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Zaharah Bt A. Kadir V Ramunia Bauxite Pte Ltd & 1 Lagi - J-02-957-2005 [2011] MYCA 122 (29 July 2011)

IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION)

CIVIL APPEAL NO: J-02-957-2005

BETWEEN

ZAHARAH BT A. KADIR

(Acting as the Authorised Representative

of Abdul Kadir bin Ami, Deceased) ----- APPELLANT

AND

1. RAMUNIA BAUXITE PTE LTD

2. PROMET BERHAD ------ RESPONDENTS

In the matter of the High Court of Malaya at Johor Bahru

Civil Suit No: MT3-22-821-1985

BETWEEN ZAHARAH BT A. KADIR

(Acting as the Authorised Representative

of Abdul Kadir bin Ami, Deceased) ----- PLAINTIFF AND

1. RAMUNIA BAUXITE PTE LTD

2. PROMET BERHAD ------ DEFENDANTS

CORAM:

(1) ZALEHA ZAHARI, JCA

(2) ABDUL MALIK BIN ISHAK, JCA

(3) A. SAMAH NORDIN, JCA

JUDGMENT OF ABDUL MALIK BIN ISHAK, JCA MAJORITY JUDGMENT

Introduction

[1] After a full trial, the learned judge of the High Court dismissed the plaintiff’s claim with costs. Aggrieved, the plaintiff filed an appeal to this court against the whole decision of the learned judge of the High Court.

[2] Abdul Kadir bin Ami was the original plaintiff and he initiated the proceedings. Unfortunately, he passed away before the trial. His daughter as the authorised representative continued with the proceedings. Two of his children gave evidence, namely:

(a) Dato Dr. Zaharah bt Abdul Kadir (PW1); and

(b) Yahya bin Abdul Kadir (PW2).

[3] While the defendants called only one witness in the person of

Khoo Gim Hoon (DW1).

[4] Documentary evidence as well as contemporaneous or near contemporaneous evidence were highlighted by the parties in this appeal.

[5] It is common ground that the three witnesses do not have personal knowledge of the issues arising on the claim and the defence. Thus, before the learned judge of the High Court documentary evidence was highlighted and his Lordship decided the case based on the available documentary evidence as perceived by him.

The facts

[6] The deceased appellant was a businessman. In 1950, the deceased appellant became the registered proprietor/beneficial owner of 8 pieces of land as listed in the First Schedule to the Amended Writ and the Statement of Claim by purchasing the 8 pieces of land from their owners (hereinafter referred to as the “8 pieces of land”).

[7] Between 1951 and 1952, the deceased appellant became the registered proprietor/beneficial owner of 41 pieces of land as listed in the Second Schedule to the Amended Writ and the Statement of Claim by purchasing 40 pieces of land from their previous owners and acquiring the remaining one piece of land from the Johor State Government by way of an alienation (hereinafter referred to as the “41 pieces of land”).

[8] Now, it is important to mention that the first respondent – Ramunia Bauxite Pte Ltd, is a limited liability company that was incorporated on 3.10.1951 and, at all material times, the first respondent

was engaged in bauxite mining at Pengerang, Johor. Incidentally, the first respondent is the wholly owned subsidiary of the second respondent.

[9] By way of an agreement dated 10.3.1951, the deceased appellant pursuant to the promises as set out in the said agreement allowed four persons, namely:

(i) Wong Shee Fun; (ii) Tow Keng Hee;

(iii) Tow Siang Ling; and

(iv) Ng Yook Lin

to enter into possession of the 8 pieces of land in order to carry out mining operations therein.

[10] And by way of an agreement dated 8.3.1952 between the

deceased appellant and the first respondent, the deceased appellant allowed the first respondent to enter into possession of the 41 pieces of land in order to carry out mining operations therein upon the terms and conditions contained therein. Later, the 41 pieces of land were transferred and registered in the name of the first respondent pursuant to the terms of the agreement dated 8.3.1952.

[11] By virtue of a term in the agreement dated 10.3.1951 – pertaining to the 8 pieces of land, a company was incorporated in Singapore in October 1951. That company was called Ramunia Bauxite

Pte Ltd – the first respondent herein. It must be borne in mind that the deceased appellant was made a director of the first respondent from its inception until 1954.

[12] By virtue of the agreements dated 10.3.1951 and 8.3.1952, the first respondent obtained the right to enter possession into the 8 pieces of land and the 41 pieces of land respectively for mining purposes subject to payment of tributes to the deceased appellant.

[13] On 28.5.1955, the deceased appellant was adjudicated a bankrupt by the Johor Bahru High Court vide Petition No: 1 of 1955. It was only on 12.1.1983 that the said bankruptcy was annulled.

[14] In 1959, while the deceased appellant was still a bankrupt, the Official Assignee, Malaya without the knowledge of the deceased appellant sold the 8 pieces of land listed in the First Schedule to the first respondent for a paltry sum of $12,500.00. At this juncture, the deceased appellant took the position that the claim for the 8 pieces of land will not be pursued at the trial.

[15] Now, after the deceased appellant was discharged as a bankrupt he instructed his solicitors to enquire as to the status of the mining licence. The deceased appellant was told that the mining operations had ceased in 1973. This prompted the deceased appellant to demand through

his solicitors for the transfer of the 41 pieces of land from the first respondent.

[16] It was averred that the first respondent has fraudulently refused to transfer the 41 pieces of land to the deceased appellant as stipulated by the terms of the agreement dated 8.3.1952 and instead has transferred the

41 pieces of land to the second respondent – Promet Berhad.

[17] On 11.11.1986, the deceased appellant succeeded in obtaining an injunction to restrain the respondents whether by themselves or by their servants or agents or otherwise howsoever from completing the sale of the 41 pieces of land or any of them by the first respondent to the second respondent or if such sale has been completed the second respondent be restrained whether by itself or by its servants or agents or otherwise howsoever from entering into or completing the sale thereof to any other party.

[18] It was the contention of the deceased appellant that he is the rightful and beneficial owner of the 41 pieces of land and, consequently, the first respondent is not entitled to sell the said land to the second respondent and/that the second respondent may not purchase the said land.

[19] At the trial before the learned judge of the High Court, the deceased appellant only pursued the claim for the 29 pieces of land. The

list for the 29 pieces of land can be found at the appeal record at volume 4

at pages 430 to 431 and they are now itemised as follows:

[20] The authorised representative of the deceased appellant by the name of Zaharah bt A. Kadir fashioned her claim based on the Amended Statement of Claim. At paragraph 14 of the Amended Statement of Claim, fraud was alleged and it was worded in this way (see page 58 of the appeal record at volume 1):

“14. The 1st Defendant has fraudulently refused to transfer the said
41 pieces of land to the Plaintiff as required by the terms of the
Agreement dated 8th March 1982 and has transferred the lands away to the 2nd Defendant.”

[21] And the particulars of fraud were listed in this way (see also page 58 of the appeal record at volume 1):

“PARTICULARS OF FRAUD
14.1 By the Agreement of 8th March referred to in paragraph 7 above the Plaintiff agreed to allow the 1st Defendant to enter into the 41 pieces of land for the purpose of mining only. Subsequent thereto on the same date the Plaintiff appointed the 1st Defendant as the Plaintiff’s Attorney by a Power of Attorney to do all things necessary in connection with its mining activities but without the power to transfer the lands.
14.2 The 1st Defendant has on or about 4th September 1983 transferred the said 41 pieces of land to the 2nd Defendant knowing that by such act the interest of the Plaintiff in the said
41 pieces of land would be jeopardised.
14.3 The 1st Defendant knew at the time of such transfer of the said
41 pieces of land that it did not hold the lands as beneficial owner as the 1st Defendant was bound to transfer the lands back to the Plaintiff upon ceasing mining operations therein.
14.4 The 2nd Defendant is the holder of four (4) million ordinary shares in the 1st Defendant being the whole of the issued shares of the 1st Defendant.”

[22] By raising fraud and particularising fraud, there was compliance with Asia Hotel Sdn Bhd v Malayan Insurance (M) Sdn Bhd [1992] 2

MLJ 615, where it was held that pleadings served to define and delimit with clarity and precision the real matters in controversy between the parties so that the parties could prepare their respective cases and the court would be in a better position to adjudicate the case.

[23] Pleadings too would assist the parties to identify and isolate the issues in dispute easily. In this way, the parties would be able to effectively prepare their cases for trial (Thorp v. Holdsworth [1876] 3 Ch D 637, at page 639). Thus, the element of surprise at the trial is prevented at its inception (Palmer v. Guadagni [1906] 2 Ch 494, at page 497) and the parties need only concentrate on gathering evidence according to the issues gleaned from the pleadings (Esso Petroleum Co. Ltd. v. Southport Corporation [1956] AC 218, HL, at page 238).

[24] Inter alia, the authorised representative of the deceased appellant sought for the following prayers:

(a) for an order that the first respondent do sign, execute, seal and deliver to the appellant and/or her nominees duly perfected instruments of transfer of all the 29 pieces of land (it will be demonstrated later that only 26 pieces of land will be involved) together with the documents of title thereto; and

(b) for an order that the first and the second respondents do deliver up the agreements of sale or other instruments relating to the intended sale of the 29 pieces of land (it will be demonstrated later that only 26 pieces of land will be involved) for cancellation.

The pleaded claim and the pleaded defence

[25] In regard to the 29 pieces of land, the deceased appellant’s pleaded claim which was continued by the authorised representative is this: that the first respondent is required by the terms of the 1952 agreement to re-transfer the 29 pieces of land to the deceased appellant as the beneficial owner upon the cessation of the mining operations in 1973.

[26] In the Amended Statement of Claim, particulars of fraud perpetrated by the first respondent were set out.

[27] The respondents’ defence was this. That the 29 pieces of land were purchased by the deceased appellant with funds extended by the miners in relation to the 1952 agreement, for and on behalf of the first respondent. And that the titles to the 29 pieces of land were registered in favour of the deceased appellant.

[28] That the 29 pieces of land were then transferred by the deceased appellant to the first respondent on diverse dates in the 1950s and consistent with the first respondent’s rights as the registered owner, the 29 pieces of land were subsequently transferred to the second respondent for valuable consideration.

The decision of the High Court

[29] The learned judge of the High Court in his grounds of judgment alluded to the following matters in dismissing the deceased appellant’s claim:

(a) that the second respondent as registered proprietor of the 29 pieces of land is not bound to re-transfer them to the deceased appellant unless there is a binding contract that obliges the second respondent to do so;

(b) that the onus of proving that there was such a contract or agreement lies on the deceased appellant who is making the assertion;

(c) that no such evidence was adduced of any such contract or agreement but instead the court was invited to draw inferences from certain facts established before the court;

(d) that the preambles to the 1952 Agreement and a letter dated

14.12.1952 written by the deceased appellant shows that the 29 pieces of land were purchased by the deceased appellant for and on behalf of the first respondent using the first respondent’s funds;

(e) that the deceased appellant merely held the 29 pieces of land on trust for the first respondent and the deceased appellant had

failed to prove on a preponderance of probability that there was any contract or agreement to re-transfer the 29 pieces of land to the deceased appellant after the cessation of the mining operations in 1973; and

(f) that the first respondent as the registered proprietor was free to transfer the 29 pieces of land to the second respondent.

Analysis

[30] A perusal of the grounds of judgment of the learned judge of the High Court would show that there is insufficient judicial appreciation of the evidence in arriving at the abovementioned findings. The appellate court will readily interfere with the trial judge’s finding of fact and embark on an exercise of its own in order to form an independent opinion especially in a situation where a finding of fact depends principally on inferences drawn from other facts as opposed to a finding of a specific fact which depends upon the credibility of witnesses. As observed, the deceased appellant’s case rests upon documentary evidence in the form of contemporaneous or near contemporaneous documents and correspondences as well as sworn affidavits to support the deceased appellant’s assertions on the balance of probabilities.

[31] The word “evidence” as used in judicial proceedings has several meanings. Firstly, it relates to arguments and inferences where the

courts are informed as to the issues of fact as ascertained by the pleadings. Secondly, the subject matter of the evidence as adduced through witnesses and documents. Thirdly, it denotes that some fact may be admitted as proof and that fact has relevance to the issues of fact. Fourthly, it refers to evidence that is placed before the court in order that the court may decide the issues of fact.

[32] The primary evidence par excellence of the contents of a document is the original: it is the document itself. While secondary evidence may take the form of all manner of different types of copy, including those proved by testimony to have been checked against the original which are known as “examined copies”, and those bearing a certificate of their accuracy are called as “certified copies”. Lord Esher in Lucas v. Williams & Sons [1892] 2 QB 113, CA, at page 116 aptly said:

“...... primary evidence is evidence which the law requires to be given first; secondary evidence is evidence which may be given in the absence of that better evidence which the law requires to be given first, when a proper explanation is given.”

[33] Section 61 of the Evidence Act 1950 enacts as follows:

“The contents of documents may be proved either by primary or by secondary evidence.”

[34] According to Ahmad J in Jai Gopal Singh and others v. Divisional Forest Officer [1953] AIR Patna 310, 311:

“What constitutes primary evidence in the case of a document is defined in Section 62. The secondary evidence is defined in Section
63, and under clause (5) of that section an oral account of the contents of a document given by some person who has himself seen it is also secondary evidence. But Section 64 says that ‘documents must be proved by primary evidence except in the cases hereinafter mentioned’. Section 65 gives the list of cases in which secondary evidence may be given of the existence, condition or contents of a document. It has got seven clauses.”

[35] The learned judge of the High Court must test the available evidence against the probabilities of the case. And a decision arrived at by the learned judge of the High Court without appreciation of the available evidence would attract appellant intervention. Once the appellate court has intervened, the decision would be set aside.

[36] Lord Pearce’s dissenting speech in Onassis and Calogeropoulos v. Vergottis [1968] 2 Lloyd’s Rep 403, HL, at page 430, merits reproduction:

“The function of a Court of Appeal is to set aside a judgment that should not be allowed to stand because it occasions a substantial wrong or a miscarriage of justice. That wrong or miscarriage of justice may consist of a judgment in favour of the wrong party. It may also consist of a failure in the judicial process to which both parties are entitled as of right, namely, the weighing of their respective cases and contentions. Such failure may constitute a wrong or miscarriage of justice even though it may appear that the appellant may in the end fail to secure a judgment in his favour. But the fact that the right party seems to have succeeded in the Court below will naturally make a Court of Appeal extremely reluctant to interfere, and it would only do so in the rarest cases. Such matters are questions of degree.”

[37] In China Airlines Ltd v Maltran Air Corp Sdn Bhd (formerly known as Maltran Air Services Corp Sdn Bhd) and another appeal

[1996] 2 MLJ 517, FC, Mohamed Dzaiddin FCJ (later Chief Justice) delivering the judgment of the Federal Court laid down the law in these lucid words (see pages 527 to 528 of the report):

“In the light of the above findings of the learned judge, a fundamental question of principle arises – which is, whether in the circumstances of the case, this court can interfere with the findings of fact of the court below. It is a settled principle of law that in an appeal, where facts have to be reviewed, it is undesirable that the findings of the court below should be disturbed by a court of appeal unless it appears that those findings are clearly wrong, and more especially that it is undesirable to do so where the conclusions reached must to a large extent depend on the credibility of the witnesses and the impression formed by a court which has seen them and can judge their honesty and accuracy (Crofter Hand Woven Harris Tweed Co Ltd & Ors v Veitch & Anor [1942] 1 All ER 142 (HL) per Lord Porter at p 167). However, the authority for the above proposition is the speech of Lord Thankerton in Watt (or Thomas) v Thomas [1947] 1 All ER 582, particularly the following passage (at p
587):

‘I Where a question of fact has been tried by a judge without a jury and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge’s conclusion.

II The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.

III The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court.’

On the other hand, there is a clear authority also from the House of Lords – and followed by the Privy Council – which says that a distinction can be drawn between a finding of a specific fact which depends upon the credibility of witnesses and a finding 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 than in the case of the former. That authority is the speech of Lord Reid in the House of
Lords’ decision in Benmax v Austin Motor Co Ltd [1955] 1 All ER 326, followed later by the Privy Council in the Singapore case of Tay Kheng Hong v Heap Moh Steamship Co Ltd [1964] MLJ 87 at p 94. At p 329, his Lordship stated:

‘Watt (or Thomas) v Thomas [1947] 1 All ER 582 was a consistorial case based on cruelty, and I think that the whole passage which I have quoted refers to cases where the credibility or reliability of one or more witnesses has been in dispute, and where a decision on these matters has led the trial judge to come to his decision on the case as a whole. If that be right, then I see no reason to doubt anything that was said by Lord Thankerton. But in cases where there is no question of the credibility or reliability of any witness, and in cases 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 evaluate the evidence as the trial judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion.’

In Tay Kheng Hong v Heap Moh Steamship Co Ltd, the Singapore Court of Appeal found there was a considerable volume of independent evidence both documentary and oral which was consistent only with the respondents’ case. It held that the trial judge was wrong in accepting the appellant’s evidence. On appeal, the Privy Council held that the Court of Appeal’s acceptance of the witness’s evidence depended on inferences from documents. However, these inferences were insufficient material to entitle them to reject the result arrived at by the trial judge.
In the present case, it is apparent to us that the learned judge based her findings after considering the evidence of the witnesses and the documents; and clearly, her conclusions were based on inferences drawn from them. In our view, the learned judge did not make any specific finding of fact based on the evidence of PW3 and DW3 and the documents. Although she accepted the evidence of PW3 and DW3 as the most telling, there was nothing in her judgment which indicated her decision was based on the credibility of the witnesses or as a result of the impression she formed of them. At any rate, we will also show that her acceptance of their evidence was wrong. As for the second issue, her conclusion depended entirely on inferences drawn from the three agreements, AB22, 26 and 29. Since the present case does not involve the question of credibility of the witnesses, we are satisfied, following the Benmax principle, that we are in as good a position to review and evaluate the evidence of the case as the trial judge.”

[38] In Tay Kheng Hong v. Heap Moh Steamship Co. Ltd. [1964]

30 MLJ 87, Lord Guest at page 92 had this to say:

“There is a heavy onus on a party who seeks to displace the conclusion formed by the trial Judge on questions of fact. The principles upon which an appellate Court should act in reviewing the decision of a judge of first instance were stated by Lord Thankerton in Watt or Thomas v. Thomas [1947] AC 484 at page 487; [1947] 1 All ER 582 at page 587:

‘I Where a question of fact has been tried by a judge without a jury and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion.

II The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.

III The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court’.”

[39] In Renal Link (KL) Sdn Bhd v Dato’ Dr Harnam Singh [1997]

2 MLJ 373, 379, this court speaking through Gopal Sri Ram JCA had this to say:

“Unless we, as a court of appeal, are convinced that there was no judicial appreciation of the evidence by the trier of fact, or that the audio-visual advantage reserved to a trial judge had been missed or that the findings made do not accord with the probabilities of the case when taken as a whole, it would not be open to us to intervene and upset the findings made by a trial judge.”

[40] The speech of Lord Denning MR in Kerry v. Carter [1969] 1

WLR 1372, CA, at page 1376, is worth repeating. There his Lordship said:

“We have been referred to cases on this subject, particularly the recent case of Brown v. Thompson [1968] 1 W.L.R. 1003. Since that case it seems to have been assumed in some quarters that this court
will rarely, if ever, alter an apportionment made by the judge. Such is a misreading of that case. I think that the attitude of this court was correctly stated in that case, at p. 1012, by Edmund Davies L.J. when he quoted from the judgment of Sellers L.J. in Quintas v. National Smelting Board [1961] 1 W.L.R. 401, 409. This court adopts in regard to apportionment the same attitude as it does to damages. We will interfere if the judge has gone wrong in principle or is shown to have misapprehended the facts: but, even if neither of these is shown, we will interfere if we are of opinion that the judge was clearly wrong. After all, the function of this court is to be a Court of Appeal. We are here to put right that which has gone wrong. If we think that the judge below was wrong, then we ought to say so, and alter the apportionment accordingly.”

[41] The trial judge at the High Court in the case of Tindok Besar Estate Sdn. Bhd. v. Tinjar Co. [1979] 2 MLJ 229 found the plaintiff in that case guilty of fraudulent misrepresentation based on the veracity of the defendant and its witnesses, but on appeal, Chang Min Tat FCJ speaking for the Federal Court reversed the High Court judge’s finding of fraud. At page 234, Chang Min Tat FCJ said:

“Nevertheless the learned trial judge expressed himself to be completely satisfied with the veracity of the respondent’s witnesses and their evidence. He purported to come to certain findings of fact on the oral evidence but did not notice or consider that the respondent’s oral evidence openly clashed with its contemporaneous documentary evidence. For myself, I would with respect feel somewhat safer to refer to and rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe his subsequent recollection or version of it, particularly if he is a witness with a purpose of his own to serve and if it did not account for the statements in his documents and writings. Judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and the circumstances of the case. Plausibility should never be mistaken for veracity.”

[42] In Yusoff bin Kassim v Public Prosecutor [1992] 2 MLJ

183, at page 188, Edgar Joseph Jr SCJ speaking for the Supreme Court aptly said:

“We recognised that the learned trial judge had a great advantage, denied to this court, of seeing and hearing the witnesses and the appellant testify. Be that as it may, there is a wealth of authority for the proposition that upon an issue depending upon oral evidence where there is plainly perjury on the one side or the other, a Court of Appeal ought to be greatly influenced by the opinion of the trial judge, who has seen and heard the witnesses, except where he has failed to observe inconsistencies or to take account of material circumstances or probabilities. (See for example, Khoo Sit Hoh & Ors v Lim Thean Tong [1912] AC 323). An appellate court can, therefore, in appropriate cases, act upon its own view of the conflicting evidence. (See Coghlan v Cumberland [1898] 1 Ch 704 and Bigsby v Dickinson [1876] 4 Ch D 24).
In all the circumstances, having regard to the fact that the trial judge had overlooked or failed to take into account or given proper weight to, or drawn proper inferences from, the matters to which we have adverted, which otherwise might have caused him to come to a different conclusion, we were satisfied that he had not taken proper advantage of his having seen and heard the witnesses (per Lord Thankerton in Watt or Thomas v Thomas [1947] 1 All ER 582) and so the present appeal came within the range of those cases where we were at liberty to act upon our own view of the conflicting evidence.”

[43] Lord Roskill in Choo Kok Beng v. Choo Kok Hoe & Ors. [1984] 2 MLJ 165, PC, at pages 168 to 169 had this to say in regard to appellate intervention:

“Their Lordships do not find it surprising that the Court of Appeal not only felt obliged to reach the conclusion which they expressed orally at the conclusion of the hearing of the appeal that the learned judge’s findings on the issue favourable to the appellant could not be supported, and that that court must reverse the learned judge’s judgment and enter judgment for the respondents, but that in their written judgment they should have said that in basing his finding
‘entirely on the credibility or otherwise of the witnesses testifying before him’ the learned judge was guilty of ‘a plain misdirection’. Their Lordships respectfully agree with the Court of Appeal that the
findings favourable to the appellant were arrived at ‘without an adequate scrutiny and consideration of all the evidence before him.’
Their Lordships are well aware, as no doubt were the Court of Appeal, of the limited circumstances in which it is open to an appellate court to reverse the findings of a trial judge based on credibility of the witnesses who have given evidence at the trial. But when a trial judge has so manifestly failed to derive proper benefit from the undoubted advantage of seeing and hearing witnesses at the trial and, in reaching his conclusion, has not properly analysed the entirety of the evidence which was given before him, it is the plain duty of an appellate court to intervene and correct the error lest otherwise that error result in serious injustice.”

[44] D. P. Mohapatra J delivering the judgment of the Supreme Court of India in State of Rajasthan v Hanuman AIR [2001] SC 282, at page 284, aptly said:

“No doubt the appellate Court should assess the evidence on record with a view to satisfy itself that the appreciation of evidence by the trial Court is not vitiated on account of any erroneous approach or illegality and it is not palpably erroneous. The sustainability of the judgment depends on the soundness of the reasons given in support of the findings and the conclusion.”

[45] The non-consideration of the material evidence and the appreciation of the available evidence by the learned judge of the High Court was not objectively taken and was one sided. The learned judge of the High Court too failed to assess, weigh and for good reason either accept or reject the following evidence put forth by Zaharah bt A. Kadir – the authorised representative of the deceased appellant:

(a) The deceased appellant affirmed an affidavit on 26.1.1986 as seen at pages 180 to 187 of the appeal record at volume 2. This

affidavit was admitted as evidence pursuant to the order of the court dated 21.1.1989 as seen at pages 92 to 94 of the appeal record at volume 1. The deceased appellant at paragraphs 6,

6.1, 6.2, 6.3, 7, 8 and 9 of his affidavit refuted the contents of the letter dated 14.2.1952. For convenience, the deceased appellant’s averments in his affidavit affirmed on 26.1.1986 will now be reproduced (see pages 185 to 187 of the appeal record at volume 2):

“6. I do not recollect writing the letter ‘YPG-2’ annexed to Encl 21. I believe it is a spurious document and ought not be given any credence. It is not referred to in any other instrument as far as I know and it is incorrect in material particulars eg:
6.1 The Agreement of 10 March 1951 referred to in the caption of the letter does not relate to the pieces of land described therein: that Agreement is in respect of the 6 pieces of land in the 1st Schedule annexed to the Statement of Claim while the letter refers to 41 pieces of land.
6.2 The contents of the letter directly contradict the terms of the
Agreements and the Powers of Attorney made on 10 March 1951 and
8 March 1952: those of 10th March 1951 were drawn up by Dato’ Wong Shee Fun’s Solicitors here and the Company’s Singapore Solicitors. Annexed hereto marked ‘AKA-4’ and ‘AKA-5’ are photostat copies of the Agreement and the Power(s) of Attorney dated 10th March 1951 and marked ‘AKA-6’ and ‘AKA-7’ are the Agreement and the Power of Attorney dated 8th March 1952.
6.3 A sum of $18,725.00 was paid to me vide the Agreement of 8th
March 1952 but not for me to purchase the 41 pieces of land in the
2nd Schedule ‘on behalf of the Company’. The money was part of
the consideration paid to me for the right which I gave to the 1st Defendant to possess and mine the lands for bauxite. At no time was it envisaged that I was to transfer ownership of the lands to the
1st Defendant except to facilitate mining. Had the lands belonged to
the 1st Defendant the Agreements and the Powers of Attorney would not have been necessary.
7. I respectfully contend that all the transfers of the several pieces of land in the 2nd Schedule to the 1st Defendant were made pursuant to the Agreement of 8th March 1952 for the expressed purpose of enabling the 1st Defendant to carry out mining operations therein. Now that mining operations have ceased that purpose is no longer operative and the lands ought to be returned to me.
8. I annex hereto marked ‘AKA-8’ a photostat copy of a Memorandum of Transfer made in respect of EMR No. 38. To the best of my recollection every transfer I made (is) in the same terms that is, each transfer was expressed to be ‘in consideration of the Agreement of
8th March 1952.’ I obtained the certified copy of the transfer upon payment of $125.00; I cannot afford to pay for copies of all the transfers I made and I offer this as a sample.
9. I therefore humbly pray that this Honourable Court would be pleased to dismiss the application in Encl 12 and grant my application in Encl 10 both with costs.”

(b) The letter dated 14.2.1952 was produced by the learned judge of the High Court at page 36 of the appeal record at volume 1:

“RAMUNIA BAUXITE LIMITED.

(INCORPORATED IN SINGAPORE)

HIGH STREET, SINGAPORE.
TELEPHONE :
TELEGRAMS : RAMXITE SINGAPORE
14th February 1952
The Managing Director, Ramunia Bauxite Ltd., Singapore.
Re: Land bought in Telok Ramunia by Messrs. Ramunia Bauxite Ltd., in the name of Abdul Kadir bin Ami for the purpose of mining Bauxite under an Agreement between Abdul Kadir bin Ami and other Directors of Ramunia Bauxite Ltd., dated 10.3.1951 – comprising of Lots 170, 168, 164, 128, 169, 167, 157, 161, 158, 162, 163, 144, 156,
140, 141, 148, 155, 143, 55, 150, 39, 149, 145, 154, 152, 136, 153, 139,

142, 141, 165, 135, L.O. 33, 134, 138, A.O. 385, 151, 172, 171, 166, 137

I, Abdul Kadir bin Ami, a Director of Ramunia Bauxite Ltd., having purchased and registered in my own name certain bauxite bearing lands situated on Bukit Bopeng and Bukit Wakab Besar in Telok
Ramunia comprising of lots as mentioned above, do hereby declare that these purchases have been made on behalf of the Company with the Company’s funds, and are the properties of the Company (Ramunia Bauxite Ltd.).
I further accept the fact that these lands have been acquired for the express purpose of bauxite mining under the terms of an Agreement made between me and my fellow Directors, Messrs. Tow Keng Hee, Wong Shee Fun, Tow Siang Ling and Ng Yook Lin, dated 10.3.1951, whereby it is clearly stated that I shall be entitled a tribute of $2.00 per ton of bauxite mined and exported from this area. I also acknowledge that any tribute payable to the former landowners shall be my own responsibility and shall come from the said tribute of
$2.00 per ton paid to me.
I hereby also acknowledge that it is my duty and responsibility ..... the E.M.R.s are registered in my name and not in the name of the Co. to make applications for P.M.L.s in my own name on behalf of Ramunia Bauxite for renewals of such P.M.L.s when they expire.
It is also my intention to give to the Company (Ramunia Bauxite Ltd.) an irrevocable .............. to exploit and work these lands and to make all applications for P.M.L.s or mining licences in respect of the above mentioned lands, and any other future acquisitions of bauxite bearing lands.
Yours faithfully, Sgd.
Abdul Kadir bin Ami
Director – Ramunia Bauxite Ltd.”

and was considered by his Lordship without evaluating and analysing it with the contents of the affidavit affirmed by the deceased appellant on 26.1.1986 as reproduced earlier.

(c) It must be borne in mind that the miners did not affirm any affidavits to rebut and negate the contentions of the deceased appellant. At this juncture, it would be ideal to refer to a letter dated 8.1.1988 written by the first respondent to one of the miners by the name of Tow Siang Ling and in that letter the first

respondent sought the assistance of Tow Siang Ling to render whatsoever assistance to the solicitors in regard to the dealings of the company with the deceased appellant. That letter can be seen at page 838 of the appeal record at volume 6 and it was worded as follows:

“8th January 1988
Mr Tow Siang Ling Charles
224 Loyang Avenue
=03-01 Loyang Valley
Singapore 1750
Dear Charles
We refer to your letter of 29th December 1987 on your resignation with immediate effect as a Director from the Board of the Company.
The Directors are concerned about the civil suits pending against the Company in which the plaintiffs have claimed ownership to several parcels of land which are or were registered in the name of the Company. It has also been alleged that these parcels of land were formerly owned by them and transferred to the Company sometime in 1960 on the understanding that they would be re-transferred on the happening of certain specified events that have already taken place. As the present Directors are not aware of these purported transactions and since you are the only person who would be able to throw some light on the dealings of the Company during that time, the Directors would appreciate it if you could provide whatever assistance as and when you are required to do so by our solicitors in the defence of this action.
We take this opportunity to thank you for all your support to the
Company during your term of office as a Director.
Yours faithfully
RAMUNIA BAUXITE PTE LTD
Sgd. Illegible ANTHONY AUROL Secretary.”

(d) Despite the said letter, Tow Siang Ling remained silent. He did not affirm any affidavit to deny the deceased appellant’s contention nor did he support the first respondent’s contention that the purchases were made by the deceased appellant on behalf of the first respondent. To compound the matter further, the learned judge of the High Court failed to address his mind to the relevant inference to be drawn and the correct weight to be attached for the failure of Tow Siang Ling to affirm any affidavit in order to negate the deceased appellant’s assertion. In this regard, it would be ideal to refer to the case of Loke Yew v Port Swettenham Rubber Company, Limited [1913] AC 491, a decision of the Privy Council. Lord Moulton delivering the judgment of the court had this to say at pages 503 to 504 of the report:

“Their Lordships therefore find that the formal transfer of all the rights under the original grant was obtained by the deliberate fraud of Mr. Glass. He was aware that he could not obtain the execution of a transfer in that form otherwise than by fraudulently representing that there was no intention to use it until the plaintiff company were able so to do honestly by having acquired Loke Yew’s sub-grants by purchase, and he therefore fraudulently made such representation, and thereby obtained the execution of the transfer. It is an important fact to be borne in mind that although this fraud was clearly charged in the defence, Mr. Glass was not called at the trial, nor was his absence accounted for. The inference to be drawn from this is obvious and is entitled to great weight.”

(e) Now, the Amended Statement of Claim at paragraphs 14 to 14.4 as reproduced earlier itemised the particulars of fraud perpetrated by the first respondent. But, the miner concerned – referring to Tow Siang Ling, who had sold and transferred the first respondent’s company together with the 41 pieces of land to the second respondent had failed to come forward to affirm any affidavit to deny the deceased appellant’s claim.

[46] Yeow Peck Guen, the administrative executive of the second respondent, affirmed an affidavit on 22.3.1986 as seen at pages 188 to 191 of the appeal record at volume 2. And at paragraph 3 of the affidavit, this was what Yeow Peck Guen deposed to:

“3. On 15th November, 1954 the 1st Defendant (referring to the first respondent) wrote a letter to the Commissioner of Lands and Mines, Johore explaining the role of the plaintiff (referring to the deceased appellant) in the acquisition of the lands from the original landowners. A copy of the said letter is annexed hereto and marked (as) exhibit ‘P1’.”

[47] Exhibit “P1” can be seen at pages 390 to 393 of the appeal record at volume 3 and it was written by Tow Siang Ling and it was worded in this way:

“15th November 1954
The Commissioner of Lands and Mines, Johore, Government Building,
Johore Bahru. Dear Sir,

Sub: Your Letter No. 86 in CLM/267/50

Reference to Application for P.M.Ls.

We thank you for the above letter of 23rd October, in connection with which the writer has had a general discussion at your office on Tuesday the 9th of November.
As advised by you verbally and in order that you may be acquainted with all the facts in relation to our arrangements with the Ramunia landowners we are pleased to give the following account outlining the history of the company‘s land acquisitions at Telok Ramunia.
With the help of Abdul Kadir bin Ami as an intermediary we acquired by agreements, various lands at Telok Ramunia which, whenever practicable, were transferred to Abdul Kadir bin Ami who, in the capacity of a representative of our company, signed these agreements with the landowners. These agreements entitle the respective landowners to a collective tribute of $1/- per ton payable direct by the company, pro rata, in accordance with the respective areas of their individual land holdings. Clause (b) of this agreement provides that each landowner shall obtain his share of the tribute direct from the company, and that he may apply to the company for a certificate indicating the exact proportion of the $1/- tribute to which he is entitled. This certificate further confirms the company’s direct responsibility in the payment of this tribute and provides on pages 2 and 3 thereof, a complete schedule of those entitled to this tribute, thereby binding the company to this liability.
We enclose for your inspection a specimen of the above said agreement and also a specimen of the tribute certificate.
There were a few instances where a landowner signified his intention to sell his land outright to the company, and in such a case the land was purchased for a lump sum, the company thereby becoming entitled to the share of the tribute payable in respect of the particular lot of land.
When the company finally commenced shipping ore from the mine, tribute was paid to all who were included in the schedule printed on the tribute certificate, even though the major part of the lands were still not yet transferred to Abdul Kadir bin Ami or to the company. However we made clear to all the landowners our intention to have all the lands transferred as soon as it became practicable, and we took the initiative by doing everything possible in our power to help them apply for L.A. and making small advances to help them cover their travelling expenses etc. The necessity of transferring these lands in preparation for eventual conversion was explained in conjunction
with the fact that since the grades of ore from separate areas were not constant and as a certain standard quality was demanded by our customers abroad, it was imperative that we made available for mining all the lands at our disposal so that the widest possible scope can be provided to facilitate our ore- blending-operations. That unnecessary wastage of prime ore which may be shipped in order to build up required quantities and loss of low grade ore which may be used for blending with prime ore to produce a standard salable quality might result from delay in effecting the conversion of these lands was common knowledge to all the landowners.
By the middle of 1953, as a result of all our efforts, the bulk of the lands were transferred to Kadir or to the company. There were however, some lots that were in the names of deceased owners, which were deadlocked due to non cooperation of beneficiaries in the matters of obtaining L.A. and or Distribution Orders, or due to internal strife amongst the beneficiaries themselves.
With the object of prompting these landowners to full cooperation, it was decided that their shares of the tribute in respect of the lots in question should be temporarily held back until transfers were completed.
Since this step was taken some of these landowners have given us full cooperation with the result that their lands have now been transferred and the respective suspense tributes fully paid up.
The rest of these landowners seem to be completely indifferent although they have wasted no time in complaining of not having received their shares of the tribute.
The lots included in our present application for Proprietory Mining Licences are examples of recent transfers which would not have taken place had we not taken this drastic step.
In reply to paragraph 2 of your letter of the 23rd of October, we give the following explanation:
Whereas Abdul Kadir bin Ami originally held lands on behalf of the company, the company on becoming more organised gradually dealt direct with the government as well as with the Ramunia landowners, so much so that it became desirable, both from the point of streamlining all land matters and also for the purpose of sorting out all the various and complex aspects of land problems, to have all lands transferred and all leases issued direct to the company. Subsequent transfers of lands were then made direct to the company.
However, this did not in fact create two different categories as is suggested because, all lands, whether in the name of Abdul Kadir bin Ami or in the name of the company, have been strictly speaking the properties of the company, Kadir having in the former instance only held the lands in trust for the company, and as they were all subject to the payment of tribute in accordance with the schedule printed on pages 2 and 3 of the afore-mentioned tribute certificate.
In compliance with your verbal request, we attach hereto, an account showing particulars of tributes held up.
We thank you for your very kind interest in this matter and trust that you will let us hear from you soon.
Yours faithfully, RAMUNIA BAUXITE LTD.
Sgd. Illegible
(Tow Siang Ling) Director Ramunia Bauxite Ltd.
Singapore.

PARTICULARS OF TRIBUTE TEMPORARILY HELD BACK BY COMPANY.

1. Syed Abdul Ghani Bin Mohd. Lot. 132 E. 118
204,119 tons = $4,857.05
2. Syed Ismail Bin Mandak Lot. 153 E. 34
204,119 tons = $1,620.76

RAMUNIA BAUXITE LTD.
Sgd. Illegible
(Tow Siang Ling)
Director Ramunia Bauxite Ltd.
Singapore.”

[48] But what Tow Siang Ling wrote in exhibit “P1” dated

15.11.1954 should not be given any weight for the following reasons:

(i) Tow Siang Ling had failed to come forward by filing any affidavit and his credibility as the author of exhibit “P1” is at stake;

(ii) Exhibit “P1” was written by Tow Siang Ling after the deceased appellant had resigned as the director of the first respondent company in October 1954 after a dispute; and

(iii) Exhibit “P1” is nothing more than a unilateral expression of the facts by Tow Siang Ling.

[49] It is germane, at this juncture, to refer to the minutes of the meeting with the landowners held on 14.12.1952 as seen at pages 375 to

376 of the appeal record at volume 3. The minutes of that meeting contained the following interesting facts that merit reproduction:

“PRESENT:
District Officer, Kota Tinggi.
Collector of Land Revenue, Kota Tinggi.
Mr. W.A. Conrad, Managing Director E.Ott Co. Ltd. Mr. C. Schwender, Ramunia Bauxite Limited.
Mr. Toh Siang Ling. –do- Che Abdul Kadir bin Ami.” –do- Asst. District Officer, Pengerang.

THE FOLLOWING ‘LAND-OWNERS’ WERE ALSO PRESENT:- Syed Abdul Rahman bin Mohamed.

Tabob bin Daud.
Syed Ahmad bin Ismail. Jemah binti Kamran.
Abdul Rahman bin Asmah. Syed Omar bin Yahya. Sibolo binti Palatateh. Ismail bin Ariffin.
Hussein bin Hassan. Osman bin Asmah.
Syed Abdul Ghani bin Mohamed.
Syed Ibrahim bin Abdullah. Salleh bin Malik.
Syed Abdul Kadir bin Mansor. Munah binti Abdullah. Mohamed Said bin Ali
Syed Mashor bin Ja’afar.
Syed Abdul Ghani bin Moh. Syed Ali bin Hassan.
Jamhil bin Zahib.
Mohamed Salleh bin Malik. Syed Ismail bin Ali.
Apart from Mohamed Salleh bin Malik and Syed Ismail bin Ali, all the
‘Land-owners’ present had received signed Agreements from Che
Abdul Kadir bin Ami, a Director of Ramunia Bauxite Limited.
Mr. Toh Siang Ling explained that these two persons had originally entered into agreement with Madam Quek Jit Poon but in view of the agreement now executed between the Company and Madam Quek a further Agreement will be executed with them to replace the temporary Agreement already in their possession.
2. All the ‘Land-owners’ admitted having received compensation of
$100/- per acre in accordance with Clause I of the Agreement. Further, they all stated they were conversant with Clause I (a) to the effect that the ‘Land-owners’ shall receive tribute collectively at the rate of $1/- per long ton.
3. Certain of the ‘Land-owners’ stated they have received interest free loans to the extent of a few hundred dollars against the tribute to be paid at some future date.
4. Certain of the ‘Land-owners’ enquired when they could expect the
1st payment of tribute. Mr. Conrad explained that the first shipment was now being loaded and five days after sailing he would be in a position to make the first payment. He hoped that the first shipment would be in the region of 6,200 tons and during 1953 he hoped to ship not less than 153,000 tons. The Agreement, however, states the Tribute shall be paid within fourteen days of the shipment sailing.
5. The question of compensation and tribute for those ‘Land-owners’ not included in the existing printed Agreement was raised by the Collector of Land Revenue, Kota Tinggi who pointed out that certain
‘Land-owners’ had sold their property to Che Abdul Kadir bin Ami during the first half of 1951 and are not included in the Agreement. Mr. Conrad explained it is the intention of the Mining Company to see that these people are no worse off, in virtue of having transferred their land, than those whose land is still registered in their names and who are included in the Agreement.
6. The Collector of Land Revenue, Kota Tinggi also raised the question of the future ownership of the mining land upon completion of mining operations. Mr. Conrad said that if the former owners expressed a desire for the return of their land the necessary transfers would be executed.
7. At this stage in the Meeting Messrs. Conrad, Schwander and Toh
Siang Ling withdrew from the Meeting.
8. The District Officer, Kota Tinggi then went on to explain in detail the Clause relating to the payment of Tribute, after which the ‘Land- owners’ present stated that they understood the basis on which tribute will be paid, and expressed satisfaction with the Agreement as executed.
Ref: CLRKT. 385/49/85.
Sgd. Illegible
(B.H. CATCHPOLE MCS) COLLECTOR OF LAND REVENUE, KOTA TINGGI.
14 December, 1952. * Note:- Admission on lands sold to

Abdul Kadir.”

[50] It must be acknowledged that the contents of the minutes of that meeting showed the failure on the part of Tow Siang Ling who was present at that meeting to deny the Kota Tinggi Collector of Land Revenue’s assertion that certain landowners had sold their lands to the deceased appellant during the first half of 1951.

[51] The contents of the minutes of that meeting showed the further admission by the managing director in the person of Mr. Conrad who upon the Kota Tinggi Collector of Land Revenue’s query as to the future ownership of the mining lands upon completion of the mining operations had asserted that those lands will be transferred back to the landowners

should they express such desire upon completion of the mining operations. This damning fact cannot be ignored. It showed cogency to the deceased appellant’s contentions that the transfer of the said lands were merely to facilitate the mining operations and not as an outright transfer as contended by the respondents.

[52] The respondents’ trial submissions before the learned judge of the High Court can be seen at pages 235 to 258 of the appeal record at volume 2. At page 246 of the appeal record at volume 2, the respondents submitted at paragraph 3.1(d) that, “the indication of a return of the lands was in favour of the former owners and not to the plaintiff (referring to the deceased appellant).” This salient fact was not even considered by the learned judge of the High Court. His Lordship failed to consider that the “former owners” were indeed the owners whom at the date of the meeting on 14.12.1952 had transferred their lands to the first respondent not as an outright transfer but rather to facilitate the mining operations.

[53] It is necessary that the learned judge of the High Court evaluate the above salient piece of evidence put forward by the deceased appellant. Yet this was not done. And to compound the matter further there was a failure to categorically state that the version of the facts advanced by the deceased appellant was rejected by his Lordship.

[54] Insufficient judicial appreciation of the evidence placed before the learned judge of the High Court would attract appellate intervention. And the judicial determination of a dispute where substantial questions of mixed fact and law are involved can only be satisfactorily reached if it is supported by strong cogent reasons. Here, the situation is entirely the opposite. The learned judge of the High Court had not directed his mind in a judicial manner in approaching the case. His Lordship failed to examine the available evidence in detail nor did he state in his judgment that the deceased appellant’s evidence was not acceptable. His Lordship seemed to have taken an easy way out by merely drawing an inference from one aspect of the case.

[55] It is ideal, at this juncture, to refer to the judgment of Raja Azlan Shah FJ (as His Royal Highness then was) in the case of Tan Kim Leng & Anor. v. Chong Boon Eng & Anor [1974] 2 MLJ 151, FC. This was what his Royal Highness said:

“In reaching a conclusion the learned judge had to consider the probabilities and the circumstances of the whole case. It was essentially a case in which there should have been a full record of the reasons which persuaded him to reach the conclusion he did. A mere finding of no negligence against both the respondents and that the accident occurred because of the sudden brake failure on account of some latent defect in the braking system, not supported by reasons, is not a judgment according to law.
A judicial determination of a dispute where substantial questions of mixed fact and law arise is satisfactorily reached only if it be supported by the most cogent reasons that commend themselves to the learned judge. Recording of reasons in support of a decision of a dispute serves more purposes than one. It is intended to ensure
that the decision is not the result of whim or fancy. ‘It is of course true’, said Sir Alfred Denning (as he then was), ‘that his decision may be correct even though he should give no reason for it or even give a wrong reason: but, in order that a trial should be fair, it is necessary, not only that a correct decision should be reached, but also that it should be seen to be based on reason; and that can only be seen, if the judge himself states his reasons.’ See The Road to Justice, page
29.
A party to the dispute is ordinarily entitled to know the grounds on which the learned judge has decided against him, and more so, when the judgment is subject to appeal. An appellate court will then have adequate material on which it may determine whether the facts are properly ascertained, the law has been correctly applied and the resultant decision is just.
In my opinion the finding of the learned judge in the instant case is not a judgment according to law.”

[56] It is now appropriate to refer to paragraph 8 of the memorandum of appeal which reads as follows (see page 8 of the appeal record at volume 1):

“8 The Learned Judge had erred on the law in failing to appreciate the canons of constructions in construing the Agreements transacted by the deceased appellant:
8.1 By reason stated at paragraph 8 above, the Learned Judge had erred on the law and on the facts in arriving at his findings that the 3 preambles in the 1952 Agreement establish the fact (that) the lands were purchased for and on behalf of the 1st Defendant.”

[57] The canons of construction are not rules of law. They are mere guidelines to interpret the English language (Investors Compensation Scheme Ltd. v. West Bromwich Building Society, Same v. Hopkin & Sons (A Firm) And Others [1998] 1 WLR 896, HL). What Lord Diplock

said in Prestcold (Central) Ltd. v. Minister of Labour [1969] 1 WLR 89, at pages 96 to 97, CA, merits reproduction. There his Lordship said that:

“..... many of them are general rules of composition which any writer seeking clarity of expression is likely to follow, such as expressio unius exclusio alterius, ejusdem generis and noscitur a sociis though, unlike lawyers, he does not express them in the arcane obscurity of the Latin tongue.”

[58] Devlin J in the same vein in Chandris v. Isbrandtsen-Moller

Co. Inc. [1951] 1 KB 240, at page 244, aptly said that:

“A rule of construction cannot be more than a guide to enable the court to arrive at the true meaning of the parties. The ejusdem generis rule means that there is implied into the language which the parties have used words of restriction which are not there. It cannot be right to approach a document with the presumption that there should be such an implication. To apply the rule automatically in that way would be to make it the master and not the servant of the purpose for which it was designed – namely, to ascertain the meaning of the parties from the words they have used.”

[59] Again, in regard to the ejusdem generis principle, Bowen LJ had this to say in The Earl of Jersey v. The Guardians of the Poor of the Neath Poor Law Union Acting as the Neath Union Rural Sanitary Authority [1889] 22 QBD 555, at pages 561 to 562, CA:

“It is to be observed that the rule admits, as every rule of construction of documents must admit, as it is after all but a working canon to enable us to arrive at the meaning of the particular document – it admits of being modified by the contents of the document itself, and there are many classes of cases in which it is obvious that the rule would have to bend.”

[60] On the importance of recitals as an aid to construction, the

Court of Appeal’s case of Ex Parte Dawes, In re Moon [1886] 17 QBD

275 should be referred to. There Lord Esher MR said at page 286:

“This is a deed of assignment or conveyance of property by way of security, and the question is how it is to be construed.”

[61] Further down the same page, Lord Esher MR had this to say:

“Now there are three rules applicable to the construction of such an instrument. If the recitals are clear and the operative part is ambiguous, the recitals govern the construction. If the recitals are ambiguous, and the operative part is clear, the operative part must prevail. If both the recitals and the operative part are clear, but they are inconsistent with each other, the operative part is to be preferred.”

[62] In Square Mile Partnership Ltd v Fitzmaurice McCall Ltd

[2007] 2 BCLC 23, CA, Arden LJ aptly said:

“[52] Unusually, the operative parts of the agreement provide for indebtedness to be discharged and transfers made before completion (see cll 4.3, 6.3 and 14.2). Normally an agreement contains steps to be taken under the agreement and not in preparation for it. Steps taken in preparation for an agreement are usually referred to in the recitals to an agreement if they are referred to at all. Recitals of this kind can be useful for interpreting the agreement.”

[63] Now, the respondents through their sole witness Khoo Gim Hoon (DW1) referred to the Recitals of the agreement dated 8.3.1952 (see pages 293 to 297 of the appeal record at volume 3). The Recitals read as follows:

“WHEREAS the Proprietor is the registered proprietor, owner or occupant of the lands described in the Schedule hereto (hereinafter referred to as the ‘said lands’).
AND WHEREAS the Miners have from time to time advanced various sums of money to the Proprietor amounting to Dollars Eighteen thousand seven hundred and twenty-five ($18,725.-) for the purchase of the said lands in the name of the Proprietor.
AND WHEREAS the said lands have been purchased in the name of the Proprietor for and on behalf of the Miners (as the Proprietor hereby acknowledges).
AND WHEREAS the said lands have been acquired for the express purpose of enabling the Miners to prospect and mine for bauxite and aluminium ores or any other mineral ores on the terms and conditions hereinafter contained.”

[64] It was submitted that at the trial, the deceased appellant did not submit in regard to the Recitals. According to the respondents, the Recitals are clear and unambiguous and there was very little that the learned judge of the High Court could do except to give effect to their plain meaning. Thus, it was submitted for the respondents that the learned judge of the High Court did not fall into an error, be it legally or factually.

[65] But where the words of the operative parts of the agreement dated 8.3.1952 are clear they will not be controlled, cut down, curtailed or qualified by the Recitals. Patteson J in James Thomas Walsh And The Reverend Alfred Pyne v. John Charles Bettesworth Trevanion And Charlotte his Wife, Hugh Charles Trevanion, an Infant, By Charles Thellusson his Guardian, And Others; The Same Plaintiffs v. Edward Coode and And Others; The Same Plaintiffs v. Margaret Rhodes And

Others; The Same Plaintiffs v. Ann Holcombe And Others [1850] 15

QB 733, at 751, aptly said that:

“......when the words in the operative part of a deed of conveyance are clear and unambiguous, they cannot be controlled by the recitals or other parts of the deed. On the other hand, when those words are of doubtful meaning, the recitals and other parts of the deed may be used as a test to discover the intention of the parties, and to fix the true meaning of those words.”

[66] Sir John Romilly MR in Holliday v. Overton [1852] 14 Beav

467, at 470, echoed the same sentiments:

“.....it is impossible by a recital to cut down the plain effect of the operative part of a deed.”

[67] Lord Davey in Mackenzie And Others v. The Duke of Devonshire And Others [1896] AC 400, at page 408, HL, succinctly said:

“I take it to be a settled principle of law that the operative words of a deed which are expressed in clear and unambiguous language are not to be controlled, cut down, or qualified by a recital or narrative of intention.”

[68] It was submitted on behalf of the deceased appellant that a document must be construed as a whole and that the construction which is consistent with the whole is preferred. It was also emphasised that no part can be read in isolation.

[69] It is acknowledged that in order to arrive at the true interpretation of a document, no clause must be considered in isolation.

Instead it must be considered in the context of the whole of the document. Indeed this is the approach adopted by Lord Watson in Chamber Colliery Company, Limited v. Twyerould [1915] 1 Ch 268, HL. There his Lordship said at page 272:

“I find nothing in this case to oust the application of the well-known rule that a deed ought to be read as a whole, in order to ascertain the true meaning of its several clauses; and that the words of each clause should be so interpreted as to bring them into harmony with the other provisions of the deed, if that interpretation does no violence to the meaning of which they are naturally susceptible.”

[70] This is a holistic approach and it has received the stamp of approval by Neuberger LJ in Shrewsbury v Adam [2006] 1 P. & C.R. 27, CA, and in Taylor v Rive Droite Music Ltd [2006] EMLR 4, CA. It has also been approved by Arden LJ in Shaw v Hutton-Shaw [2007] 1 FLR

1839, CA.

[71] Waller LJ in A. Meredith Jones & Co. Ltd. v. Vangemar

Shipping Co. Ltd. (The “Apostolis”) (No. 2) [2000] 2 Lloyd’s Rep 337 at

348, CA, aptly said:

“However, it is hornbook law that a contract must be construed as a whole. One cannot first interpret clause 3 and then afterwards alter the meaning of clause 20 in order to accord with it.”

[72] It cannot be denied that the relationship between the Recitals and the operative parts of the agreement dated 8.3.1952 must be viewed in its correct perspective. The Recitals in the agreement dated 8.3.1952

are ambiguous in regard to the status of the proprietor – the deceased appellant. Whereas the operative parts of clauses 1 to 18 of the agreement dated 8.3.1952 are consistent with the deceased appellant’s status as the proprietor of the lands described in the Schedule while the miners, on the other hand, are merely pursuing the mining operations. Clause 15 of the agreement dated 8.3.1952 reads as follows (see page 296 of the appeal record at volume 3):

“15. It is hereby expressly agreed between the parties hereto that the terms of this agreement shall also apply in all respects to any future renewal or renewals of the said Proprietory Mining Licences and to any mining lease or leases for which the said Proprietory Mining Licences may be exchanged and to any future and other applications for Proprietory Mining Licence or Licences or mining leases to be granted to the Proprietor in respect of any other lands in Telok Ramunia for mining bauxite and aluminium ores or any other ores without any further consideration apart from the consideration herein mentioned except that all expenses and costs incurred by the Proprietor in applying for and acquiring such future and other Proprietory Mining Licence or Licences and mining leases shall be borne by the Miners.”

[73] Reading clause 15 of the agreement dated 8.3.1952 in its proper context, it reiterates the intention of the parties as reflected in the agreement dated 10.3.1951 as seen at pages 287 to 292 of the appeal record at volume 3. Thus, the operative parts of the agreement dated

8.3.1952 must prevail over the Recitals.

[74] Learned counsel for the deceased appellant rightly submitted that every provision of the agreements dated 10.3.1951 and 8.3.1952 must

be read in order to gather the intention of both parties. This approach received the approvals of the Federal Court in Woo Yew Chee v. Yong Yong Hoo [1979] 1 MLJ 131, and of the Supreme Court in Malayan Banking Bhd v PK Rajamani [1994] 1 MLJ 405, and of the Federal Court in Perkayuan OKS No 2 Sdn Bhd v Kelantan State Economic Development Corp [1995] 1 MLJ 401. And way back in 1957, it also received its stamp of approval of the English Court of Appeal in Addiscombe Garden Estates, Ltd. And Another v. Crabbe And Others [1957] 3 All ER 563.

[75] In Woo Yew Chee v. Yong Yong Hoo (supra), Raja Azlan

Shah Ag CJ (Malaya) (as His Majesty then was) aptly said at page 133:

“I now turn to the crux of the matter: was the transaction a licence or a tenancy? What is the test to be applied? It is now well known that the law will always look beyond the terminology of the agreement to the actual facts of the situation.”

[76] In Malayan Banking Bhd v PK Rajamani (supra), in allowing the appeal, Mohamed Dzaiddin SCJ speaking for the Supreme Court had this to say (see the headnotes at pages 405 to 406):

“(1) The trial judge had taken the wrong approach in arriving at his conclusion. The correct approach would be to look at the substance, not just the label which had been attached to the letter. The law will always look beyond the terminology of the document to the actual facts of the situation and it is no longer a question of words but substance.”

[77] In Perkayuan OKS No 2 Sdn Bhd v Kelantan State Economic Development Corp (supra), Lamin FCJ said at page 411 of the report:

“To gather the true intention of parties in a contract or an agreement, every provision of the agreement must be examined.”

[78] In Addiscombe Garden Estates, Ltd. And Another v. Crabbe And Others (supra), Jenkins LJ writing separately for the Court of Appeal said at page 565 of the report:

“The first question is whether the so-called licence of Apr. 12, 1954, in fact amounted to a tenancy agreement under which the premises were let to the club trustees. The principles applicable in resolving a question of this sort are, I apprehend, these. It does not necessarily follow that a document described as a licence is, merely on that account, to be regarded as amounting only to a licence in law. The whole of the document must be looked at; and if, after it has been examined, the right conclusion appears to be that, whatever label may have been attached to it, it in fact conferred and imposed on the grantee in substance the rights and obligations of a tenant, and on the grantor in substance the rights and obligations of a landlord, then it must be given the appropriate effect, that is to say, it must be treated as a tenancy agreement as distinct from a mere licence.”

[79] Continuing at page 567 of the report, Jenkins LJ had this to say:

“That is the whole of the document. First, one must observe that it is described by the parties as a licence. Secondly, one must observe that the draftsman has studiously and successfully avoided the use either of the word ‘landlord’ or the word ‘tenant’ throughout the document. The nearest to the use of the word ‘tenant’ is the reference to ‘tenantable repair’ in cl. 4, sub-cl. (iii); so that if the question depended on the label attached to the document, one would be constrained to say that this, in accordance with its label, was a licence. If, however, it is right (as I have no doubt it is) to look at the substance of the matter, I think that a different conclusion inevitably ensues.
I might mention, as regards the character of the premises, that we have been supplied with an agreed plan which shows that, although the whole of the premises are not completely enclosed, as it were, in a ring fence, the greater part of them appear to occupy a particular enclave in the extensive grounds of the Shirley Park Hotel, though there are two outlying rectangular portions, one, I think, consisting of tennis courts, and the other containing some other appurtenances. There is nothing in the character of the premises as shown on the plan to make them an unfit subject of a tenancy agreement as distinct from a licence.”

[80] Applying all these salient authorities to the present appeal at hand, it is ideal to examine all the relevant documents transacted by the deceased appellant during his life time in order to gather the true intention of the parties.

[81] The agreement dated 10.11.1950 between the 18 landowners and the deceased appellant as seen at pages 284 to 286 of the appeal record at volume 3 will now be examined:

(i) The deceased appellant purchased the 9 (nine) lots, namely lot numbers 159, 160, 230, 175, 176, 177, 178, 180, and 118 directly from the original landowners.

(ii) The deceased appellant paid the purchase price for the nine (9) lots. And the nine (9) lots were re-numbered as eight (8) lots as reflected at the First Schedule to the Amended Writ and the Statement of Claim. This is supported by the Official Assignee’s report dated 6.1.1959 as seen at pages 278 to 283 of the appeal record at volume 3.

(iii) The deceased appellant became the registered owner of the eight (8) lots as reflected in the Official Assignee’s report at page

279 of the appeal record at volume 3 of paragraph 5. That paragraph 5 was worded in this way:

“5. On the 10th day of November 1950, the bankrupt entered into an agreement with one Abdul Ghani bin Mohamed and 17 others who were described as land-owners whereby on payment of a sum of
$3,500.00 by the bankrupt to the said land-owners they transferred their nine pieces of mining lands to the bankrupt. A further condition in the said agreement was that the bankrupt should pay a tribute of
$1.00 per ton of bauxite removed from the lands to the owners. The said (9) nine pieces of mining lands have since been re-numbered as (8) eight pieces which are listed at para 3 above. The said agreement dated 10th November 1950 is annexed hereto marked ‘O.A.1’.”

(iv) The deceased appellant applied for proprietary mining licence in his own name and was issued the said licence on 27.1.1951 as evidenced at the recital to the agreement dated 10.3.1951 at pages 287 to 292 of the appeal record at volume 3.

[82] The agreement dated 10.3.1951 entered by the deceased appellant with the four (4) miners, namely, Wong Shee Fun, Tow Keng Hee, Tow Siang Ling and Ng Yook Lin as seen at pages 287 to 292 of the appeal record at volume 3 will now be examined:

(a) The deceased appellant entered the said agreement as the proprietor with four (4) persons, namely, Wong Shee Fun, Tow Keng Hee, Tow Siang Ling and Ng Yook Lin who are miners.

(b) The deceased appellant succeeded in obtaining proprietary mining licences over the eight (8) lots which will, from time to time, be renewed for successive terms of two years throughout the period of twenty-one (21) years beginning from 27.1.1951.

(c) The deceased appellant allowed the four miners to enter into possession of the eight (8) lots and carry out the mining operations for a consideration of RM20,000.00 where only the sum of RM10,000.00 was duly paid and received by the deceased appellant as acknowledged in the said agreement.

(d) Clauses 5 and 6 of the said agreement retained the deceased appellant’s proprietary interests in the eight (8) lots, namely:

(i) the right to be indemnified by the four miners for breach of

the four miners’ obligations to exercise due care and skill in carrying out the mining operations; and

(ii) the right of entry to inspect the eight (8) lots and the right to inspect the books of accounts of the ores produced from the eight (8) lots.

(e) Clause 8 of the said agreement states that the deposit of the titles to the eight (8) lots with the four miners are for the sole purpose of ensuring that during the continuance of the said agreement the deceased appellant shall not encumber the said

lands and that the said deposit is not an outright intention to transfer the said lands to the four miners.

(f) Clause 11 of the said agreement confirms that the purpose of forming the first respondent – Ramunia Bauxite Pte Ltd, is to work the said lands under the proprietary mining licences as well as any future proprietary mining licences which may be issued to the deceased appellant.

(g) Clause 13 of the said agreement reflects the intention of the parties on future dealings and it unequivocally confirms the following state of affairs:

(i) The agreement between the deceased appellant and the four miners that the terms of the said agreement shall apply in all respects to any future renewals of the proprietary mining licences and to other applications for proprietary mining licences to be granted to the deceased appellant in respect of any other lands.

(ii) That the consideration in the said agreement shall carry forth for all future agreements in respect of other lands.

(iii) That all expenses and costs incurred by the deceased

appellant in applying for and acquiring such future

proprietary mining licences shall be borne by the four miners.

(h) Clause 14 of the said agreement fully supports the deceased appellant consistent contentions that the deposit of the titles to the four miners are meant to facilitate the mining operations and not as an outright transfer of the deceased appellant’s proprietary interests.

[83] The agreement dated 8.3.1952 entered by the deceased appellant with the first respondent – Ramunia Bauxite Pte Ltd, as seen at pages 293 to 297 of the appeal record at volume 3 will now be examined:

(a) The deceased appellant entered the said agreement as the proprietor with the first respondent described as the miners.

(b) The status of the parties in the said agreement are consistent with the agreement dated 10.3.1951.

(c) Upon perusal of the four Recitals found in the said agreement,

the following facts can readily be discerned:

(i) The deceased appellant is the proprietor of the lands listed in the Second Schedule to the Amended Writ and the Statement of Claim.

(ii) That various sums of monies were advanced by the miners to the deceased appellant as agreed by both parties in the

agreement dated 10.3.1951 at Clause 13 thereto. This is consistent with Clause 1 of the said agreement where “various sums of monies” amounting to RM18,725.00 is classified as the consideration paid by the miners and accepted by the proprietor so as to allow the miners to enter into possession of the said lands and not to be construed as the purchase price as contended by the respondents.

(iii) That the lands listed in the Second Schedule to the Amended Writ and the Statement of Claim were purchased in the name of the deceased appellant as the proprietor.

(d) Clauses 7 and 8 of the said agreement retained the deceased appellant’s proprietary rights to the said lands which included, inter alia, the deceased appellant’s right to be indemnified and the deceased appellant’s right to enter and inspect the said lands as well as the right to inspect the books in order to account for the ores produced.

(e) Clause 10 of the said agreement reiterates the position where the deposit of the titles to the said lands with the miners are for the sole purpose of ensuring that during the continuance of the said agreement the deceased appellant shall not sell, charge or

in any way encumber the said lands and that the said deposit is not an outright intention to transfer the said lands to the miners.

(f) Clause 16 of the said agreement again supports and substantiates the deceased appellant’s consistent contentions that the deposit of the titles to the miners are merely to facilitate the mining operations and cannot be construed as an outright transfer of the deceased appellant’s proprietary interests.

(g) And the deceased appellant’s responsibility as the proprietor to pay the necessary tributes to the original landowners lends credence to the deceased appellant’s proprietary rights.

[84] Both the agreements dated 10.3.1951 and 8.3.1952 made reference to tributes to be paid to the deceased appellant as the proprietor. Abdul Aziz J in Virutthasalam & Ors. v. Phang Quee [1965] 31 MLJ 133 rightly approved Lord Cairns definition of a mining lease in Gowan v. Christie [1873] LR 2 SC App 273. At page 133 of the report, this was what Abdul Aziz J said:

“Lord Cairns in Gowan v. Christie [1873] LR 2 SC App. 273 said of a mining lease:

‘What we call a mining lease is really, when properly considered, a sale out and out of a portion of land. It is the liberty given to a particular individual for a specific length of time to go into and under the land and to get certain things there if he can find them, and to take them away just as if he had bought so much of the soil.’

A tribute can therefore be fairly described as the purchase price of the soil that the miner removes from the land.”

[85] The tributes to be paid under both the agreements dated

10.3.1951 and 8.3.1952 lend credence to the deceased appellant’s consistent assertions that upon cessation of the mining operations reversionary rights would be activated in favour of the landowners. The assertion by the deceased appellant finds support in the letter marked as exhibit “P1” as reproduced earlier and it would be ideal to reproduce, once again, paragraph 5 only:

“There were a few instances where a landowner signified his intention to sell his land outright to the company and in such a case the land was purchased for a lump sum the company thereby becoming entitled to the share of the tribute payable in respect of the particular lot of land.”

[86] The agreement dated 10.3.1951 contained 16 clauses. While the agreement dated 8.3.1952 contained 18 clauses. A perusal of each and every clause in both the agreements would indicate that the agreement dated 8.3.1952 is in pari materia with the agreement dated 10.3.1951. That this is so is further confirmed by the way in which clause 13 of the agreement dated 10.3.1951 was drafted. That clause 13 of the agreement dated 10.3.1951 encapsulated the intention of the parties in regard to the future dealings to facilitate the mining operations by depositing the land titles to the four miners which cannot be construed as an outright transfer of the deceased appellant’s proprietary interests.

[87] In arriving at a finding that the deceased appellant merely held the 29 pieces of land on trust for the first respondent, the learned judge of the High Court failed to consider the following germane and relevant considerations, namely:

(a) Recital 4 of the agreement dated 8.3.1952 expressly states that the purpose of the acquisition is to enable the miners to prospect and mine the bauxite and aluminium ores or any other mineral ores.

(b) Clause 10 of the agreement dated 8.3.1952 requires the deceased appellant as the proprietor to give an undertaking not to sell, charge or in any way encumber the said lands.

(c) The Power of Attorney dated 8.3.1952 as seen at pages 383 to

387 of the appeal record at volume 3 impinges on the miners in that it does not give the miners the power of sale and it limits the Power of Attorney for the duration of the term of the proprietary mining licences.

[88] Reference to the memorandum of transfer executed by the deceased appellant at pages 388 to 389 of the appeal record at volume 3 will now be made. Now, the deceased appellant executed the memorandum of transfer of lands in favour of the first respondent in consideration of the agreement dated 8.3.1952. It must be emphasised

that the “monies portion” in the memorandum of transfer has been deleted. And this has also been confirmed by the deceased appellant in his affidavit affirmed on 26.1.1986 as seen at pages 180 to 187 of the appeal record at volume 2 particularly at paragraphs 7 and 8 which have been reproduced earlier. Briefly, in paragraphs 7 and 8 of his affidavit affirmed on 26.1.1986, the deceased appellant averred that all the transfers of the several pieces of land in the Second Schedule to the Amended Writ and the Statement of Claim were made pursuant to the agreement dated

8.3.1952 for the expressed purpose of enabling the first respondent to carry out the mining operations. The averments by the deceased appellant in paragraphs 7 and 8 of the affidavit affirmed on 26.1.1986 were not rebutted nor negated by the first respondent. It must also be emphasised that one of the signatories to the agreement dated 10.3.1951 was Tow Siang Ling and he too resigned as a Director of the first respondent on 29.12.1987 as reflected at page 836 of the appeal record at volume 6 without affirming an affidavit to counter the averments of the deceased appellant’s affidavit.

[89] There were two Powers of Attorney executed by the deceased appellant on 10.3.1951 as seen at pages 377 to 382 of the appeal record at volume 3 and on 8.3.1952 as seen at pages 383 to 387 of the same record of appeal. In these two Powers of Attorney, consistent expressions on the

status of the parties and the intents and purposes of the parties are clearly stated therein.

[90] The status of the deceased appellant as the proprietor of the lands listed in the First and Second Schedules to the Amended Writ and the Statement of Claim are also reflected in the two Powers of Attorney. Likewise the first respondent’s status as miners are consistently mentioned in the two Powers of Attorney.

[91] The objects of both the Powers of Attorney are expressly stated to be for the better securing to the first respondent the proper carrying and conduct of the mining works on the said lands or other lands under the proprietary mining licences and mining leases which may be issued to the deceased appellant.

[92] The last clauses in both the Powers of Attorney expressly stipulated that the powers are only for the duration of the proprietary mining licences. This restrictive power adds credence to the contentions of the deceased appellant that, at all material times, the instruments executed by the deceased appellant did not intend to divest the interest and title in the said lands but rather it was merely to facilitate the mining operations.

[93] Under both the Powers of Attorney, the miners do not have any power of sale. If as contended by the respondents that both the agreements dated 10.3.1951 and 8.3.1952 are outright purchases of the

said lands and that the deceased appellant is merely a bare trustee just like what the learned judge of the High Court held then the question to ask is: why pay tributes if it is an outright sale? And why is there a need to pay tributes to the other people after the deceased appellant had been declared a bankrupt if the respondents are the original land owners? These pertinent questions naturally flow from the factual matrix of the present case which the learned judge of the High Court overlooked. And they certainly add a new complexion to the whole case.

[94] And had the lands belonged to the first respondent, the agreements dated 10.3.1951 and 8.3.1952 and both the Powers of Attorney would not have been necessary. With respect, the learned judge of the High Court in rejecting the evidence of the deceased appellant did not state the reasons for so doing.

[95] It must be borne in mind that Tow Siang Ling was requested by the first respondent to attend court as reflected in a letter dated 8.1.1988 as seen at page 838 of the appeal record at volume 6, which letter has been reproduced, yet he did not attend court. To add salt to the injury, he did not even affirm any affidavit.

[96] There is an agreement dated 9.5.1951 as seen at pages 312,

312(a) and 313 of the appeal record at volume 3 entered between the deceased appellant and the financiers. The terms of this agreement

supports and verifies the deceased appellant’s purchase of lands from the landowners as the proprietor from the financial assistance rendered by the financiers. In this agreement too, the deceased appellant agreed to remunerate the financiers via the tributes paid on the bauxite as produced. This agreement adds credence to the deceased appellant in that it shows the reason why the deceased appellant had to assign the tributes payable to him by the first respondent to various other persons. This agreement too categorically dismisses the first respondent’s contention that the respondents had forwarded the purchase monies to enable the deceased appellant to purchase the lands from the original landowners. In reality, the various sums advanced by the respondents was towards the expenses incurred for the procurement of the proprietary mining licences as reflected at clause 13 of the agreement dated 10.3.1951.

[97] The sum total of it all would be this. That the deceased appellant’s contentions are supported by the available evidence.

[98] The factual matrix may be rehearsed in this fashion:

(a) That the deceased appellant had acquired the said lands as the proprietor and had paid the purchase price.

(b) That the deceased appellant obtained financial assistance prior

to his meeting with the miners. This rebuts the first respondent’s

contention that the respondents had advanced monies for the purchase of the said lands.

(c) That the deceased appellant acquired the proprietary mining licences and was authorised to mine for bauxite and aluminium ores from 27.1.1951 for successive terms of two years throughout the span of 21 years.

(d) That the first respondent was incorporated for the purpose of carrying out the mining works and that the deceased appellant had transferred the said lands to the first respondent in order to facilitate the mining operations.

(e) That the deceased appellant had acquired the lands and had obtained the proprietary mining licences before he came to know about the miners. This piece of evidence is supported by the agreement dated 10.3.1951 as well as exhibit “P1”.

(f) That the deceased appellant retained the right of entry to the lands and the right to inspect the books of accounts of the first respondent.

(g) That the deceased appellant was entitled to receive payment of the tributes from the bauxite and ores that were produced on the lands and that he was equally responsible to pay the tributes to the original landowners.

(h) That the deceased appellant executed the Powers of Attorney in favour of the first respondent only for the duration of the proprietary mining licences in order to facilitate the mining operations and not to shower the first respondent with the powers to sell and transfer the said lands to the second respondent.

(i) That the deceased appellant had deposited the titles to the said lands with the first respondent as security. This is to ensure that during the tenure of the mining operations the deceased appellant will not encumber the said lands.

[99] There is an agreement dated 9.6.1952 between Syed Nit bin Ali as the vendor and the deceased appellant of Messrs Ramunia Bauxite Limited, 66 High Street Singapore as the purchaser. And this agreement can be seen at pages 394 to 396 of the appeal record at volume 3. The terms of this agreement unlike the other agreements entered by the deceased appellant as the proprietor is a classic example where the deceased appellant had purchased the said land for and on behalf of the first respondent and that Syed Nit bin Ali as the vendor, being the original land owner, had expressly relinquished all title and interest in the said land in favour of the first respondent. In this agreement too, by virtue of clause

3, the vendor unequivocally appoints the first respondent as his lawful

attorney to apply for proprietary mining licence and to do all acts necessary to facilitate the transfer of the said land from the vendor to the purchaser as well as to facilitate the mining operation.

[100] There were other sale and purchase agreements where the terms clearly showed outright sale of the lands to the respondents. The terms also expressly stated the purchase prices and the transfers of all interests and titles in the lands to the respondents.

[101] It would be ideal to itemise the other sale and purchase agreements and the following examples would suffice:

(a) Agreement between Syed Abdullah bin Ismail as the vendor with the second respondent (Promet Berhad) as the purchaser dated

23.8.1982 for the transfer of 2/5 of EMR 41, Lot No: 156 (see

pages 527 to 532 of the appeal record at volume 5).

(b) Agreement between Syed Abdullah bin Ismail as the vendor with the second respondent (Promet Berhad) as the purchaser dated

23.8.1982 for the transfer of 1/5 of EMR 41, Lot No: 156 (see pages 533 to 540 of the appeal record at volume 5).

(c) Agreement between Syed Abdullah bin Ismail as the vendor with the second respondent (Promet Berhad) as the purchaser dated

23.11.1982 for the transfer of EMR 34, Lot No: 153 (see pages

541 to 546 of the appeal record at volume 5).

(d) Agreement between Syed Mohsin bin Jaafar @ Said Masin bin Said Jaapar as the vendor and the first respondent (Ramunia Bauxite Pte Ltd) dated 22.2.1983 for the transfer of EMR 42, Lot No: 150 (see pages 547 to 554 of the appeal record at volume

5).

(e) Form 14A executed by Syed Abdullah bin Ismail in favour of the second respondent (Promet Berhad) for the transfer of 2/5 of EMR 41, Lot No: 156 dated 21.1.1989 (see pages 555 to 558 of the appeal record at volume 5).

(f) The memorandum of transfer executed by Salleh bin Malik in favour of the first respondent for EMR 125, Lot No: 143 dated December 1955 (see pages 559 to 560 of the appeal record at volume 5).

(g) At Tab “B” (i) at page 465 of the appeal record at volume 4, the list of lands in Teluk Ramunia acquired directly by the first respondent and transferred thereafter to the second respondent can be seen. The list is as follows:

(h) At Tab “B” (ii) at page 465 of the appeal record at volume 4, the list of lands in Teluk Ramunia acquired directly by the second respondent can also be seen. It is as follows:

[102] All these facts must be considered as a whole. They cannot be taken in isolation.

[103] It would be unconscionable to allow the first respondent or the second respondent to resile from their conscientious obligations to transfer the lands back to the deceased appellant upon completion of the mining operations.

[104] Brennan J in Bahr and Another v Nicolay and Others [1998]

78 ALR 1, sitting in the High Court of Australia, sets out the law lucidly in these words (see page 35):

“However, the title of a purchaser who not only has notice of an antecedent unregistered interest but who purchases on terms that he will be bound by the unregistered interest is subject to that interest. Equity will compel him to perform his obligation. In Barry v Heider [1914] 19 CLR 197, Isaacs J said of the Land Transfer Acts (at 213):
‘They have long, and in every State, been regarded as in the main conveyancing enactments, and as giving greater certainty to titles of registered proprietors, but not in any way destroying the fundamental doctrines by which courts of equity have enforced, as against registered proprietors, conscientious obligations entered into by them.’
In Frazer v Walker [1967] 1 AC 569 at 585, the Privy Council said that the principle of indefeasibility ‘in no way denies the right of a plaintiff to bring against a registered proprietor a claim in personam, founded in law or in equity, for such relief as a court acting in personam may grant.’
Barwick CJ, who was a member of the Judicial Committee in Frazer v

Walker, commented in Breskvar v Wall [1971] 126 CLR 376 at 384-5:

‘Proceedings may of course be brought against the registered proprietor by the persons and for the causes described in the quoted sections of the Act or by persons setting up matters depending upon the acts of the registered proprietor himself. These may have as their terminal point orders binding the registered proprietor to divest himself wholly or partly of the estate or interest vested in him by registration and endorsement of the certificate of title.’
Orders of that kind do not infringe the indefeasibility provisions of the TLA. Those provisions are designed to protect a transferee from defects in the title of the transferor, not to free him from interests with which he has burdened his own title. In Loke Yew v Port Swettenham Rubber Co Ltd [1913] AC 491 Lord Moulton gave an example of a case where equity would enforce the terms on which a transfer was taken. He said (at 504-5):

‘Take for example the simple case of an agent who has purchased land on behalf of his principal but has taken the conveyance in his own name, and in virtue thereof claims to be the owner of the land whereas in truth he is a bare trustee for his principal. The court can order him to do his duty just as much in a country where registration is compulsory as in any other country, and if that duty includes fresh entries in the register or the correction of existing entries it can order the necessary acts to be done accordingly’.”

[105] Continuing at page 36 of the report, Brennan J had this to say:

“A registered proprietor who has undertaken that his transfer should be subject to an unregistered interest and who repudiates the unregistered interest when his transfer is registered is, in equity’s eye, acting fraudulently and he may be compelled to honour the unregistered interest. A means by which equity prevents the fraud is by imposing a constructive trust on the purchaser when he repudiates the unregistered interest. That is not to say that the registration of the transfer to such a proprietor is affected by such fraud as may defeat the registered title: the fraud which attracts the intervention of equity consists in the unconscionable attempt by the registered proprietor to deny the unregistered interest to which he has undertaken to subject his registered title. The principles are stated in Bannister v Bannister [1948] 2 All ER 133 and Lyus v Prowsa Developments Ltd [1982] 1 WLR 1044; [1982] 2 All ER 953. In Bannister, Scott LJ said (at 136):

‘It is, we think, clearly a mistake to suppose that the equitable principle on which a constructive trust is raised against a person who insists on the absolute character of a conveyance to himself for the purpose of defeating a beneficial interest, which, according to the true bargain, was to belong to another, is confined to cases in which the conveyance itself was fraudulently obtained. The fraud which brings the principle into play arises as soon as the absolute character of the conveyance is set up for the purpose of defeating the beneficial interest, and that is the fraud to cover which the Statute of Frauds or the corresponding provisions of the Law of Property Act 1925, cannot be called in aid in cases in which no written evidence of the real bargain is available. Nor is it, in our opinion, necessary that the bargain on which the absolute conveyance is made should include any express stipulation that the grantee is in so many words to hold as trustee. It is enough that the

bargain should have included a stipulation under which some sufficiently defined beneficial interest in the property was to be taken by another’.”

[106] In similar vein, Chadwick LJ speaking for the Court of Appeal in Banner Homes Group plc v Luff Developments Ltd and another [2000] 2 All ER 117, had this to say at pages 137 to 138:

“The Pallant v Morgan equity
I have thought it appropriate to analyse the decisions at first instance in more detail than might otherwise have been necessary in the circumstances that the present appeal provides the first opportunity, so far as I am aware, for this court to consider the basis and scope of what may be called the Pallant v Morgan equity in a case in which reliance has to be placed upon it by the appellant. In my view there is no doubt that such an equity does exist and is firmly based. It is an example of the wider equity to which Millett J referred in Lonrho plc v Fayed (No 2) [1991] 4 All ER 961 at 969–970, [1992] 1 WLR 1 at 9–10:

‘Equity will intervene by way of constructive trust, not only to compel the defendant to restore the plaintiff’s property to him, but also to require the defendant to disgorge property which he should have acquired, if at all, for the plaintiff. In the latter category of case, the defendant’s wrong lies not in the acquisition of the property, which may or may not have been lawful, but in his subsequent denial of the plaintiff’s beneficial interest. For such to be the case, however, the defendant must either have acquired property which but for his wrongdoing would have belonged to the plaintiff, or he must have acquired property in circumstances in which he cannot conscientiously retain it as against the plaintiff.’

Or, as the same judge was to say in this court, in the passage in Paragon Finance plc v D B Thakerar & Co (a firm), Paragon Finance plc v Thimblely & Co (a firm) [1999] 1 All ER 400 at 408–409, to which I have already referred:

‘His (the defendant’s) possession of the property is coloured from the first by the trust and confidence by means of which he obtained it, and his subsequent appropriation of the property to his own use is a breach of that trust.’

It is important, however, to identify the features which will give rise to a Pallant v Morgan equity and to define its scope; while keeping in mind that it is undesirable to attempt anything in the nature of an
exhaustive classification. As Millett J pointed out in Lonrho plc v Fayed (No 2) [1991] 4 All ER 961 at 969, [1992] 1 WLR 1 at 9, in a reference to the work of distinguished Australian commentators, equity must retain its ‘inherent flexibility and capacity to adjust to new situations by reference to mainsprings of the equitable jurisdiction’. Equity must never be deterred by the absence of a precise analogy, provided that the principle invoked is sound. Mindful of this caution, it is, nevertheless, possible to advance the following propositions. (1) A Pallant v Morgan equity may arise where the arrangement or understanding on which it is based precedes the acquisition of the relevant property by one of those parties to that arrangement. It is the pre-acquisition arrangement which colours the subsequent acquisition by the defendant and leads to his being treated as a trustee if he seeks to act inconsistently with it.”

[107] ] Continuing at page 139 of the report, Chadwick LJ aptly said:

“It is the existence of the advantage to the one, or detriment to the other, gained or suffered as a consequence of the arrangement or understanding, which leads to the conclusion that it would be inequitable or unconscionable to allow the acquiring party to retain the property for himself, in a manner inconsistent with the arrangement or understanding which enabled him to acquire it. Pallant v Morgan [1952] 2 All ER 951, [1953] Ch 43 itself provides an illustration of this principle.”

[108] In Yaxley v Gotts and another [2000] 1 All ER 711, Beldam LJ writing a separate judgment for the Court of Appeal had this to say at page 736 of the report:

“There was on the judge’s findings, as I interpret them, a clear promise made by Brownie Gotts to the plaintiff that he would have a beneficial interest in the ground floor of the premises. That promise was known to Alan Gotts when he acquired the property and he permitted the plaintiff to carry out the whole of the work needed to the property and to convert the ground floor in the belief that he had such an interest. It would be unconscionable to allow either Alan or Brownie Gotts to resile from the representations made by Brownie Gotts and adopted by Alan Gotts. For my part I would hold that the plaintiff established facts on which a court of equity would find that Alan Gotts held the property subject to a constructive trust in favour
of the plaintiff for an interest in the ground floor and that that interest should be satisfied by the grant of a 99-year lease.”

[109] In Loke Yew v Port Swettenham Rubber Company, Limited (supra), Lord Moulton speaking for the Privy Council aptly said at pages 504 to 505 of the report:

“So long as the rights of third parties are not implicated a wrong- doer cannot shelter himself under the registration as against the man who has suffered the wrong. Indeed the duty of the Court to rectify the register in proper cases is all the more imperative because of the absoluteness of the effect of the registration if the register be not rectified. Take for example the simple case of an agent who has purchased land on behalf of his principal but has taken the conveyance in his own name, and in virtue thereof claims to be the owner of the land whereas in truth he is a bare trustee for his principal. The Court can order him to do his duty just as much in a country where registration is compulsory as in any other country, and if that duty includes fresh entries in the register or the correction of existing entries it can order the necessary acts to be done accordingly. It may be laid down as a principle of general application that where the rights of third parties do not intervene no person can better his position by doing that which it is not honest to do, and inasmuch as the registration of this absolute transfer of the whole of the original grants was not an honest act under the circumstances it cannot better the position of the plaintiffs as against the defendant and they cannot rely on it as against him when seeking to enforce rights which formally belong to them only by reason of their own fraud. It must be remembered that in the present case the defendant immediately on the bringing of the action applied to rectify the register and that such rectification only awaits the event of this suit. His right to it is set up in the defence, so that he has taken all the necessary steps to obtain the full relief to which he is entitled.”

[110] Equity would always intercede. And equity would undo a fraudulent transfer by imposing a constructive trust on the purchaser when the purchaser repudiates the unregistered interest. The fraud in this case which attracts the intervention of equity consists in the unconscionable

attempt by the registered proprietor to deny the unregistered interest to which he has undertaken to subject his registered title.

[111] On constructive trust, it is ideal to refer to the decision of Millett LJ in Paragon Finance plc v D B Thakerar & Co (a firm), Paragon Finance plc and another v Thimbleby & Co (a firm) [1999] 1

All ER 400. At pages 408 to 409, his Lordship had this to say:

“....the expressions ‘constructive trust’ and ‘constructive trustee’ have been used by equity lawyers to describe two entirely different situations. The first covers those cases already mentioned, where the defendant, though not expressly appointed as trustee, has assumed the duties of a trustee by a lawful transaction which was independent of and preceded the breach of trust and is not impeached by the plaintiff. The second covers those cases where the trust obligation arises as a direct consequence of the unlawful transaction which is impeached by the plaintiff.
A constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of property (usually but not necessarily the legal estate) to assert his own beneficial interest in the property and deny the beneficial interest of another. In the first class of case, however, the constructive trustee really is a trustee. He does not receive the trust property in his own right but by a transaction by which both parties intend to create a trust from the outset and which is not impugned by the plaintiff. His possession of the property is coloured from the first by the trust and confidence by means of which he obtained it, and his subsequent appropriation of the property to his own use is a breach of that trust. Well-known examples of such a constructive trust are McCormick v Grogan [1869] LR 4 HL 82 (a case of a secret trust) and Rochefoucald v Boustead [1897] 1 Ch 196 (where the defendant agreed to buy property for the plaintiff but the trust was imperfectly recorded). Pallant v Morgan [1952] 2 All ER 951, [1953] Ch 43 (where the defendant sought to keep for himself property which the plaintiff trusted him to buy for both parties) is another. In these cases the plaintiff does not impugn the transaction by which the defendant obtained control of the property. He alleges that the circumstances in which the defendant obtained control make it unconscionable for him thereafter to assert a beneficial interest in the property.”

[112] Equity will certainly intervene to provide relief against unconscionable conduct. The observations by Sir Nicolas Browne- Wilkinson V-C in Grant v Edwards and another [1986] 2 All ER 426 at

439, [1986] Ch 638 at 656 are germane and they should be reproduced:

“I suggest that, in other cases of this kind, useful guidance may in the future be obtained from the principles underlying the law of proprietary estoppel which in my judgment are closely akin to those laid down in Gissing v Gissing. In both, the claimant must to the knowledge of the legal owner have acted in the belief that the claimant has or will obtain an interest in the property. In both, the claimant must have acted to his or her detriment in reliance on such belief. In both, equity acts on the conscience of the legal owner to prevent him from acting in an unconscionable manner by defeating the common intention. The two principles have been developed separately without cross-fertilisation between them; but they rest on the same foundation and have on all other matters reached the same conclusions.”

[113] This is a case of a constructive trust in response to an unconscionable behaviour of the respondents. Speaking generally, a constructive trust is said to arise by operation of law (see J Mowbray et al, Lewin on Trusts (18th edition Sweet and Maxwell, 2008) (“Lewin”)

229; J Martin, Hanbury and Martin’s Modern Equity (16th edition, Sweet and Maxwell, 2001) (“Martin”) 297; and A Oakley, Parker and Mellows’ The Modern Law of Trusts (8th edition, Sweet and Maxwell,

2003) (“Parker and Mellows”) 312).

[114] A constructive trust arises automatically. It is to be construed retrospectively from the time of the circumstances which give rise to it. The common vein running through all the species of constructive trust is this:

that the liability of any person to act as a constructive trustee is predicated on that person having knowledge of some factor which is deemed to affect his conscience sufficiently strong enough in order to justify the invocation of the principle of constructive trust (Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669, HL).

[115] According to Lord Browne-Wilkinson in Westdeutsche Landesbank Girozentrale v Islington London Borough Council (supra), a proprietary constructive trust will be imposed on any person who knows that his actions in respect of specific property are unconscionable. In order to impose a proprietary constructive trust, the legal owner of the property will be liable if he has knowledge of some factor which affects the conscionability of asserting beneficial title to that property. [116] His Lordship Lord Browne-Wilkinson in Westdeutsche Landesbank Girozentrale v Islington London Borough Council (supra) at page 705 chronicled “the relevant principles of trust law” in these

erudite terms:

“(i) Equity operates on the conscience of the owner of the legal interest. In the case of a trust, the conscience of the legal owner requires him to carry out the purposes for which the property was vested in him (express or implied trust) or which the law imposes on him by reason of his unconscionable conduct (constructive trust).
(ii) Since the equitable jurisdiction to enforce trusts depends upon the conscience of the holder of the legal interest being affected, he cannot be a trustee of the property if and so long as he is ignorant of the facts alleged to affect his conscience, i.e. until he is aware that he is intended to hold the property for the benefit of others in the
case of an express or implied trust, or, in the case of a constructive trust, of the factors which are alleged to affect his conscience.
(iii) In order to establish a trust there must be identifiable trust property. The only apparent exception to this rule is a constructive trust imposed on a person who dishonestly assists in a breach of trust who may come under fiduciary duties even if he does not receive identifiable trust property.
(iv) Once a trust is established, as from the date of its establishment the beneficiary has, in equity, a proprietary interest in the trust property, which proprietary interest will be enforceable in equity against any subsequent holder of the property (whether the original property or substituted property into which it can be traced) other than a purchaser for value of the legal interest without notice.”

[117] The first respondent is a trustee in relation to the 29 pieces of land in circumstances in which, as a legal owner of that property, the first respondent acts contrary to good conscience. The first respondent certainly had knowledge of the background facts which gave rise to the constructive trust. And with knowledge of the background facts that would be sufficient to trigger the proprietary constructive trust on the first respondent.

[118] In regard to the distinction between institutional and remedial constructive trusts, Lord Browne-Wilkinson in Westdeutsche Landesbank Girozentrale v Islington London Borough Council (supra) had this to say at pages 714 to 715 of the report:

“Under an institutional constructive trust, the trust arises by operation of law as from the date of the circumstances which give rise to it: the function of the court is merely to declare that such trust has arisen in the past. The consequences that flow from such trust having arisen (including the possibly unfair consequences to third parties who in the interim have received the trust property) are
also determined by rules of law, not under a discretion. A remedial constructive trust, as I understand it, is different. It is a judicial remedy giving rise to an enforceable equitable obligation: the extent to which it operates retrospectively to the prejudice of third parties lies in the discretion of the court.”

[119] In England, the traditional view has been to view constructive trust as a substantive institution like any other trust. In recent past, attempts were made to expand the constructive trust. Thus, the “constructive trust of the new model” was born and it was championed by Lord Denning in Hussey v Palmer [1972] 3 All ER 744 at page 747, CA, when his Lordship likened constructive and resulting trusts and held that, “The two run together. By whatever name it is described, it is a trust imposed by law whenever justice and good conscience require it.” Later, in Eves v Eves [1975] 3 All ER 768, CA, Lord Denning described the new model constructive trust as the latest example of equity’s continued capacity for child-bearing, and applied it to allow a woman a share in a house in which she had cohabited.

[120] The learned judge of the High Court held that “the facts clearly established that the plaintiff (referring to the appellant) was merely holding the 29 lots of land now claimed by the plaintiff (referring to the appellant) on trust for the first defendant (referring to the first respondent).” With respect, the learned judge of the High Court failed to consider that the first respondent as a wrong-doer cannot shelter

itself under the registration as against the appellant who has suffered the wrong. Indeed it is the duty of this court to rectify the register because of the absoluteness of the effect of registration if the register is not rectified.

[121] Before he died, the deceased appellant had left sufficient evidence to support the assertions that the respondents chose to hide behind the register in order to evade their conscientious obligations.

[122] My learned brother A. Samah Nordin, JCA drew my attention that out of the 29 pieces of land listed on the list as reproduced earlier, three (3) of them must be excluded. Thus, number 13 on the list bearing EMR 115, lot number 140 should be excluded. And number 15 on the list bearing EMR 43, lot number 155 should also be excluded. And, lastly, number 16 on the list bearing EMR 23, lot number 149 should also be excluded.

[123] Now, number 13 on the list bearing EMR 115, lot number 14 alluded to an agreement dated 19.6.1952 between Tuan Busu bin Mos as the vendor and the deceased appellant as a director of the first respondent as the purchaser. The deceased appellant purchased the land measuring

2 acres 1 rood and 15 poles. The agreement can be seen at pages 624 to

625 of the appeal record at volume 5. And the register document of title can be seen at page 444 of the appeal record at volume 4.

[124] While number 15 on the list bearing EMR 43, lot number 155 referred to an agreement dated 14.5.1952 between Omar bin Sidek as the vendor and the deceased appellant of Messrs Ramunia Bauxite Limited (the first respondent) as the purchaser. The deceased appellant purchased the land measuring 5 acres 1 rood and 03 poles. The agreement can be seen at pages 619 to 620 of the appeal record at volume 5. And the register document of title can be seen at page 446 of the appeal record at volume 4.

[125] And, number 16 on the list bearing EMR 23, lot number 149 referred to an agreement dated 14.5.1952 between Syed Abdullah bin Hamzah as the vendor and the deceased appellant of Messrs Ramunia Bauxite Limited (the first respondent) as the purchaser. The deceased appellant purchased the land measuring 5 acres 1 rood and 11 poles. The agreement can be seen at pages 617 to 618 of the appeal record at volume

4. And the register document of title can be seen at page 447 of the appeal record at volume 4.

[126] Finally, on the issue of limitation, I need only to refer to the judgment of Mohd Yusoff bin Mohamed J (later SCJ) at pages 87 to 90 of the appeal record at volume 1 where his Lordship in a well written judgment dated 16.9.1987 had dealt in extenso with the issue of limitation and held that it was not an issue at all and that limitation has not set in. There was

no appeal lodged against the decision of Mohd Yusoff bin Mohamed J (later SCJ) at all. For convenience, I will now reproduce the judgment of his Lordship:

“IN THE HIGH COURT OF MALAYA AT JOHORE BAHRU CIVIL SUIT NO. 821/85
Between
ABDUL KADIR BIN AMI .. PLAINTIFF And
1) RAMUNIA BAUXITE PRIVATE LTD.
2) PROMET BERHAD .. DEFENDANTS

JUDGMENT

MOHD. YUSOFF BIN MOHAMED – J

1. The defendants apply to strike out the plaintiff’s Summons and Statement of Claim on the grounds that the Statement of Claim discloses no reasonable cause of action and that it is vexatious and an abuse of the process of the Court. It is also contended by the defendants that the facts relied on by the plaintiff occurred more than 12 years before the writ was issued and therefore the plaintiff is barred by Limitation Act 1953.
2. Reading both the contentious affidavits and all the agreements as a whole I am of the view that the plaintiff can sustain an arguable case. The 1st group of 8 pieces of lands were originally the subject of an agreement between the plaintiff and Datuk Wong Shee Fun and others in 1951 for the purpose of mining. These lands were sold and transferred by the Official Assignee to the 1st defendant in 1955 after the plaintiff was adjudged a bankrupt. The plaintiff was discharged only in 1983.
3. Counsel on behalf of the defendants contended that even assuming that the Official Assignee sold the plaintiff’s land without consulting him was improper, the plaintiff’s present suit to set aside the sale is statute barred by s.9 of the Limitation Act limiting the claim to 12 years. The short answer to this is that the plaintiff was under the disability as an undischarged bankrupt whereupon he could not have sued the Official Assignee or the earlier defendants without leave of the Official Assignee himself. He was discharged only in 1983 and for the purpose of the limitation period for instituting this claim, in my opinion, time begins only from 1983.
Also relevant is s.341 of the National Land Code barring adverse possession against the person entitled to interest in land as the plaintiff.
4. The defendants’ counsel further argued that there was no fraud or misrepresentation alleged by the plaintiff and therefore the defendants’ title is indefeasible. This contention is premature and can only be set up as a defence to an action but not as a ground for dismissing an action under the present proceeding – see Mohamed Salleh v Lau Siok Kee [1974] 1 M.L.J. 102 @ 103, F.C.
5. The second group of 41 titles of lands were also the subject of the agreements between the plaintiff and the 1st defendant. These lands were apparently transferred to the 1st defendant for the purpose of mining and not outright transfers of proprietory interests in the lands to the defendants. These transfers were necessary for the purpose of converting the lands from their original agricultural holdings to mining category. This, in my view, explains the fact that the 1st defendant continued to pay royalty both to the original owners of the lands as well as to the plaintiff when mining operations were in progress. The affidavits and documents so far produced show that these factors exist; whether or not the plaintiff can successfully show that these are the true facts is left to be decided at a proper trial.
6. For these reasons I dismissed the defendants’ application to strike out the Summons and the Statement of Claim with costs.
7. It follows that in order to preserve status quo between the parties the plaintiff’s application for an injunction restraining the defendants from completing the sale of these 49 pieces of lands should be granted. I ordered accordingly.
(DATO MOHD. YUSOFF BIN MOHAMED) JUDGE
HIGH COURT MALAYA JOHOR BAHRU
DATE: 16th September, 1987. Solicitors:
1) Mr. H.L. Tennakoon
(M/s H.L. Tennakoon) for Plaintiff
2) Mr. A. Chai
(M/s Nik Saghir, Yaacob & Ismail) for Defendants.”

[127] Thus, the case proceeded to trial as scheduled bearing in mind that the issue of limitation was no longer relevant and was not a live issue at all.

[128] For the reasons adumbrated above, the appellant’s appeal must be allowed with costs. And costs is fixed at RM100,000.00, here and below, to be paid by the respondents to the appellant. Deposit should be refunded to the appellant.

[129] The appellant’s claim for the transfer of the 29 pieces of land – now it is 26 pieces of land after taking out three pieces of land as alluded to above, is allowed. What this amounts to is this:

(a) that an order is hereby given that the first respondent do sign, execute, seal and deliver to the appellant and/or her nominees duly perfected instruments of transfer of all the 26 pieces of land together with the documents of title thereto; and

(b) that an order is hereby given that the first respondent and the second respondent do deliver up the agreements of sale or other instruments relating to the intended sale of the 26 pieces of land for cancellation.

[130] My learned brother A. Samah Nordin, JCA agrees with this majority judgment and he is writing a separate majority judgment.

29.7.2011 Dato’ Abdul Malik bin Ishak

Judge, Court of Appeal,

Malaysia

Counsel

(1) For the Appellant : Miss Yougesswary Singam

Solicitors : Messrs Zainal Abidin & Co Advocates & Solicitors Kuala Lumpur

(2) For the Respondents : Mr. Logan Sabapathy

(Mr. Wong Guo Bin with him)

Solicitors : Messrs Logan Sabapathy & Co

Advocates & Solicitors

Kuala Lumpur

Cases referred to in this judgment:

(1) Thorp v. Holdsworth [1876] 3 Ch D 637. (2) Palmer v. Guadagni [1906] 2 Ch 494.

(3) Esso Petroleum Co. Ltd. v. Southport Corporation [1956] AC 218, HL.

(4) Lord Esher in Lucas v Williams & Sons [1892] 2 QB 113, 116, CA. (5) Asia Hotel Sdn Bhd v Malayan Insurance (M) Sdn Bhd [1992] 2

MLJ 615.

(6) Lucas v. Williams & Sons [1892] 2 QB 113, CA.

(7) Jai Gopal Singh and others v. Divisional Forest Officer [1953] AIR Patna 310, 311.

(8) Onassis and Calogeropoulos v. Vergottis [1968] 2 Lloyd’s Rep

403, 430, HL.

(9) China Airlines Ltd v Maltran Air Corp Sdn Bhd (formerly known as Maltran Air Services Corp Sdn Bhd) and another appeal [1996] 2 MLJ 517, 527, 528, FC.

(10) Tay Kheng Hong v. Heap Moh Steamship Co Ltd [1964] 30 MLJ

87, 92.

(11) Renal Link (KL) Sdn Bhd v Dato’ Dr Harnam Singh [1997] 2 MLJ

373, 379.

(12) Kerry v. Carter [1969] 1 WLR 1372, 1376, CA.

(13) Tindok Besar Estate Sdn Bhd v. Tinjar Co [1979] 2 MLJ 229, FC. (14) Yusoff bin Kassim v Public Prosecutor [1992] 2 MLJ 183, SC. (15) Choo Kok Beng v. Choo Kok Hoe & Ors [1984] 2 MLJ 165, PC. (16) State of Rajasthan v. Hanuman AIR [2001] SC 282, 284.

(17) Loke Yew v. Port Swettenham Rubber Company, Limited [1913] AC 491, PC.

(18) Tan Kim Leng & Anor. v. Chong Boon Eng & Anor [1974] 2 MLJ

151, FC.

(19) Investors Compensation Scheme Ltd v. West Bromwich Building

Society, Same v. Hopkin & Sons (A Firm) And Others [1998] 1

WLR 896, HL.

(20) Prestcold (Central) Ltd v. Minister of Labour [1969] 1 WLR 89, 96,

97, CA.

(21) Chandris v. Isbrandtsen-Moller Co Inc [1951] 1 KB 240.

(22) The Earl of Jersey v. The Guardians of the Poor of the Neath Poor Law Union Acting as the Neath Union Rural Sanitary Authority [1889] 22 QBD 555, 561-562, CA.

(23) Ex Parte Dawes. In re Moon [1886] 17 QBD 275, CA.

(24) Square Mile Partnership Ltd v Fitzmaurice McCall Ltd [2007] 2

BCLC 23, CA.

(25) James Thomas Walsh And The Reverend Alfred Pyne v. John Charles Bettesworth Trevanion And Charlotte his Wife, Hugh Charles Trevanion, an Infant, By Charles Thellusson his Guardian, And Others; The Same Plaintiffs v. Edward Coode and And Others; The Same Plaintiffs v. Margaret Rhodes And Others; The Same Plaintiffs v. Ann Holcombe And Others [1850] 15 QB 733, 751 [1850] 15 QB 733.

(26) Holliday v. Overton [1852] 14 Beav 467.

(27) Mackenzie And Others v. The Duke of Devonshire And Others

[1896] AC 400, 408, HL.

(28) Chamber Colliery Company, Limited v. Twyerould [1915] 1 Ch

268, HL.

(29) Shrewsbury v Adam [2006] 1 P. & C.R. 27, CA.

(30) Taylor v Rive Droite Music Ltd [2006] EMLR 4, CA.

(31) Shaw v Hutton-Shaw [2007] 1 FLR 1839, CA.

(32) A. Meredith Jones & Co Ltd v. Vangemar Shipping Co Ltd (The

“Apostolis”) (No. 2) [2000] 2 Lloyd’s Rep 337, 348, CA. (33) Woo Yew Chee v. Yong Yong Hoo [1979] 1 MLJ 131, FC.

(34) Malayan Banking Bhd v PK Rajamani [1994] 1 MLJ 405, 406, SC.

(35) Perkayuan OKS No 2 Sdn Bhd v Kelantan State Economic

Development Corp [1995] 1 MLJ 401, 411, FC.

(36) Addiscombe Garden Estates, Ltd. And Another v. Crabbe And

Others [1957] 3 All ER 563, 565, 567, CA.

(37) Virutthasalam & Ors. v. Phang Quee [1965] 31 MLJ 133.

(38) Bahr and Another v Nicolay and Others [1998] 78 ALR 1, 35, 36, HC.

(39) Banner Homes Group plc v Luff Developments Ltd and another

[2000] 2 All ER 117, 125, 137, 138, 139, CA.

(40) Yaxley v Gotts and Another [2000] 1 All ER 711, 722, 736, CA.

(41) Paragon Finance plc v D B Thakerar & Co (a firm), Paragon Finance plc and another v Thimbleby & Co (a firm) [1999] 1 All ER 400, CA.

(42) Grant v Edwards and another [1986] 2 All ER 426, 439; [1986] Ch

638, 656, CA.

(43) Westdeutsche Landesbank Girozentrale v Islington London

Borough Council [1996] AC 669, 705, 714, 715, HL. (44) Hussey v Palmer [1972] 3 All ER 744, 747, CA.

(45) Eves v Eves [1975] 3 All ER 768, CA.

Context