null and void

DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO: A-02-160-2009
ANTARA
KAMARIAH BINTI A. RASHID …PERAYU
DAN
1. TASA CREDIT SDN BHD … RESPONDEN-
2. PERWIRA AFFIN BANK BERHAD RESPONDEN
[Dalam Mahkamah Tinggi Malaya Di Taiping
Dalam Negeri Perak Darul Ridzuan, Malaysia
Saman Pemula No: 24-145-Tahun 1998]
Dalam perkara tanah yang dikenali
sebagai H.S.(D) K.K 735/82 P.T.
1433 Mukim Sayung, Daerah Kuala
Kangsar.
Dan
Dalam perkara Gadaian bertarikh
20.10.1984 Perserahan No. 409/85
Jilid No. 1830 Folio 49 yang
didaftarkan pada 07.01.1985
Dan
Dalam perkara Seksyen 340(2) dan
417 Kanun Tanah Negara 1965
Dan
2
Dalam perkara Aturan 15 Kaedah 16
Aturan 7 Kaedah-kaedah Mahkamah
Tinggi 1980
Dan
Dalam perkara Seksyen 226(3) Akta
Syarikat 1965
KAMARIAH BINTI A. RASHID …PERAYU
DAN
1. TASA CREDIT SDN BHD … RESPONDEN-
2. PERWIRA AFFIN BANK BERHAD RESPONDEN
CORAM:
(1) TENGKU BAHARUDIN SHAH TENGKU MAHMUD, JCA
(2) MOHD. HISHAMUDIN YUNUS, JCA
(3) SYED AHMAD HELMY SYED AHMAD, JCA
GROUNDS OF JUDGMENT
The appellants’ claim before the High Court, filed by way of an
originating summons - and subsequently, by consent of the parties,
converted to a writ action, was for the following reliefs:
(i) a declaration that the charge dated 20.10.1984 and
the registration of the charge on 7.1.1985 vide
Presentation No 409/85 Jilid No: 1830 Folio 49
(hereinafter called the “charge”) is null and void;
3
(ii) a declaration that the transfer of the property held
under H.S.(D) KK 735/82 PT 1433 Mukim Sayung,
Daerah Kuala Kangsar (hereinafter called the
“property”) from the first respondent to the appellant
and Supian bin Jasmani on 7.1.1985 and the
registration of the transfer is null and void.
The appellants’ claim is based on fraud, misrepresentation and/or
forgery. The appellant’s position was that neither she nor her husband,
Supian bin Jasmani, purchased the property and that she and her
husband at no time obtained any loan from the respondent bank nor
created any charge in favour of the respondent.
The learned trial judge, after a full trial, dismissed the appellant’s
claim.
The appeal herein only concerns the appellant and the respondent
bank. The developer who was the 1st defendant in the Court below has
been wound-up.
Evidence of the appellant’s claim was adduced by her and her
husband, Supian, whilst the defence of the respondent bank was by the
evidence of 4 witnesses. The learned trial judge in evaluating the oral
and documentary evidence adduced found that the appellant failed on a
balance of probabilities to prove her claim and accordingly dismissed the
same.
At the conclusion of the appeal, upon a close scrutiny of the notes
of evidence and contemporary documents in the record of appeal, and
upon hearing and considering the submissions both written and oral of
4
counsel of the respective parties we are impelled to exercise our
appellate jurisdiction to interfere with the decision of the learned trial
judge. It is our considered view that there is a lack of judicial
appreciation on the part of the learned trial judge of the totality of the
evidence presented. It is well established that failure to consider
important evidence or important surrounding circumstances would
constitute an error of law warranting appellate interference - see Mst
Chameli Debi v Purusattan Singh [1974] AIR Calcutta 316.
There is no dearth of authorities empowering appellate
interference in instances where the decision of trial judges was arrived at
without any or insufficient judicial evaluation and appreciation of the
evidence adduced. Notable amongst them is the Court of Appeal
decision of Lee Ing Chin & Ors v Gan Yoke Chin & Anor [2003] 2 CLJ
19 where Gopal Sri Ram JCA (as he then was) lucidly phrased it as
follows:
“Suffice to say that we re-affirm the proposition that an appellate court
will not, generally speaking, intervene unless the trial court is shown to
be plainly wrong in arriving at its decision. But appellate interference
will take place in cases where there has been no or insufficient judicial
appreciation of the evidence. It is, we think appropriate that we say
what judicial appreciation of evidence involves.
A judge who is required to adjudicate upon a dispute must arrive at his
decision on an issue of fact by assessing, weighing and, for good
reasons, either accepting or rejecting the whole or any part of the
evidence placed before him. He must, when deciding whether to
accept or to reject the evidence of a witness, test it against relevant
criteria. Thus, he must take into account the presence or absence of
any motive that a witness may have in giving his evidence. If there are
contemporary documents, then he must test the oral evidence of a
5
witness against these. He must also test the evidence of a particular
witness against the probabilities of the case. A trier of fact who makes
findings based purely upon the demeanour of a witness without
undertaking a critical analysis of that witness’ evidence runs the risk of
having his findings corrected on appeal. It does not matter whether the
issue for decision is one that arises in a civil or criminal case: the
approach to judicial appreciation of evidence is the same. There are a
number of important and leading cases in which the point has been
considered.
In our considered judgment, the authorities discussed thus far, apart
from explaining what judicial appreciation of evidence involve, illustrate
a principle central to appellate interference. The principle is that a
decision arrived at by a trial court without judicial appreciation of the
evidence may be set aside on appeal. There are several authorities
that establish the principle.”
Based on the evidence as presented before the learned trial judge,
the following are the salient facts of the case:
1. The property in question is a Malay reserve land.
2. The original registered owners as evident by the title
deed in exhibit P4 were Mohd. Tahir bin Haji Nasir and
Jamaluddin bin Mohd. Dom. They charged the
property to the respondent bank on 15.10.82.
3. The title to the property has all along been in the
possession of the respondent bank.
4. The charge by Mohd. Tahir bin Haji Nasir and
Jamaluddin bin Mohd. Dom was discharged and the
6
property was on 7.1.85 transferred and registered in
the joint names of the appellant and her husband in
equal ½ share and a charge were registered again in
favour of the respondent bank.
5. The letter of offer dated 20.8.84 from the respondent
bank approving the loan for the purchase of the
property (Exhibit D11) was addressed to the appellant.
6. The charge instrument (Exhibit P5) bears both the
names of appellant and her husband; but bears the
signature of only the appellant at the execution
column.
7. The annexure to the charge (Exhibit P6) bears both the
names of appellant and her husband and at the
execution column there appears two signatures. The
appellant acknowledges the lower signature as hers,
whilst her husband disputes the top signature as his.
8. No sale and purchase agreement of the property duly
executed by the appellant and her husband was
produced as an exhibit in Court.
9. The appellant did not at any time forward the loan
documentation to the respondent bank. It was
forwarded by the developer (1st respondent) to the
respondent bank.
7
In the light of the salient facts aforesaid and evaluating it against
both the documents and oral evidence we are constrained to conclude
that the learned trial judge ran afoul of the principle of judicial
appreciation of evidence in respect of the following:
1. The terms of the letter of offer (Exhibit D11) specifically
states that the loan is to be under the joint names of
the appellant and her husband and that the property is
to be given as security by way of a first party charge.
The letter of offer is addressed only to the appellant
and the evidence shows that there was no acceptance
of the terms of the letter of offer by the husband as
there is only one signature purportedly that of the
appellant at the acceptance column.
2. The charge document in exhibit P5, though bearing
both the names of the appellant and her husband on
the front page, nevertheless in the execution column
the signature of the husband does not appear though
the signature of the appellant appears. Then again
there is the annexure to the charge (Exhibit P6) where
both the names of the appellant and her husband and
their purported signatures appear. On the charge
annexure we find that the entire registration of the
transfer and charge is void ab initio being in
contravention of section 340(2)(b) of the National Land
Code. The annexure to the charge is fraught with
forgery in respect of the signature of the appellant’s
husband as evidenced by his denial that the signature
was his and his explanation as to why it was a forgery.
8
His evidence was never rebutted by the respondent
bank with any credible evidence.
3. The subject property being Malay reserve land has to
be attested before a Collector of Land Revenue (see
paragraph 3(1) of the Fifth Schedule of the National
Land Code 1965) Though there purported to be the
name of one Abdul Rahim bin Desa, Penolong
Pemungut Hasil Tanah Wilayah Persekutuan, in the
attestation column of both the charge and transfer
documents, nevertheless, he was not called as a
witness to testify. The necessity of calling the
Penolong Pemungut Hasil Tanah to testify is self
evident as the husband has denied attending the Land
Office. By reason thereof both the transfer and charge
instruments are void and fall within the feasibility
provision of section 340(2)(b) of the National Land
Code (see Keng Soon Finance Bhd v MK Retnam
Holdings Sdn Bhd (Bhagat Singh a/o Surian Singh
& Ors, Interveners) [1996] 2 MLJ 431; United
Malayan Banking Corporation v Syarikat
Perumahan Luas Sdn Bhd (No.2)[1988] 3 MLJ 352;
Tan Ying Hong v Tan Sian San & Ors [2010] 2 CLJ
269).
4. The evidence of both the appellant and her husband
and supported by the evidence of DW1 the bank officer
of the respondent bank managing the appellant’s
account, DW3 another bank officer attached to the
Retail Loans Department of the respondent bank and
9
DW4 a clerk of the 1st respondent establishes that the
loan application was applied for by the agents,
servants and/or representatives of the developer and
hence the appellant never had knowledge of the loan.
This is further reinforced by the testimony of DW1 at
pages 130 -135 of the Appeal Record and of DW3 at
pages 137 - 141 of the Appeal Record that the
appellant never applied for nor obtained the loan.
5. On the issue of limitation it is the respondent bank’s
contention that the appellants claim is time barred
pursuant to section 29 of the Limitation Act 1953 as it
was brought on 10.8.98 which is more than 6 years
after the appellant “could with reasonable diligence
have discovered the fraud.” It is the respondent bank’s
submission that the appellant should have taken such
steps that an ordinary prudent person would have
taken under the circumstances – see Peco Arts Inc v
Hazlitt Gallery Ltd [1983] 1 WLR 1315. It is argued
by the respondent that and in the context herein the
fraud could have been discovered on 20.10.84 when
the appellant herself executed the charge or at the
latest 11.1.85 when the respondent bank wrote to
inform her about the disbursement of the loan. Hence
as the last day for commencement of the action was
10.1.92 it follows that the action herein being filed on
10.8.98 was clearly statute barred.
From the Appeal Record there does not appear to be
any notice or documents sent to the appellant by the
10
respondent bank pertaining to the loan. In essence the
appellant was unaware that she had any loan from the
respondent bank. Her knowledge about the loan came
about on 9.6.98 when an MBF Mastercard officer
informed her that her credit card has been terminated
as she had been declared a bankrupt through an
advertisement appearing in the Star newspaper on
24.3.98. She realised the fraud perpetrated against
her upon enquiries made with an officer of the
respondent bank and upon perusing the documents
handed to her in relation to the housing loan. Hence in
the context of the factual matrix herein the point of time
when she had knowledge of the fraud was 9.6.98 and
the commencement of the action by her on 10.8.98
was well within the time frame of section 29 of the
Limitation Act 1953.
By reason aforesaid the appeal is accordingly allowed with costs,
the decision of the learned trial judge is set aside and an order in term is
made in respect or prayers (c), (g) and (j) of the amended originating
summons together with the consequential order directing the Registrar
of Titles of Perak to effect and register the cancellation of the registration
of the transfer of the property to the appellant and Supar bin Jasmani on
the Register of Title. Fixed costs of RM30,000.00 for this appeal and the
Court below be paid by the respondent to the appellant.
11
(DATUK SYED AHMAD HELMY BIN SYED AHMAD)
Judge
Court of Appeal,
Malaysia
Dated this 14th day of July 2011
Counsel for the Appellant
Mr. Vignesh Kumar Krishnasamy dan Safia Ahmad Jahidi
Tetuan Balendran Chong
Peguambela dan Peguamcara
Tkt. 3, Bangunan HSBC
Jalan Mahkota
25000 Kuantan
Counsel for the Second Respondent:
Paul Kwong dan Sonia Abraham
Tetuan Azman Davidson & Co.
Peguambela dan Peguamcara
Suite 13.03, 13th Floor
Menara Tan & Tan
207 Jalan Tun Razak
50400 KUALA LUMPUR
Cases referred to:
1. Lee Ing Chin & Ors v Gan Yoke Chin & Anor [2003] 2 CLJ 19
2. Keng Soon Finance Bhd v MK Retnam Holdings Sdn Bhd
(Bhagat Singh a/o Surian Singh & Ors, Interveners) [1996] 2
MLJ 431
3. United Malayan Banking Corporation v Syarikat Perumahan
Luas Sdn Bhd (No.2)[1988] 3 MLJ 352
4. Tan Ying Hong v Tan Sian San & Ors [2010] 2 CLJ 269.
5. Peco Arts Inc v Hazlitt Gallery Ltd [1983] 1 WLR 1315

A.        TAJUK KURSUS YANG DI TAWARKAN

1. PENGENALAN KEPADA KTN

2. SISTEM PERUNDANGAN MALAYSIA

3. KUASA MENANGKAP DAN MENAHAN MENGIKUT KTN DAN CPC

4. PROSEDUR TANGKAPAN DAN PENAHANAN

5. LAPORAN POLIS DAN FIR

6. PENGURUSAN BARANG KES

7. INTIPATI KESALAHAN MENGIKUT SEKSEN 425

8. INTIPATI KESAHAN MENGIKUT SEKSEN 426

9. PERAMPASAN DAN LUCUT HAK BARANG KES

10. KUASA MENYIASAT DAN KTN DAN CPC

11. KAEDAH MERAKAM PERCAKAPAN

12. MENGURUSKAN OKT DARI AWAL HINGGA AKHIR

13. PENYEDIAN KERTAS SIASATAN

14. PENYEDIAAN FAKTA KES DAN PERTUDUHAN

15.RUJUKAN KES KEPADA TPR

16. PENDAFTARAN KES DAN BORANG-BORANG MAHKAMAH

17. AKTA KETERANGAN 

18. TUGAS DAN PERANAN PEGAWAI PENDAKWA

19. TEKNIK BERHUJAH

20. PENGHUKUMAN.

21. OPERASI MEMUSNAH DAN PELAN KONTIGENSI.

22. PENCEROBOHAN TANAH MILIK DAN MENYELESAIANNYA

23. BONOS - PECEROBOHAN TANAH MILIK DAN PENYELESAIAN

                  PELAN A, PELAN B, PELAN C, PELAN D, PELAN E, PELAN F.

                  AFFIDAVIT DAN KES –KES DULUAN MAHKAMAH

A.    SASARAN PESERTA

1.      PENOLONG PEGAWAI TANAH

2.      PENOLONG PENTADBIR TANAH

3.      KETUA PENOLONG PENTADBIR TANAH

4.      PENTADBIR TANAH

5.      PEGAWAI PENYIASAT SPRM

6.      PEGAWAI PENYIASAT PDRM

7.      PELAJAR UNIVERSITI YANG BERKAITAN

8.      PERUNDING HARTA TANAH

9.      LAIN-LAIN PEGAWAI YANG DILANTIK DI BAWAH S. 12 KTN

10.  LAIN-LAIN YANG BERMINAT DAN PEMILIH TANAH YANG BERMASALAH.

B.    JANGKA MASA – HUJUNG MINGGU SABTU DAN AHAD/RUNDINGAN

C.   TEMPAT – TAIPING ATAU DITENTUKAN PEMOHON

D.   BAYARAN 1 HARI RM 1000.00.