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1. Zuliaha bt Selamat & Anor v Majlis Amanah Rakyat & Anor [2023] MLJU 2012
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Leviin Ganess a/l Nagaraju
 ZULIAHA BT SELAMAT & ANOR v MAJLIS AMANAH RAKYAT & ANOR
CaseAnalysis
| [2023] MLJU 2012

Zuliaha bt Selamat & Anor v Majlis Amanah Rakyat & Anor [2023] MLJU
2012
Malayan Law Journal Unreported

HIGH COURT (MUAR)

SURIA KUMAR DURAIRAJ JOHNSON PAUL JC
SAMAN PEMULA NO JB-24NCVC-546-11/2022
25 May 2023

Yong Ii Yang (with Sim Liang Shian) (Suzannah & Assoc) for the appellant.
Anis Hasliza bt Ajis (Azmi Anis & Assoc) for the first respondent.
Muhammad ‘Azzam bin Zainal Abidin (Pejabat Penasihat Undang-Undang Negeri Johor) for the second
respondent.

Suria Kumar DJ Paul JC:

GROUNDS OF JUDGMENTINTRODUCTION

[1]This is an appeal by the Appellants against the decision of the Batu Pahat Land Administrator in granting an
Order for Sale on 02.08.2022 for the land known as No. Hakmilik Geran Mukim 5268 Lot 2389 Mukim Tanjong
Sembrong, Daerah Batu Pahat, Negeri Johor (hereinafter referred to as “the said property”).
BACKGROUND

[2]Pursuant to a Letter of Offer dated 11.10.2006, the 1st Respondent granted a loan facility in the sum of
RM1,979,323.00 to a company known as Invitrotech Sdn. Bhd. (hereinafter referred to as the “Company”) in
accordance with Qardul Hasan principle pursuant to the Qadrul Hasan Agreement dated 22.1.2007.

[3]As a security towards granting of the said loan facility, the following two (2) properties were furnished by way of a
3rd party charge:-
(a) GM 5268 Lot 2389 Mukim Tanjong Sembrong, Daerah Batu Pahat, Negeri Johor;
(b) GM 4728 Lot 262, Mukim Tanjong Sembrong, Daerah Batu Pahat, Negeri Johor.

[4]Appellants are the registered proprietors of the property known as GM 5268 Lot 2389 Mukim Tanjong Sembrong,
Daerah Batu Pahat, Negeri Johor, and this appeal concerns an order for sale granted for this property.

[5]Apart from the 3rd party charges, the 1st Appellant and one Ahmad Sukri bin Ibrahim being directors of the
Company also provided a Guarantee dated 22.1.2007 to the 1st Respondent for granting of the loan facility to the
Company.

[6]The Company defaulted on the loan repayment and the 1st Respondent issued Form 16D on 19.2.2020
demanding the outstanding sum RM1,979,226.33.

[7]Thereafter, the Company made four (4) payments of RM2,000.00 each totaling RM8,000.00 towards the
outstanding loan sum.

[8]Since the Company failed to remedy the breach, 1st Respondent filed Form 16G with the 2nd Respondent’s Land
Office to obtain an order for sale for the said property.

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[9]On 13.10.2020, an Inquiry was held before the Land Administrator. The Appellants were not present and the
Land Administrator granted an order for sale.

[10]The order for sale in Form 16M was issued by the 2nd Respondent fixing the reserve price at RM140,000.00
and the auction was fixed on 16.12.2020.

[11]This was followed by an Appeal filed by the Appellants to set aside the order for sale on the ground that they
were not heard during the inquiry by the 2nd Respondent and they have a right to be heard.

[12]Their appeal was allowed by His Lordship Awang Armadajaya Bin Awang Mahmud (JC) on 22.6.2021. Hence
the first order for sale was set aside and Court ordered a new inquiry to be held by the 2nd Respondent.

[13]The 1st Respondent thereafter wrote to the 2nd Respondent and obtained a new date for inquiry which was fixed
on 7.6.2022. On this date, the Appellants were present and requested an adjournment for two (2) months to
negotiate a settlement. The inquiry was then adjourned to 2.8.2022.

[14]On 2.8.2022, the 1st Respondent informed the 2nd Respondent that no settlement was reached and upon
hearing both parties, the Land Administrator proceeded to grant an order for sale for the said property. The reserve
price was fixed at RM140,000.00 and the auction was fixed on 9.11.2022.

[15]Hence, the Appellant now appeals against the second order for sale granted on 2.8.2022.
PRELIMINARY POINT

[16]When this matter first came up before me on 2.11.2022, the 1st Respondent had already filed and served their
Affidavit in Reply. I then directed the Appellants to file their reply if any on or before 21.11.2022 and ruled that the
exchange of Affidavits between the Appellants and 1st Respondent thereafter is deemed to be closed.

[17]However, when this matter came up before me on 11.1.2023, I noted that the Appellants had filed an Additional
Affidavit on 21.12.2022 producing the “Catatan Siasatan Lelong” made by the Land Administrator from the 2nd
Respondent. This was against my directions that no further Affidavit shall be filed after 21.11.2022. This Additional
Affidavit was also filed without leave of this Court. As such I rule that this Additional Affidavit in Enclosure 12 will not
be considered in this Appeal.

[18]In any event, the Appellants are not prejudiced by the exclusion of this Additional Affidavit since they can
always refer to the “Catatan Siasatan Lelong” produced by the 2nd Respondent in the 2nd Respondent’s Affidavit in
Reply.
ANALYSIS AND FINDINGApplication for Order for Sale barred by Limitation Act, 1953

[19]Appellants contend that loans were disbursed to the company on 13.03.2007 and 16.05.2007 respectively and
pursuant to clause 3.04 of the Loan Agreement, they have to service the 1st instalment commencing on 01.04.2008.
As such the application for order for sale filed by the Appellant 12 years later on 20.07.2020 is time barred.

[20]I note that apart from making this general averment in their Affidavit as to when the company was supposed to
commence repayment of the loan, Appellants did not condescend to any other particulars as to how the 1st
Respondent’s application for an order for sale is time- barred or produce any documents in support of this
contention.

[21]Neither did the 1st Respondent aver as to when the loan repayment became due and payable or furnish details
of the default and the amount outstanding apart from producing Form 16H. No statement of account is produced to
show how the outstanding sum of RM1,979226.33 was derived and the arrears of interest calculated.

[22]Form 16D dated 19.02.2020 was served on the Appellants. The 1st Respondent argues that their right to
enforce the charge only arose upon expiry of 30 days from the date Form 16D was served on the Company and
when the said Company failed to remedy the breach stated in the said notice. In support of this argument, counsel
for the 1st Respondent relies on the judgment of Ahmad Maarop PCA in CIMB BANK BHD V SIVADEVI A/P
SIVALINGAM [2020] 1 MLJ 583.

[23]Although it was a unanimous decision in Sivadevi (supra) however His Lordship Ahmad Maarop PCA and Her
Ladyship Rohana Yusuf FCJ (as she then was) arrived at different reasoning in allowing the Appeal.

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[24]His Lordship Ahmad Maarop PCA held that the Plaintiff therein was exercising their statutory remedy against
the chargor in default. According to His Lordship, it is an exercise of statutory remedy pursuant to Section 256 NLC
1965 and the cause of action only accrues upon service of Form 16D specifying the breach in question requiring the
chargor to remedy the breach within one month from the date of service and when the chargor fails to remedy the
breach. His Lordship then went on further to say Section 21(1) Limitation Act 1953 applies to such an action.

[25]Whereas Her Ladyship Rohana Yusuf FCJ (as she then was) decided that proceedings commenced by a
chargee for the sale of land pursuant to Sections 256 or 260 of the NLC are not subjected to Section 21(1)
Limitation Act, 1959. Her reasoning was also concurred by Mohd Zawawi Bin Salleh FCJ.

[26]However, in a very recent decision by the Federal Court in Thameez Nisha Hasseem (As the Administrator
of the Estate of Bee Fathima @ dll, Deceased) v Maybank Allied Bank Berhad, Sivadevi’s (supra) case was
revisited and the Federal Court held that section 21(1) of the Limitation Act 1953 applies to charge actions and the
period of limitation commences from the date of the

failure to repay the debt and not from the failure to remedy the 16D notice. This is in contrast to what was decided
in Sivadevi (supra).

[27]Federal Court’s decision in Thameez (supra) is in line with the decision of the Court of Appeal in Wan
Zubaidah Wan Mahmood (As The Representative Of The Estate Of Nik Ab Rahman Nik Mat, Deceased) & Anor v.
CIMB Bank Bhd [2019] 8 CLJ 197 relied on by the Appellants which held that an application for judicial sale under
section 256 NLC is subject to the limitation provision in Section 21 (1) Limitation Act 1953.

[28]Applying the Federal Court’s decision in Thameez (supra) to learned counsel for the Appellant’s argument that
the repayment of the loan was due on 01.04.2008, would mean the 1st Respondent’s application for an order for
sale filed on 20.07.2020 i.e. after a period of more than 12 years is time-barred.
Acknowledgment of the Debt

[29]The 1st Respondent argues further that in the event that the defence of limitation applies, the outstanding debt
has been revived by part payments made towards the loan account.

[30]The 1st Respondent aver in their Affidavit in Reply that the Appellants made six (6) installment payments of
RM2,000.00 each on 3.2.2020, 9.3.2020, 1.6.2020, 12.7.2020, 8.8.2020, 9.10.2020 totaling RM12,000.00 towards
the outstanding loan account.

[31]The Appellants do not deny these payments but they say, it was made by the guarantor to the loan facility, one
Ahmad Sukri bin Ibrahim who was tricked by the 1st Respondent into making this payment. However, they produce
no evidence from this guarantor in support of this allegation. The search from companies commission on the
borrower company shows that the guarantor was a former director of the company.

[32]There is no Affidavit filed nor any police report lodged or letter of objections sent to the 1st Respondent by the
guarantor pertaining to the allegation of being tricked into making the payment to revive the outstanding debt due to
the 1st Respondent.

[33]In the circumstances, I find that part payment in the total sum of RM12,000.00 was made in the year 2020
towards the 1st Respondent’s outstanding loan account.

[34]According to the 1st Respondent, these part payments have revived the outstanding debt from the loan account
and give rise to a fresh accrual of action from the date of an acknowledgment as envisaged in Section 26 (1) (b)
Limitation Act 1953 that provides as follows:-

Where there has accrued any right of action to recover land or to enforce a mortgage or charge in respect of land or
personal property, and-
(a) …………………………….. ; or

(b) in the case of any such action by a mortgage or charge, the person in possession as aforesaid or the person
liable for the debt secured by the mortgage or charge makes any payment in respect thereof, whether principal
or interest,

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the right shall be deemed to have accrued on and not before the date of the acknowledgment or last payment.” [emphasis
added].

[35]In support of this argument, the 1st Respondent relies in the Federal Court’s decision in Tenaga Nasional Bhd v
Pearl Island Resort Development Sdn Bhd [2017] 9 CLJ 185 that decided as follows:-

“The payment by the bank pursuant to the call on the bank guarantee amounted to part payment of the debt owed by the
respondent within the meaning of s. 26(2) of the Act, with the result that the right of action shall be deemed to have accrued
on and not before the date of the last payment ie, 31 May 2006. So, when TNB filed its suit on 28 February 2012, the action
was not time barred”

[36]As such, the 1st Respondent argues that their application for order for sale filed on 20.07.2020 after part
payments towards the outstanding loan account made on 3.2.2020, 9.3.2020, 1.6.2020, 12.7.2020 by the
Appellants is within time and not barred by limitation.

[37]However, on the other hand, learned counsel for the Appellants argue that the Federal Court’s decision in the
Pearl Island Resort case (supra) is not relevant to the present case because that case concerns the interpretation
of Section 26(2) Limitation Act 1953 which only applies for recovery of debt.

[38]Learned counsel for the Appellants further argue that Section 26(1) Limitation Act 1953 is applicable to the
present case as it concerns an action to enforce a mortgage or charge and submits that the word “person liable
for the debt secured by the mortgage or charge makes any payment...” in this sub-section refers strictly to the
chargor as the chargor is responsible for the debt secured by the charge.

[39]In other words, according to learned counsel for the Appellants, in order to revive the charge action that is time-
barred, the payment must be made by the chargor towards the outstanding loan account, and in our present case,
there is no payment made by the Appellants as chargors.

[40]According to learned counsel for the Appellants, this is in contrast to the provision in Section 26(2) Limitation
Act 1953 where the word “the person liable or accountable therefore acknowledges...” is used and in the Pearl
Island Resort case (supra) the reference to the person accountable was held to mean a third party such as a
guarantor. This sub-section is produced below:-

“(2) Where any right of action has accrued to recover any debt or other liquidated pecuniary claim, or any claim to the
personal estate of a deceased person or to any share or interest therein, and the person liable or accountable therefor
acknowledges the claim or makes any payment in respect thereof, the right shall be deemed to have accrued on and not
before the date of the acknowledgment or the last payment:

Provided that a payment of a part of the rent or interest due at any time shall not extend the period for claiming the
remainder of the rent or interest then due, but any payment of interest shall have effect, for the purposes of this subsection
only, as if it were a payment in respect of the principal debt. [emphasis added]”

[41]It must be noted, the word person liable appears in both the sub-sections in Section 26 Limitation Act 1953.

[42]With due respect to learned counsel for the Appellants, I disagree with his contention. A careful reading of the
Federal Court’s decision in Pearl Island Resort (supra) shows that the word “person liable” is defined as may or
may not be the principal debtor and covers a third party who makes payment in respect of the debt. The relevant
parts of the Federal Court’s judgment are reproduced below:-

“[37] The expression, the person liable is not defined in the Act. A similar expression appears in s. 19 of the Indian
Limitation Act 1963.

[38] Although the wording of s. 19 of the Indian Limitation Act 1963 is not the same as s. 26(2) of our Act, it also provides
that a fresh period of limitation shall be computed from the time when the payment was made. The courts in India had
interpreted the expression, the person liable as including third party: See Askaram Sowkar (Decree Holder) v.
Venkataswami Naidu & 2 Ors [1920] Ind. LR Vol. XLIV 544, Bhuban Mohan Sinha v. Ram Sobinda Goswami [1926] Ind,
LR Vol. LIV 179 (Calcutta Series); National Bank of Upper India v. Bansidhar [1930] 32 BOMLR 136.

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[39] Mitra’s Law of Limitation & Prescription, Vol. 1, 12th edn. Reprint 2010 in its commentaries on s. 19 of the Indian
Limitation Act 1963 at p. 609 expressed the following view:

Payment by whom - The expression “the person liable to pay the debt, taken by itself, is perhaps more
extensive than the term the debtor.”

[40] Now, consider s. 26(2) of the Act. The first thing to note is that s. 26(2) of the Act uses the word ‘person’, which
is a wider term, instead of the word, ‘debtor’. This manifests a clear intention of the Legislature that the person
liable or the person accountable under s. 26(2) of the Act may or may not be the principal debtor. It is plain and
obvious that the said phrase covers a third party (other than the principal debtor) who makes payment in respect
of the debt. (emphasis added)”

[43]Further, in Bhuban Mohan Sinha v Ram Gobinda Goswaami [1926] Ind LR Vol LIV 179 (Calcutta Series), BB
Ghose and Cammiade JJ in interpreting the word “the person liable to pay

the debt” in Section 20 of the Indian Limitation Act came to the following conclusion:-

“In our opinion, it cannot be said that the expression “person liable to pay the debt” must mean one personally
liable to pay the debt. (emphasis added)”

[44]I therefore find the Appellants’ contention that the meaning of the word person liable referring to the chargor
and not to a third party such as the guarantor has no merit.

[45]As such, I find the part payments made towards the outstanding loan account by the Guarantor have revived
the 1st Respondent’s charge action and is no longer time-barred.

[46]In any event, a guarantor himself is a person legally bound by the contract to pay. See Bolding v Lane (1863)
46 E.R. 47 and Annappa Gauda v Sangadigyapa (1901) ILR 26 Bom 221 (FB).

[47]Hence, I dismiss this ground of appeal.

[48]Next counsel for the Appellants also relies on Section 21(5) Limitation Act, 1953. This section relates to the
limitation period for recovery of arrears of interest.

[49]Apart from making a general averment in their Affidavit that the 1st Respondent’s application for order for sale is
also barred pursuant to Section 21(5) Limitation Act 1953, Appellants did not produce any evidence to show how is
the 1st Respondent’s claim for arrears of interest is barred by Section 21(5) Limitation Act, 1953. Neither

did the Appellants condescend to any particulars in their Affidavit as to details of the accrued arrears of interest and
when it became due and payable to the 1st Respondent and which period of the outstanding interest claimed by the
1st Respondent is time-barred. Nor did the Appellants produce any supporting documents to support this contention.

[50]As such Court is not in a position to determine whether the 1st Respondent’s claim for interest is time-barred as
alleged by the Appellants. The burden is on the Appellants to convince the Court that the 1st Respondents’ claim for
interest is time-barred but they failed to do so.

[51]In any event the accrued interest would have merged into the principal debt as part of the outstanding loan
sum. Therefore, since the outstanding debt from the loan account has been revived by the payments made by the
guarantor, a fresh accrual of action for the outstanding interest which has merged into the principal debt would have
arisen from the date of acknowledgment of the debt.

[52]I, therefore, find no merit in this ground of appeal and dismiss the same.
The correct proposition of law to follow in respect of decisions given per incuriam

[53]Next, before I move on to the next ground of Appeal, I would like to address a pertinent point raised by the
learned counsel for the Appellants in his submission in relation to the Federal Court’s decision in Sivadevi’s case
(supra).

[54]Prior to the decision in Thameez (supra), counsel for the Appellants invited me not to follow the Federal Court’s

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decision in Sivadevi (supra) on the ground it was decided per incuriam without considering the definition of “cause
of action” and “right to receive money” in Section 2(6) Limitation Act 1953.

[55]Although Sivadevi (supra) is no longer good law, I am compelled to address the correct proposition of law in
relation to per incuriam which I think is important so that parties are not misled when addressing the Court.

[56]In support of his argument that the decision of the Federal Court in Sivadevi (supra) was decided per incuriam,
learned counsel for the Appellants relied in the judgement of Gopal Sri Ram JCA (as he then was) in Subramaniam
A/L NS Dhurai v Sandrakasan a/l Retnasamy & Ors [2005] 6 MLJ 120 wherein His Lordship held:-

“[13] It can be seen at once that the Federal Court equated a ‘proprietor’ with a ‘purchaser’. In doing so it overlooked s 5 of
the Code that provides separate definitions of these two words indicating in clear terms that they are different statutory
concepts. It also overlooked the decision of the Supreme Court in M & J Frozen Foods. Accordingly, I am of the very
respectful view that the decision of the Federal Court is per incuriam and not good law.

[14] In Goverment of Malaysia v Lim Kit Siang [1988] 2 MLJ 12, Abdul Hamid CJ (Malaya) quoted with approval the
following passage in the judgment of the English Court of Appeal in Young v Bristol Aeroplane Co Ltd [1944] KB 718 at p
729 [1946] AC 163-

Where the court has construed a statute or a rule having the force of a statute its decision stands on the same footing
as any other decision on a question of law, but where the court is satisfied that an earlier decision was given in
ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our
opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to
follow a decision of its own given when that provision was not present to its mind. Cases of this description are
examples of decisions given per incuriam. We do not think that it would be right to say that there may not be other
cases of decisions given per incuriam in which this court might properly consider itself entitled not to follow an earlier
decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with
their special facts. (emphasis added.)

[15] Young v Bristol Aeroplane Co Ltd is also authority for the proposition that there are conflicting decisions of
the Court of Appeal, this court is free to [choose which it will follow. Further, in Midland Bank Trust Co Ltd v Hett,
Stubbs & Kemp [1979] Ch 384 Oliver J (later Lord Oliver of Aylmerton) suggested that where there are conflicting
decisions of the Court of Appeal, a High Court is free to choose which decision to follow.

[16] I accept that the observations in Young v Bristol Aeroplane Co Ltd refer to the Court of Appeal. But I see no
difference in principle in relation to this Court and the Federal Court. If it is demonstrated to a conviction that a
decision of the Federal Court was arrived at — to borrow the words from Young v Bristol Aeroplane Co Ltd — ‘in
ignorance of the terms of a statute’ are we nevertheless to apply it? I do not think so. In support I cite the following
passage from the well-respected work ‘Jurisprudence’ by Professor Dias (1985):

If the reasoning behind a decision is shown to have been faulty by a higher court, or even by a court of co-
ordinate authority, that decision may again be disregarded. [emphasis added]

[18] So too here. It is plain that the Federal Court in the Adorna Properties case did not have regard to the earlier decision
of the Supreme Court in M & J Frozen Foods. Worse, it did not have regard to s 5 of the Code. I do not think that I should
fall off the proverbial cliff. I think that I must strike out in the right direction.”

[57]Learned counsel for the Appellants also relied on another decision by Gopal Sri Ram JCA (as he then was) in
Abu Bakar bin Ismail & Anor v Ismail bin Husin & Ors and Other Appeals [2007] 4 MLJ 489 wherein His Lordship
reiterated his earlier decision in Subramaniam’s case (supra) as follows:-

“[19] Since writing this judgment in draft, I have had the advantage of reading the valuable concurrence of my learned
brother Raus Sharif JCA. I understand and appreciate my learned brother’s reluctance to depart from Adorna Properties as
it is a decision of the Federal Court. I would have joined in his view had Adorna Properties declared a principle of the
common law based on policy considerations as was the case of Donoughue v Stevenson [1932] AC 562. But Adorna
Properties is not such a case. It is a case involving the interpretation of a provision in a statute, namely, s 340 of the Code
which I have demonstrated in Subramaniam v Sandrakasan to have been done without having regard to another provision

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in the Code and without reference to the decision of the Supreme Court in M & J Frozen Foods Sdn Bhd & Anor v Siland
Sdn Bhd & Anor [1994] 1 MLJ 294 which held that the Code creates deferred and not immediate indefeasibility.

[20] As such, in impugning the decision in Adorna Properties, I would take refuge in the following words of the great jurist
Sir John Salmond in his Treatise on Jurisprudence (12th Ed) at pp 151–152:

A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute, ie, delegated
legislation. This rule was laid down for the House of Lords by Lord Halsbury in the leading case (London Street
Tramways v LCC (1898) AC 375) and for the Court of Appeal it was given as the leading example of a decision per
incuriam which would not be binding on the court (Young v Bristol Aeroplane Co Ltd (194) KR at p 729 (CA)) The rule
apparently applies even though the earlier court knew of the statute in question, if it did not refer to, and had not
present to its mind, the precise terms of the statute. Similarly, a court may know of the existence of a statute and yet
not appreciate its relevance to the matter in hand; such a mistake is again such incuriam as to vitiate the decision.
Even a lower court can impugn a precedent on such grounds. (emphasis added).”

[58]In both the above cases, His Lordship Sri Ram JCA (as he then was) relied on the English case in Young v
Bristol Aeroplane Co Ltd (194) KR at p 729 (CA) in deciding not to follow the Federal Court’s decision in Adorna
Properties on the ground it was decided per incuriam and not good law without having regard to another provision
in the National Land Code. I strongly believe His Lordship Gopal Sri Ram (JCA) (as he then was) must have had
good reasons to depart from the decision of the Federal Court in Adorna Properties in both cases to prevent
injustice to litigants due to the decision of the Federal Court in Adorna Properties.

[59]However, with the utmost respect to His Lordship Gopal Sri Ram JCA (as he then was) I beg to differ with his
views on the proposition of law decided in the English case of Young v Bristol Aeroplane Co Ltd (supra).

[60]I am bound by the correct proposition of law as stated by His Lordship Edgar Joseph Jr in the Federal Court in
The Co-Operative Central Bank Ltd v. Feyen Development Sdn Bhd [1997] 3 CLJ 365 wherein it was decided that
a Court in the lower tier must loyally accept the decision of the higher tiers. This can be seen from the Judgement of
Edgar Joseph Jr FJ as follows:-

“[1] It is elementary that a decision would have been given per incuriam if a statute or a rule which would have affected the
decision was not brought to the attention of the Court. Conversely, an obiter dictum is a mere chance remark by the Court
and is used in contradistinction to a ratio decidendi or a rule of law for which a case is authority. Thus, and so, it was
obvious that the Court of Appeal, in Harta Empat, had meant to say that the decision of the Federal Court in Feyen was
given per incuriam.

[1a] It is not open to the Court of Appeal to give gratuitous advice to Judges of first instance to ignore decisions of
the Federal Court; if it were open to the Court of Appeal to do so, it would be highly undesirable. In the hierarchical
system of Courts that exists in this country, it is necessary for each lower tier, including the Court of Appeal, to
accept loyally the decisions of the higher tiers. Where decisions manifestly conflict, the decision in Young v.
Bristol Aeroplane Co. offers guidance to each tier in matters affecting its own decisions. It does not entitle it to
question considered decisions in the upper tiers with the same freedom. It is hoped that it will not be necessary
for the Federal Court to have to remind the Court of Appeal of this principle over and again. (emphasis added)”

Alternatively, the application for order for sale is barred by the doctrine of laches and acquiescence

[61]Next, learned counsel for the Appellants rely on the ground that the 1st Respondent’s foreclose proceeding is
barred by the doctrine of laches and acquiescence.

[62]The Appellants rely on the Federal Court’s decision in Sivadevi (supra) wherein it was decided that if the
chargee bank takes forever to act or to enforce the charge, defences such as laches, acquiescence, and other
equitable defence may be pleaded against it.

[63]In support of this argument, learned counsel for the Appellants also relies on the decision by His Lordship
Edgar Joseph Jr (as he then was) in Alfred Templeton & Ors v Low Yat Holdings Sdn Bhd & Anor [1989] 2 MLJ
202. I reproduce the relevant paragraphs in his Lordship’s decision pertaining to laches and acquiescence below:-

Laches

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“Laches is an equitable defence implying lapse of time and delay in prosecuting a claim. A court of equity refuses its aid to
a stale demand where the plaintiff has slept upon his rights and acquiesced for a great length of time. He is then said to be
barred by laches. In determining whether there has been such delay as to amount to laches the court considers
whether there has been acquiescence on the plaintiff’s part and any change of position that has occurred on the
part of the defendant. The doctrine of laches rests on the consideration that it is unjust to give a plaintiff a remedy
where he has by his conduct done that which might fairly be regarded as equivalent to a waiver of it or where by
his conduct and neglect he has, though not waiving the remedy. put the other party in a position in which it would
not be reasonable to place him if the remedy were afterwards to be asserted: 14 Halsbury’s Laws of England (3rd
Ed) paras 1181, 1182. Laches has been succinctly described as ‘inaction with one’s eyes open’. (emphasis added)”

Now, can lapse of time and delay, however gross, in a suit seeking final, as opposed to interlocutory relief, of itself amount
to the equitable defence of laches. It is clear that delay in some circumstances can amount to evidence from which the
inference can be drawn that the plaintiff has released (or waived, there seems to be no difference) the claims which he
asserts: lapse of time always gives rise to a presumption that a stale suit is ill-founded. for a reasonable man is not likely to
sleep on his claims if they are well-founded. Whether it does or does not is a question of fact in each case.

It is possible to point to a number of cases in which plaintiffs have been successful in spite of spectacular delays. In
England, in Burroughes v. Abbott [1922] 1 Ch 86, rectification of an instrument was granted after a delay of 12 years: in
Weld v. Petrie [1929] 1 Ch 33 the Court of Appeal held that a mortgagor’s redemption suit was not barred by a delay
of 26 years and in Pickerring v. Lord Stamford [1795] 30 ER 787 was held that after a delay of 35 years, a portion of a
testator’s residuary estate which had been devoted by ten trustees of the testator’s will to charity was really held by them on
trust for the testator’s next of kin. In Australia, a decree of specific performance was granted by the High Court in Fitzgerald
v. Masters [1956] 5 CIR 420, 26 years after the cause of action arose and in Bester v. Perpetual Trustee & Co, Ltd. [1970]
33 NSWR 30, Street J rejected a defence of laches where a plaintiff waited 20 years before commencing a suit to rescind a
transaction on grounds of undue influence. There are many cases which indicate that mere delay is not a defence in Equity.
In 1795, in Pickering v. Lord Stamford (ibid), Arden MR inclined to the view that delay in a situation where no statute of
limitation applied, could have legal effect only if it amounted to a release implied from conduct or was coupled with
detriment to the defendant or a third party.

In Fitzgerald v. Masters (ibid) equitable relief was granted after an inordinate length of time had elapsed. On the point under
discussion, Dixon CJ and Fullager J at p. 433 held that there were no circumstances apart from delay for refusing relief,
thereby (and in my opinion; correctly) holding that mere delay of itself cannot constitute laches. In Fullwood v. Fullwood
[1878] Ch D 176, Fry J held that mere lapse of time affords no bar in Equity.

My research into the authorities on the subject leads me to the conclusion that there are no fixed rules or
principles on which the Court acts and each case is considered on its merits and particular facts. In the case of in
Re Jarvis [1958] 2 All ER 336 Upjohn J said at p. 341:

I have been referred to a number of text books and authorities on this question of laches, acquiescence and delay, but
I forbear from referring to them, for in this realm of law each case depends so much on its own facts that the citation of
other cases having some points of similarity and some of difference does not really assist.

Acquiescence

Sir Samuel Griffith alluded to these different senses in Cashman v. 7 North Golden Gate Mining Co. [1897] 7 QLJ 152,
153-4 where he said:

The term acquiescence is not a term of art. It was used in Courts of equity as a term to characterize a defence which
may be set up by a person against whom another makes a claim for equitable relief. It is a well-known doctrine of
equity that when a person claiming equitable relief has lain for a long time and so conducted himself that it would be
inequitable to permit him to complain of the defendant’s actions, the Court will refuse to grant the relief. The term also
bears another meaning. It may be fairly applied to a man who, seeing an act about to be done to his prejudice, stands
by and does not object to it. He may be very properly said to be acquiescing in that act being done. But the difference
in point of law in the legal consequences of the two kinds of acquiescence is quite clear. A man who stands by and
sees an act about to be done which will be injurious to himself, and makes no objection, cannot complain of that act as
a wrong at all. He never has any right of action, because he stands by and allows the act to be done. Acquiescence

Leviin Ganess a/l Nagaraju

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Zuliaha bt Selamat & Anor v Majlis Amanah Rakyat & Anor [2023] MLJU 2012

in the other sense is a defence to an action for specific relief, on the ground that the plaintiff cannot be
reinstated in his original position without doing injustice to the defendant, but it is not an answer to a cause of
action already accrued.

In Glasson v. Fuller (ibid), Poole J also alluded to the different meanings of the term when he said:

Acquiescence is used in two senses. If one stands by while he sees the violation of his right in progress, and takes no
steps to intervene, he is said to acquiesce in the violation, and he may be thereby debarred from his remedy in respect
of it. This is acquiescence in the true sense, but its effect has nothing to do with the lapse of time. and it has no
relation to laches. In another sense, acquiescence is used to denote that some equitable right of A has been violated,
as where he has been induced to make a gift by undue influence, or where there is a cestui que trust, and his trustee
has purchased the trust property, and that after the influence has ceased or the violation has been brought to his
knowledge he assents to the continuance of the state of affairs resulting from the violation, to the retention of the gift
by the donee, or of the property by the trustee. The lapse of time without proceedings being taken by A is evidence of
such assent, and upon acquiescence of this latter kind the doctrine of laches is based. Acquiescence in the strict
sense implies either that the party acquiescing has abandoned his right, or that he is estopped from asserting it.
Acquiescence in this sense is no more than an instance of estoppel by words or conduct. Laches, acquiescence in the
second sense, is no defence if there is a statute of limitation in operation, unless it exceeds the period allowed by the
statute.”

[64]Bearing these principles in mind and coming back to the facts in our present case, apart from making a bare
averment that the 1st Respondent’s application is barred by the doctrine of laches and acquiescence, Appellants do
not condescend to any particulars as to why they say so. There is no mention as to how their position has changed
or they are prejudiced due to a lapse of time and delay in the 1st Respondent enforcing the charge.

[65]There is no evidence from the Appellants before this Court that their position has changed or they will be
severely prejudiced or they will be put in a position in which it would not be reasonable to place them if the remedy
were afterwards to be asserted. Neither have the Appellants stated how are they prejudiced by lapse of time and
delay in enforcing the charge.

[66]I note that the Appellants who executed a 3rd party charge in favour of the 1st Respondent still remain the
registered proprietors of the land and their position as the registered proprietors has not changed.

[67]In support of this contention, learned counsel for the Appellants also relies on the case of Re Lee Chee
Omnibus Co. Ltd v Chin Sow Lan v Lee Chee Omnibus Co. Ltd & Ors [1969] 2 MLJ 202. However, the facts in that
case are distinguishable. It refers to a delay in making a summary application to rectify the company’s register
pursuant to Companies Act 1965. In any event, the Applicant in that case was given liberty to file a regular action.

[68]If the Appellants contend that there was acquiescence on the part of the 1st Respondent, why then the
Appellants made six (6) installment payments of RM2,000.00 each totaling RM12,000.00 in the year 2020 towards
the outstanding loan account?

[69]As such, I find there is no gross delay or lapse of time in seeking a final relief by the 1st Respondent.

[70]As such, based on these facts, I find that there is no acquiescence on the part of the 1st Respondent nor does
the doctrine of laches apply to bar the Plaintiff’s application for an order for sale.
DECISION

[71]Wherefore for the foregoing reasons, I find there is no merit in the Appellants’ Appeal.

[72]The Appellants’ appeal is hereby dismissed with costs.

End of Document

Leviin Ganess a/l Nagaraju