The applicable standard of proof in civil fraud cases is 'on the balance of probabilities', not 'beyond reasonable doubt'.

Abang Iskandar Abang Hashim JCA:

Background Facts Of The Case

[1] Md Hilmi Md Noor and Mohd Ghazali Md Noor ("the plaintiffs") are the administrators of the estate of one Md Noor Mohamed ("the deceased"). They had filed this suit, both in such capacity as well as in their own personal capacity.

[2] The deceased was the registered owner of a property known as Lot 534 held under GM186, Mukim 11, Daerah Barat Daya, Bayan Lepas, Pulau Pinang ("the land"). However, the proprietorship as appearing in the Land Office's records was registered in the name/description of Mohamed Noor Mohamed which spelling was different from Md Noor Mohamed.

[3] The original title deed was in the possession of the plaintiffs, who at all material times, paid the quit rent of the land.

[4] The deceased passed away on 18 June 1990.

[5] On 28 January 2010, after a search was conducted at the Land Office, the plaintiffs discovered that the land was transferred into the name of Sankaran Enterprise Sdn Bhd ("the 3rd defendant"), by Azman Ahmad ("the 1st defendant") based on the sale and purchase agreement dated 1 February 2005, for a consideration sum of RM385,388.22 ("SPA"). The land was charged to CIMB Bank Berhad ("the 6th defendant").

[6] The plaintiffs also pleaded that neither the deceased nor the beneficiaries had authorised the 1st defendant to sell the land. So the plaintiffs claimed that the transfer to the 3rd defendant and the charge (in favour of the 6th defendant) were effected by fraud or conspiracy to defraud by all the defendants (except the 2nd defendant).

[7] The plaintiffs in this suit claim, inter alia, for the followings:

a. a declaration that the transfer of the land to the 3rd defendant is void ab initio; and

b. a declaration and any consequential order for the title or ownership of the land be registered in the name of the deceased in place of Mohamed Noor Mohamed (as presently registered).

[8] Since the 1st defendant had defaulted in appearance, the plaintiffs also sought for the judgment in default of appearance vide encl 56, after leave was obtained from the court to proceed with the trial against the 1st defendant, though he had been adjudicated as a bankrupt.

[9] The High court dismissed the plaintiffs' claim against the 3rd to 6th defendants and encl 56 was also dismissed, thus this appeal before us by the plaintiffs.

The Appeal

[10] During the submissions before us, the main issue had been on the question of whether the learned trial judge had been correct when he had decided that on the evidence before him, the plaintiffs had not succeeded in establishing that their deceased father whose name was described as "Md Noor Mohamed" was the same person described as "Mohamed Noor Mohamed". The latter described name had appeared in the deed of indenture dated 4th July 1934 as the purchaser of the subject property referred to in the said deed.

[11] We had perused the records of appeal and the submissions, both oral and written by all parties before us on this issue. For convenience, parties in this appeal will be referred to in their original capacity in the court below. The learned trial judge ruled that the plaintiffs had failed to prove that crucial fact based on two main reasons as can be gleaned from his grounds of judgment. We now reproduce the relevant portions of his grounds of judgment pertaining to that issue. At para 15 of his grounds of judgment, the learned trial judge had, under the heading of "Was there sufficient evidence to hold as a fact that Md Noor Mohamed (the deceased) and Mohamed Noor Mohamed were the one and same person", said that the plaintiffs had relied on two pieces of evidence to establish that fact. He had gone on to state as follo