A sale and purchase agreement is void for uncertainty if the vendor lacks title and the agreement does not specify a time frame for necessary approvals, thus cannot be enforced.

[1] The appellant's deceased husband was the holder of a lease of land known as LM No 111 Lot 4306, Mukim Kurong Anai, Perlis ("the property";). The lease had expired on 20 May 1982. The appellant's husband passed away on 2 November 1990.

[2] On 15 November 1995 the appellant and the respondent executed a sale and purchase agreement ("SPA") whereby the appellant as vendor agreed to sell the property to the respondent. Subsequent to the SPA (exh P5) the respondent had assisted the appellant to apply for a lease of the property. The application was successful and a new lease for 99 years commencing 17 November 2004 was issued to the appellant. The respondent contended that the appellant had refused to take steps to apply to the state authority for consent to transfer the land to the respondent within three months from the date of receipt of the document of title and receipt of the necessary approval for transfer of the property in favour of the respondent whereupon the respondent instituted the action against the appellant at the High Court for specific performance of the SPA. The appellant contended that the agreement was void and counterclaimed for losses allegedly incurred due to damage to trees on the property caused by the respondent.

The Decision Of The High Court

[3] It was not disputed that at the time the SPA was executed the appellant had no title to the property. In her evidence before the High Court the appellant agreed that she had intended to sell the property to the respondent. The learned Judicial Commissioner found that there was a valid contract between the parties and that at the material time the parties were aware that the appellant had no right over the property. The learned Judicial Commissioner found no evidence that the State Authority had taken back the property. His Lordship found that by virtue of the appellant's deceased husband being the previous leaseholder therefore the appellant had an indirect interest in the property. On 11 May 2011 the High Court allowed the respondent's claim for specific performance and dismissed the appellant's counterclaim. As at the date of the decision the State Authority had yet to register the appellant as leaseholder.

[4] The appellant appealed to this Court against the decision of the High Court. We allowed the appeal with costs of RM10,000.00. The decision of the High Court was set aside. The deposit was ordered to be refunded to the appellant.

The Appeal

[5] Before us the only issue for our determination was whether the SPA was void for uncertainty. Learned counsel for the appellant submitted that the essential ingredient of the SPA was for the appellant to obtain approval from the State Authority to alienate and/or lease the property in favour of the appellant. The SPA did not provide for any specific time frame for performance of the said obligation. It was submitted that since the SPA was uncertain in its terms it was thus void for uncertainty (s 30 Contract Act 1950 ). Hence the SPA was not capable of specific performance. It was further submitted that since alienation/ lease of the property to the appellant was a fundamental term of the SPA, failure to obtain such lease resulted in the appellant not acquiring any interest in the property and the entire SPA would be devoid of purpose. For the respondent it was submitted that the learned Judicial Commissioner was correct in his finding that the appellant had an indirect interest in the property. Further it was submitted that the appellant was also in possession of the property at all times.

[6] On the evidence we agreed with counsel for the appellant that at the time of execution of the SPA the appellant had no good title to the property as t