Bar Council backs Court of Appeal ruling

New Sunday Times

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.