of the plaintiff seeing that some 40 years had passed since the receipts were said to have NORAINI BINTI MOHAMED HADI been issued (see paras 39, 42, 44-45 & 49-50). V (3) The first SPA and the receipts issued by the defendant and Messrs Goh Bin Lay & Co, PEMBANGUNAN TANAH DAN PERUMAHAN AND read together with the schedule of instalment payments and the subsequent second SPA and PA, gave rise to the inference that Syed Ali, who signed the first SPA on ANOTHER APPEAL four vendors and who was the defendant's founding director, was in all probabilities authorised by the defendant to so act or that the defendant had otherwise ratified the sale The original registered owner ('the defendant") had bought a piece of land under a Master Title CT of the lot as being made by the defendant. The fact that the defendant had accepted the 17421 Lot 4648 ('the land') from one Kheng its registered owner in payments of the purchase price as payments required by the defendant under the first SPA May 1968. The defendant argued that the lan imed by the plaintiff in Lot 536 was bought from and as pleaded by the plaintiff, meant that the defendant had adopted, affirmed, recognised the first purchaser who had entered into a sa se agreement with the four vendors before and ratified the first SPA (see paras 71-72). the defendant's purchase of the sam (4) It was too late in the day for the defendant to raise the objection that ratification of the not trace the title to the defendant's purchase hich came subseq January 1968 SPA in the first SPA was not specifically pleaded. The fact of full payment of bought was part of the many empty lots of and forming part of t which was the purchase price by the first purchaser was material and there was no need for the word subsequently subdivided with the plaintiff claiming title to the subdivided title held unde `ratification' to have been d in the f claim as legal co 316324 Lot 29589 Mukim Plentong, Joho pleaded but a matter for legal argument during submission. There was no prejudice caused of the defendant. There were receipts issued solicitor Messrs Goh Bin Lay & Co, which the plaintiff said acted for the defendant. The to the defendant and the defendant was certainly not caught by surprise for its stand was informed the defendant of the purchase and wrote a few time to the defendant asking merely that the first SPA was not signed with the defendant but with unrelated individuals subdivided title. The plaintiff had been to the defendant's office on many occasion to ask (see paras 74-75). subdivided title but was told to wait. At no material time did the defendant say that it (5)The conduct of the defendant in not reverting to the purchaser after being notified of recognise the interest and title of the first purchaser and with that, the interest and title of the the second SPA and PA with respect to confirmation of the first purchaser's title to Lot 536 appellant. The appellant was paying the quit rent and assessment for the lot since buying it and the fact that the final subdivided title had been issued was more blameworthy than the the first purchaser. The plaintiff prayed for a declaration that the defendant was a trustee o plaintiff not having made a land search before purchasing from the first purchaser. The purchased, for the plaintiff and also for an order for the defenda to execute the of transfer to effect the transfer of the subdivided title to the plaintiff. The defenda position of the law on subsale of the land or property where its title was not issued was for trespass, damages and for removal of the plaintifft's ca always been by a sale and purchase agreement together with an assignment of the sale or granted the defendant the relief of vacant possess l of the plaintiff a power of attorney (see paras 87 & 89). assessment of damages, including exemplary damages for loss of use of the land and for wrongfu (6) There was no need for the developer or original owner to be a party to the subsale SPA entry of the plaintiff's caveat. The plaintiff dissatisfied with the judgment against her, much less to give conse t to the r in the subs le only needed this court against both decisions. The issues to be determined were: (a) whether the defendant was to give notice of the sale or assignment to the original owner of the master title like the the ultimate vendor that ratified the first sale and purchase eement and recognised the title of defendant. The court was more than satisfied that the appellant had shown she was a bona the first purchaser to the lot; (b) whether the defer er the defendant was a bare trustee with respect to the s fide purchaser. The court concluded on the balance of probabilities that the first purchaser lot in the issued subdivided title; (c) whether the four vendors could enter into a valid sale and purchase agreement with the first purchaser of the undivided land in the lot before becoming its had fully paid the purchase price when he bought the said lot from the defendant, which for registered owner; (d) whether the defendant's refusal to transfer the subdivided titles to the plaintiff all intents and purposes, had recognised ed, affirmed, accepted and ratified the first was fraud against t d against the plaintiff; (e) whether the plaintiff claim was barred by limitation or laches; SPA in and stepped into the shoes of the four vendors (see paras 89, 99 & 113). and (f) whether the case was fit for appellate intervention. (7)The position of the registered owner who was paid in full by the first purchaser was that of a bare trustee or that of a constructive trustee who had an obligation to transfer the Held, allowing appeal with costs of RM25,000 subject to payment of allocator: subdivided title to the subsequent purchaser like the plaintiff who had given notice of the transfer to the defendant as the reg istered owner. The writ itself was sufficient notice to (1)While there are some dotted lines initially between the four vendors and their attorney, effect the transfer and the defendant had not come to court to say that because of a lack of Syed Ali, and the defendant, ultimately looking at the overall circumstances of the notice, it had already sold the lot to a third party. A vendor who had received the full the documents presented as well as the conduct of the parties, the dotted lines could purchase price and a court of law wo n the vendor a constructive trust, holding comfortably be joined together to link the defendant to the lot in question as the property for the purchaser and persons deriving title or claiming title through the substantially the real vendor having overall charge of the whole development project called purchaser. Any refusal to transfer the said property to the plaintiff would be a breach of trust Taman Saujana. Further, a close look at all the original receipts produced, mostly by the by the defendant (see paras 114, 116 & 136-137). defendant, and together with some receipts issued by Messrs Goh Bin Lay & Co, added up & 36). to the total purchase price for the lot of land purchased by the first purchaser (see paras 34 (8) The court could not agree with the trial judge's conclusion that as the four vendors did not become the registered owner ing title to the first (2)Payment to one's agent was as good as payment to the client and, in this case, it was purchaser for the respective lot and based on the nemo dat principle, the plaintiff could not the defendant who, on its , on its own, also issued receipts to the first purchaser for most of the have derived any title from the first purchaser. The position of the law was clear in that the instalment payments of the purchase price. There were 13 receipts issued by Messr defendant, having received the full purchase price from the first purchaser, was legally Bin Lay & Co out of which six receipts were issued even before the defendant's incorporation. bound to transfer the subdivided title in the lot to the nominee, lawful done or assignee The memorandum and articles of association of the defendant and the signature of the said under the second SPA and power of atto solicitors at the end of the M&A showed that it was more likely than not that the firm of Messrs Goh Bin Lay & Co were the solicitors that (9) The court agreed that whether the act of the respondent consisted of a subsequent sale licitors that acted for the defendant with respect to its incorporation. It was not unnatural for a firm of solicitors to issue receipts on behalf of the to the third party or a refusal to transfer to the first pu and the present purchaser in s of company before its incorporation. The connection in the receipts issue the appellant, the effect was the same: it was to deprive the appellant of the rightful title to Messrs Goh Bin Lay & Co lies in the Lot 536 which was also Lot 536 in the receipts issued by the land. The court was more that satisfied based on the standard of proof, the appellant the defendant and it was the lot stated in the first SPA and the second SPA and PA. Section had established fraud on the part of the respondent (see paras 176 & 182). 90 of the EA specifically addressed the difficulties to call makers of documents more than 20 (10) The court agreed with learned counsel for the appellant that the law on limitation period started to run when there was clear and unequivocal threat to dispossess the years, as in this case. The court's discretion, with respect to whether to draw a presumption as to the genuineness of the signature and with that the contents represented by the appellant from the land by the respondent. There was no evidence to show that the signature, has to be exercised judicially. In this case, the discretion was exercised in favour of the plaintiff seeing that some 40 years had passed since the receipts were said to have been issued (see paras 39, 42, 44-45 & 49-50). defendant would be executing the transfer form in Form 14A of the National Land Code and (3) The first SPA and the receipts issued by the defendant and Messrs Goh Bin Lay & Co, read together with the schedule of instalment payments and ments and the subsequent sec delivering the subdivided title to the first purchaser. The defence of laches was more remote and PA, gave rise to the inference that Syed Ali, who signed the first SPA on behalf of the and illusory. In the context of a vendor was a bare trustee or constructive trustee, it did not and who was the defendant's founding director, was in all probabilit lie in the vendor's mouth to resist specific performance on ground of laches (see para 184, authorised by the defendant to so act or that the defendant had otherwise ratified the s 191 & 194). of the lot as being made by the defendant. The fact that the defer the defendant had accepted the (11)The court was of the view that the trial judge was plainly wrong in not sufficiently payments of the purchase price as payments required by the defendant under the first SPA appreciating the documentary evidence of payments made by the first purchaser to the and as pleaded by the plaintiff, meant that the defendant had adopted, affirmed, recognised and ratified the first SPA (see paras 71-72). respondent and the payments of quit rent and assessment for the lot purchased by the (4) It was too late in the day for the defendant to raise the objection that ratification of the appellant from the first purchaser. There was no link between the four vendors and the January 1968 SPA in the first SPA v cifically pleaded. The fact of full payment of defendant and failing to conclude that the defendant was the ultimate vendor that had the purchase price by the first purchaser was material and there was no need for the word recognised, adopted, affirmed and ratified the first SPA. Further, there was evidence of due `ratification' to have been used in the statement of claim as legal consequences need not be notice having been given by the plaintiff to the defendant on the title to the lot that she had pleaded but a matter for legal argument during submission. There was no prejudice caused acquired from the first purchaser (see paras 200-201). to the defendant and the defendant was certainly not c ainly not caught by surprise for its stand was merely that the first SPA was not signed with the defendant but with unrelated individuals (see paras 74-75). (5)The conduct of the defendant in not reverting to the purchaser after being notified of the second SPA and PA with respect to confirmation of the first purchaser's title to Lot 536