A valid power of attorney can include authority over future-acquired property, and a donee can transfer property to himself provided the power allows. Misrepresentation in claims undermines legal standing.

JUDGMENT

Su Tiang Joo JC:

Query

[A] What is the status of a dealing using a former issue document of title if there is no evidence that the Registrar or Land Administrator had made a memorial on the register document of title that a replacement issue duplicate document of title has been issued under s 175(5) National Land Code.

[B] Under a Power of Attorney, i) can a donor grant power to a donee to deal with future-acquired property?; and ii) would the power given to the donee to transfer, sell, charge and/or lease property to any person include the power to transfer the property to himself?

Introduction

[1] The subject matter of the action is a piece of land held under issue document of title Geran Mukim 1774, Lot 4567, Mukim Sitiawan, Daerah Manjung, Negeri Perak ("the said Property") which was transferred by the father, Ngoo Hoow Pie @ Ngo Hong Ngan (hereinafter referred to as the "father" or "late father" as the case may be) to one of his sons, Ngoo Sing Chong (the plaintiff). Simultaneously at the time of the transfer, the plaintiff gave his father a Power of Attorney. About 4.5 years later, the father used this Power of Attorney to retransfer the land back to himself.

[2] Aggrieved, the plaintiff sued for inter alia a declaration that the Power of Attorney is a nullity and that the land be re-transferred to him. The plaintiff also sued the Land Administrator and the Director of Lands and Mines of the State of Perak (2nd and 3rd defendants) for giving effect to the transfer by the father using an issue document of title which ought to have been deemed to have been cancelled.

[3] During the course of the legal proceedings, the father died and another one of his sons, Ngoo Sing Chai, was appointed as his litigation representative. In this judgment, the 1st defendant is the estate of the deceased father represented by Ngoo Sing Chai. After a trial over four days, the plaintiff's action was dismissed and part of the 1st defendant's counterclaim allowed and these are the reasons for the decision made.

Core Issue

[4] Subsections 340(1) and (2)(b) NLC provide as follows:

(1) The title or interest of any person or body for the time being registered as proprietor of any land, or in whose name any lease, charge or easement is for the time being registered, shall, subject to the following provisions of this section, be indefeasible.

(2) The title or interest of any such person or body shall not be indefeasible:

(a) ........

(b) where registration was obtained by forgery, or by means of an insufficient or void instrument; or

(c) ........

[5] The core issue in this action is whether the retransfer of the said Property by the father back into his own name is defeasible by reason of the registration having been obtained by means of an insufficient or void instrument with reliance placed upon s 340(2)(b) of the National Land Code 1965 (since revised in 2020 Act 828 with the provisions of this subsection remaining intact) ("NLC").

[6] The plaintiff asserts that the Power of Attorney dated 4 May 2011 (the "PA") given by him to his father and the issue document of title dated 20 June 2011 which was used by his father to retransfer the said Property to himself vide Presentation No 2965/2015 are both void and by reason thereto the registration of the said Property in his father's name is defeasible and he prayed for inter alia a declaration that such a registration is void, invalid and of no effect and that he (the plaintiff) remains the lawful owner of the said Property.

Background

[7] On 4 May 2011 the father executed the transfer form, Form 14A, transferring the said Property to the plaintiff. On the same day, the plaintiff executed the PA. This PA is expressed to be given for valuable consideration and irrevocable and gives the donee (the father) the power to inter alia transfer, sell, charge and/ or lease the land to any person. The father had also on the same day lodged a private caveat over the said Property.

[8] One and a half months later, on 20 June