Raus Sharif PCA (delivering judgment of the court):

THE INTRODUCTION

There are two appeals and one cross-appeal before us filed against the decision of the learned judicial commissioner (trial judge) of High Court Shah Alam delivered on 16 February 2012. Before embarking further it is pertinent that we introduce the parties to said appeals and the impugned orders that are being appealed against.

In brief, at the High Court, the plaintiff instituted an action for loss of ownership and recovery of her land held under CT 23345, Lot 8659 Mukim Kajang, in Daerah Ulu Langat. In the writ of summons she had named five parties whom she alleged were liable to her losing the ownership and interest to the land. The five defendants sued by the plaintiff were the following:

The learned trial judge after a full trial allowed the plaintiff’s claim and ordered that the plaintiff’s name as the registered proprietor of the land to be restored. In so doing, the trial judge dismissed the plaintiff’s claim against the first defendant and found the third and fourth defendants not to be bona fide purchasers and ruled that their interest in the land was defeasible. The learned trial judge also found the second and fifth defendants to be negligent and liable in causing the plaintiff to lose ownership of the land. The plaintiff’s claim for damages against the second and fifth defendants as well as against the third and fourth defendants was however dismissed. With regard to costs, the learned trial judge awarded costs of the proceedings to the plaintiff and the first defendant, which is to be borne by the second, third, fourth and fifth defendants equally.

Stemming from the aforesaid decision the plaintiff lodged an appeal vide Civil Appeal No B-01–140–03 of 2012 (the plaintiff’s appeal) against part of the decision of the learned trial judge. The plaintiff’s appeal is confined to that part of the learned trial judge’s orders in dismissing the plaintiffs claim against the first defendant and in refusing the plaintiff’s claim for damages. The plaintiff also appealed against the order of costs by the learned trial judge which they claim should have been made jointly and severally against the second, third, fourth and fifth defendants. The second defendant on the other hand has lodged a cross-appeal in the plaintiff’s appeal to appeal against the learned trial judge’s findings of liability made against them.

Against the same decision, an appeal was also lodged by the fourth defendant vide Civil Appeal No B-01–141–03 of 2012 (the fourth defendant’s appeal). The fourth defendant’s appeal was preferred against the findings of the learned trial judge that the fourth defendant was not a bona fide purchaser and did not have an indefeasible interest in the title pursuant to s 340 of the NLC. In this appeal, the plaintiff, the first, second, third and fifth defendants are named as the first, second, third, fourth and fifth respondents respectively.

We heard the plaintiff’s appeal, the second defendant’s cross-appeal and the fourth defendant’s appeal on the 10 January 2013. After hearing the parties, we adjourned the matter for our consideration and decision. We now give our decision and the reasons for the same.

THE BACKGROUND FACTS

This is yet another case where a landowner has been defrauded of her land. The unfortunate landowner in this case is Madam Yap Ham Seow (‘the plaintiff’).

The plaintiff was the registered owner of a piece of land held under CT 23345, Lot 8659, Mukim of Kajang, in the District of Ulu Langat, Selangor (‘the land’). Unbeknown to the plaintiff, one Ong Choon Teng (‘the forger’) purporting to act under a power of attorney dated 29 March 2001, had entered into a sale and purchase agreement on 27 April 2001 with Debarath Meta