JUDGMENT

1. This is an application by the plaintiffs for an order that the Caveat Instrument No. L 235/1996 lodged against all that parcel of land described as Lot 2203 Section 66 Kuching Town Land District (the said Land) shall not lapse pursuant to Section 178 of the Land Code (Sarawak Cap 81) (the Code).

2. From the outset it must be noted that in the Originating Summons as well as the Affidavit in Support thereto, there is no reference whatsoever as to when the plaintiffs would like the said caveat to be extended to. Even though the plaintiffs have prayed that the said caveat shall not lapse but the question remains as to when will it be determined. [2]

3. Be that as it may, the learned counsels for both the plaintiffs and the defendant submitted along the basis and with the knowledge that there is a suit pending filed by the plaintiffs as in Suit No. 22-51-96(I). On this score, the court can only infer that, if at all, the court allows the plaintiffs' application for the extension of the said caveat, it shall only subsist until the trial of Suit No. 22-51-96(I).

4. Furthermore, before the hearing of this Originating Summons, the defendant pursuant to Order 28 Rule 2(3) Rules of the High Court, filed in a Summons In Chambers dated 22-1-1997 (encl. 41) for leave to obtain an appointment to hear the Originating Summons. However on the day fixed for hearing of encl. 41, the defendant did not pursue with this application for leave as by then the plaintiffs have already filed in their Notice of Appointment To Hear Originating Summons. In the result, on the day fixed for hearing of encl. 41, both parties proceeded to submit on the merits of the Originating Summons itself.

Brief Facts

5. In this case, the plaintiffs through their counsel lodged a caveat on 4-1-1996 against the said Land under Section 173 of the Land Code. The plaintiffs are the administratrix and administrator of the estate of the late Tan Sri Datuk Amar Sim Kheng Hong (the late Tan Sri) who was one of the directors in Tainion Realty Sdn. Bhd. (the said Company). The said Company was the predecessor in title to the said Land and according to the plaintiffs, this piece of property was transferred to the defendant on 1-9-1994 by the remaining directors of the said Company who incidentally also own the defendant company. [3]

6. According to the plaintiffs, sometime around July 1994, in the process to obtain the Letters of Administration in respect of the estate of the late Tan Sri, they discovered that the late Tan Sri had purportedly resigned from the said Company on 18-1-1989 and at the same time, another director, Wee Hua Boo together with the company secretary, Patrick Tan Bok Chiang also resigned. The plaintiffs further alleged that the documents pertaining to resignation of the late Tan Sri were forged. Incidentally, the late Tan Sri died on 1-2-1992.

7. In furtherance thereto, the plaintiffs also stated that both Wee Hua Boo and Patrick Tan Bok Chiang have confirmed that they never tendered their resignations to the said Company.

8. Consequently, one Lily Sim was appointed as director and company secretary of the said Company on the same date i.e. 18-1-1989.

9. It is abundantly clear that whatever rights accruing to the plaintiffs in this case, particularly the lodging of the said caveat, are derived from the position of the late Tan Sri as director of the said Company. Hence, it is incumbent on the plaintiffs to show to the court that the late Tan Sri would have a caveatable interest in the said Land by virtue of Section 173(a) of the Land Code. Section 173(a) provides:-

"173. Any person -

(a) ;claiming to be entitled to or to be beneficially interested in any land, estate or interest under this Code by virtue of any unregistered agreement or other instrument or transmission, or of any trust express or implied or otherwise howsoever, or by virtue of a licence issued pursuant to section 65B of the Forests Ordinance for the establishment of a planted forest;

(