PARAMILL SDN BHD & TAN SRI DATUK WEE BOON PING vs DATUK JOSEPH PAIRIN KITINGAN (MJLR2009 b17),25/8/2009,SS-LAND LAW
[K22-160-1998]
1
5 MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK
AT KOTA KINABALU
SUIT NO. K22-160 OF 1998
BETWEEN
10
PARAMILL SDN BHD .. 1ST PLAINTIFF
TAN SRI DATUK WEE BOON PING .. 2ND PLAINTIFF
AND
15 DATUK JOSEPH PAIRIN KITINGAN .. DEFENDANT
GROUNDS OF DECISION
The brief factual background to this action is as follows. In 1976,
Datuk Harris Mohd Salleh (Datuk Harris Salleh) the then Chief
20 Minister of Sabah proposed a scheme to purchase a parcel of land
measuring about 53.70 acres under subdivided title CL015376986.
The scheme was to enable “the notables and associates” of Parti
Berjaya of which Datuk Harris Salleh was the leader to build their
houses in Kota Kinabalu. In November 1976 the land was bought for
25 RM1,500,000.00 which purchase was financed by a short term bank
loan secured by a joint undertaking to repay by the selected
prospective participants of the scheme.
The land was registered in the joint names of the 40 persons
including Datuk Harris Salleh, the defendant Datuk Joseph Pairin
[K22-160-1998]
2
Kitingan (as he then was) and the 2nd plaintiff, 30 the late Tan Sri
Datuk Wee Boon Ping (Tan Sri Wee) with each (except Datuk Harris
Salleh) holding 1/44 undivided share with a view to its subdivision
and intra-structural development and for individual titles to be
subsequently issued to the respective owners upon payment of their
35 proportionate land development costs to the law firm of Messrs
Jayasuria Kah & Co. (Jayasuria Kah) who was appointed to manage
the scheme and collect all payments.
The plaintiffs contend that the defendant opted out of the scheme
when he refused or neglected to pay the land and development
40 costs. The defendant’s share (later earmarked as Lot A7) was then
reallotted to Tan Sri Wee (in addition to his allotted share of Lot A8)
who had duly paid all the costs for both Lots A7 and A8. The
disputed land is Lot A7.
Upon subdivision the land was described as Lot 27 and registered in
45 March 1985 in the defendant’s name (he being one of the original
co-owners named in the Master Title) but the document of title was
given by Jayasuria Kah to Tan Sri Wee as he was the one who
actually paid for the land and the development costs.
Subsequently, with the assistance of Jayasuria Kah, Tan Sri Wee
50 sought to get the defendant to execute a memorandum of transfer of
Lot A7 to him or his nominee but failed. Hence this action for the
following reliefs:
1. A declaration that the defendant holds the Lot A7
[CL.015430136] as Trustee for the plaintiffs;
[K22-160-1998]
3
2. An order that the defendant do forthwith execute 55 a registrable
memorandum of transfer of the said Lot A7 and deliver the
same together with the new document of title to the plaintiffs’
solicitors and cause the same to be registered in favour of the
plaintiffs.
60 The trial commenced before Justice Ian H.C. Chin on 28 February
2005 and the following were the agreed issues to be tried:
1. Whether the purchase price and the development cost for the
said land were paid by Tan Sri Wee or by Parti Berjaya for the
defendant (First Issue).
65 2. If the answer to the First Issue is that Tan Sri Wee paid for the
purchase price and the development cost, whether Tan Sri
Wee’s and thereby Paramill’s claims for the said land are
contrary to and thereby invalidated by section 88 of the Land
Ordinance (Sabah Cap. 68) (Second Issue).
70 3. If the answer to the Second Issue is that Tan Sri Wee’s and
Paramill’s claims are not contrary to and thereby not
invalidated by section 88 of the Land Ordinance, Tan Sri
Wee’s claim is barred by section 3 and/or section 26 of the
Limitation Ordinance 1952 and therefore Paramill’s claim.
75 At the conclusion of the trial the learned Judge decided the First
Issue in favour of the defendant after finding that the plaintiffs failed
to prove that Tan Sri Wee had paid for the disputed land. In view of
his finding on the First Issue the learned Judge did not deal with the
remaining two issues. On appeal to the Court of Appeal the High
[K22-160-1998]
4
Court’s judgment was reversed and the First Issue 80 was decided in
favour of the plaintiffs. The Court of Appeal was satisfied that there
was sufficient evidence to establish on the balance of probability
that Tan Sri Wee had paid for the land and the development costs
for the disputed land.
85 The case was then remitted back to the High Court to decide on the
Second and Third Issues. The case is before me now as Justice Ian
H.C. Chin had since left the Judiciary. Since these are the only two
issues that I am called upon to decide, I shall disregard all other
issues raised by learned counsel for the defendant in his written
90 submissions. In any event they are in my view irrelevant in so far as
the Second and Third Issues are concerned.
Second Issue:
Whether the 2nd plaintiff’s and thereby the 1st plaintiff’s claims for the
said land are contrary to and thereby invalidated by section 88 of the
95 Sabah Land Ordinance (Cap68) (the Land Ordinance).
To begin with there can be no dispute, now that the Court of Appeal
had decided in favour of the plaintiffs in respect of the First Issue,
that the land and development costs for the land had been paid by
Tan Sri Wee. It is the plaintiffs’ contention that the defendant was
100 and still is holding the disputed land in trust for Tan Sri Wee and that
as such his (Tan Sri Wee’s) equitable and beneficial interest in the
disputed land are not affected by section 88 of the Land Ordinance
although not registered thereunder. Section 88 of the Land
Ordinance provides as follows:
[K22-160-1998]
5
“88. No new title and no dealing with, claim to or interest in any 105 land except land
still held under native customary tenure without documentary title shall be valid
until it has been registered in accordance with the provisions of this Part.”
The question is whether this provision prohibits the creation of an
equitable interest or right in land. There are several decided cases
110 on this point, some by the highest courts in Malaysia. In Lin Nyuk
Chan v Wong Sz Tsin [1964] 30 MLJ 200 the former Federal Court
had to consider whether a lease which was not registered pursuant
to section 88 of the Land Ordinance was valid. The Court held that it
was valid and enforceable and that section 88 does not affect
115 contracts or agreements that are otherwise valid and enforceable.
The Federal Court also held as follows:
(1) The unregistered instrument itself may give title in equity and
an equitable right to enforce the agreement which must have
existed when the instrument was executed;
120 (2) In view of section 88 it was imperative that the court made an
order of specific performance including an order that the
respondent in that appeal executed a registrable
memorandum of sublease.
The decision in Lin Nyuk Chan was followed by the Federal Court in
125 Borneo Housing Finance Bhd v Time Engineering Bhd [1996] 2 MLJ
12. These two Federal Court decisions had been applied by the
Court of Appeal in Wangsa Timber Industries Sdn Bhd v Adulfast
Anthony Robert [2001] 4 CLJ 498 and in Besharapan Sdn Bhd v
Agroco Plantation Sdn Bhd [2007] 1 MLJ 101.
[K22-160-1998]
6
Learned counsel for the defendant however argued 130 that the decision
in Lin Nyuk Chan has no application to the present case as, unlike
Lin Nyuk Chan there is no valid contract or agreement between Tan
Sri Wee and the defendant. In my view learned counsel’s attempt to
distinguish Lin Nyuk Chan and the present case is misconceived.
135 Clearly the principle laid down in Lin Nyuk Chan covers any
equitable or beneficial interest.
Section 88 of the Land Ordinance does not make the distinction
advocated by learned counsel for the defendant. Specifically it does
not say that it has no application to unregistered equitable right
140 arising out of a contract. With due respect to learned counsel he is
importing words into section 88 which are not there. In fact the
Federal Court in Lin Nyuk Chan made it clear that an interest arising
out of an unregistered document is not affected by section 88 of the
Land Ordinance.
145 It is important to note that the defendant was and still is unwilling to
transfer the disputed land to Tan Sri Wee. How then could Tan Sri
Wee register his equitable and beneficial interest in the land? The
defendant is obviously taking advantage of his own wrong by
refusing to transfer the land to Tan Sri Wee. In this regard I agree
150 with learned counsel for the plaintiffs that this amounts to the
defendant using the statute as an engine of fraud, which the court
must not condone. The defendant did not pay for the land and now
refuses to transfer the land to the person who paid for it. Clearly the
defendant’s conduct is unconscionable and unmeritorious.
[K22-160-1998]
7
It is trite principle that ‘equity will not permit statute 155 to be used as an
engine of fraud’. The Court of Appeal in Sin Siew Hong v Lim Gin
Chian [1995] 3 MLJ 141 invoked the doctrine by barring the
defendant in that case from raising and relying on the Limitation Act
1953. I should quote the Court of Appeal in extenso:
160 “Another way of stating the doctrine when applying it to written law is comprised
in the maxim ‘equity will not permit statute to be used as an engine of fraud.’ It
is a doctrine of wide operation. Its content was explained by Mohamed Azmi
SCJ in Rasiah Munusamy v Lim Tan & Sons Sdn Bhd [1985] 2 MLJ 291 at p
296 in the following words:
165 It is not a fraud in the common law sense, but an unmeritorious and
unconscionable conduct which is known as constructive or equitable fraud (see
Spry on Equitable Remedies (2nd Ed) at p 236.
The doctrine, when invoked, has the effect of precluding a litigant who is guilty
of unconscionable or unmeritorious conduct from relying upon a statutory
170 provision that would defeat his opponent’s case. An application of the doctrine
requires a meticulous examination of the facts and circumstances of the
particular case to determine whether there has been any inequitable conduct.
The doctrine has been applied to several statutes, including those governing
contracts, wills, trusts and assignments. The categories of statutes to which the
175 doctrine may be applied are not closed and I am certainly unable to find any
serious impediment in applying it to bar a litigant from raising and relying upon
the provisions of the Limitation Act 1953.”
In this case it is obvious that what the defendant is trying to do is
defeat the plaintiffs’ claim by taking advantage of his own wrong. He
180 must not be allowed to do that. The answer to the Second Issue is
therefore in the negative.
[K22-160-1998]
8
Third Issue
If the answer to the Second Issue is that Tan Sri Wee and Paramill’s
claims are not contrary to and thereby not invalidated by section 88
of the Land Ordinance, whether Tan Sri Wee’s 185 claim is barred by
section 3 and/or section 26 of the Limitation Ordinance 1952 and
therefore Paramill’s claim.
The defendant’s contention is that the plaintiffs’ claim is statute
barred as the writ was only issued on 30.6.1998, after a lapse of 20
190 years. The question is not whether the writ was issued late but
whether the claim is statute barred. Section 9 of the Limitation
Ordinance provides:
“9. Notwithstanding anything hereinbefore contained no suit against a person in
whom property has become vested in trust for any specific purpose, or against
195 his legal representatives or assigns, not being assigns for valuable
consideration, for the purpose of following in his or their hands such property,
shall be barred by the length of time.”
In the present case the first time Tan Sri Wee was put to notice of
the defendant’s denial that he held the land in trust for him was in
200 January 1998. This is evidenced by the following agreed fact:
“The defendant’s solicitors by their letter dated 9 January 1998 in reply to
Messrs Colin Lau & Co’s letter dated 16 December 1997 to the defendant as
solicitors for Tan Sri, informed for the first time that the defendant as far as he
could recall, had fully paid the purchase price of the said land and therefore
205 denied that he held the said land on trust for Tan Sri Wee. Messrs Colin Lau &
Co, by their letter dated 13 April 1998, on behalf of Tan Sri Wee denied the
same.”
[K22-160-1998]
9
Tan Sri Wee commenced this action in June 1998. There is no basis
therefore for the defendant to argue that the plaintiffs’ claim is time
barred. On the contrary it is the defence of limitation 210 itself that is
barred by section 9 of the Limitation Ordinance. Further, the
defendant as a constructive trustee cannot plead limitation as a
defence: Khor v Haji Yasin [1976] 2 MLJ 70 FC.
Article 97 of the First Schedule to the Limitation Ordinance also
215 favours the plaintiffs. The Article provides that where no period of
limitation is provided elsewhere in the schedule, the period of
limitation is 6 years from the date the right to sue accrues. Article 97
is similarly worded to Article 113 of the Indian Limitation Act 1963
(the Indian Act) except that the Indian Act provides for only 3 years.
220 In their comments on Article 113 of the Indian Act the learned
authors of Sanjiva Row’s The Limitation Act 1963 (8th Ed) said at
page 831:
“Limitation begins to run as soon as the defendant definitely challenges the
plaintiff’s title to the property and casts a cloud of doubt over his title.”
225 In MT Bolo v MT Koklan [1930] AIR 270 the Privy Council held that
there can be no right to sue until there is accrual of the right
asserted in the suit and its infringement or at least a clear and
unequivocal threat to infringe that right by the defendant against
whom the suit is instituted. This decision was followed by the
230 Federal Court in Tan Swee Lan v Engku Nik Binti Engku Muda
[1973] 2 MLJ 187 where it was held that the period of limitation ran
from the date the respondents threatened to infringe the appellant’s
right by saying that they refused to effect transfer of the land.
[K22-160-1998]
10
In the present case the right to sue only accrued on 9 January 1998,
the date the defendant wrote and claimed that 235 as far as he could
recall he had fully paid for the purchase price of the disputed land
and denied that he was holding the land in trust for Tan Sri Wee. As
we now know the defendant’s claim that he had fully paid for the
disputed land has been found to be untrue by the Court of Appeal.
240 For the above reasons the answer to the Third Issue must also be in
the negative. In the circumstances I entered judgment against the
defendant in terms of the Amended Statement of Claim and ordered
that the registrable memorandum of transfer be executed and
delivered to the plaintiffs through their solicitors within 7 days from
245 the date of judgment and for the defendant to apply for a fresh title
deed to replace the original title that has been misplaced, also 7
days from the date of judgment failing which the Deputy Registrar
shall be authorized to sign the memorandum of transfer and to apply
for the fresh title on behalf of the defendant.
250
(DATO’ ABDUL RAHMAN SEBLI)
Judicial Commissioner
255 High Court Kota Kinabalu.
Dated: 25 August 2009.
[K22-160-1998]
11
For the Plaintiffs: Colin Lau of Messrs Colin Lau & Co.
For the Defendant: Yunuf Maringking of 260 Messrs Maringking
& Co.
1
5 MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK
AT KOTA KINABALU
SUIT NO. K22-160 OF 1998
BETWEEN
10
PARAMILL SDN BHD .. 1ST PLAINTIFF
TAN SRI DATUK WEE BOON PING .. 2ND PLAINTIFF
AND
15 DATUK JOSEPH PAIRIN KITINGAN .. DEFENDANT
GROUNDS OF DECISION
The brief factual background to this action is as follows. In 1976,
Datuk Harris Mohd Salleh (Datuk Harris Salleh) the then Chief
20 Minister of Sabah proposed a scheme to purchase a parcel of land
measuring about 53.70 acres under subdivided title CL015376986.
The scheme was to enable “the notables and associates” of Parti
Berjaya of which Datuk Harris Salleh was the leader to build their
houses in Kota Kinabalu. In November 1976 the land was bought for
25 RM1,500,000.00 which purchase was financed by a short term bank
loan secured by a joint undertaking to repay by the selected
prospective participants of the scheme.
The land was registered in the joint names of the 40 persons
including Datuk Harris Salleh, the defendant Datuk Joseph Pairin
[K22-160-1998]
2
Kitingan (as he then was) and the 2nd plaintiff, 30 the late Tan Sri
Datuk Wee Boon Ping (Tan Sri Wee) with each (except Datuk Harris
Salleh) holding 1/44 undivided share with a view to its subdivision
and intra-structural development and for individual titles to be
subsequently issued to the respective owners upon payment of their
35 proportionate land development costs to the law firm of Messrs
Jayasuria Kah & Co. (Jayasuria Kah) who was appointed to manage
the scheme and collect all payments.
The plaintiffs contend that the defendant opted out of the scheme
when he refused or neglected to pay the land and development
40 costs. The defendant’s share (later earmarked as Lot A7) was then
reallotted to Tan Sri Wee (in addition to his allotted share of Lot A8)
who had duly paid all the costs for both Lots A7 and A8. The
disputed land is Lot A7.
Upon subdivision the land was described as Lot 27 and registered in
45 March 1985 in the defendant’s name (he being one of the original
co-owners named in the Master Title) but the document of title was
given by Jayasuria Kah to Tan Sri Wee as he was the one who
actually paid for the land and the development costs.
Subsequently, with the assistance of Jayasuria Kah, Tan Sri Wee
50 sought to get the defendant to execute a memorandum of transfer of
Lot A7 to him or his nominee but failed. Hence this action for the
following reliefs:
1. A declaration that the defendant holds the Lot A7
[CL.015430136] as Trustee for the plaintiffs;
[K22-160-1998]
3
2. An order that the defendant do forthwith execute 55 a registrable
memorandum of transfer of the said Lot A7 and deliver the
same together with the new document of title to the plaintiffs’
solicitors and cause the same to be registered in favour of the
plaintiffs.
60 The trial commenced before Justice Ian H.C. Chin on 28 February
2005 and the following were the agreed issues to be tried:
1. Whether the purchase price and the development cost for the
said land were paid by Tan Sri Wee or by Parti Berjaya for the
defendant (First Issue).
65 2. If the answer to the First Issue is that Tan Sri Wee paid for the
purchase price and the development cost, whether Tan Sri
Wee’s and thereby Paramill’s claims for the said land are
contrary to and thereby invalidated by section 88 of the Land
Ordinance (Sabah Cap. 68) (Second Issue).
70 3. If the answer to the Second Issue is that Tan Sri Wee’s and
Paramill’s claims are not contrary to and thereby not
invalidated by section 88 of the Land Ordinance, Tan Sri
Wee’s claim is barred by section 3 and/or section 26 of the
Limitation Ordinance 1952 and therefore Paramill’s claim.
75 At the conclusion of the trial the learned Judge decided the First
Issue in favour of the defendant after finding that the plaintiffs failed
to prove that Tan Sri Wee had paid for the disputed land. In view of
his finding on the First Issue the learned Judge did not deal with the
remaining two issues. On appeal to the Court of Appeal the High
[K22-160-1998]
4
Court’s judgment was reversed and the First Issue 80 was decided in
favour of the plaintiffs. The Court of Appeal was satisfied that there
was sufficient evidence to establish on the balance of probability
that Tan Sri Wee had paid for the land and the development costs
for the disputed land.
85 The case was then remitted back to the High Court to decide on the
Second and Third Issues. The case is before me now as Justice Ian
H.C. Chin had since left the Judiciary. Since these are the only two
issues that I am called upon to decide, I shall disregard all other
issues raised by learned counsel for the defendant in his written
90 submissions. In any event they are in my view irrelevant in so far as
the Second and Third Issues are concerned.
Second Issue:
Whether the 2nd plaintiff’s and thereby the 1st plaintiff’s claims for the
said land are contrary to and thereby invalidated by section 88 of the
95 Sabah Land Ordinance (Cap68) (the Land Ordinance).
To begin with there can be no dispute, now that the Court of Appeal
had decided in favour of the plaintiffs in respect of the First Issue,
that the land and development costs for the land had been paid by
Tan Sri Wee. It is the plaintiffs’ contention that the defendant was
100 and still is holding the disputed land in trust for Tan Sri Wee and that
as such his (Tan Sri Wee’s) equitable and beneficial interest in the
disputed land are not affected by section 88 of the Land Ordinance
although not registered thereunder. Section 88 of the Land
Ordinance provides as follows:
[K22-160-1998]
5
“88. No new title and no dealing with, claim to or interest in any 105 land except land
still held under native customary tenure without documentary title shall be valid
until it has been registered in accordance with the provisions of this Part.”
The question is whether this provision prohibits the creation of an
equitable interest or right in land. There are several decided cases
110 on this point, some by the highest courts in Malaysia. In Lin Nyuk
Chan v Wong Sz Tsin [1964] 30 MLJ 200 the former Federal Court
had to consider whether a lease which was not registered pursuant
to section 88 of the Land Ordinance was valid. The Court held that it
was valid and enforceable and that section 88 does not affect
115 contracts or agreements that are otherwise valid and enforceable.
The Federal Court also held as follows:
(1) The unregistered instrument itself may give title in equity and
an equitable right to enforce the agreement which must have
existed when the instrument was executed;
120 (2) In view of section 88 it was imperative that the court made an
order of specific performance including an order that the
respondent in that appeal executed a registrable
memorandum of sublease.
The decision in Lin Nyuk Chan was followed by the Federal Court in
125 Borneo Housing Finance Bhd v Time Engineering Bhd [1996] 2 MLJ
12. These two Federal Court decisions had been applied by the
Court of Appeal in Wangsa Timber Industries Sdn Bhd v Adulfast
Anthony Robert [2001] 4 CLJ 498 and in Besharapan Sdn Bhd v
Agroco Plantation Sdn Bhd [2007] 1 MLJ 101.
[K22-160-1998]
6
Learned counsel for the defendant however argued 130 that the decision
in Lin Nyuk Chan has no application to the present case as, unlike
Lin Nyuk Chan there is no valid contract or agreement between Tan
Sri Wee and the defendant. In my view learned counsel’s attempt to
distinguish Lin Nyuk Chan and the present case is misconceived.
135 Clearly the principle laid down in Lin Nyuk Chan covers any
equitable or beneficial interest.
Section 88 of the Land Ordinance does not make the distinction
advocated by learned counsel for the defendant. Specifically it does
not say that it has no application to unregistered equitable right
140 arising out of a contract. With due respect to learned counsel he is
importing words into section 88 which are not there. In fact the
Federal Court in Lin Nyuk Chan made it clear that an interest arising
out of an unregistered document is not affected by section 88 of the
Land Ordinance.
145 It is important to note that the defendant was and still is unwilling to
transfer the disputed land to Tan Sri Wee. How then could Tan Sri
Wee register his equitable and beneficial interest in the land? The
defendant is obviously taking advantage of his own wrong by
refusing to transfer the land to Tan Sri Wee. In this regard I agree
150 with learned counsel for the plaintiffs that this amounts to the
defendant using the statute as an engine of fraud, which the court
must not condone. The defendant did not pay for the land and now
refuses to transfer the land to the person who paid for it. Clearly the
defendant’s conduct is unconscionable and unmeritorious.
[K22-160-1998]
7
It is trite principle that ‘equity will not permit statute 155 to be used as an
engine of fraud’. The Court of Appeal in Sin Siew Hong v Lim Gin
Chian [1995] 3 MLJ 141 invoked the doctrine by barring the
defendant in that case from raising and relying on the Limitation Act
1953. I should quote the Court of Appeal in extenso:
160 “Another way of stating the doctrine when applying it to written law is comprised
in the maxim ‘equity will not permit statute to be used as an engine of fraud.’ It
is a doctrine of wide operation. Its content was explained by Mohamed Azmi
SCJ in Rasiah Munusamy v Lim Tan & Sons Sdn Bhd [1985] 2 MLJ 291 at p
296 in the following words:
165 It is not a fraud in the common law sense, but an unmeritorious and
unconscionable conduct which is known as constructive or equitable fraud (see
Spry on Equitable Remedies (2nd Ed) at p 236.
The doctrine, when invoked, has the effect of precluding a litigant who is guilty
of unconscionable or unmeritorious conduct from relying upon a statutory
170 provision that would defeat his opponent’s case. An application of the doctrine
requires a meticulous examination of the facts and circumstances of the
particular case to determine whether there has been any inequitable conduct.
The doctrine has been applied to several statutes, including those governing
contracts, wills, trusts and assignments. The categories of statutes to which the
175 doctrine may be applied are not closed and I am certainly unable to find any
serious impediment in applying it to bar a litigant from raising and relying upon
the provisions of the Limitation Act 1953.”
In this case it is obvious that what the defendant is trying to do is
defeat the plaintiffs’ claim by taking advantage of his own wrong. He
180 must not be allowed to do that. The answer to the Second Issue is
therefore in the negative.
[K22-160-1998]
8
Third Issue
If the answer to the Second Issue is that Tan Sri Wee and Paramill’s
claims are not contrary to and thereby not invalidated by section 88
of the Land Ordinance, whether Tan Sri Wee’s 185 claim is barred by
section 3 and/or section 26 of the Limitation Ordinance 1952 and
therefore Paramill’s claim.
The defendant’s contention is that the plaintiffs’ claim is statute
barred as the writ was only issued on 30.6.1998, after a lapse of 20
190 years. The question is not whether the writ was issued late but
whether the claim is statute barred. Section 9 of the Limitation
Ordinance provides:
“9. Notwithstanding anything hereinbefore contained no suit against a person in
whom property has become vested in trust for any specific purpose, or against
195 his legal representatives or assigns, not being assigns for valuable
consideration, for the purpose of following in his or their hands such property,
shall be barred by the length of time.”
In the present case the first time Tan Sri Wee was put to notice of
the defendant’s denial that he held the land in trust for him was in
200 January 1998. This is evidenced by the following agreed fact:
“The defendant’s solicitors by their letter dated 9 January 1998 in reply to
Messrs Colin Lau & Co’s letter dated 16 December 1997 to the defendant as
solicitors for Tan Sri, informed for the first time that the defendant as far as he
could recall, had fully paid the purchase price of the said land and therefore
205 denied that he held the said land on trust for Tan Sri Wee. Messrs Colin Lau &
Co, by their letter dated 13 April 1998, on behalf of Tan Sri Wee denied the
same.”
[K22-160-1998]
9
Tan Sri Wee commenced this action in June 1998. There is no basis
therefore for the defendant to argue that the plaintiffs’ claim is time
barred. On the contrary it is the defence of limitation 210 itself that is
barred by section 9 of the Limitation Ordinance. Further, the
defendant as a constructive trustee cannot plead limitation as a
defence: Khor v Haji Yasin [1976] 2 MLJ 70 FC.
Article 97 of the First Schedule to the Limitation Ordinance also
215 favours the plaintiffs. The Article provides that where no period of
limitation is provided elsewhere in the schedule, the period of
limitation is 6 years from the date the right to sue accrues. Article 97
is similarly worded to Article 113 of the Indian Limitation Act 1963
(the Indian Act) except that the Indian Act provides for only 3 years.
220 In their comments on Article 113 of the Indian Act the learned
authors of Sanjiva Row’s The Limitation Act 1963 (8th Ed) said at
page 831:
“Limitation begins to run as soon as the defendant definitely challenges the
plaintiff’s title to the property and casts a cloud of doubt over his title.”
225 In MT Bolo v MT Koklan [1930] AIR 270 the Privy Council held that
there can be no right to sue until there is accrual of the right
asserted in the suit and its infringement or at least a clear and
unequivocal threat to infringe that right by the defendant against
whom the suit is instituted. This decision was followed by the
230 Federal Court in Tan Swee Lan v Engku Nik Binti Engku Muda
[1973] 2 MLJ 187 where it was held that the period of limitation ran
from the date the respondents threatened to infringe the appellant’s
right by saying that they refused to effect transfer of the land.
[K22-160-1998]
10
In the present case the right to sue only accrued on 9 January 1998,
the date the defendant wrote and claimed that 235 as far as he could
recall he had fully paid for the purchase price of the disputed land
and denied that he was holding the land in trust for Tan Sri Wee. As
we now know the defendant’s claim that he had fully paid for the
disputed land has been found to be untrue by the Court of Appeal.
240 For the above reasons the answer to the Third Issue must also be in
the negative. In the circumstances I entered judgment against the
defendant in terms of the Amended Statement of Claim and ordered
that the registrable memorandum of transfer be executed and
delivered to the plaintiffs through their solicitors within 7 days from
245 the date of judgment and for the defendant to apply for a fresh title
deed to replace the original title that has been misplaced, also 7
days from the date of judgment failing which the Deputy Registrar
shall be authorized to sign the memorandum of transfer and to apply
for the fresh title on behalf of the defendant.
250
(DATO’ ABDUL RAHMAN SEBLI)
Judicial Commissioner
255 High Court Kota Kinabalu.
Dated: 25 August 2009.
[K22-160-1998]
11
For the Plaintiffs: Colin Lau of Messrs Colin Lau & Co.
For the Defendant: Yunuf Maringking of 260 Messrs Maringking
& Co.
