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2022 MarsdenLR 156
HIGH COURT SABAH & SARAWAK TAWAU
MOKHTAR MATAMBUK – Appellant
Versus
KU HIEN LIONG – Respondent
[Civil Suit No: TWU-22NCvC-15/8/2021]
Claims must be made within the applicable limitation period; self-contradictory pleadings undermine allegations of fraud and undue influence.
Headnote:(A) Rules of 2012 – Order 18, Rule 19(1)(b)(c)(d) – Plaintiff's action struck out – Court found allegations of illegal transfer and undue influence were contradicted by plaintiff's own documents and behavior – Claim deemed frivolous and vexatious, constituting abuse of court process – Court emphasized its duty to strike out clearly unsustainable claims. (Para 35)
(B) Limitation Ordinance (Cap 72) – Time-barred claims – Plaintiff's claims of fraud and undue influence filed 19 years after the fact were struck out – The court held that the limitations apply even to declaratory orders not immune to statutory limitation periods. (Paras 24-34)
Facts of the case: The plaintiff applied for land but later alleged undue influence and fraud regarding the transfer of land to the defendant, seeking to invalidate transactions executed years prior without timely action. (Paras 3-8)
Findings of Court: The court concluded the plaintiff's claims were self-contradictory and lacked credibility, affirming the action was frivolous and vexatious. (Paras 19-21)
Issues: Main issues examined included the validity of the land transfer under allegations of undue influence and the applicability of limitation periods to the claims made. (Paras 4, 24, 26)
Ratio Decidendi: The court established that despite claims of undue influence and fraud, the plaintiff's actions and admissions negated these allegations, thereby affirming the defendant's position and dismissing claims as time-barred. (Paras 10, 24-26)
Result: Action struck out with costs awarded to the defendant.
JUDGMENT
[1] The court struck out the plaintiff's action on application by the defendant vide encl 12. The action was struck out pursuant to O 18 r 19(1)(b)(c) and (d) of the Rules of 2012 with costs of RM7,000.00 subject to payment of the allocatur fee.
[2] The plaintiff has since appealed. I will first set out the introductory facts and the plaintiff's pleaded case, before setting out the reasons for allowing the plaintiff's action to be struck out.
Brief Facts/The Plaintiff's Pleading
[3] The plaintiff is the successful applicant of a parcel of land measuring 15.62 acres in Semporna. According to the plaintiff's pleaded case which comprised facts, evidence and arguments, the land was required to be planted with crops before the title could be issued and transfer of the land could be take place. The plaintiff did not have the funds to do so whereupon "the defendant and or his agent or his representative" - referred to as the defendant here - approached him. The defendant was alleged to have made representations "that to enable them to liaise with the relevant authorities on matters relating to the issuance of the title deed as per the alienation offer and to extract timber on the said Land, certain agreements and power of attorney would have to be executed."
[4] The plaintiff alleged that he was given RM1,500.00 as "advance money for the timber extraction," he did not know what he had signed as the documentation was in English, and he was not given the opportunity to seek independent legal advice. The plaintiff's cause of action in the Statement of Claim is not misrepresentation (though he took a different stand in his Reply), but undue influence and inequality of bargaining power, as well as fraud and forgery and illegality.
[5] This is how the plaintiff pleaded his case: "The Plaintiff shall state that the transfer of the said Land to the Defendant was procured by the undue influence of the Defendant over the Plaintiff." "Due to the Defendant's undue influence, the Plaintiff had signed the agreement and transferred the said Land to the Plaintiff at a substantial undervalue. There is inequality of bargaining power in respect of the arrangement made between the Defendant and the Plaintiff." See Statement of Claim, para 12 - 13.
[6] The plaintiff claimed "he had not executed the memorandum of transfer and statutory declaration in favour of the Defendant," but then in the same para 14 of the Statement of Claim pleaded he had signed the memorandum of transfer, albeit fraudulently: "The Plaintiff had been defrauded to sign the memorandum of transfer in favour of the Defendant."
[7] In similar fashion, the plaintiff "denied of having signed any statutory declaration in favour of the Defendant and averred he "never execute (sic) any statutory declaration," but in the same paragraph averred that the Defendant's agent "forced the Plaintiff to sign the statutory declaration." See para 7 of the Reply.
[8] He averred that the transfer was illegal because the title deed provided: "No rights or powers granted by the issue of this title shall be transferred by the appointment of Power of Attorney or any other means except with the written permission of the Director of Lands and Surveys," and the transfer documents were signed before the title deed was issued.
court's Reasons For Striking Out Order
[9] I find that the plaintiff's point on illegality is devoid of any merit. The transfer was not pursuant to the power of attorney but pursuant to the sale and purchase agreement dated 8 October 1994 ("the SPA") wherein the plaintiff acknowledged receipt of the full consideration of RM2,500.00.
[10] In any case, the Director of Lands and Surveys has the authority to give written permission for any transfer, as is evident from the cited condition in the title deed.
[11] Next, the plaintiff's lack proficiency in English and misplaced trust does not vitiate the SPA. In Ismail bin Savoosah & Ors v. Hajee Ismail (1889) 4 Ky 453, 458, it was held b
