Syed Ahmad Idid JC:

This is an application by plaintiffs in OS Nos. 150, 151 and 152 of 1988 for an order that the prohibitory orders including any renewals thereof obtained by the defendants against the seven (7) pieces of lands held under Keningau Country Leases Nos. 135319667, 135319836, 135319845, 135319890, 135319916, 135320026 and 135320099 and registered against the said titles in the Central Land Registry and any order for the sale of the said lands be set aside on the ground that Dunstan Dumpangol the present registered owner of the said lands has no more beneficial interest therein for the defendant to seize and sell.

The Court had on 18 January 1989 ordered that Originating Summons No. 150 of 1988 be consolidated with OS No. 151 of 1988 and OS No. 152 of 1988 as the three applications are of the same subject matter giving rise to common questions of law and fact.

The plaintiffs' applications are to set aside the prohibitory orders obtained by both the defendants against, inter alia, the seven pieces of landed properties under country leases on the ground that the registered owner one Dunstan Dumpangol had no more beneficial interest therein for the defendants to seize and sell.

The plaintiffs' claim are as the equitable chargees and assignees of the purchasers for the beneficial interest in the 7 pieces of landed properties as against both the defendants' claim as the judgment creditors of the registered owner.

Facts

There were 2 original pieces of lands under native titles 1331031544 and 133031553 registered in the name of Dunstan Dumpangol.

A private limited company called Pegalan Development Sdn. Bhd. was established in December 1979 with Dunstan Dumpangol as the chairman and a shareholder.

The plaintiffs had on 25 February 1981 received an application from one Pegalan Development Sdn. Bhd. (hereinafter called "the company") vide letter dated 23 February 1981 to request for end financing facility to their shophousing project in Keningau (hereinafter called "the project") which project comprised of 67 units of two-storey shophouses. The project involved the development of two (2) pieces of native lands then under conversion and subdivision into country leases.

The aforesaid company in their application to the plaintiffs for end financing facility had represented that the two (2) pieces of native lands were registered in the name of their Chairman Dunstan Dumpangol as trustee of the company and that upon conversion and subdivision into country leases the subdivided land titles would be transferred to the company. Thereafter the company would undertake to transfer the subdivided titles to individual purchasers.

The company had on 2 April 1981 informed the plaintiffs that the Director of Lands & Surveys had approved the conversion and subdivision of the two (2) pieces of native lands into subdivided country leases under letter of approval dated 15 March 1981.

The plaintiffs had accordingly on 21 September 1981 approved the company's application to provide end finance up to 35 applications by individual purchasers in respect of the project. The plaintiffs eventually approved end finance to purchasers of 29 units of shophouses including purchasers of the seven affected landed properties.

The plaintiffs had thereupon entered into the relevant loan agreement cum assignment documentation with all the 29 successful applicants/purchasers including the purchasers for the seven affected landed properties.

Pending the issuance of the subdivided land titles under country leases and having received from the respective purchasers and then from the plaintiffs progressive payments out of the approved loan monies the company had executed the relevant memoranda of transfer in escrow in respect of the subdivided land titles in favour of the 29 purchasers. The said purchasers had simultaneously executed the memoranda of charge in escrow in favour of the plaintiffs.

The relevant subdivided land title deeds under country leases