PAKIAM A/P KULAN v SARADHA A/P KANNAN

Case Significance

Applies the maxim nemo dat quod non habet to a trespass claim over an unregistered sub-lot, holding that a later purchaser without registered title cannot invoke deferred indefeasibility against an owner who never sold and still holds her original sale agreement.

This High Court decision at Shah Alam concerns a claim in trespass over an undivided sub-lot of land, and the application of the principle nemo dat quod non habet where a later purchaser has no registered title. The plaintiff claimed a beneficial interest in an undivided sub-lot on land held under master titles, arising from a sale and purchase agreement with the vendors dated 27 April 1984. In 2017 she discovered that the defendant had fenced the sub-lot with zinc sheets, erected structures on it and was occupying it, including with parked trailers, without her knowledge or consent. The plaintiff sued in trespass, seeking vacant possession of the sub-lot, general damages, interest and costs. The defendant resisted the claim on the footing that she was a bona fide purchaser for value, having purchased the sub-lot from a third party in 2012. The Court held that, because there was no registered title, the defendant could not rely on the concept of deferred indefeasibility, and that the maxim nemo dat quod non habet applied — a seller cannot pass a better title than he himself holds. It found that the plaintiff remained the owner, because she had never sold the land and still held her original 1984 sale and purchase agreement, so that the onus shifted to the defendant to prove her own ownership, which she failed to establish. The Court held the defendant liable for trespass and entered judgment for the plaintiff, ordering vacant possession of the sub-lot, the removal of the structures built on it, nominal damages of RM10,000 with interest at five per cent per annum, and costs of RM30,000. The decision illustrates the operation of nemo dat and the limits of a bona fide purchaser defence in the absence of registered title. The decision also reflects that, in the absence of registration, competing claims to land fall to be resolved by ordinary principles of title and proof rather than by the indefeasibility conferred by the register, so that a claimant who can show she never parted with her interest is well placed to recover possession from an occupier who traces her purchase to a seller with nothing to give.