FEDERAL COURT PUTRAJAYA
TAKAKO SAKAO – Appellant
Versus
NG PEK YUEN & ANOR (NO 2) – Respondent
[Civil Appeal No: 02(F)-20-2009(W)]
[1] This court by its judgment dated 16 October 2009 found for the appellant on the basis that she is the beneficiary under a constructive trust of which the second respondent is trustee. The subject matter of the trust is the property referred to in that judgment. Argument was sought from counsel as to the nature of the specific relief that should be granted having regard to the facts of this case and also as to the type of costs order that should be made. Evidence was filed by both sides as to the present state of affairs. It emerged, undisputed, that the second respondent had sold the subject property to a third party and that the instrument of transfer had been presented for registration. To prevent any further fraud and for the purpose of preserving the subject property in specie, on 27 October 2009 we directed the Registrar of Titles to enter his caveat pursuant to s 320 read with 321 of the National Land Code 1965. We did so in the exercise of the powers conferred by s 417 of the National Land Code. It is settled that this court has ample jurisdiction to make consequential orders to give effect to its judgment (see, Tan Soo Bing & Ors v. Tan Kooi Fook, [1996] 3 MLJ 547 ) including directing the entry of a registrar's caveat (see, Seet Soh Ngoh v. Venkateswara Sdn Bhd & Anor; [1976] 1 MLJ 242 ) and to ensure that its judgment in particular cases is not defeated by intervening events.
[2] An illustration is provided by Sungei Biak Tin Mines Ltd v. Saw Choo Theng & Anor (No 2), [1970] 1 MLJ 199. There, the former Federal court gave judgment for the defendant/appellant holding that it had not been guilty of a breach of a mining sub-lease. However, before the appeal was heard by the Federal court, the respondents had sub-leased the land to a third party. After judgment, the appellant moved for an order that the Collector of Land Revenue should delete the cancellation of the sub-lease. The application was opposed by the respondents and by the third party. The court allowed the application, ordered the deletion of the sub-lease in favour of the third party and directed the re-registration of the appellant. Suffian FJ who delivered the judgment of the court said:
Our judgment says that the defendant company was not guilty of breach of condition and that therefore its sublease should not have been cancelled. If it had not been cancelled, then the company would still have been the sublessee, and it alone had power to dispose of any interest in the land; the plaintiffs could not have done so and if they have done so to the detriment of the company's right, the court is not powerless to get Mr Lee Yat Kai off the register. Section 417 of the National Land Code clearly says that the court has power to direct the collector to do all such things as may be necessary to give effect to its judgment or order. If we did not order the collector to remove Mr Lee's name from the register and put back on it that of the defendant company, we would be allowing the plaintiffs and Mr Lee to thumb their noses at a judgment of the Federal court, and I do not think that we should allow that. We should give effect to our judgment and order the collector to get Mr Lee off the register and put the defendant company back on it. (emphasis that of Suffian FJ)
[3] When we convened on 13 November 2009 to hear further argument and to be advised on the current position, we were surprised to learn that despite our express direction to him to enter his caveat to prohibit further dealings, the registrar had registered the transfer in favour of the purchaser and had released the issue document of title to him. We were also advised that the whole of the purchase price amounting to RM3.8 million had been released to the second respondent. Its counsel suggested that there was nothing much we could do except to enter a monetary judgment in the appellant's favour which may well end up not being worth the paper on which it was printed. With re
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