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"HOW safe is your title?" Twenty years ago, that was one of the most repeated questions posed in newspapers and legal journals in this country.

It was in the aftermath of the well-known case of Boonsom Boonyanit v Adorna Properties [2000] 1 MLJ 241, where the Federal Court sadly made an erroneous decision.

When a similar judicial error occurred in Canada, it took just one year for the legislature (under Bill 152 in 2006) and judiciary to correct it.

In our case, it was a decade before the Federal Court finally took the opportunity in Tan Ying Hong's case [2010] 2 MLJ 1 to correct the past error. Although repeated calls were made for the National Land Code 1965 (NLC) to be amended as soon as possible to set things right, they were sadly ignored.

I remember attending a meeting in Putrajaya where a representative of the Attorney-General's Chambers was also present. When I asked the young lady if the chambers were then looking into the NLC with a view to making a minor amendment of the relevant provision, she replied that the chambers were "waiting for the judiciary to resolve the matter".

I was reminded of those past events recently when I came across a news report of land fraud transactions close to home here in Kedah.

According to a daily, the Malaysian Anti-Corruption Commission (MACC) had arrested five individuals, including three officers and staff of the district and Land Office here, on suspicion of being involved in the land fraud transaction.

The five suspects, including a middle-aged woman, were suspected of having received monies from a landowner as consideration for their assistance in registering 41 other persons as owners of land. The fraudulent transactions were believed to have been carried out in 2019 and 2020.

Kedah MACC director Datuk Shaharom Nizam Abd Manap confirmed that investigations were being carried out under section 17(a) of the Malaysian Anti-Corruption Commission Act 2009 (Act 694).

The suspects, who were arrested in different locations (Alor Star, Pendang and Langkawi), have since been remanded for five days to assist in investigations. The remand orders were issued by Alor Star's magistrate's court assistant registrar Wan Nor Fadzilah Wan Ibrahim.

Section 17(a) MACC Act 2009 describes the offence of "accepting gratification by an agent" and section 17(b) describes the corresponding offence of "giving any gratification to any agent".

The penalty for both offences is described in section 24 — a prison sentence not exceeding 20 years, and a fine of not less than five times the sum or
value of the gratification, or RM10,000, whichever is higher.

Malaysia practises the Torrens System, first introduced by the British Resident in Selangor at the close of the 19th century.

Under the system (known for its cardinal rule "the Register is everything"), where land transactions have complied with the statutory requirements of using the prescribed forms followed by registration, a transferee acquires good title under section 340.

This is the concept of indefeasibility of title (otherwise referred to as "security of tenure"), which is the hallmark of the Torrens system. Unfortunately for us, our Torrens system has a missing element. Unlike Australia or Singapore, we do not have an assurance fund.

Thus, if you are the victim of land fraud or forgery, in order to regain your land title, you have to commence a civil suit (like Boonsom Boonyanit) against the fraudsters, or seek rectification from the court.

Sadly, if you fail, under our present Torrens system, you cannot seek compensation from the authorities for your loss, although you are innocent.

Commendable efforts by the director-general of lands and mines some years back to introduce such a provision into our NLC unfortunately did not get past the cabinet.

And, despite Parliament passing the recent National Land Code (Amendment) Act 2016 as part of our modern land reform, the law on assurance fund is still missing.

So be careful. Don't let yourself become another Boonsom.

The writer was a federal counsel at the Attorney-General's Chambers and visiting professor at Universiti Teknologi Malaysia, Skudai. He is now a full-time consultant, trainer and author