JUDGMENT

George Seah SCJ:

This is an appeal against an order made under O. 81 of the Rules of the High Court 1980, whereby the learned Judge:

(a) Declared that the transfer of the land CL 015375461 by the 2nd defendant, Wong Kwok, to the 3rd defendant, Chen Si Mui alias Latifah Chen, is void and it is ordered that it be cancelled pursuant to s. 36 of the Specific Relief Act 1950;

(b) Ordered that the agreements mentioned in the statement of the claim be specifically performed by all the defendants and be carried into execution as follows:

(i) that the defendants do within fourteen days from the date of this order execute in favour of and deliver to the plaintiff a proper and registrable transfer of the said land, namely CL 015375461 free from encumbrances together with the Certificate required under r. 25 of the Sabah Land Rules 1930 failing which the Deputy Registrar of this Honourable Court be and is hereby empowered to execute the transfer of the said land to the plaintiff;

(ii) that all the defendants do deliver up vacant possession of the said land to the plaintiff within fourteen days from the date of this order;

(iii) that all the defendants to redeem the Charge registered as Memorial No. 10181362(06) in favour of Sabah Bank Berhad and all other encumbrances against the said land within fourteen days from the date of this order and

(iv) that all the defendants do pay the plaintiff damages for breach of contract to be assessed and costs to be taxed.

In the view which we take this appeal we need only to set out briefly the main facts in chronological order.

(a) The 1st appellant (1st defendant in the Court below) was the original developer of Far East Garden Housing Estate, Kota Kinabalu, Sabah. On 22 July 1974 he entered into a Sale and Purchase Agreement in writing with one Chang Kon Fah for the purchase of one building Lot 52 together with a 2-storey semi-detached house to be erected thereon on land held under CL 015375461. The agreed purchase price was to be RM72,000 of which a total of RM24,000 had been paid and received.

(b) On 2 March 1976 the 1st appellant sold and transferred all his interests in Far East Garden Housing Estate on land held under CL 015375461 to the 2nd appellant (2nd defendant in the Court below). Under the terms of the agreement the 2nd appellant acquired all the liabilities and benefits of all the Sale and Purchase Agreements entered into between the 1st appellant and the other purchasers including Chang Kon Fah.

(c) On 18 May 1977 a Substituted Agreement was entered into between Chang Kon Fah, the respondent (plaintiff in the Court below) and the 1st appellant whereby Chang Kon Fah assigned all his rights and interests in Lot 52 to the respondent for a consideration stated to be in the sum of RM24,000 and under Clause 5 the respondent "hereby binds himself legally liable and obligated to the terms and conditions under the name of the First Party (Chang Kon Fah) in the said original agreement". This Substituted Agreement was signed by the 2nd appellant as attorney for the 1st appellant.

(d) The 2nd appellant transferred Lot 52 and the building there-on to his wife, the 3rd appellant (3rd defendant in the Court below) for love and affection. It was dated 17 April 1980 but it was only registered at the Sabah Central Land Registry on 24 January 1981 vide Memorial No. 10178043.

(e) On 14 June 1981 the 3rd appellant charged Lot 52 and the building thereon to Sabah Bank Bhd. to secure an overdraft of RM500,000 in favour of Wong Kwok Contractors Sdn. Bhd., Kota Kinabalu, Sabah. This Charge was duly registered on 29 June 1981 vide Memorial No. 10181362.

The main point taken by learned Counsel for the appellants was that the learned Judge erred in law in ordering the cancellation of the transfer of the land held under CL 015375461 by the 2nd appellant, Wong Kwok, to the 3rd appellant, Chen Si Mui alias Latifah Chen. It was submitted that the learned Judge had misconstrued the provision of s. 36 of the Specific Relief