“We, therefore, agree with the High Court Judge that, on the facts of this case, even if the instrument of transfer was forged, the respondent nevertheless obtained an indefeasible title to the said lands.”
FORMER Chief Justice Tun Mohd Eusoff Chin in 2000 in the Federal Court case of Adorna Properties Sdn Bhd v Boonsom Boonyanit. A certified copy of Thai national Boonsom Boonyanit‘s title to her land had been fraudulently obtained through an imposter’s forgery. The imposter then went on to sell the land to Adorna Properties.
The Federal Court ruled that the transfer to Adorna was valid, although Section 340(2)(b) of the National Land Code states that a land title can be annulled where “registration was obtained by forgery”. The Federal Court said Adorna’s land title, though obtained through forgery, was valid due to a proviso under Section 340(3). This judgement was heavily criticised. (Source: Adorna Properties Sdn Bhd v Boonsom Boonyanit , 1 MLJ 241)
“… having read the reasoning therein and bearing in mind the words used in the said subsection including the proviso we are not convinced that the interpretation given in the main judgement is patently wrong thereby resulting in grave injustice thus warranting successive application under Rule 137.”
Federal Court judge Datuk PS Gill in refusing to set aside Eusoff Chin’s decision on Adorna Properties upon Boonyanit’s son’s application to review the Federal Court ruling. Boonyanit was deceased by the time the Federal Court made its decision. (Source: Adorna Properties Sdn Bhd v Kobchai Sosothikul , 1 MLJ 417)
“Section 340(2) [of the National Land Code] says you have no title if you bought from a forger. That’s the end of it. But if A buys from a forger, and sells to B — an innocent [person] — sub-section (3) protects you. The second buyer (B) is protected.”
Retired senior lawyer Lim Kean Chye, criticising the Federal Court’s decision in the Boonsom Boonyanit case during the 14th Malaysian Law Conference in 2007. He said the case had made the Malaysian judiciary a laughing stock and destroyed its credibility among foreign investors in the protection of property owners’ rights.
Lim said “plain English” dictated that Adorna’s title should not have been protected and Boonyanit should have had her land returned to her. (Source: Ex-CJ Eusoff Chin gone but not forgotten, Malaysiakini, 29 Oct 2007)
“I am legally obligated to restate the law since the error committed in Adorna properties is so obvious and blatant. It is quite a well-known fact that some unscrupulous people have been taking advantage of this error by falsely transferring titles to themselves.
“I hope that with this decision, the land authorities will be extra cautious when registering land transfers.”
Chief Justice Tun Zaki Azmi, overturning the decade-old Adorna Properties v Boonsom Boonyanit judgement in another case involving the Pahang government. (Source: Federal Court overturns “blatant error”, The Malay Mail, 21 Jan 2010)
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