Siti Norma Yaakob JCA:

[1] We had dismissed this appeal with costs and we now give our reasons for having decided so.

[2] The appellants (the plaintiffs in the Court below) are twin brothers and are the sons of Pengiran Mohd Yusoff bin Pengiran Abdul Razak, deceased, and Pengiran Siti Alimah bte Datu Hussein, deceased. The appellants were born on 7 February 1966, and it was on that day too that they lost their mother and inherited her 1/2 undivided share in a leasehold comprised in Country Lease No 04509117 situated in the District of Kota Kinabalu, Sabah. Together with the other 1/2 undivided share which forms part of the Estate of Pengiran Siti Hapsah bte Pengiran Mohd Salleh, the appellants' grandmother who died on 1 August 1978, the two parcels of land, covering an area of 3835 acres more or less, form the subject matter of the dispute in these proceedings. We shall refer to these lands as the Karambunai land. Attached to the title is a copy of the Land Regulations Of British North Borneo, 1894 (the 1894 Regulations) of which cl 20 forbids any dealing on the land with non-natives.

[3] With that restriction in the title, the Karambunai land had remained with the family of the appellants until 1984 when a number of transactions affecting the land dating from 1984 - 1992, were entered into by the appellants with the 1st - 3rd respondents with the result that the appellants are now beneficially entitled to only 500 acres, whilst the main bulk of 2735 acres have either been sold or subleased to the 1st and 2nd respondents with the balance compulsorily acquired by the Federal Government. It is to question the validity of the transactions relating to the sale and subleases that proceedings were first commenced in the High Court at Kota Kinabalu. The 4th respondent is made a party as the appellants question his powers to amend the title and additionally as the authority who registered the sale and subleases of the bulk of the Karambunai land to the 1st and 2nd respondents, the appellants consider him to be a necessary party to give effect to the different prayers that they seek in their amended statement of claim.

[4] It is not disputed that prior to his death on 28 August 1989, Pengiran Mohd Yussof bin Pengiran Abdul Razak (the appellants' father) had every intention to reap the utmost benefit from the Karambunai land by developing it into a housing and commercial project. However, there were 2 obstacles that stood in the way of his objective. The first is that although the appellants are the direct beneficiaries to the Karambunai land by way of inheriting it through their mother's and grandmother's estates, the land could not be vested to them wholly as the estate duty due on their mother's estate had not been settled. Both estates were initially managed by the Public Trustee and as at 14 October 1982, the duty leviable on the estate of the appellants' mother was RM365,160.91.

[5] The second obstacle was that the appellants' father needed a financier for his ambitious project. For that purpose and through the good offices of a relative, the then Minister of Federal Territories, Datuk Pengiran Othman Rauf @ Awang (Pengiran Othman), the appellants' father befriended the 3rd respondent, the managing director of the 1st and 2nd respondents. Thus any reference to the 3rd respondent in this judgment includes the 1st and 2nd respondents as well and vice versa. That was in 1982 and it was through this contact and the friendship that followed that two important events took place in the same year.

[6] The first is the execution of a memorandum of intent dated 27 August 1982, by the appellants' father, Pengiran Othman and the appellants on one hand and the 1st respondent on the other. In this transaction the appellants' father and Pengiran Othman acted as the legal representatives of the appellants as the latter were only 16 years old then.

[7] Under the memorandum, the appellants together with their legal representatives, agreed to grant