JUDGMENT

Abdul Kadir Sulaiman JCA:

We had on 29 January 2004 allowed the appellants' appeal with costs and ordered that the caveat lodged on the land by the respondent on 1 October 1993 be removed forthwith. We now give our reasons for doing so.

First, we state the background facts leading to the respondent to lodge a caveat on the land. The first appellant, Koperasi Wanita Sarawak Berhad had by letter of application dated 23 November 1979 applied to the relevant authorities for the alienation of 36 acres of land under Lots 150, 149, 1677, 1693, 1695 and part of Lot 51 Miri Concession Land District ("the land").

By a Trust Deed dated 18 June 1981 ("the trust deed"), the first appellant declared itself as the trustee in the application letter to the relevant authorities for alienation of the land in trust for the parties and in the proportionate shares as stated in schedule one of the trust deed. There are 9 beneficiaries under the trust deed. The respondent, Robert Sim Teck Hock had a 15% beneficial interest, Helena Vida Bayang had 5% beneficial interest and Jorkinah bt. Hashim also had 5% beneficial interest.

We note from the trust deed found at pp. 106 to 109 of the appeal record that there was no consideration at all stated or paid by the respondent to the first appellant for his 15% beneficial interest in the said application for the land. The other beneficiaries too had not paid any consideration for their respective beneficial interest.

It is stated in the trust deed that the first appellant will at the request and costs of the beneficiaries named therein transfer their respective shares upon alienation of the land. At the material time when the trust deed was executed on 18 June 1981 the land was yet to be alienated by the authorities to the first appellant. The land was only alienated to the first appellant on 27 July 1984, some three years later.

Subsequently by a deed dated 24-12-1981 entered into between the respondent and Helena Vida Bayang ("the first deed") and for a consideration of RM 75,000 the respondent purported to acquire by way of assignment the 5% beneficial share of Helena Vida Bayang. By another deed dated 6 April 1983 entered into between the respondent and Jorkinah bt Hashim ("the second deed") and for a similar consideration of RM 75,000 the respondent purported to acquire by way of assignment the 5% beneficial share of Jorkinah bt Hashim. Therefore the respondent claimed that he had increased his beneficial interest to 25% (1/4th share) in the land.

On 15 November 1984, that is about four months after the land was alienated to the first appellant, the first appellant entered into an agreement with Unibor Sdn Bhd for the development of the land ("the development agreement"). Under the development agreement the first appellant had granted Unibor Sdn Bhd the sole right to develop the land on behalf of the first appellant.

In accordance with cl. 2(a) of the development agreement the first appellant had on 15 November 1984 granted to Unibor Sdn Bhd an irrevocable power of attorney to develop the land and to act in the name of the first appellant in any court of law or other proceeding arising out of or in relation to the land. Unibor Sdn Bhd also lodged a caveat on the land on 10 November 1987.

On 1 October 1993 the respondent entered a caveat on the land under s. 173 of the Sarawak Land Code (Cap 81) claiming to be beneficially interested in 1/4th undivided share of the land. This caveat was entered by the respondent more than 12 years after the date of the trust deed and nine years after the alienation of the land to the first appellant. The respondent's case is that he had acquired a 1/4th beneficial interest in the land pursuant to the trust deed, the first deed and the second deed.

The second appellant Mr Yong Chee Poh had agreed to grant a loan to Unibor Sdn Bhd to develop the land. Mr. Yong Chee Poh had agreed to grant the loan in consideration of a memorandum of charge being executed and entered