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2022 MarsdenLR 636
HIGH COURT SABAH & SARAWAK TAWAU
JODDARI @ JADDARI ABD KARIM – Appellant
Versus
THE PERSONAL REPRESENTATIVE OF THE ESTATE OF SANGKANG ABU SAMAN & ORS.... – Respondent
[Civil Suit No: TWU-22NCVC-20-10-2020]
A bona fide purchaser for value without notice may be granted legitimate title despite competing claims, particularly when the original claimants fail to secure their interests through registered means.
Headnote:(A) Contracts Act 1950 – Sections 30 and 155 – Specific Relief Act 1950 – Section 26(a) – Land ownership dispute concerning a parcel of land acquired in 1987. The plaintiff sought specific performance following a 1987 agreement but failed to establish valid title against the registered owner, noting that a deceased party transmitted rights to his son. The court found that the plaintiff lacked sufficient action to protect his interests, having not lodged a caveat or completed a transfer. The 3rd defendant was deemed a bona fide purchaser for value without notice of prior claims. (Paras 22, 29, 68)
Facts of the case:
The plaintiff purchased land in 1987 from Sangkang. Despite multiple payments and an irrevocable power of attorney, he did not secure title following Sangkang's death and transfer of land to the 2nd defendant.
Findings of Court:
The action against the 3rd defendant was dismissed due to the plaintiff's failure to act in a timely manner leading to a justifiable belief by the 3rd defendant that he had valid title.
Issues
: Whether the plaintiff or 3rd defendant holds superior title to the land, and the implications of the nemo dat quod non habet rule.
Ratio Decidendi:
Plaintiff's inaction and lack of registered interest resulted in a judgment in favor of the bona fide purchaser.
Result:
Action against 3rd defendant dismissed; compensation awarded against 2nd defendant.
JUDGMENT
Subject Matter And Nature Of Claim
[1] The subject matter of the proceedings is a parcel of land held under PL 126290828, measuring 5.478 hectares (13.53 acres) more or less, situated in Kampung Bubul Lama, Semporna, Sabah. It will be referred to as "the land".
[2] The plaintiff's case is that he bought the land from one Sangkang Abu Saman in 1987. Broadly, he sought specific performance of an agreement between Sangkang and himself, as well as declarations and orders which would lead to the transfer and registration of the land in his name.
Timeline Of Events
[3] The plaintiff referred to and relied on the surat perjanjian dated 30 March 1987, exh P1 - originally CBOD Part C, p 1.
[4] Although Sangkang acknowledged receipt of RM300 as "wang pendahuluan", and was described as tuan pemilik tanah and also as "penjual tanah LA 79120068," the land had not yet been alienated at that point in time and "harga tanah belum lagi ditentukan." It was still a State land. Sangkang's interest in the land was contingent on the approval of his land application, LA 79120068.
[5] On 11 November 1987, the plaintiff became the donee of a power of attorney ("PA") given by Sangkang who was described as the successful applicant of 15 acres more or less under LA 79120068. By that PA - which was expressed to be irrevocable and to have been given for valuable consideration - Sangkang appointed the plaintiff to, inter alia, to cultivate and farm the land, apply to the Agricultural Department and government authorities for licences and permits, accept the draft title, charge the land, sign the memorandum of transfer for the land as the plaintiff may think fit, to file or register all such deeds and memorandum of transfer executed in respect of the land and all such other acts as the donor could do himself. See exh P2 - originally CBOD Part C, pp 2 to 3.
[6] The plaintiff referred to exh P4 - originally CBOD Part C, p 6 - a handwritten acknowledgment of receipt by Sangkang for the sum of $2,000.00 on 6 April 1988 and RM300.00 on 16 May 1988.
[7] The plaintiff also referred to a notice from the Lands & Surveys Department dated 16 April 1988 (dikemukakan Grant Draft No 126290828 dan memo pembayaran) which was said to have been handed by Sangkang to the plaintiff on 27 July 1988. See CBOD Part B, p 23.
[8] The plaintiff further referred to a pengakuan penerimaan wang, exh P3 - originally CBOD Part C, p 4. By that document, Sangkang acknowledged receipt of RM17,400.00 on 10 August 1990 from the plaintiff. It also reads: "Wang tersebut ialah untuk pembayaran baki penjualan tanah saya LA 79120068 (PL126290828) yang berharga $20,000.00 (Dua Puluh Ribu) kepada Encik Joddari Bin Hj Abd Karim."
[9] The plaintiff pleaded that he took vacant possession of the land, cleared, developed and cultivated it. He also pleaded that he "developed (a) fish pond adjoining" the land. See BP, Statement of Claim p 8, para 9. In his witness statement, the plaintiff said that after he bought the land, he planted cassava, banana, coconut and mango trees but only the coconut and mango tress survived the soil condition.
[10] After 1996, the plaintiff moved from Tawau and left the land to be cared by his agent/servant, one Lari Bin Tammalalah whose family, including his daughter Juriah Binti Lari, built a house on the land and stayed thereon to the present day. See BP, Statement of Claim, p 8, para 10.
[11] However, in his witness statement, Q & A 8, the plaintiff said that house belonged to the late Sangkang.
[12] In his witness statement, he further stated he "also" built a house for another employee, Noramina Binti Abdullah, for her to take care of the crops and the land, and that she continues to stay there.
[13] A perusal of the title deed shows that it was issued on 2 February 2014 in the name of Sangkang, and signed by the 2nd defendant pursuant to an Order of Distribution by the Syariah High Court at Tawau dated the same day.
[14] After Sangkang had passed away, the plain
