Negligence by a public authority in following statutory procedures can lead to liability, but claims may be time-barred under public authority protection laws.

[1] This is the sequel to the Boonsom Boonyanit-Adorna properties tragic trilogy. The facts giving rise to the present cause of action have been well set out in the judgments of the High Court, Court of Appeal and Federal Court in the suit brought by Boonsom Boonyanit against Adorna Properties (see Boonsom Boonyanit v. Adorna Properties Sdn Bhd , [1995] 2 MLJ 863 ; Boonsoom Boonyanit v. Adorna Properties Sdn Bhd[1997] 2 MLJ 62; [1997] 3 CLJ 17; [1997] 2 AMR 1813 ; and Adorna Properties Sdn Bhd v. Boonsom Boonyanit @ Sun Yok Eng; [2001] 1 MLJ 241; [2001] 2 CLJ 133; [2001] 1 AMR 665).

The Plaintiff's And The Defendant's Case

[2] The plaintiff is the representative of the estate of his late mother Mrs Boonsom Boonyanit @ Sun Yok Eng ('Mrs Boonsom'). Mrs Boonsom was the registered proprietor of all those pieces of land known as Holding Nos 3606 and 3607, both situate at Bandar Tanjung Bunga, Daerah Timur Laut, Pulau Pinang (now known as Lot Nos 3606 and 3607 both situate at Bandar Tanjung Bunga, Daerah Timur Laut comprised in Grant (First Grade) Registration Nos 28476 and 30255 respectively) ('the said land'). The said land was first acquired by Mrs Boonsom vide memorandum of transfer dated 29 December 1966 ('the original memorandum of transfer') which was registered on 18 January 1967 vide Presentation No 180 Folio 178 Vol 9. The parties have agreed that both titles to the said land was made indefeasible by the defendant on 20 December 1985 and 1 January 1986 respectively based on the workings of s 88 of the National Land Code (Penang and Malacca Titles) Act 1963, as applicable then.

[3] The said land was transferred to Adorna Properties Sdn Bhd ('Adorna') sometime on or about 24 May 1989. It is agreed by the parties in the statement of agreed facts that the transfer of the said land to Adorna was procured via:

(a) two advance certificates of title ('Perakuan-Perakuan Pendahuluan Mengenai Hakmilik') of the land ('the ACT') issued by the defendant;

(b) a memorandum of transfer dated 7 April 1989 purportedly signed by Mrs Boonsom ('the impunged MOT'); and

(c) a statutory declaration purportedly affirmed by Mrs Boonsom on 6 April 1989 explaining the discrepancies of names in the ACT and her passport ('the 6 April 1989 SD').

[4] The plaintiff claims that Mrs Boonsom and her family have at all material times had in their custody the original memorandum of transfer as evidence of a conveyance or title deed for the land in accordance with the provisions of the National Land Code (Penang and Malacca Titles) Act 1963 and had never parted possession of the said original memorandum of transfer until 1994 for the purposes of Court proceedings.

[5] The plaintiff avers that in reliance of an earlier statutory declaration purportedly affirmed by Mrs Boonsom on 18 June 1988 ('the 18 June 1988 SD') alleging that she had lost the original memorandum of transfer, the defendant had issued and released to person or persons unknown the ACT in respect of the land. It is the plaintiff's case that at all material times, Mrs Boonsom did not affirm the 18 June 1988 SD nor has she ever lost the original memorandum of transfer.

[6] The plaintiff further avers that the defendant or his officers acted without the mandate of Mrs Boonsom as the rightful owner of the land and were negligent and/or failed and/or omitted to take reasonable precaution in the exercise of their statutory duties in accordance with the provisions of the law in issuing and releasing the ACT to person or persons unknown. The plaintiff has particularised the breaches as follows:

(a) the defendant or his officer failed and/or omitted to appreciate that the signature of Mrs Boonsom in the original memorandum of title differs from the signature in the 18 June 1988 SD;

(b) the defendant or his officer failed and/or omitted to appreciate that Mrs Boonsom's address for service in Penang as appears in the quit rent records is different from the address stated in the 18 June 1988 SD;

(c)