If you were to read his judgments you’ll find yourself reading with some difficulty in order just to understand him.

Because we adhere to the principal of separation of powers, care must be taken to ensure that the judiciary does not usurp the powers of the legislature.

I agree with your assessment of this Judge. When the ‘rat pack’ was studying for their Bar in London in the 50s, Eusoffee used to help the Tunku in preparing for his exam which he finally passed at the grand old age of 46.

Justice Eusoffe Abdoolcader was a great judge, with a razor sharp legal mind and terrified lawyers not up to mark. He wasn’t the kind of judge whose greatness like that of Lord Alfred Denning lies in interpreting the law in way to do justice at all costs even if it is at the costs of straining the plain and grammatical ordinary words of the statute. Eusoffe was at least the type of judge who could interpret the plain and grammatical ordinary words of the statute as they appear to speak and are intended by parliament or the draftsmen!

It was a great loss to the Rule of Law in this country when the Tun Dr Mahathir relieved him of his position as judge during the 1988 Judiciary crisis.

It is sad that when Eusoffe’s wife Haseenah died in 1993, after a long illness, Eusoffe who was profoundly depressed, took out a full-page advertisements of love poetry on every anniversary of her death, and after that shot himself at the head in Penang Jan. 11, 1996.

But the glory of a judges, when they were great, lives on – in their judgments. Long past his hour upon the Bench, a judge will be quoted and cited, again and again to remind all the function of the law, what it is and what it could do.

To quote an excerpt from Justice Eusoffe Abdoolcader’s judgment in Tan Sri Hj Othman Saat v Mohd bin Ismail (1982) – “Even if the law’s pace may be slower than society’s march, what with increased and increasing civic-consciousness and appreciation of rights and fundamental values in the citizenry, it must nonetheless strive to be relevant if it is to perform its function of peaceful ordering of the relations between and among persons in society, and between and among persons and government at various levels.”

There are at least three judges sitting on the Court of Appeal and depending on the importance of the issues involved they sometimes sit en banc.

I believe they do not consult with each other formally before writing their own judgments; but each after listening to legal arguments by counsel arrives at his own conclusion and sets out his judgment in writing citing the relevant case law, the authorities, giving his explanation of the interpretation of a particular statutory provision should that be relevant to the case. They do not give their own interpretation of whatever statute based on their emotions or personal feeling as to the legal issues – but based on pure reason, not even a mixture of emotion and reason. Emotion has no role in the interpretation of the law and its implementation. The judge who concurs with the first must still write out his reasons and tells us why he concurs, the legal reasoning leading to his decision complete with case law etc. Then occasionally there may be a judge who dissents and he especially must write his reasons for his dissenting judgment – and the reasons are sometimes more compelling.

It is not easy to “legally” dissent and whenever there is a dissenting judgment it stirs interest among law students who are curious to know the reasons why one judge is dissenting when the law they are applying is the same?

The late Lord Denning whose signed photograph still hangs on my wall was known for his dissenting judgments. Law students who make the mistake of not habitually reading the dissenting judgment of any case learn more slowly and perform less well in exams.
But it is never like you said “I concur, I concur and I concur” or “We concur and we concur”.

The law of real property is mostly statutory law though common law does play a limited role- and whenever it does it creates more problems than it solves. Decisions tend to be reversed and the inadequacies finally resolved by way of introduction or an amendment to statutory law.

Even the introduction of statutes does not resolve matters as the draftsman responsible for drafting the relevant legislation in many cases is unable to foresee all situations – which is why we see a constant flow of amendments of various statutes by Parliament anywhere for only Parliament has the legislative authority to do so. There is nothing wrong with having to amend.

A statute is as good as the courts which interpret it. When an interpretation placed by a judge on a particular statutory provision like S. 340 National Land Code, appears to defeat or go against the intent of Parliament, or gives rise to differing interpretations by different judges then Parliament will have to amend it to give effect to its original intent.

Sometimes you read of judges refusing to interpret a particular statutory provision one way and not another in order to give justice to the case. They are right because it is not their role to do so. The layman does not understand this. Politicians like Mahathir, used not to having anyone disagree with him, sees this as an attempt to usurp (read: his role) the role of Parliament when according to him “judges are not even elected representatives of the people like he is.”

That may indicate the owner has died and may have not willed the property and hence the chance to try a fast one that seems to have succeeded.

The rest of the group follows such a leader, whether first or latter category describe. And why not? They don’t have to do so much work. Just write – I concur, I concur and I concur, and earn the gaji and reap benefits!

That is how in a small group – whether a court or even the cabinet – there is a tendency within it to the development of “one mind” “one position” and one unanimous perspective to issue and problem.

That is also why the leader has to be a person sound in intellect, upright in integrity and erudite and knowledgeable in whatever he deals with because the the rest of the flock like sheep follow either in right direction or all end up in wrong track!

Now if one has a half past six leader who is a leader by authority of position and not superiority of knowledge or integrity – what do you think will happen?

The fault therefore does not necessarily, in all cases of injustices lie with existing law – whether in section 340 Land Code case of Adorna Properties Sdn Bhd v Boonsom Bunyanit or Article 121(1)A cases of Rayappan a/l Anthony’s and Subashini’s – but the way the law is interpreted – right or wrong, logical or illogical, just or unjust!

It underlines the important point not only that we should not have judges (or political leaders) who are corrupt but also judges or political leaders (independent of whether or not corrupt) who must be intellectually competent, knowledgeable and fair in character, answerable in conscience to God (if he were religious) or his own moral imperatives and conscience if he were not otherwise religious.

Some armchair people simply shoot themselves in the foot!
Or is it foot and mouth?

Thanks for the clarification. I’m no legal expert but I did hear once from a lawyer that putting a caveat on one’s own land is done in Malaysia.

http://www.ipsofactoj.com/appeal/2001/Part1/app2001(1)-005.htm

[Quote] “Boonsom Boonyanit, who resided in Thailand but visited Penang from time to time.

She was the registered proprietor of the land held under Lots 3606 and 3607, Mukim 18, in the Town of Tanjung Bungah, Pulau Pinang (“the said land”).

On June 11, 1989, Boonyanit’s son chanced upon an advertisement in a Thai newspaper calling upon any heir of Boonyanit to communicate with a firm of Penang solicitors. Boonyanit’s son then became suspicious and got in touch with his mother’s solicitors in Penang to conduct investigations. The investigations revealed that:

• An impostor claiming to be “Sun Yok Eng @ Boonsom Boonyanit” had affirmed a statutory declaration on June 18, 1988 that she had lost the original title to the said land. The impostor then managed to obtain a certified copy of the title from the land office.

• On April 6, 1989, the impostor, one Mrs Boonsoom Boonyanit, affirmed a second statutory declaration declaring that the names Mrs Boonsoom Boonyanit and Sun Yok Eng @ Boonsom Boonyanit in the title to the said land are one and the same person, that is Mrs Boonsoom Boonyanit (impostor) with a different Thai passport number.

• With this declaration, the impostor managed to perfect the registration of the memorandum of transfer in favour of Adorna Properties Sdn Bhd (“Adorna”). [From Jeffrey – you will note that this is direct stage 2 situation]. Boonyanit then sued for the return of the said land.”

One can read link here – http://www.mca.org.my/story.asp?file=/articles/commentary/2007/3/62589.html&sec=Commentary

To Slashed/Undergrad2, section 340 of National land Code as taken straight from recitation of Eusoffe Chin’s judgment in Adorna Properties Sdn Bhd v Boonsom Bunyanit reads thus:

340. Registration to confer indefeasible title or interest, except in certain circumstances.

(1) The title or interest of any person or body for the time being registered as proprietor of any land, or in whose name any lease, charge or easement is for the time being registered, shall, subject to the following provisions of this section, be indefeasible.

(2) The title or interest of any such person or body shall not be indefeasible -

(a) in any case of fraud or misrepresentation to which the person or body, or any agent of the person or body, was a party or privy; or

(b) where registration was obtained by forgery, or by means of an insufficient or void instrument; or

(c) where the title or interest was unlawfully acquired by the person or body in the purported exercise of any power or authority conferred by any written law.

(3) Where the title or interest of any person or body is defeasible by reason of any of the circumstances specified in sub-section (2)-

(a) it shall be liable to be set aside in the hands of any person or body to whom it may subsequently be transferred; and

(b) any interest subsequently granted thereout shall be liable to be set aside in the hands of any person or body in whom it is for the time being vested:Provided that nothing in this sub-section shall affect any title or interest acquired by any purchaser in good faith and for valuable consideration, or by any person or body claiming through or under such a purchaser.

(4) Nothing in this section shall prejudice or prevent -

(a) the exercise in respect of any land or interest of any power or forfeiture or sale conferred by this Act or any written law for the time being in force, or any power of avoidance conferred by any such law; or

(b) the determination of any title or interest by operation of law.

Section 340(1) speaks of indefeasibility especially relating to stage 1 of my earlier post.

The defeasibility of the first innocent purchaser’s ownership registration procured by a transfer due to forgery, fraud or misrepresentation in stage 2 of my earlier post is covered, you will see, by section 340(3)(b) from the words “any interest subsequently granted thereout shall be liable to be set aside in the hands of any person or body in whom it is for the time being vested”, the expression, “any person or person in whom it is for the time being vested referring to the original registered owner in stage 1.

The reversion (as in stage 3 of my earlier posting) to “deferred indefeasibility” (mentioned by Rodger Tan) of “subsequent second innocent purchaser” acquiring ownership registration from a transfer from “the first innocent purchaser” (without forgery, fraud and misrepresentation) is covered by latter part of section 340 (3)(b) by the words “Provided that nothing in this sub-section shall affect any title or interest acquired by any purchaser in good faith and for valuable consideration, or by any person or body claiming through or under such a purchaser” (for convenience, referred to here as “Deferred Indefeasibility Proviso”) .

The key words are “any person or body claiming through or under such a purchaser”, with the words “any person or body claiming through or under” referring to subsequent second innocent purchaser described in stage 3 of my post and the words “such a purchaser” to first innocent purchaser at stage 2 of my earlier post.

Yes, Adorna Properties Sdn Bhd as first innocent purchaser has also acquired the land from forger in “good faith and for valuable consideration” but it is not entitled to protection of Deferred Indefeasibility Proviso at end of 340(3) (b) because of the words in earlier portion – “any interest subsequently granted thereout shall be liable to be set aside in the hands of any person or body in whom it is for the time being vested” – and Adorna Properties Sdn Bhd certainly doesn’t qualify for the latter portion as a “person or body claiming through or under such a purchaser” because Adorna Properties Sdn Bhd, though an innocent purchaser itself, however claimed the transfer of ownership direct from the Fraudulent Rogue rather than from another innocent purchaser.

Anyway, that’s my interpretation of the section. The full judgment of Eusoffe Chin’s Federal court Judgment in 2001 – which those interested may read – is taken by me for reference from this link on the Net – http://www.ipsofactoj.com/appeal/2001/Part1/app2001(1)-005.htm

To HJ Angus – Anyone can protect one’s own title by caveating his own land, the effect of which is to block it from further dealings.

Whether or not it is proper – Undergrad2 says it is not, only a girl friend or mistress can caveat because they satisfy the prerequisite of having “registrable interest in land” as stipulated by the Land Code – is immaterial because the land office officials will register any caveat lodged by anyone as long as he pays the prescribed registration fee. Whether or not the caveat that gives protection from dealing for 6 years (renewable) will be allowed to continue depends on one factor – whether anyone else challenges and requests for its removal. Now who would do that if you are the rightful owner? Surely we don’t expect the forger to be audacious and has the means to mount that challenge.

Neither can an innocent 3rd party purchaser because by virtue of the rightful owner’s caveat, not removed, and whether or not it is properly lodged based on Land Code’s criteria, no forger or fraudulent character can effect a transfer to innocent purchaser because the existing caveat blocks dealings like transfer.

Cheers. :)

Just read how the US Congress is going after the AG’s office for the sudden sacking of some officers without due cause.
Even closer home in Pakistan, thousands rioted because one Perverse president removed the Chief Justice.

In Malaysia not only the Lord President but almost the entire bench was removed and we all went on our usual routine. Except for the opposition, all the other MPs just kept silence.

He should wake himself up first!! How could somebody caught sleeping on the job wake up anybody???

Why do you think they always kiss the right hand??

The term is ‘duly transferred’ – Borang (whatever) signed and attested to by a lawyer, and free from encumbrances – not a Commissioner for Oaths or your wife or mistress. Otherwise it is not a transfer. The issue document of title is evidence of ownership not ownership itself – a legal fallacy, if you will, and one which gives us a false sense of security. You should be looking at the Register itself which is why you are advised to do a title search to confirm the registered proprietor of the land. The Register is notice to the whole world. What is not on it is not there. Period.

Yes, it could be transferred for ‘love and affection’. Samy Value has transferred so many of his landed properties for ‘love and affection’ like he has an inexhaustible supply of it.

They should amend the NLC to allow a maximum of four times if the transfer is for ‘love and affection’. Why four?? It is legal for some of us to have four wives

I wished I have a copy of the National Land Code to look at. Do you mind typing the entire Sections of the Code you mention? LOL.

You cannot caveat your own land – but your wife or mistress can.