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1. Kamaliah bt Momong @ Kamariah bt Momong & Ors v Siti Aisah bt Hamdan & Ors [2021] MLJU 986
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 KAMALIAH BT MOMONG @ KAMARIAH BT MOMONG & ORS v SITI
AISAH BT HAMDAN & ORS
CaseAnalysis
| [2021] MLJU 986

Kamaliah bt Momong @ Kamariah bt Momong & Ors v Siti Aisah bt Hamdan

& Ors [2021] MLJU 986
Malayan Law Journal Unreported

HIGH COURT (TAWAU)

LIM HOCK LENG J
SUIT NO TWU-22NCVC -22/12 OF 2019
15 June 2021

Nadzifah bt Makut (Nadzifah Law Firm) for the plaintiffs.

Darmin bt Achok (Johari, Zelika & Amin) for the first and third defendants.
Ansari bin Abdullah (Ansari & Co) for the second defendant.
Mohammad Abd Sani (Jabatan Peguam Besar Negeri Sabah) for the fourth defendant.

Lim Hock Leng J:

GROUNDS OF DECISIONThe Parties

[1]Kamaliah Bt Momong, the 1st Plaintiff, has 8 children.

[2]She is the mother of the 2nd to 6th Plaintiffs.

[3]The 1st plaintiff is also the mother of the 1st to 3rd Defendants.

[4]The 4th Defendant is the Assistant Collector of Land Revenue, Tawau (“the ACLR”).
The Land which is the Subject of Dispute2nd DEFENDANT

[5]At one time, the 1st Plaintiff had 9,350/14,700 share of a parcel of land situate at Tanjung Batu in Tawau, and
held under Native Title No. 103027014 which in total measures 1.47 acres more or less.

[6]The 1st Plaintiff’s 9,350/14,700 share means she at one time owned 0.935 acre of the land. I will refer to her
share as “the land.” She acquired the land on 2 separate occasions, through her late grandfather in 1985 and
through her mother in 1991. Both transfers were for love and affection.

[7]The land is the subject of dispute in a family feud which played out at the trial held from 5-7 April 2021.
The Disputed Transfers

[8]For love and affection, the 1st Plaintiff transferred :

(a) 13,375/147,000 share to each of the 1st to 3rd Defendants and the 2nd Plaintiff by a Memorandum of
Transfer (“MOT”) dated 15 December 2008; and
(b) 7,500/147,000 share to her remaining 4 children, the 3rd to 6th Plaintiffs by a MOT dated 22 December
2008
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[9]Put another way, the 1st Plaintiff gave larger lots of 0.13375 acre to each of her 4 older children, and smaller lots
of 0.075 acre to each of her younger children.

[10]These transfers left the 1st Plaintiff with 1,000/14,700 share for herself.

[11]These transfers were registered and endorsed on the title deed on 27 March 2009. See CBOD, Part B, page 6.
Further Transfers

[12]It is an agreed fact that the 3rd Defendant had transferred her share in the land to the 1st Defendant on 18
December 2018.

[13]It is also an agreed fact that the 3rd, 4th and 6th Plaintiffs had transferred their respective shares to the 2nd
Plaintiff on 18 April 2019. See SAF, paragraphs 8 and 9.
Cause of Action Founded on Mistake

[14]At the commencement of the trial, learned counsel for the Plaintiffs, when pressed to identify the cause of
action, told the court that “the mistake is between the 1st Plaintiff and the 4th Defendant,” and upon further enquiry,
said it was a mutual mistake, and relied upon section 33 of theSpecific Relief Act 1950.

[15]With that in mind, it is intended to first look at the authorities and statutory provisions on mistakes, and then
consider the pleaded case, and the evidence.
Different Kinds of Mistakes

[16]In holding that the court must look at “the true intention of the parties, and, the outward acts of the parties, to
decide if there was a mistake,” and that “the approach to determine intention is objective and not subjective,”
Jeffrey Tan FCJ, in Menta Construction Sdn Bhd v Lestari Puchong Sdn Bhd (2015) 8 CLJ 1117, cited with
approval the following passage in Cheshire, Fifoot & Furmston’s Law of Contracts 16th Edition at 294,
differentiating the 3 types of mistake:

“In common mistake, both parties make the same mistake. Each knows the intention of the other and accepts it,
but each is mistaken about some underlying and fundamental fact. The parties, for example, are unaware that the
subject matter of their contract has already perished. In mutual mistake, the parties misunderstand each other and
are at cross-purposes. A, for example, intends to offer his Toyota Prius car for sale, but B believes that the offer
relates to the Toyota Aventis also owned by A. In unilateral mistake, only one of the parties is mistaken. The other
knows, or must be taken to know, of his mistake. Suppose, for instance, that A agrees to buy from B a specific
picture which A believes to be a genuine Constable but which in fact is a copy. If B is ignorant of A’s erroneous
belief, the case is one of mutual mistake, but, if he knows of it, of unilateral mistake. When, however, the cases
provoked by these factual situations are analysed, they will be seen to fall, not into three, but only into two distinct
legal categories. Has an agreement been reached or not? Where common mistake is pleaded, the presence of
agreement is admitted. The rules of offer and acceptance are satisfied and the parties are of one mind. What is
urged is that, owning to a common error as to some fundamental fact, the agreement is robbed of all efficacy.
Where either mutual or unilateral mistake is pleaded, the very existence of the agreement is denied. The argument
is that, despite appearances, there is no real correspondence of offer and acceptance and that therefore the
transaction must necessarily be void (emphasis added).”

[17]Section 30 of theSpecific Relief Act 1950 prescribes when a contract may be rectified : “When, through fraud
or a mutual mistake of the parties, a contract or other instrument in writing does not truly express their intention,
either party, or his representative in interest, may institute a suit to have the instrument rectified: and if the court find
it clearly proved that there has been fraud or mistake in framing the instrument, and ascertain the real intention of
the parties in executing the same, the court may in its discretion rectify the instrument so as to express that
intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value
(emphasis added).”
WERE THERE MISTAKES FOR WHICH RECTIFICATION COULD BE ORDERED?O Whether Mistakes Pleaded
were Mutual or Unilateral

[18]Notwithstanding the Plaintiffs’ stand at the start of the trial that their case is premised on the mutual mistake of
the 1st Plaintiff and the 4th Defendant, it is clear that the Plaintiffs’ pleaded case is actually anchored on the alleged
unilateral mistakes of the 4th Defendant.
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[19]In paragraph 24 of the amended Statement of Claim, it is pleaded that the 1st Plaintiff’s share, instead of being
equally divided among all the children, “was mistakenly and/or purportedly registered by the 4th Defendant’ as per
the the Memoranda of Transfer dated 15 and 22 December 2008. In paragraph 32, it is pleaded that the “1st Plaintiff
believes that the 4th Defendant has made a grave mistake by failing to transfer the 1st Plaintiff’s shares on the said
Land in accordance with the 1st Plaintiff’s instruction as well as her true intention and will and mutual agreement
and understanding between the 1st Plaintiff and her children.” And in paragraph 33, the “4th Defendant had
unilaterally decided on how the 1st Plaintiff’s shares on the said Land shall be divided amongst her children and
deliberately caused the transfer of the same to be effected based on the incorrect allocation.”

[20]Digressing for a moment, there may be more than a whiff of doubt on whether what was alleged to be the
deliberate action of the 4th Defendant can be said to be a unilateral mistake.

[21]Be that as it may, it is doubtful that there is a mutual mistake based on the only sentence referring to a mistake
on the part of the 1st Plaintiff (“Even after they were informed about the mistakes by the 1st Plaintiff, the 4th
Defendant failed to take the necessary action to rectify the mistake accordingly”). The 1st Plaintiff’s mistakes are
not specified, or particularised.

[22]What is stated in paragraph 19 cannot be said to be a mistake: “To their recollection, neither of the 2nd to 6th
Plaintiffs’ nor the 1st Plaintiff remember that the shares column on the Memorandum of Transfer Form executed on
15.12.2008 and 22.12.2008 respectively were filled in and typed with the details of the amount of shares to be
received by each of the 1st Plaintiff’s children under the said Land during the signing of the same.”

[23]In fact, the Plaintiffs doubled down in their amended Reply to the 2nd Defendant’s Defence vide paragraph 7 by
pleading that “if there are any mistakes on the actual shares to be received by the 2nd Defendant or any of the
Plaintiffs, it was done by the 4th Defendant “ It would seem clear that the Plaintiffs’ pleaded case is predicated on
the 4th Defendant’s unilateral mistakes. Similarly, in their Reply to the 4th Defendant’s Defence, the Plaintiffs
pointed the finger at the 4th Defendant solely: paragraph 11.1 (“by mistake, the 4th Defendant failed to register the
1st Plaintiff’s children (sic) shares in accordance with the 1st Plaintiff’s intention and instruction”),paragraph 11.2
(“Instead, the 4 th Defendant went a little bit further by unilaterally decided (sic) how the 1 st Plaintiff’s portion of
shares shall be divided amongst her children”), paragraph 15 (“by reason of the 4th Defendant (sic) deliberate
mistakes the 1st to 6th Plaintiffs are entitle (sic) to the reliefs claimed...”). In their Reply to the 1st and 3rd Defendant’s
Defence, the Plaintiffs in paragraph 7 also pinpointed the 4th Defendant’s alleged failure “to properly and accurately”
register the actual shares to be received by the children.

[24]In substance, the Plaintiffs’ pleadings point to the 4th Defendant’s unilateral mistake, not mutual mistakes as
between the 1st Plaintiff and the 4th Defendant.

[25]All 6 Plaintiffs having the inability to remember whether the share columns were filled is not only incredulous
and unbelievable, but it is also obviously not the same as asserting or pleading that the MOTs were not filled when
they signed those forms. It is an equivocal averment.

[26]In any case, absent a vitiating factor such as misrepresentation, undue influence or duress (which is not the
pleaded case), a person who signs a document - even if part of it is left blank - is bound by its contents whether or
not he took the trouble to read it.

[27]In L’Estrange v F Graucob Limited (1934) 2 KB 394, 403,

Scrutton LJ held that “the plaintiff, having put her signature to the document and not having been induced to do so
by any fraud or misrepresentation, cannot be heard to say that she is not bound by the terms of the document
because she has not read them.”

[28]In Gallie v Lee (1969) 2 WLR 901, the successful counsel in L’Estrange (supra) who had by then become
known as Lord Denning MR held:

“ whenever a man of full age and understanding, who can read and write, signs a legal document which is put before him
for signature, by which I mean a document which, it is apparent on the face of it, is intended to have legal consequences -
then, if he does not take the trouble to read it but signs it as it is, relying on the word of another as to its character or
contents or effect, he cannot be heard to say that it is not his document. By his conduct in signing it he has represented, to
all those into whose hands it may come, that it is his document; and once they act upon it a being his document, he cannot
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go back on it and say it was a nullity from the beginning. If his signature was obtained by fraud, or under the influence of
mistake, or something of the kind, he may be able to avoid it up to a point - but not when it has come into the hands of one
who has in all innocence advanced money on the faith of it being his document or otherwise has relied upon it as being his
document.”

[29]It may be added that “(a) person who chose to be careless, or not bothered to find out the contents therein, or
relied completely upon others to complete the same, is responsible for his own actions and he is prevented from
denying the contents therein do not bind him (emphasis added).” See Chai Then Song v Malayan United Finance
Bhd [1993] 2 CLJ 640, per James Foong J (as he then was), and the judgment of Lee Swee Seng JC (as he then
was) in AWC Berhad (formerly known as AWC Facility Solutions Berhad) v Point-Euro Malaysia Sdn Bhd & Ors
[2012] MLJU 474. While it was subsequently held inMenta Construction (supra) that lack of care is no bar to
rectification, these circumstances would appear to be limited as, on the facts of that case, the mistake was
evident from a patent conflict between the impugned clause 2.2 in the sale and purchase agreement and clauses in
other documents executed concurrently which were to be read together, as a whole.

[30]Having considered the body of the amended Statement of Claim to ascertain the type of mistake upon which
the Plaintiffs premised their action, it would be appropriate to look at the reliefs sought.

[31]There are a number of declarations sought, but none which reveal the mistake(s) made by the 1st Plaintiff
which would allow them to be considered as mutual. Instead, the blame was solely placed on the shoulders of the
4th Defendant. In other words, there was no mutual mistake but only unilateral mistakes by the 4th Defendant.

[32]Prayer 2 is for a declaration that the 4th Defendant ....” erroneously caused to be transferred 13375 of the 93500
shares to each of the 1st to 3rd Defendants and the 2nd Plaintiff and 7500 of the 93500 shares to each of the 3rd, 4th,
and 6th Plaintiffs instead of the equal amount of shares in accordance with the 1st Plaintiff’s intention and will.”
Prayer 3 is for a declaration that these transfers “are invalid and of no effect on the grounds of mistakes by the 4th
Defendant.”
(ii) Whether Rectification Available for Unilateral Mistakes

[33]Now, the substantive orders which the Plaintiffs desire - for transfers such that all children receive an equal
share, and for rectification of the title deed vide prayers (6) and (7) - ride on the back of the 4th Defendant’s
unilateral mistakes.

[34]However,section 30 of theSpecific Relief Act 1950 allows rectification in instances of fraud or mutual
mistake. Unilateral mistakes are not mentioned.

[35]Learned counsel for the 4th Defendant contended that, relying on a passage inMenta Construction (supra),
that that rectification is not available for unilateral mistakes: “ [8] The appellant did not complain about any
mistake. It was only two years later that mistake was raised. Mistake was an afterthought. There was no mutual
mistake. A unilateral mistake is no ground for rectification (Southwind Development Sdn Bhd v Has(s)
Plantation, Foo Lian Sin & Anor v Ng Chun Lin & anor and Yuson Bien & Anor v Bankers Trust Co Ltd were cited)”

[36]A reading of the whole paragraph, rather than the selected sentences, tells us that it was not part of the Federal
Court’s decision. It was the submission of the respondent in that case. It is thus not binding and - by itself - has no
persuasive value. Further, in Southwind Development Sdn BHd v Hass Plantation Sdn Bhd (1995) 1 LNS 225, the
order for rectification sought in the Originating Summons was allowed because there was clearly a mutual
mistake. In Foo Lian Sin & Anor v Ng Chun Lin & Anor (2006) 1 MLJ 457, the Court of Appeal did not hold that
unilateral mistakes cannot be rectified. There it may have been the solicitor who made the mistake about the
shophouse number. Or it could have been the mistake of the Plaintiffs themselves. What was held in that case was
that there was no mutual mistake as between the parties, not that a unilateral mistake cannot be cured by
rectification. As for Yuson Bien & Anor v Bankers Trust Co Ltd (1979) 1 LNS 131; (1980) 1 MLJ 32, the Federal
Court held : “There is no question of mistake on the part of the respondents.”

[37]Indeed, the Federal Court in inMenta Construction (supra) referred to cases in English common law which
allow for rectification of unilateral mistakes, albeit in limited circumstances, none of which are applicable to the
present case. The apex court summarised the conditions for rectification of a unilateral mistakes thus:

“In Thomas Bates & Son Ltd v. Wyndham’s (Lingerie) Ltd [1981] 1 All ER 1077, Buckley LJ set out the following
requirements for rectification on the ground of unilateral mistake: (1) first, that one party, A, erroneously believed that the
document sought to be rectified contained a particular term or provision, or possibly did not contain a term or provision
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which, mistakenly, it did contain; (2) second, that the other party, B, was aware of the omission or the inclusion and that it
was due to a mistake on the part of A; (3) third, that B has omitted to draw the mistake to the notice of A; (4) the mistake
must be one calculated to benefit B, which were accepted as authoritative in Littman v. Aspen Oil [2005] EWCA Civ 1579.
In Commission for the New Towns v. Cooper (Great Britain) Ltd [1995] Ch 259, the Court of Appeal suggested that
knowledge that the claimant was acting under a mistake would extend to certain categories of imputed knowledge and that
there might be other examples of sufficiently unconscionable conduct. Given the case law, it is evident that s. 30, which
provides for fraud as a ground for rectification of the instrument, and s. 31, which provides “the court must be satisfied that
all the parties thereto intended to make an equitable and conscientious agreement”, were expressly designed to
accommodate exceptions to the general rule. A unilateral mistake within the exceptions suffices for rectification of the
instrument.”

See also the decision of Vazeer J (as he then was) in Teras Tegap Sdn Bhd v Perbandaran Kemajuan Negeri
Melaka (2016) 1 LNS 1759.

[38]There is no evidence that the 4th Defendant, at the material time the MOTs were signed on 15 and 22
December 2008, was aware of his/her mistakes, and did not draw the attention of the 1st Plaintiff to these
mistakes by which he/she would stand to benefit. Nor is there any evidence of fraud which would vitiate the
transfers. Thus, if it is correct that the Plaintiffs’ pleaded case is one of unilateral mistakes on the part of the 4th
Defendant, the remedy of rectification is not available to them.
(iii) There were no Mistakes

[39]On the evidence adduced, there were, in any event, no mistakes, be they unilateral or mutual, and I find that
the transfers were effected as intended.

[40]Before I set out the reasons for so holding, it is necessary to deal with the 2nd Defendant’s submission that “the
Plaintiffs cannot adduce any evidence in support of their case that there was a mutual mistake on the part of the
1st Plaintiff and the 4th Defendant as to the actual shares to be transferred to the 2nd Defendant.”

[41]Reference was made to the following words insection 91 (“no evidence shall be given in proof of the terms of
the contract, grant or other disposition of property or of the matter except the document itself”) andsection 92 of
theEvidence Act 1950 (“no evidence of any oral agreement or statement shall be admitted.... for the purpose of
contradicting, varying, adding to, or subtracting from its terms”). In so submitting, learned counsel for the 2nd
Defendant inexplicably omitted to mention the provisos or exceptions tosection 92. For instance, proviso (a) allows
such facts to be proved as would entitle any person to any order relating thereto, “such as fraud....or mistake in fact
or law.”

[42]If the submission for the 2nd Defendant were to be taken at face value, rectification could never be allowed.
Andsection 21 of the Contracts Act 1950 (which provides that an agreement is void where both parties to an
agreement are under a mistake as to a matter of fact essential to the agreement) would be redundant.

[43]As was long ago explained by Lord Hardwicke inBaker v. Paine (1750)1 Ves Sen 456 at 457; 27 ER 1140 at
1141: ‘How can a mistake in an agreement, be proved but by parol evidence? It is not read to contradict the face of
the agreement which the court would not allow, but to prove a mistake therein, which cannot otherwise be
proved...”

[44]Though the Plaintiffs were allowed to adduce evidence to show that what recorded in the MOTs and title deed
are a mistaken record of what was the purported understanding and agreement that all the children would get an
equal share of the land, they did little more than recite their mantra that it was always the 1st Plaintiff’s intention to
give her children equal shares in the land.

[45]By contrast, there was evidence in abundance that the 1st Plaintiff had intended to give a larger share to each of
her 4 older children and a smaller share to each of her 4 younger children in 2008.

[46]As to the circumstances in which the 1st Plaintiff executed the MOTs at the Tawau Land Office on 15 December
2008, and the MOT at the Kota Kinabalu Land Office on 22 December 2008, I will refer to her witness statement,
WSPW-1.

[47]On her first visit to the Tawau Land Office sometime in December 2008, the 1st Plaintiff had handed over the
title deed to and informed a female staff (whose name she cannot recall) that she wanted to transfer the land to her
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children equally. For reasons which will be apparent soon, I would think that the 1st Plaintiff intended and gave
instructions for a larger equal share to be given to her 4 older children and a smaller equal share to be given to her
4 younger children. The 1st Plaintiff was told to return another day with her children. She returned to Kota Kinabalu
the same evening, where she normally resided with her husband who had been posted there as a policeman.

[48]A few days later (on 15 December 2008), the 1st Plaintiff and the 4th, 5th and 6th Plaintiffs as well as the 1st
Defendant met with the same female staff at the Tawau Land Office, who, after having been allegedly told by the 1st
Plaintiff she wanted to transfer the land in equal shares to all her children, came back with 2 MOTs.

[49]The 1st Plaintiff said she could recall signing 2 MOTs on that day, the first in favour of the 4th Plaintiff and 1st
Defendant, and the second in favour of the 5th and 6th Plaintiffs. A perusal of the MOT in CBOD Part B, vol. 2, page
27, shows that the share to be transferred to the 1st Defendant is stated as 13,375/147,000 whereas the share to be
transferred to the 4th Plaintiff is smaller at 075/1470. A perusal of the MOT in CBOD Part B, vol. 2, page 39, shows
that each of the 5th and 6th Defendants had 075/1470 share in the land transferred to him. Out of the 4 transferees,
3 of them were each transferred a smaller share of 075/1470.

[50]Before the 1st Plaintiff and her 4 children went home that day, they were told that her other 4 children (the 2nd
and 3rd Plaintiffs, and the 2nd and 3rd Defendants) could go to the Kota Kinabalu Land Office to execute the MOT for
their shares to be transferred.

[51]One week later, on 22 December 2008, the 1st Plaintiff signed the MOT at the Kota Kinabalu Land Office,
transferring 13,375/147,000 share each to the 2nd Plaintiff and the 2nd and 3rd Defendants, but only 750/14,700 to
the 3rd Plaintiff. The 1st Plaintiff and the 4 transferees also signed the MOT which can be found in CBOD Part B, vol.
2, page 28.

[52]With reference to the MOTs, learned counsel for the Plaintiffs harped on the amendment of the 4 younger
siblings’ respective share from 1,000/14,700 to 750/14,700 (10,000/147,000) and argued that the amendments
were not initialled by the transferees.

[53]I do not think the amendments make any difference to the outcome of the case. The Plaintiffs’ case was not that
the 2nd - 6th Plaintiffs ought to have received 1,000/14,700 shares instead of 750/14,700 shares.

[54]More significantly, they did not discharge the burden of proving that the amendments were made without their
consent after they had signed the MOTs.

[55]I take it that the amendments were made before they signed the MOTs on separate days.

[56]It will be recalled that the 1st Plaintiff retained 1,000/14,700 share in the land. If the original instruction was to
give each of the 4 younger children a 1,000/14,700 share, the 1st Plaintiff would be left with no more interest in the
land. But if each of the 4 younger children’s intended shares were amended from 1,000/14,700 to 750/14,700 each
(as was done), that would leave the 1st Plaintiff with her present 1,000/14,700 share as is reflected in the title deed.
I am thus inclined to believe that the amendments from 1,000/14,700 to 750/14,700 were carried out on the
instructions of the 1st Plaintiff and there were no mistakes, given the signatures of the 1st Plaintiff as transferor (and
guardian for the minor children) and the adult children as transferees on all 3 MOTs.

[57]The instructions would have come from the 1st Plaintiff as she was the only one out of the whole family who
went to the Land Office on all 3 occasions: a few days before 15 December, on 15 December and on 22 December.

[58]On 15 December, there were 2 MOTs signed. On 1 MOT, the 4th Plaintiff’s share was reduced from
1,000/14,700 to 750/14,700. See page 27 of CBOD, Part B, vol. 2. On the other MOT, the 5th and 6th Plaintiffs also
had their each of their shares reduced from 1,000/14,700 to 750/14,700. See page 39 of CBOD, Part B, vol. 2.
What we see on 15 December is that by reducing the share of each of the 3 younger children by 250/14,700, the
mother would need another 250/14,700 share to be deducted in order for her to retain 1,000/14,700 of the land
which is what she now has, as can be seen on the title deed.

[59]This the mother did one week later at the Kota Kinabalu Land Office, on 22 December. The share of Siti
Saleha, the 3rd Plaintiff, one of the 4 younger children, was reduced from 1,000/14,700 to 750/1,470 shares. See
CBOD, vol.2, page 28. So there is nothing sinister in the amendments, but the allocations and amendments on
separate days all make sense and actually show the 1st Plaintiff knew all along what she wanted and intended to
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do. The amendments could only come about because she wanted to retain a 1,000/14,700 share in the land. These
are inferences which may be reasonably drawn from the facts and the title deed.

[60]Further, I find the Plaintiffs’ pleaded statement that they could not recollect whether the MOTs signed by them
on 15 and 22 December 2008 were filled with details of the their respective shares unconvincing. The collective
inability to recollect is a form of convenient amnesia, because if the details in the share column had been filled their
signatures would have been irrefragable testament to their acceptance. So they were compelled to suggest that the
share columns were not filled. Such an uncertain averment cannot explain away their signatures, even if they had
left the 4th Defendant to complete the blanks, regard having had to the decisions of Justice James Foong and
Justice Lee Swee Seng cited earlier.

[61]Furthermore, I find it hard to believe that when the 1st Plaintiff collected the title deed from the Tawau Land
Office in 2009, she only looked at the land title number and confirmed to the staff that it was the correct title deed,
before depositing it in a safe at her home in Kota Kinabalu. As can be seen from the title deed in CBOD Part B,
particularly at page 12, there are 2 endorsements thereon (following the MOTs of 15 and 22 December in the
preceding year), each conspicuously showing the names of the transferees and their respective shares as
registered on 27 March 2009. It may be noted that the 1st Plaintiff is literate in Bahasa Malaysia and English, and
had studied up to Form 2 in secondary school. See NOP, Q & A 35.

[62]It is virtually impossible to read the names of her children and not notice the shares they received, when these
details are next to each other. There are additional reasons why the 1st Plaintiff is not a credible or reliable witness
(apart from the reasons given and her acknowledgment “kes sudah lama, ada yang say ingat ada yang saya lupa”)
and these have been set out in detail by learned counsel for the 2nd Defendant in his submissions in reply.

[63]For the avoidance of doubt, the relevant page of the title deed is reproduced as follows:

[64]Before moving on to other reasons why there were no mistakes by the 4th Defendant which would justify
rectification, mention may be made of the evidence given by the witnesses from the Land Office who were called
by the 4th Defendant.

[65]PW 6, the incumbent ACLR of the Tawau Land Office, gave evidence as to the detailed process which a land
transfer has to undergo including presentation of the original title, LSF 1820 (MOT), LSF 1800 (form for personal
data), the identity cards or certified copies of the transferor and transferee, confirmation letter of the native status of
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the parties, verification process, a check on encumbrances, the allotment of memorial numbers, and so on. While
the Plaintiffs sought to rely on a letter from the Makhamah Anak Negeri dated 15 December 2008, that speaks of a
different allotment for the children comprising 67/1470 undivided share each which is not the 375/1470 (or
3750/14,700) equal fractional share that the Plaintiffs are seeking. At most, it shows the 1st Plaintiff had a fickle
mind and vacillated over what and how much she wanted to give her children. In any case, the maker of the
document was not called to explain the contents and his letter has scarcely any probative value, more so as the
Makhamah Anak Negeri’s sole responsibility in its dealings with the Land Office is to confirm the native status of the
transferees.

[66]PW 7 and PW 8 who attested the signatures in the MOTs both confirmed that “all the typewritten entries in the
same MOT, including the shares in fraction and decimals were in place before the parties stated in the document,
namely the transferor and transferees signed the document.” None of those who signed voiced any objection. See
NOP, Q & A 515-516 and 565-566.

[67]Moreover, there is compelling evidence the 1st and 2nd Plaintiffs knew of, and had acquiesced to the different
shares transferred. In this regard, reference is made to the Whatsapp voice messages, by the 1st and 2nd Plaintiffs
on 29 March 2019 to the 1st Defendant. The transcript is in CBOD Part B, vol. 2, pages 33-35. It suffices to refer to
the passages highlighted by learned counsel for the 1st and 3rd Defendants in her submissions, where the voice
messages are reproduced in full :

1st Plaintiff : Di sebelah mu itu memang kecil itu tukang ukur bilang yang bagi 2, yang 3 besar di sebelah 1 kecil. Di
sebelah tempat ku ini 1 besar 3 kecil sudah ikut dalam Geran itu bah ngam... (in local slang, followed the grant, that’s
correct) 7:21am

2nd Plaintiff : ....Lagipun majority aku rasa okay sudah semuanya ini..ha ikut ikut ikut betul di geran lah saya akan teruskan
11:17am

....sebab aku ikut Geran yang penting aku ikut Geran....11:23am

[68]Both 1st and 2nd Plaintiffs admitted their voice messages. See NOP, Q & A 27-28 and 101-102. When referred
to CBOD Part B, page 30, the 2nd Plaintiff agreed that this was the survey plan she meant in her Whatsapp voice
message. The survey plan dated 29 March 2019 shows the varying sizes of the plots for the 1st Plaintiff’s children.
Though the 2nd Plaintiff denied that she had instructed one one Setiawan Bin Tjunreng (DW 4) - a penolong
juruukur tanah - to do the survey plan, she admitted that she had “memanggil staff dari Jabatan Tanah untuk
datang membuat ukuran” and DW 4 was instructed by the Land Office. I am not inclined to believe the suggestion
that the Land Office was privy to the commission of private work, but I would think that the 2nd Plaintiff had in fact
instructed DW 4, more so when she testified that DW 4 did give her the survey plan but later tried to fudge her
answer by saying she could not recall if the survey plan was handed to her personally or by Whatsapp. See NOP, Q
& A 110-114.

[69]There is no credence to the 2nd Plaintiff’s testimony that she thought reference was made to the house plan (Q
& A 107) when she had earlier been specifically referred to the survey plan in CBOD, Part B, page 30 (Q & A 103).

[70]According to DW 4, he was instructed by the 2nd Plaintiff to make that sketch plan and he had handed it to her.
He gave evidence that he relied on the title deed (“Geran tanah NT 103027014 yang diserahkan oleh Encik
Hamdan, bapa kepada Puan Fatimah Hariani kepada saya”). When he handed over the sketch plan to the 2nd
Plaintiff, she did not raise any objection and “Puan Fatimah ada berkata dia mahu beritahu adik-beradiknya yang
deraf pelan ini dibuat mengikut share dalam Geran tanah.” The 2nd Plaintiff did not query him “kenapa saiz lot-lot
tanah pada deraf palan ini berbeza, ada yang bersaiz besar ada yang bersaiz kecil” See WSDW-4. The cross-
examination, ranging from suggestions that the 2nd Plaintiff did not instruct him to do the survey plan to questions as
to whether it was explained and accepted by the 2nd Plaintiff, did not dent DW 4’s credibility.

[71]The purported discovery in July 2018 by the 2nd Plaintiff of an unequal allocation, as expressed by her in the
family group chat, is self-serving or has no credibility in view of her instructions for the sketch plan drawn up by DW
4 on 29 March 2019 and the Whatapp voice messages by the 1st and 2nd Plaintiffs on the same day.

[72]If the Plaintiffs or 1st and 3rd Plaintiffs had only found out about the mistakes in July 2018 - as per paragraph 10
of the Reply - the 2nd Plaintiff would not have, some 8 months later, instructed DW 4 to draw up the sketch plan
which was based on the title deed endorsed with the larger share transfers to the 4 older children and smaller share
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transfers to the 4 other children. Instead, the 1st and 2nd Plaintiffs’ Whatsapp voice messages on 29 March 2019
affirmed the correctness of the plots according to the title deed and survey plan.

[73]The truth is there were no mistakes in the land transfers on 15 and 22 December 2008, be they unilateral,
mutual or common.
LIMITATION, MINORITY AGE, ATTESTATION, GIFT

[74]So far as the action predicated on mistake is concerned, the limitation period is 3 years.Item 77 of
theSchedule to the Limitation Ordinance stipulates that the limitation period of 3 years starts to run from the date
“when the mistake becomes known to the plaintiff.” If at all there were mistakes, the Plaintiffs knew of them in
December 2008 and their action herein would be defeated by the 2nd Defendant’s defence of limitation. The 1st, 3rd
and 4th Defendants did not put up limitation as a defence, and it does not avail them. The 4th Defendant’s attempt to
ride on the 2nd Defendant’s pleaded defence of limitation is misguided as section 3 of theLimitation Ordinance
requires that it be set up by the respective Defendant.

[75]It was submitted for the Plaintiffs that “the purported Memorandum of Transfer dated 15.12.2008 registered
under Memo No. 1010001667 [05] was executed by the 4th Plaintiff who was a minor of sixteen [16] years of age at
that material time.” Reliance was placed on theAge of Majority Act 1971, section 2 which provides that the age of
majority is 18, and theContracts Act, section 11 which provides a person is competent to contract if he has
attained the age of majority.

[76]Even if the transfer is void as against the 4th Plaintiff (who would be at liberty to re-transfer his share to his
mother, the 1st Plaintiff, if he continues to feel that the transfer to him is bad in law), the transfers to the other
transferees under that MOT are unaffected. These transferees had attained the age of majority and signified their
consent by affixing their signatures thereon.

[77]The argument ought to be given short shrift as we are not concerned with the 4th Plaintiff’s competency to
contract here. The 4th Plaintiff signed as transferee in the presence of his mother who was present as his guardian.
The 4th Plaintiff was the recipient of a gift. There was no contract. In so holding, I am guided byJasbir Kaur & Anor v
Tharumber Singh (1874) 1 MLJ 224 where the Federal Court held : “The transfer was for love and affection. In
other words it was a gift.”

[78]It was further submitted for the Plaintiffs, based on paragraph 35 of the amended Statement of Claim, that the
signatures on the MOTs dated 15 December 2008 and 22 December 2008 were not attested by a person
authorised undersection 97 of theSabah Land Ordinance which states that the signature, in Sabah, to every
memorandum shall be attested by any officer appointed by the Minister or by “a Magistrate, Justice of the Peace,
Notary Public, Commissioner for Oaths, an Advocate or the Collector.”

[79]There is no merit to this argument. It is not disputed that all parties concerned executed the MOTs or, in the
case of the 5th and 6th Plaintiffs, the 1st Plaintiff signed as guardian on their behalf.

[80]In any case, DW 7 testified that he was appointed and authorised to attest such signatures: “Jawatan saya
sebagai Penolong Tadbir Tanah atau Penyelia Tanah telah diwartakan sebagai attestor atau penyaksi dalam Warta
Kerajaan no. 325/197.” See NOP, Q & A 548. Likewise, DW 8 (NOP, Q & A 574) :

PC: Do you have any evidence in Court today to show that you were a person authorized and/or qualified under s. 97 of
Sabah Land Ordinance?

A : Merujuk kepada Warta Kerajaan Negeri Sabah 1972 no. 325/1972 schedule no. 2.

[81]As for the Plaintiffs’ assertion that “(f)or all we know, the alleged Warta Kerajaan could have been revoked,
nonexistence (sic) and/or not applicable to both DW7 and DW8 as alleged,” there was no evidence of
revocation.Section 103 of theEvidence Act 1950 places the burden of proof upon the party making the assertion.
There is then theInterpretation Act 1948 and 1967 -section 18(2) and (3) which when read together - provides
that publication in the Sabah Government Gazette constitutes sufficient notice of any matter required to be
published, in this case, the appointments and the corollary authorisation of DW 7 and DW 8 to attest signatures
pursuant to the Land Ordinance, section 97.
CONCLUSION
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Kamaliah bt Momong @ Kamariah bt Momong & Ors v Siti Aisah bt Hamdan & Ors [2021] MLJU 986

[82]It is improbable that the 4th Defendant unilaterally and mistakenly filled in two specific ratios of 13,375/147,000
and 7,500/147,000 shares to - coincidentally - the 4 eldest and 4 youngest children respectively.

[83]In the absence of mistakes as alleged, or any other vitiating factor afflicting the transfers in December 2008, I
have to agree with learned counsel for the 2nd Defendant that upon registration of the transfers on 27 March 2009,
the 1st Plaintiff’s gift was perfected and became irrevocable. SeeJasbir Kaur (supra).

[84]The Plaintiffs’ action is dismissed.

[85]In the upshot, the subsequent transfers - from the 3rd, 4th and 6th Plaintiffs to the 2nd Plaintiff, as well as the
transfer from the 3rd Defendant to the 1st Defendant - cannot be unravelled by the Court.

[86]In delivering its decision, the Court expressed hope that the feuding family members would reconcile in due
course. The Defendants’ counsels agreed to moderate the amount of costs sought. In accordance with the quantum
sought by each counsel, it was ordered that the Plaintiffs are to, jointly and severally, pay the 1st and 3rd Defendants
RM4,000.00 in total, the 2nd Defendant RM10,000.00 (with both orders of costs subject to payment of the allocatur
fee), and the 4th Defendant RM10,000.00. No provision is made for the allocatur fee in respect of the 4th Defendant
on account of the Arahan Amalan Ketua Hakim Negara Bil. 1 Tahun 2018 which provides that “kos yang
diawardkan kepada atau terhadap Kerajaan Persekutuan atau Kerajaan Negeri tidak tertakluk kepada fi alokatur.”

End of Document