NH Chan JCA:

The appellant (plaintiff) has, in the instant case, brought an action against the respondents (defendants) for the recovery of land. The appellant had bought the land from one Tengku Maheran the previous owner in 1989 and became the present registered proprietor. This piece of land is 93 relongs in area and it is padi land.

This is what the judge in the court below said (see Zakaria bin Hanafi v. Ibrahim bin Hanafiah [1994] 3 MLJ 561, 567):

According to DW1, the previous owner did not enter into a written agreement with the defendants because Tengku Hisham told them the owner would not repossess the land and that they could continue to cultivate the land till the end of time. DW1 did not agree with the suggestion by the plaintiff's counsel that the tenancy was from one season to another. I was not able to ascertain from the evidence the nature of the tenancy and how the tenancy could be terminated. There was insufficient evidence to suggest a yearly tenancy and a tenancy forever is unconscionable. I was not satisfied that the three month's notice was sufficient and proper to evict the defendants from the land. I tend to disagree with the submission by the defendants' counsel that the tenancy could be terminated under s. 24(1)(f) of the [Padi Cultivators (Control of Rent and Security of Tenure)] Act [1967] by the plaintiff applying to the committee for the eviction of the defendant on the ground that the plaintiff desired to cultivate the land himself provided that the plaintiff shall have given one year's notice in writing to the defendants that he required the land for cultivation by himself.

This relief was not available to the plaintiff as there was no tenancy agreement which complied with the Act. I ruled, therefore, that the three month's notice of termination and delivery of vacant possession was of no effect.

And he concluded thus (at 568):

I had decided that the defendants were the lawful tenants of the plaintiff's predecessor-in-title and they continued to remain the tenants of the plaintiff. The order of vacant possession must follow the event.

The order of the court was as follows:

(1) The plaintiff's action was dismissed with costs.

(2) The defendants were declared the lawful tenants of the plaintiff.

(3) The plaintiff was to deliver vacant possession to the defendants within three months.

(4) The plaintiff was to pay damages (to be assessed) and costs to the defendants.

Hence, this appeal by the plaintiff who is now the appellant and the defendants are now the respondents.

There is no such thing in law as a lease in perpetuity: see Sevenoaks, Maidstone and Tunbridge Rly Co. v. London, Chatham and Dover Rly Co. [1879] 11 Ch. D. 625 at 635-6. And a contract for a lease to be granted in perpetuity or till the end of time is void for uncertainty. In Lace v. Chantler [1944] KB 368 it was held that an agreement to let a house for the duration of the war did not create a valid tenancy. See also Prudential Assurance Co. Ltd v. London Residuary Body [1992] 2 AC 386, HL. Viscount Dilhorne when delivering the judgment of the Board (Lord Wilberforce, Viscount Dilhorne, Lord Pearson, Lord Kilbrandon and Lord Salmon) in the case of Siew Soon Wah v. Yong Tong Hong [1973] 1 MLJ 133, PC, said this at 134:

If the use of the word 'permanent' meant that the landlord was bound to let and the respondent to rent the shop in perpetuity, the agreement would be of no effect, for as Jessel MR said in Sevenoaks, Maidstone & Tunbridge Rly Co. v. London, Chatham and Dover Rly Co. [1879] 11 Ch. D. 625 at page 635, there is no such thing in law as a lease in perpetuity.

Although a perpetual lease cannot be granted under s. 221 of the National Land Code 1965 (the Code) and a contract for a perpetual lease is void for uncertainty under s. 30 of the Contracts Act 1950 and a contract the terms of which the court cannot find with reasonable certainty cannot be specifically enforced (see s. 20(1)(c) of the Specific