of the appellant formed the subject matter of the JVA. There were/are no other lands involved in the JVA. The same may be said of the relevant portion that was developed and which formed the substratum of the JVA. [45] All this is further reflected in the conduct of the parties wherein the appellant was never in any quandary or confusion whatsoever as to any mistaken or wrongful development of the said Land. On the contrary, the said Land was developed without issue. Even the appellant’s witness, Yap Siew Hen [PW2], an engineer attached to MPS and who signed the relevant correspondence from MPS, testified that there was a boundary line between the left portion of the Land where all the shoplots were constructed and the disputed road reserve as marked out in the Sandakan Local Plan 2003. This was further verified by the testimony of DW2. 21 [46] In any event, the presence or use of the words was adequately explained by the respondent’s witnesses one of whom was DW2, a joint landowner. We understand that DW2 is related to the appellant; he is his uncle. DW2 as did DW3 explained that these words were used at the material time because the parties had not done any survey before drawing up the JVA. Hence, the use of the words, “more or less”, was to indicate an estimation. [47] In our view, the use of these words actually serve to indicate the intent of the parties, including the appellant. Since a proper survey had yet to be done on the Land and the said Land at the time of the JVA and DPA, these words indicate that the parties were intent on ensuring the JVA and DPA remain valid and enforceable even if a survey subsequently shows up any discrepancies in the acreage of the Land or even the said Land. This reading accords with the intent of the whole JVA, which is to jointly develop the said Land commercially into at least 25 units of shoplots or offices with 2 units for the appellant; and ensure its successful completion. [48] We further agree with the respondent’s submission that the development of 0.2 acres more of the said Land [2.408 acres instead of 2.199 acres] does not affect the above findings. The difference of 0.2 acres, as ascertained in the survey, is de minimis and well within the meaning and scope of the words, “more or less”. Similarly and for the same reasons, the development of the road reserve, measuring 0.5 acres does not alter the above conclusion. The appellant’s complaint is therefore without merit. 22 [49] The appellant had also contended that the JVA and DPA were void because the Land and the said Land were described in terms of acres instead of metres, contravening thus the Weights and Measures Act 1972 [Act 71] and the National Measurement System Act 2007 [Act 675]. [50] Like the learned JC, we also find this complaint without merit. The title to the Land and thereby the said Land was issued by the Land Office, Sandakan, Sabah on 26.9.1966. Act 71 only came into force on 1.1.1981 vide PU(B) 1/1981 while Act 675 came into force on 15.2.2008 vide PU(B) 44/2008. [51] Pursuant to section 5(3) of Act 675, the validity of the measurement as appearing in the land title and thence used by the appellant himself in the JVA, is not affected by the enactment of Act 675 because the unit of measurement of “acre” as appearing in the title to the Land was the unit of measurement of that measurable quantity at the time the measurement was made. We have set out section 5 for convenience and it reads as follows: Measurement to be expressed in units of measurement 5.(1) Upon the coming into operation of this Act, every measurement of measureable quantity shall be made in compliance with the requirements under this Act, and if not so made the measurement shall be considered void. (2) If- (a) reference is made in any other written law to a unit of measurement of a measurable quantity; and (b) there is another unit of measurement of that measurable quantity having the same name, 23 the reference shall, unless the contrary intention appears, be deemed to be a reference to the units of measurement under this Act. (3) Nothing in subsection (1) shall be taken to affect the validity of any measurement made in the unit of measurement of a measurable quantity that, at the time the measurement was made, was the unit of measurement of that measurable quantity. [52] At the time of issuance of the title to the Land in 1966, the unit of measurement was in acres, as provided under the Weights and Measures Ordinance of Sabah (Cap 155) – see section 3 read with Schedule 1 for superficial measure: 3.(1) Uniform weights and measures shall be used throughout the Colony and the only unit or standard measure of extension from which all other measures of extension whether lineal, superficial or solid, shall be ascertained shall be the imperial standard yard and the only unit or standard measure of wright from which all other weights and all measures having reference to weight shall be ascertained shall be the imperial standard pound, and the only unit or standard measure of capacity as well for liquids as for dry goods shall be the imperial standard gallon. (2) The parts and multiples of the said units or standards shall be respectively computed according to the table set forth in the First Schedule. [53] In the First Schedule, the superficial measure is as follows: Inches:- 144 1 Foot 1,296 9 1 Yard 39,204 2721/4 301/4 1 Pole 1,568,160 10,890 1,210 40 1 Rood 6,272,640 43,560 4,840 160 4 1 Acre 24 [54] Cap 155 came into force on 1.2.1915 and was repealed and replaced by Act 71. The position of its application and thereby the validity of the units of measurement then used is covered by section 5(3) of Act 675. Clearly, the unit of measurement as first used in 1966 and as appearing in the title documents of the Land and as appearing in the JVA and the DPA, that is “acres”, remains valid. [55] We must add that the description of the unit of measurement as “acre” instead of hectares does not in any case invalidate the JVA or the DPA. There is still section 33 of Act 71 which allows for the conversion of the old unit of measurement to the new International System of Units. This in turn will render the JVA and DPA capable of being certain, within the meaning and intent of s 30 of the Contracts Act 1950. [56] We agree with the learned JC that the presence of the impugned words of “more or less” and “acres” does not render the JVA and the DPA void as the intention of the parties could still be readily discerned. This is reflected in the fact that there was no impediment or detrimental effect on the execution of the JVA and DPA. The parties set about, quite uneventfully, implementing the JVA, with the development/project completed before the appellant sought to invalidate the JVA on ground of uncertainty. Had there been uncertainty as to the size, extent or even meaning or location of the development or any aspect of the JVA, there would have been evidence to that effect. 25 [57] Instead, the appellant sat silent without complaint throughout the construction period of the development/project, asking only for the access road to his house to be tarred; and most significantly made his choice of his entitlement under the JVA without complaint or issue. [58] Finally, we must add that clause 4.2 of the JVA had anticipated the very matter now complained of by the appellant. It reads as follows: Development 4.1 The Developer shall at its sole cost and expense carry out Development… 4.2 The area of the Development Units shall include space taken up by the outer walls of the building and up to the outer surface of dividing or part of walls and shall further include space exclusively for the use calculated up to the external perimeter or surface of walls. In the event of any dispute as to the actual area the decision of the Developer’s architect of the Project shall be final and binding as between the parties. It is expressly agreed and declared that the position of the Development Units in relation to the other properties as shown in the Development Plan and other layout plan and the measurements boundaries and area as given herein are believed but not guaranteed to be correct. The Development Units will be set out and surveyed in accordance with the Development Plan and other layout plan and Building Pan by the Department of Lands and Surveys of the state of Sabah (hereinafter referred to as “the said Department”). If it shall be found upon final survey by the said Department that the position, measurements, boundaries and area of the Development Units is different from that shown on the plans 26 hereto, no such discrepancy or inaccuracy shall annul this Agreement or be subject to any claim for loss damages or compensation. [emphasis added] [59] Clause 4.2 of the JVA quite clearly has provided that the JVA will not be avoided by reason of any discrepancy in measurement; and that no claim for any loss, damage or compensation may ensue from such discrepancy, if one exists in the first place. [60] We thus agree with the findings of the learned JC and hold that this ground is also without merit. Excess areas [61] We deal now with the matter of the excess areas. This really was the heart of the appellant’s real complaint; that the respondent had utilized the road reserve and built an access road on that reserve instead of building the road within the said Land. The appellant had taken the position that there was nothing in the JVA that referred to the road reserve, whether to build on it or what is to be done. This then meant that the respondent had exceeded the agreed development area by 0.705 acres in which case the respondent had breached the terms and conditions of the JVA; that there was no justification for the excess in land use; committed trespass and had deprived the appellant of compensation under Article 13 of the Federal Constitution. 27 [62] As the learned JC put it, the appellant’s contention here was that the respondent “should only develop on 2.199 acres and not more than that” whilst the respondent explained that the “excess land use for the development was justified.” Of the excess land, 0.2 acres was for the development of the “25 units of mixed two (2) and or three (3) storey Shop/Office subject always to the approval and the requirements of the appropriate authority” and 0.5 acres was for the road access. [63] Having examined the record of appeal, we are satisfied that it was proper for the learned JC to conclude that the respondent was not in breach of the JVA or the DPA when the development was undertaken by reason of the excess areas. Aside from the reasons already discussed, the respondent had proven that the other joint landowners had actually agreed that an access road for the development which was required by MPS, be built on the existing road reserve. DW2 had testified to this effect: that he and Tan Tay Gim had offered the respondent to build the shoplots on the left portion of the said Land with the access road of 20 meters wide to be built on the road reserve, as indicated in the Town and Country Plan [Sandakan Town Board Plan]. [64] More than that, the access road was a requirement imposed by MPS before approval for development would be given – see MPS’ letter dated 11.10.2011 [page 536] and as confirmed by the appellant’s own witness, PW2, in his testimony in Court. Using the mandate and authorization as irrevocably conferred under the DPA read with the JVA, the respondent complied with that requirement – see respondent’s letter dated 17.10.2011 28 at page 607 of the record of appeal. On 10.11.2011, MPS approved the development – see page 608 of the record of appeal. [65] Further, this requirement of MPS is consistent with the Sandakan Town Board Plan 2003 which had clearly demarcated the road reserve for a long while before the development in 2011. The development plan as approved sees to the implementation of that demarcation. We also understand that the construction of the road access actually joins or continues the adjacent road access from the earlier development located to the north of the said Land. Contrary to the appellant’s concerns of this road access leading nowhere, the Sandakan Town Board Plan indicates clear road accesses for the whole area, both existing and future. [66] The respondent, through their architect [DW1] and its director, Chan Chu Fatt [DW3], had also explained that had the road access been built on the left portion of the said Land where all the shoplots/offices were located, the development would have been compromised. The respondent would not have been able to build 25 units of shoplots/offices and still offer the appellant and the other joint landowners their entitlement of two units each. [67] With all these reasons we are amply satisfied that the learned JC had not erred in his evaluation of the evidence and the law in concluding that the excess areas had been properly and justifiably accounted for. [68] We also agree with His Lordship that Article 13 of the Federal Constitution does not apply in the particular facts. Article 13 reads as follows: 29 Rights to property (1) No person shall be deprived of property save as in accordance with law. (2) No law shall provide for the compulsory acquisition or use of property without adequate compensation. [69] There is no deprivation of property, compulsory acquisition or use of the appellant’s land in any sense. This was an entirely commercial and business decision made by the appellant and the other co-owners. The adequacy of consideration is never a basis to invalidate any contract, the JVA and DPA are no exceptions. We also do not find any deprivation of property; the appellant did not complain throughout the duration of the development; and he has unreservedly and unequivocally chosen his entitlement from the development. [70] Under these circumstances, it will be wholly unjustifiable for the appellant to complain. Clause 5.1 of the JVA [71] The next complaints of the appellant pertain to the matter of delay in the completion of the development/project and the delivery of his entitlement under the JVA. [72] The appellant complained that the respondent was in breach of clause 5.1 of the JVA when it failed to deliver his entitlement within the 36 months period stipulated in clause 5.1. At the same time, the appellant also took 30 issue with the excess areas as being a breach of the JVA; also a breach within the meaning of clause 5.1. In both instances, the appellant contended that he was consequently entitled to terminate the JVA and DPA. Having terminated the JVA, the respondent was alleged to have committed trespass. [73] Clause 5 of the JVA reads as follows: 5. TIME FOR COMPLETION 5.1 The Developer hereby covenants and undertakes with the Landowners that it shall carry out the Development in phases to be determined at the absolute discretion of the Developer and shall complete the Development of each phase of the Development within thirty-six (36) months from the date of approval of the Building Plan of each phase of the Development. 5.2 The Landowners’ Entitlement referred in this Agreement shall be in the first phase and shall be completed free from encumbrances within thirty-six (36) months from the date of approval of the Building Plan for the first phase (hereinafter referred to as “the Delivery Date”). Upon issuance of Certificate of Practical Completion by the Developer’s architect, the Developer shall let the Landowners to have the vacant possession of the Landowners’ Entitlement and vacant possession of the Landowners’ Entitlement shall be deemed to have been delivered to the Landowners regardless of whether or not the Landowners actually entered into occupation or taken possession of the Landowners’ Entitlement upon the expiration of a fourteen (14) day notice from the Developer to the Landowners to take possession of the Landowners’ Entitlement, such notice to be duly accompanied with a copy of the Certificate of Practical Completion. 5.3 The Development shall be carried out in phases and in accordance with the Completion in this Clause means Practical Completion as certified by the Consultants. [74] We will deal with the matter of the delay of completion first. 31 [75] The appellant’s case is that the Building Plan was approved on 10.11.2011 in which case, the respondent was obliged under clause 5.1 to deliver his entitlement by 10.11.2014. The respondent notified the appellant vide letter dated 6.2.2014 that the development was completed. The respondent attached a Certificate on Stage of Work Done to date to the notice. The appellant was asked to select his two units. The appellant did so vide letter dated 8.2.2014. [76] It was the appellant’s case before the learned JC that the Certificate on Stage of Work Done to date was not the Certificate of Practical Completion mentioned in clause 5.2 and 5.3 in which case, the respondent was in breach of the JVA. Furthermore, the respondent had applied for an Occupation Certificate (OC) in March 2015, fortifying his case that the respondent was in delay and in breach, justifying the appellant’s termination of the JVA. [77] The learned JC disagreed finding that there was compliance of clause 5.1; that the appellant had selected Lots 21 and 22 without issue. As for the Certificate of Practical Completion, the learned JC accepted the evidence of DW1 [Jebb Liew Kim Kiong], the architect who testified that the Certificate of Stage of Work Done dated 17.12.2013 was equivalent to the Certificate of Practical Completion [CPC]. [78] On the matter of the date of completion of the development, the appellant submitted that since no CPC has been issued to date, there is no 32 completion within clause 5.1. That would mean that the respondent is further in breach of clause 5.2 of the JVA. [79] Having read clause 5 in its entirety, we hold that clause 5 deals with 2 matters: that of completion of the development project; and the Landowners’ Entitlement. Insofar as the first matter is concerned, that is covered under clause 5.1 while the latter is covered under clause 5.2. [80] Clause 5.1 requires the respondent to develop the project or the development in phases. Each phase is to be completed within 36 months from the date of approval of the Building Plan for the relevant phase. Since the Building Plan was approved on 10.11.2011 and there is no suggestion of any other Building Plan, the completion date shall be on or before 10.11.2014. [81] The respondent offered the Certificate of Stage of Work Done dated 17.12.2013 as evidence of completion before 10.11.2014. This was accepted by the learned JC. [82] We agree. There are no other prerequisites for the respondent to meet in the matter of completion save the terms found in clause 5.1. In our view, the Certificate of Stage of Work Done dated 17.12.2013 is sufficient evidence of completion by the date stated therein; a date which is obviously well before 10.11.2014. That completion further includes completion of the units which form the Landowners’ Entitlement. 33 [83] As for the appellant’s entitlement as Landowner under clause 5.2, we are of the view that there is similarly no breach established. Clause 5.2 obliges the respondent to let the appellant, as landowner, have vacant possession of his entitlement “upon issuance of Certificate of Practical Completion by the Developer’s architect”. If the appellant is arguing that the respondent has to date, not issued the CPC, then the offer by the respondent to the appellant vide letter dated 6.2.2014 was in fact, premature. The appellant did not complain or raise this. [84] In our opinion, the appellant had accepted and made his selection of his entitlement even though it was open to him to ask for the Certificate of Practical Completion for the purposes of making his selection under clause 5.2. He did not. Again, it is too late for him to complain. [85] The appellant cannot complain because the truth and reality is he had accepted the offer, made his choice and had selected his two units of entitlement, Lots 21 and 22; and had done so without any issue. The doctrine of estoppel and waiver would operate entirely against the appellant and it would be wholly unjust to permit the appellant to renege on his own actions relied on by the respondent. [86] The respondent was thus not in breach of the JVA in any of the respects complained of. The appellant therefore had no right of termination or even a right to damages. The learned JC was thus correct in finding no consequential trespass. 34 [87] In such circumstances, we are firmly of the view that the appellant’s grievances are without basis and the learned JC had quite properly dismissed these complaints. [88] Finally, the grounds raised against the learned JC himself. The appellant complained that the learned JC was not impartial during the proceedings, that he ought to have appreciated that the appellant, not being a legal practitioner, ought to have been greater assisted by the Court; and “stand down” the respondent’s legal counsel; that the learned JC should have disclosed that His Lordship had also heard a judicial review application filed by the respondent against MPS [SDK -13NCVC-1/8-2016]. [89] This is a serious charge against the learned JC and we have taken great pains to examine the records of appeal, especially the notes of proceedings. Those records yield one undeniable fact, that contrary to the allegations of the appellant, the learned JC displayed patience and gave every latitude and more to the appellant. The appellant himself showed fair knowledge of the law and was able to conduct his claim without any undue effort, as would any other counsel preparing for his case. We have no reason to interfere in any of the rulings of His Lordship, be it on the marking of documents or the admissibility of any of the evidence led during the trial. [90] As for the matter of the judicial review case, we understand that the application was struck out at the request of the parties. There was no decision or consideration of the merits. 35 Conclusion [91] None of the grounds raised by the appellant merit our exercise of appellate intervention. We were unanimous in our view that there was no appealable error in any of the findings of His Lordship. The learned JC had properly, in law and on the facts, considered all the issues canvassed and could not be said to have been plainly wrong in his deliberations and conclusions. [92] The appeal is thus dismissed with costs. Dated: 11 June 2020 Sgd (MARY LIM THIAM SUAN) Judge Court of Appeal Malaysia 36 Counsel/Solicitors For the appellant: Kwan Khai Hee Messrs. KH Kwan & Co. Advocate Lot 2, 1st Floor, BLK F Bandar Ramai Ramai, Jalan Leila 90734 Sandakan, Sabah For the respondent: Kevin Wong Heng Kim (Liew Mei Yee with him) Messrs. AY Partners (now WV Partners) TB 16331, 1st Floor, Lot No. 34 Perdanajaya Commercial Centre, Mile 3 Jalan Apas 91000 Tawau, Sabah