JUDGMENTBY: GOPAL SRI RAM JCA

(delivering the judgment of the court):

Facts and background

Boonsom Boonyanit, the appellant before us, is a Thai national. She resides in Thailand, but visited this country from time to time. During her visits, she was always accompanied by her eldest son, Phiensak Sosothikul (PW2). She was -- until the occurrence of those events to which we will refer in a moment -- the registered proprietor of the land held under Lots 3606 and 3607, Mukim 18, in the Town of Tanjung Bungah, Pulau Pinang (the land). But she is no longer on the register. It is the respondent company which is at present the registered proprietor. This change in the ownership of the land occurred in the following way.

In late October 1988, one of its directors, Mr Fong Wah Tan (DW1), was approached by one Mr Lim Chan Hwa (DW2) of CA Lim & GE Tan Sdn Bhd, valuers and estate agents. DW2 asked DW1 if the respondent would be interested in buying two pieces of land having beach frontage. The land was identified as the property that was available for purchase. The asking price was RM30 per square foot. There was some negotiation after which the price was agreed at RM22 per square foot. Later, DW2 obtained an option in favour of CA Lim & GE Tan Sdn Bhd at the agreed price and produced it to DW1. The respondent company duly exercised the option through its solicitor, Mr Cheong Wai Meng and later entered into a sale and purchase agreement with the vendor. On completion of the purchase, a memorandum of transfer in respect of the land was purportedly executed by the appellant on 7 April 1989 and registered in the respondents favour on 24 May 1989.

On 11 June 1989, an advertisement appeared in a Thai newspaper called Thairat. It was placed by M/s Khor Ong & Co, a firm of solicitors in Butterworth. After setting out the description of the land, it called upon, inter alia, any heir of the appellant to communicate with the aforesaid solicitors. PW2 read the advertisement. His suspicions were aroused. He therefore got in touch with his mothers solicitors, M/s Lim Kean Siew & Co, to conduct investigations.

Inquiries made by the appellants solicitors revealed the following:

(1) Someone calling herself Sun Yok Eng @ Boonsoom Boonyanit had

affirmed a statutory declaration on 18 June 1988 (the first

statutory declaration) stating that she was the owner of the

said land and that she had lost the original title to it. The

passport number of the declarant in the first statutory

declaration appears as K/P Thailand No 000386.

(2) The first statutory declaration was used to apply for and obtain

a certified copy of the title from the appropriate authority.

(3) Mrs Boonsoom Boonyanit had affirmed a statutory declaration on 6

April 1989 (the second statutory declaration) in which she

declared that the names Mrs Boonsoom Boonyanit in my

International Passport No N-033852 and Sun Yok Eng @ Boonsom

Boonyanit in the said ACT (meaning the title to the land) in

respect of the said property refer to the same and one person,

that is Mrs Boonsoom Boonyanit.

(4) The second statutory declaration was used to effect registration

of the memorandum of transfer in the respondents favour.

It may be added, for completeness, that the documents of title to the said land was not lost as alleged in the first statutory declaration, but was, at all material times, in the appellants custody.

Following the inquiries made by her solicitors, the appellant, after lodging a police report, instituted proceedings in which she claimed the following relief:

(1) A declaration:

(i) that her right, title and interest in and to the land is

not affected by the purported transfer to the respondent;

(ii) that the transfer in favour of the respondent is void ab