Official Searches

Authorities
Section 385
Section 386
POH YANG HONG v. NG LAI YIN &
ORS
[2013] 8 CLJ 964

Facts
The respondent ('the plaintiff') entered into a sale
and purchase agreement with the first defendant
to purchase a piece of land .The plaintiff carried
out a private search on the land. Satisfied that
the first defendant was the registered owner, the
plaintiff made payments for the purchase of the
land.
However, when the plaintiff visited the land, he
was asked to leave by one Mohamad who was
allegedly the owner of the land.
After conducting two official land searches, the
plaintiff discovered that the land was in fact held
under two different titles

 In the High Court, the plaintiff claimed for damages

against the first and second appellants ('the second
and third defendants'),inter alia, that there was
failure to ensure the particulars of the land as per
the registered records of the second defendant's
land registry were at all times accurate. In opposing
the plaintiff's claim, the defendants argued that
they were not liable as the search .
conducted by the plaintiff was a private search
unders. 384 of the National Land Code ('NLC')and
not an official search unders. 385 of the same.

 The High Court held in favour of the plaintiff

on the grounds,inter alia, that (i) there was
breach of statutory duty in failing to maintain
an accurate register of all lands; and (ii) the
2nd defendant was not excluded from liability
in his official capacity in cases where the
person who had requisitioned a private
search had acted to his detriment in relying
on the result of the search carried out by the
officer or staff of the second defendant.

Issue
Whether The Second And Third
Defendants Can Rely On A
Defence Which Was Not Pleaded
In Their Amended Defence?
What was the defence?

 It was contended that since the search

was private search unders. 384 of the
NLC 1965,the plaintiff's claim must fail
because: Firstly, there is no duty of
care owed to the plaintiff and secondly,
the liability of the second and third
defendants to pay compensation
unders. 386 of the NLC 1965is not
triggered off, is fatal to them.

Reasoning
There ought to be no difference, in a private
search or in an official search, because the
object or purpose of the search is the same in
the instant case.
no attempt made by the defendants to the
difference in the nature of and the scope of
work that is required to be and was in fact
undertaken and carried out by the officer or
staff concerned who had conducted the private
search in the instant case as opposed to a
case involving a public search.

Held

Allowed the plaintiffs claims .