This is an application by a summon-in-chambers dated 10 February 1995 whereby the plaintiff prays for orders and declarations of the court as follows: [2]

(1) That the Registrar of Lands & Surveys, Sibu accepts the second caveat;

(2) That the sale of the said land is fraudulent, and therefore, null and void;

(3) That the transfer of the said land to the 2nd defendant's name is fraudulent, null and void; and

(4) That the document of title of the said land is to be rectified and re-registered in the 1st defendant's name.

The application is supported by Ho Mee Luang's affidavits affirmed on 30 September 1994 and 13 February, 1996, and opposed by the affidavits of Ngui Kwang King affirmed on 30 November 1994 and of Lee Kung Kieh (of the 2nd defendant) on 11 April, 1995.

The whole episode in the case smacks of a Shakespearean comedy of errors, and the main player was the learned counsel for the plaintiff who had acted with such paralogism and bravado. From the start, the first error concerned the first caveat No. L.4860/1994 which was lodged by the plaintiff in someone else's land. The land in question is Lot 1036 Block 4, Sibu Town District (the said land) and was initially owned by Dian Tong Holdings Sdn. Bhd. (the 1st defendant). When the caveat had lapsed, the 1st defendant sold the said land to the 2nd defendant. Strange as it may appear, the plaintiff himself had lodged a second caveat in the said land in his own name.

Background facts:

This application was a corollary to the plaintiff's writ of summons dated 27 September 1994 (hereinafter called 'the Suit') which was brought against Dian Tong Credit & Development Sdn. Bhd., an unlicenced financial institution in contravention of the Banking & Financial Institution Act 1989 - the BAFIA 1989 (Ex. HML8) (the 1st defendant in the Suit), and Dian Tong Holdings Sdn. Bhd. (the 2nd defendant in the Suit, unrelated to [3] the first defendant) claiming for a sum of RM303,200.00 being deposits made by the plaintiff with the former at various times between 25 February 1993 and 13 July 1994. The said sum represented the total deposits made by the plaintiff as investments with the deposit-taking business of the 1st defendant. The Dian Tong Holdings Sdn. Bhd., the original registered owner of the said land, was not a party to the transaction between the plaintiff and the 1st defendant in the Suit.

The original owner subsequently sold the said land and it was registered in the name of Ching Yeah Sdn. Bhd. (the 2nd defendant). In this application the plaintiff (in both the Suit and in this application), brought an action against the original landowner as the 1st defendant and Chiang Cheah Sdn. Bhd., the new owner of the said land as the 2nd defendant.

Meanwhile the plaintiff had lodged a caveat No. 4860/94 in the said land, and when the caveat had lapsed and the said land was sold to a purchaser (the 2nd defendant in this application), and the plaintiff had lodged a second caveat in the said land. Now the plaintiff brought this action against the parties (i.e. the 1st and 2nd defendant) for orders and declarations of the court as stated above. There are three issues for the decision of the court in this application, and I will first deal with the sale and the transfer of the said land, and followed by the questions of the validity of the 1st and 2nd caveat.

The primary issue before the Court is whether the sale and the transfer of the said land on 28 November, 1994 was valid.

Assuming for a moment that the said first caveat was legally valid, and the plaintiff having in fact obtained on 31 October, 1994 an order for the extension of the caveat in the said land pending the trial of the Suit, had failed or did not think that it was necessary to serve a copy thereof on the Registrar of Lands & Surveys as she was obliged to do under [4] s.178 of the Sarawak Land Code (Cap. 81), (hereinafter called the Code). As the order of the 31 October 1994 had not been served on the Registrar, the R