Limba Jaya Timber Sdn. Bhd. v Superintendent of Lands and Surveys, Limbang (Q-01(IM)346-09/2016)

LEE LING TIMBER SDN. BHD. …APPELLANTS

KOMASAE HOLDINGS SDN. BHD. …RESPONDENTS [In the matter of Originating Summons No. LMN-24-2/1-2016 in the High Court of Sabah and Sarawak at Limbang

LEE LING TIMBER SDN. BHD. …APPELLANTS

KOMASAE HOLDINGS SDN. BHD. …RESPONDENTS] 2 CORAM DAVID WONG DAK WAH, JCA HAMID SULTAN BIN ABU BACKER, JCA UMI KALTHUM BINTI ABDUL MAJID, JCA GROUNDS OFJUDGMENT

This appeal is in relation to the 1st Respondent’s decision dated 4.1.2016 to grant the right of way to the 2nd Respondent pursuant to section 34 of the Sarawak Land Code (SLC). Dissatisfied with the 1st Respondent’s decision, the Appellants filed an appeal to the High Court by way of an Originating Summons pursuant to section 34(6) of the SLC, citing the 1st Respondent and the 2nd Respondent as parties to the appeal.

The 1st Respondent then applied in Enclosure 7 to strike out the Appellants’ appeal to the High Court as well as for his name to be struck out as party to the Originating Summons under Order 33 rule 1, Order 15 rule 6(2)(a), Order 18 rule 19(1)(a),(b),(c) or (d) and Order 92 rule 4 of the Rules of Court 2012 (RC).

The learned Judicial Commissioner (JC) allowed the 1st Respondent’s application with costs of RM2,000.00. In deciding so, the 3 learned JC felt he was bound by the Federal Court case of Tan Guan Seng v Sibuti Yon Seng Quarry Sdn. Bhd. & Ors [1973] 2 MLJ 116 which ruled that the Superintendent of Lands and Surveys, who was the adjudicator in the right of way inquiry, should not be made as the Respondent and it sufficed that the party who is claiming the right of way to be made a party instead.

In the appeal before us, the Appellants had withdrawn their appeal against the 2nd Respondent.

The Appellants’ appeal against the 1st Respondent is centered on only the issue of law which is, is it proper for the decision maker/the 1st Respondent to be made a respondent to an Order 55A RC appeal to the High Court against his decision. The Notice of Appeal was filed on 5.8.2016, which means the RC apply to the Appellants’ appeal. Order 55A is a new Order which replaces the previous Order 55 rule 13 of the Rules of the High Court 1980 (RHC). In replacing Order 55 rule 13 RHC, Order 55A had made more detailed provisions on appeals from statutory bodies and tribunals. Order 55A sets out the procedure for appeal from any decision made by any person or body of persons to the High Court as follows: 4 “ORDER 55A APPEALS TO HIGH COURT UNDER WRITTEN LAW Appeals to the High Court under written law (O. 55A, r. 1)

1.

(a) the notes of evidence, if available; recorded wholly or partly by mechanical means;

(b) the grounds of decision, if available;

(c) the decision of the statutory body, if available; and

(d) all such documentary exhibits and other documents the parties shall consider relevant for the purposes of appeal: Provided that the originating summons shall be filed notwithstanding that the grounds of decision are not available or ready. If the grounds of decision become available, then they shall be filed by way of a further affidavit without the leave of the High Court.

Order 55A RC has to be read together with section 34(6) of the SLC, which is as follows: “(6) Any person aggrieved by any decision of the Superintendent under this section may, within thirty days of being informed of such decision, appeal to the High Court and for the purpose of further appeal any decision of the High Court shall be deemed to be made in a civil proceeding.”

The learned JC in coming to his decision held that Order 55A RC does not prescribe that the decision maker whose decision being appealed against shall be a respondent in the appeal. The learned counsel for the Appellants argues that this interpretation of Order 55A is erroneous because, amongst others,-

7.1 when Order 55A rule 1(1) and 1(4) are read together, it does prescribe that the decision maker of the decision being appealed against, shall be a respondent in a statutory appeal;

7.2 in the other form of judicial redress/ control in respect of administrative action, that is, judicial review proceedings, the decision maker is always made a respondent to the same – see Ambiga Sreenevasan v Ketua Pengarah Imigresen Malaysia & Ors [2012] 7 CLJ 170;

7.3 the learned JC failed to apply the Federal Court decision of Bar Malaysia v Index Continent Sdn. Bhd. [2016] 2 CLJ 545 which held that statutes must be construed with a purposive approach. 6

8.

Further, it is argued that learned JC was wrong when he – 1 found that the Appellants had failed to produce any authorities which interpret Order 55A RC as prescribing that the decision maker shall be a respondent in such an appeal. The Appellants had cited 10 cases where the Land Administrator was the respondent in the appeal to the High Court arising out of his decision, such as, Ng Meng Soon dan satu lagi lawan Pentadbir Tanah Daerah Muar dan satu lagi [2010] 8 MLJ 388 and Motif Unik Sdn. Bhd. v Khoo Ah Soon & Anor [2012] 10 CLJ 612;

8.2 found that the 10 authorities cited were irrelevant because they were made pursuant to section 418(1) of the National Land Code whereas the Appellants’ case concerned section 34(6) SLC, as the learned

JC failed to appreciate/distinguish the difference between -

2.1 a provision which confers a right of appeal as in section 418(1) of the National Land Code and section 34(6) SLC; and 8.2.2 a procedural provision which prescribes the procedure for the appeal.

It is also the contention of the Appellants that the learned JC had erred in law and in fact and had seriously misdirected himself in holding 7 that Tan Guan Seng (supra) is still good law and/or binding on him as he –

9.1 failed to consider Order 59 rule 13(1), rule 13(3) Rules of the Supreme Court 1957 (the predecessor to the present Order 55A rule 1(1), 1(4) RC) was not highlighted to the Federal Court in Tan Guan Seng;

9.2 should have followed that Court of Appeal’s decision in Abu Bakar Ismail & Anor v Ismail Husin & Ors & Other Appeals [2007] 3 CLJ 97 and Alami Vegetable Oil Products Sdn. Bhd. v Lombard Commodities Ltd [2009] 4 CLJ 700 which held that a decision given in ignorance of the existence of a statutory provision is a per incuriam decision and cannot safely be relied on;

9.3 failed to consider the Federal Court’s opinion in Tan Guan Seng with regard to whether the Superintendent of Lands And Surveys should have been made a respondent to the appeal, was incidental and not directly upon the issue before the Federal Court. The actual issue before the Court was the limitation period in respect of an order for substitution of a party;

9.4 should have followed the authority of Alami Vegetable Oil Products Sdn. Bhd. (supra) which held that only the ratio decidendi of a prior case binds courts of lower jurisdiction; 8

9.5 failed to consider that there are no other case authorities in Malaysia since the 1973 decision of Tan Guan Seng which have followed and/or referred to the same. On the other hand, there are numerous case authorities since then and up to recent times where the decision maker was a respondent in the statutory appeal without issue;

9.6 should have followed the Federal Court’s decision in Dalip Bhagwan Singh v Public Prosecutor [1997] 4 CLJ 645 which held that the courts are permitted to depart from a previous decision which is wrong, unjust, outmoded and/or absolute in the modern conditions.

As for the opinion expressed by the learned JC that the 1st Respondent should not be made a party to the appeal because he has no interest in it, his role is merely to exercise his adjudicative function pursuant to the law, and whether the Appellants win or lose the appeal does not really matter to the 1st Respondent, it is contended by the Appellants that such opinion goes against the established principle that where permitted by statute, the courts have the jurisdiction to ensure that a decision-making authority does not commit errors of law in coming to its decision.

The learned Senior State Counsel, acting for the 1st Respondent, essentially supports the positions taken by the learned J.C. 9

After perusing the submissions of parties and the authorities cited, we unanimously hold that the appeal is allowed with costs of RM5,000.00 for here and below and subject to the payment of allocatur. The order of the High Court is set aside and the deposit is refunded to the Appellants. Our decision is based on the following grounds.

This Court was established by the Constitution (Amendment) Act 1994 (Act A 885) whereby section 13 thereof had added Clause (1B) to Article 121 of the Federal Constitution establishing the Court of Appeal on 24.6.1994. Before the establishment of this Court, the Federal Court was established on 16.9.1963 under the Malaysia Act 1963 (No. 26 of 1963). In the hierarchy of the superior courts then, below the Federal Court were the High Court in Malaya and the High Court in Sabah and Sarawak and above the Federal Court then was the Judicial Committee of the Privy Council. Tan Guan Seng’s case (supra) was decided by the Federal Court then in 1973. Being the highest court of appeal then (save for the Privy Council), the said Federal Court decision therefore is binding on this Court in view of the superior courts hierarchy.

Be that as it may, we wish to distinguish Tan Guan Seng’s case from the appeal before us. We find that the statement made by Ismail 10 Khan CJ (as hen then was), in delivering the judgment of the Federal Court at page 116, paragraphs H-I, right – ‘At the inquiry before the superintendent, the parties to the dispute were the respondents who claimed the right of way, and the appellant who opposed such claim. In the appeal by the appellant against his decision, the party claiming the right of way should have been made respondent and not the superintendent, the adjudicator. It is difficult to understand why he was made the respondent. He therefore took the right step in obtaining the order for the substitution of the respondents in his place. See Order 16 rule 12 which says:- “12. Any application to add or strike out or substitute a plaintiff or defendant may be made to the court or a judge at any time before trial by motion or summons, or at the trial of the action in a summary manner.” The respondents were added as a new party in place of the party removed…’ as being obiter dictum, incidental to the ratio of the case and thus not binding on us. The ratio of the case relate to the question of whether the order for substitution of parties was made after the prescribed limitation period and the Federal Court held that the appeal against the substituted respondents could only be deemed to be lodged on the day when they were substituted. Since this was after the expiry of the period of limitation, the appeal was out of time. In Alami Vegetable Oil Products Sdn. Bhd. (supra), Malik Ishak JCA (as he then was) said at page 713, paragraph 29, as follows: “[29] But more apt to the occasion and to the present appeal at hand would be the speech of May LJ in the case of Ashville Investments Ltd v Elmer Contractors Ltd [1988] 2 All ER 577 at 582, [1988] 3 W.L.R. 867 at 873 where he said: 11 In my opinion the doctrine of precedent only involves this: that when a case has been decided in a court it is only the legal principle or principles on which that court has so decided that bind courts of concurrent or lower jurisdictions and require them to follow and adopt them when they are relevant to the decision in later cases before those courts. The ratio decidendi of a prior case, the reason why it was decided as it was, is in my view only to be understood in this somewhat limited sense.”

Moreover, at the time when Tan Guan Seng was decided, the civil procedure rules in force were the Rules of the Supreme Court 1957 (L.N. 321/1951) (RSC), in particular Order 59 rule 13(1), 13(3) which stated as follows: “13. (1) Where under any written law an appeal lies from any decision of any person or body of persons to the High Court or to the Supreme Court such appeal shall be made to the High Court in the State where the decision was given by motion setting out the grounds of appeal, supported by affidavit and, if the Court so directs at the hearing, by oral evidence. …

With regard to the current Order 55A RC provisions, we are in agreement with the submission of the learned counsel for the Appellants, in that, when paragraphs 1(1) and 1(4) of Order 55A are read together, it is clear that Order 55A provides for the decision maker (other than the interested party) be made the respondent to the appeal. Paragraph 1(1) makes a reference to “an appeal lies from any decision of any person or body or persons” to the High Court whilst paragraph 1(4) provides for “the originating summons shall be served on the respondent on such appeal or where the respondent is a body of persons, on the secretary, registrar or such other officer of that body of persons”. It stands to reason that the decision maker be served with the originating summons in this context since the Appellants’ appeal is in regard to his decision and in the process the Courts have the duty to supervise the decision maker’s decision to ensure that he does not commit errors of law in coming to his decision. There are numerous cases reiterating this principle of law, but suffice for us to refer to the book entitled Civil and Criminal Appeals in Malaysia, Third Edition, Sweet and Maxwell Thomson Reuters, by Tan Kee Heng where the learned author, at pages 87-88, stated as follows (in the context of judicial review, which equally applies to appeals from persons or body of persons): 13 “3.1.1 The right of appeal [3.001] A right of appeal against any decision of any person or body of persons is only available if there is any written law providing for that right. In Malaysia, there are numerous statutory provisions which provide that certain administrative decisions “shall be final and conclusive”, “shall not be questioned in any legal proceedings whatsoever”, “shall not be subject to appeal or review in any court” or “shall not be challenged, appealed against, reviewed, quashed or called in question in any court on any ground”. Generally speaking, the effect of all such words is to oust both the appellate and supervisory jurisdiction of the courts to review, reverse or set aside such decisions. However, it must be noted that an inferior tribunal or other decision-making authority, whether, exercising a quasi-judicial function or a purely administrative function, has no jurisdiction to commit an error of law, whether the error is jurisdictional or not and accordingly, its decision will not be immunised from judicial review by an ouster clause however widely drafted.”

We are fortified in our views when we refer to the many cases cited by the Appellants which no doubt relate to section 418 of the National Land Code but which section similarly enables a person to appeal to the High Court from a decision of the State Director, the Registrar or any Land Administrator. The Land Administrator has been cited as a respondent in, for example, Ng Meng Soon (supra); Motif Unik Sdn. Bhd. (supra); Thankam De Silva lawan Pentadbir Tanah, Daerah Larut Dan Matang, Taiping [1995] 4 CLJ 584; Kelab Renang Pulau Pinang v Pentadbir Tanah, Daerah Timur Laut, Pulau Pinang & Anor [2014] 5 CLJ 341.

Similarly, there are umpteenth cases in respect of judicial review applications where the decision maker is commonly cited as a party to the action – see for example Ambiga Sreenevasan (supra). So citing the 14 decision maker as a party to the action is not an isolated practice; in fact the opposite is true. sgd (UMI KALTHUM BINTI ABDUL MAJID) Judge Court of Appeal Malaysia Putrajaya Dated : 27.07.2017 Counsels/ Solicitors For the Appellants : Leong Hsin Ru, Tetuan Tang & Partners For 1st Respondent : Joseph Chioh Hock Hua (Senior State Counsel) together with Ronald Felix Hardin (State Legal Officer)