Waseem Yaqoob Sheikh Muhammad Yaqoob

[2018] MLRHU 1601 v. Wan Muhammad Irywan Wan Mohamad Sahini & Ors pg 1

WASEEM YAQOOB SHEIKH MUHAMMAD YAQOOB

v.
WAN MUHAMMAD IRYWAN WAN MOHAMAD SAHINI &
ORS

High Court Malaya, Shah Alam

Tun Abd Majid Tun Hamzah JC
[Writ of Summons No: 21M-1-03/2015]
28 December 2018

Case(s) referred to:

Aik Ming (M) Sdn Bhd & Ors v. Chang Ching Chuen & Ors & Anor Appeal
[1995] 1 MLRA 546; [1995] 2 MLJ 770; [1995] 3 CLJ 639; [1995] 3 AMR 2375
(refd)
Au Meng Nam & Anor v. Ung Yak Chew & Ors [2007] 1 MLRA 657; [2007] 5
MLJ 136; [2007] 4 CLJ 526 (refd)
Baharuddin Ali & Co v. BPMB Urus Harta Sdn Bhd & Anor [2000] 1 MLRH 803;
[2000] 4 CLJ 693 (refd)
Kamarulzaman Omar & Ors v. Yakub Husin & Ors [2014] 2 MLRA 432; [2014] 2
MLJ 768; [2014] 1 CLJ 987; [2014] 1 AMR 493 (refd)
Letchumanan Chettiar Alagappan @ L Allagappan & Anor v. Secure Plantation
Sdn Bhd [2017] 3 MLRA 501; [2017] 4 MLJ 697; [2017] 5 CLJ 418 (refd)

Legislation referred to:

National Land Code 1965, ss 22, 340(3)(b)

Counsel:
For the plaintiff: Jasbeer Singh (Revathy Kamalanathan with him); M/s Jasbeer,
Nur & Lee
For the 2nd defendant: Hassanudin Puteh; M/s Hassanudin & Pritam
For the 4th & 5th defendants: Ismail Baharom; Kamar Penasihat Undang-Undang

[Plaintiff's claim and prayers 18 (a), (b), (c) and (d) allowed with costs.]

Case Progression:
High Court: [2016] MLRHU 1583

JUDGMENT

Tun Abd Majid Tun Hamzah JC:

Introduction

[1] The Plaintiff is a Pakistan national and resides in Lahore, Pakistan had
purchased a property namely GRN 222293 Lot 21742 Mukim Bandar Country
Heights, Daerah Ulu Langat, Negeri Selangor bearing the address No 22,
Jalan Senyum Matahari, Country Heights, 43000 Kajang, Selangor ("the
 Waseem Yaqoob Sheikh Muhammad Yaqoob
pg 2 v. Wan Muhammad Irywan Wan Mohamad Sahini & Ors [2018] MLRHU 1601

property"). The 1st Defendant a Malaysian was the purported purchaser of the
property and sold the same to the 2nd Defendant a company incorporated in
Malaysia. The 3rd Defendant, an advocate and solicitor who handled the sale
and purchase of the said property between the 1st and the 2nd Defendant. The
4th Defendant is the authority responsible for the registration of the said
property while the 5th Defendant is the State Government. The 6th Defendant
is a bank incorporated in Malaysia and is no longer a party in this suit having
successfully applied to strike out the claim against it.

Background Facts

[2] The Plaintiff had once owned the property and still holds the original
document of title of the same which was purchased on 21 October 2005.
Sometime in July 2009 he left for Pakistan and returned to Malaysia in 2015.
He did a land search and discovered that the said property has been registered
in the name of the 1st Defendant and thereafter transferred to the 2nd
Defendant who has granted a charge to the Bank. The purported sale to the 1st
Defendant was handled by the 3rd Defendant whom the Plaintiff has never
met or knew. The 3rd Defendant also represented the 1st Defendant in the sale
of the property to the 2nd Defendant. He claims that the transfer was done
without his knowledge and consent and thus, illegal. The Plaintiff alleges fraud
and/or forgery had been committed by the First, Second and Third Defendant.

The Suit

[3] The Plaintiff is seeking, inter alia, for:-

3.1 a declaration that the transfer of the property from the Plaintiff to
the 1st Defendant is void;

3.2 a declaration that the subsequent transfer of the property from the
1st Defendant to the 2nd Defendant is void;

3.3 a declaration that the charge of the property created by the 2nd
Defendant in favour of the Bank is void;

3.4 an order for the return of the property to him and be registered in
his name; and

3.5 general, special, aggravated and exemplary damages.

The Plaintiff's Case

[4] The Plaintiff (PW4) called seven witnesses. According to the Plaintiff he
executed the Sale and Purchase Agreement ("SPA 1" B3 pp 6-30) in Lahore,
Pakistan. SPA 1 was prepared by a Malaysian legal firm Messrs Puthucheary
Firoz & Mai. He purchased the said property from his cousin Mohammad
Sultan Iqbal also a Pakistani. The property was registered in his name on 21
July 2008 and at that material time the Plaintiff was in Malaysia. He returned
to Pakistan in 2009 and left the property to be taken care of by a care taker one
 Waseem Yaqoob Sheikh Muhammad Yaqoob
[2018] MLRHU 1601 v. Wan Muhammad Irywan Wan Mohamad Sahini & Ors pg 3

Salim Kadri. Sometime in 2014 he was informed by the Salim Kadri that the
property was locked up. The Plaintiff immediately sent one Muhammad
Naeem Abdul Rasheed (PW5) to Malaysia to investigate.

[5] Upon arriving at the property PW5 was denied entry and confirmed that
the property was locked up. One Zulfaqar bin Ghazali claimed to be the
owner. PW5 lodged a police report (B3 p 34) on 4 July 2014. Zulfaqar was
subsequently chased out by the police after he failed to produce any
documentation pertaining to the ownership of the property. Earlier on there
was already a police report lodged by one Ahmad Sazali bin Selamat (PW6)
who is the Deputy Registrar of Title attached to the Land and Mines
Department, Selangor on 2 August 2013 alleging that his department had
received a land title purportedly of the said property which was printed using a
security paper bearing the serial number SDE 1261937. The said title was sent
for verification by Messrs Onn & Partners. PW6 found that this serial number
did not exist and that the said title was a forged document (exh D18). He then
lodged a Registrar Caveat which was subsequently removed on 18 December
2014 when the property was transferred to the 1st Defendant on 19 December
2014. He denied knowing the first three Defendants and alleged that his
signature was forged in SPA 2 and Form 14A and that the passport number as
stated in those instruments had expired and replaced at the time of the
execution of the same.

[6] When PW4 signed SPA 1 on 21 October 2005 he used his passport KD
404341 for his identification which had expired by 5 April 2009 and replaced
by AH 6333671 which was issued on 23 April 2009 and the expiry date was on
22 April 2014. He entered Malaysia with this passport on 19 June 2009 and
left on 9 July 2009. According to him his next visit was on 23 January 2015 as
shown in his current passport AH 6333672 which was issued on 19 September
2014. The Immigration officer PW1 confirmed the Plaintiff's movement in the
year 2015.

[7] The Plaintiff further testified that the Sale and Purchase Agreement ("SPA
2") executed on 12 November 2013 purportedly between him and the 1st
Defendant prepared by the 3rd Defendant used his expired passport ie KD
404341 for his identification purposes and the same passport number was used
in Form 14A prepared by the 3rd Defendant which was executed on 8
September 2014 for the purposes of transferring the property to the 1st
Defendant which was registered on 19 December 2014 and subsequently the
property was sold to the 2nd Defendant and registered in the 2nd Defendant's
name on 22 December 2014. As a result of this the Plaintiff lodged a police
report on 29 January 2015 alleging that his property had been fraudulently
transferred.

[8] PW3 the Chemist from the Chemistry Department Petaling Jaya examined
Form 14A dated 8 September 2014 with the Plaintiff's samples signatures
opined that the signature found on the said Form 14A was not of the Plaintiff.

[9] PW6 testified that he lodged a police report on 2 August 2013 over a forged
title issued for the property resulting in a registrar caveat being lodged. He
 Waseem Yaqoob Sheikh Muhammad Yaqoob
pg 4 v. Wan Muhammad Irywan Wan Mohamad Sahini & Ors [2018] MLRHU 1601

could not explain how the final title could be issued when the qualified title
was still in the Plaintiff's possession.

[10] PW7 an advocate and solicitor testified that in 2013 PW5 came to see her
because there were a registrar and a private caveat lodged over the property by
one Shahul Hameed. She asked PW5 to get the Plaintiff to execute a Power of
Attorney to enable her to remove the caveat and to lodge a caveat on behalf of
PW4. She subsequently received the said Power of Attorney (exh P19)
together with copies of the passports belonging to the Plaintiff. In her
application to remove the caveat the copies of the passports (KD 404341 and
AH 6333671) were also forwarded to the land office. The application was
submitted on 23 December 2013 but was rejected by the land office.

The Defendants' Case

[11] The 1st Defendant did not enter appearance and defence.

[12] The 2nd Defendant called two witnesses. DW4 an advocate and solicitor
who testified for the 2nd Defendant told the Court that the Sale and Purchase
Agreement between the 1st Defendant and the 2nd Defendant was executed
on 15 October 2014 ("SPA 3") and the purchase price was RM4,300,000.00.
The 2nd Defendant paid cash amounting to RM430,000.00 leaving a balance
of RM3,870,000.00. The 2nd Defendant took a loan of RM2,580,000.00 and
the balance of RM1,290,000.00 to be contra with renovation works on the
property to be undertaken by the 1st Defendant. However, he said that the
renovation works were not carried out by the 1st Defendant and the 2nd
Defendant took it upon themselves to renovate the property hence, the balance
of RM1,290,000.00 need not be paid to the 1st Defendant. According to him
the 2nd Defendant was registered as the proprietor of the property on 22
December 2014 and his firm only dealt with the 3rd Defendant who acted for
the 1st Defendant for documentation purposes. He further testified that the 3rd
Defendant instructed his firm to release RM2,580,000.00 to a company known
as Limmet Services which he believed a company belonging to the 1st
Defendant vide a letter dated 12 January 2015 (exh D46).

[13] The 2nd Defendant was represented by their manager DW5. He gave
similar evidence as DW4 with regard to the mode of payment for the
purchase. According to him the purchase was through an agent by the name of
Chong and Chong was paid RM200,000.00 as commission. He further
testified that since the renovation was not done the 1st Defendant gave a
discount of 30% amounting to RM1,290,000.00 which was supposed to be
contra with the cost of renovation.

[14] The 3rd Defendant (DW6) testified that one Chong came to her office
with a property's title in October 2013 and requested for her services to prepare
a Sale and Purchase Agreement and gave the particulars of the vendor and the
purchaser. And in the following month Chong came again together with both
the vendor and the purchaser to execute SPA 2. The purchase price was
RM2,500,000.00.
 Waseem Yaqoob Sheikh Muhammad Yaqoob
[2018] MLRHU 1601 v. Wan Muhammad Irywan Wan Mohamad Sahini & Ors pg 5

[15] At that time the original title was given to her by the Plaintiff himself. She
also said that the Plaintiff gave her his passport and the 1st Defendant gave her
his identification card and she made copies of them. She said that she did
check the Plaintiff's original passport and found that it was still valid.

[16] Thereafter she took the necessary action to effect the sale of the property
and only realised something was amiss when she received a letter from the
Plaintiff's solicitor and lodged a policer report. She identified the Plaintiff as
the one who came to her office to execute SPA 2 and Form 14A in her
presence. The date 8 September 2014 in Form 14A was entered by her for
adjudication.

[17] She further testified that she also acted for the 1st Defendant in SPA 2 and
Form F14A was executed on 15 October 2014 and the transfer from the
Plaintiff to the 1st Defendant was only effected on 16 December 2014. She
said the extension of the completion period of SPA 2 was agreed upon by both
parties verbally notwithstanding SPA 2 requires otherwise.

[18] The 4th and 5th Defendants called three witnesses. DW1 the office
assistant attached to Hulu Langat Land Office told the court that the final title
was collected by the 3rd Defendant's representative on 26 November 2014 as
recorded in Buku Rekod Kutipan Hakmilik Kekal GRN/PN (exh D29).
According to her the procedure was that the qualified title must be surrendered
to the land office before the final title was released. She admitted that no
particulars of the representative were recorded and she did not verify the
authenticity of the qualified title which was surrendered.

[19] DW2 was the officer responsible for registering the transfer from the
Plaintiff to the 1st Defendant and he relied on the personal documents of the
Plaintiff namely the copies of passports (B1 pp 208-222) together with other
relevant documents. The application came from the 3rd Defendant and he
found nothing suspicious about the documents submitted. According to him
the original title was still kept in the land office under the name of the Plaintiff.
And he was aware of the existence a forged title of this property earlier and
that there was a registrar caveat being lodged but it was lifted after the 3rd
Defendant submitted the purported original or genuine title (B1 p 30).

[20] DW3 was responsible for registering the transfer from 1st to the 2nd
Defendant. According to him there was nothing wrong in having a property to
be transferred within a couple of days as in this case. And he also said that he
did not suspect any fraud involved.

Submissions

Plaintiff

[21] The learned counsel for the Plaintiff submitted as against the 1st
Defendant that he should be deemed to have admitted the Plaintiff's claim as
he had failed to enter appearance and defence. And he could not have been in
possession of the original title when the same was with the Plaintiff in
 Waseem Yaqoob Sheikh Muhammad Yaqoob
pg 6 v. Wan Muhammad Irywan Wan Mohamad Sahini & Ors [2018] MLRHU 1601

November 2013.

[22] As against the 2nd Defendant, the learned counsel submitted that when
SPA 2 was executed the registered owner was still the Plaintiff and this was
shown in a search done on 26 January 2015. The 2nd Defendant did not verify
this fact when SPA 2 was entered. The sale was further shrouded with mystery
when a discount of 30% amounting to RM1,290,000.00 was given when the
alleged renovation works were not carried out by the 1st Defendant. The terms
in SPA 2 were varied verbally when variations and extension should be in
writing as provided in the said instrument.

[23] As against the 3rd Defendant, it could not be true that she met the
Plaintiff in November 2013 as the immigration record shows that the Plaintiff
did not enter Malaysia during that period. The passport KD 404341 was
already expired by then. The same for AH 6333671 which was issued on 23
April 2009 and the expiry date was on 22 April 2014 where according to the
Plaintiff he used this passport when he last entered Malaysia in 2009 before his
next visit in 2015. The Plaintiff's signature on Form 14A dated 8 September
2014 was analysed by the Chemist and she opined that the said signature has
significant differences with the samples signatures. Hence, it could be not true
that the Plaintiff had executed the instrument as alleged by the 3rd Defendant.
It was also pointed out that she did not receive or forward any money to the
Plaintiff. She further could not explain how she received the letter from the
land office to collect the title when the letter was addressed to Messrs
Puthucheary Firoz & Mai.

[24] As against the 4th and 5th Defendant, the learned counsel for the Plaintiff
submitted that their officials were negligent in releasing the title to the 3rd
Defendant. They were also negligent in processing the documentation by
relying on expired passports. It was further pointed out that the officials ought
to be alerted of the presence of the registrar caveat and not simply removed the
same when the 3rd Defendant produced the original title.

2nd Defendant

[25] The learned counsel for the 2nd Defendant submitted that the Plaintiff has
failed to provide particulars of fraud allegedly committed by the 2nd
Defendant. General particulars were insufficient. It was further submitted that
the 2nd Defendant was a bona fide purchaser for value or in other words a
subsequent purchaser therefore the 2nd Defendant was protected by subsection
340(3)(b) of the National Land Code 1965. As regards whether the Plaintiff
was or was not in Malaysia in November 2013, there was no conclusive proof
that he was not in Malaysia particularly so the passport bearing the number
AH 6333671 was still valid at that point of time. The immigration record
produced was in respect of the current passport which was not in dispute.

3rd Defendant

[26] It was submitted by the learned counsel for the 3rd Defendant that the
Plaintiff has failed to prove how his passports were given to the 3rd Defendant
 Waseem Yaqoob Sheikh Muhammad Yaqoob
[2018] MLRHU 1601 v. Wan Muhammad Irywan Wan Mohamad Sahini & Ors pg 7

for verification in November 2013 if he was not in Malaysia. In fact, the 3rd
Defendant produced an acknowledgment of legal representation (exh D66)
signed by the Plaintiff and upon being informed of the alleged fraudulent
transaction she lodged a police report. It was contended that there has been no
evidence to show her complicity in the alleged fraud and she even identified
the Plaintiff in court.

4th And 5th Defendants

[27] The learned Federal Counsel for the 4th and 5th Defendant submitted that
the title produced by the 3rd Defendant was the original final title. The
accompanying documents were all in order hence, there was nothing for
officials to suspect any fishy transaction. As regards the collection of the title
by the 3rd Defendant, the learned Federal Counsel pointed out that as long as
the original qualified title was produced the officials should not be faulted for
releasing the final title. Similarly, when the original title was produced the
officials rightly removed the registrar caveat. He argued further that it was not
unusual for a back to back transaction as long as the applications were
submitted on the same day. The copies of the passports were used for
identification purposes thus it did not matter whether they were valid or
expired as far as the land office was concerned. Therefore, it was argued that
they were protected under s 22 of the National Land Code 1965.

Decision

[28] The 1st Defendant did not enter appearance and defence therefore, he is
deemed to have admitted the Plaintiff's claim.

[29] As the 1st Defendant failed to defend this action, I hold that SPA 2 is
void. The next thing to consider is what is the status the 2nd Defendant who
bought the property from the 1st Defendant. However, before I proceed to
consider this issue I need to address the submission that the Plaintiff does not
provide particulars of fraud allegedly committed by the 2nd Defendant. In
Letchumanan Chettiar Alagappan @ L Allagappan & Anor v. Secure Plantation
Sdn Bhd [2017] 3 MLRA 501; [2017] 4 MLJ 697; [2017] 5 CLJ 418 Jeffrey Tan
(FCJ) at p 531 had this to say,

"[28] The time has surely come to make a stand. We entirely agree
with the reasoning in Davy v. Garrett, Armitage v. Nurse, and Three
Rivers that it is not always necessary to plead the word 'fraud' if the
facts which make the conduct fraudulent are pleaded.".

[30] In Baharuddin Ali & Co v. BPMB Urus Harta Sdn Bhd & Anor [2000] 1
MLRH 803; [2000] 4 CLJ 693 where Abd Malik Ishak J (as he then was) at p
698 said,

"Basically, pleadings are statements in writing drafted and filed setting

out the facts and issues in order to tell the opposite party what was the
case all about and for the opposite party to respond by drafting and
filing a defence thereto. Within the ambit and scope of the word
 Waseem Yaqoob Sheikh Muhammad Yaqoob
pg 8 v. Wan Muhammad Irywan Wan Mohamad Sahini & Ors [2018] MLRHU 1601

"pleadings" would comprise the whole gamut of the statement of

claim, the statement of defence and counterclaim, the reply to the
statement of defence and counterclaim, the statement of claim
indorsed on a writ of summons together with further and better
particulars of the pleadings.".

[31] Looking at the Statement of Claim ("SOC") and the Reply to the 2nd
Defendant's defence ("RD2D") I find that the fraudulent conduct is in fact
pleaded eg at the time SPA 2 was executed the Plaintiff was still the registered
proprietor (para 16(a) of SOC and paras 9 and 22 of RD2D.

[32] The director's resolution (exh P48) contradicted SPA 2 in that it is stated
in the former that the total sale consideration is RM2,580,000.00 instead of
RM4,300,000.00. Further, it is very unusual to my mind that a sum of
RM1,290,000.00 or a 30% of the purchase price which was first to be contra
with the renovation and then as a discount was not stated in SPA 2. This is an
important term dealing with the purchase price. It is doubtful whether the
purchase price was indeed RM4,300,000.00. According to DW4 the 10%
deposit amounting to RM430,000.00 where RM200,000.00 was paid to Messrs
Rejendra Palany Chambers, RM100,000.00 to Chong and RM130,000.00 to
the 1st Defendant. The sum RM2,580,000.00 was allegedly paid to a bank
account belonging to a company known as Limmet Services. No evidence was
led as to the proprietorship of this company. And the balance RM1.290,000.00
to be contra and later became a discount.

[33] Further when SPA 2 was entered there was an existing caveat lodged by
one Shahul Hameed but surprisingly DW4 said no action was taken to remove
it before signing SPA 2. In Au Meng Nam & Anor v. Ung Yak Chew & Ors
[2007] 1 MLRA 657; [2007] 5 MLJ 136; [2007] 4 CLJ 526 Raus Sharif JCA
(as he then was) speaking for the Court of Appeal said,

"Further, had the evidence adduced in this case been properly

considered and assessed by the learned trial judge, a reasonable
inference would be that the first defendant knew at the time he bought
the said land, the purchase price was below the market value. But he
wanted to take advantage of the low price. He did a fast track to
complete the purchase. In doing so he disregarded his obligations to
investigate the alleged proprietors and the genuineness of the
documents. My respectful view is that a purchaser in good faith does
not include a purchaser who is careless or who had been negligent. In
Oliver v. Hinton [1899] Chancery Division 264 Lindley MR said:

To allow a purchaser who acts with such gross carelessness to

deprive a prior innocent mortgage of her priority would be the
greatest injustice.

So too here. The first defendant is under the obligation to investigate

properly all matters relating to the sale of the said land and not to just
blindly accept what was claimed by the 'vendors' as correct and
genuine. When he failed to take the ordinary precautions which ought
 Waseem Yaqoob Sheikh Muhammad Yaqoob
[2018] MLRHU 1601 v. Wan Muhammad Irywan Wan Mohamad Sahini & Ors pg 9

to be taken in such a matter he is not entitled to the protection of the

court.".

(Emphasis added)

[34] In Kamarulzaman Omar & Ors v. Yakub Husin & Ors [2014] 2 MLRA 432;
[2014] 2 MLJ 768; [2014] 1 CLJ 987; [2014] 1 AMR 493 Jeffrey Tan FCJ said
at p 797 as follows:

"[44] Accordingly, in relation to leave question 1, which should read

as 'What was the effect of the judgment in default, which set aside the
(order of distribution of) the estate of the deceased, to the transfers (by
the first to fourth respondents) to the fifth and sixth respondents?', we
would answer that the defeasible title of the first to fourth respondents
was set aside by the default judgment, and that on the instant facts, the
defeasible title of the fifth and sixth respondents was swept aside along
with that of the first to fourth respondents. In relation to leave
question 3, which should read as 'Whether the transfers by (the first to
fourth respondents) to the fifth and sixth respondents were protected
by s 340 of the National Land Code?', we would answer that the fifth
and sixth respondents were immediate purchasers and so were not
protected by the proviso to s 340(3). We need not answer leave
question 2, as our aforesaid answers are already more than sufficient
to dispose of this appeal.".

[35] As the 1st Defendant did not defend this suit and deemed to have
admitted the Plaintiff's claim, to my mind, the effect is similar to a default
judgment and therefore his title is defeasible. Hence, the 2nd Defendant
cannot be a subsequent purchaser. Even if I am wrong and that the 2nd
Defendant is a subsequent purchaser, the circumstances leading to SPA 2
being executed are clouded with suspicion and I am satisfied that the 2nd
Defendant is not a bona fide purchaser for value.

[36] The conduct of the 3rd Defendant is left much to be desired. She claimed
that both the passports KD 404341 and AH 6333671 (B1 pp 208-219) were
produced and she made copies of them and certified them as well. No doubt
she did certify them but glaringly she certified on a previously certified
documents. In other words, she did not certify on copies made from the
original documents. The copies in B1 pp 208-219 are copies that had been
certified in Pakistan by a notary public. I believe these copies were the ones
brought by PW5 who in turn gave them to PW7 for the purposes of the Power
of Attorney (exh P19) to remove the caveat lodged by Shahul Hameed and to
lodge a caveat by the Plaintiff. PW7 handed these documents to the land office
when she submitted the application on 23 December 2013. And the same
copies of the passports thereafter came to the 3rd Defendant for certification
for SPA 2.

[37] She further claimed that the Plaintiff handed over to her the title but
evidence showed that her representative collected the title from the land office.
She could not explain how the letter from the land office addressed to Messrs
 Waseem Yaqoob Sheikh Muhammad Yaqoob
pg 10 v. Wan Muhammad Irywan Wan Mohamad Sahini & Ors [2018] MLRHU 1601

Puthucheary Firoz & Mai landed on her. Exhibit D66 (letter of

acknowledgment) was never put to the Plaintiff. In Aik Ming (M) Sdn Bhd &
Ors v. Chang Ching Chuen & Ors & Anor Appeal [1995] 1 MLRA 546; [1995] 2
MLJ 770 at p 794; [1995] 3 CLJ 639; [1995] 3 AMR 2375, Gopal Sri Ram
JCA (as he then was) stated as follows:

"It is essential that a party's case be expressly put to his opponent's

material witnesses when they are under cross-examination. A failure
in this respect may be treated as an abandonment of the pleaded case
and if a party, in the absence of valid reasons, refrains from doing so,
then he may be barred from raising it in argument. It is quite wrong to
think that this rule is confined to the trial of criminal causes. It applies
with equal force in the trial of civil causes as well.".

[38] She did not receive any payment to be forwarded to the Plaintiff when
SPA 2 was executed. And it took almost a year before the sale was completed
and she could not explain this satisfactorily. Coupled with the evidence from
the Chemist, I am satisfied that the Plaintiff never came to her office as she
claimed. To me she was not truthful. I am satisfied that she knew what was
going on and therefore, I find her to be a party to this fraud alternatively
negligent in handling the transaction.

[39] As for the 4th and 5th Defendant I find them to be negligent in issuing B1
p 30 and subsequently accepted B1 p 226 for SPA 3. They knew that there was
a forged title exh D18 which resulted in a registrar caveat being lodged. PW2
Inspector Hanizah told the Court that the investigation was still ongoing.
DW2 said the he verified with the police and if there was no response within
seven to fourteen days they will remove registrar caveat. He could not produce
any evidence to support this. The 3rd Defendant applied to remove the said
caveat on 9 December 2014 claiming that she acted for the Plaintiff and DW2
said that he did check with the police. I cannot accept this because if he did
surely he would be advised that the investigation was ongoing. Obviously
DW2 did not inquire from the police as to the status of the investigation and
he lifted the registrar caveat based on the original title being submitted.

[40] In fact, PW6 admitted that the land office should be vigilant when there
was a registrar caveat being entered and could not explain how the final title
could be issued when the qualified title was still in the Plaintiff's possession.

[41] Therefore, on the balance of probabilities I find that the Plaintiff has
proven his case against all the Defendants and the Plaintiff's claim and prayers
18(a), (b), (c) and (d) are allowed with costs.