The plaintiff, by Originating Summons No KG 300/87 filed on 9 October 1987, seeks an order to sell by public auction the defendant's land described as lot 211 block 11 Muara Tebas Land District situate at Air Terjon, Tabuan, Kuching, Sarawak containing an area of 3925sq m, more or less, ('the land') to recover

(i) the sum of $54,832.44 due as at 24 February 1987 to the plaintiff by the defendant under a memorandum of charge no L 3019/1986 executed and registered at the Kuching Land Registry Office on 24 March 1986;

(ii) interest accruing thereon at the rate of 11.75% pa on monthly rests from 25 February 1987 till date of final payment or such other rate of interest as the plaintiff may from time to time prescribe;

(iii) the sum of $1,700.00 as costs on a solicitor and client basis;

(iv) the costs and expenses of and incidental to the application and the sale.

The defendant, as the registered proprietor of the land granted a power of attorney on 18 March 1983 to his brother, John A Langgi (see exh 'HGL-1' to encl 10) in respect of the land. John A Langgi, in purported exercise of the powers under exh 'HGL-1', charged the land to the plaintiff to obtain overdraft facilities of $50,000 and letter of credit/trust receipts for $30,000 for the use of one company named Taman Sheema Enterprise ('the company') vide memorandum of charge dated 4 March 1986 (exh 'A' to affidavit of Abdul Rahman Haji Ali in encl 2).

The issue before the court is whether John A Langgi has acted outside the scope and authority of his powers as embodied in 'HGL-1' especially cl 1(4), (5), (6), (7) and (8) thereof by charging the land to the plaintiff.

The defendant in para 5 of his supplementary affidavit in opposition (encl 16) said that he had no part to play in the company. This fact is not challenged by the plaintiff and I therefore take it that such fact is not disputed. According to exh 'HGL-2', the purpose of the facilities granted to the company as per para 2 thereof is

(a) Overdraft — As additional working capital.

(b) Trust receipt — To finance import of beer from Singapore and Philippines, animal food settlement, clothings, garments and building materials from Singapore, India and Philippines.

(c) Letter of credit — To convert sight letter of credit.

A power of attorney is construed strictly by the courts according to well-recognized rules. The powers of attorney are interpreted as giving only such authority as they confer expressly or by necessary implication. Bowstead on Agency (13th Ed) at p 65 lays down the following as being the most important rules when construing a power of attorney:

(a) The operative part of a deed is controlled by the recitals where there is ambiguity.

(b) Where authority is given to do particular acts, followed by general words, the general words are restricted to what is necessary for the proper performance of the particular acts.

(c) General words do not confer general powers, but are limited to the purpose for which the authority is given, and which are construed as enlarging the special powers only when necessary for that purpose.

(d) The deed must be construed so as to include all incidental powers necessary for its effective execution.

Going by the power of attorney (exh 'HGL-1'), it is clear that there are no recitals in 'HGL-1'. Though there are no recitals in 'HGL-1', in my view, we have to examine whether there is ambiguity in the power of attorney. It would appear that by cl 1(4), (5), (6), (7), (8), (9) and (10) of 'HGL-1', the purpose and true intention of the defendant is to develop the land for residential houses and/or commercial houses. To this end, John A Langgi is empowered to take action for the conversion of the land from agriculture to building and to do all such acts as are necessary for carrying into effect the intention of the defendant. It may be true that cl 1(3) would appear to give general power to John A Langgi to 'mortgage charge or raise loan up to M$200,000 only' with t