YB Kit,

The facts on how Low Kim Chai and 15 other landowners in Ulu Yam and 18 landowners in Kapar lost their lands are unclear from excerpts in this blog thread.

Did individual titles subsist for the lands owned by Low Kim Chai and 15 other landowners in Ulu Yam and 18 landowners in Kapar? If so, they would have been registered owners of the lands governed by statutory regime of the National Land Code (NLC); they might, just like Boonsom Bunyanit, have lost their lands by transfer procured by either fraud or forgery by others. They would have to try fight back for their lands in court based on interpretation of section 340 of the NLC. They would, in my opinion, have a good chance.

Yes, the 2001 the Federal Court’s decision in Adorna Properties Sdn Bhd v Boonsom Bunyanit would have laid down an interpretation and precedent unfavourable to original owners (Low Kim Chai and 15 other landowners in Ulu Yam and 18 landowners in Kapar) but who says and who can be certain that the Federal Court today led by Chief Justice of Malaysia, Tun Ahmad Fairuz Sheikh Abdul Halim would not depart from reasoning of the Federal Court led by Tun Eusoffe Chin in 2001?

I argue the possibility of departure because the interpretation of section 340 of NLC by Tun Eusoffe Chin’s Federal Court in 2001 is, with greatest respect to the Federal Court then, incorrect.
Our NLC is based on Torren System of land registration adopted from Australia. The NLC and Torren system place great emphasis on registration and how registration confers indefeasibility. “Indefeasibility” means immune or cannot be defeated by adverse claims.

Indeed our whole system of land registration revolves round this concept of indefeasibility – (1) when in stage 1, indefeasibility arising from registration of property will render the ownership so registered in the original owner’s name entirely immune from attacks of others and un-defeatible in the face of adverse claims, when in stage (2) it shall, change character and cease to be indefeasible – indeed it has become “defeasible” (ie can be defeated) when registration of ownership in the first innocent purchaser’s name is immediately procured by a rogue using forgery, misrepresentation and fraudulent means and when as in stage (3) when registration becomes and resumes its character of “indefeasible” if the property is further transferred by the first innocent purchaser to and registered in the name of the “subsequent second innocent purchaser”.
There is strong logic in these 3 parts/stages dealt differently.
The first innocent purchaser’s obtaining registration in his name under stage 2 cannot claim protection from “indefeasibility of registration” concept in the face of an attack from the original registered owner in stage 1 because his (the first innocent purchaser)’s registration was directly achieved by a forged instrument or fraud by a rogue, and forgery and fraud do not pass a good title.

The same is not true in the case of the “subsequent second innocent purchaser” in stage 3. He obtains registration of property ownership from the first innocent purchaser in stage 2. Unlike in stage 2, there was no forgery or fraud implicated in “subsequent second innocent purchaser” obtaining registration in stage 3 from a transfer effected by first innocent purchaser from stage 2. The registration of ownership in “subsequent second innocent purchaser” therefore reverts to its original indefeasible character – good and strong against even the claim of the original owner from stage 1.

This is the crux of our section 34 – indefeasibility in stage 1, defeasibility in stage 2 and deferred indefeasibility in stage 3.
Tun Eusoffe Chin’s Federal Court in 2001 made a wrong decision because it mixes up first innocent purchaser in stage 2 with “subsequent second innocent purchaser” in stage 3 as if they are the same – just because in both stages the purchasers are so called innocent!

Adorna Properties Sdn Bhd is first innocent purchaser in stage 2 and therefore its ownership registration directly procured from fraud and forgery is defeasible in that it should be defeated by an attack/challenge by stage 1’s original owner, Boonsom Bunyanit. Instead, the Federal Court then decided Adorna Properties Sdn Bhd’s ownership registration as “indefeasible” thus defeating the challenge/attack by original stage 1 owner.

This is wrong. If, for example,I, a “subsequent second innocent purchaser” were to get the property from the first innocent purchaser, Adorna Properties Sdn Bhd, only then the deferred infeasibility concept kicks in – protecting me against and defeating – Boonsom Bunyanit’s claim!

It appears that Tun Eusoffe Chin’s Federal Court in 2001 had jettisoned the entire concept of protection kicking in only by way of “deferred indefeasibility” at stage 3 in favour of immediate indefeasibility at even stage 2 level, contrary in my opinion, to the legislative intent of parliament when the NLC was passed in 1965 in favour of deferred indefeasibility!

In short, we cannot blame the law, the land code or section 340. The fault of injustice to Boonsom Bunyanit lies not in the law that everyone is now clamoring for amendment. The fault lies in interpretation of the law and such a fault can be easily rectified by the present Federal Court under Ahmad Fairuz departing from decision of 2001 Federtal court led by Eusoffe Chin!

Neither can we blame Natural Resources and Environment Minister Datuk Seri Azmi Khalid for all of Boonsom Bunyanit’s woes and injustice except, very indirectly, as I have earlier posted, to the extent that land office personnel might have colluded with the forger to facilitate the forged title or power of attorney. Again if the fraud were perpetrated by false identity card, then the proper minister to blame is the Minister in charge of identity cards (not Azmi Khalid) to whom we may ask what kind of identity cards are being issued that cannot be differentiated from fakes?

Returning to Low Kim Chai and 15 other landowners in Ulu Yam and 18 landowners in Kapar – the nature of their loss of lands may not have exactly stemmed from them being registered owners like Boonsom Bunyanit for which the land code applies. Maybe there’s no titles to their lands. When it is said that their lands were “transferred to a local MCA Datuk”, one is not quite sure if by the word “transfer” they meant it in layman terms of the land with no titles ending in someone else’s benefit or name or as in the technical sense of actual “transfer” under our land code, in cases of land like that of Boonsom Bunyanit for which separate titles subsist.

The facts are not that clear. It might have been another scenario. Maybe politicians have promised them some lands before election. District officers, as instructed by politicians, give them some plans setting out this and that plots of land measuring how many acres, roods poles etc supposedly belonging to them in exchange for votes.

After election, instead of honouring the pledge, the State authority alienates and gives it for a nominal sum to some politician’s cronies and Low Kim Chai and 15 other landowners in Ulu Yam and 18 landowners in Kapar would then cry “murder” and how their lands promised to them have been so called “transferred” to some MCA Datuk. This is entirely a different situation and ball game from that Adorna Properties Sdn Bhd and Boonsom Bunyanit case.

They may not be so entitled because on the matter of whom the land is to be given and alienated, the State authority’s prerogative is unfettered and not in any way bound by earlier representations by District officers and their politician friends to Low Kim Chai and 15 other landowners in Ulu Yam and 18 landowners in Kapar.

I hope what I said would throw some light to the complexity of controversy on these matters.

Link to the full judgment of Eusoffe Chin’s Federal court Judgment in 2001 is repeated here –

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

The court is like any small group of persons. There is always a leader. He is the leader because of the heirarchy of his position. Or he may not, by official heirarchal position, be “first amongst equal” but he still leads because of the customary superiority of his intellect to analyse, dissect issues and write good, and often lengthy judgments strewn with plenty of powerful yet precise words and even dead latin expressions that though meaningless to us laymen however gives the presentation an impression of erudition and depth!

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.

“If you were to read his judgments you’ll find yourself reading with some difficulty in order just to understand him”. Don’t talk of reading his judgments. Lawyers appearing before him and just hearing him speak verbatim, had to bring along an English dictionary to check against bombastic words and a legal dictionary to check latin maxims! With him one could never really feel 100% prepared. Suddenly he would ask some fundamental question upon which the case would stand or fall that no one had thought of. Then he was also editor of Malayan Law Journal and had the privilege of access to the latest cases decided in UK sometimes even before they were reported in law reports there much less known over here, and he would say to counsels, “girls and boys, have you done your homework, have you heard of these cases?” and he would fish out from his drawer copies of the latest decisions for their enlightenment. He worked, thought, ate and slept law : total dedication, passion and commitment. He led the bench of 3 other judges -Tan Sri Wan Sulaiman, Datuk George Edward Seah, Tan Sri Azmi – to oppose what the ex premier/Tun Hamid did to Tun Salleh Abas in 1988 and they were removed.