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2017 MarsdenLR 2827
FEDERAL COURT (PUTRAJAYA)
ZULKEFLI AHMAD MAKINUDIN, PCA, ZAINUN ALI. J, AZAHAR MOHAMED, J, BALIA YUSOF WAHI, J, JEFFREY TAN, J
Letchumanan Chettiar Alagappan – Plaintiff
Versus
Secure Plantation Sdn Bhd – Defendant
RAYUAN SIVIL NO 02-78-10/2014
In civil proceedings, a complaint of forgery is a form of fraud; however, forgery is proven on a balance of probabilities, not beyond reasonable doubt.
Headnote:(A) National Land Code, 1965 - Section 346(5) - Evidence Act, 1950 - Sections 34 and 85 - Complaint of forgery and its implications in the context of a power of attorney and sale of land - The court recognized that a complaint of forgery inherently encompasses elements of fraud, however, differentiated the standards of proof applicable between the two. The trial court erred in applying the standard of proof for fraud, requiring beyond reasonable doubt rather than on a balance of probabilities for forgery claims. The existence and validity of the power of attorney were critical to the claim for specific performance, which constituted a prerequisite that was not satisfactorily established by the respondent. The courts below failed to appreciate the evidentiary weight of circumstances surrounding the execution of the impugned power of attorney. The appeal was allowed, dismissing the respondent's claim for specific performance and returning title of land to the deceased proprietor. (Paras 1-7, 40-42, 63, 74, 92, 102)
Leave was granted to the Appellants to raise the following “questions of law” before this court:
(1)Whether a complaint of forgery in civil proceedings is necessarily in law a complaint of fraud?
(2)Whether it is correct in law for a court to treat a complaint of forgery as a complaint of fraud given the differing standards of proof presently in civil proceedings between forgery and fraud?
(3)Whether a case of forgery can only be proved by means of the opinion of a handwriting expert?
(4)Whether it is correct in law to cast the burden of proving that the sale of a property was not genuine on the plaintiff or alleged vendor?
(5)Arising from the Question above, whether the correct position in law is that the burden of proving that he is a bona fide purchaser for value without notice is rightfully to be placed on the purchaser?
(6)Whether a bona fide purchaser for value can be registered as a proprietor of a land in a situation where a formal transmission from a deceased to a personal representative pursuant to Section 346 (5) of the National Land Code, 1965 was not registered?
The undisputed background facts could be paraphrased as follows. S Alameloo Achi Alias Sona Lena Alamelo Achi (deceased) was the registered owner of land measuring 39.31 acres and held under Geran 98602 for Lot 725 Bandar Kulim (said land). The 1st Appellant was the executor of the will of the deceased. The 2nd Appellant was the lawful attorney of the 1st Appellant. By written agreement dated 4.9.2009 (SPA), Kalidas a/l Komarawelo (Kalidas), as purported attorney of the 1st Appellant pursuant to a Power of Attorney No 1938/09 (impugned PA), agreed to sell the said land to the Respondent at the price of RM5,650,862.09. The Respondent paid the contractual deposit of RM564,941.14 to Tetuan M Raman & Associates, solicitors for Kalidas. Thereafter, the Respondent secured a bank loan of RM2.8m to finance its purchase of the said land, and paid the differential sum between the balance purchase price and loan sum to Tetuan M Raman & Associates. On 5.1.2010, the memorandum of transfer of the said land executed by Kalidas, purportedly as attorney of the 1st Appellant, in favour of the Respondent, and the memorandum of charge by the Respondent in favour of the lender bank were presented for registration. But both instruments were rejected for registration by the Registrar of Titles. On 23.2.2010, the 2nd Appellant lodged a police report that the 1st Appellant had not executed any instrument/document of transfer of the said land to the Respondent, and that any such instrument/document was false. And on 25.2.2010, the 2nd Appellant lodged a private caveat to prohibit the registration of any dealing of the said land. The Registrar of Titles intervened and lodged a registrar’s caveat and issued, after due inquiry conducted on 8.3.2010, a new document of land title to the 1st Appellant. In response, the Respondent on 16.5.2010 filed action (High Court at Alor Setar Civil Suit 21-10- 2010) for specific performance of the SPA and for damages against (i) the Appellants (as 1st and 6th Defendants), (ii) Kalidas (as 2nd Defendant), (iii) the partners as well as the firm of Tetuan M Raman & Associates (as 3rd to 5th Defendants), and (iv) the Registrar of Titles (as 7th Defendant). Soon thereafter, on 25.6.2010, the 1st Appellant filed a separate action (High Court at Pulau Pinang OS 24-1067-2010) against Kalidas to “cancel” the impugned PA on grounds that the impugned PA was void ab initio and or forged. The Respondent applied to intervene in OS 24- 1067-2010. On 23.8.2011, the High Court at Pulau Pinang granted leave to the Respondent to intervene in OS 24-1067-2010 and ordered that OS 24-1067-2010 be transferred to the High Court at Alor Setar for hearing together with Civil Suit 21-10-2010. OS 24- 1067-2010 was eventually re-registered at the High Court at Alor Setar as OS 22-210-08-2012. But OS 24-1067-2010 or OS 22-210-08-2012 was not heard together with CS 21-10-2010. In fact, O
