Subsection
(2) All equipment placed in or upon State land which is not removed therefrom within six months, or such longer period as the State Government may permit, after the expiration or early determination of the licence under the authority whereof the same was so placed, shall vest in and become the property of the Government of the State where the same is situated.”. [18] The learned JC noted that whether under the 1990 Act or the 1949 Act, the respondent had to obtain the approval of the State Authority for the construction of the transmission lines. The answer to the question whether the approval must be in writing turns on the meaning to be accorded to the word “approval” in both the provisions. [19] The respondent took the position that neither section 52 of the 1949 Act nor section 12 of the 1990 Act specifically stated that the approval must be in writing. For the appellant, it was argued that the court should not countenance the interpretation contended by the respondent as its effect would lead to uncertainty and the law will be in a state of mess. [20] The learned JC applied the fundamental principle of statutory construction that words in a statute must be given their plain, ordinary and natural meaning unless Parliament cannot have intended this meaning because it gives rise to difficulties which are so serious as to make the statutory provision unworkable or impracticable. Reference was made to Bennion on Statutory Interpretation 6th Ed; Multi Purpose Bank Bhd v Civil Appeal No. 02(f)-37-06/2016(W) 8 Diamond Agreement Sdn Bhd [2000] 5 MLJ 576; and Tenaga Nasional Bhd v Ong See Teong & Anor [2010] 2 MLJ 155. [21] Applying the above stated principle, the learned JC agreed with the respondent that the argument of the appellant ‘fatally requires reading into the provisions words which simply are not there’. The learned JC opined that if indeed the draftsman had intended to give the word ‘approval’ a restrictive meaning as contended by the respondent, he could have done so by express provision and that the draftsman could have easily inserted the words ‘in writing’ to the provision. The learned JC held that in the absence of express words requiring the approval to be in writing, the statutory language must be read in its plain and ordinary context, and that the words in both provisions in Acts 1949 and 1990 permit both express and implied approval of the State Authority. The learned JC further held that this interpretation accords with an important principle that in trespass, consent, whether express or implied, affords a good defence. [22] The learned JC stated that the respondent would not be in contravention of the law, if it had the approval of the State Authority, albeit not in writing, to erect the transmission lines. [23] The learned JC proceeded to consider the meaning of ‘State Authority’ where parties were at variance whether it refers to the State Executive Committee as advanced by the appellant, or to the Director of Land and Mines, as contended by the respondent. [24] Having considered inter alia, the definition of the ‘State Authority’ in section 3 of the Interpretation Acts 1948 and 1967, the learned JC agreed Civil Appeal No. 02(f)-37-06/2016(W) 9 with the appellant that the approval under the 1949 Act or the 1990 Act must be given by the State Executive Committee. [25] In determining the critical issue whether the respondent had the approval of the State Authority to erect the transmission lines, the learned JC alluded to the fact that by the State Executive Committee’s minutes of 8.8.1990, it was clearly demonstrated that the State Authority was aware of the respondent’s plan to erect a transmission line which would run from Kuala Pilah to Gemas. The minutes further show that it was for this specific reason that the State Authority had alienated land to the respondent for the construction of a TNB substation on the land. [26] The learned JC further alluded to the fact that a substation without a transmission line would serve no purpose, as it is the transmission line that connects the electricity system from Kuala Pilah to Gemas, and facilitates the transfer of power to consumers from the power stations and substations. For these reasons, the learned JC found that the State Authority not only did not object but had implicitly approved, by their conduct, the construction of the transmission lines on the land. In this regard, the learned JC had also considered the Kertas Kerja attached to the minutes of the State Executive Committee dated 8.8.1990 where the relevant parts read: “Tujuan Tujuan kertas kerja ini adalah untuk mendapatkan pertimbangan Majlis Mesyuarat Kerajaan Negeri terhadap:- i. Permohonan dari Syarikat Metro Angkasa Sdn Bhd untuk memiliki dan memajukan tanah kerajaan seluas 400 ekar di Mukim Kuala Gemas, Daerah Kecil Gemas sebagai kawasan perusahaan; Civil Appeal No. 02(f)-37-06/2016(W) 10 ii. .. Latarbelakang Kawasan yang dipohon merupakan tanah kerajaan seluas 400 ekar terletak di Mukum Kuala Gemas daerah Kecil Gemas. … Kemudahan Infrastruktur … Bekalan Elektrik Pihak LLN telah merancang untuk membina 2 buah pencawang Masuk Utama (PMU) dikawasan dengan berkeupayaan 2 x 30 MVA. Projek ini akan dibuat melalui projek pemasangan kabel LLN dari Segamat ke Kuala Pilah yang melalui kawasan Gemas. Sebuah tapak pencawang seluas 4 ekar telah diluluskan oleh Pentadbir Tanah Daerah Kecil Gemas bagi keperluan ini, berdasarkan dengan kawasan tanah yang dimohon.”. [27] The learned JC also considered the oral testimonies of the witnesses where she accepted the evidence for the respondent that the existence of the transmission lines was not endorsed on the register document of title as no survey had been done. The land was still held under a qualified title and that the existence of the transmission lines will be endorsed on the final title only after a survey is done. The learned JC held that the absence of any endorsement on the register of title as to the encumbrance relating to the transmission lines did not vitiate the implied consent given to the respondent. [28] On the evidence adduced, the learned JC made a finding that since 1992, when the transmission lines had been on the land, none of the original owners had ever objected to the presence of the transmission lines. Her Ladyship held that where there is a lengthy period during which materials remain on the land without objection or without a request for those materials Civil Appeal No. 02(f)-37-06/2016(W) 11 to be removed, the law does not permit a landowner to assert a claim in trespass. In the instant case, the learned JC found no evidence that either the State Authority or Metro Angkasa or CIMB had protested about the transmission lines. It was held by the learned JC that a trespass cannot constitute a continuing trespass if it never constituted a trespass to begin with. In the result, the learned JC found that the appellant failed to prove continuing trespass as the evidence demonstrates that the respondent had the approval of the State Authority. It was further held that the approval binds all parties who have taken ownership of the subject land subsequent to the alienation to Metro Angkasa. [29] Aggrieved by the decision of the High Court, the appellant appealed to the Court of Appeal. Proceedings in the Court of Appeal [30] The appellant canvassed only one issue in the Court of Appeal, namely whether the State Authority had given its approval to the respondent, whether under section 52 of the 1949 Act or section 12 of the 1990 Act. [31] The Court of Appeal agreed with the learned JC’s finding that the provisions of the 1990 Act applied to this case as the erection of the transmission lines had commenced in 1992. The focus of the Court of Appeal was thus on section 12 of the 1990 Act. [32] Based on the authorities cited by the learned JC, the Court of Appeal agreed with the High Court that section 12 of the 1990 Act did not require the approval of the State Authority to be expressly in writing. The Court of Civil Appeal No. 02(f)-37-06/2016(W) 12 Appeal further agreed with the learned JC that section 12 of the 1990 Act permits the express or implied approval of the State Authority. [33] On the issue of which person or body of persons represent the ‘State Authority’, the Court of Appeal likewise agreed with the learned JC, except that instead of referring to the “State Executive Committee”, the Court of Appeal highlighted it should have been referred to the “State Executive Council” as provided for in Article XXXV of the Negeri Sembilan State Constitution. [34] The Court of Appeal saw no reason to disturb the finding of fact by the learned JC that the State Authority had implicitly, vide conduct of the relevant parties, approved the erection of the transmission lines on the land. [35] The Court of Appeal formed the view that in the instant case, the minutes of the State Executive Council dated 8.8.1990 referred to by the learned JC served the purpose of showing the State Authority’s approval of the construction of the transmission lines. [36] Having found no appealable error on the part of the learned JC, the Court of Appeal dismissed the appellant’s appeal with costs. The Instant Appeal [37] On 17.5.2016, the appellant obtained leave to appeal against the decision of the Court of Appeal on the following question of law: “Whether the approval of the State Authority under the provision of section 12 of the Electricity Supply Act 1990 must be express and not merely implied?”. Civil Appeal No. 02(f)-37-06/2016(W) 13 [38] It was submitted for the appellant that in considering whether the approval under section 12 of the 1990 Act must be express and not merely implied, the words ‘subject to the approval of the State Authority’ must be read together with the way which governs the act of the State Authority, which is the State Executive Council (“the State Exco”). [39] The State Exco, according to learned counsel, can only act by resolution and by properly convened meeting and consideration of papers for approval. In this case, it was in evidence that no written approval was given, and without a written approval, it was argued that there was no approval within the meaning of the statute. [40] Learned counsel contended that the kertas kerja referred to by the learned JC had nothing to do with the construction of the transmission lines and that as a matter of public policy, it is dangerous for the State Authority to give approval by conduct because it would enable a person to assert licence or occupation of State land through implied approval. [41] Learned counsel for the appellant had also argued that the position taken by the appellant that approval means express or written approval does not amount to rewriting the statute as their contention is simply that the word ‘approval’ must be read as ‘express approval’. [42] It was further submitted for the appellant that the High Court was wrong in law when the learned JC failed to take into account the effect of the State Constitution in construing section 12 of the 1990 Act and that the Court of Appeal was similarly wrong when they agreed with the learned JC. The correct question to ask, according to learned counsel, was in what manner Civil Appeal No. 02(f)-37-06/2016(W) 14 the “approval of the State Authority” could be effected and proved in the context of the State Constitution and not whether the word “approval” could be in writing or by way of an implication, by looking solely at the statute. In asking the wrong question, it was argued that the Court of Appeal and the learned JC had fundamentally misdirected themselves that one may safely say that no reasonable court which had properly directed itself and asked the correct questions could have arrived at the same conclusion. [43] For the respondent, it was argued that while there was no approval in the sense of it being contained in one document such as an extract of minutes of the State Exco meeting, there was approval for purposes of section 12 of the 1990 Act, as can be gathered from several documents and conduct of the parties. In this regard, learned counsel highlighted the history of the land as follows. [44] When the respondent entered the land in 1992, it was State land. At no time did the State object to the respondent’s entry and construction of the transmission lines. When the land was alienated to the first proprietor, Metro Angkasa in 1990, the State Authority recognised the fact that there was going to be transmission lines on the land as evident from the minutes of the State Exco meeting dated 8.8.1990. In 1991, pursuant to the State Exco meeting dated 14.8.1991, the land alienated to Metro Angkasa was carved out. An area of 2.2356 hectares was alienated to the respondent for purposes of the construction of the respondent’s substation. The document of title was issued on 25.8.1992. The respondent entered the land and constructed the transmission lines. Civil Appeal No. 02(f)-37-06/2016(W) 15 [45] The respondent had also relied on the evidence of the Deputy Registrar of Land and Mines Negeri Sembilan, Khairil Anuar bin Karim (DW1), who testified mainly on the documents available, and on the evidence led by the respondent’s General Manager, Hashim bin Ismail (DW2) on the process for the construction of the transmission lines. Our Decision [46] It is not in dispute in this case that when the respondent entered the land in 1992 to construct the transmission lines, the land belonged to the State. At the outset we agree with the High Court and the Court of Appeal that the relevant law applicable to the dispute would be section 12 of the 1990 Act. The only issue in this appeal is whether the respondent obtained the State Authority’s approval prior to entry on the State land to construct the transmission lines. [47] The 1990 Act is silent on how the approval of the State Authority was to be proven. In the instant case, the State Authority is that of Negeri Sembilan where section 3 of Part 1 of the Interpretation Acts 1948 and 1967 states: “State Authority” means the Ruler or Yang di-Pertua Negeri of a State and includes, in Negeri Sembilan, the Yang di-Pertuan Besar acting on behalf of himself and the Ruling Chiefs:”. [48] In arguing that the learned JC erred in holding that the words “approval of the State Authority” under section 12 of the 1990 Act did not require a written approval and that it could be implied, learned counsel for the Civil Appeal No. 02(f)-37-06/2016(W) 16 appellant relied on the following articles of the State Constitution of Negeri Sembilan: “XXXV. (1) The executive authority of the State shall be vested in the Ruler and exercisable, unless otherwise provided by the Federal Constitution or this Constitution, by His Highness or by the State Executive Council … … XL.