A THAI family is reviving its 27-year old legal battle to reclaim land it lost in Penang, in a case which may see Malaysia headed for arbitration for failing in its international obligations to protect the rights of an investor.

Under the Asean Agreement for the Promotion and Protection of Investments, Malaysia has six months to settle the matter with the estate of Boonsom Boonyanit before arbitration is formally initiated, reports Law360.

Boonsom’s estate filed a notice of dispute to Putrajaya on July 31, accusing Malaysia of contravening its international obligations and for unlawful treatment of the investor (Boonsom).

The July 31 claim stems from the Federal Court’s decision in January 2010 which found a 2004 decision by the same court in Adorna Properties Sdn Bhd v Boonsom Boonyanit to be “erroneous, unjust and a breach of Malaysia’s obligations” under the Asean treaty.

In 1989, Boonsom, who was then living in Bangkok, discovered that two pieces of her land in Tg Bungah, Penang, had been fraudulently transacted on, sold and transferred to Adorna Properties.

An imposter claiming to be Sun Yok Eng @ Boonsom Boonyanit affirmed a statutory declaration on June 18, 1988 that she had lost the original title to the land. The imposter then managed to obtain a certified copy of the title from the Land Office.

On April 6, 1989, the imposter affirmed a second statutory declaration stating that the names Mrs Boonsom Boonyanit and Sun Yok Eng @ Boonsom Boonyanit on the title to the land were one and the same person, that is, Mrs Boonsom Boonyanit (imposter) with a different Thai passport number.

With the declaration, the imposter managed to perfect the registration of the memorandum of transfer in favour of Adorna.

Boonsom then sued for the return of the land. However, in 1995, the High Court ruled in favour of Adorna. On appeal, the Court of Appeal ruled in favour of Boonsoom in 1997.

Adorna then appealed, and the Federal Court, comprising then chief justice Eusoff Chin, chief judge of Malaya Wan Adnan Ismail and justice Abu Mansor Ali, held that Adorna had obtained an indefeasible title notwithstanding the forgery because it was a bona fide purchaser.

Boonsom’s son Kobchai Sosothikul made an application on July 16, 2002, to the Federal Court to set aside the decision. It was dismissed on August 27, 2004.

In 2010, the Federal Court held that the decision in the Adorna case was patently erroneous and unjust and needed to be remedied immediately. The decision came seven months after Boonsom’s death. – August 7, 2017.