The existence of an express trust requires clear intention, certainty of subject matter, and identifiable beneficiaries; the court validated Trust Deeds supporting a claim of beneficial ownership.

Raja Ahmad Mohzanuddin Shah J:

Preliminary

[1] In this action, the plaintiffs are seeking declarations and consequential reliefs to the effect that 90,000 shares in the company known as Muara Emas Sdn Bhd ("the company"), which are currently being held by the first and second defendants in the total number of 60,000 and 30,000 shares respectively, are held on trust by the defendants on behalf of the plaintiffs.

[2] Accordingly, the plaintiffs claim, inter alia, that the two (2) Trust Deeds between the plaintiffs and the defendants, which supposedly prove that the defendants are holding the plaintiffs' shares in trust, are invalid, and that the plaintiffs are the beneficial and valid owners of the shares. Also, the plaintiffs are seeking that the defendants transfer the shares to them, that all relevant documents be executed for the transfer, as well as general, exemplary and aggravated damages for breach of trust, fraudulent misrepresentation, and emotional distress.

[3] On the other hand, the defendants claim that the Trust Deeds between the plaintiffs and the defendants, which allegedly prove the defendants are holding the plaintiffs' shares in trust, are invalid. The defendants had never agreed to the Trust Deeds, let alone signed them. As a result, the defendants claim their signatures were forged. To the defendants, this proves only one thing: the shares are theirs legally.

An Overview Of The Facts Of The Case

[4] There are two plaintiffs in this case, a mother and her daughter. The first plaintiff is the daughter of the second plaintiff.

[5] There are two defendants who are siblings.

[6] It appears from the fact that the company was established by one Ng Yoke Foo ("deceased") on 21 September 1990.

[7] The deceased is the father of the first plaintiff and the husband of the second plaintiff.

[8] One of the deceased's best friends was the Tuan Haji Ismail Bin Johari.

[9] Tuan Haji Ismail Bin Johari is the defendants' father.

[10] A number of transactions took place to show how the 90,000 shares in the company evolved. Shares are traded or changed hands at several levels. These facts regarding the evolution of shares are not much in dispute. The only issue is about the legal implications of how the defendants ended up holding the shares currently in dispute.

[11] Here is the diagram produced by the plaintiffs that I find most helpful to illustrate this.

[12] Thus, the above traces the origin of the 30,000 shares and 60,000 shares that make up the 90,000 shares.

Issues To Be Tried

[13] There are eight (8) issues to be tried as proposed by the parties. In reviewing the same, I found that some issues are minor extensions of the main issues. This dispute can, therefore, be resolved by identifying the two main issues of whether the Trust Deeds are valid and whether the defendants merely hold the shares in trust on behalf of the plaintiffs who are the beneficial owners. The determination of other sub-issues will normally follow the progress of these main issues.

Court's Analysis And Findings

[14] In determining the issues posed to me for my decision, I have the above origin history of the 90,000 shares at the forefront of my mind.

[15] I will now examine the company's existence from the standpoint of its formation on 15 October 1990. From the diagram above, it is clear that it provides a crucial piece of informatio