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 ©New Sunday Times (Used by permission)
by David Yeow
• Hopes rise with verdict
KUALA LUMPUR: The Bar Council has applauded Court of Appeal judge Datuk Gopal Sri Ram’s declaration that a Federal Court ruling in a case where a landowner lost his property to a forger is wrong. He was referring to the Federal Court’s 2001 decision in Adorna Properties Sdn Bhd v Boonsom Boonyanit favouring the bona fide purchaser of land whose ownership had been forged.
Last Friday, the Court of Appeal judge, while deciding on a case similar to that of Adorna, said the principle set out in that case should not be followed as it was contrary to the National Land Code.
The Federal Court decision has long been criticised by the legal fraternity for undermining the integrity of land titles and leaving the original owners without any means to recover their land.
However, the chairman of the Bar Council Conveyancing Practice Committee, Roger Tan, said Sri Ram’s statement was but just a drop in the ocean. "No matter how loud the Court of Appeal can shout, the local courts are still bound by the doctrine of judicial precedent or stare decisis," he said.
This means that lower courts must follow the decisions of the courts which are superior to them in the legal hierarchy.
"That is why the Bar Council believes that a reform of the National Land Code is the only solution that will put a stop to fraudulent land transfers,"
But others like MCA Public Services and Complaints Department’s chief legal adviser, Datuk Theng Bok, see optimism in Sri Ram’s statement.
"Previously, only lawyers talked about it being a wrong ruling. Now we have support from within the system,"
Theng hopes the ruling will be overturned soon.
"Currently, there are syndicates who are capitalising on the loophole set by the 2001 decision," he said.
"They are conspiring with supposedly ‘innocent’ buyers to use the law to obtain unlawful gains."
He said the government should introduce insurance schemes that would protect land buyers from fraudulent land transfers.
But others like P.K. Nathan, a lawyer who represented the late Mrs Boonyanit’s personal representatives to apply for a review of the 2001 decision, believes that the onus to prevent fraud should be on lawyers who handle the transactions.
"Official searches at the land office should be made by the lawyer to ascertain if any duplicates were issued.
"If a duplicate has been made, the lawyer should question the land office," said Nathan.
He also believes that lawyers should be more vigilant, especially towards first-time clients.
Hopes rise with verdict
KUALA LUMPUR: Gary (not his real name) was at home on an oil palm estate when a stranger showed up and claimed he was the new owner of the property. Since that day three years ago, Gary has been locked in a legal tussle over the ownership of the 3.72 hectare estate in Perlis.
"The buyer insisted that he had legally purchased the land from me and showed bank statements and the sale and purchase agreements.
"He even had a photocopy of my identity card but it carried a different picture," Gary said, adding that he sought help from the MCA and lodged a police report.
He also approached the land office with the original land deed and it was verified to be genuine. "The buyer also went to the land office with his own ‘deed’ and it turned out to be a forgery and they confiscated it. He started accusing me of trying to swindle him."
Gary said an investigation showed that a bank account was opened using his forged identity card and that the money deposited into the account by the buyer of the land was withdrawn the following day.
"The case is now pending in court and with the Court of Appeal ruling, I hope it will bring an end to this unnecessary problem and let me carry on with my life," he said.
The appellate court ruled on Friday in favour of two brothers who had lost their land to forgers, and declared that a Federal Court ruling on a similar case six years ago was wrong.
Mary (not her real name) was also put in a similar situation in February when she found out that someone had mortgaged her house in Puchong using a forged identity card, bearing her personal particulars but having the photograph of someone else.
"I went to see (Datuk) Theng Bok (MCA Public Services and Complaints Department’s chief legal adviser) and also lodged a police report. As a result, I managed to get the bank to freeze the transaction."
She said the investigating officer told her that the investigations were ongoing.
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Circular No 115/2013: Seminar on Enforcement of Judgment (4 June 2013)
Classically, the Bar Council viewpoint posed above appears to be in stark contrast with that posed by an academic whose viewpoint I have commented upon earlier. Do note that people, especially those with property, will tend to support the Bar Council position.
Herein lies the contradiction that is not hard to explain.
The reasons may be found in my earlier post which I append below:
LAW SERVES PEOPLE, NOT PEOPLE SERVING LAW
Written by Stephen Tan Ban Cheng on 15 July, 2007 at 14:03 PM
My dear Prof. Shad Saleem
The law is for the living and not for the dead. Society, any society, is a living social mechanism.
The Doctrine of Stare Decisis, a feature unique in English common law, is not so sacred that it cannot be used to serve the living, especially when the lawyers and Judges concerned can distinguish a case so that that case is not on all fours with the precedent set or cited.
The ability to "distinguish" separates the good lawyer from the bad one.
From the standpoint of academia, the people appear to be made to serve the law.
From the standpoint of legal practice, the law must be made to serve the people.
I know we can talk till the cows come home and still disagree, but surely the doctrine cannot be used as a shield to perpetuate injustice but as a sword to secure the justice of any case before any self-respecting Court. The fact patterns of each case, ALMOST ALWAYS, are different - as in the instant case before the Court of Appeal.
Stephen Tan Ban Cheng