JUDGMENT

Abang Iskandar Abang Hashim JCA:

Brief Facts Of The Case

[1] A piece of land was offered for alienation on application, by the Sabah State Government on 11 July 2006, to six individuals namely Rahinah Anduman ("Rahinah"), Indarah Rakim ("the 2nd defendant"), Sainah Angkat ("the 3rd defendant"), Jakarullah OKK Ismail ("the 4th defendant"), Abd Hassan Napiah ("the 5th defendant") and one Sitimah Damit ("Sitimah"). The said land was held under CL 255340599 under PT 96090624 at Sungai Millian in the District of Tongod, Kota Kinabatangan measuring 48.53 hectares/119.920 acres, in size.

[2] In 2009, some three years later, the 1st to 6th defendants sold the land to Ling Eng Keat, Ling Eng Shoo, Ling Wah Fong, Ling Wah King, and Ling Wah Joo ("the plaintiffs") vide a sale & purchase agreement dated 19 August 2009 ("the plaintiffs' agreement"). A point to note is that Martina Pg Ismail ("the 1st defendant") executed the plaintiffs' agreement as the Administrix of the estate of the deceased Rahinah Anduman and Abdul Malik Maja ("the 6th defendant") executed the plaintiffs' agreement as the Administrator of the estate of Sitimah.

[3] The title to the said land was finally issued under CL 255340599 and registered in the name of Rahinah, the 2nd to 5th defendants, and Sitimah on 1 June 2012. At this point, it is worth noting that before the material time, the said land was offered for alienation only, as per para 4 of the Letter of Offer, which prohibited assignment or any form of dealings on the land in question, by way of Power of Attorney or otherwise whatsoever.

[4] Pursuant to cl 2(a) of the plaintiffs' agreement, the sum of RM42,000.00 was paid by the plaintiffs to the 1st to 6th defendants and a further sum of RM7,000.00 was paid in advance, subsequently.

[5] Unknown to the plaintiffs, the 1st to 5th defendants together with Sitimah, entered into sale and purchase agreement with Bameda Plantations Sdn Bhd ("Bameda Plantations") on 4 June 2012 ("Bameda agreement").

[6] As a result of that, the plaintiffs, had subsequently registered a caveat on the said land on 4 July 2012.

[7] The plaintiffs then commenced an action against the 1st to 6th defendants for specific performance of plaintiffs' agreement of 2009, among others, in that the defendants specifically perform, undertake, and fulfil their obligations under the said 2009 plaintiffs' agreement.

[8] Bameda Plantations Sdn Bhd was added as the 7th defendant/Intervener pursuant to a Court Order dated 4 November 2014.

[9] The defendants' defended the claim by asserting that the agreement is null and void ab initio by virtue of s 88 of the Land Ordinance (Sabah). The land was not alienated to the 2nd to 6th defendants when the plaintiffs' agreement was entered into in 2009. It was entered into merely based on the Letter of Offer to Alienate dated 11 July 2006.

[10] The 7th defendant filed a counterclaim against the plaintiffs and the 1st to 6th defendants for the caveat lodged by the plaintiffs on the said land to be removed on the ground that the plaintiffs knew and/or ought to have known that the said land could not have been lawfully sold to the plaintiffs.

[11] On the 14 August 2015, the High Court dismissed the plaintiffs' claim and allowed the counterclaim by the 7th defendant, thus this appeal before the Court of Appeal by the plaintiffs.

The Appeal

[12] During appeal before us, the plaintiffs put before us the following questions for determination, namely:

a. Whether the learned High Court Judge misconceived the doctrine of severability when he held that the doctrine was inapplicable to the instant case because,

i. Two of the defendants had used forged documents to execute the plaintiffs' agreement of 2009 and that therefore the whole agreement was tainted with illegality;

ii. There are no provisions in the plaintiffs' agreement of 2009 for severance in the event any of the parties is found to be a fraud.

b. Whether the learned High Court Judge erred when he held