Reports
24 Mar 2007 26 Jun 2005 9 Oct 2003Judgements
23 Mar 2007 Court of Appeal 25 Jun 2005 High Court
24 Mac 2007
Warga emas dapat ganti rugi RM7.3j
PUTRAJAYA: Penantian selama lapan tahun seorang warga tua untuk mendapatkan tanah pusakanya yang ‘hilang’ selepas ditipu pembeli dan seorang peguam, berakhir semalam apabila Mahkamah Rayuan memerintahkan tiga lot tanah itu dipulangkan kepadanya.
Dalam penghakiman majoriti 2-1, Hakim Datuk Gopal Sri Ram dan Datuk Raus Md Sharif memerintahkan tiga lot tanah di Seberang Prai, Pulau Pinang, diserahkan semula kepada Sadiah Abdullah, yang kini berusia 70 tahun.
Bagaimanapun, Hakim Datuk Low Hop Bing, mengekalkan keputusan Mahkamah Tinggi bahawa pemindahan hak milik tanah tidak terjejas kerana pemilik akhir (iaitu defendan keempat, Bank Kerjasama Rakyat Malaysia) mendapatkannya secara bona fide (berniat baik).
Mahkamah juga mengekalkan perintah Mahkamah Tinggi pada 25 Jun 2005 supaya plaintif menerima ganti rugi RM7.3 juta.
Tiga anaknya Abu Bakar Ismail, Kalthum dan Rosli, yang menghadiri prosiding semalam, menyatakan rasa lega dan gembira kerana kes itu akhirnya diselesaikan.
“Ibu kami berada di kampong. Beliau kini uzur kerana sudah tua,malah tidak boleh berjalan.
“Kami masih belum memaklumkan kepadanya, tetapi kami yakin dia akan berpuas hati dengan keputusan ini,” kata Abu Bakar.
Beliau sebelum ini mengambil alih sebagai plaintif selepas ayahnya, Allahyarham Ismail Mohamad, meninggal dunia dua bulan sebelum keputusan Mahkamah Tinggi pada 2005.
Pada 30 Julai 1999, Ismail dan Sadiah mendakwa kerugian selepas bersetuju menjual tanah mereka itu kepada seorang pembeli, Ismail Husin (defendan pertama), dengan harga RM7.5 juta, dengan bayaran RM200,000 dengan menyerahkan jual beli kepada peguam, Abdul Aziz Ahmad (defendan kedua) dan firmanya (defendan ketiga).
BERITA HARIAN 26 Jun 2005
Defendan bayar ganti rugi RM7.3j
KUALA LUMPUR: “Saya berasa lega kerana ibu bapa saya tidak perlu menanggung hutang lagi, tetapi agak terkilan kerana tanah pusaka kami terlepas ke tangan orang lain” kata Abu Bakar Ismail, anak pasangan Sadiah Abdullah dan Ismail Mohamad apabila Mahkamah Tinggi memutuskan mereka tidak perlu menanggung hutang bank selepas dokumen penjualan tanah mereka bernilai RM7.5 dipalsukan.
Bagaimanapun dalam penghakimannya semalam, Hakim Datuk Ariffin Zakaria, menolak permohonan pasangan itu supaya dokumen asal hak milik tanah dikembalikan kepada mereka.
Ariffin berkata, beliau berpuas hati yang dokumen itu dipalsukan tetapi beliau terikat dengan keputusan Mahkamah Persekutuan yang memutuskan seorang pembeli tanah membeli geran yang sah walaupun ia membabitkan pemalsuan dalam membeli hartanah itu dengan niat baik.
Sehubungan itu, Ariffin memerintahkan pembeli tanah, Ismail Hussin, Abdul Aziz Ahmad dan firma guamannya, Tetuan Sajali & Aziz dinamakan sebagai defendan membayar ganti rugi RM7.3 juta kepada kedua-dua plaintif.
Selain bayaran itu, mereka juga perlu membayar faedah lapan peratus setahun bermula dari tarikh saman itu difailkan sehingga tarikh pembayaran ganti rugi.
Beliau juga memerintahkan ketiga-tiga defendan membayar ganti rugi teladan dan teruk kepada pasangan itu. Kedua-dua ganti rugi berkenaan akan ditentukan Penolong Kanan Pendaftar mahkamah kemudian.
Ariffin juga memutuskan defendan keempat iaitu Bank Kerjasama Rakyat Malaysia adalah pihak yang tidak bersalah dalam kes berkenaan.
NST, June 26 2005
Land gone despite forgery
Three ordered to pay RM7.3m to couple
KUALA LUMPUR, Sat: A couple lost their ancestral land despite the High Court’s finding that their signatures on bank documents had been forged.
The court however, ordered a land broker, a lawyer and his law firm to pay Ismail Mohamad and Saadiah Abdullah RM7.3 million, the balance of the price of the transacted land.
Datuk Arifin Zakaria, who sat as High Court Judge, said he had no choice but to rule that Bank Kerjasama Rakyat Malaysia Berhad had registered interest over three pieces of property in Seberang Prai Selatan in Penang.
Saying the case before him was “very difficult”, Arifin added that he was bound by a Federal Court Ruling in 2000 in making his ruling.
Arifin suggested to counsel Jerald Gomez, who represented Ismail Mohamad and Saadiah, that the case be taken to the Court of Appeal.
Arifin who was elevated from the Court of Appeal to the Federal Court last week said he accepted the evidence of handwriting expert Lim Yok Chaw who found differences in the documents allegedly signed by Ismail Mohmad and Saadiah.
On Dec 23 1999, the couple alleged misrepresentation, negligence, fraud and breach of trust over a sale and purchase agreement for their properties.
They had named land broker Ismail Husin, a lawyer Abdul Aziz Ahmad and his law firm Messrs Sajali & Aziz, the bank and Vest Hong Enterprises Sdn Bhd as defendants.
They claimed Ismail Husin had charged the three pieces of land, using the original title deeds, to secure a loan for Vest Hong in which he holds an equity.
The couple said Ismail Husin had earlier approached them to buy their properties for RM7.5 million.
They entered into an agreement on July 30, 1999 but only RM200,000 was paid to them although Ismail assured the couple the full payment would be settled in two months.
The couple said the bank approved a RM16 million loan to Vest Hong for the purchase of machinery and as working capital.
They alleged that Ismail Husin and Abdul Aziz released the title deeds to the bank as security for the loan.
Arifin, in his judgment ruled that Ismail Husin, Abdul Aziz and the legal firm were liable for their actions.
He said the bank too had knowledge of the fraud.
The Judge said Vest Hong was subsequently wound up and its directors had absconded to China.
Arifin, however allowed the couple’s application to order Ismail, Abdul Aziz and his legal firm to pay them the balance purchase price of RM7.3 million, inclusive of eight per cent interest per year, for their property.
By consent order, the couples were absolved from paying RM23 million purportedly owed to the bank.
Arifin also ordered Ismail, Abdul Aziz and the legal firm to pay general and exemplary damages and costs.
Ismail Mohamad, 75, a former harbor pilot with the Penang Port Commission, died on August 18 last year and his son Abu Bakar substituted him as the first Plaintiff.
Saadiah, 67, was absent from Court because she was not well.
Abu Bakar a marine supervisor with an oil refinery in Port Dickson, said he was glad the Court had ruled that his parents were not responsible for the (RM16 million) loan.
“The property has slipped from us but we are happy that those responsible had been ordered to pay the outstanding sales amount plus interest,” he said.
However, he was skeptical whether the family would ever recover the money following the land sale.
“If we do not get the money, we want the land back. We will make a decision soon,” he said.
Abu Bakar said a complaint had been lodged with the Bar Council against the lawyer and his firm.
Also present at the hearing today were Abu Bakar’s brother Rosli and sisters, Kalthom and Nurul Hayati. Gomez said the couple would only obtain a paper judgment if the Defendant’s did not pay up.
Utusan Malaysia
Wanita, anak lelaki dapat semula hak milik tanah pusaka
PUTRAJAYA 23 MAC – Seorang wanita dan anak lelakinya mendapat semula hak milik tanah pusaka mereka setelah Mahkamah Rayuan hari ini mengisytiharkan gadaian ke atas tanah itu kepada sebuah bank adalah tidak sah dan terbatal kerana dilaksanakan secara penipuan.
Dalam keputusan majority 2-1, Hakim Datuk Gopal Sri Ram dan Hakim Md Raus Shariff mengambil keputusan untuk membenarkan dengan kos rayuan yang dikemukakan oleh Abu Bakar Ismal, 38, dan ibunya, Sadiah Abdullah, 70.
Bagaimanapun, Hakim Datuk Wira Low Hop Bing memilih untuk menolak rayuan itu.
Dalam rayuan mereka, Abu Bakar dan Sadiah menamakan lima respondeniaitu broker tanah, Ismail Hussin; peguam Abdul Aziz Ahmad; firma guaman Tetuan Sajali & Aziz; pemegang gadaian Bank Kerjasama Rakyat Malaysia Berhad dan syarikat Vest Hong Enterprise Sdn. Bhd.
Dalam penghakimannya, Hakim Sri Ram berkata, kes itu merupakan satu lagi keadaan yang menuntut mahkamah memutuskan siapakah di antara dua pihak tidak bersalah yang perlu menerima akibat perbuatan jahat pihak ketiga yang melakukan peipuan.
Katanya, pembatalan gadaian kepada pihak bank adalah kerana perbuatan penipuan oleh agennya, dalam kes ini ialah responden kedua, Abdul Aziz Ahmad dan firma guamannya, Tetuan Sajali & Aziz yang merupakan ejen kepada Bank Rakyat.
“Perkara ini adalah nyata dalam perunutkan Seksyen 340(2)(a) Kanun Tanah Negara, “tegas Hakim Sri ram.
Abu Bakar dan ibunya mengemukakan rayuan terhadap keputusan Mahkamah bahawa Bank Rakyat mempunyai hak terhadap tiga bidang tanah pusakan mereka yang digadaikan kepada bank itu.
Menjual
Pada 30 Julai 1999, Sadiah dan suaminya; Ismail Mohamad (telah meninggal dunia) menjual tiga bidang tanah di Seberang Prai Selatan kepada Ismail Husin pada harga RM7.5 juta tetapi hanya dibayar RM 200,000.00 sebagai wang pendahuluan.
Ismail Husin berjanji menyelesaika baki harga jualan tanah dalam tempoh dua bulan.
Ketika menuntut baki harga juala tanah itu yang gagal dibayar dalam tempoh yang dijanjikan, Sadiah dan suaminya terkejut apabila mengetahui tanah itu telah digadaikan kepada Bank Rakyat bagi mendapatkan pinjaman RM16juta untuk syarikat Vest Hong Enterprise.
Berikutan itu, mereka menyaman kelima-lima responden bagi mendapatka semula tanah tersebut dengan alasan perjanjian jual beli tanah itu dialkukan secara penipuan, pecah amanah dan cuai.
Pada 26 Jun 2005, Hakim Datuk Zakaria Arifin (kini Hakim Mahkamah Persekutuan) telah menolak permohonan mereka dan memerentahkan Ismail Husin, Abdul Aziz dan firma guamannya membayar baki harga jualan RM 7.3 juta kepada Sadiah.
Hakim Arifin juga memutuskan Ismail Husin, Abdul Aziz dan firma guamannya perlu dipertanggungjawabkan (liable) terhadap perbuatan mereka menipu pasangan suami isteri itu dalam urusan jual beli dan gadaian tanah tersebut.
THE SUN August 23 2001
Five sued over purchase of land
KUALA LUMPUR, Wed: An elderly couple, saddled with a RM23.5 million loan repayment, are suing the purchaser of their land and four others for alleged breach of trust and misrepresentation.
Ismail Mohamad, 75, and Sadiah Abdullah, 64, allege that the buyer of their land, Ismail Husin, charged the land to a bank in return for a RM16 million loan.
They claim that Ismail charged the three pieces of land, using the original title deeds, to secure a loan for a company in which he holds equity.
The suit, filed through Messrs Jerald Gomez & Associates on Dec 23, 1999, will be heard before judge Datuk Arifin Zakaria tomorrow.
Lawyer Abdul Aziz Ahmad, his law firm Messrs Sajali & Aziz, Bank Kerjasama Rakyat Malaysia Berhad, and Vest Hong Enterprise Sdn Bhd are also named as the defendants.
The couple, in their statement of claim, say Ismail approached them and agreed to buy their properties in Seberang Perai Selatan, Penang for RM7.5 million.
They say Ismail asked them to enter a sale and purchase agreement on July 30, 1999 and agreed to pay RM200,000 as deposit-RM150,000 to be paid upon execution of the agreement and the remaining RM50,000 one month after that.
They say Ismail assured them the full payment would be made within two months. The couple claims that on July 26, 1999, the bank approved a RM16 million loan to Vest Hong for the purchase of machinery and working capital.
They allege that Ismail and Aziz released the title deeds to the bank as security for the loan and that under the charge, they are liable to repay at least RM23,528,346.
They are seeking a declaration that the charge over their properties is null and void.
They also want a rescission of the sale and purchase agreement and an order for the title deeds to be returned to them.
In the alternative, they want Ismail to perform his part by paying RM7.3 million for the land.
Ismail, Aziz and his law firm, in their defence, deny liability or making any representations to the plaintiffs.
Ismail claims that he had informed the couple that he was purchasing the properties on behalf of Vest Hong.
The bank said it has no knowledge of the fraud and confirmed that the signature on the charged document belonged to the plaintiffs.
Vest Hong contends that it purchased the properties from Ismail as the beneficial owner and that the transfer was done with the plaintiffs’ knowledge and consent.
THE SUN October 10 2001
Expert tells court of differences in couple’s signatures
KUALA LUMPUR, Tues: A handwriting expert told the High Court here today he found differences in several documents allegedly signed by an elderly couple.
Lim Yok Chaw, of the Chemistry Department, said the couple’s signatures in the charge documents and charge annexure were different from those in the sales and purchase agreement and specimen.
He said he had received the documents and specimen of the couple’s signatures from their lawyer, Messrs Jerald Gomez & Associates.
Lim was testifying in a civil suit brought by Ismail Mahmod, 75, and Sadiah Abdullah, 65, against five parties, including a law firm and a bank, for alleged breach of trust and misrepresentation.
Lim told judge Datuk Arifin Zakaria that Ismail’s signature was different in terms of the angularity of the signature, the connecting stroke between two alphabets, the formation of alphabets, the pen lift and underscore of the signature.
In Sadiah’s case, Lim said, the differences were in terms of alphabet design, pen pressure and penmanship.
The couple claims that the sale of their 4.05ha land, worth RM7.5m in 1999, to Ismail Husin has resulted in severe losses as they have yet to receive the balance sale price of the RM7.3 million.
They also claim that they are now responsible for a RM23.5 million mortgage on the land.
In the suit against Ismail Husin, lawyer Abdul Aziz Ahmad, law firm Messrs Sajali & Aziz, Bank Kerjasama Rakyat Malaysia and Vest Hong, the couple are seeking the return of the land or in the alternative, payment of the outstanding RM7.3 million.
Ahmad Badri Idrus, representing Ismail Husin, applied to cross-examine Lim on a later date.
He said the issue is technical and needs further study, and that the chemistry report has only been served on the defendants today.
Azlan Khamis, for Abdul Aziz and his law firm, asked for two more samples of the couple’s signatures for analysis.
Arifin granted their applications and set Nov 6 and 7 for the next hearing.
NST January 28, 2002
Pensioner: I trusted lawyer and so I signed documents
KUALA LUMPUR, Mon – A pensioner told the High Court today that he trusted a lawyer to handle a sale and purchase agreement to sell his land for RM7.5 million and signed many documents without asking what they were.
“I did not ask (lawyer Abdul Aziz Ahmad), I just signed as he had instructed,” said Ismail Mohamad, 75.
Questioned by counsel Azlan Kamis, for Abdul Aziz, Ismail Mohamad said the lawyer had told him that after an initial deposit of RM200,000 was paid to him (Ismail Mohamad), the balance of the purchase price would be settled in three months.
He said Abdul Aziz only told him to come to his office to sign the SPA (on July 30, 1999, at the legal firm of Sajali and Aziz, which is the third defendant in the suit).
When asked why he did not obtain advice or the services of another lawyer before signing the SPA, Ismail Mohamad said, “Because I trusted Abdul Aziz.”
He said Abdul Aziz did not force him to sign but told him to sign many documents.
Ismail Mohamad said he knew the transaction was important but he did not understand its contents.
“I did not suspect anything during that time.
He said he banked in a cheque for RM150.000 given to him by Abdul Aziz (part of the deposit) at Tabung Haji when he returned to Penang a few days after signing the SPA.
Ismail Mohamad was testifying in a suit brought by him and his wife Sadiah Abdullah, 64, against Ismail Husin (the purchaser ), Abdul Aziz, the legal firm, Bank Kerjasama Raykat Malaysia Berhad and Vest Hong Enterprise Sdn Bhd for alleged misrepresentation, negligence, fraud and breach of trust over the SPA for his 10 acre(4-5ha) land in Seberang Prai Selatan, Penang.
In their statement of claim dated Dec 23, 1999, they alleged that Ismail Husin and Abdul Aziz never told them that, among others, the bank had approved a RM16 million loan facility to Vest Hong Enterprise to finance the purchase of machinery.
They claimed that the loan was not financing the purchase of the land and that the title deed had been released to the bank as security for the loan facility.
The couple wants, among others, a declaration, a rescission of the SPA and an order that the title deed be returned free from encumbrances.
In their defence Ismail Husin, Abdul Aziz, the legal firm, and the bank denied that they had attempted to cheat or defraud the couple.
Vest Hong Enterprise claimed that the couple had consented to execute a charge on the property in favor of the bank in order to make certain payments.
Counsel Jerald Gomez is representing the couple.
Hearing continues before judge Datuk Arifin Zakaria.
NST August 5, 2003
Lawyer panicked, says witness
KUALA LUMPUR, Mon – A son-in-law of an elderly couple, who claimed to have been misrepresented by a lawyer in a RM7.5 million land sale, said the lawyer panicked when he confronted him three months after the sale and purchase agreement was signed.
Azlan Hassan, 42, said he, together with a woman lawyer by the name of Kim, confronted lawyer Abdul Aziz Ahmad at his office in late October 1999 after he (Azlan) went to Bank Kerjasama Rakyat Malaysia Berhad (Bank Rakyat) to find out why the bank had not released a loan.
The loan was to Ismail Husin, who had purchased a 10acre (4.5ha) land belonging to Azlan’s in-laws, Ismail Mohmad, 76, and claimed they had yet to receive the full payment.
(The SPA was signed on July 30, 1999.)
Cross examined by counsel Azlan Khamis, representing Aziz and the legal firm Sajali & Aziz, Azlan Hassan said during the meeting, Aziz had shown him and Kim several documents such as a mortgage form and a loan offer letter, which he had never seen before.
Azlan, who was asked by his in-laws to pursue the payment, said Aziz “looked panicky when Miss Kim posed so many questions to him”.
Asked by the couple’s counsel, Jerald Gomez, during re-examination to elaborate, Azlan said, “His spectacles and the pen he was holding fell when he showed me the documents which I had never seen before.”
Azlan was testifying in a suit brought by his in-laws against Ismail Husin, Aziz, the legal firm, Bank Rakyat and Vest Hong Enterprise Sdn Bhd for alleged misrepresentation, negligence, fraud and breach of trust over the SPA for the land in Seberang Prai Selatan, Penang.
In their statement of claim dated Dec 23, 1999, they alleged that Ismail Husin and Aziz never told them that, among others, the bank had approved a RM16 million loan facility to Vest Hong Enterprise to finance the purchase of machinery.
The couple want, among others, a declaration, a rescission of the sale and purchase agreement and an order that the title deed be returned free from encumbrances.
In their defence, Ismail Husin, Aziz, the legal firm, and the bank denied that they had attempted to cheat or defraud the couple. Vest Hong Enterprise claimed that the couple had consented to execute a charge on the property in favour of the bank in order to make certain payments.
Hearing continues on Wednesday.
NST October 9, 2003
Broker: I wanted to find buyer for 4.5ha land
KUALA LUMPUR, Wed. – A 51-year-old self-employed man who purchased three parcels of land in Penang for RM7.5 million about four years ago told the High Court today that he had no intention of buying the land when he first met the owners in 1996.
“I wanted to find a buyer for the land and did not discuss buying the land for myself,” said Ismail Hussin, who describes himself as a land broker with no fixed income.
He agreed with counsel Mohd Fuad Husami, who represented Bank Kerjasama Rakyat Malaysia, that with his unreliable income he could not afford to buy the land or obtain financing to purchase it.
Fuad was cross-examining Ismail Hussin at the hearing of a suit by Ismail Mohamad and wife, Saadiah Abdullah, for alleged misrepresentation, negligence and breach of trust over the sale and purchase agreement for the land covering 4.5ha in Seberang Prai Selatan, Penang.
The couple named Ismail Hussin, lawyer Abdul Aziz Ahmad, Messrs Sajali and Aziz, Bank Kerjasama Rakyat Malaysia Berhad and Vest Hong Enterprise Sdn Bhd as defendants.
During cross-examination by counsel Azlan Kamis, who represented Abdul Aziz and the legal firm, Ismail Hussin said he purchased the land from the couple to help his friend, Zulkifli Jalaluddin, obtain a bank loan for Vest Hong from Bank Rakyat.
He also said before signing the SPA for the land with Ismail Mohamad and Saadiah, he did not tell them that he was re-selling the land at the higher price to Vest Hong.
In their statement of claim, the couple alleged that Ismail Hussin and Abdul Aziz never told them that, among others, the bank had approved a RM16 million loan facility to Vest Hong to finance the purchase of machinery.
They claimed the title deeds had been released to the bank as security for the loan facility.
The couple wants, among others, a rescission of the SPA and an order that the title deeds be return free from encumbrances.
Hearing continues before judge Datuk Arifin Zakaria.
Reports
24 Mar 2007 26 Jun 2005 9 Oct 2003Judgements
23 Mar 2007 Court of Appeal 25 Jun 2005 High Court