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2020 MarsdenLR 2041
COURT OF APPEAL PUTRAJAYA
LAI WOOI GIAP – Appellant
Versus
ROSLI ZAKARIA & ANOR – Respondent
[Civil Appeal No: P-02(NCVC)(W)-830-05-2019]
Beneficiaries may contest property claims without Letters of Administration if special circumstances warrant urgent protection of estate from fraudulent transfers.
Headnote:(A) Law of Succession – Letters of Administration – Locus Standi – Respondents, as grandchildren, contested fraudulent land transfer without obtaining LA – Appellant contended absence of LA rendered action incompetent – Court accepted existence of special circumstances allowing beneficiaries to act without LA due to fraudulent transfer risk – Injurious implications of fraudulent land transfer validated urgent action as lawful despite LA absence. (Paras 3, 19, 69, 70)
Facts of the case: Respondents alleged ownership rights over land fraudulently transferred to appellant without their LA, asserting land belonged to deceased grandfather. They provided evidence establishing their claim as grandchildren of the deceased original co-owner. (Paras 5, 12, 14)
Findings of Court: Appellant conceded respondents’ family ties; fraudulent document recognized by Court justified respondents’ claims despite LA not being obtained. (Paras 54, 76)
Issues: Whether respondents had locus standi without Letters of Administration to contest property transfer; implications of fraudulent transfer on legal standing. (Paras 3, 19)
Ratio Decidendi: Court ruled existence of special circumstances allows beneficiaries to act on behalf of estate to prevent loss due to fraudulent actions. Fraudulent transfers were established, asserting need for urgent legal remedy. (Paras 69, 76)
Result: Appeal dismissed; respondents entitled to action even without LA based on established special circumstances.
JUDGMENT
Introduction
[1] This is an appeal against the decision of the High Court in Pulau Pinang dated 11 April 2019 ("the HC decision") wherein (after a full trial), the learned Judge ("the Judge") allowed the respondents' claim and cancelled the appellant's name as the registered owner of the subject land. The appellant was the 1st defendant in the High Court. There were four other defendants in the High Court. However, they have not appealed against the HC decision. The Grounds of Judgment of the Judge shall be referred to as "GOJ".
[2] The broad issue that arises in this appeal is whether, the respondents, qua beneficiaries of a deceased co-owner of land may, without obtaining Letters of Administration ("LA"), file legal action to set aside fraudulent transfer of the land to the appellant and consequently, for the ownership of the land to revert to the estate of the deceased.
[3] Thus, the primary question is - whether by reason of the absence of LA, the respondents lacked the requisite locus standi to file the action in the High Court and whether the action is thereby incompetent and a nullity.
[4] The next issue is whether despite knowing that the respondents had not obtained LA and having failed to challenge the respondents' locus standi in the sense as contemplated by what has become known as the rule in Ingall v. Moran [1944] 1 KB 160 CA (" Ingall v. Moran ") and the exception to the rule per the Federal Court case of Al Rashidy Kassim & Ors v. Rosman Roslan, [2007] 4 MLJ 297 FC ("Al Rashidy"), the issue as to lack of locus standi may nevertheless be raised on appeal.
The Facts
[5] The respondents are siblings. They are the children of the late Zakaria Oomar ("Zakaria"). He passed away on 17 June 1992. According to the respondents, Zakaria's father (their paternal grandfather) was the late Oomar Mohamed ("Oomar").
[6] In the High Court, the appellant disputed the fact that the respondents are the grandchildren of Oomar. Thus, the respondents had to prove to the satisfaction of the Judge that they were indeed the grandchildren of Oomar. On this point, the High Court evaluated the evidence and made a finding of fact that the respondents are in fact the grandchildren of Oomar.
[7] Before us, the appellant has conceded that the respondents are the grandchildren of Oomar and does not take issue with the findings by the Judge in this regard.
The Subject Land
[8] The subject matter of the appeal is a parcel of land held under GM 1035, Lot 591 Mukim 2, Daerah Seberang Perai Tengah, Pulau Pinang measuring 8043.1144 squares meters in size ("the subject land"). The original co-owners of the subject land are Oomar, Arope Ahman, Oosope Mohamed (Oomar's siblings) and Sadeah Mohamed (Oomar's sibling) (collectively, "the Original Owners").
[9] It is undisputed that LA was not taken out in the respect of the estates of Zakaria and Oomar.
Impugned Power Of Attorney
[10] The Original Owners had purportedly given a Power of Attorney dated 16 November 2005 (registered in the High Court in Pulau Pinang vide Registration No 13937/2005) ("the impugned PA"). The attorney who was named in the impugned PA is one Mohd Saad Din ("Saad"). Saad was named as the 2nd defendant in the High Court.
[11] The impugned PA was purportedly executed by the donors in the presence of an advocate and solicitor, Ahmad Rizal Abd Hamid ("Rizal"). Rizal was named as the 3rd defendant in the suit.
Transfer Of The Subject Land
[12] The subject land was transferred to Lai Wooi Giap (the 1st defendant in the suit) ("the appellant") vide Land Office No Perserahan 0701SC2006002435 on 28 June 2006 ("the impugned transfer") which was based on a Transfer Form (Borang 14A). The Borang 14A, was executed by Saad as the attorney pursuant to the impugned PA.
[13] Upon becoming the registered owner of the subject land, the appellant applied for a Vesting Order dated 6 May 2015 to vest the legal title of the subject land in his name and for him to hold it as trustee for his da
