GROUNDS OF JUDGMENT

Ramly Ali JCA:

1. This is an appeal by the Defendant/Appellant against the decision of the learned High Court Judge dated 17.1.2008, whereby after a full trial it was inter alia ordered that two sale and purchase agreements both dated 3.5.1974 in respect of two lands held under (a) HSM 1715 (4225) Lot No. PT 2261 Mukim Hulu Kelang Batu 7 ¼ Hulu Kelang Daerah Gombak and (b) HSM 1716 (4226) Lot No. PT 2262 Mukim Hulu Kelang Batu 7 ¼ Hulu Kelang Daerah Gombak were to be specifically performed subject to the fulfillment of certain conditions and costs were also ordered in favour of the Respondent/Plaintiff.

2. The conditions imposed in the said judgment are as follows:-

(a) The Defendant shall, within a month hereof demand payment for the development costs to be charged and supported by the certificate from the Defendant's accountant in accordance with P1A and P1B. The Plaintiff shall make payment within a month of receipt of such demand from the Defendant.

(b) The Defendant shall, within a month hereof, demand payments of the conversion, the sub-division and survey fees from the Plaintiff in proportion to the area of the Plaintiff's sub-divided lots calculated on the amount claim by the Land Office, Gombak, and such demands shall be supported by the certificates from the Defendant's accountant as to the correctness of the sums demanded. The Plaintiff shall make payments within a month of receipt of such demand by the Defendant.

(c) Any other outgoing that the Plaintiff is liable to pay under the two agreements shall be settled within two months from the date of the order; and

(d) Provided that all the above have been settled within time, Defendant shall transfer the respective lots to Plaintiff within one month of full payment free from all imcumbrances and the expenses of such transfer shall be borne by the Plaintiff.

Plaintiff's case

3. The Plaintiff's case rests on the contention that by two Sale and Purchase Agreements (SPAs) dated 3.5.1974, the Defendant (as Vendor) agreed to sell to the Plaintiff two pieces of lands for a consideration of RM13,920 and RM14,400 respectively. The Plaintiff has fully paid the purchase price of the said lands.

4. The Plaintiff claimed that in breach of the said SPAs, the Defendant has failed and/or neglected to take the necessary steps to obtain an individual title to the said lands and to execute and register the Memorandum of Transfer of the lands to the Plaintiff. To protect his interest the Plaintiff continued to lodge caveat on the lands every six years.

5. The said lands were later sold to a third party, ie, Asialand Housing Development Sdn. Bhd. for the purpose of developing the lands for a housing project.

Defendant's Contentions

6. The Defendant, on the other hand, contended inter alia that the two SPAs were made by the Defendant's former solicitors, M/s Kirpal Singh Brar & Co (who had left the country and cannot be traced) without the knowledge and consent or authority of the Defendant, as the Defendant had on 20.4.1974 terminated with immediate effect the service of the said solicitors. Therefore the Defendant claimed that the said SPAs are null and void and of no effect.

7. The Defendant further contended that there was a condition imposed by the Pengarah Tanah dan Galian, Selangor for the sub-division and conversion of the said lands, that at least 50% of the lots in respect of the said lands must be allocated to Bumiputra, thus rendering the said SPAs to be frustrated.

Findings of the High Court Judge

8. The learned High Court Judge allowed the Plaintiff's claim with costs. Hence, this appeal before us now.

9. In his judgment the learned High Court Judge had made the following findings:-

(a) the Plaintiff has adduced sufficient evidence to show that she has made full payment for the lands under the two SPAs;

(b) the evidence of the Defendant that the two pieces of land were not sold to the Plaintiff are rejected by the learned High Court Judge;

(c) the Defendant has failed to plea