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2011 MarsdenLR 1042
HIGH COURT, KOTA KINABALU
IRINE MOJILIK – Appellant
Versus
MILON AILON MOJILIK – Respondent
[Kk-12B-7-2011]
Court reaffirmed the importance of credible evidence in establishing actual sale consideration, emphasizing reluctance to overturn factual findings unless perverse.
Headnote:(A) Native Land Laws - Consideration value in land transaction dispute - The court ascertained the true consideration for the sale of the Respondent's half share in land, concluding RM140,000 was the accurate amount contrary to RM25,000 stated in a memorandum - The compensation from the government corroborated this conclusion. (Paras 3, 4, 9, 10)
(B) Legal principles on finding of fact - Court noted it is hesitant to overturn a finding of fact unless it is found to be perverse or irrational. (Para 8)
Facts of the case:
The Respondent and Appellant are siblings; a parcel of land was divided post their mother’s death, with the Respondent selling his half share to the Appellant for RM25,000, although a subsequent document indicated a RM140,000 sale price, which the Appellant disputed. The land was acquired by the State for RM280,000.
Findings of Court:
The Sessions Court Judge upheld the Respondent's claim, finding that the evidence supported the RM140,000 sale and dismissed the Appellant’s appeal, determining no limitation issue arose.
Issues: Determining the actual consideration for the sale and assessing the credibility of documentary evidence submitted.
Ratio Decidendi: The court emphasized that established principles dictate a reluctance to disturb factual findings of the lower court, affirming the lower court had made a sound determination based on reasonable scrutiny of the evidence.
Result: Appeal dismissed with no order as to costs.
| Table of Content |
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| 1. background of land transfer and sale (Para 2 , 3) |
JUDGMENT
Proceeding:
This is an appeal against the decision of the learned Sessions Court Judge where he had upheld the Respondent/plaintiff's claim against the Appellant/defendant for the balance sale price of RM109,000.00 for the sale of his half share in a parcel of native land (land).
Background facts:
The Appellant and Respondent are sister and brother respectively. After the death of their mother, a parcel of native land was transferred to them in equal shares by Mahkamah Anak Negeri. The Respondent's half share in the land was transferred to the Appellant pursuant to a memorandum of transfer dated 15.1.1991 for a consideration of RM25,000.00. On the same day, the Respondent and Appellant signed a document titled 'Surat Keterangan Penjualan Bahagian Milik Tanah NT213021437 Kapayan - 1/2 US'. That document states that the consideration for the sale of the Respondent's half share in the land is RM140,000.00 to be payable as follows:
1. 15.1.1991 - RM25,000.00
2. 15.1.1993 - RM35,000.00
3. 15.1.1996 - RM80,000.00
The parcel of land was compulsorily acquired by the State Government which had paid the Appellant a compensation amount of RM280,000.00 in February 2009.
Issue:
The issue in this appeal is the same as in the trial Court and it is this:
"What is the actual consideration for the sale of the Respondent's half share in the land to the Appellant?
The two documentary evidence before the Court in essence is exhibit P1 and P2. P1 is the 'Surat Keterangan Penjualan Bahagian Milik Tanah NT213021437 Kapayan - l/2 US' which states that the consideration of the sale of the Respondent's half share is RM140,000.00. P2 is the memorandum of transfer of the Respondent's half share in the land which states the consideration to be RM25,000.00. Both documents are dated 15.1.1991.
According to the Appellant, P1 was not drafted in January 1991 but in February/March 2008 pursuant to the Respondent's suggestion such letter be prepared so that they can get a higher compensation from the government for the acquisition of the land.
This is of course denied by the Respondent who testified that the sum of RM25,000.00 in P2 was requested by the Appellant and as a brother who has a blindness disability, he trusted the Appellant. The Respondent testified that he was not aware that his thumb print was affixed on P1 acknowledging the receipt of the second and third installment of the sum of RM140,000.00. When the 2nd installment was not paid in 1993, the Respondent approached the Appellant for payment but later agreed that payments for the 2nd and 3rd installments can be paid after payment of the compensation by the State government which was in February 2009.
Judgment of Sessions Court Judge:
In resolving this dispute of evidence, the learned Sessions Court Judge correctly said that the dispute before him was a matter of finding of fact and had relied on the much quoted decision of Federal Court in Tindok Besar Estate Sdn Bhd v. Tinjar Co , . On this, the learned Sessions Court Judge had correctly adopted the approach in determining which version of event is more credible.
In finding in favor of the Respondent, the learned Sessions Court Judge relied on the lack of evidence to dispute why the date 15.1.1991 on P1 is not the correct date and should be February/March 2008. He had also found that the evidence of DW2 who had drafted P1 and is the Appellant's Respondent, to be insignificant was he was never a witness to the signature and thumb prints in P1. The learned Sessions Court Judge had also found that the compensation amount by the government to be reasonable which corroborates and confirms that the sale consideration stated in P1 is the real consideration and not the sale consideration of RM25,000.00.
Conclusion:
In an appeal when it concerns a finding of fact, the established principle is that the appellate Court would be slow in disturbing that finding unless it is so perverse that it is repu
