笔者在马来西亚在读工程合同管理硕士，本学期最重要的一门课就是马来西亚的土地法，这篇文章是作业之一，以后有空或者有需要再翻译成中文吧。
Introduction:
The Malaysia National Land Code 1965 is essentially based on the Torrens System introduced by Sir Robert Torrens in Australia. Indefeasibility of title is one of the important characteristics of the system.
The Torrens System, invented by the 19thcentury reformer of Australian land laws, Sir Robert Torrens, is a land registration system in which the government keeps all records of land and title, and a land title acts as a certificate of full, indefeasible and valid ownership. This system is adopted by several US countries, Canadian provinces and the States of Malaya.
The National Land Code 1965 is based on the Federated Malay States Land Code of 1928, during colonial period the British brought in the Torrens System to replace the rules of Malay customary tenure. However, compared with the Torrens System, the NLC has additional characteristics of its own.
The characteristics of the Torrens Systems is as follows,
1. Land in State belongs to State;
2. Five types of disposal, which are Alienation, Reservation, Temporary Occupation of Land, Lease, and Permit (extraction, removal and transportation of rock material);
3. Six types of dealings, which are Transfer, Leases, Tenancies, Charges, Liens and Easements;
4. Registration with statutory instruments;
5. Indefeasibility of Title;
6. No adverse possession;
7. Restraint of Dealings;
8. Three principles: Mirror, Curtain and Shield.
Under the Torrens System, registration is everything.[1]The register reflects all the facts material to the registered owner’s title in the land. The registration includes name of the proprietor, the land which has been alienated, the area, the location, the survey plan, the boundary limits and other material facts. [2]The label of “the mirror principle” was given by Das S.K. to reflect the nature of Torrens system that the register with the attributes of a mirror of sorts that can reveal all the necessary particulars relating to the land that would interest a potential purchaser or chargee. [3]
The second principle of the Torrens System is the “Curtain” Principle, which requires that the register is the sole source of information for intending purchasers. In Gibbs v Messer(1981) AC 248, 254 that “The object is to save persons dealing with the registered proprietors from the trouble and expense of going behind the register in order to investigate the history of their authors’ title and to satisfy themselves of its validity”. The registration serves as a curtain to protect the purchaser as he/she can safely rely on the information revealed in the register, and need not to look behind it.
The Shield Principle, which is also called the Insurance Principle, provides compensation for loss of rights if there are errors made by the Registrar of Titles. If through human frailty (in the Registry), the mirror fails to give an absolute correct reflection of the title and a flaw appears, anyone who thereby suffers loss must be put in the same position, so far as money can do it, as the reflection were a true one.
Apart from the above characteristics, the NLC has the following additional features,
1. No possessory right however long;
2. The rules of equity still apply;
3. Reversion to the State under several circumstances;
4. Indefeasibility of title guaranteed but not absolute;
5. Strata Title recognized;
6. Easement by express grant only;
7. Non-exclusive system
8. Procedural dilemma – how crucial is full compliance with the procedural requirement of the Code?
Indefeasibility of title is one of the most important characteristics of the system. It is guaranteed under the NLC pursuant to section 89 Conclusiveness of register documents of title and section 340 Registration to confer indefeasible title or interest, except in certain circumstances, and not absolute. Section 340(2) provides exceptions of indefeasibility under circumstances of fraud, misrepresentation, forgery, insufficient or void instrument, unlawfully acquired. There are also exceptions in equity[4], and exceptions under Malay custom or adat. [5]
Issue:
Whether the indefeasibility under the NLC is immediate or deferred?
Immediate indefeasibility means that, the registered proprietor, on registration of the dealing transferring title to him or her of an interest in the land, has a guaranteed title which is effective even though there may have been deficiencies in the dealing.[6]
Deferred indefeasibility means that, title obtained under a defective dealing does not obtain immediate indefeasibility, and the registered proprietor’s title may be challenged. Indefeasibility is deferred until registration of one further dealing, affecting that interest. Registration then renders the earlier dealing indefeasible.[7]
The leading and most controversial case is Adorna Properties v Boonsom Boonyanit. BB is the owner of two plots of land in Tanjung Bungah Penang. Without her knowledge, the land was transferred to AP by the other people forging her signature. AP had no knowledge of the forgery and had no reason to suspect that the instrument was forged. BB challenged the validity of the transfer on the ground that the instrument of transfer was forged.
The High Court dismissed BB’s claim and held that, as the onus to prove forgery is placed on he or she who alleges fraud and must be distinctly proved beyond reasonable doubt. BB failed to include the evidence of a handwriting expert to prove forgery of the signature in Memorandum of Transfer 1 (MT1, between AP and a “Mrs Boomsoom Boonyanti”), and her evidence is a whole fell short of proof to show that the signature of the transferor in the MT1 was not BB’s. The High Court further held that even if BB had proved forgery beyond reasonable doubt, AP still acquired indefeasible title over the property by virtue of Section 340(3) of the NLC, which in effect protects any title or interest acquired by any purchaser in good faith and for valuable consideration. The High Court was implementing deferred indefeasibility. The decision was delivered is 1995.[8]
BB appealed to the Court of Appeal (the “CA”), and the CA allowed the appeal. The CA held that the standard of proof to be applied in civil forgery suits is the balance of probabilities, the forgery was proved. The CA further held that the words “any purchaser” in s340 of the NLC refers to a subsequent and not to an immediate purchaser, hence creating a deferred indefeasibility which benefits subsequent purchasers. The title of an immediate purchaser is defeasible if tainted by one or more of the vitiating elements set out in s340(2) but creates an exception in favour of a bona fide purchaser who takes his title from such a registered proprietor. This bifurcation makes it clear that Parliament intended to confer deferred and not immediate indefeasibility. The CA held that a registration obtained by forgery is void, and the decision was handed down in 1997.[9]
Unhappy with the decision of CA, AP appealed to the Federal court (the “FC”). The FC allowed the appeal. Concerning the standard of proof to prove forgery, the FC agreed with the CA that in civil cases is on a balance of probabilities. However, the FC applied immediate indefeasibility principle, stating that by virtue of the proviso to sub-s (3) of s 340 of the NLC, any purchaser in good faith and for valuable consideration are excluded from the application of the substantive provision of sub-s (3). For this category of registered proprietors, they obtained immediate indefeasible title to the lands. Therefore, on the facts of this case, even if the instrument of transfer was forged, the respondent nevertheless obtained an indefeasible title to the land.The decision was handed down in 2001.[10]
After Boonsom Boonyanit, there are following case laws,
1. Abu Bakar bin Ismail & Anor v Ismail bin Husin & Ors and other appeals[2007] 4 MLJ 489 (CA)[11]
2. Au Meng Nam & Anor v Ung Yak Chew & Ors[2007] 5 MLJ 13 (CA)[12]
3. Tan Ying Hong v. Tan Sian San & Ors[2010] 2 MLJ 1 (FC)[13]
In Abu Bakar bin Ismail & Anor v Ismail bin Husin & Ors and other appeals, the plaintiffs agreed to sell the land to the first defendant, the second defendant, who is an advocate and solicitor and a partner in the third defendant firm, required the plaintiff to sign a blank memoranda of transfers and deposited their title dees. The second and third defendant then forged the documents and presented a third party charge, purportedly signed by the plaintiffs in favour of the forth defendant bank to secure a loan to the fifth defendant company. The legal consequence was that the second and third defendants were for all intents and purposes the agents of the forth defendant in the transaction. However, the learned judge found no evidence of fraud on the part of the forth defendant bank. The trail judge held that the bank’s registered charge was immediately indefeasible notwithstanding that the charge had been obtained under a forged instrument. The plaintiffs appealed.
The CA allowed the appeal. The Court of Appeal declined to reverse the finding of fact by the trial judge that the fourth defendant bank had not been party or privy to the fraud. As per Gopal Sri Ram JCA,Section 340(2)(a) NLC entitles a plaintiff to defeat a registered title or interest in either of two distinct circumstances. He may do so by showing that: (a) the holder was party or privy to the fraud or misrepresentation; or (b) the holder’s agent was party or privy to the fraud or misrepresentation. Section 340(2)(a) does not require that the holder of the registered title or interest himself must have had knowledge or notice (actual or imputed) of the agent’s fraud or that he had authorised the commission of the fraud (see para 12); United Overseas Finance Ltd v Victor Sakayamary[1997] 3 SLR 211 followed.
The CAheld that the trial judge failed to go on to consider the effect of the agent’s fraud on the transaction, applying the clear words of s 340(2)(a) NLC. The fraud of the second defendant as agent of the fourth defendant bank rendered the registered charge defeasible. The plaintiffs were entitled to succeed on this ground.
Furthermore, s 340(3) (a) and (b) employ the word ‘subsequently’ which means that where a registered proprietor gets on the register by any of the means set out in s 340(2), and ‘subsequently’ transfers that land to another, the title of that other is also defeasible unless that subsequent transfer is made to a purchaser in good faith and for valuable consideration. Also protected are persons who take from such a purchaser (see para 18). The fourth defendant was not a bona fide purchaser.
Gopal Sri Ram JCA also stated that Adorna Propertieswas decided without regard to another provision in the NLC and without reference to M & J Frozen Foods, a prior decision of the Supreme Court which held that the NLC creates deferred and not immediate indefeasibility. Thus Adorna Propertieswas rendered per incuriam and was not binding even on a lower court (see paras 19–20);
In Au Meng Nam & Anor v Ung Yak Chew & Ors, as per Raus JCA, Hasan JCA stated that the Federal Court should review its decision in Adorna Properties Sdn Bhd. By virtue of s 340(2)(b) of the Code, the title of Adorna Properties was not indefeasible as the registration was obtained by forgery. Section 340(3) does not apply to s 340(2). The proviso states ‘Provided that in this subsection’ and this subsection refers to s 340(3) and not s 340(2).
The CA further held that it is central to the doctrine of indefeasibility housed in s340 that the issue document of title must itself be genuine.
In Tan Ying Hong v. Tan Sian San & Ors, in Federal Court, Zaki Azmi Chief Justice Malaysiaand Arifin Zakaria CJ held that Section 340(1) of the NLC confers an immediate indefeasible title or interest in land upon registration, subject to the exceptions set out in s340(2) and (3). It was clear that a proviso to a subsection would not apply to another susection, the proviso immediately after s 340(3) of the NLC is directed towards s 340(3) alone and not to the earlier subsection. Therefor its application could not be projected into the sphere or ambit of any other provisions of s 340.
Further, the Judge held thatas it was clear that the Federal Court in the Adorna Propertiescase had misconstrued s 340(1), (2) and (3) of the NLC and thus come to the erroneous conclusion that the proviso to s 340(3) applied equally to s 340(2), this error needed to be remedied forthwith in the interest of allregistered proprietors.
The decision was handed down in 2007.
Conclusion
The Adorna Propertiescase was overruled in the Federal Court in Tan Ying Hong v. Tan Sian San & Ors, the principle applied in the NLC is deferred indefeasibility. Even if the registered proprietor acted in good faith and provided good value for the title or interest and was not either himself or by his agent a party or privy to the forgery, his title or interest remained defeasible.[14]
The rationale for deferred indefeasibility would offer protection to the registered proprietor of the land, however, on the other hand, would undermine the confidence of purchasers replying on transactions relating to land under the Malaysian Torrens system. [15]
[1]The Bee v. Maruthamuthu[1977]2 MLJ 7 (FC)
[2]Das, S.K., 1963. The Torrens System in Malaya. Singapore, MLJ p.65
[3]Ibid, p.96
[4]Salleh Buang, “Equity and the National Land Code”, op.cit
[5]See Kiah v. Sam[1953] 19 MLJ 82, and Roberts v. Ummi Khalthom[1966]1 MLJ 163
[6]Paul McPhee, Fraud and Indefeasibility of Title, Principal McPhee Kelshaw Solicitors, p.7
[7]See also Paul McPhee, Fraud and Indefeasibility of Title, Principal McPhee Kelshaw Solicitors, p.7
[8]Boonsom Boonyanit v. Adorna Properties Sdn Bhd[1995] 2 MLJ 863 (HC), Vincent Ng J
[9]Boonsom Boonyanit v. Adorna Properties Sdn Bhd [1997] 2 MLJ 62 (CA) Gopal Sri Ram JCA, Siti Norma Yaakob JCA and Ahmad Fairuz JCA
[10]Adorna Properties Sdn Bhd v. Boonsom Boonyanit @ Sun Yok Eng [2001] 1 MLJ 241 (FC) , Eusoff Chin Chief Justice, Wan Adnan CJ (Malaya) And Abu MansorFCJ
[11]Gopal Sri Ram, Low Hop Bing and Raus SharifJJCA
[12]Gopal Sri Ram, Raus Sharif and Hasan Lah JJCA
[13]Zaki Azmi Chief Justice, Alauddin PCA, Arifin Zakaria CJ (MALAYA), Zulkefli and James Foong FCJJ
[14]Teo Kenang Sood, “Demise of Deferred Indefeasibility under the Malaysian Torrens System” (Oct/Nov/Dec 2004) Infoline, p41
[15]Baalman, The Torrens System in New South Wals, Woodman and Grims eds, 2nded, at 176 and Smith, supra, note 42