Daily Express, Sabah
Kota Kinabalu: The Sabah Council of the Justices of the Peace (Majaps) feels that the Federal Court should review at the earliest opportunity, a decision it made six years ago pertaining to a land ownership case which the Court of Appeal in a recent ruling declared wrong.
Majaps honorary secretary Datuk Dr Lawrence S H Thien on Wednesday said the 2001 case pertained to Adorna Properties Sdn Bhd v Boonsom Boonyanit in which the Federal Court decided in favour of the bona fide purchaser of land whose ownership had been forged.
He said the Appellate Court in Kuala Lumpur last Friday (July 13) in a case similar to Adorna ruled in favour of two brothers who had lost their land to forgers.
Court of Appeal judge Datuk Gopal Sri Ram said the principle set out in the Adorna case should not be followed as it was contrary to the National Land Code.
Sri Ram declared that the said Federal Court ruling where a landowner lost his property to a forger was wrong.
Certain quarters including the MCA Public Services and Complaint Department lauded Sri Ram's stance, while others say the onus to prevent fraud is on the lawyers who handle the transactions.
One victim, for instance related that a stranger had turned up at his home on an oil palm estate and claimed he was the new owner of the property.
Since that day three years ago, the victim has been locked in a legal tussle over the ownership of the 3.72-hectare oil palm estate.
The Bar Council opined, a reform of the National Land Code is the only solution to put a stop to fraudulent land transfers.
The Federal Court decision has reportedly been criticised by the legal fraternity in the Peninsula for undermining the integrity of land titles and leaving the original owners without any means to recover their land.
The Bar Council stressed however that 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.
Bar Council Conveyancing Practice Committee, Roger Tan explained, this means the lower courts must follow the decisions of the courts, which are superior to them in the legal hierarchy.
Thien said a review would be appropriate to correct any injustice, adding that Majaps concurred with the Bar Council.
"We sympathise with the plight of the parties in such cases and hopes justice will prevail with review/reform of the relevant law. Majaps also note with great concern the calls not to follow the Federal Court decision in Adorna' case."
"Such calls will have grave consequences for the legal system and administration of justice in Malaysia as they disregard the time-tested and foundational doctrines of stare decisis (abiding by precedent)."
Thien said the Federal Court was the dominant and apex court in Malaysia and its rulings were binding on all courts below it including the Court of Appeal.
He said to adopt a different rule would bring chaos and uncertainty to the justice system with resultant detriment to the public.
Meanwhile, the Sabah Law Association and the Sarawak Advocates Association in a joint statement added that a lower court was bound to follow a decision of the Federal Court even if that decision may be criticised as "wrong".
According to them, the application of such decision could be changed by the Federal Court overruling it or by Parliament passing the necessary law.
In relation to the case of Adorna, it may be pointed out that Sabah and Sarawak have their own respective Land Codes, which respectively differs from the National Land Code in certain respects.
The associations stated that the case was under the National Land Code, which does not apply in Sabah and Sarawak and on that narrow interpretation, it does not apply to Sabah and Sarawak.