Dkls Sunshine Sdn. Bhd. v Kerajaan Negeri Pulau Pinang (P-01(A)-162-05/2017)

1 IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CIVIL APPEAL NO. P-01(A)-162-05/2017 BETWEEN DKLS SUNSHINE SDN. BHD. ...APPELLANT AND

1. KERAJAAN NEGERI PULAU PINANG

2. PENTADBIR TANAH SEBERANG PERAI SELATAN ...RESPONDENTS (In The matter Of Application For Judicial Review No. PA-25-27-07/2016 Between DKLS Sunshine Sdn. Bhd. ...Applicant And

1. Kerajaan Negeri Pulau Pinang

2. Pentadbir Tanah Seberang Perai Selatan ...Respondents) 2 CORUM: UMI KALTHUM ABDUL MAJID, JCA AHMADI HAJI ASNAWI, JCA RHODZARIAH BUJANG, JCA JUDGMENT [1] This is the appellant’s appeal in respect of the decision of the learned Judicial Commissioner (‘JC’) delivered on 20.4.2017, who had sustained the respondents’ preliminary objection (‘PO’) that the judicial review herein was filed by the appellant beyond the time prescribed under O. 53 r.3(6) of the Rules of Court 2012 (‘ROC’). The Facts In Brief [2] The appellant was the registered proprietor of the following lands (‘Scheduled Land’):

(ii) Lot no. 1385 GRN 38712, Mukim 11, Daerah Seberang Perai Selatan (142271.2695 square metres in area) ; and

(iii) Lot no. 1887 GRN 39320 Mukim 11, Daerah Seberang Perai Selatan (313125.483 square metres in area). 3 [3] The Scheduled Land was acquired by the 1st respondent under section 8(1) of the Land Acquisition Act 1960 (‘LAA’), pursuant to a declaration in Form D of the same Act and subsequently gazetted vide Warta Kerajaan Negeri Pulau Pinang No. 255 dated 17.4.2014. [4] Public Notice of the said acquisition in Form E of the LAA was issued pursuant to section 10(1) of the same and served on the appellant/landowner on 26.11.2014. [5] A full enquiry into the value of the Scheduled Land was conducted pursuant to section 12(1) of the LAA by the 2nd respondent in the presence of the appellant on 17.12.2014, 3.11.2015, 10.3.2016, 11.4.2016 and 14.4.2016. [6] Having considered the appellant’s valuation report and the report prepared by Jabatan Penilaian dan Perkhidmatan Harta (‘JPPH’), on 14.4.2016, the 2nd respondent had assessed the amount of compensation due to the appellant in the sum of RM71.50 psm. Hence, cumulatively the compensation for Lot 1384 amounted to RM327,146.09; RM10,172,395.77 for Lot 1385; and RM22,388,472.03 for Lot 1887. 4 [7] The total compensation sum amounted to RM32,888,013.89. The said sum was deposited in court pursuant to section 29 of the LAA on account of the appellant’s refusal to accept the said compensation sum. [8] Aggrieved by the said decision, on the 23.5.2016, pursuant to section 38(1) of the LAA, the appellant lodged Form N (Application That Objection Be Referred To Court) with the Land Administrator, protesting over the sufficiency of the said compensation sum. [9] Subsequently a Notice Of Award And Offer Of Compensation in Form H (pursuant to section 16 of the LAA) was issued on 1.6.2016 and duly served on the appellant on 6.6.2016. [10] In spite of the lodgement of the said Form N, on 4.7.2016 the appellant had also proceeded to file an ex-parte application for judicial review vide Lampiran 1 seeking to quash the said order made by the 2nd respondent on 14.4.2016. 5 [11] Leave was granted to the appellant for the application for judicial review on 6.9.2016 vide Lampiran 12, and the sealed order was only served on both the respondents on 11.11.2016. [12] However, before service of the said sealed order, the appellant had on 13.9.2016 filed the Notis Pendengaran Permohonan Bagi Semakan Kehakiman di bawah Aturan 53 Kaedah 4, Kaedah-Kaedah Mahkamah 2012, seeking substantive relief, amongst others, an order of certiorari to quash Pengambilan Tanah No. 70/2014 Pemberitahuan Warta Kerajaan No. GN: 255/17.4.2014 bagi hartanah-hartanah yang dikenali sebagai GM 486 Lot 1384, Geran 38712 Lot 1385 dan Geran 39320 Lot 1887, kesemua di dalam Mukim 11, Daerah Seberang Perai Selatan, Negeri Pulau Pinang milik perayu. [13] On 24.2.2017, the respondents served a notice of preliminary objection upon the appellant, contending that the judicial review in essence, was in respect of the acquisition of the Scheduled Land by the 1st respondent under section 8(1) of the LAA. It was argued by the respondents that Form E, notifying the appellant, as the landowner, of the said acquisition was served on the appellant on 26.11.2014. It was thus 6 further argued that the application for judicial review to challenge the decision of the 1st respondent declaring the formal acquisition of the Scheduled Land, must be filed within 3 months from the service of Form E on the appellant on 26.11.2014, in conformity with O. 53 r. 3(6), ROC. Hence, the filing of the ex-parte application for judicial review on 4.7.2016 was clearly in violation of the said O. 53 r. 3(6) and also not in tandem with the decision of the Federal Court in Kijal Resort Sdn. Bhd. v Pentadbir Tanah Kemaman & Anor [2015] 3 CLJ 861. [14] The learned JC was in full agreement with the contention of the respondents in sustaining the said preliminary objection and, amongst others, found, as evinced in his grounds of judgement at page 71, paragraph 20, Rekod Rayuan Tambahan (RRT), that: “[20] Given the fact that the ex-parte application in this case was only filed on 04.07.2016 (a lapse of almost 20 months later), the time frame of 3 months for the filing of judicial review has long been surpassed hence this judicial review should be dismissed in limine since the case of Kijal Resort Sdn. Bhd. is definitely on all fours with the Judicial Review before this Court.” [15] Hence, this appeal before us by the appellant/landowner. 7 The Appeal [16] Learned counsel submitted that the learned JC erred when he excluded the Application for Judicial Review and the Order granting leave for the application for judicial review from consideration when seeking to ascertain the reliefs sought by the appellant, as seen in paragraph 2 (a) to (f) of his grounds of judgment at page 64, RRT. [17] Learned counsel submitted that by the said ex-parte judicial review application dated 4.7.2016 (Lampiran 1 at page 2, appellant’s Core Bundle), the appellant had sought leave for: “Satu perintah certiorari bagi membatalkan Perintah Perbicaraan Pengambilan Tanah No. 70/2014 Pemberitahu Warta Kerajaan No. GN: 255/17.4.2014 bagi hartanah-hartanah yang dikenali sebagai GM 486 Lot 1384, Geran 38712 Lot 1385, Geran 39320 Lot 1887, kesemuanya dalam Mukim 11, Daerah Seberang Perai Selatan, Negeri Pulau Pinang milik pemohon.” [18] The said ‘Perintah Perbicaraan Pengambilan Tanah’ was in respect of the Order made by the 2nd respondent on 14.4.2016. 8 [19] Learned counsel thus submitted that since the application for judicial review was made on 4.7.2016, it was clearly within the three (3) months period prescribed by O. 53 r. 3(6) of the ROC. [20] It was further submitted that the reliefs sought in an application for judicial review is found in the application itself (that is as enumerated in paragraphs 10 and 11 above). However, the respondents and the learned JC erred when they looked elsewhere to find the reliefs sought by the appellant. Clearly, the appellant’s application for judicial review was against the ‘Perintah Perbicaraan Pengambilan Tanah’ made by the 2nd respondent on 14.4.2016, contended as void for failure to comply with the procedural and substantive requirement of the LAA and not against the land acquisition per se or the quantum of award as found by the learned JC. [21] Additionally, it was argued by learned counsel that the order made by the 2nd respondent was ultra vires section 3(1)(a) of the LAA as the section only empowers the 2nd respondent to acquire land for public purpose and not for industrial purpose as was the case here, which anyway must be made pursuant to section 3(1)(c) and section 3(3) of the 9 Act. Since the acquisition was not made pursuant to these two sections, there were hence corresponding non-compliances of the provisions under sections 3A, 3B, 3C, 3D, 3E and 3(5) of the LAA, rendering the said acquisition void. Further, there are specific provisions for land acquisition for industrial purpose (subsections 3(1)(c) and 3(3)), hence section 3(1)(a) of the LAA cannot be utilized to acquire the appellant’s land for the said industrial purpose. [22] It was further submitted that section 3E of the LAA clearly states that only the State Authority, which has been defined to mean the Ruler or the Yang Di Pertua Negeri of the State under the LAA, may approve the acquisition of land for industrial purpose. Therefore, the order made by the 2nd respondent was ultra vires and void as the 2nd respondent has no power to make such acquisition order for industrial purpose. Our Decision [23] From the outset, we would express our full agreement with the approach taken by the learned JC that the issue for determination must be pivoted upon whether the judicial review was in respect of the acquisition of the said Scheduled Land under section 8(1) of the LAA 10 where the same was gazetted on 17.4.2014 and where the notification in Form E of the said acquisition was duly served upon the appellant on 26.11.2014 or whether it was a judicial review in connection with the order/decision made by the 2nd respondent upon conclusion of the enquiry on 14.4.2016. [24] If it is the former, then it necessitates that the application for judicial review must be filed within three (3) months from the service of Form E upon the appellant on 26.11.2014, where the decision was first communicated to the appellant, in conformity with O. 53 r. 3(6) of the ROC and further fortified by the Federal Court in its decision in Kijal Resort Sdn. Bhd v Pentadbir Tanah Daerah Kemaman & Anor (supra). (The time frame prescribed for the filing of judicial review has since been amended and enlarged from 40 days under O. 53 r. 3(6) of the Rules of Court 1980, then applicable in Kijal Resort Sdn. Bhd. case, to 3 months under O. 53 r. 3(6) of the Rules of Court 2012). [25] However, if it is the latter, then time starts to run only from 14.4.2016, the date the 2nd respondent handed down his order/decision upon conclusion of the aforesaid enquiry. Hence, if the application was 11 filed on 4.7.2016, it was clearly well within the three (3) month period prescribed by O. 53 r. 3(6) of the ROC. [26] Order 53 rule 3(6) of the ROC provides that: “(6) An application for judicial review shall be made promptly and in any event within three months from the date when the grounds of application first arose or when the decision is first communicated to the applicant.” [27] It may well be true that prayer (a), one of the relief sought in the ex-parte application for judicial review was for “(a) kebenaran diberi untuk memohon satu perintah certiorari bagi membatalkan Perintah Perbicaraan Pengambilan Tanah No. 70/2014 .....” (see page 2, appellant’s Core Bundle). [28] It is also true that the order granting leave pursuant to the said ex-parte application states that “....MAKA ADALAH DIPERINTAHKAN bahawa kebenaran diberi untuk memohon satu perintah certiorari bagi membatalkan Perintah Perbicaraan Pengambilan Tanah No. 70/2014....” (see page 20, appellant’s Core Bundle). 12 [29] However, the prayers set out in paragraph 3(a), (b) and (c) in the Statement pursuant to O. 53 r. 3(2) of the ROC, dated 4.7.2016 (see pages 12 to 18 appellant’s Core Bundle), supporting the appellant’s application for judicial review and paragraph 3(ii)(a), (b) and (c) of the appellant’s Statement dated 9.9.2016 (see pages 34 to 41, appellant’s Core Bundle), supporting the appellant’s Notis Pendengaran Bagi Semakan Kehakiman under O. 53 r. 4 dated 13.9.2016 (see pages 22 to 24, appellant’s Core Bundle), speak of something entirely different. The prayers in paragraph 3(a), (b) and (c) of the former and in paragraph 3(ii)(a), (b) and (c) of the latter are identical. It states: “(a) Kebenaran diberi untuk memohon satu perintah certiorari bagi membatalkan Pengambilan Tanah No. 70/2014 Pemberitahu Warta Kerajaan No GN: 255/17.4.2014 bagi hartanah-hartanah yang dikenali sebagai GM 486 Lot 1384, Geran 38712 Lot 1385, Geran 39320 Lot 1887, kesemuanya di dalam Mukim 11, Daerah Perai Selatan, Negeri Pulau Pinang milik pemohon.

7. ....

8. ....

9. Responden-responden telah bertindak di luar kuasa mereka (ultra vires) apabila mengambil tanah-tanah tersebut untuk pembangunan industri di bawah Seksyen 3(1)(a) Akta 486. Di bawah Seksyen 3(1)(a) Akta 486, Responden-responden tidak ada kuasa mengambil tanah-tanah tersebut untuk maksud pembangunan industri.

10. Saya telah dinasihatkan oleh peguam saya bahawa Seksyen 3(1)(a) Akta 486 adalah untuk tujuan awam. Pengambilan tanah untuk tujuan pembangunan industri mestilah dibuat di bawah Seksyen 3(1)(c) Akta 486. Di bawah pengambilan tanah di bawah Seksyen 3(3) Akta 486, Responden Pertama hendaklah membuat permohonan pengambilan tanah secara bertulis kepada Responden Kedua. Permohonan tersebut hendaklah disertai dengan perkara-perkara berikut:-

11. Keperluan yang dinyatakan di bawah perenggan 10 di atas tidak dipatuhi oleh Responden Pertama.

12. Ketika perbicaraan di hadapan Responden Kedua pada 14.4.2016 peguam Pemohon telah meminta kesemua dokumen-dokumen yang disenaraikan di Seksyen 3 (3) (a), (b), (c) dan (d) tetapi dimaklumkan bahawa tidak ada dokumen-dokumen tersebut dikemukakan kepada Responden Kedua kerana dikatakan pengambilan ini adalah di bawah Seksyen 3(1)(a). 15

13. Oleh itu saya mengatakan bahawa permohonan pengambilan tanah ini adalah tidak sah dan terbatal kerana:

13.1 Warta Pengambilan tanah-tanah tersebut adalah tidak sah dan terbatal kerana tidak mengikut peruntukan Akta 486.

13.2 Pengambilan tanah-tanah tersebut adalah di luar skop Seksyen 3(1)(a) dan tindakan Responden Pertama dan Responden Kedua adalah di luar kuasa mereka (ultra vires their powers).

13.3 Sekiranya permohonan pengambilan tanah-tanah tersebut adalah di bawah peruntukan Seksyen 3(1)(c) (yang tidak diwartakan sedemikian) permohonan pengambilan tanah-tanah tersebut tidak memenuhi keperluan-keperluan di bawah Seksyen 3(3) yang memerlukan dokumen-dokumen di Seksyen 3(3)(a), (b), (c) dan (d) dikemukakan kepada Responden Kedua dan Pemohon.

13.4 Pengambilan tanah-tanah tersebut adalah tidak sah dan terbatal kerana melanggar perkara 13 Perlembagaan Persekutuan.” [33] The rest of paragraphs 13.4 to 13.7 referred to the inadequacy of the compensation sum meted out by the 2nd respondent, the error of the 2nd respondent in treating the appellant’s lands as estate land thereby assigning a lower value, the propensity and mala fide of the respondents in acquiring the lands and awarding low compensation to landowners but subsequently reselling the said lands to third parties at a much high price many many times over, and the high degree of probability that the 2nd respondent would act in a bias manner on account that the 2nd respondent is a public officer whose salary was paid by the 1st respondent. 16 [34] Paragraph 14 of the Statement relates to the appellant’s financial and technical capacity to develop the scheduled land into an industrial hub with various kinds of development projects, without the need for the respondents to acquire the said land for the same purpose (industrial purpose). [35] It was obvious that the thrust of the O. 53 r.3(2) Statement was directed towards the impropriety and illegality or otherwise of the acquisition of the Scheduled Land by the 1st respondent and not against the order/decision made by the 2nd respondent, which in this case, was strictly limited only on the issue of the quantum of the compensation sum payable to the appellant and other matters incidental to it. It was very apparent that cumulatively, the said corresponding Statements were consistent and supportive of the prayers encapsulated in paragraphs 3(a) and 3(ii)(a) of the said Statements respectively. [36] The appellant’s affidavit in support of the Notis Pendengaran Permohonan Bagi Semakan Kehakiman affirmed on 9.9.201 was crafted in identical terms (see pages 25 to 32, appellant’s Core Bundle). It wholly supported the granting of the prayers as set out in paragraph 3(a) and 17 3(ii)(a) of the Statements under O. 53 r.3(2) of the ROC. There was nothing in the affidavit suggesting satu perintah certiorari bagi membatalkan Perintah Perbicaraan Pengambilan Tanah No. 70/2014. [37] In our view, the decision to acquire the Scheduled Land was purely within the prerogative of the 1st respondent, being empowered to do so under section 8(1) of the LAA, and who had then caused the publication of the declaration of the intended acquisition in Form D in Warta Kerajaan Negeri Pulau Pinang No. 255 dated 17.4.2014. The said acquisition was needed for a public purpose pursuant to section 3(1)(a) of the LAA. The appellant was thus given the requisite notice of the said decision of the 1st respondent and the purpose upon which the land was acquired. [38] The 2nd respondent’s role was only to execute the said decision by the 1st respondent. Thereafter under section 12 of the LAA, the 2nd respondent was to commence proceedings of an enquiry for the hearing of claims for compensation for all such interest in the Scheduled Land after the requirements under section 10 of the same had been complied with, to wit, the issuing and service of the Form E public notice to all those having interest in the said Scheduled Land. 18 [39] Upon conclusion of the enquiry under section 12 of the LAA, the 2nd respondent, pursuant to section 14 of the same, shall prepare a written award in Form G and have it served upon the appellant or each person interested in such land vide notice in Form H as prescribed by section 16 of the Act. [40] In our view, the 2nd respondent is devoid of any jurisdiction to make an acquisition order as claimed by learned counsel. His primary duty is mainly to determine the quantum of compensation that is payable to the person or persons interested in such land. In case the person or persons interested is dissatisfied with the said quantum, he or she is at liberty to file an objection vide Form N pursuant to section 38 of the LAA. This course of action had been initiated by the appellant. [41] In all the circumstances of the case, we ruled that the appellant’s application was directed squarely to quash the decision of the 1st respondent in acquiring the Scheduled Land and not to quash the decision of the 2nd respondent on the quantum of compensation due to the appellant made on 14.4.2016. Hence, in conformity with the requirement under O. 53 r. 3(6) of the ROC, the appellant must file his ex-parte 19 application for leave for judicial review to quash the said decision within three (3) months from the service of Form E upon the appellant on 26.11.2014, where the decision of the 1st respondent declaring the formal acquisition of the scheduled land was first communicated to the appellant (see Tunku Yaakub Holdings Sdn. Bhd. v Pentadbir Tanah Kedah & Ors. [2015] 3 CLJ 2017, on the issue of service of Form E as the starting point to calculate when time starts to run for the purposes of O. 53 r. 3(6) of the ROC). [42] Form E was served on the appellant on 26.11.2014. The ex-parte application for leave for judicial review was only filed on 4.7.2016, slightly more than 19 months after service of Form E was effected upon the appellant. There was absolutely a delay beyond the 3 months’ time line as stipulated by O. 53 r. 3(6) and the said delay was wholly inordinate. There was also no application for extension of time to file the said application by the appellant, let alone the reasons for the delay in making the application. [43] There was no doubt that the appellant was bound by the terms of O. 53 r. 3(6) of the ROC and by the said terms his application was verily out 20 of time. Therefore the learned JC had no jurisdiction to hear the judicial review application by the appellant. In our view, the learned JC had correctly sustained the respondents’ preliminary objection and his consequential order of dismissing the appellant’s application in limine. [44] This issue of delay was squarely put to rest by the Federal Court in its decision in Kijal Resort Sdn. Bhd. v Pentadbir Tanah Daerah Kemaman & Anor (supra) where at pages 894 and 894, Ramly Ali FCJ, speaking for the Court pronounced: “[116] We are of the view that an application for leave for judicial review made under O. 53 r. 3(6) of the RHC 1980 challenging the decision of the State Authority declaring that the land is to be acquired under the LAA, must be filed within 40 days from the date when the decision was first communicated to the applicant i.e., on the date when the notice of enquiry in Form E which appended a copy of the schedule to Form D was served pursuant to s.10 of the LAA on the registered proprietor or occupier of the land pursuant to ss. 11, 53 and 54 of the LAA. [117] In the present case before us, Form E was served on the appellant on 7 March 2006. Application for leave for judicial review was filed on 6 January 2008 i.e., almost 22 months after Form E was served on the appellant; or in other words, 22 months after the decision to acquire the land in question was first communicated to the appellant. This is clearly a beyond the 40 days time frame as stipulated in O. 53 r.3(6) of the RHC

1980. There had been inordinate delay on the part of the appellant in filing for judicial review. There is no indication to show that the appellant had applied for an extension of time. ........ ........ ........ 21 [123] Applying the same principle to the facts of the present case, we are of the view that the High Court had no jurisdiction to hear the appellant’s application for judicial review on the ground that the time frame of 40 days under Or. 53 r. 3(6) of the RHC 1980 has not been complied with. On this ground alone, we are in agreement with the Court of Appeal that the respondent’s first objection must be upheld and the judicial review application by the appellant ought to be dismissed in limine; and consequently, the appellant’s appeal before us must also be dismissed. [124] In view of the above findings, there is no necessity for this court to consider the second objection that the proper party was not named as the first respondent. There is also no necessity to go into the merit of the judicial review application. As has been clearly said by Hashim Yeop Sani FJ in Ravindran P. Muthukrishnan v. Malaysia Examination Council [1984] 1 CLJ 232; [1984] 1 CLJ (Rep) 320; [1984] 1 MLJ 168: ‘Since the judge rejected the explanation for the delay it follows that the court had no-jurisdiction to hear the application for leave for an order of certiorari .... whether the application for an order of certiorari had merits or not was irrelevant’.” [45] There can be no doubt that the appellant’s narrative fell squarely within the four walls of the above said ruling. Consequently there was no necessity to go into the merits of the judicial review application. [46] In addition, this Court in Jitender Singh Pagar Singh & Ors v Pentadbir Tanah Wilayah Persekutuan & Another Appeal [2012] 2 CLJ 165, after having alluded to the 40 days’ time frame stipulated by O. 53 r. 3(6) of the Rules of the High Court 1980, pronounced, at paragraph 16, page 173, that: 22 “Compliance with the time frame prescribed by the Rules is fundamental as it goes to jurisdiction (see Mersing Omnibus Co. Sdn. Bhd. v The Minister Of Labour & Manpower & Anor [1983] 2 CLJ 7; [1983] CLJ (Rep) 266). On this ground alone the application for judicial review could and should have been dismissed by the High Court judge hearing the judicial review application.” [47] The pronouncement of the Federal Court in Wong Kin Hoong & Anor v Ketua Pengarah Jabatan Alam Sekitar [2013] 4 CLJ 193; [2013] 4 MLJ 161, 171, at paragraph 30 was conspicuously in similar vein: “In conclusion, we are of the view that the time frame in applying for judicial review prescribed by the Rules is fundamental. It goes into jurisdiction and once the trial judge had rejected the explanation for the delay for extension of time to apply for judicial review, it follows that the court no longer has the jurisdiction to hear the application for leave for judicial review, Whether the application has merits or not, is irrelevant.” [48] Further, under O. 53 r. 3(2) an application for leave for judicial review must be made ex-parte and must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds in which it is sought and by affidavits verifying the facts relied on. This order is mandatory. It further emphasizes the principle that a party is bound by his own pleading and this rule is also mandatory in nature. In this case, the inconsistencies in respect of the appellant’s prayer as pleaded in the ex-parte application and the prayers as pleaded in the appellant’s Statement (under O. 53 r. 3(2)) and the subsequent 23 averment of facts were poles apart. We opined further that the prayers pleaded in the ex-parte application and the submissions advanced by learned counsel in respect of the same were beyond the scope of the appellant’s pleaded case as encapsulated in the Statement and the appellant’s affidavits in support thereof. These two grounds would constitute sufficient reasons for us to find that the appeal had no merits. Thus, we found no error in the learned JC’s decision in dismissing the appellant’s application in limine. Therefore, the appeal was dismissed. [49] We also found support in the Court of Appeal case in V. Paul Raj Chelladurai v Jabatan Telekom Malaysia Bhd. & Ors. [2000] 4 CLJ 882, where the facts as per its headnotes reads as follows: “The appellant was dismissed after the institution of a disciplinary proceedings against him. The appellant later challenged the propriety of the disciplinary proceedings by filing in the High Court, a motion for certiorari to quash the decision. The High Court dismissed the motion. The appellant then appealed to the Court of Appeal by way of judicial review on the ground that there had been procedural unfairness in the conduct of the proceedings. He contended that he was not informed of the nature of the extraneous matters that the disciplinary board had taken into account when considering the charge against him and that he was not given the opportunity to plead in mitigation before the dismissal was decided against him. These objections, however were not set out in the statement supporting his application for certiorari.” Siti Normah Yaakob, JCA, speaking for the Court, at page 887, held that: 24 “Clearly from the aforesaid grounds, the appellant never raised as issues his objections to the use of the phraseology ‘dan lain-lain maklumat yang berkaitan’ and the loss of the opportunity to plead in mitigation. These two objections were only raised for the first time before us as in the court below the appellant was more content to submit on other issues. Order 53 r. 3(1) of the RHC emphasizes the principle that a party is bound by his own pleadings and since that order the rule is mandatory in nature, the omission to plead in the statement the two objections raised before us is sufficient reason for us to hold that this appeal lack merits and on that conclusion we dismiss it with costs, confirm the order of the High Court and order that the deposit be paid out to the respondents to account of their taxed costs.” [50] Additionally, it was held by the Supreme Court in Tuan Haji Sarip Hamid & Anor v Patco Malaysia Sdn. Bhd. [1995] 3 CLJ 627 that: “[1] Any application under O. 53 r. (2) [now O. 53 r. 3(2)] must be drafted in such a way as to ensure that it contains all or substantial particulars of the facts and matters on which the applicant intends to rely in support of his application. The affidavit in support thereof must also be sufficiently detailed and comprehensive and must exhibit all the relevant documentary exhibits....”. [51] We were satisfied that the appellant’s Statements and affidavits in support thereof fell short of the requirements as mandated by O. 53 r. 3(2). Both could not have supported the appellant’s application for judicial review. 25 [52] Next, learned counsel complained that the learned JC had ignored his preliminary objection over the preliminary objection canvassed by the respondents, in particular on the following matters:

(ii) the preliminary objection was equally filed out of time since leave had been obtained from the court for the judicial review;

(iii) the issues raised in the preliminary objection could not be raised at this stage as it was never raised in the respondents’ affidavits; and

(iv) the issue of the appellant’s delay in filing the judicial review could not now be challenged as there was no challenge by the Attorney General at the leave stage where the papers were properly served upon them by the appellant. [53] We took note that the same issues were canvassed before the learned JC. Nevertheless, we were of the view that the said issues were trite and had been resolved by numerous case laws. We were further of 26 the view that the said issues had been correctly dealt with and disposed of by the learned JC as indicated in paragraphs 22 to 28 (at pages 72 to 75, RRT) of his grounds of judgment. We were in full agreement with his findings and had nothing more of significance to add to them. Conclusion [54] For all the reasons enumerated above, we dismissed the appellant’s appeal with cost fixed at RM10,000.00. We also ordered that the deposit for the appeal be refunded to the appellant. DATED: 16th January 2019 ( AHMADI HAJI ASNAWI ) Judge Court of Appeal, Malaysia 27 Counsel: On behalf of Appellant: Ngeh Koo Ham with Kartini Mansor T/N Ngeh & Co. Peguambela dan Peguamcara On behalf of Respondent: Anas bin Ahmad Zakie with Siti Fatimah Binti Talib Penasihat Undang-Undang Pejabat Penasihat Undang-Undang Negeri Pulau Pinang