TEGUH ASIAMAS SDN. BHD. v Jemain Bin Mohamed (JA-21NCvC-24-10/2019)

JEMAIN BIN MOHAMED

2.

3.

TETUAN WOON WEE YUEN & PARTNERS (Dituntut sebagai sebuah Firma) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Background facts [1] The original Jemain Bin Mohamed (believed born years before Merdeka hence without an Identity Card “IC” and therefore no IC number) was the registered owner of ½ share of a property earlier known as EMR 82 Mukim Pulai, Lot 59, Mukim Pulai, Johor Bahru (hereafter referred to 07/01/2025 13:54:09 JA-21NCvC-24-10/2019 Kand. 220 as “the land”) since 7.8.1927 (see: enclosure 48 at page 13 pdf.). The title was then converted to Geran Mukim No. 922 Lot 59, Mukim Pulai, Daerah Johor Bahru in 2013 (see: enclosure 48 at page 20 pdf) before finally a new title endorsed as GM 1975 Lot 59 (see: enclosure 48 at page 96 pdf). [2] The 1st Defendant Jemain Bin Mohamed with IC number 420916- 01-5159 named in this suit above was said to be the grandson of the original registered owner Jemain Bin Mohamed (Jemain with IC hereafter referred to as “grandson Jemain”). Original registered owner Jemain Bin Mohamed demised in year 1958 (see: enclosure 49 at page 39 pdf. Notes of Evidence of High Court of Johore Civil Suit No: JA-22NCVC-97- 04/2017). [3] The name Zabidah Bte Sembob, (whose name also appeared on the EMR 82, Geran Mukim 922 and Geran Mukim 1975) was the trustee or representative of the estate of Kechot Bin Mohamed. Kechot held the other ½ share of the said land. The original title of the land EMR 82 Mukim Pulai, Lot 59, have the names of Kechot Bin Mohamed and Jemain Bin Mohamed registered as owner (see: enclosure 48 at page 13 pdf.) On 19.1.1956, the name Zabidah Binti Sembob was entered as representative or trustee to Kechot Bin Mohamed, with ½ share of Jemain Bin Mohamed being unaffected (see: enclosure 48 at page 14 pdf.) [4] By a Sale and Purchase Agreement dated 1.10.2013 (the SPA), between the Plaintiff as Purchaser and the 1st Defendant grandson Jemain together with one Zabidah Binti Sembob, via Mr. Mohd Shujaa Bin Halim solicitor acting for the vendors and the 4th Defendant for the purchaser, where it was represented that the 1st Defendant was the registered owner of the land. [5] In addition, arising from the clause on “special conditions” in the SPA, Zabidah via Mr. Shujaa had obtained a court order dated 24.10.2013 by using false particulars of Zabidah in Originating Summons No. 24NCVC-271-10/2013 (hereafter referred to as “OS271”) allowing her to sell the ½ share of Kechot. Arising from this misrepresentation, the Plaintiff executed the said sale and form 14A leading to the registration of the Plaintiff as owner on 18.5.2014 (see: enclosure 48 at page 108). [6] Upon discovery of this transfer, moved the 38 beneficiaries of Kechot Bin Mohamed to file a suit via High Court of Johore Civil Suit No: JA-22NCVC-97-04/2017 (suit 97) against the Plaintiff (named as the 3rd Defendant), grandson Jemain Bin Mohamed (named as the 1st Defendant), the conveyancing lawyer Mr. Mohd Shujaa Bin Halim acting for the seller (named as the 2nd Defendant) (see: enclosure 47). The 4th Defendant Messrs. Woon Wee Yuen in this present suit however, rightly so was not named as Defendant by the beneficiaries as there was no nexus between them. [7] The High Court of Johor in suit 97, relied on the admission by the 1st Defendant who was subpoena as the Plaintiff’s witness that he had signed the SPA dated 1.10.2013 despite he was not the registered owner of the land, neither without the authorization in the form of a letter of administration nor consent of other beneficiaries. [8] In Suit 97, the 2nd Defendant Mr. Shujaa being the conveyancing lawyer for the seller grandson Jemain Bin Mohamed, was absent throughout the trial. It transpired in Suit 97 that Zabidah Binti Sembob was in fact deceased at the time of filing of OS 271 and the IC particulars belong to another person. Armed with the fact that there was admission by the 1st Defendant of the fraud and with the absence of the 2nd Defendant to offer any explanation, the transfer was held to be void and hence the claim by the beneficiaries Plaintiff was allowed. The order dated 24.10.2013 in OS 271, therefore was set aside. The liability of the 4th Defendant: duty of care and/or professional negligence [9] This present Suit 24 before this Court is brought by Teguh Asiamas, amongst others for breach of duty of care resulting in professional negligence against Messrs. Woon Wee Yuen & Partners named as the 4th Defendant, who acted as lawyer for Teguh Asiamas being the purchaser for the land. The transfer to Teguh Asiamas by grandson Jemain Bin Mohamed and Zabidah Binti Sembob was earlier, declared void in suit 97. [10] In this present suit 24, what transpired were series of land searches by the 4th Defendant, police report on 30.9.2013 for the loss of the grant of title by the firm of Mr. Shujaa filed by the clerk Mr. Kamaruddin Md Natar discovered as missing from the firm’s possession on 26.9.2013 (see: enclosure 126 at page 5 pdf) and not by Mr. Shujaa himself who had control of the matter, statutory declaration alleged to be filed by Jemain Bin Mohamed when in fact was filed by grandson Jemain Bin Mohamed, statutory declaration also filed by Zabidah Binti Sembob when in fact the particulars of Zabidah are forged. [11] These 2 SDs were forwarded by Mr. Shujaa to the 2nd and 3rd Defendant by a letter dated 9.10.2013, seeking for a replacement title for GM922 Lot 59 Mukim Pulai (see: enclosure 126 at page 11). Relying on these 2 SDs, the 2nd and 3rd Defendant (see: enclosure 48 at page 96 and enclosure 134 at page 10 pdf) issued a replacement grant of title without any further review of the particulars submitted. This new grant of title is known as GM1975 Lot 59. [12] As to the signing of the form 14A, the contents of form 14A was prepared by the 1st Defendant and handed to the 4th Defendant for the Plaintiff’s signature. It was accepted by the 4th Defendant without thorough examination or verification of the details of the persons said to be Jemain Bin Mohamed and Zabidah Bte Sembob to ascertain the authenticity of the particulars. [13] To this Court, the omission by the 4th Defendant to verify the contents amounts to a breach of conduct expected of a conveyancing lawyer, hence is a professional negligence, as the circumstances based on the background facts put together would require the 4the Defendant to be meticulous in inspecting the relevant documents. To begin with, the registration of the name Jemain Bin Mohamed with and without IC should trigger the necessary thorough detail scrutiny. [14] Otherwise, then there is no purpose for the purchaser to have his or her own solicitor other than to act as “postman” by merely accepting what was submitted by the solicitor for the seller or vendor and forwarding them to the 2nd and/or 3rd Defendant. The result of this complacent act by the 4th Defendant caused the Plaintiff significant loss in term of time and money and property it proposed to purchase and invest in. [15] It is an agreed fact in this present Suit 24 and one that was accepted arising from the admission by the 1st Defendant in suit 97 that Zabidah Binti Sembob was deceased in 1968. Form 14A was signed by the Plaintiff Teguh Asiamas on 14.3.2014 without the 4th Defendant in the picture (see: enclosure 48 at page 49 pdf.) but yet the “Warrant to Act” by the 4th Defendant and Directors of the Plaintiff was already in existence since 1.10.2013 (see: enclosure 48 at page 30). [16] This Court was aware of the absence of the 4th Defendant’s attestation in the said form 14A despite the ‘Warrant to Act” was dated 1.10.2013, which can only arise due to the backdating of the “Warrant to Act”. This was admitted by the 4th Defendant in his testimony. This, as highlighted by counsel for the Plaintiff was detected as the “Warrant to Act” carries reference to the land as “Geran nombor 1975 Lot No. 59”, the same land as in GM922. As highlighted in paragraph 11 above, the “geran no. 1975” however was issued later. [17] “Geran 1975” issued on 22.1.2014 was as replacement to GM922 (see: enclosure 48 at page 96 pdf). It was issued by the 2nd Defendant after the lodging of a police report on 30.9.2013 by the clerk of Mr. Shujaa, alleging the loss of the original title. This Court finds it rather awkward that the 4th Defendant did not find it suitable or appropriate to question the act of Mr. Shujaa directing the clerk to lodge a police report and not Mr. Shujaa himself to do so, when it is a recognize fact that a Grant of Title of any piece of land is a most valuable piece of document and the loss of it must be properly encountered for. [18] Be that as it may, from the correspondence between the 4th Defendant in this suit and the solicitor for the seller Mr. Shujaa, it is apparent that the 4th Defendant had initiated work on behalf of the Plaintiff earlier than 1.10.2013, the date of the SPA. This can be seen from its letter dated 6.8.2013 to Messrs. Rafida Razak & Co inquiring on the status of the land and notifying of the Plaintiff’s interest to purchase the land and had deposited 10% of the purchase price (see: enclosure 82 at page 4 pdf.) [19] The correspondence by way of a letter from the 4th Defendant on behalf of the Plaintiff to Mr. Shujaa was first presented on 23.8.2013 stating the understanding both by the vendor “Jemain Bin Mohamed & ors” to sell the land and by the purchaser “Teguh Asiamas Sdn Bhd” to buy the said land (see: enclosure 82 at page 8 pdf.). Arising from this, the 4th Defendant sought for the draft sale and purchase agreement to be forwarded for their perusal and comments. [20] As it transpired, the draft sale and purchase agreement and the sealed agreement contained no significant amendments except the insertion of the clause on “special condition”. In other words, nothing was put forward by the 4th Defendant to Mr. Shujaa proposing amendments to obvious mistakes that would result in the impediment of the sale. The noticeable errors are as follows: a) Zabidah and Jemain as vendors are the beneficial owners of the property” when Zabidah was merely trustee; b) With Zabidah as administrator, the 4th Defendant as lawyer acting for the purchaser, had failed to check and rule out any other beneficiaries of Kechot Bin Mohamed and verify if they had consented to the sale and the transfer; c) “Property free from encumbrances including caveat” when in fact the continuous searches done on 18.6.2013, 2.10.2013 and 8.11.2013 revealed there was in existence a caveat entered by Salim Bin Mohamed on 7.5.2013; d) A search done on 9.1.2014 disclosed a caveat entered by Jamaliah Bte Mohamad and Sa’adiah Binti Mohamad on 21.11.2013; (see: enclosure 48 at page 29 pdf.) e) Although subsequently removed, no further query done by the 4th Defendant to ascertain the history as to why the entry of these private caveats on the land to pre-empt and address any possible issues; f) Had a detailed search or inspection done, would reveal that both Jamaliah and Sa’adiah were 2 of the 38 beneficiaries in suit 97 challenging the Court Order dated 24.10.2013 obtained in OS 271. [21] The role of the 4th Defendant is crucial and act as a filter, on behalf of their respective client Teguh Asiamas, more so with the purchase value of the land being a considerable big amount RM11,243,925.00 which Teguh Asiamas had paid out for the purchase. With this big sum involved, the legal fee paid to the 4th Defendant would be in the range of 1% of the purchase value possibly estimated as RM100,000.00. Although whatever the amount involved in the transaction tasked on the advocate and solicitor’s shoulder is irrelevant, it is only logic that the duty of care expected of the 4th Defendant must commensurate with this big sum paid by the client, and not act as a postman by merely accepting and stamping as accurate everything presented by lawyer for the vendor Mr. Shujaa. [22] The significance in conducting the 6 searches by the 4th Defendant were of little help when little focus was placed on the facts that the history of the ownership of the land stated under the heading “Tarikh mula diberimilik” originated since 7.8.1927 belonging to Jemain Bin Mohamed and Zabidah Bte Sembob both were without IC numbers. This goes contrary to the statutory declarations seeking for the replacement title that came with the IC particulars of both Jemain and Zabidah. A meticulous advocate and solicitor handling a similar case would surely have proceeded further to make the necessary verification on the history as to why there was none, as shown in the series of title presented in the 6 searches despite the existence of both their IC numbers in the SDs. [23] The facts and circumstances of this present case, even taken at its ordinary limit of a reasonably competent practitioner acting for his or her client, would have adopted this meticulous standard by functioning as a filter and take steps to make the necessary verification. It is only on being meticulous and conscientious would issues on forged documents and fraud be fully addressed. [24] To depend only on the final layer that is the land office and in this present case, represented by the 2nd and 3rd Defendant who only appeared at the end of the line, would be preposterous (Midland Bank Trust Co Ltd & Anor v Hett, Stubbs & Kemp [1978] 3 All ER 571 (House of Lords). To quote what this Court had in Judicial Review Application No: JA-25-26-09/20221 decided on the importance of the realization by the advocate and solicitor, of the role played by them in a land transaction, said as follows: “This Court having perused the cause papers and the submissions by both parties, came to a finding that the placing of the signature on the said ‘Akuan’ is not merely to complete a procedural process but the signing comes with some level of confidence by the SIGNOR that the documents are true. The act of signing is not 1 [2023] CLJU 2076. merely procedural ‘bukan sekadar tandatangan’ but comes with risk and consequences of a professional responsibility, a solicitor having been significantly involved in the said process”. [25] The 6 searches were done on 2.5.2013, 18.6.2013, 2.10.2013,

8.11.2013, 9.1.2014 and 29.5.2014 (see: witness statement of 4th Defendant in enclosure 137 at page 7 pdf), the 4th Defendant said the 1st was before the execution of the Sale and Purchase Agreement, the 2nd was after the special condition was fulfilled and the rest were to ensure that the various private caveats were removed. [26] Similar to the 2 SDs, despite having conducted these searches, the 4th Defendant did not utilize the results of these searches by cross-referring to the draft SPA, inspect the contents of the SPA and to move Mr. Shujaa to explain and officially confirm the authenticity of the info of the 2 Vendors. Similarly, the 4th Defendant had failed to do its own bankruptcy search on the 2 names but merely relied on the search done by the vendor’s solicitor, did not obtain the current up-to-date quit rent of the property prior to the signing of the SPA and the form 14A but only did it later, after the payment of the full purchase price, when it was already too late. [27] Although there was a clause on “special conditions” proposed by the 4th Defendant, which was agreed and inserted by Mr. Shujaa in the SPA that led to the filing of OS271 by Mr. Shujaa for Zabidah Binti Sembob to seek for court order to permit the sale the ½ share of Kechot, it did not remedy the serious omission of the 4th Defendant to remain vigilant towards the discrepancy existing in the material fact on the identity of the vendors that made the OS271 void as the person who deposed the affidavit could not have been Zabidah. [28] This Court had in its earlier judgment in Judicial Review Application No: JA-25-26-09/2022 (supra), emphasized the need for conveyancing lawyers to micro manage the documents presented by verifying and acknowledging the ‘truth’ and ‘legitimacy’ of the contents of the said documents handed in for the purpose of the form 14A attestation. To argue that those functions lie on the solicitor for the seller and not the duty of the solicitor for the purchaser would only result in situation such as in this case. For the reasons above, this Court finds that the Plaintiff is entitled to the damages against the 4th Defendant (see: para 36 of this GOJ): The 1st Defendant: grandson Jemain Bin Mohamed [29] The 1st Defendant was not present to testify, although a statement of defence was filed. The agreed facts by the 1st Defendant in short did not dispute the finding of facts made by the High Court in suit 97 as enumerated in the earlier paragraphs. As a matter of repetition but necessary, they are as follows: a) The SPA dated 1.10.2013 for a consideration of RM11,243,925.00 between the purported 2 vendors and the Plaintiff not disputed; b) The 1st Defendant represented himself to be the registered and beneficial owner of ½ share and Zabidah as trustee or representative of the estate of Kechot Bin Mohamed for the other ½ share; c) Purported applicant Zabidah, also supported by the affidavit of the 1st Defendant to the said application, obtained a court order on

24.10.2013 via OS 24NCVC-271-10/2013 authorizing her to sell the deceased’s half share of the land; d) Form 14A signed by the 1st Defendant, the purported Zabidah and the Plaintiff was presented to the 2nd Defendant for registration on 18.5.2014; e) Via suit no 97 by the 38 beneficiaries of the deceased, the High Court on 29.8.2019 found the transfer and the purported Court Order as null and void with an order that the Land Title be returned to the 2nd Defendant for cancellation. [30] The 1st Defendant’s statement of defence alleged that he did not receive the whole sum of the purchase price of the land but only a certain portion. Apart from his oral testimony, no bank statement was shown to support this. So, to suggest that the liability be apportioned between him and Mr. Shujaa is absurd as the 1st Defendant at all times were privy to this fraudulent action. Without the 1st Defendant’s consent to represent himself as owner when he clearly knows that he is not, the whole transfer would not be able to be completed by Mr. Shujaa. This argument by the 1st Defendant is therefore without merits and found to be jointly and severally liable to the damages as the 4th Defendant. Contention by the 4th and 1st Defendant in disputing the Plaintiff’s claim [31] Counsel for the 4th Defendant and 1st Defendant raised these 2 issues in contesting the claim. They are as follows: a) Res judicata applies as it was argued that the Plaintiff ought to have made a claim against the 4th Defendant in Suit 97 itself by way of a third party proceeding; b) Res judicata applies as it was argued that the Plaintiff ought to have raised a counter-claim against the 1st Defendant in suit 97; c) The dishonest act of the Plaintiff by not disclosing the award given in the sum of RM939,778.64 by the Bar Council as compensation for the claim against Mr. Shujaa (see: enclosure 111 at page 13 pdf). Acknowledgment of receipt by the Plaintiff on 7.12.2021; d) The Plaintiff ought to have waited for the outcome of the appeal in suit 97, hence suit 24 is premature. [32] To these 4 issues, this Court is of the view that the option is open to the Plaintiff either to bring in a third party proceeding against the 4th Defendant or a counter-claim against the 1st Defendant in suit 97 itself or to file a new suit against the 4th Defendant or 1st Defendant as done in this suit. The Plaintiff is neither estopped, barred nor his right to sue diminished by the fact of his omission or contemplation to name the 4th Defendant in suit 97 nor to file a counter-claim against the 1st as quoting the dicta by the Federal Court in Permodalan Plantations Sdn Bhd v Rachuta Sdn Bhd, [1985] 1 MLJ 157, [1985] 1 CLJ 62 where Tun Salleh Abbas CJ said as follows: "What then is a counterclaim? A counterclaim on the other hand is also a cross-claim which a defendant has against a plaintiff but in respect of which the defendant can bring a separate action against the plaintiff if he wishes to do so. Thus, to all intents and purposes a counterclaim is a separate and independent action by the defendant, which the law allows to be joined to the plaintiff’s action in order to avoid multiplicity or circuity of suits”. [33] In any event, the 4th Defendant was called as witness for Teguh Asiamas named as the 3rd Defendant in suit 97. Hence, this explains why the Plaintiff Teguh Asiamas had proceeded with suit 97 without naming the 4th Defendant as 3rd party, otherwise the Plaintiff Teguh Asiamas’s case would contain unfinished details or hearsay evidence as not all transactions between the 4th Defendant and Mr. Shujaa had the Plaintiff Teguh Asiamas in the loop. This only means that the Plaintiff may not be in the know of all facts. [34] As to the compensation by the Bar Council, the heading of the letter by the Bar Council dated 15.10.2021 clearly states “Claim against the Compensation Fund 2019: Mohd Shujaa Bin Halim”, and this is subject to the “Acknowledgment Letter which includes a clause indemnifying the Bar Council from possible claims”. This “Acknowledgment Letter” dated 7.12.2021 also specify that “the Plaintiff gives its undertaking to refund the Bar Council the said Fund in the event the Plaintiff is successful in the civil claim or suit or settlement agreement entered into with the defaulting advocate and solicitor”. [35] The “Form B” Form of Application for A Grant Out of the Compensation Fund of the Legal Profession Act 1976 “Advocates and Solicitors’ Compensation Fund Rules 1978” (see: enclosure 111 at page 4 pdf) clearly focused on the defaulting advocate and solicitor of Mr. Shujaa of Messrs. Shujaa Mazri & Co, and no other. Thus, the compensation is catered specifically to remedy the Plaintiff, of Messrs. Shujaa Mazri & Co’s dishonesty in conducting the sale and purchase transaction. The suit against the 4th Defendant, however is on the breach of professional duty in handling the same, a distinct cause of action. Hence, res judicata does not apply in this present suit neither it being pre- mature without awaiting the outcome of the appeal of the High Court decision of 29.8.2019, which was withdrawn on 21.6.2021 (see: Lin Wen-Chih & Anor v Pacific Forest Industries Sdn Bhd & Anor [2023] 5 MLJ 422, Goh Seng Chue & 2 ors v Pentadbir Tanah Hulu Selangor & 3 ors [2017] MLJU 1390) [36] It is this Court’s observation that whatever breach of duty of care and/or negligence committed by the 4th Defendant unfortunately, would also mirror that of Mr. Shujaa’s dishonest actions. As it transpired, the 4th Defendant took a simplistic approach that whatever Mr. Shujaa had presented, it was taken to be accurate even in the absence of verification by the 4th Defendant. In short, the presentation is accepted as correct. For this reason, this Court is of the view that the 4th Defendant must also be jointly and severally liable towards the end result of an invalid transfer arising from a void document. [37] As to the damages to be awarded to the Plaintiff, this Court allowed some and disagreed with some. This will be ventilated further below. The fact that the amount to facilitate the payment of the purchase price by the Plaintiff was obtained from SP2 one of Plaintiff’s own director or from Elite Style owned by SP2, does not refute the fact that these monies were transmitted through the Plaintiff to the solicitor for the vendors. What arrangement the Plaintiff had in mind with SP2 and Elite Style on the repayment, is not a relevant matter to be discussed in this judgment. [38] The solicitor for the Plaintiff’s submission is that the Plaintiff is entitled to the following damages as against the 4th Defendant which was agreed by this Court to a certain extent be as follows: a) RM11,243,925.00 (being the amount of the purchase price paid under the SPA); b) RM74,732.15 (being the interest sum of outstanding payment due under the SPA); c) RM331,320.00 (stamp duty paid under the SPA); d) RM23,620.00 (registration fee for form 14A); e) RM300.00 (land tax for 2016 to 2019); f) RM59,000.24 (legal fees and disbursement paid to the 4th Defendant pertaining to the SPA); g) RM800,000.00 (legal fees and disbursement to defend the suit and other claims in relation to the land); and h) Interest for the above sum at 5% per annum from 30.9.2019 (it should refer to the date of filing of this suit) [39] Other claims for general damages, exemplary and punitive are not allowed as the amount awarded above is already a large sum coupled with the sum for cost permitted by this Court and this is to ensure that it’s not too excessive so as to turn this judgment merely into a paper judgment. In any event, there is absence of sufficient evidence on the claim for exemplary and punitive damages The breach of duty by the 2nd and 3rd Defendant [40] As to the PTG’s role and duty under the NLC, the case of Pendaftar Hakmilik, Pejabat Pendaftaran Wilayah Persekutuan Kuala Lumpur & Anor v Poh Yang Hong [2016] 9 CLJ 297, this Court can do no better that quote the Federal Court’s view as follows: “the duty of care owed by the land administrator in ensuring that searches made at the Land Registry would carry accurate information and a duty to maintain the register of all lands caused to be registered at the Registry and to ensure the information contained in the Register is correct, true and accurate and reflects the true and actual description of the title to the land as well as the true identity of the registered proprietor …” [41] What is relevant is the finding that the Defendant PTG owes a duty of care to, not only to the Plaintiff but also members of the public. In M Shahool Hameed Mohamed Meerah v Pengarah Tanah dan Galian Negeri Selangor & Ors [2024] CLJU 2621, the Court of Appeal highlighted this very important role of the land administrator by stating as follows: “[41] Lastly, a finding of liability on the part of the Land Administrator has to be based on the evidence or acknowledgement of specific wrong doing or errors and not merely any inaccurate information in the record of the land registry or misinformation in the SPTB. Inaccurate information in the record of the land registry or misinformation in the SPTB would not ipso facto mean the Land Administrator was negligent, and therefore in breach of his statutory duty or common law duty of care. The claimant's case is still subject to proof that the Land Administrator had committed a specific act or there was specific omission that amounted to a breach of his duty of care. [42] "Negligence" is said to be "the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do" (see Blyth v. Birmingham Waterworks Co [1856] 156 E.R. 1047, p. 1049). In a similar vein, the Court of Appeal in Siew Yaw Jen v. Majlis Perbandaran Kajang & Anor Appeal [2015] 5 CLJ 189, p. 198, held that "the tort of negligence requires first of all that there be a duty of care on the part of the plaintiff (Kajang Municipal Council) not to do any or omit to do any act the doing of which or the omission of which could foreseeably affect other persons resulting in damage or loss to such other persons. The tort is complete when the act is done or omitted to be done and damage or loss is caused by that act or omission”. [42] In Poh Yang Hong v Ng Lai Yin & ors [2013] 8 CLJ 964, what the learned trial Judge of the High Court Su Yeok Giam J said serves as a reminder of the heavy duty that rests on the land administrator’s shoulder towards the public when she said as follows: “(2) The second defendant knows and/or must be taken to know that the members of the public depend on him and his officers to ensure that what is contained in the register is correct and accurate since they have no other way or means of ensuring that they can obtain accurate and reliable information except from him and his officers.

The second defendant also knows and/or must be taken to know that the members of the public require information in order to ensure that the person whose name and particulars are registered in the title is in law the registered proprietor of the land as they do not wish to make payment to and be cheated by a person who claims to be the owner of the land but turns out to be a bogus owner. …

Hence, the second defendant must take all reasonable steps to ensure that the register contains only correct, true and accurate information failing which the second defendant must be held to have breached his duty of care to the member of the public concerned …”. Note: see also on general observation of land fraud with legal firm involved happening elsewhere by Leong Wai Hong JC in Chiew Yit Kin v. Pengarah Tanah Dan Galian Wilayah Persekutuan & Ors [2023] 5 CLJ 540) [43] In Poh Yang Hong (supra), where issue of fraud arose but the identity of the fraudster either unidentified or unknown, hence would lead to an inevitable inference that the Respondents involvement could not be ruled out. It is on this basis that this Court found the 2nd and 3rd Defendant contributed negligently to a certain degree in permitting the issuance of the land title GM1975 by merely relying on the 2 SDs as the truth supported by the ICs of the 2 imposters despite being made aware that the missing title as raised in the SDs was pertaining to GM922. Further check and inspection of GM922 if done by the 2nd and 3rd Defendant, would reveal that the title was first issued in year 1927 to these names both without any IC particulars (see: enclosure 126 at page 12 of grandson Jemain Bin Mohamed’s SD). [44] In this case, each seller and purchaser have their own respective lawyers, thus as far as it relates to the 2nd and 3rd Defendant’s role or duty, it is only probable that with the vigilant act of one of the lawyers be it for the purchaser or buyer, would the acts of fraud of the other conveyancing lawyer surfaced and be detected by the other. The execution of the transfer by the 2nd and 3rd Defendant would then be avoided. Yet, to impose an equal and similar responsibility as Mr. Shujaa or the 4th Defendant on the 2nd and 3rd Defendant, would only result in a delay in the 2nd and 3rd Defendant performing its task under the National Land Code “NLC”. [45] Although the first line of safeguarding any possible apprehension in the land transfer transaction, failed as the other conveyancing lawyer took a simplistic view by trusting the presentation made by the other; it does not excuse the 2nd and 3rd Defendant from being alert and cautious by ensuring the validity of the application for a replacement of title as stipulated under the NLC. [46] The 2nd and 3rd Defendant had to a certain extent, satisfied this duty of care by not processing the earlier letter dated 2.9.2013 by Mr. Shujaa sent in without the SDs of the owner and administrator. With the submission of the required SDs subsequently (although the 2 SDs were forged but this Court finds it safe to infer this fact as unknown to the 2nd and 3rd Defendant), the 2nd and 3rd Defendant had via a letter dated 16.10.2013 took the steps to notify the “owner and administrator” including one Mr. Salim Bin Mohamed when this letter was carbon copied to them (see: para 20(c) of this judgment where a caveat was entered by Mr. Salim on 7.5.2013). [47] In the absence of any feedback from Mr. Salim and as it appears, only this much of information was available to the 2nd and 3rd Defendant that the original title was lost when in custody of Messrs. Shujaa & Co, thus to impose on the 2nd and 3rd Defendant a further duty to investigate and verify the authenticity of the SDs and the ICs of the so call “owner and administrator”, to this Court’s view is to place a very high burden on the land office. The issuance of the “Warta Kerajaan Negeri Johor” (see: enclosure 134 at page 8 pdf) must be accepted as a notice to the public including the beneficiaries, of this replacement of title exercise that will be conducted by the land office pursuant to a missing title report lodged by Messrs. Shujaa. [48] On the issue of fake ICs of the owner Jemain Bin Mohamed and administrator Zabidah Binti Sembob and whether there was sufficient cause for the land office to suspect (see: this Court’s finding in paragraph 45 above), it necessitates to have sight of the finding by the learned trial Judge in Low Poh Kim v Pengarah Tanah dan Galian Negeri Selangor & ors [2015] 7 MLJ 287 (although the claim against the land office was set aside on appeal by the land office to the Court of Appeal) where Prasad Sandosham Abraham J said as follows: “[53] It is my considered view that there was sufficient cause for DW1, DW2 and DW3 to suspect something was a miss pertaining to exhibits P5 and D36…” [49] Reading the judgment further, it can be seen that the learned trial judge found “the said impugned document is riddled with inconsistencies and glaring matter” when the actual name of the registered owner being “Low Poh Kim” whereas the donor of the purported power of attorney stated as “Low Kim Poh”, the identity card number of the Plaintiff as stated in the power of attorney is not that of the plaintiff added with the confirmation obtained from the forensic evidence on the signature of the donor who signed the impugned power of attorney is not that of the plaintiff”. [50] As these are glaring inconsistencies appearing on the face of the record, rightly so the land office should have rejected the transfer. Contrary to the facts in Low Poh Kim (supra), the facts in this present case of suit 24 did not fall within the province of sections 297, 301 and 303 of the NLC except to the extent as decided in para 43 as it ought on the balance of probabilities have raised an eyebrow on the part of the 2nd and 3rd Defendant to ascertain why the absence of the IC particulars in the earlier titles as opposed to the SDs instead of merely relying on the names, although the names being correct in all the documents. [51] For these reasons, this Court found the 2nd and 3rd Defendant had breached their duty of care and were negligent towards the Plaintiff only to this extent and allowed a sum of RM23,620.00 as payment of registration fee for form 14A, RM300.00 for land tax for the year 2016 to 2019 and cost. Signed (NURULHUDA NUR’AINI BTE MOHAMAD NOR) Judge High Court of Malaya Johor Bahru Dated: 31.12.2024 For the Plaintiff: Lau Kee Sern (Vynny Wong Poh Yee together with him) Messrs. Kee Sern, Siu & Huey Advocates & Solicitors No. 468-11(2), 2nd Floor Bloc C Rivercity Jln Sultan Azlan Shah (formerly Jln Ipoh) 51200 Kuala Lumpur For the 1st Defendant: Kumaradevan a/l Rajadevan Messrs. Gunaseelan & Associates Advocates & Solicitors Unit B-2-1 VIVA No. 378, Jln Ipoh 51200 Kuala Lumpur For the 2nd & 3rd Defendant: Muhammad Azzam bin Zainal Abidin (Assistant State Legal Advisor) Pejabat Penasihat Undang-Undang Negeri Johor Aras 2, Bangunan Dato' Jaafar Muhammad Kota Iskandar 79100 Iskandar Puteri Johor Darul Ta'zim For the 4th Defendant: Johanan Puthucheary (Lim Siew Ling together with him) Messrs. Kuok Puthucheary & Tan Advocates & Solicitors Suite 8.3 Level 8 Menara Pelangi Jln Kuning, Taman Pelangi 80400 Johor Bahru