INTRODUCTORY NOTE

FROM BOONSOM BOONYANIT TO TAN YING HONG
20 HEART-RENDING YEARS TO JUSTICE

The story of Boonsom Boonyanit (‘Madam Boonyanit’) and Adorna Properties Sdn Bhd (‘Adorna’) is to say the least heart-rending. In a way both fell victim to a rogue vendor who, by sheer wit of pure fraud, managed to pose herself as Madam Boonyanit, hoodwink the solicitors and make Adorna part with RM1.8 million for the former’s property. And, as were the norm, the legal duel has to be fought between the registered proprietor and the purchaser, with one to emerge the loser. In this case, it was Madam Boonyanit who was to lose her property and succumb to the fraud. Adorna, on the other hand, escaped injury and went on to own the property, notwithstanding the taints of forgery and fraud. What made this end result painful, however, is not that it favoured one plaint over the other. The sorrow rather lies in the fact that the judgment of the apex court (Adorna Properties Sdn Bhd v. Boonsom Boonyanit [2001] 2 CLJ 133) (‘Adorna Properties’) that divested Madam Boonyanit of her property, seen by many then as unsustainable, was eventually ruled to be ‘obviously and blatantly erroneous’ (Tan Ying Hong v. Tan Sian San & Ors).

The story began in earnest in 1989 when Madam Boonyanit, then residing in Bangkok, Thailand, discovered that two pieces of her land in Penang had been fraudulently transacted on, and sold and transferred to Adorna. She entered a Registrar’s Caveat against the property, which Dzaiddin J affirmed in a judgment on
7 December 1989. Madam Boonyanit then took her plight before Vincent Ng J who, in 1995, upon the appraised facts and the law, ruled in favour of Adorna. It was the view of the judge, in so dismissing the claim, that Madam Boonyanit had failed to prove beyond reasonable doubt that forgery was committed on the memorandum of transfer, and further that the phrase "any purchaser" in s. 340(3) of the National Land Code, upon its proper construction, could only speak of an intention to grant immediate and not mere deferred indefeasibility to Adorna. Vincent Ng J’s decision was however set aside on appeal in 1997. The Court of Appeal, comprising of Gopal Sri Ram, Siti Norma Yaakob and Ahmad Fairuz JJCA, apart from faulting Vincent Ng J for applying the wrong standard on the proof for forgery, held that s. 340(3) NLC only granted Adorna mere deferred indefeasibility. Indefeasibility, according to the justices of appeal, was postponed until the time when a subsequent purchaser acquired the title in good faith and for valuable consideration from Adorna.

The reprieve for Madam Boonyanit however did not last. In December 2000, on further appeal, the Federal Court comprising of Eusoff Chin CJ, Wan Adnan Ismail CJM and Abu Mansor Ali FCJ again deliberated on the issue of whether Adorna had acquired an indefeasible title to the property under s. 340(3) NLC – and opined – that by virtue of the proviso thereto, Adorna was excluded from the application of the substantive provision of the sub-section, with the result that, notwithstanding that the instrument of transfer by which Adorna came to be registered as proprietor was forged, Adorna had nevertheless obtained an indefeasible title. Adorna Properties thus sealed Madam Boonyanit’s fate. Needless to say, she lost her land for good.

There is merit in saying that the brunt and effect of Adorna Properties resonated far and wide. The changed landscape of land dealings apart, many registered owners of land who had become victims to land fraudsters or unscrupulous purchasers, and lost their property in the process for no fault of theirs, suddenly found the law to be totally bereft of remedies. And for the lawyers who happened to represent these proprietors, the period post Adorna Properties was a difficult period indeed. Argue as they might, they could only watch as their cases crumble at the foot of Adorna Properties. From within the legal and academic fraternities too, many disagreed with Adorna Properties and clamoured for the apex court to revisit that decision. Viewed from this circumstance, the pronouncement of the Federal Court in the just concluded case of Tan Ying Hong v. Tan Sian San & Ors could not have come at a more opportune time.

In a nutshell, the Federal Court in Tan Ying Hong (Zaki Tun Azmi CJ, Alauddin Mohd Sheriff PCA, Arifin Zakaria CJM, Zulkefli Makinudin and James Foong FCJJ) very emphatically ruled that Adorna Properties was no longer good law. With that we are in total accord. We would add that the judgment, for finally clearing off the controversies plaguing Adorna Properties, must rank as one of the most acclaimed to have been delivered from the bench of the Federal Court in this decade.

This Special Edition issue by the MCLJ, whose raison d’etre is reflected in the above narration, seeks to chronicle together the judgments of the relevant judges who had penned their thoughts on s. 340 NLC, and by necessary extension on Adorna Properties. We trust that our readers will find the compilation insightful, not least in understanding the true scope, parameters and applicability of the section, in particular subsections (2) and (3) thereof.

Thank You

Wan Sharif bin Wan Ahmad
Editorial Director