Richard Malanjum J:

Preliminary

The case before me began by way of an originating summons as the plaintiffs were seeking for certain declarations. However, as the matter proceeded, it was converted as though by writ action. Hence, the usual pleadings were filed by the respective parties. The defendants have also put up a counter-claim and pray for several relief.

From the statement of claim of the plaintiffs, it is obvious that it was the existence of the caveat of the 1st defendants on the subject land CL. 085311075 (the subject land) which prompted this present action. However, it is not in dispute that on 15 May 1997 the subject land was duly registered in the name of the 1st plaintiffs. Consequently, a substantial portion of the prayers sought for by the plaintiffs are no longer relevant. And this probably the reason for the learned counsel for the defendants to submit that the action of the plaintiffs should be dismissed. Learned counsel for the plaintiffs disagreed contending that the action should be maintained since there is a counter-claim and the effect of some of the declarations sought for has a bearing on the transaction between the defendants on the subject land.

Having considered the opposing contentions I am of the view that the appropriate approach to take is not to dismiss the action of the plaintiffs summarily. Rather, the relevant declarations sought for should be considered when adjudicating the counter-claim.

Undisputed Facts

The subject land measures 997 acres and situates at Sungai Ruku-Ruku, Labuk/ Sugut, Sabah. And although the issued document of title in respect of the subject land was only registered on 2 September 1994, it is also indicated therein that the lease commences from 3 December 1971. The 2nd and 3rd defendants were then the registered owners of the subject land. However, on 15 May 1997 the 1st plaintiffs became the new registered owner. Prior to the transfer there were several events that happened in connection with the subject land. One set of chronology of events which are not in dispute are as follows:

(a) On 1 February 1989 the 2nd and 3rd defendants entered into a sale and purchase agreement with the 2nd plaintiff in respect of the subject land with a consideration of RM100,000;

(b) On 1 February 1989 the 2nd and 3rd defendants also executed a power of attorney thereby appointing the 2nd plaintiff as their attorney;

(c) A supplementary agreement was also entered into between the 2nd and 3rd defendants and the 2nd plaintiff on 6 March 1989;

(d) Pursuant to his appointment as the attorney for the 2nd and 3rd defendants, the 2nd plaintiff signed the draft title of the subject land on 14 August 1989;

(e) On 15 January 1993 the 2nd plaintiff sold the subject land to the 1st plaintiffs vide a sale and purchase agreement on even date at the price of RM185,630;

(f) And on the same date, ie, 15 January 1993 the 2nd plaintiff executed a substitution under a power of attorney in favour of the 1st plaintiffs;

(the foregoing transactions are hereinafter collectively referred to as "the transactions");

(g) Upon payment of the premium to the relevant authority the title deed for the subject land was issued and registered on 16 September 1994;

(h) Upon issuance of the issued document of title the 1st plaintiffs took possession of it; and

(i) On 15 May 1997 the 1st plaintiffs finally managed to transfer the subject land to their name, having earlier on being impeded by the presence of caveat lodged by the 1st defendants against the title of the subject land. It is also pertinent to note that the 1st plaintiffs as the substitute attorney for the 2nd and 3rd defendants signed the memorandum of transfer for the transferors.

The other set of events are as follows in chronological order:

(i) On 4 October 1978 a Receiving Order and an Adjudication Order were issued upon the 2nd defendant;

(ii) But on 21 July 1993 both the receiving and adjudication orders were rescinded and annull