Tengku Baharudin Shah JCA:

[1] The appellants, who were the plaintiffs in the court below, sought a declaration that the respondent holds Country Lease 015430136 (the disputed land) as trustee for Tan Sri Wee Boon Ping (Tan Sri Wee) and for an order that the respondent execute a registrable Memorandum of Transfer of the disputed land in Tan Sri Wee's favour for registration (the claim). It was alleged that the respondent, as one of the participants of a land scheme initiated in 1976, did not take up and pay for his share resulting in the same being reallotted to Tan Sri Wee. While Tan Sri Wee had fully paid for the land cost (RM42,929.76) and the development cost (RM228,113.70) of the disputed land the respondent made no payment at all. The plaintiffs' claim was however dismissed by the High court with costs, the learned trial judge holding that Tan Sri Wee only paid the money in 1980 after the respondent was already credited with having paid for it in May 1979, as such no trust had arisen. Hence the appeal to this court. Written submissions were put in by the respective parties and arguments of counsel were heard in Kota Kinabalu when judgment was reserved on 27 July 2006. After due deliberation we have come to the following decision.

Background

[2] It is common ground that Datuk Mohd Harris Salleh (PW1), the then Chief Minister of Sabah, devised the scheme to enable "the notables and associates" of Parti Berjaya to build their homes in Kota Kinabalu. A 53.70 acre piece of land was identified and bought in November 1976 for RM1,500,000 which purchase price was financed by a short term bank loan secured by a joint undertaking to repay by the selected prospective participants of the scheme. The said land being Country Lease 015376986 (the Master Title) was registered in the joint names of the 40 persons including PW1, the respondent and Tan Sri Wee with each (except PW1) holding 1/44 undivided share with view to its subdivision and intra-structural development and for individual titles to be subsequently issued to the respective owners upon payment of their proportionate land and development costs to the law firm of Messrs. Jayasuria Kah & Co. (the Law firm) which was appointed to manage the scheme and collect all payments.

[3] It is the appellants' contention that the respondent opted out of the scheme when he refused or neglected to pay the land and the development costs asked for. The respondent's share (later earmarked as Lot A7) was subsequently reallotted to Tan Sri Wee (in addition to Tan Sri Wee's Lot A8) who duly paid all the costs as determined for both Lots A7 and A8.

[4] Lot A7 is the disputed land. It was upon subdivision described as Lot 27 and registered in March 1985 in the respondent's name, he being one of the original co-owners named in the Master Title who was alloted with Lot A7, but the document of title was given by the Law firm to Tan Sri Wee, who actually paid for the land and development costs thereof. Tan Sri Wee subsequently and with assistance from the Law firm sought to get the respondent to execute a Memorandum of Transfer of the disputed land to him/his nominee but failed. He came to court for relief, hence the claim.

[5] The respondent's defence is that the land and the development costs were fully paid for and on his behalf by Parti Berjaya out of a party common financial resource known as Scheme A, B, C of which he was entitled under the A Category. He therefore claims to be the legal owner of the disputed land with an indefeasible good title and not a trustee as alleged.

[6] The respondent also avers that the first appellant's (Paramill) purported claim is invalid by virtue of s. 88 of the Land Ordinance (Sabah Cap 68). Alternatively the appellants' claim is said to be statute barred under s. 3 and/or s. 26 of the Limitation Ordinance 1952.

The Substitution

[7] The claim was first instituted by Tan Sri Wee on 30 June 1998. By order of court dated 29 April 1999 Paramill had itself substituted a