1. Ahak Bin Uda v 1. Syarikat Perlombongan Gua Musang Sdn. Bhd. (DA-21NCVC-6-03/2021)

AHAK BIN UDA (No. K/P: 671118-03-5493) (Menyaman untuk diri sendiri dan sebagai Wakil pemilik, penghuni, pemegang dan Penuntut hak tanah adat asli)

AZIZ BIN ANGAH (No. K/P: 881119-03-6207) (Menyaman untuk diri sendiri dan sebagai Wakil pemilik, penghuni, pemegang, dan Penuntut hak tanah adat asli)

ANJANG BIN UDA (No. K/P: 910331-03-6335) (Menyaman untuk diri sendiri dan sebagai wakil pemilik, penghuni, pemegang dan penuntut hak tanah dan adat asli) …PLAINTIF-PLAINTIF

SYARIKAT PERLOMBONGAN GUA MUSANG SDN. BHD.

REDSTAR CAPITAL SDN BHD

AQUA ORION SDN BHD (NO.SYARIKAT: 721401-D) 2

DAMAI CORPORATE SERVICES SDN BHD

SINDIYAN SDN BHD

SINDIYAN AGRO PARK SDN BHD

LADANG KELANTAN SDN BHD

IKRAR BUMI SDN BHD

LADANG ULU NENGGIRI SDN BHD

ILIASCO ENGINEERING & CONSRUCTION SDN BHD

11.

12.

13.

KERAJAAN NEGERI KELANTAN …DEFENDAN-DEFENDAN 3 GROUNDS OF JUDGMENT Introduction [1] This is an application by Plaintiffs vide Notice of Application dated 11/3/2021 for injunction orders under of O29 r1 and r4 Rules of Court 2012 (“ROC”). [2] Initially an ex parte injunction was granted by this court on 18/3/2021 and expired on 8/4/2021. Pending this application, this court had on 25/4/2021 ordered the interim injunction be extended. [3] In the Notice of Application, the Plaintiffs ask the following reliefs;

An injunction to stop and/or restraint all the Defendants and/or their servants and/or agents from conducting all activities of mining, logging and plantation within the vicinity of the customary land of Orang Asli Kg Kelaik pending the disposal of their actions against all Defendants;

An injunction to stop and/or restraint all the Defendants and/or their servants and/or agents from performing any secondary activities of mining, logging and plantation within the vicinity of the customary land of Orang Asli Kg Kelaik pending the disposal of their actions against all Defendants; 4

An injunction to stop and/or restraint all the Defendant 14 and/or their servants and/or agents and/or with assistance and advice of Defendant 12 and 13from approving and/or granting any license involving the said customary land and it’s vicinity pending the disposal of their actions against all Defendants;

An injunction to stop and/or restraint all the Defendants and/or their servants and/or agents from any activity to demolish the said land of any trees and/or the orchard and/or the adjacent forest and/or the grave and/or buildings within the vicinity of the customary land of Orang Asli Kg Kelaik pending the disposal of their actions against all Defendants;

An injunction to stop and/or restraint all the Defendants and/or their servants and/or agents from any activity that could contaminate the rivers and its’ sources on the said land; and

An injunction to stop and/or restraint all the Defendants and/or their servants and/or agents from trespassing and conducting any logging, mining, plantation and/or commercial activities for monetary gain or any businesses on the said land. Factual Background [4] The relevant facts are as follows;

The Plaintiffs are member of Suku Kaum Temiar aboriginal people and are filing this action on behalf of themselves and 5 other residents of Kampung Kelaik, Pos Blau, Gua Musang or Kampung Cabil, Pos Blau, Gua Musang;

Suku Kaum Temiar residing within the vicinity of Native Customary Land of Kg Kelaik and they are known as “Orang

The Plaintiffs claimed that the native customary land is their ancestral land which they depended to forage for their livelihood in accordance with the tradition. The Orang Asli Kg Kelaik have occupied the customary land and have enjoyed such freedom of livelihood within the vicinity of the customary land since time immemorial;

The Plaintiffs claimed the total area of their native customary land are 8923.9 hectares;

However, according to Affidavit in Support in Enclosure 56 and 57, approximately only 28.002 hectares within the area of Kg Kelaik by virtue of Pelan Warta PW 1141 has been reserved as customary land;

The remaining area has been declared as Forest Reserve under section 5 of Forestry Enactment 1939 by virtue of Government of Kelantan Gazette dated 11/10/1990 and is known as Hutan Simpan Sungai Betis;

Certain parts of the remaining portions of the Hutan Simpan Sungai Betis were given to various Defendants in this action 6 for purpose of mining, plantation and timber activities (“commercial activities”);

According to the Plaintiffs, the reserve of the customary land by Defendant 14 was done without the knowledge and consultation with Orang Asli Kg Kelaik and this had effected their livelihood. [5] Accordingly, the Plaintiffs have filed a writ inter alia for the following reliefs; a) A declaration that Orang Asli Kg Kelaik is the beneficial owner of the customary right over the land under common law; b) A declaration that any license or approval issued to Defendant 1 to Defendant 10 are not in accordance with law and thus null and void; c) A declaration that Defendant 11 to Defendant 14 have no right whatsoever to limit the rights of Orang Asli Kg Kelaik over the land; d) A declaration that Defendant 11 to Defendant 14 had failed in their fiduciary duties under the Federal Constitution and other laws; e) A declaration that Defendant 14 had acted against the legitimate expectation of the Orang Asli Kg Kelaik; 7 f) A declaration that Defendant 14 to resurvey the exact customary land of Orang Asli Kg Kelaik with cost to be borne by Defendant 14; g) A declaration for Defendant 14 to gazette the area as Aboriginal Area as provided under the Aboriginal Peoples Act 1954 (“Act 134”); h) A declaration that Defendant 14 to take all necessary actions to protect the Orang Asli Kg Kelaik’s Native Customary land and to prevent it from being trespassed or demolished by Defendant 1 to Defendant 11; i) An order that Defendant 1 to Defendant 10 have trespassed to the land; j) An order that Defendant 1 to Defendant 10 pay for the damages and trespass; k) An injunction to restrain Defendant 1 to Defendant 11 from continuing all the commercial activities on the land; l) A Declaration that Defendant 11 to Defendant 14 adequately compensate Orang Asli Kg Kelaik in accordance to Article 13 of The Federal Constitution or Act 134 or Land Acquisition Act 1960 (“Act 486”); and m) General, aggravated and exemplary damages to the infringement of Orang Asli Kg Kelaik’s rights. 8 [6] Pending the determination of their claims, the Plaintiffs sought this injunction. The law on Interim Injunction [7] The application is sought under O 29 R 1 of ROC 2012 and the O 92 R 4 of ROC 2012. It provides the procedure for an order of such nature to be issued by the court. Basically an interim injunction is an interlocutory order against a legal entity directing them to do or not to do a specified act or acts until the determination of the plaintiff’s claim at full trial. It may be granted at any stage of a suit. [8] Section 51 of Specific Relief Act 1950 provides interim injunction to be continued until a specified time, or until the further order of the court. It provides as follows; “(1) Temporary injunctions are such as are to continue until a specified time, or until the further order of the court. They may be granted at any period of a suit, and are regulated by the law relating to civil procedure.

A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.” 9 [9] The principles and guidelines in granting an interim injunction has been outlined in the case of American Cyanamid Co v Ethicon Ltd [1975] AC 396 It was held in the case that in granting an interlocutory injunction the Court must be satisfied that there is a serious question to be tried. Lord Diplock in delivering judgment of the House said: "The use of such expressions as 'prohibitory', 'a prima facie case' or 'a strong prima facie case' in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief. The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried... " [10] These principles have been adopted by Court of Appeal Keet Gerald Francis Noel John v Mohd Noor @ Harun b Abdullah [1995] 1 MLJ 193. The Court of Appeal has provided the guidelines as follows; “[31] To summarize, a judge hearing an application for an interlocutory injunction should undertake an inquiry along the following lines:

He must ask himself whether the totality of the facts presented before him discloses a bona fide serious issue to be tried. He must, when considering this question, bear in mind that the 10 pleadings and evidence are incomplete at that stage. Above all, he must refrain from making any determination on the merits of the claim or any defence to it. It is sufficient if he identifies with precision on the issues raised on the joinder and decides whether these are serious enough to merit a trial. If he finds, upon a consideration of all the relevant material before him, including submissions of counsel, that no serious question is disclosed, that is an end of the matter and the relief is refused. On the other hand, if he does find that there are serious question to be tried, he should move on to the next step of his inquiry;

Having found that an issue has been disclosed that requires further investigation, he must consider where the justice of the case lies. In making his assessment, he must take into account all relevant matters including the practical realities of the case before him. He must weigh the harm that the injunction would produce by its grant against the harm that would result from its refusal. He is entitled to take into account, inter alia, the relative financial standing of the litigants before him. If after weighing all matters, he comes to the conclusion that the plaintiff would suffer greater injustice if relief is withheld, then he would be entitled to grant the injunction especially if he is satisfied that the plaintiff is in a financial position to meet his undertaking in damages. Similarly if he concludes that the defendant would suffer the 11 greater injustice by the grant of an injunction, he would be entitled to refuse relief....

The judge must have in the forefront of his mind that the remedy that he is asked to administer is discretionary, intended to produce a just result for the period between the date of the application and the trial proper and intended to maintain the status quo,. Accordingly, the judge would be entitled to take into account all discretionary considerations, such as delay in the making of the application or any adequate alternative remedy that would satisfy the plaintiff's equity, such as an award of monetary compensation in the event that he succeeds in establishing his claim at the trial. Any question going to the public interest may, and in appropriate cases should, be taken into account" [11] Having this principles and guidelines in mind, this court will have to analyse all relevant facts adduced by both parties and to determine whatever or not to grant the interim injunction. Analysis and finding of this court Preliminary issue; Whether an interim injunction can be issued against the Government or it’s department/agencies 12 [12] It is undisputed fact that Defendant 13 is a department within the Federal Government while Defendant 11 and 12 are departments within the State Government of Kelantan which is named as Defendant 14. [13] Section 29 of the Government Proceedings Act 1956 (“Act 359”) limits the court’s jurisdiction in granting an injunction against Government. It states as follows; “(1) In any civil proceedings by or against the Government the court shall, subject to this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require: Provided that-

where in any proceedings against the Government any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and

in any proceedings against the Government for the recovery of land or other property the court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against 13 the Government to the land or property or to the possession thereof.

The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Government if the effect of granting the injunction or making the order would be to give any relief against the Government which could not have been obtained in proceedings against the Government.” (emphasis added) [14] On the other hand Section 54 of Specific Relief Act 1950 (“Act 137”) also provides curtailment of court’s jurisdiction towards granting interim injunction against Government. It states as follows; “An injunction cannot be granted-

to stay a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such a restraint is necessary to prevent a multiplicity of proceedings;

to stay proceedings in a court not subordinate to that from which the injunction is sought;

to restrain persons from applying to any legislative body;

to interfere with the public duties of any department of any Government in Malaysia, or with the sovereign acts of a foreign Government; 14

to stay proceedings in any criminal matter;

to prevent the breach of a contract the performance of which would not be specifically enforced;

to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance.

to prevent a continuing breach in which the applicant has acquiesced;

when equally efficacious relief can certainly be obtained by any other usual mode of proceeding, except in case of breach of trust;

when the conduct of the applicant or his agents has been such as to disentitle him to the assistance of the court; or

where the applicant has no personal interest in the matter.” (emphasis added) [15] The leading authority on this issue is in the case of Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12, where Supreme Court held as follows; “This means that no injunction could be directly or indirectly issued against the Government or its officers. Similarly, the Court has no jurisdiction to grant an injunction against a 15 private litigant if the injunction would have the effect of restraining the Government or its officers from performing their functions. This has been the interpretation which has been placed by the Courts in England as well as in this Country.” [16] In Tan Bun Teet & ors v Menteri Sains, Teknologi dan Inovasi [2013] 3 CLJ 1115, the COA followed the Supreme Court’s decision and held as follows; “[14] But that is not all. An injunction, interim/interlocutory or permanent, cannot be granted against the government under s. 29 of the GPA and under s. 54 of the SPA. The authority to support this proposition can be found in the decision of our then Supreme Court in Lim Kit Siang v. United Engineers (M) Bhd & Ors [1987] 2 CLJ 195; [1987] CLJ (Rep) 170 SC. In particular, the relevant passage from the judgment states: This means that no injunction could be directly or indirectly issued against the Government or its officers. Similarly, the court has no jurisdiction to grant an injunction against a private litigant if the injunction would have the effect of 'restraining the Government or its officers from performing their functions. This has been the interpretation which has been placed by the courts in England as well as in this country. [15] The principle of law enunciated above has been reaffirmed by the Court of Appeal in Superintendant of Lands and Surveys, Kuching Division & Ors v. Kuching Waterfront Development Sdn Bhd [2009] 6 CLJ 751..." 16 [17] Likewise is the case of Superintendent of Land and Surveys, Kuching Division & Ors v. Kuching Waterfront Development Sdn Bhd [2009] 6 CLJ 751, where the Court of Appeal held as follows; “As we were satisfied that: i. the combined effect of the hurdle of s. 29(1)(a) of the GPA, in that no injunction may be ordered against the Government, and the preclusion of s. 29(1)(b) of the GPA whereby courts cannot order the recovery of the land from the Government or the delivery of property to the respondent had not been overcome; or ii. the balance of convenience founded on public interest or sufficiency of damages favoured the non-issuance of an injunction, regardless of the above statutory inhibitions,” [18] The consistency of previous decisions can be seen in those precedents and the court finds no reason in this case to depart from these precedents. Wan Ahmad Farid J in Business Leap (M) Bhd v Pesuruhjaya Tanah Persekutuan [2018] 1 LNS 400 had held as follows; “[21] In the result, and I say this with respect, I cannot find any authority from a court of competent jurisdiction that has departed from the majority judgment of the Supreme Court in the United Engineer's case. Neither s. 29 of the GPA nor s. 54 of the SRA makes a distinction between an interlocutory or permanent 17 injunction. Unless there is a parliamentary intervention in the form of a statutory amendment to the relevant provisions of these Acts which expressly makes that distinction, I do not find any amount of judicial creativity and innovation that could alter the position as described by the then Supreme Court in United Engineers. [22] In short, until and unless the vigorous dissenting judgment of Abdoolcader SCJ in United Engineers is adopted by a court of competent jurisdiction, I am bound by the doctrine of stare decisis in holding that an injunction cannot lie against the government or its officer. [23] Applying the aforesaid principle of law as stated by the majority of the Supreme Court, the implication of granting the proposed injunction would be to restrain the defendants from dealing with the said Land. Any restraining order would ultimately interfere with the discharge of the defendants' public duties.” [19] The plaintiff however has cited an earlier decision of the Court of Appeal in the case of Sabil Mulia (M) Sdn Bhd v. Pengarah Hospital Tengku Ampuan Rahimah & Ors [2005] 2 CLJ 122; [2005] 3 MLJ 325 for the proposition that interim injunctions can be ordered against the Government. It seems that there are two conflicting decisions on this issue. [20] In resolving these conflicting decisions, this court referred to the Federal Court case of Dalip Bhagwan Singh v. Public Prosecutor 18 [1997] 4 CLJ 645; [1998] 1 MLJ 1, where Peh Swee Chin FCJ held as follows; “If the House of Lords, and by analogy, the Federal Court, departs from its previous decision when it is right to do so in the circumstances set out above, then also by necessary implication, its decision represents the present state of the law. When two decisions of the Federal Court conflict, on a point of law, the later decision therefore, for the same reasons, prevails over the earlier decision." [21] By virtue of this principle, this court is bound by the later decision of Court of Appeal in Tan Bun Teet (supra) that any injunction ordered by this court against Defendant 11 to 14 would ultimately against Section 29 of the Government Proceedings Act 1956. [22] Be it as it may, this court also finds that the injunction sought by the Plaintiffs is more towards the commercial activities within the vicinity of the claimed customary land. This is clearly not related at all to Defendant 13 since Defendant 13’s responsibilities are more on the administration, welfare and advancement of Orang Asli community. [23] As for the Defendant 11, 12 and 14, their responsibility is in protecting the interest of the State in land matters as provided under the Federal Constitution. Since the land in question has been reserved and declared accordingly and are now subject to certain commercial activities approved by the State authority, any injunction even if the court agree, will no longer have any bearings on them. 19 [24] As such, the court is not granting any injunction against Defendant 11, 12, 13 and 14. Whether there is a serious question to be tried [25] Before indulging into this question, this court must put on record that the Defendants have separately filed applications under O18 r19 to strike out the Writ of Summons and Statement of Claim by the Plaintiffs. Various issues have been ventilated in the Affidavits in Supports based on the principle behind the striking out of pleadings. [26] The principles for striking out pleadings pursuant to O. 18 r. 19 of the ROC 2012 are well settled. It is only in a plain and obvious case that recourse should be had to the summary process be adopted when it can clearly be seen that a claim on the face of it is obviously unsustainable. (see; Bandar Builders Sdn Bhd V. United Malayan Banking Corporation Bhd [1993] 4 CLJ 7). [27] At this juncture, this court is reminded that the evidence are incomplete and as such this court must refrain from making any determination on the merits of the claim or any defence to it. This in this court mind must include any probable issues which would be ventilated by the Defendants in their striking out applications. 20 [28] As can be seen from the Statement of Claim, the pertinent issues to be tried in the Plaintiffs’ action against all Defendants are as follows;

Whether the whole area of the land should be declared by the Defendant 14 as customary land as provided under the Aboriginal Peoples Act 1954; and

Whether all Defendants had trespassed and caused damage to the customary land. [29] These issues are crucial and critical as it will determine the right of the Plaintiffs and the Orang Asli Kg Kelaik to live in their land as their forefather had lived. Any shortfalls of the declaration had and will infringe their constitutional rights to life as promulgated under the Federal Constitution. [30] If the Plaintiffs could prove their claim, any activities on the land may be unlawful and it may tantamount to trespass. [31] In Kerajaan Negeri Johor & Anor v Adong Kuwau & Ors [1998] 2 CLJ 665 the Court of Appeal had referred to the passages of Record of Appeal as follows; “The first of these passages appears at p. 50 of the Appeal Record and reads: "My view is that, and I get support from the decision of Calder's case (Calder v. Attorney-General of British Columbia 21 [1973] 34 DLR (3d) 145) and Mabo's case (Mabo & Ors v. State of Queensland [1986] 64 ALR 1), the aboriginal peoples' rights over the land include the right to move freely about their land, without any form of disturbance or interference and also to live from the produce of the land itself, but not to the land itself in the modern sense that the aborigines can convey, lease out, rent out the land or any produce therein since they have been in continuous and unbroken occupation and/or enjoyment of the rights of the land from time immemorial. I believe this is a common law right which the natives have and which the Canadian and Australian courts have described as native titles and particularly the judgment of Judson J in the Calder case at p. 156 where His Lordship said the rights and which rights include... 'the right to live on their land as their forefathers had lived and that right has not been lawfully extinguished... ' I would agree with this ratio and rule that in Malaysia the aborigines common law rights include, inter alia, the right to live on their land as their forefathers had lived and this would mean that even the future generations of the aboriginal people would be entitled to this right of their forefathers.” (emphasis added) [32] In another case of Kerajaan Negeri Selangor & Ors v Sagong Tasi & Ors [2005] 4 CLJ 169, the Court of Appeal held; “The fact that the plaintiffs enjoy a community title by custom is nothing out of the ordinary. The Privy Council in Amodu Tijani recognized the existence of such title in other jurisdictions. That concept has been re-affirmed by the Constitutional Court of South Africa in Alexkor Ltd v. 22 Richtersveld Community [2003] 12 BCLR 130. Chaskalson CJ said: In the light of the evidence and of the findings by the SCA (Supreme Court of Appeal) and the LCC (Land Claims Court), we are of the view that the real character of the title that the Richtersveld Community possessed in the subject land was a right of communal ownership under indigenous law. The content of that right included the right to exclusive occupation and use of the subject land by members of the Community. The Community had the right to use its water, to use its land for grazing and hunting and to exploit its natural resources, above and beneath the surface. It follows therefore that prior to annexation the Richtersveld Community had a right of ownership in the subject land under indigenous law. So too here. The evidence led in the court below and the findings of fact made by the learned judge which are unchallenged before us leave no room for doubt that the plaintiffs had ownership of the lands in question under a customary community title of a permanent nature. Therefore, it is my considered judgment that the learned judge did not fall into any error when he held that the plaintiffs had customary community title to the land in question. I would accordingly affirm his judgment on this point.” (emphasis added) [33] In order to succeed in their claim, the Plaintiffs will have to bring evidences to court to prove the continuous and unbroken occupation and enjoyment of the land from time immemorial. This is part of the aboriginal’s rights to live in their land as their forefathers 23 had enjoyed. Such rights are recognized and protected under our law. [34] The gazette as exhibited by Defendant 14 and the admissions by most of the Defendants in their affidavits, are a clear recognition of all parties about the existence of the Orang Asli Kg Kelaik and the customary land. The disputes are more towards the area and the size. [35] It is the Plaintiff’s claim that the Orang Asli Kg Kelaik was never consulted when Defendant 14 declared the area which is very pertinent in determining the actual area and size. Defendant 14 was also said to have failed to consider what is known as Orang Asli Kg Kelaik customary rights. [36] These in the opinion of this court lies the serious issues to be tried. [37] This court did not agree with the contentions of most Defendants that Plaintiffs has no locus by virtue of the declaration made by Defendant 14. It is the declaration that is pertinent in the Plaintiffs’ claim and the Plaintiffs’ livelihood affected due to it. [38] The law recognizes the natives’ rights not only for the occupation of their customary rights but also their right to lives from the hunting in the vicinity of the land and collection of jungle produce. This could only be determine from evidences adduced during the trial. Raus Shariff PCA (as he then was) in the majority decision in Director of 24 Forest, Sarawak & Anor v TR Sandah AK Tabau & Ors [2017] 2 MLJ 281 held as follows; “At the risk of repetition, it is my view that the existence of native customary rights requires factual inquiry of the customs and practices of each individual community and not whether the customs appear in the statute book.” [39] This court had also considered the Defendants’ contentions that their existence within the vicinity were due to legal and valid licenses, permits and approval from the authorities. This was argued as the issue of trespass is not a valid issue. This again a serious issue to be tried since the issuance of any licenses or permits or any approval from the authorities are subject to the valid recognition of the actual Orang Asli Kg Kelaik’s customary land. It boils down to the issue of the right area of the land. [40] This court is also not in agreement with the Defendants’ contention that by virtue of section 340 National Land Code (“NLC”), the land tittles issued to them by the State are indefeasible. This court is in the opinion that, the tittles issued are subject to a valid demarcation on the customary land. If it contradicting, then the tittles acquired may be held to be unlawfully acquired. (see; Tan Yin Hong v Tan Sian Sang & ors [2010] MLJ 12) [41] As for Defendant 8, they had raised a specific issue regarding “Sultanate Lands”. According to Defendant 8, the land they are occupying was leased to them by virtue of Lease Agreement dated 19/12/2017 between His Royal Highness Sultan Muhammad V 25 Tengku Muhammad Faris Petra ibni Sultan Ismail and as such it is protected by virtue of Enakmen Tanah Kesultanan No 5 1934. Section 3 of the enactments provides; “Subject to the provisions of this enactment all existing tittles to lands described in Schedule 1, thereto and hereinafter called “Sultanate Lands” are and shall be null and void and such lands together with the income and profits whatsoever arising therefrom are and shall be vested in and be and remain the property of His Highness the Sultan of Kelantan for the time being. When dealing with any Sultanate Land, His Highness the Sultan shall act on the advise of the State Executive Council save as provided in this Enactment.” [42] The question arises as to when was the land declared to be the Sultanate Land and whether that declaration is subject to the customary land bearing in mind the occupation of Orang Asli Kg Kelaik was from time immemorial. This issue for this court is another serious issue to be tried where evidence must be brought forward for court to consider. The sovereignty of the land shall not be absolute and subject to the pre-existing rights over it. [43] This as Raus Sharif PCA (as he then was) in Director of Forest Sarawak v TR Sandah (supra)’s decision as follows; “There was a clear distinction between assumption of sovereignty and tittle to land. The sovereign right to tittle within the state was not absolute but subject to unconfiscated pre-existing rights” 26 [44] On this premise, this court is in the opinion that the Plaintiffs have succeeded in satisfying this court that there exist serious issues to be tried. Whether damages would be adequate remedy [45] Having found that there are serious issues to be tried, this court must then consider all relevant matters including the practical realities of the case. One of the most pertinent and argued in this case is the court have to consider if the Plaintiffs are to succeed at trial, damages would be an adequate remedy and if the Defendants would be is a financial position to pay, no interim injunction should be granted. [46] This court takes cognizance that among the reliefs sought by the Plaintiffs in the writ are damages and compensations. [47] In the case of RHB Bank Ltd v L & R Holding Sdn Bhd & Anor [2011] 3 MLJ 162, Jeffrey Tan had cited American Cynamid Co. v Ethicon Ltd [1975] 1 AER 504 and held; “If damages in the measure recoverable at common law would be adequate remedy and the Defendants would be in a financial position to meet them no interlocutory injunction should normally be granted however strong the plaintiffs’ claim appeared to be at that stage” 27 [48] In this case, if in the final analysis of the whole trial, court is to agree with the Plaintiffs, then the effect would be the entire vicinity claimed by the Plaintiffs would become the aboriginal area or reserve. Defendant 14 may have to re-declare the area so as to include the area left. This as provided under section 7 of Act 134. [49] The rights of the Plaintiffs on the land claimed is merely on equity. That does not limit the power of the state to alienate the land or any part of the land. In other words, the land could legally be excised. Section 12 of Act 134 allows the State Authority to grant compensation in any event if the land is excised from the land reserved. It provides; “If any land is excised from any aboriginal area or aboriginal reserve or if any land in any aboriginal area is alienated, granted, leased for any purpose or otherwise disposed of, or if any right or privilege in any aboriginal area or aboriginal reserve granted to any aborigine or aboriginal community is revoked wholly or in part, the State Authority may grant compensation therefor and may pay such compensation to the persons entitled in his opinion thereto or may, if he thinks fit, pay the same to the Director General to be held by him as a common fund for such persons or for such aboriginal community as shall be directed, and to be administered in such manner as may be prescribed by the Minister.” [50] One of the issues argued before Court of Appeal in Sagong Tasi (supra) was whether the aborigines as a matter of law hold the land in question under customary communal tittle and if they do, whether 28 they should be compensated upon deprivation. Gopal Sri Ram JCA JCA (as he then was) held as follows; “In my judgment, it was open to the judge to have made a finding that the failure or neglect of the first defendant to gazette the area in question also amounted to a breach of fiduciary duty. Here you have a case where the first defendant had knowledge or means of knowledge that some of the plaintiffs had settled on the ungazetted area. It was aware that so long as that area remained ungazetted, the plaintiffs' rights in the land were in serious jeopardy. It was aware of the 'protect and promote' policy that it and the fourth defendant had committed themselves to. The welfare of the plaintiffs, on the particular facts of this case, was therefore not only not protected, but ignored and/or acted against by the first defendant and/or the fourth defendant. These defendants put it out of their contemplation that they were ones there to protect these vulnerable First Peoples of this country. Whom else could these plaintiffs turn to? In that state of affairs, by leaving the plaintiffs exposed to serious losses in terms of their rights in the land, the first and/or fourth defendant committed a breach of fiduciary duty. While being in breach, it hardly now lies in their mouths to say that no compensation is payable because of non-gazettation which is their fault in the first place. I am yet to see a clearer case of a party taking advantage of its own wrong. For these reasons, the plaintiffs were plainly entitled to a declaration that they had customary title to the ungazetted area which is more clearly demarcated in the plan exh. P1 and marked in green and yellow. The strip of land that was excised out of the whole area runs across the portions marked green and yellow as well as the gazetted portion marked in orange. It is the former area in respect of which compensation must be paid in accordance with the 29 1960 Act. This part of the cross appeal must therefore be allowed.” [51] In TH Pelita Sadong Sdn Bhd & Anor v TR Nyutan ak Jami & ors and other appeal [2018] 1 MLJ 77, the issue before the Federal Court was whether under section 15 of the Sarawak Land Code, if the alienation of the state land has the effect of extinguishing or infringing native rights, Government has to make payments of compensation, Raus Sharif PCA (as he then was) held as follows; “[45] Based on the foregoing, and looking at the scheme of the provisions of the Sarawak Land Code, the Code does provide statutory safeguards with regard to the extinguishment of native customary rights. It is crystal clear, from a reading of s. 5(3) of the Sarawak Land Code, that the customary rights may be extinguished, provided that compensation or alternative replacement land with the same rights is made available to any person whose NCR are affected by the direction of the Minister. [46] It is a well-established principle that a court does not make an order in futility. Rectification of title is going to be a futile exercise. The disputed lands are now a registered entity. Thus, the only alternative remedy available to the plaintiffs is for them to be paid adequate compensation. The principle of compensation for loss of livelihood is now well-established. The law, in this case, allows for the 30 extinguishment of NCR where clear words are used in the statute that payment of compensation is provided for. (Bato Bagi & Ors v. Kerajaan Negeri Sarawak & Another Appeal (supra). [47] The extinguishment of NCR with provision for compensation is consistent with the Federal Constitution. Article 13(1) of the Federal Constitution provides that no person shall be deprived of property save in accordance with the law. The law that would apply in this case would be the Sarawak Land Code in particular s. 5(3) and (4) of the said Code. [48] To conclude, by virtue of s. 5(2)(a) of the Sarawak Land Code, the areas claimed by the plaintiffs, which have no document of title, is State land and by reason of s. 5(2)(b) the plaintiffs are deemed to be in occupation thereof as licensees of the Government. This license may be determinable, or the rights claimed thereunder may be extinguished in accordance with the law and upon payment of compensation.” [52] On this premise, this court is in the opinion that the damages would be an adequate remedy. [53] From the affidavits’ evidence, this court found that the Defendants are in the financial position to meet any damages or compensation if in any event the court order. It would be a great injustice to the Defendants if this court is to allow the injunction since most of the 31 Defendants have put huge investments in the commercial activities. Some of the Defendants have started their activities quite sometimes and they have the legitimate expectation of income for what they have invested. Balance of convenience [54] The other consideration which is pertinent is on balance of convenience. The intention of the interim injunction is to maintain the status quo of the land. As it appears today, the part not declared as claim by the Plaintiffs has been alienated, or licenses or approvals have being issued for the purpose of commercial activities. [55] Status quo means a position going back to the original position and circumstances prior to the occurrence of a certain action, omission or incident. It is reverting or returning back to the parties’ original position. (refer to; Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2003] 7 CLJ 457). [56] Lord Diplock in Garden Cottage Foods Ltd v. Milk Marketing Board [1983] 2 All ER 770 said; “The history of the trading relations between the company and the board, as I have outlined them, make it difficult to identify what was the relevant status quo which it was said in the 32 American Cyanamid case it is a counsel of prudence to preserve when other factors are evenly balanced. The status quo is the existing state of affairs; but since states of affairs do not remain static this raises the query: existing when? In my opinion, the relevant status quo to which reference was made in the American Cyanamid case is the state of affairs existing during the period immediately preceding the issue of the writ claiming the permanent injunction or, if there be unreasonably delay between the issue of the writ and the motion for an interlocutory injunction, the period immediately preceding the motion. The duration of that period since the state of affairs last changed must be more than minimal, having regard to the total length of the relationship between the parties in respect of which the injunction is granted; otherwise the state of affairs before the last change would be the relevant status quo.” (emphasis added) [57] What is then the original position of the land as it is at present ? As far as this court is concerned, the land has been alienated or licences or approvals have been issued for purpose of commercial activities on the land. Maintaining the status quo would means maintaining the commercial activities of the Defendants at present. [58] The other issue is in regards to the Plaintiffs’ argument before this court that the Defendants are trespassers. As far as the evidence is concerned, the land has been alienated, or licences or approvals have been issued to various parties for commercial activities. It will 33 be against the principle of law to hold the Defendants as trespasser. The Defendants have entered the land with rights and permissions. [59] In Punca Klasik Sdn. Bhd. v. Liza James & Ors [1996] 3 CLJ 932 it was held as follows; “Who is a trespasser? In law, a trespasser is one who wrongfully enters on land in the possession of another and has neither right nor permission to be on the land. Lord Dunedin in Robert Addie & Sons (Collieries) Ltd. v. Dumbreck [1929] AC 358 at p 371 aptly described a trespasser as one who goes on the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to.” [60] This court also in the opinion that if the court is to allow the interim injunction, it will not revert to the original position but it as if granting a final order or a mandatory injunction since it will disallow the Defendants’ right to continue the activities that they are undertaking at present. [61] Abdul Malik Ishak J (as he then was) had explained the position of interim injunction as against the final order in Ganad Media Sdn Bhd v Dato’ Bandar Kuala Lumpur (No 1) [2002] 1 CLJ 700 as follows; “Lee Hun Hoe CJ (Borneo) in Perumahan Farlim (Pg) Sdn Bhd & Ors v. Cheng Hang Guan & Ors [1989] 2 CLJ 967; 34 ([1989] 1 CLJ (Rep) 127) SC had occasion to consider the meaning to be attached to the word "interlocutory". At p. (at p. 134) of the report, this was what his Lordship had to say: The object of an interlocutory interim injunction is to preserve matters in status quo until the case be tried. Such an injunction is therefore usually so framed as to continue in force until the hearing of the cause or until further order. It cannot be considered in argument as affecting the ultimate decision of a cause. In Gilbert v. Endean [1878] 9 Ch D 259 at pp 268- 9, the matter was clearly stated by Cotton LJ at p 268: ... those applications only are considered interlocutory which do not decide the rights of parties, but are made for the purpose of keeping things in status quo till the rights can be decided, or for the purpose of obtaining some direction of the court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the court ultimately to decide upon the rights of the parties. The same matters before us were argued in the court below. The learned judge had dealt with them in some detail. We have not been persuaded that the learned judge was wrong. We have no reason to interfere with his decision. Accordingly, we would dismiss the appeal with costs. Deposit to the defendants on account of taxed costs. Of course what Cotton LJ said in Gilbert v. Endean [1878] 9 Ch D 259 was correct. Applications which are interlocutory would certainly not decide the rights of the parties. Jeffrey Pinsler in his book entitled, "Civil Procedure", a 1994 edn, echoed the same sentiments at p. 38 thereof: 35 The importance of the interlocutory proceeding lies in the availability and willingness of the court to grant interim relief when appropriate and to ensure that in any situation, the interests of justice are fully served. In most situations, this jurisdiction is brought into being by the application of a party in relation to a particular issue or problem, and therefore initiative is a vital element in the interlocutory process. The test to determine whether an order is interlocutory or final can be found in the case of Bozon v. Altrincham U.D.C. [1903] 1 KB 547, 548. There Lord Alverstone CJ said: Does the... order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order, but if it does not, it is then, in my opinion, an interlocutory” (emphasis added) [62] The evidence adduced by the affidavits in reply have shown that the Defendants have been in the land for sometimes and have invested a huge amount of monies. [63] The Plaintiffs’ claim that if interim injunction is not granted, it will affect their livelihood on the usage of the land, the court is not convinced by this claim. The existence of the Defendants at that vicinity were not new. If the Plaintiffs contended that they were continuously occupying the land, then it is quite unreasonable for them not to realise the existence of the Defendants. 36 [64] On this issue this court is in the opinion that on balance of convenience, it is more incline towards disallowing the injunction and maintaining the present status quo. Conclusion [65] In the upshops, from the analysis, the courts held as follows :

By virtue of Act 359, there shall be no injunction either interim or final against the Government or it’s departments;

There exist serious issues to be tried on the writ by Plaintiffs towards the Defendants;

Nevertheless, even if the Plaintiffs are to succeed in their claim, damages are adequate remedy; and

On balance of convenience it is best to maintain the status quo of the land as it is today. [66] The application in Enclosure 3 is hereby dismissed with no order as to cost. 37 Dated: 26th. September, 2021 (DATUK MOHAMAD ABAZAFREE BIN MOHD ABBAS) Pesuruhjaya Kehakiman Mahkamah Tinggi (2) Kota Bharu Kelantan 38 Counsels: For The Plaintiff : Mr. Sachpreetraj Singh Sohanpal & Mr Arun Ganesh Boopalan Raj & Sach Advocates and Solicitors C-5-42,10 Boulevard PJU 6A, Lebuhraya SPRINT 47400 Petaling Jaya, Selangor. For The 1ST Defendant: Mr J. Amardas Tetuan K P Ng & Amardas Peguambela dan Peguamcara 43-M, Jalan Ong Kim Wee 75300 Melaka. For The 2nd Defendant: Mr Richard Tee Miss Karen Tan Tetuan Richard Tee & Chin Peguambela dan Peguamcara No. 5-2, 2nd Floor Jalan 5/76B, Desa Pandan 55100 Kuala Lumpur. For The 3rd Defendant: Mr. Zainal Abidin bin Mustaffa Tetuan Zainal & Mariani Wisma Zainal & Mariani Jalan Sultan Ibrahim 15150 Kota Bharu Kelantan. For The 4th. Defendant: Mr. Kamales Shanmugan Tetuan Kamales & Partners Peguambela dan Peguamcara No. 25-5, Subang Business Centre Jalan USJ 9/5Q 47620 Subang Jaya Selangor. 39 For The 5th. & 6th.Defendant: Mr. Dennis Yuen & Mr. Ryan Chu Tetuan Tuang, Chu & Co. Peguambela dan Peguamcara A-15-11, Menara Prima Avenue Jalan PJU 1/39, Dataran Prima 47301 Petaling Jaya Selangor. For The 7th. Defendant: Mr. Cheah Poh Loon Tetuan P.L.Cheah & Co. Peguambela dan Peguamcara No. 3850B, Jalan Hamzah 15050 Kota Bharu Kelantan. For The 8th. Defendant: Mr. Aznam bin Mohamed Tetuan Adli Aznam & Akram Peguambela dan Peguamcara 283, Taman Laksamana Jalan Mahmood 15200 Kota Bharu Kelantan. For The 9th. Defendant: Mr. Mohd Radzi bin Yatiman Tetuan Rahim & Lawrence Peguambela dan Peguamcara No. 124 & 125, Tingkat 1 Jalan Sia Her Yam 85000 Segamat Johor. For The 10th. Defendant: Mr. Lucas Kaw Tetuan Lim, Ho, Cheong & Lok Peguambela dan Peguamcara No. 50-1, Lorong Usahaniaga 1 14000 Bukit Mertajam Pulau Pinang. 40 For The 11th., 12th. & 14th. Defendants: Mr. Adam bin Mohamed Penasihat Undang-Undang Pejabat Penasihat Undang-Undang Negeri Kelantan Blok 5, Tingkat Bawah Kompleks Kota Darulnaim 15050 Kota Bharu Kelantan. For The 13th . Defendant: Mr. Faiz Fitri bin Mohamad Peguam Persekutuan Pejabat Penasihat Undang-Undang Negeri Kelantan Blok 5, Tingkat Bawah Kompleks Kota Darulnaim 15050 Kota Bharu Kelantan. Date of Hearing : 11/7/2021 Date of Decision : 29/8/2021 41 Legislations referred  Rules of Court 2012  Aboriginal Peoples Act 1954  Article 13 of The Federal Constitution  Land Acquisition Act 1960  Specific Relief Act 1950  Government Proceedings Act 1956  Enakmen Tanah Kesultanan No. 5 1934 Cases referred  American Cyanamid Co v Ethicon Ltd [1975] AC 396  Keet Gerald Francis Noel John v Mohd Noor @ Harun b Abdullah [1995] 1 MLJ 193  Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12  Tan Bun Tee & ors v Menteri Sains, Teknologi dan Inovasi [2013] 3 CLJ 1115  Superintendent of Land and Surveys, Kuching Division & Ors. V Kuching Waterfront Development Sdn Bhd [2009] 6 CLJ 751  Business Leap (M) Bhd v Pesuruhjaya Tanah Persekutuan [2018] 1 LNS 400  Sabil Mulia (M) Sdn Bhd v Pengarah Hospital Tengku Ampuan Rahiman & Ors [2005] 2 CLJ 122  Dalip Bhagwan Singh v Public Prosecutor [1997] 4 CLJ 645; [1998] 1 MLJ 1  Bandar Builders Sdn Bhd v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7 42  Kerajaan Negeri Johor & Anor v Adong Kuwau & Ors [1998] 2 CLJ 665  Kerajaan Negeri Selangor & Ors v Sagong Tasi & Ors [2005] 4 CLJ 169  Director of Forest, Sarawak & Anor v TR SAndah AK Tabau & Ors [2017] 2 MLJ 281  Tan Ying Hong v Tan Sian Sang & ors [2010] MLJ 12  RHB Bank Ltd v L & R Holding Sdn Bhd & Anor [2011] 3 MLJ 162  TH Pelita Sadong Sdn Bhd & Anor v TR Nyutan ak Jami & ors and other appeal [2018] 1 MLJ 77  Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2003] 7 CLJ 457  Garden Cottage Foods Ltd v Milk Marketing Board [1983] 2 ALL ER 770  Punca Klasik Sdn. Bhd. v. Liza James & Ors [1996] 3 CLJ 932  Ganad Media Sdn Bhd v Dato’ Bandar Kuala Lumpur (No 1) [2002] 1 CLJ 700