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IN THE HIGH COURT OF MALAYA SITTING AT MUAR

IN THE STATE OF JOHORE
[CIVIL SUIT NO.: JB-22NCvC-66-11/2018]

BETWEEN

1. SOH POH

2. TOH CHENG CHAM

(By virtue of the Power of Attorney dated 29/03/1996 and the
Deed of Substitution dated 29/12/2017)
… PLAINTIFFS

AND

1. NORDIN MD SALLEH

2. LAND ADMINISTRATOR OF KLUANG / LAND OFFICE,

KLUANG

3. STATE DIRECTOR OF LAND AND MINERALS, STATE OF

JOHORE ... DEFENDANTS

CORAM:
AWG ARMADAJAYA BIN AWG MAHMUD
JUDICIAL COMMISSIONER

GROUNDS OF JUDGMENT

INTRODUCTION

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[1] This is a case where the Plaintiff in the amended Writ of

Summons and the amended Statement of Claim are seeking for
the following reliefs:

i. A Declaration that the Sale and Purchase Agreement

dated 29 March 1996 in respect of the property that is
held under the Title HS(M) 3269, PTD 3323, Renggam
Sub District, District of Kluang, State of Johore (“the
said property”) and the Power of Attorney dated 29
March 1996 is valid and lawful and the 1 st Defendant is
bound by the terms in the Sale and Purchase Agreement
dated 29 March 1996, and the Power of Attorney dated 29
March 1996, and the Deed of Substitution between Soh
Poh and the Plaintiff dated 29 December 2017.

ii. A Declaration that the 1 st Defendant who is holding the

said property as a trustee for the Plaintiff.

iii. A Declaration that the Plaintiffs is the beneficial owner

of the said property and the Plaintiff has the right to be
registered as the registered owner of the said property
under the Sale and Purchase Agreement dated 29 March
1996 and the Power of Attorney dated 29 March 1996,
and the Deed of Substitution dated 29 December 2017.

iv. The 1 st Defendant is ordered to obtain the approval from

the State Authorities for the transfer of the title of the
said property to the Plaintiff, with the assistance of the
2 nd and / or 3 rd Defendants and if the 1 st Defendant failed
to obtain the permission within 14 days from the date of
the Order being served on him, the Plaintiff is permitted
to apply to the State Authorities, the 2 nd and / or 3 rd
Defendants for the permission for the transfer of title and
the Deputy Registrar / Senior Assistant Registrar of the

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High Court of Muar is allowed to signed the application

form for the transfer of title and other documents on
behalf of the 1 st Defendant.

v. The 2 nd and 3 rd Defendants allowed the transfer and

registration the transfer of title of the said property to the
Plaintiff in the Registry of Land Titles.

vi. The Plaintiff is to be given the liberty to apply whenever

there is any infirmity or lacunae on any party to execute
the Orders.

vii. Cost to be borne by the 1 st Defendant.

viii. Other reliefs that the Court deems fit and just.

[2] There is a counter claim by the Defendant which seeks for the
following:

i. A Declaration that the Sale and Purchase Agreement

dated 29 March 1996 in respect of the property HS(M)
3269, PTD 3323, Renggam Sub District, District of
Kluang, State of Johore (“the said property”) is null, void
and of no effect and unenforceable.

ii. A Declaration that the Power of Attorney dated 29 March

1996, and the Deed of Substitution dated 29 December
2017 is null and void and the 1 st Defendant is not bound
by the terms of the Power of Attorney dated 29 March
1996, and the Deed of Substitution dated 29 December
2017.

iii. The Plaintiff are to vacate the said property that is held
under the Title HS(M) 3269, PTD 3323, Renggam Sub

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District, District of Kluang, State of Johore (“the said

property”).

iv. The Plaintiff are to surrender vacant possession of the

said property to the 1 st Defendant.

v. The Plaintiff are to surrender the title of the said property

to the 1 st Defendant.

vi. The private caveat lodged by the Plaintiff and Soh Poh
(formerly 1 st Plaintiff) be removed.

vii. Cost for this amended counter claim.

viii. Other reliefs that the Court deems fit.

[3] Before the commencement of the trial, Soh Poh passed away
and she was substituted by the 2 nd Plaintiff.

[4] The Cause Papers are as follows:

i. The Writ of Summons (Enclosure 1).

ii. The Statement of Claims (Enclosure 2).

iii. Statement of Defence and Counter Claim (Enclosure 4).

iv. Reply to the Statement of Defence and Counterclaim

(Enclosure 5).

v. Reply to the Statement of Defence and Counterclaim

(Enclosure 6).

vi. The Amended Statement of Claim. (Enclosure ).

vii. The Amended Statement of Defence and Counter

Claim. (Enclosure 49).

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viii. Reply to the Amended Statement of Defence and

Counter Claim. (Enclosure 51).

ix. Statement of Defence of 2 nd and 3 rd Defendants

(Enclosure 54).

x. Reply to Statement of Defence of 2 nd and 3 rd

Defendants (Enclosure 63).

xi. Bundle of Pleadings (Enclosure 66).

xii. Agreed Facts (Enclosure 67).

xiii. Common Bundle of Documents (Enclosure 68).

xiv. Triable Issues (Enclosure 69).

xv. Defendants’ Witness List (Enclosure 71).

xvi. 1 st Defendant’s Synopsis (Enclosure 72).

xvii. Triable Issues (Enclosure 73).

xviii. Plaintiffs’ Synopsis (Enclosure 75).

xix. Common Bundle of Documents (Enclosure 77).

xx. Amended Writ of Summons (Enclosure 85).

xxi. Amended Statement of Claims (Enclosure 86).

xxii. Supplementary Bundle of Documents (Enclosure 94).

xxiii. Common Bundle of Documents (Enclosure 100).

xxiv. 1 st Defendant’s Synopsis (Enclosure 102).

xxv. Amended Statement of Defence and Counterclaim

(Enclosure 104).

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xxvi. Reply to Amended Statement of Defence and

Counterclaim (Enclosure 107).

xxvii. Plaintiffs’ Bundle of Document (Enclosure 109).

xxviii. Supplementary Bundle of Document (Enclosure 110).

xxix. Amended Bundle of Pleadings (Enclosure 113).

xxx. Amended Statement of Defence (Enclosure 115).

xxxi. Supplementary Bundle of Documents (Enclosure 159).

THE BACKGROUND FACTS

[5] The Plaintiff is the son of Soh Poh (“the mother”) who initially
was the 1 st Plaintiff but since her demise, she has been
substituted by the 2 nd Plaintiff in this action and the action is
survived by him.

[6] Soh Poh was a Malaysian Citizen and of full age at the time of
the purported incident and during her lifetime stayed at No.4
Jalan Landak Taman Mohd Yassin, 86200 Simpang Renggam,
Johore Darul Takzim. Her son (the Plaintiff) is a Malaysian
citizen and of full age and has the same address for service.

[7] The 1 st Defendant is a Malaysian citizen, of full age and has his
address at No. 290 Felda Pemanis 2, 85000 Segamat, Johore.

[8] According to a purported Sale and Purchase Agreement (“the

SPA”) of a property is known as HS(M) 3269, PTD 3323,
Renggam Sub District, District of Kluang, State of Johore (“the
said property”) between Soh Poh as the purported buyer and the
1 st Defendant as the purported Vendor, the property was sold at

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a purported price of RM63,525-00 and it was dated 29 March

1996.

[9] Soh Poh was said to have paid the full purchase price to the 1 st
Defendant. It was also alleged that after the execution of the
SPA, an irrevocable Power of Attorney (“PA”) was executed
between the 1 st Defendant and Soh Poh on 29 March 1996 and
it confers upon Soh Poh the powers to:

i. Transfer the title into her name.

ii. Appoint representative from time to time.

[10] The purported Power of Attorney was registered at the Muar

High Court on 27 April 1996 through the Presentation Number
836/1996 and at the Kluang Land Office on 15 January 1997
through Volume 19 Folio 167 Serial Number 47/97. It was
alleged that after the signing of the SPA, the Defendant
surrendered vacant possession to Soh Poh and she with her late
husband developed the land and planted Oil Palm Trees.

[11] The Document of Title of the said property was said to be

surrendered to Soh Poh. A Deed of Substitution was executed
on 29 December 2017 whereby Soh Poh appointed the Plaintiff
as the representative for a consideration of RM1,000-00 and it
was registered in the Johor Bahru High Court on or about 2018
through the Presentation No. 1303 / 2018 and at the Luang
Land Office on 5 February 2018 through the Presentation
Number 24/2018.

[12] In the said instrument, the Plaintiff was given the authority by
Soh Poh to be registered as the registered owner of the
property. Pending the attempts to register the Title of the said

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property in the name of Soh Poh, she and her husband took
vacant possession of the said property.

[13] The Defendant’s version was that he has never entered into any
Sale and Purchase Agreement with Soh Poh. He never met or
knew Soh Poh. Apart from that, he never executed an
Irrevocable Power of Attorney with Soh Poh and he never
received a single cent from Soh Poh.

[14] His version was that in 1994, his father-in-law borrowed his
identity card for the purpose of applying for land. That was the
last he was informed of any piece of land. He came to know of
the said property when he received a Notice of Arrears of
Assessment rates and he engaged the services of a solicitor to
do a search and found the said property is in his name and
allegedly sold by him to Soh Poh.

[15] Hence this Writ action.

THE AGREED FACTS

[16] The agreed facts between the Plaintiffs and the 1 st Defendant
are as follows:

i. The property is known as HS(M) 3269, PTD 3323,

Renggam Sub District, District of Kluang, State of Johore
(“the said property”) is still registered in the name of the
1 st Defendant.

ii. The said property has restrictions / conditions in that

approval must be obtained from State Superintendent of
Land /State Authorities before it can be transferred to Soh
Poh.

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iii. The 1 st Defendant paid for the assessment rate for the said
property in the year 2018.

[17] The agreed facts between the Plaintiffs and the 2 nd and 3 rd
Defendants:

i. The property is known as HS(M) 3269, PTD 3323,

Renggam Sub District, District of Kluang, State of Johore
(“the said property”) is still registered in the name of the
1 st Defendant.

ii. The Irrevocable Power of Attorney dated 29 March 1996

was filed at the Kluang Land Office under the folio 167
with the serial number 47/97 on 15 January 1997.

iii. The irrevocable Deed of Substitution was registered at the

Kluang Land Office on 5 February 2018 through the
Presentation No. 24/2018 and the 1 st Defendant was
named as the Trustee for the Soh Poh and / or the
Plaintiff through the Power of Attorney.

iv. The Plaintiff entered a private caveat on the property is

known as HS(M) 3269, PTD 3323, Renggam Sub District,
District of Kluang, State of Johore (“the said property”)
through the Presentation Number 146/2018.

v. The 2 n d Defendant received the application to remove the

private caveat form the 1 st Defendant with the
Presentation No. 766 / 2018 dated 10 July 2018.

THE EVIDENCE ADDUCED BY PARTIES

[18] The Plaintiff called 5 witnesses to the stand to support his case
while the Defendant called one.

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[19] The Plaintiff’s witnesses are as follows:

i. PW1 – Puan Nurul Hafika Noor Hamid.

ii. PW2 – Mr Toh Cheng Cham (the Plaintiff).

iii. PW3 - Mr Subramanaiam a/l Supramaniam.

iv. PW4 - Puan Ko Kai Ju.

v. PW5 - Puan Azlina bt Zainal Abidin.

[20] The Defendant’s sole witness is DW1 – Encik Nordin bin

Salleh (the 1 st Defendant himself).

[21] The evidence adduced by the Plaintiff is as follows:

i. PW1 – Puan Nurul Hafika Noor Hamid

[22] PW1 works with the Malaysian Bar Council as a senior officer
at the membership section. She confirmed that she has retrieved
from the Bar Council records, that one Halimah binti Hussein
(“Puan Halimah”) was a practising advocate and solicitor on 28
November 2019 in the High Court of Malaya. The said Puan
Halimah was admitted and registered on the Rolls of the
Advocate and Solicitor of the High Court of Malaya on 28
March 1995 and the last practising certificate issued to Puan
Halimah was in 1997 and she was a legal associate at Messrs
Hussein Ariffin & Associates (which ceased legal practice on
31 March 2000). She was disallowed to practise law beginning
from 1 January 1998. Her current status is inactive.

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Cross Examination

[23] The cross examinations were on the issuance of letter for

cessation of practice by the said Puan Halimah and the reason
for her cessation of legal practice.

ii. PW2 – Mr Toh Cheng Cham (the Plaintiff)

[24] PW2 gave evidence that he is claiming the property that is held
under the Title HS(M) 3269, PTD 3323, Renggam Sub District,
District of Kluang, State of Johore (“the said property”) which
was bought by his late mother (Soh Poh) from the 1 st Defendant
and demanded it be transferred to him.

[25] The claim is made pursuant to the Sale and Purchase

Agreement dated 29 March 1996 and the Power of Attorney
dated 29 March 1996, and the Deed of Substitution dated 29
December 2017. His mother (Soh Poh) died on 15 January 2020
(“the late mother”) and her death certificate was produced at
page 22 Common Bundle of Documents (Enclosure 77).

[26] Vide the Deed of Substitution dated 29 December 2017, the

late mother appointed PW2 as a representative for the said
property for a consideration of RM1,000-00 only. The Deed of
Substitution was prepared by a solicitor by the name of Ms Koh
Kai Ju who practise law at the solicitors firm Messrs Tan
Syazwan & Co. whose address for service is No. 753 Jalan
Taib, 82000 Pontian.

[27] The appointment as representative was by virtue of an

irrevocable Power of Attorney dated 29 March 1996. The
transfer of title of the said property could not be carried out
without the approval of the State Authorities and the late

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mother appointed PW2 to pursue the matter until it is

transferred to PW2.

[28] The Irrevocable Power of Attorney dated 29 March 1996 was

filed at the Kluang Land Office under the folio 167 with the
serial number 47/97 on 15 January 1997 while the registration
at the Muar High Court was done vide presentation no.
836/1996 on 27 April 1996.

[29] The Deed of Substitution was registered at the Kluang Land

Office on 5 February 2018 through the Presentation No.
24/2018 and the 1 st Defendant was named as the Trustee for the
Soh Poh and / or the Plaintiff through the Power of Attorney.

[30] A file search conducted at the Muar High Court revealed that
the Power of Attorney was still valid as there isn’t any
application to rescind the said Power of Attorney as of 10
December 2019. This is based on a letter from the Muar High
Court dated the same.

[31] However later there was an application by the 1 st Defendant

that the Power of Attorney be rescinded. At the time PW2 was
a teacher at a Chinese Primary School in Machap. He has
personal knowledge of the land because his late father told him
sometime late 1995 or early 1996 that there were 2 pieces of
properties that the owners wish to sell. One is the property that
is held under the Title HS(M) 3269, PTD 3323, Renggam Sub
District, District of Kluang, State of Johore (“the said
property”) and the second is a piece of land which is known as
HSM 2423 PTD 3324, Renggam Sub District, District of
Kluang which was owned by a person by the name of Sapuan
bin Kamit. He doesn’t know the name of the agent who deals
with the lands.

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[32] As his late father was an undischarged bankrupt, he asked PW2

to help him in the purchase of the said properties. His late
father wants to purchase one of the properties in his (PW2)
name and he asked PW2 to find funds to buy the 2 nd piece of
property.

[33] His late mother bought the said property from the 1 st
Defendant. All were dealt with by his late father. Before the
purchase of the said property, PW2 viewed the property at the
time, it was planted with Oil Palm trees but the trees were
unattended and there were bushes and undergrowth. The trees
were at the time, 12 years old.

[34] PW2 signed the Sale and Purchase Agreement at the solicitors
firm Messrs K. Siladass & Partners whose address for service
was at No.24 Jalan Lambak, 86000 Kluang, Johore. PW2
testified that he went to the solicitors firm with his parents. He
did not attend the execution of the Sale and Purchase
Agreement because there was also another Sale and Purchase
Agreement between him and Sapuan bin Kamit.

[35] He further gave evidence that the 1 st Defendant was at the

solicitors’ office during the signing of the Agreement. He knew
of the 1 st Defendant’s presence because his parents told him of
the 1 st Defendant’s presence and the fact that his parents told
him that a cheque was handed over to the 1 st Defendant.

[36] He knew Puan Halimah and he recognised her signature. Puan

Halimah attested to his signature in the agreement. A Sale and
Purchase Agreement was signed on 29 March 1996 between
PW2 and Sapuan bin Kamit on the property that is held under
the Title HSM 2423 PTD 3324 (now known as LM13 Lot 8601)
Renggam Sub District, District of Kluang. He does not know
the whereabouts of Puan Halimah and has served a Notice to

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Attend Court on 11 January 2021, 12 January 2021 and 13

January 2021 to give evidence. The purchase price of the said
property was RM63,525- 00 and a cheque was issued in the
name of the 1 st Defendant. PW2 gave evidence that the money
was obtained from a loan with the Bank Pertanian, Rengit
Branch but he has no proof of the loan.

[37] The repayment sum was RM1,345-50 per mensem and his late
father as well as his mother paid for the loan. This is because
he merely assisted his parents to get the funding for the
purchase of the properties. He knew that there is a condition on
the Title that the transfer of Title cannot be effected without
the approval of the State Authorities because the 1 st Defendant
agreed to give possession of the land as well as the Title to his
mother after all the purchase price has been received.

[38] The Document of Title is kept by the mother (Soh Poh) who got
it from the solicitor who in turn, took it from the 1 st Defendant.
Since 1996, the mother kept the Document of Qualified Title
but did not take any action because the actions in respect of the
said property were handled by the late father. PW2 came to
know that the said property was still registered in the name of
the 1 st Defendant at the end of 2017. This happened when the
late father passed on and the matters concerning all the
properties were taken over by the mother.

[39] After seeing all the documents which are the Sale and Purchase
Agreement, the Power of Attorney and the Document of Title
did he realised that the said property is still in the name of the
1 st Defendant. PW2 seek the legal advice from the solicitors’
firm Messrs Burton Tan Syazwan & Co. and at the office he
met Ms Koh Kai Ju.

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[40] (There was an application to introduce a document allegedly

the loan from Bank Pertanian in the midst of the trial. After
hearing parties, and having sight of the alleged documents,
I dismissed the application on the grounds:

i. No proper application was made to introduce a

document in the midst of a trial since search coul d be
done earlier at the Bank Pertanian but was not done.
Parties could not be allowed to challenge the
application vide affidavits because it would stall the
trial.

ii. The loan was a personal loan when the evidence given
earlier was a loan to finance the purchase of a land
which is a different kettle of fish altogether.

iii. This is not where the document was not available

before but discovered at the last minute. It is a
document that could be retrieved with a little
diligence.

iv. This introduction of a document is a trial by ambush.

Hence it is procedural injustice to the adversary
party).

[41] She advised him to lodge a private caveat to prevent any

transaction or dealings with the said property by anyone else,
until the transfer of title to the name of the mother is
completed. So he lodged a private caveat with a statutory
declaration dated 29 December 2017. However later, on 10 July
2018, he received a Form 19C ie, a notice of application to
remove the private caveat from the Registrar / Administrator of
Land, Kluang Land Office, Johore.

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[42] Then PW2 made an application vide an Originating Summons

No. JB-24NCVC-316-08/2018 to challenge the application to
remove the private caveat. PW2 paid the assessment rates and
the quit rent. In 2018 the 1 st Defendant paid assessment rates
and quit rent. PW2 planted Oil Palm trees and he seeks the
Court’s Order to have the said property transferred to his name.

Cross Examination

[43] PW2 admitted in cross examination that the sale and purchase
of the said property was between the 1 st Defendant and Soh Poh
(the mother) and not with him. He admitted that the signature
on the name of Nordin Salleh is NOT the signature of Nordin
Salleh (the 1 st Defendant (page 45 of the notes of proceedings).
He does not know the 1 st Defendant and have never met the 1 st
Defendant.

[44] The signing of the said Sale and Purchase Agreement was made
on 29 March 1996 which was 24 years ago.

[45] (I noted that PW2 was evasive in answering the presence of the
1 st Defendant during the signing of the sale and purchase
agreement. Page 47 Notes of Proceedings. He can understand
the same issue in the examination-in-chief but try to evade
answering in the cross- examination).

[46] PW2 said that a few lawyers were in attendance during the
execution of the Sale and Purchase Agreement who are
Halimah bt Hussain, Azlina bt Zainal Abidin, and
Subramanian.

[47] (there was a break in the cross examination when the

learned Counsel for the Plaintiff applied to have the
evidence of PW2 be stayed and the 3 rd witness Mr

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Subramanaiam a/l Supramaniam be called as he has to

attend to his medical appointment on the following day. I
allowed it to facilitate the trial).

[48] During the time when his mother signed the Sale and Purchase
Agreement, PW2 was not with the mother. He went to another
room to sign another document but within the same solicitors
firm. PW2 admitted that he signed another sale and purchase
agreement with Sapuan bin Kamit and the solicitor who
attested the execution was also Halimah binti Hussein.

[49] PW2 insisted (this time around) that the 1 st Defendant came for
the signing of the Sale and Purchase Agreement. PW2 denied
that he did not know of the Power of Attorney. He insisted the
Power of Attorney is valid but does not know the content. Prior
to this writ action there was no suit against the mother or PW2.

[50] On the same day, there was another execution of Sale and
Purchase Agreement also attested by Halimah binte Hussein.
PW2 agreed that only the agent who arranged for the sale of the
said property can testify on the presence of the 1 st Defendant
apart from Halimah and Soh Poh. PW2 said the proof of
payment of the purchase price is found in the said Sale and
Purchase Agreement.

[51] The cheque was a UMBC cheque, signed on 29 March 1996 but
he was not sure when was the cheque cleared. He agreed that
until 2017, he did not make any follow-up on the registration of
the said property.

[52] PW2 disagreed that other people had signed on behalf of the 1 st
Defendant in the Sale and Purchase Agreement. He disagreed
that the 1 st Defendant did not know of the land until he
received the notice to pay arrears of assessment rates / quit

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rent. PW2 however agreed that in 1997 he paid for the

assessment rates / quit rent.

[53] In the cross examination by the Learned Assistant State Legal

Advisor, PW2 agreed that in the event the Defendant failed to
obtain the approval / permission from the State Authorities, the
agreement shall be rescinded and the Defendant is to return the
purchase money paid plus interest.

[54] PW2 also agreed that by virtue of the Deed of Substitution, he

is empowered to do the same. He disagree that by virtue of the
failure of the Defendant to seek / obtain approval from the
State Authorities, transfer of title is not possible.

[55] He also disagreed by virtue of the failure of the Defendant to

seek / obtain approval from the State Authorities, the Deed of
Substitution cannot be executed and PW2 has no locus standi to
commence the writ action.

Re-examination

[56] In the Re-examination PW2 testify that he can recognised only

the signature of his mother and the solicitor Halimah binte
Hussein.

[57] PW2 reiterated that he does NOT know the signature of Nordin
bin Salleh on the Sale and Purchase Agreement but he could
recognised the signature of his mother and the solicitor
Halimah binti Hussein. In face of the 2 pieces of property PW2
isn’t sure which was executed first. He was only at the office
of Messrs K. Siladass. He was not a witness to the signing of
the Sale and Purchase Agreement of the said property although
he was the office of the solicitor’s firm but since there were
more than one room, he was in another room.

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[58] His late father asked him to help out on the purchase of the 2
pieces of land. He issued the cheque to the sum of RM63,525 to
his mother and he doesn’t know what happened after that. PW2
testified that a lawyer by the name of Azlina attested to the
Power of Attorney. Prior to 2017 all were handled by his late
father and after his father’s death, the matter was taken care off
by his mother. He was then, not staying with his mother.

[59] Prior to 2017 he was not interested in taking any action to

recover the said property but after he took over by the Deed of
Substitution he became interested. He paid the assessment rates
of all the years except 2018.

iii. PW3 - Mr Subramanaiam a/l Supramaniam

[60] PW3 works at Messrs K.Siladass & Partners for about 36 years
as a clerk and his job scope include (among others), making
file search, posting and serving documents and other things as
directed by his office. PW3 testified that the parties in the
Power of Attorney that was dated 29 March 1996 were Soh Poh
and Nordin bin Salleh and he cannot remember the incident.

[61] He was able to identify only the signatures of Azlina, Razaly

and himself, and he said he signed on the Power of Attorney as
a person who has identified the donor and donee of the Power
of Attorney. Normally he checked the identity cards of the
people who are to sign a Power of Attorney before the solicitor
explain the contents. That was the practice then and is no
longer so now.

[62] He identified the signature of the solicitor Halimah binti

Hussein whom he knew personally. This was because she used
to work at the solicitors firm Messrs K Siladass & Partners.

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Encik Razaly was a clerk at the firm but he left many years
ago.

Cross Examination

[63] PW3 was asked of his job and that he was not a clerk but an
office boy to which he disagreed because he do all sorts of job
in the office. The Power of Attorney (“PA”) was signed on 29
March 1996 in the presence of the solicitor Azlina binti Zainal
Abidin. He disagreed to the suggestion that the PA was signed
separately. However he admitted that the PA was signed in
front of himself and Razaly and not Azlina. Azlina only came
later to attest to the PA.

[64] (the witness was being evasive when he was asked that the
solicitor attested to the purported signature of Nordin Salleh).

[65] PW3 does not know that there were 2 different solicitors, one
attesting to the Sale and Purchase Agreement and the other
attesting to the Power of Attorney. He does not know why the
Sale and Purchase of the said property was having the same
reference number as the Sale and Purchase reference of the
property which was bought from Sapuan bin Kamit.

Re-Examination

[66] In the re-examination PW3 explained that normally the

Solicitor Azlina binte Zainal Abidin will explain the contents
of a document before inviting parties to affix their signatures
on the documents.

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iv. PW4 - Puan Ko Kai Ju

[67] PW4 is a legal associate that practise law at the firm of Messrs
Burton Tan Syazwan & Co whose address is at No. 753 Jalan
Taib, 82000 Pontian in the State of Johore, for about 5 years
now. She came to testify about the Deed of Substitution dated
29 December 2017 between Soh Poh and Toh Cheng Cham.
They are mother and son and they came to her office to execute
a Deed of Substitution. This is because Soh Poh felt that she is
old and she wanted the son to take over all matters in respect of
the said property.

[68] The Deed of Substitution was registered at the Land Office in

Kluang and the High Court at Muar. They brought along with
them a original copy of the Power of Attorney which was dated
29 March 1996. PW4 attested to the Deed of Substitution. Soh
Poh affixed her thumb print because her hands were not steady
and she don’t want to sign. The consideration that the Plaintiff
paid was RM1000- 00.

[69] Apart from that the Plaintiff entered a private caveat on the
property that is held under the Title HS(M) 3269, PTD 3323,
Renggam Sub District, District of Kluang, State of Johore (“the
said property”).

[70] PW4 also prepared an application to enter a private caveat on

the said property and invited the Plaintiff to affirm a statutory
declaration to support the application. The reason for the
application was that the said property is still in the name of the
1 st Defendant and that to prevent any other transaction in
respect of the said property.

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Cross examination

[71] PW4 disagreed to the suggestion that approval has to be

granted by the Land Administrator / Sate Authorities before
any transfer of land title may be done in the respect of the said
property.

[72] PW4 agreed that the Sale and Purchase Agreement of the said
property as well as the Power of Attorney were dated the same
day. He disagreed that the Power of Attorney was not attested
by a solicitor but by 2 staff before handing it over to a
solicitor. She disagreed that the Deed of Substitution could not
be enforced because the Power of Attorney could not be
executed.

[73] Soh Poh according to PW4 seemed a little weak. She cannot
confirm that the signature on the Sale and Purchase Agreement
does not belong to Soh Poh as she did not witness the signing.

[74] The Power of Attorney was not attested to by PW4 but by a

solicitor with the name of Azlina. PW4 however agreed that in
clause 3 of the Sale and Purchase Agreement of the said
property meant that in the event that Nordin bin Salleh failed to
obtain approval from the State Authorities for the transfer of
title of the said property, then Nordin bin Salleh must refund
the sum of RM63,525-00 plus interest. PW 4 later changed her
answer to that she disagreed.

v. PW5 - Puan Azlina bt Zainal Abidin

[75] PW5 is currently working with MIMOS BERHAD as a Senior

Legal Counsel. In 1995 / 96 she worked at the solicitors firm
Messrs K Siladass & Partners at No, 24 & 26 Jalan Lambak,

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86007 Kluang Johore. She worked there for about 2 years from
1994 and resigned in May 1996. She was practising as an
advocate and solicitor at the firm before moving to Kuala
Lumpur to work at Messrs Othman Hashim & Co. and later at
MIMOS BERHAD.

[76] PW5 gave evidence that a document was an Irrevocable Power

of Attorney dated 29 March 1996 and according to the
document it was between Nordin bin Md Salleh as the Donor
and Soh Poh as the Donee. Her evidence was that she admitted
being a witness to the signatures of Nordin bin Salleh and Soh
Poh. She cannot remember if she met both of them.

[77] Her usual practice was that she would explain the contents of
the document to both parties before directing both parties to
sign on the instrument. After witnessing the 2 parties signing
on the instrument she will then affixed her signature.

[78] While explaining the Power of Attorney she cannot remember

what language she used to explain to parties.

[79] She would also check the identity cards of both parties to
ensure the details are the same. At page 40 of the Common
Bundle, PW5 said the signatures were her own.

[80] Her signatures on the document signify that the signatures of

the donor and donee were executed in front of her on 29 March
1996 and that it is based on the information of the donor and
donee given by people who are trusted and in this case, they
are Subramanian a/l Supramaniam and Razaly bin Saim. She
noted that the Power of Attorney dated 29 March 1996 were
registered at the High Court in Muar and the Kluang District
Land Office.

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[81] When the Sale and Purchase Agreement was prepared and
attested to by Puan Halimah Hussein whom she knew
personally. At the time Puan Halimah was also a solicitor with
the same solicitors’ firm. She believed at the time the practice
was not to have the same solicitor attesting to 2 documents at
the same time.

[82] This is when the 2 documents are prepared together which

happened when the vendor received full price and gave vacant
possession but registration could not be done immediately. She
could not explain how 2 different properties in 2 different
transactions could use the same reference number.

Cross Examination

[83] PW5 agreed that by virtue of section 3 Power of Attorney Act

1949, if the Power of Attorney is not attested before a solicitor
it is unenforceable. Although PW5 said she could not recall on
P11 (Enclosure 77 page 36) because it was made a long time
ago she insisted that it is good in law and enforceable. She
denied that she did not meet the 1 st Defendant at the time in
question but kept saying she cannot remember a lot of things as
it happened so long ago. She cannot remember the parties, the
language used or the transaction but relied heavily on the
document which was referred to namely the Irrevocable Power
of Attorney.

[84] PW5 agreed that by virtue of Clause 3 of the Sale and

Purchase Agreement, the remedy for a breach of the terms
and conditions of the contract is the return of RM63 ,525 to
the Soh Poh or the Plaintiff. She disagreed to the suggestion
that she did not explain the terms and conditions of the Power
of Attorney but merely affixing her signature on the document.

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[85] She said that there were 6 people in attendance when the Sale
and Purchase Agreement were signed as well as when the
Power of Attorney which was signed at the same time. They
were herself, Soh Poh, the 1 st Defendant, Mr Subramanian,
Encik Razali and Puan Halimah Hussein. She cannot remember
when was the last time she saw Puan Halimah’s signature but
disagreed that she could not identify her signature and she
believed that was the signature of Puan Halimah Hussein.

[86] She agreed that she is not a handwriting expert and she has no
document bearing Puan Halimah’s signature in her possession.
She denied that the 2 documents were signed on different days.
She disagreed that she was dependant upon Subramaniam and
Razaly to ascertain the authenticity of the persons as well as
the identities. She denied that the signatures on the Power of
Attorney as well as the Sale and Purchase Agreement was
extracted from other documents.

[87] Later in the cross-examination she disagreed with the

suggestion again that the remedy for any breach was the return
of the purchase sum. She denied not knowing the person
present at the time of execution of the 2 documents was Nordin
Salleh because she cannot ascertain his identity.

[88] However she admitted being dependent on Subramaniam and

Razaly on identity of Nordin bin Salleh. She was on the
presumption that the person presenting himself was Nordin bin
Salleh which was what the identity card say.

THE DEFENDANT’S CASE

[89] The Defendant’s case is supported by the testimony of DW1 –

Nordin bin Salleh.

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[90] DW1 is a Felda Settler at the Felda Pemanis 2, Segamat in the

State of Johore and stayed at No. 290 Felda Pemanis 2, 85000
Segamat, Johore. He does not know the Plaintiff who claimed a
property that is held under the Title HS(M) 3269, PTD 3323,
Renggam Sub District, District of Kluang, State of Johore (“the
said property”).

[91] He has never seen the Document of Title before this suit and
his only properties are the Felda Land and the property on
which he built his house.

[92] He has never met any person by the name of Soh Poh. In 1994
he worked with his father-in-law, a settler too. One day his
father-in- law called him as he was preparing to go to the oil
palm plantation, his father-in-law called him and asked for his
Malaysian Identity Card. The reason for asking is that the
father-in-law wishes to apply for land and after that incident,
there was no news about the application or any land. The
father-in-law has passed on since.

[93] He came to know of the land around May 2018 when he

received a notice from the Land Office in the District of
Kluang on the arrears of the quit rent / assessment rate.

[94] Upon receiving the notice, he went to the Land Office with his
son and in-laws to pay for the assessment rates and to do a
search on the said property. He found that a person has lodged
a private caveat and this person turned out to be the Plaintiff so
he engaged the services of a solicitor to remove the caveat.

[95] He has never seen the Sale and Purchase Agreement (Enclosure
77 page 30-34) He cannot understand English and his education
was in a Malay School level only. He cannot read or speak
English.

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[96] From the information that he obtained the private caveat was
entered on 5 February 2018 and he was informed that the
Plaintiff and his mother by the name of Soh Poh had applied
for an extension of the caveat.

[97] In 1996, he was about 48 years old and he has never been to the
office of a solicitors’ firm by the name of Messrs K.Siladass &
Partners. He does not know anyone there by the name of
Subramaniam or Razaly.

[98] The address No. 49 Kg Sg Suloh Batu Pahat, Johore is the

address of his late father-in-law and his brother stays there
now. The address is found on the receipt of the assessment
rates because it is the address in his identity card. The last time
he went to the address No. 49 Kg Sg Suloh Batu Pahat, Johore
was in May 2018.

THE TRIABLE ISSUES

i. Whether this writ action is caught by limitation and the

Doctrine of Laches as per paragraph 20 Enclosure 49.

ii. Whether the absence of Halimah binti Hussein invites adverse

inference against the Plaintiff’s case.

iii. Whether the failure to prove the authenticity of the purported

signature of the 1 st Defendant is fatal to the Plaintiff’s case in
view of the fact that the 1 st Defendant denied signing any
papers to sell off the said property.

iv. Whether the purported Sale and Purchase Agreement in respect

of the property that is held under the Title HS(M) 3269, PTD
3323, Renggam Sub District, District of Kluang, State of

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Johore (“the said property”) which is found on pages 30 to 35

Enclosure 77 is authentic and valid in law and enforceable.

v. Whether the purported Irrevocable Power of Attorney dated 29

March 1996 between Nordin bin Salleh and Soh Poh is
authentic and valid in law and enforceable.

vi. Whether the Plaintiffs succeeded in proving its claims as per

the Amended Statement of Claim.

vii. Whether the Defendants succeeded in proving its claims as per

the Amended Statement of Defence.

I shall deal with the issues accordingly

i. Whether this writ action is caught by limitation and the

Doctrine of Laches as per paragraph 20 Encl 49

[99] PW2 gave evidence that he is claiming the property that is held
under the Title HS(M) 3269, PTD 3323, Renggam Sub District,
District of Kluang, State of Johore (“the said property”) which
was bought by his late mother (Soh Poh) from the 1 st Defendant
and demanded it be transferred to him.

[100] The claim is made pursuant to the Sale and Purchase

Agreement dated 29 March 1996 and the Power of Attorney
dated 29 March 1996.

[101] The transfer of title of the said property could not be carried
out without the permission of the State Authorities and the late
mother appointed PW2 to pursue the matter until it is
transferred to PW2.

[102] The Irrevocable Power of Attorney dated 29 March 1996 was

filed at the Kluang Land Office under the folio 167 with the

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serial number 47/97 on 15 January 1997 while the registration

at the Muar High Court was done vide presentation no.
836/1996 on 27 April 1996.

[103] Among the Defence that the 1 st Defendant put up is that the
claim is time barred and hence the Doctrine of Laches has set
in as a shield against such a claim.

[104] On the issue of delay, the maxim Vigilantibus, non

Dormientibus, jura Subveniunt (the law assists only those who
are vigilant, and not those who sleep over their rights) must be
adhered to. Litigants should act sine mora and the Court will
not tolerate any form of indolence. This was emphasised in
several cases including KHOR CHENG WAH v. SUNGAI WAY
LEASING SDN BHD [1997] 1 CLJ 396; [1996] 1 MLJ 223, and
TUAN HAJI AHMED ABDUL RAHMAN v. ARAB-MALAYSIAN
FINANCE BHD [1996] 1 CLJ 241; [1996] 1 MLJ 30. Although
the facts of those cases are not on all fours with the facts of the
present case, the approach in addressing the issue of delay
applies generally.

[105] Laches has been aptly described as ‘inaction with one’s eyes
open’ by His Lordship Justice Edgar Joseph Jr (as he then was)
in ALFRED TEMPLETON & ORS v. MOUNT PLEASURE
CORP SDN BHD [1989] 1 CLJ 693; [1989] 1 CLJ (Rep) 219;
[1989] 2 MLJ 202:

Laches is an equitable defence implying lapse of time and

delay in prosecuting a claim. A court of equity refuses its
aid to a stale demand where the plaintiff has slept upon
his rights and acquiesced for a great length of time. He is
then said to be barred by laches. In determining wh ether
there has been such a delay as to amount to laches the
court considers whether there has been acquiescence on

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the plaintiff’s part and any change of position that has

occurred on the part of the defendant. The doctrine of
laches rests on the consideration that it is unjust to give a
plaintiff a remedy where he has by his conduct done that
which might fairly be regarded as equivalent to a waiver
of it or where by his conduct and neglect he has, though
not waiving the remedy, put the other party in a po sition
in which it would not be reasonable to place him if the
remedy were afterwards to be asserted: (14 Halsbury’s
Laws of England (3 rd Ed) paras 1181, 1182). Laches has
been succinctly described as ‘inaction with one eye’s
open’.

[106] Laches is established when two conditions are fulfilled which

are:

i. there must be unreasonable delay in the commencement or

prosecution of proceedings.

ii. in all the circumstances, the consequences of delay must render

the grant of relief unjust.

[107] The oft-cited principle on laches is found in the enlightening

passage by Lord Selborne in the landmark case of LINDSAY
PETROLEUM CO v. HURD [1874] LRPC 221:

But in every case if an argument against relief which

otherwise would be just is founded on mere delay, that
delay of course not amounting to a bar by any Statute of
Limitations, the validity of that defence must be tried
upon principles substantially equi table. Two
circumstances always important in such cases are the
length of the delay, and the nature of the acts done
during the interval, which might affect either party and

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cause a balance of justice or injustice in taking the one

course or the other so far as relates to the remedy.

[108] In KHOR CHENG WAH v. SUNGAI WAY LEASING SDN BHD

[1997] 1 CLJ 396; [1996] 1 MLJ 223, where the following
comments of his Lordship Justice Gopal Sri Ram (speaking for
the Court of Appeal) are pertinent:

It is a cardinal principle of law, that when a litigant

seeks the intervention of the court in a matter that affects
his rights, he must do so timeously. The maxim
Vigilantibus, non Dormientibus, jura Subveniunt, though
having its origins in the Court of Chancery, is of
universal application.

[109] In the Duhaime’s Law Dictionary the Maxim “Vigilantibus Et

Non Dormientibus Jura Subveniunt” means “the law assists
those that are vigilant with their rights, and not those that
sleep thereupon”.

[110] The same reminder was administered by his Lordship Justice

Edgar Joseph Jr (for the Federal Court) in TUAN HAJI AHMED
ABDUL RAHMAN v. ARAB-MALAYSIAN FINANCE BHD
[1996] 1 CLJ 241; [1996] 1 MLJ 30:

Having said that it should be added that the application

to set aside such a judgment should be made: (a) with
reasonable promptitude, in other words within a
reasonable time; and (b) before the defendant has taken
any fresh step after becoming aware of the irregularity.

[111] This is by operation of section 6 Limitation Act 1953 which

stipulates as follows:

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6. Limitation of actions of contract and tort and

certain other actions

(1) Save as hereinafter provided the following

actions shall not be brought after the
expiration of six years from the date on which
the cause of action accrued, that is to say -

(a) actions founded on a contract or on tort;

(b) actions to enforce a recognisance;

(c) actions to enforce an award;

(d) actions to recover any sum recoverable

by virtue of any written law other than a
penalty or forfeiture or of a sum by way
of penalty or forfeiture.

(2) An action for an account shall not be brought

in respect of any matter which arose more
than six years before the commencement of
the action.

[112] Alongside with the issue of limitation is the Doctrine of

Laches. At this juncture, reference is made to s. 32 of the
Limitation Act 1953 which reads:

Section 32 - Acquiescence

Nothing is this Act shall affect any equitable jurisdiction

to refuse relief on the ground of acquiescence, laches or
otherwise.

[113] The exception to limitation has been provided for under section
29 Limitation Act 1953 which is reproduced below -

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(1) Where, in the case of any action for which a

period of limitation is prescribed by this Act,
either-

(a) the action is based upon the fraud of the

defendant or his agent or of any person
through whom he claims or his agent; or

(b) the right of action is concealed by the

fraud of any such person as aforesaid; or

(c) the action is for relief from the

consequences of a mistake,

the period of limitation shall not begin to run until the

plaintiff has discovered the fraud or the mistake, as the
case may be, or could with reasonable diligence have
discovered it:

Provided that nothing in this section shall enable any

action to be brought to recover, or enforce any charge
against, or set aside any transaction affecting, any
property which –

(i) in the case of fraud, has been purchased for

valuable consideration by a person who was not a
party to the fraud and did not at the time of the
purchase know or have reason to believe that any
fraud had been committed; or

(ii) in the case of mistake, has been purchased for

valuable consideration, subsequently to the
transaction in which the mistake was made, by a
person who did not know or have reason to believe
that the mistake had been made.

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(2) Section 6A shall not apply to any action to which

paragraph (1)(b) applies.

[114] There was no plea of fraud by the Plaintiff against the 1 st

Defendant. On the contrary, the 1 st Defendant alleged that :

i. he never met Soh Poh or the Plaintiff in his entire life.

ii. he never visit the solicitors’ firm Messrs K. Siladass &

Partners in his entire life.

iii. he never sign any papers for the sale of the property that
is held under the Title HS(M) 3269, PTD 3323, Renggam
Sub District, District of Kluang, State of Johore (“the
said property”).

iv. he never sign any Irrevocable Power of Attorney in his

entire life.

v. the signature that appeared on the Sale and Purchase

Agreement of the property that is held under the Title
HS(M) 3269, PTD 3323, Renggam Sub District, District
of Kluang, State of Johore dated 29 March 1996 is not
his.

vi. the signature on the Irrevocable Power of Attorney dated

29 March 1996 is not his.

vii. He has never received a single cent of the alleged

purchase price from Soh Poh or anyone.

[115] It seemed that the 1 st Defendant is alleging a forgery of his

signature and not the other way around.

[116] The evidence of a former solicitor Azlina bt Zainal Abidin

(PW5) is at best, suspect or at its worst, a lie. This is because:

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i. She cannot remember who came as the vendor to the

office to sign the papers but could remember that Soh Poh
signed on the Power of Attorney dated 29 March 1996
and that Soh Poh wanted the Power of Attorney because
the transfer of title of the said property is subject to
approval of the State Authorities / Land Administrator.

ii. There is no evidence that PW5 knew Soh Poh or has met
Soh Poh more than once prior to the alleged signing of
the Power of Attorney on 29 March 1996.

iii. She cannot explain why there is no signature by the

alleged Vendor on every page since there is only the
signature on the last page.

iv. She cannot explain why the reference number of this sale
and purchase of the property that is held under the Title
HS(M) 3269, PTD 3323, Renggam Sub District, District
of Kluang, State of Johore is the same as the sale and
purchase agreement of the property owned by Sapuan bin
Kamit when they are distinct and altogether different
properties.

v. PW5 admitted that the Sale and Purchase Agreement and

the Power of Attorney were executed at the same time but
attested to by different solicitors, she was unable to
explain why there was no signature or initial by the
alleged vendor on other pages of the documents
concerned.

vi. Although PW5’s explanation that these events happened

in 1996 and therefore she has forgotten many of the
details, it is strange that she could remember matters
concerning Soh Poh (the alleged buyer) without any

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special reason why the memory of Soh Poh is good when

the memory on the alleged vendor has been at best
blurred or at its worst, totally wiped out.

vii. PW5 could not recall the 1 st Defendant during the signing
but alleged that she saw him signing.

viii. She denied not knowing the person present at the time of
execution of the 2 documents was Nordin Salleh because
she cannot ascertain his identity.

[117] In view of the fact that DW1’s evidence was he has nothing to
do with the Sale and Purchase Agreement and that the
signatures were forged on those 2 documents, the Plaintiff must
put forward a stronger evidence to support his case.

[118] Lord Justice Donaldson in RONEX PROPERTIES LTD v. JOHN

LAING CONSTRUCTION LTD & ORS (CLARKE NICHOLLS &
MARCELL (A FIRM), THIRD PARTIES) [1983] 1 QB 398 said
this-

What is thought to be clear that there is a defence under

the Limitation Act, the defendant can either plead that
defence and seek the trial of a preliminary issue or, in a
very clear case, he can seek to strike out the claim on the
ground that it is frivolous and vexatious and an abuse of
the process of the court and support his application with
evidence. But in no circumstances can he seek to strike
out on the ground that no cause of action is disclosed.

[119] Now since fraud or mistake is not pleaded by the Plaintiff, he

could not avail himself the extension of time for the filing of
the Writ Action pursuant to Section 29 Limitations Act 1953.

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[120] I take note that Clause 3 Sale and Purchase Agreement

(Enclosure 68 / 77 at page 24 / 30) reads as follows:

3. In the event the Vendor/s fails to comply with

clause 2 if this Agreement and or is unable to
obtain the approval from the relevant
authorities to transfer the said property in
favour of the Purchase/s within the period of
SIX (6) CALENDER MONTHS contained
herein then the Vendor/s shall refund to the
Purchase/s immediately the said sum of
RINGGIT MALAYSIA SIXTY THREE
THOUSAND AND FIVE HUNDRED TWENTY
FIVE (RM63,525-00) only paid by the
purchase/s together with interest thereon to
the Vendor/s under clause 1 of the Agreement.

[121] This is the exit or termination clause to be read with other

clauses in the Agreement.

[122] At one point PW5 admitted that the failure to obtain the
approval from the State Authorities will invite the clause for
refunding of the purchase price by the 1 st Defendant.

[123] The Agreement was signed on 29 March 1996. 6 months later is

29 August 1996. The calculation of time begins on 30 August
1996 and there is 6 years to take any action on this contract (if
it is one at all).

[124] The General Principle of Law is that the Court will not
embellish a contract that has been entered by parties. At best,
the Court may interpret the terms but this does not, in any way,
allows the Court to substitute its own terms with that of the
contract.

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[125] In AGROMATE (M) SDN BHD v. KTS TRADING SDN BHD

[2018] 1 SSLR 1 the Court of Appeal held that “...[40] It is a
trite law that the Court is not in the business of rewriting
the terms and conditions of the contract between the
parties.”

[126] In the case of BANK ISLAM MALAYSIA BHD v. LIM KOK HOE
& ANOR AND OTHER APPEALS [2009] 6 CLJ 22, His
Lordship Justice Raus Sharif (as he then was) said -

“It is trite law that the Court should not rewrite the terms
of the contract between the parties that it deems to be fair
or equitable. This principle has been clearly expressed in
numerous cases. (See SHELL MALAYSIA TRADING SDN
BHD v. LIM YEE TECK ORS [1982] 1 LNS 11; WONG PA
HOCK v. AMERICAN INTERNATIONAL ASSURANCE CO
LTD & ANOR [2002] 2 CLJ 267; M. PAKIAM v. YP
DEVATHANJAM [1952] 1 LNS 60; [1952] MLJ 58; and
CHARTER REINSURANCE CO. LTD v. FAGAI [1996] 2,
All ER 46”.

[127] Hence Clause 3 of the said Sale and Purchase Agreement

defines the remedy for the failure to seek approval from the
State Authorities and this Court has no choice but to give effect
to it as demanded by the Plaintiff.

[128] The Agreement binds both the offeror and offeree. The offeror
is equally bound to follow the terms and conditions of the
Agreement as much as the offeree.

[129] In Halsbury Laws of England, vol II, 3 rd edn, p. 382, it was

said-

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It is not permissible to guess at the intention of the

parties and substitute the presumed for the expressed
intention.

[130] In GOH GOK HOON v. ABDUL HAMID & ANOR. [1966] 1

LNS 52 where his Lordship Justice Ismail Khan (as he then
was) said at pp. 39-40:

It is a cardinal rule in the interpretation of documents

that the intention of the parties must be gathered from
the written instrument itself.

[131] In the landmark case of INVESTORS COMPENSATION

SCHEME LTD v. WEST BROMWICH BUILDING SOCIETY
[1998] 1 WLR 896, 16 912-913 “(ICS)” provides a starting
point for the consideration of the relevant principles. The
judgment of Lord Hoffmann is reproduced below, where His
Lordship stated that:

... I do not think that the fundamental change which has

overtaken this branch of the law, particularly as a result
of the speeches of Lord Wilberforce in PRENN v.
SIMMONDS [1971] 1 WLR 1381, 1384-1386 and
REARDON SMITH LINE LTD v. YNGVAR HANSEN-
TANGEN [1976] 1 WLR 989, is always sufficiently
appreciated.

The result has been, subject to one important exception,

to assimilate the way in which such documents are
interpreted by judges to the common sense principles by
which any serious utterance would be interpreted in
ordinary life. Almost all the old intellectual baggage of
‘legal’ interpretation has been discarded. The principles
may be summarised as follows:

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(1) Interpretation is the ascertainment of the

meaning which the document would convey to
a reasonable person having all the background
knowledge which would reasonably have been
available to the parties in the situation in
which they were at the time of the contract.

(2) The background was famously referred to by

Lord Wilberforce as the ‘matrix of fact’, but
this phrase is, if anything, an understated
description of what the background may
include. Subject to the requirement that it
should have been reasonably available to the
parties and to the exception to be mentioned
next, it includes absolutely anything which
would have affected the way in which the
language of the document would have been
understood by a reasonable man.

(3) The law excludes from the admissible

background the previous negotiations of the
parties and their declarations of subjective
intent. They are admissible only in an action
for rectification. The law makes this
distinction for reasons of practical policy and,
in this respect only, legal interpretation differs
from the way we would interpret utterances in
ordinary life. The boundaries of this exception
are in some respects unclear. But this is not
the occasion on which to explore them.

(4) The meaning which a document (or any other

utterance) would convey to a reasonable man

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is not the same thing as the meaning of its

words. The meaning of words is a matter of
dictionaries and grammars; the meaning of
the document is what the parties using those
words against the relevant background may
not merely enable the reasonable man to
choose between the possible meanings of
words which are ambiguous but even (as
occasionally happens in ordinary life) to
conclude that the parties must, for whatever
reason, have used the wrong words or syntax :
see MANNAI INVESTMENTS CO LTD v.
EAGLE STAR LIFE ASSURANCE CO LTD
[1995] 1 WLR 1508.

(5) The ‘rule’ that words should be given their

‘natural and ordinary meaning’ reflects the
common sense proposition that we do not
easily accept that people have made linguistic
mistakes, particularly in formal documents.
On the other hand, if one would nevertheless
conclude from the background that something
must have gone wrong with the language, the
law does not require judges to attribute to the
parties an intention which they plai nly could
not have had.

[132] The limitation shall set in on 31 August 2002 ie, 6 years after
the cause of action has accrued. On this reason alone, this writ
should be dismissed.

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ii. Whether the absence of Halimah binti Hussein invites

adverse inference against the Plaintiff’s case.

[133] It is not in dispute that on the Sale and Purchase Agreement the
name and signature of Halimah bt Hussein appeared as an
attesting witness. She was then a practising solicitor. Since
there is no evidence that the signature of the purported vendor
is that of the 1 st Defendant since the 1 st Defendant denied it.

[134] It is left to the Plaintiff to prove his case that the 1 st Defendant
did, indeed signed on the purported Sale and Purchase
Agreement.

[135] Section 3 Evidence Act 1950 provides the following

definitions:

“proved”: a fact is said to be “proved” when, after

considering the matters before it, the court either believes
it to exist or considers its existence so probable that a
prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it exists;

“disproved”: a fact is said to be “disproved” when, after

considering the matters before it, the court either believes
that it does not exist or considers its non-existence so
probable that a prudent man ought, under the
circumstances of the particular case, to act upon the
supposition that it does not exist;

“not proved”: a fact is said to be “not proved” when it is

neither proved nor disproved;

[136] According to Black’s Law Dictionary, p 80 (2d pocket ed

1996); ISBN 0-314-25791-8) the term “burden of proof” is a
party’s duty to prove a disputed assertion or charge, and

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includes the burden of production (providing enough evidence

on an issue so that the trier-of-fact decides it rather than in a
peremptory ruling like a directed verdict) and the burden of
persuasion (standard of proof such as preponderance of the
evidence).

[137] In RE B (A CHILD) [2008] UKHL 35, the House of Lords held

that there is “only one civil standard of proof and that is
proof that the fact in issue more probably occurred than
not”. The “range of circumstances which have to be weighed
when deciding as to the balance of probabilities” or
“heightened civil standard” is no longer a factor to consider
“when deciding as to the balance of probabilities” . This is
what Lord Hoffmann said at p. 7:

My Lords, I would invite your Lordships fully to approve

these observations. I think that the time has come to say,
once and for all, that here is only one civil standard of
proof and that is proof that the fact in issue more
probably occurred than not. I do not intend to disapprove
any of the cases in what I have called the first category,
but I agree with the observation of Lord Steyn in
MCCANN’s case, at p 812, that clarity would be greatly
enhanced if the courts said simply that although the
proceedings were civil, the nature of the particular issue
involved made it appropriate to apply the criminal
standard.

[138] And Baroness Hale of Richmond was even more forceful in

emphasising on the law when she said this at p. 11 and p. 22
respectively:

In our legal system, if a judge finds it more likely than

not that something did take place, then it is treated as

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having taken place. If he finds it more likely than not

that it did not take place, then it is treated as not having
taken place. He is not allowed to sit on the fence. He has
to find for one side or the other. Sometimes the burden of
proof will come to his rescue: the party with the burden
of showing that something took place will not have
satisfied him that it did. But generally speaking a ju dge is
able to make up his mind where the truth lies without
needing to rely upon the burden of proof.

...

My Lords, for that reason I would go further and

announce loud and clear that the standard of proof in
finding the facts necessary to establish the t hreshold
under section 31(2) or the welfare considerations in
section 1 of the 1989 Act is the simple balance of
probabilities, neither more nor less. Neither the
seriousness of the allegation nor the seriousness of the
consequences should make any differe nce to the standard
of proof to be applied in determining the facts. The
inherent probabilities are simply something to be taken
into account, where relevant, in deciding where the truth
lies.

[139] The definitions in the Evidence Act do not attempt to spell out
explicitly the degree of probability for which a prudent man
ought to look before he acts on the supposition that a fact does
not exist. As a matter of common sense this must depend upon
the nature of the action contemplated. A degree of probability
sufficient to induce a prudent man to spend a dollar on the
supposition that a fact did not exist might be insufficient to
induce him to risk a million dollars. The definitions, however,

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contain no express identification of the action which the

prudent man is to be assumed to have in contemplation. (see PP
v. YUVARAJ [1969] 2 MLJ 89).

[140] The relevant action to be taken by the prudent man upon the
supposition that a particular fact does or does not exist to
which the definitions refer is the determination of the judicial
proceedings which will follow from a finding that the fact is
proved or disproved as the case may be, The Evidence Act
applies to civil and to criminal proceedings alike and the
definitions of “proved” and “disproved” draw no explicit
distinction between facts required to be proved by the
prosecution in criminal proceedings and facts required to be
proved by a successful party to civil proceedings.

[141] Yet it cannot be supposed that the Evidence Act intended by a

provision contained in what purports to be a mere definition
section to abolish the historic distinction fundamental to the
administration of justice under the common law, between the
burden which lies upon the prosecution in criminal proceedings
to prove the facts which constitute an offence beyond all
reasonable doubt and the burden which lies upon a party in a
civil suit to prove the facts which constitute his cause of action
or defence upon a balance of probabilities. (see PP v.
YUVARAJ [1969] 2 MLJ 89).

[142] The degree of probability of the existence or non-existence of a

fact which is required in order for it to be “proved” or
“disproved” within the meaning ascribed to those words in the
Evidence Act, depends upon the nature of the proceedings and
what will be the consequence in those proceedings of a finding
that a fact is “proved” or “disproved”.

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[143] If that consequence will be the determination of a civil suit in

favour of one party a balance of probabilities is all that is
necessary. It is sufficient that upon the evidence the Court
considers that it is more likely than not that the fact exists or
does not exist. This has been the rule at common law since at
least the sixteenth century. See NEWIS v. LARK [1571], Plow
412 cited by Justice Willes in COOPER v. SLADE [1858], 6
HLC 746, 772; 10 ER 1488. (see PP v. YUVARAJ [1969] 2 MLJ
89).

[144] Since the burden of proving the Sale and Purchase Agreement
is on the Plaintiff and the name that appears as the attesting
witness is Halimah bt Hussein and further there is a dispute as
to whether the 1 st Defendant did execute the Agreement, the
key to the unfolding of the events is Halimah bt Hussein. No
else was said to be present.

[145] I take note that the position taken by the Plaintiff is that
Halimah bt Hussein could not be found. It is with regrets that I
say, no proof of attempts made that would qualify the
deployment of section 32 Evidence Act 1950 for “Statements,
written or verbal, of relevant facts made by a person who is
dead or who cannot be found, or who has become incapable
of giving evidence, or whose attendance cannot be procured
without an amount of delay or expense which under the
circumstances of the case appears to the court
unreasonable, are themselves relevant facts”.

[146] The burden to prove any claims in the Court of Law rest with
the Claimant or Plaintiff. The maxim “semper necessitas
probandi incumbit ei qui agit”, which means “the necessity of
proof always lies with the person who lays charges.”

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[147] This is provided for by section 101 Evidence Act 1950 which
stipulates –

“(1) Whoever desires any court to give judgment as

to any legal right or liability, dependent on the
existence of facts which he asserts, must prove
that those facts exist.

(2) When a person is bound to prove the existence

of any fact, it is said that the burden of pr oof
lies on that person.”

[148] In Barron’s Law Dictionary, p. 55 (2 nd ed. 1984)., it is stated

that “A “burden of persuasion” or “risk of non -persuasion”
is an obligation that remains on a single party for the
duration of the court proceeding.”

[149] In Black’s Law Dictionary, p. 178 (5 th ed. 1979), it is

explained that “Once the burden has been entirely
discharged to the satisfaction of the trier of fact, the party
carrying the burden will succeed in its claim.”

[150] In SER YU BENG & ANOR v. PROPERTY VILLAGE BERHAD

[2019] MLRHU 1672, it was explained that “The burden of
proof (Latin: onus probandi, shortened from Onus probandi
incumbit ei qui dicit, non ei qui negat) is the obligation on a
party in a dispute to provide sufficient warrant for their
position.”

[151] PW5 cannot remember so many things and notwithstanding she

claimed that she was present at the execution of the Sale and
Purchase Agreement for the property that is held under the
Title HS(M) 3269, PTD 3323, Renggam Sub District, District

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of Kluang, State of Johore, there is nothing to support such

assertion.

[152] Hence the key to unfolding of events still rests with Halimah bt
Hussein. She must be found. I can accept if sufficient efforts
were made to trace her like making a search with the National
Registration Department, the Telecommunication Companies,
Road Transport Department to name but a few. PW5 is at best,
an inadequate witness, in this respect.

[153] That being the case. I am left uncertainty as to whether the 1 st

Defendant did or did not sign on the said Sale and Purchase
Agreement.

[154] This unfortunately left me with the choice of invoking adverse

inference against the Plaintiff’s case.

[155] Adverse inference is a legal inference, adverse to the concerned

party, drawn from silence or absence of requested evidence.

114. Court may presume existence of certain fact

The court may presume the existence of any fact which it

thinks likely to have happened, regard being had to the
common course of natural events, human conduct, and
public and private business, in their relation to the facts
of the particular case.

ILLUSTRATIONS

The court may presume:-

...

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(g) that evidence which could be and is not produced

would if produced be unfavourable to the person
who withholds it;

[156] There are a few rules in this:

i. the Court is empowered to invoke this presumption but it

is discretionary.

ii. the conditions-precedent to invoke this presumption

which are-

a. the evidence is available.

b. it was not produced.

c. it was withheld.

d. there is a possibility that if it is produced, it may be

against the party that seeks to withhold it.

e. the evidence is key to either unfolding of events

(without which would be unexplained) or leaves a
lacuna if not adduced.

[157] There was no evidence that it was not withhold or that there are
impediments to adduce the evidence.

[158] The Federal Court in CHINA AIRLINES LTD. v. MALTRAN AIR

CORP. SDN. BHD. & ANOTHER APPEAL [1996] 3 CLJ 163
make the following observations,

However, there is clear authority that a distinction can be

drawn between the finding of a specific fact which
depends upon the credibility of witnesses, and a finding

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of fact which depends upon inferences drawn from other

facts.

In the latter case, an appellate Court will more readily

interfere with the trial judge’s findings of fact and form
an independent opinion.

Thus, in cases where there is no question of the

credibility or reliability of any witness, or where the point
in dispute is the proper inference to be drawn from
proved facts, an appeal Court is generally in as good a
position to review and evaluate the evidence as the trial
Judge.

In the instant appeal, there was nothing in the trial

judge’s judgment which indicated that her decision was
based on the credibility of the witnesses or the impression
she formed of them.

[159] I have no alternative but to invoke adverse inference against

the Plaintiff for failing to call Halimah bt Hussein as only she
can shed light on what happened that day, 29 March 1996 at the
execution of the SPA of the said property.

iii. Whether the failure to prove the authenticity of the

purported signature of the 1 st Defendant is fatal to the
Plaintiff’s case in view of the fact that the 1 st Defendant
denied signing any papers to sell off the said property.

iv. Whether the purported Sale and Purchase Agreement in

respect of the property that is held under the Title HS(M)
3269, PTD 3323, Renggam Sub District, District of Kluang,
State of Johore (“the said property”) which is found on

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pages 30 to 35 Enclosure 77 is authentic and valid in law

and enforceable

v. Whether the purported Irrevocable Power of Attorney

dated 29 March 1966 between Nordin bin Salleh and Soh
Poh is authentic and valid in law and enforceable.

I shall deal with these issues together

[160] It is in evidence that DW1 challenged the authenticity of the

purported Sale and Purchase Agreement. In order for this Court
to accept that this Agreement, proof must be provided for the
consideration of this Court.

[161] Soh Poh who was said to be in attendance and a signatory of

the said agreement has since, passed on. Halimah bt Hussein is
nowhere to be found. The purported vendor who is the 1 st
Defendant denied the signature or the Agreement altogether or
even the Power of Attorney. The 1 st Defendant denied ever
stepping foot into the office of Messrs K.Siladass & Partners
his entire life.

[162] Hence the issue of burden of proof becomes important.

[163] His Lordship Justice Winslow said in the Singapore case of

EASTERN ENTERPRISES LTD v. ONG CHOO KIM [1969] 1
LNS 35; [1969] 1 MLJ 236 He said this at p. 242:

I would therefore conclude for purposes of this action

that the plaintiffs must establish their allegation against
the defendant on a balance of probability as laid down by
DOE D. DEVINE v. WILSON subject to the qualification
that in tilting the balance against the defendant, they
must attain a higher degree of probability than is
required in an ordinary case of civil negligence though

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not the very high standard of the criminal law. Although

the difference in the standards of proof in civil and
criminal cases “may well turn out to be more a matter of
words than anything else” (per Denning L.J. in Bater’s
case), the Australian High Court in the Rejfek case held
that it was no mere matter of words but a matter of critical
substance.

[164] Proving the authenticity of a signature in a private document,

may be done in several ways which are :

a. Calling the maker of the document and proving the

signature of the maker on the document. This is provided
for section 60 and 61 Evidence Act 1950. The maker is
not available and the purported vendor denied vehemently
on his signature.

b. Proof by a handwriting expert and this is provided for

under section 45 Evidence Act 1950. This was not done in
our case and PW5 admitted that she is not an expert in
handwriting.

c. Proof by the evidence of a person familiar with the

handwriting as provided for under section 47 Evidence
Act 1950. This calls for comparison with proven samples
of the signature of the said person. In our case there is
none.

[165] Proof for public documents pursuant to section 74 that is read

together with sections 76, 77, and 78 Evidence Act 1950.

[166] No evidence of anyone familiar with the signature of DW1 (the

1 st Defendant) was adduced. No samples of DW1’s evidence in
previous statements or other documents has been tendered in

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Court. PW2 or PW3 or PW4 or PW5 are not people who are
acquainted with the handwriting or signature of DW1. They do
not fall within the meaning of “the opinion of any person
acquainted with the handwriting of the person by whom it is
supposed to have been written or signed, that it was or was
not written or signed by that person, is a relevant fact.” (see
section 47 Evidence Act 1950)

[167] The Learned Counsel for the Plaintiff submitted that section 90
Evidence Act 1950 is applicable and hence the presumption of
authenticity of the documents.

[168] Let us examine this preposition of law. I reproduce the relevant

provisions for ease of reference.

90. Presumption as to documents 20 years old

Where any document purporting or proved to be twenty

years old is produced from any custody which the court in
the particular case considers proper, the court may
presume that the signature and every other part of that
document which purports to be in the handwriting of any
particular person is in that person’s handwriting, and in
the case of a document executed or attested, that it was
duly executed and attested by the persons by whom it
purports to be executed and attested.

Explanation - Documents are said to be in proper custody

if they are in the place in which and under the care of the
person with whom they would naturally be; but no custody
is improper if it is proved to have had a legitimate origin,
or if the circumstances of the particular case are s uch as
to render such an origin probable.

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This explanation applies also to section 81.

ILLUSTRATIONS

(a) A has been in possession of landed property for a

long time. He produces from his custody documents
relating to the land, showing his title to it. The
custody is proper.

(b) A produces documents relating to landed property of

which he is the chargee. The chargor is in
possession. The custody is proper.

(c) A, a connection of B, produces documents relating to

lands in B’s possession, which were deposited with
him by B for safe custody. The custody is proper.

[169] There are conditions precedent before this legal preposition

may be invoked because not all documents of 20 years old
automatically qualify.

[170] They are:

i. The document purporting or proved to be twenty years

old

ii. It is produced from any custody which the court in the

particular case considers proper,

iii. the court may PRESUME that the signature and every
other part of that document which purports to be in the
handwriting of any particular person is in that person’s
handwriting,

OR

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iv. for a document executed or attested, that it was duly

executed and attested by the persons by whom it purports
to be executed and attested.

[171] The key word is “presume”.

[172] Presumptions by the very nature of the word, is generally

rebuttable and is not mandatory. While there are exceptions but
none is applicable in this case.

[173] His Lordship Justice Lee Swee Seng ( now of the Court of
Appeal) in CHAN POOI LENG v. JABATAN KETUA
PENGARAH TANAH DAN GALIAN PERSEKUTUAN UNIT
PEMBAHAGIAN PUSAKA PERAK TIMUR, PEJABAT
TANAH/DAERAH; MOHAMAD IQBAL SHAH ABDULLASAH
(INTERVENER) [2014] 1 LNS 64 in determining the validity of
an agreement that was more than 20 years old held that under
section 90 of the Evidence Act 1950 “The Court is of course
entitled to look at the surrounding circumstances to see if
the document has an honest face “. His Lordship held that the
fact the deceased purchaser in CHAN POOI LENG had been
in occupation of the land and that the deceased vendor had
never paid quit rent on the land from the time of the sale of the
land until his death were relevant considerations for the Court
to look at.

[174] Her Ladyship Justice Faizah in PAKIANATHAN MICHAEL v.

VR RAMAN & ORS [2020] 1 LNS 1730 is particularly
instructive. Her Ladyship has this to say -

[42] For these reasons, I find that the circumstances of

this instant case are such as to render such an
origin of the June 1968 letter probable. Hence,
pursuant to section 90 of the Evidence Act 1950, I

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find that the June 1968 letter was produced from a

custody which is proper.

[43] Both Lee Swee Seng JC (as he then was) in CHAN

POOI LENG and KC Vohrah J (as he then was) in
GHAZALI BIN ARIFIN v. AHMAD BIN BAKAR &
ORS [1992] 1 MLJ 282, cases which were premised
on facts not too dissimilar to this instant case,
found that based on the intrinsic and extrinsic
evidence of the documents before them, that the
contents of the documents had “a ring of truth
around them and an honest face” and applying the
presumption in section 90 of the Evidence Act 1950,
found that the document and the signatures therein
to be genuine.

[44] Based on the intrinsic and extrinsic evidence

around the June 1968 letter, I find that the letter
has an honest face and, based on the facts discussed
above, that it has a ring of truth around it. T he
presumption in section 90 of the Evidence Act 1950
is of course rebuttable. However, VR Raman has not
provided any evidence to rebut the said statutory
presumption as to the genuineness and authenticity
of the 1968 letter.

[45] Accordingly, based on the presumption in section 90

of the Evidence Act 1950, after having considered
the the intrinsic and extrinsic evidence of the June
1968 letter and having found the said letter was
produced from custody that this Court considers
proper, this Court finds that the June 1968 letter

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and the signatures therein are genuine and

authentic.

[175] It is the duty of the Trial Court to look into the facts and
circumstances of the documents before invoking section 90.
The litmus test of this as her Ladyship said, quoting their
Lordships Justice Lee Swee Seng and Justice KC Vohrah, is “a
ring of truth around them and an honest face”.

[176] From the facts and circumstances of this case, I found the
following:

i. the 1 st Defendant denied the signing of the Sale and

Purchase Agreement as well as the Power of Attorney
ever.

ii. the attesting solicitor by the name of Halimah bt Hussein

for the Sale and Purchase Agreement is nowhere to be
found and no effort was made to trace her.

iii. There is only a purported signature of the 1 st Defendant

on the last page and no signature or initials on other
pages (Enclosure 77 page 30 - 34).

iv. The reference number KLG / KSD / SP-COND (14-492-

96) which is found in this Sale and Purchase Agreement
of the property HS(M) 3269, PTD 3323, Renggam Sub
District, District of Kluang, State of Johore is also the
reference number of the Sale and Purchase Agreement
between the Plaintiff and Sapuan bin Kamit (Enclosure
100 page 1 - 6) which is held under the Title HS(M) 2423
PTD 3324 Renggam Sub District, District of Kluang,
Johore.

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v. PW5 is unable to identify the 1 st Defendant for the

reasons that it was too long ago.

vi. PW4 is also unable to identify the vendor of the said

property as it was too long ago.

vii. PW2 in the cross examination admitted that the signature

on the name of Nordin Salleh is NOT the signature of
Nordin Salleh (the 1 st Defendant (page 45 of the notes of
proceedings).

viii. PW2 admitted that he does not know the 1 st Defendant

and have never met the 1 st Defendant while PW2 gave
evidence he was at the office of Messrs K. Siladass &
Partners on 29 March 1996 to sign another agreement
with Sapuan bin Kamit.

ix. There was no comparison made by an expert in

handwriting on the signature found in the Sale and
Purchase Agreement of the said property.

x. There is not a single signature of the 1 st Defendant (if at

all) on the 5 pages of the SPA (as found in pages 30, 31,
32, 33 and 34 Enclosure 77)

[177] I do not find the “ring of truthfulness” nor an “honest face” on

the purported Sale and Purchase Agreement of the said
property.

[178] For the above reasons, I am declining the invitation to invoke

section 90 Evidence Act 1950 in respect of the Sale and
Purchase Agreement of the property HS(M) 3269, PTD 3323,
Renggam Sub District, District of Kluang, State of Johore.

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[179] Based on the above, I ruled that the Sale and Purchase
Agreement of the property HS(M) 3269, PTD 3323, Renggam
Sub District, District of Kluang, State of Johore is NOT
authentic and the purported signature of the name Nordin bin
Salleh found on the document is a forgery.

[180] The Court of Appeal in PAN NORTHERN AIR SERVICES SDN

BHD v. MAYBANK ISLAMIC BHD & ANOTHER APPEAL
[2021] 3 CLJ 34 ruled that “...it is with known principles of
contract law that parties are bound by what they have agreed
unless there is fraud, coercion, undue influence, mistake or that
the term agreed is unconscionable or illegal”.

[181] Hence it my ruling that the 1 st Defendant is not bound by an

agreement which he did not enter into, in this case because his
signature was forged. Neither is the purported Irrevocable
Power of Attorney which I ruled as a forgery as well.

[182] Assuming for the sake of arguments that I am wrong in the

above finding (which I do not think so), it is in evidence of
PW4 and PW5 and clearly on the document of the SPA (as
found at page 30-35 Enclosure 77) the following:

i. On pages 30, 31, 32, 33 and 34 (Enclosure 77) there is no

signature of the 1 st Defendant or his initial at all.

ii. The purported signature of the 1 st Defendant is only

found on page 35 (Enclosure 77).

iii. PW4 and PW5 admitted in the cross examination that

there is no signature or initial of 1 st Defendant at all on
pages 30, 31, 32, 33 and 34 (Enclosure 77).

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[183] Hence, even if the purported signature of 1 st Defendant is

authentic at page 35 Enclosure 77, then ONLY page 35 is
admissible as evidence.

[184] I am keeping in mind, throughout this trial DW1 has

consistently maintained that the signature on page 35 Enclosure
77 is NOT his. The terms and conditions of the SPA are found
on pages 30,31,32,33 and 34 are not enforceable on DW1
because there is NOT evidence that he agreed to them and the
Plaintiff has failed to prove that DW1 did agree to them and
signed on those pages.

[185] With only page 35 (Enclosure 77) signed (if at all), then only
page 35 bind DW1 and it does not carry any terms and
conditions of any contract, much less a valid one.

[186] Either way, the Sale and Purchase Agreement does not have the
force of law at all.

vi. Whether the Plaintiffs succeeded in proving its claims as

per the Amended Statement of Claim

vii. Whether the Defendants succeeded in proving its claims as

per the Amended Statement of Defence

I shall deal with these 2 issues together.

[187] It has been agreed by both the Plaintiff and the 1 st Defendant
that:

i. The property is known as HS(M) 3269, PTD 3323, Renggam

Sub District, District of Kluang, State of Johore (“the said
property”) is still registered in the name of the 1 st Defendant.

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ii. The said property has restrictions / conditions in that

permission must be obtained from State Superintendent of Land
before it can be transferred to the Plaintiff.

[188] Section 58 Evidence Act 1950 reads as follows:

58. Facts admitted need not be proved

(1) No fact need be proved in any proceeding which the

parties thereto or their agents agree to admit at the
hearing or which before the hearing they agree to
admit by any writing under their hands, or which by
any rule of pleading in force at the time they are
deemed to have admitted by their pleadings:

Provided that the court may, in its discretion,

require the facts admitted to be proved
otherwise than by such admissions.

(2) This section has no application to criminal

proceedings.

[189] In SANTHI KRISHNAN v. MALAYSIA BUILDING SOCIETY

BHD [2015] 1 CLJ 1099, his Lordship Justice Idrus Harun,
(speaking for the Court of Appeal) made the following
observations.

[28] It is an elementary proposition of law, that cases

must be decided on the evidence and that the
evidence must be such as is relevant and admissible
under the Evidence Act 1950, that is, it must be
either from admitted documents or the statement of
witnesses or be something of which the court can
take judicial notice. The learned judge cannot
without giving evidence as a witness import into a

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case his own personal knowledge of particular facts

so as to help out evidence for the respondent which
would otherwise be inadequate to rebut the
appellant’s case

[190] As such, I ruled that the property is known as HS(M) 3269,

PTD 3323, Renggam Sub District, District of Kluang, State of
Johore (“the said property”) which is still registered in the
name of the 1 st Defendant and is good in law.

[191] Section 340 National Land Code (Revised 2020) (Act 828)
stipulates,

(1) The title or interest of any person or body for

the time being registered as proprietor of any
land, or in whose name any lease, charge or
easement is for the time being registered,
shall, subject to the following provisions of
this section, be indefeasible.

(2) The title or interest of any such person or

body shall not be indefeasible -

(a) in any case of fraud or

misrepresentation to which the
person or body, or any agent of the
person or body, was a party or
privy; or

(b) where registration was obtained by

forgery, or by means of an
insufficient or void instrument; or

(c) where the title or interest was

unlawfully acquired by the person

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or body in the purported exercise of

any power or authority conferred
by any written law.

(3) Where the title or interest of any person or

body is defeasible by reason of any of the
circumstances specified in subsection (2) -

(a) it shall be liable to be set aside in

the hands of any person or body to
whom it may subsequently be
transferred; and

(b) any interest subsequently granted

thereout shall be liable to be set
aside in the hands of any person or
body in whom it is for the time being
vested:

Provided that nothing in this subsection shall affect

any title or interest acquired by any purchaser in
good faith and for valuable consideration, or by any
person or body claiming through or under such a
purchaser.

(4) Nothing in this section shall prejudice or

prevent -

(a) the exercise in respect of any land

or interest of any power of
forfeiture or sale conferred by this
Act or any other written law for the
time being in force, or any power of

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avoidance conferred by any such

law; or

(b) the determination of any title or

interest by operation of law.

[192] The Torrens system as commented by Teo Keang Sood and

Khaw Lake Tee in Land Law in Malaysia: Cases and
Commentary, 3 rd Edition (2012) LexisNexis at p 182-183 and
202 with emphasis added:

“Under the Torrens system, it is the act of registration

that vests title or interest; once registered, the title or
interest cannot be divested except otherwise statutorily
provided... Theoretically, this is known as the
‘indefeasibility of title’, which is reflected in section 340
of our code under which it is provided that registration
confers an indefeasible title or interest, until and unless
that title or interest is challenged or set aside on any
grounds set out in s. 340(2)...The Torrens system is o ne
of title by registration, that is, it is the act of registration
that vests title or interest; it is not a system of
registration or recordation of title. Section 340(2)
enumerates the circumstances under which a registered
title or interest ‘shall not be indefeasible”.

[193] His Lordship Justice Abdul Malik Ishak (speaking for the Court
of Appeal case of MALAYAN BANKING BHD v. KOAY KANG
CHUWAN & ANOR [2010] 6 CLJ 172; [2010] 1 LNS 301;
[2010] 5 MLJ 46 as follows:

“[57] It is quite apparent that the Legislature

intended to limit the grounds which could
render a registered title or interest defeasible

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to those stipulated in s. 340(2) of the NLC.

And where there is no evidence that the
registered proprietor or the interest holder
acquires registration by means of any of the
vitiating grounds, then the indefeasibility of
title or interest therein remains intact.
However, the indefeasibility of title or
interest may also be affected by the
provisions in ss. 340(3) and 340(4) o f the
NLC.”

[194] In TAI LEE FINANCE CO. SDN. BHD. v. THE OFFICIAL

ASSIGNEE OF THE PROPERTY OF NGAN KIM YONG & ORS.
[1983] CLJ Rep 387, the Federal Court explained in the
following words,

Now the law: the position is that upon registration

of a charge the law confers indefeasible title in the
chargor (s. 349 (1) National Land Code ) but shall
be defeasible in cases provided under sub - section
(2) of s. 340.

[195] In TUEH GUAT CHOO ALIAS TIN WAT CHOO (F) v. CHEAH
AH HOE AND YONG POW MENG [1932] 1 LNS 94. The
relevant section in that case was s. 42 of the Land Code 1926
which provided that:

(i) the title of a proprietor, chargee or lessee shall be

indefeasible except as in this section provided;

(ii) In the case of fraud or misrepresentation to which he

is proved to be a party, the title of such proprietor,
chargee of lessee shall not be indefeasible.

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[196] An interesting point of law is the Criminal Law of Trespass

which is provided by Section 441 Penal Code

Section 441. Criminal Trespass

Whoever enters into or upon property in the possession of

another with intent to commit an offence or to intimidate,
insult or annoy any person in possession of such
property; or having lawfully entered into or upon such
property, unlawfully remains there with intent thereby to
intimidate, insult or annoy any such person, or with
intent to commit an offence, is said to commit “criminal
trespass”.

[197] The law is therefore settled that while sub-section (1) of s. 340
makes it abundantly clear that the title or interest of a
registered proprietor which includes a chargee shall be
indefeasible, such title or interest, however, by reason of sub-
section (2), shall not be indefeasible in a case of actual fraud
involving

[198] In s. 441 Penal Code, the scope includes even one who had
earlier was given the right to enter, had unlawfully remain
there. The person having lawfully entered into or upon such
property, unlawfully remains there.

[199] A Latin maxim is frequently employed to define the extent of

land: “cui us est solum, eius est usque ad coelum et ad
inferos” - he who owns the land, owns it all the way to the
heavens and to hell. The Plaintiff is not the registered owner of
the said premise unlike the 1 st Defendant who has a qualified
Title to its claim.

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[200] Since there is nothing on which the Plaintiff may based his
claim on, then his claim must fail.

[201] By virtue of section 340 National Land Code (revised 2020),

the 1 st Defendant is the registered owner of the property is
known as HS(M) 3269, PTD 3323, Renggam Sub District,
District of Kluang, State of Johore (“the said property”).

CONCLUSION

[202] For the reasons aforesaid, I dismissed the claims of the

Plaintiff and I allowed the counter claim by the 1 st Defendant
with cost to all the Defendants.

[203] I make the following Orders :

i. The Sale and Purchase Agreement dated 29 March 1996

in respect of the property HS(M) 3269, PTD 3323,
Renggam Sub District, District of Kluang, State of Johore
(“the said property”) is null, void and of no effect and
unenforceable.

ii. The Power of Attorney dated 29 March 1996, is null and

void and the 1 st Defendant is not bound by the terms and
conditions of the Power of Attorney dated 29 March
1996.

iii. The Plaintiff is to vacate the said property that is held

under the Title HS(M) 3269, PTD 3323, Renggam Sub
District, District of Kluang, State of Johore (“the said
property”) and to surrender vacant possession of the said
property to the 1 st Defendant within 30 days from the date
of this Order.

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iv. The Plaintiff is to surrender the Document of Title of the

said property to the 1 st Defendant within 30 days from the
date of this Order.

v. The private caveat lodged by the Plaintiff on the property

that is held under the Title HS(M) 3269, PTD 3323,
Renggam Sub District, District of Kluang, State of Johore
be removed with immediate effect.

vi. The Plaintiff is to account for all proceeds from the said
property that is held under the Title HS(M) 3269, PTD
3323, Renggam Sub District, District of Kluang, State of
Johore from 29 March 1996 until the date of this
judgment to the 1 st Defendant within 30 days of this
Order.

vii. The Plaintiff is to pay all such proceeds as stated in

paragraph (vi) to the 1 st Defendant subject to any
payment of assessment rates as well any other taxes
which were paid by the Plaintiff to any government
agency or local authority.

viii. the failure to comply with any of these Orders will render
the party liable for contempt of Court.

ix. the Plaintiff is to pay cost to all the Defendants.

Dated this day 27 th October 2021 at Muar in the State of Johore.

(AWG ARMADAJAYA AWG MAHMUD)

Judicial Commissioner
High Court of Malaya
Muar
Johor Darul Ta’zim

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Curia Advisari Vult

Hearing Date : 11 JANUARY 2021, 12 JANUARY 2021,

8 APRIL 2021, 21 APRIL 2021, 22
APRIL 2021, 28 JULY 2021.

Decision Date : 27 OCTOBER 2021.

COUNSEL:

For the plaintiffs - Parvathi Kandasamy & Rajarajeswari

Paraseraman; M/s K Siladass & Partners
Advocates & Solicitors
Wisma K. S. Dass & Gana
No. 24, 26 & 32
Jalan Lambak, P.O.Box 75
86007 Kluang
Johor Darul Takzim.
[Ref. No.: KSD/KLG/zah/34-443/2018(RJ-PVT)]

For the 1 st defendant - Rohana Ramli; M/s Izauddin, Firdaus &

Mahendran
Advocates & Solicitors
No. 51, Tingkat Atas
Jalan Genuang
85000 Segamat
Johor Darul Takzim.
[Ref. No.: FM/CVD/NORDINMDSALLEH/18/Ana]

For the 2 nd & 3 rd defendants - Suhana Sabil, Assistant State Legal

Advisor Johore
Aras 2, Bangunan Dato’ Jaafar Muhammad
Kota Iskandar

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79100 Iskandar Puteri

Johor Darul Takzim.
[Ref No.: PPUUNJ.600-9/5/17]

Case(s) referred to:

Santhi Krishnan v. Malaysia Building Society Bhd [2015] 1 CLJ

1099

Malayan Banking Bhd v. Koay Kang Chuwan & Anor [2010] 6 CLJ
172; [2010] 1 LNS 301; [2010] 5 MLJ 46

Tai Lee Finance Co. Sdn. Bhd. v. The Official Assignee Of The
Property Of Ngan Kim Yong & Ors. [1983] CLJ Rep 387

Tueh Guat Choo Alias Tin Wat Choo (F) v. Cheah Ah Hoe And Yong
Pow Meng [1932] 1 LNS 94

Chan Pooi Leng v. Jabatan Ketua Pengarah Tanah Dan Galian

Persekutuan Unit Pembahagian Pusaka Perak Timur, Pejabat
Tanah/Daerah; Mohamad Iqbal Shah Ab dullasah (Intervener)
[2014] 1 LNS 64

Pakianathan Michael v. Vr Raman & Ors [2020] 1 LNS 1730

Ghazali Bin Arifin v. Ahmad Bin Bakar & Ors [1992] 1 MLJ 282

Re B (A Child) [2008] UKHL 35

PP v. Yuvaraj [1969] 2 MLJ 89

Goh Gok Hoon v. Abdul Hamid & Anor. [1966 ] 1 LNS 52

Newis v. Lark [1571], Plow 412

Cooper v. Slade [1858], 6 HLC 746, 772; 10 ER 1488

Ser Yu Beng & Anor v. Property Village Berhad [2019] MLRHU

1672

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Investors Compensation Scheme Ltd v. West Bromwich Building
Society [1998] 1 WLR 896

Prenn v. Simmonds [1971] 1 WLR 1381, 1384-1386

Reardon Smith Line Ltd v. Yngvar Hansen -tangen [1976] 1 WLR

989

Mannai Investments Co Ltd v. Eagle Star Life Assurance Co Ltd

[1995] 1 WLR 1508

China Airlines Ltd. v. Maltran Air Corp. Sdn. Bhd. & Another
Appeal [1996] 3 CLJ 163

Eastern Enterprises Ltd v. Ong Choo Kim [1969] 1 LNS 35; [1969]
1 MLJ 236

Khor Cheng Wah v. Sungai Way Leasing Sdn Bhd [1997] 1 CLJ 396;
[1996] 1 MLJ 223

Tuan Haji Ahmed Abdul Rahman v. Arab -malaysian Finance Bhd

[1996] 1 CLJ 241; [1996] 1 MLJ 30.

Alfred Templeton & Ors v. Mount Pleasure Corp Sdn Bhd [1989] 1
CLJ 693; [1989] 1 CLJ (Rep) 219; [1989] 2 MLJ 202:

Lindsay Petroleum Co v. Hurd [1874] LRPC 221

Ronex Properties Ltd v. John Laing Construction Ltd & Ors (Clarke
Nicholls & Marcell (A Firm), Third Parties) [1983] 1 QB 398

Agromate (M) Sdn Bhd v. Kts Trading Sdn Bhd [2018] 1 SSLR 1

Bank Islam Malaysia Bhd v. Lim Kok Hoe & Anor And Other
Appeals [2009] 6 CLJ 22

Shell Malaysia Trading Sdn Bhd v. Lim Yee Teck Ors [1982] 1 LNS
11

Wong Pa Hock v. American International Assurance Co Ltd & Anor

[2002] 2 CLJ 267

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M. Pakiam v. YP Devathanjam [1952] 1 LNS 60; [1952] MLJ 58

Charter Reinsurance Co. Ltd v. Fagai [1996] 2 , All ER 46

Pan Northern Air Services Sdn Bhd v. Maybank Islamic Bhd &
Another Appeal [2021] 3 CLJ 34

Legislation referred to:

Power of Attorney Act 1949, s. 3

Limitation Act 1953, ss. 6, 29, 32

Evidence Act 1950, ss. 3, 32, 45, 47, 58, 60, 6174, 76, 77, 78, 90,
101, 114

National Land Code (Revised 2020) (Act 828), s. 340

Land Code 1926, s. 42

Penal Code, s. 441

Others referred to:

Halsbury’s Laws of England (3 r d Ed) paras 1181, 1182

Duhaime’s Law Dictionary

Black’s Law Dictionary, p 80 (2d pocket ed 1996); ISBN 0 -314-

25791-8)

Barron’s Law Dictionary, p. 55 (2 n d ed. 1984)

Black’s Law Dictionary, p. 178 (5 t h ed. 1979)

Teo Keang Sood and Khaw Lake Tee in Land Law in Malaysia:
Cases and Commentary, 3 r d Edition (2012) LexisNexis at p 182 -183
and 202

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