A registered proprietor's title is indefeasible under the National Land Code unless fraud or misrepresentation occurs, and tenants coupled with equity must prove their entitlement, which the defendant failed to do.

[1] This appeal arose from the decision of the High Court at Kota Bharu dated 1 August 2011 in which the learned judge dismissed the appellant's claim against the respondent for vacant possession and mesne profit in respect of a piece of land known as Lot No 289 Seksyen 27 Bandar Kota Bharu Kelantan ("Lot 289" or "the said land").

[2] We had earlier by a unanimous decision allowed the appellant's appeal and set aside the order of the High Court Judge. We now give reasons for our decision. For ease of reference we will refer to the parties as they were in the High Court.

The Factual Background

[3] The factual background is briefly this. Vide a Sale and Purchase Agreement dated 12 December 2005 (SPA) (exh P1) the plaintiff bought Lot 289 from its previous registered proprietor, Nik Ruhiah Zaidah bt Hj Wan Mohd Zaid ("Nik Ruhiah"). Clause 1.1 of the SPA provides that the said land is sold free from all legal and equitable encumbrances with vacant possession. Clause 7.1 provides that the vendor shall deliver access/possession within two calendar days from the receipt of the full balance sum.

[4] Situated on the said land is a two-storey bungalow house built and occupied by the defendant since 1985. The defendant is the adopted sister of Nik Ruhiah.

[5] The said land was charged to Bank Bumiputra Commerce (exh P2) by Nik Ruhiah since 1979.

[6] The SPA came about in consideration of a friendly loan given by the plaintiff to Nik Ruhiah in the sum of RM1.4 million to enable Nik Ruhiah, who was the wife of the plaintiff's friend, to redeem the said land as the chargee bank had commenced foreclosure proceedings against Nik Ruhiah.

[7] Nik Ruhiah was supposed to have repaid the friendly loan within two years. However, two years after the friendly loan and Nik Ruhiah still failed to settle the friendly loan, the plaintiff instructed his solicitor to effect the transfer of the said land into his own name.

[8] On 22 April 2006, the plaintiff instructed his solicitor, Tetuan Amir & Partners, to make an official search of the title of the said land at the relevant land office and it was confirmed that the only encumbrance found on the register document of title was a charge registered in favour of Bank Bumiputra Commerce.

[9] Initially, the plaintiff could not effect the transfer of the land because the defendant had entered a caveat on the register document of title on 12 February 2007. The plaintiff managed to remove the caveat and discharged the charge and the transfer of the said land was finally effected on 31 January 2008.

[10] On 15 February 2008 the plaintiff instructed his then solicitor, Messrs Amir, Lim & Partners, to issue a letter to the defendant to contact the plaintiff's solicitor regarding the rental of the said land if she wished to continue to stay on the said land.

[11] On 6 March 2008, the plaintiff's solicitor received from the defendant's solicitor a letter informing the plaintiff's solicitor that the defendant is the "owner" of the bungalow house on the said land having built it with the permission of Nik Ruhiah based on a Statutory Declaration dated 10 March 1985 ("SD") made by Nik Ruhiah in which she was given an absolute right to build a double-storey house and to stay on the said land. The defendant's "ownership" of the bungalow house was further confirmed by a Syariah Court of Appeal Order dated 11 April 2002 ("Syariah Court Order") made pursuant to the defendant's application to the Syariah High Court to confirm an oral wasiat decla