Lembaga Lebuhraya Malaysia v Pentadbir Tanah Daerah Kelang (BA-15-35-02/2016)

This judgment discusses the sole issue of whether the court of its own motion (suo motu) can order a land owner to be joined as a co-respondent in a land reference filed by Lembaga Lebuhraya Malaysia

pursuant to s 37(1) of the Land Acquisition Act 1960 (LAA) against an award of land compensation by the Land Administrator’s (LA). B. Background

This land reference is “unique” in the following sense:

on behalf of LLM, the Selangor State Authority has acquired part of seven lots of land (Acquired Land) belonging to Sime Darby Property (Klang) Sdn. Bhd. (Land Owner) for the West Coast Expressway project. The LA had decided the amount of 2 compensation payable to the Land Owner for the Acquired Land as RM169,296,852.60 (Award). Regarding the Award, the following two land references to the High Court (1st Two Land References) had been filed by -

LLM (LLM’s Land Reference); and

Land Owner (Land Owner’s Land Reference). Surprisingly, there was no consolidation or joint hearing of the 1st Two Land References before Mohd. Yazid bin Mustafa J and two assessors (1st Land Reference Court). However, the 1st Two Land References were simultaneously heard by the 1st Land Reference

in the 1st Two Land References, the 1st Land Reference Court decided, among others, that the amount of compensation for “severance” and “injurious affection” was reduced by RM5,631,966.72 (1st Land Reference Court’s Decision). LLM appealed to the Court of Appeal against the 1st Land Reference Court’s Decision (1st Appeal). No appeal to the Court of Appeal had been filed by the Land Owner against the 1st Land Reference Court’s Decision;

in the 1st Appeal -

the Land Owner was not made a co-respondent by LLM. Nor did the Land Owner apply for leave of the Court of Appeal to intervene in the 1st Appeal; and 3

the Court of Appeal ordered a re-hearing of LLM’s Land Reference (2nd LLM’s Land Reference);

the 2nd LLM’s Land Reference was heard by Akhtar bin Tahir J (2nd Land Reference Court). In the 2nd LLM’s Land Reference -

the Land Owner applied to intervene in the 2nd LLM’s Land Reference. The 2nd Land Reference Court allowed this application only to the extent of allowing the Land Owner to submit on two specified issues of law (Legal Questions); and

based on the written submissions of LLM, LA and the Land Owner on the Legal Questions, the 2nd Land Reference Court dismissed the 2nd LLM’s Land Reference with no order as to costs and without hearing the 2nd LLM’s Land Reference on its merits (2nd Land Reference Court’s Decision);

LLM appealed to the Court of Appeal against the 2nd Land Reference Court’s Decision (2nd Appeal). In the 2nd Appeal, the Court of Appeal ordered a third hearing of LLM’s Reference (3rd LLM’s Land Reference); and

the 3rd LLM’s Land Reference is now heard by me. In the 3rd LLM’s Land Reference -

the Land Owner initially applied to intervene in the 3rd LLM’s Land Reference. Inexplicably, the Land Owner withdrew this application; and 4

acting on my own motion under ss 44(2) and 45(2) LAA read with O 1A, O 2 r 1(2) and O 15 r 6(2) of the Rules of Court 2012 (RC), I ordered the Land Owner to be joined as a co-respondent in the 3rd LLM’s Land Reference (Joinder Order).

LLM has now appealed to the Court of Appeal against the Joinder Order. This judgment provides my reasons for the Joinder Order. C. Whether Court should make Joinder Order on its own motion

Sections 44(2) and 45(2) LAA provide as follows: “44(2) The Court shall consider the interests of all persons interested who have not accepted the award, whether those persons have themselves made an objection or not. 45(2) Save in so far as they may be inconsistent with anything contained in this Act, the law for the time being in force relating to civil procedure shall apply to all proceedings before the Court under this Act.” (emphasis added).

I reproduce below O 1A, O 2 r 1(2) and the relevant part of O 15 r 6(2)(b)(i) and (ii) RC: “Regard shall be to justice O 1A In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules. 5 O 2 r 1(2) These Rules are a procedural code and subject to the overriding objective of enabling the Court to deal with cases justly. The parties are required to assist the Court to achieve this overriding objective. r 6(2) Subject to this rule, at any stage of the proceedings in any cause or matter, the Court may on such terms as it thinks just and either of its own motion or on application - …

order any of the following persons to be added as a party, namely -

any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which, in the opinion of the Court, would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.” (emphasis added).

The Joinder Order is made premised on one or both of the following grounds:

s 44(2) LAA; and/or 6

O 15 r 6(2)(b(i) and/or (ii) read with O 1A and O 2 r 1(2) and RC.

Firstly, I made the Land Owner as a co-respondent pursuant to s 44(2) LAA because -

s 2(1) LAA defines “person interested” to include “every person claiming an interest in compensation to be made on account of the acquisition of land” under LAA. The Land Owner is clearly a “person interested” under s 2(1) read with s 44(2) LAA;

the Land Owner has not accepted the Award by filing the Land Owner’s Land Reference;

s 44(2) LAA employs the use of a mandatory term “shall”. Accordingly, this court “shall” consider the interest of the Land Owner in this 3rd LLM’s Land Reference by making the Joinder Order. The mandatory effect of s 44(2) LAA is explained in the Federal Court’s decision in Tenaga Nasional Bhd v Unggul Tangkas Sdn Bhd & Anor and other appeals [2018] 4 CLJ 285. In Tenaga Nasional Bhd, the Federal Court upheld the Court of Appeal’s refusal to allow the appellant, Tenaga Nasional Bhd. (TNB), the paymaster of land compensation in that case, to intervene in land reference proceedings. Zulkefli Ahmad Makinudin PCA decided as follows in Tenaga Nasional Bhd, at [37] - “[37] It is our judgment that TNB had no legal interest in the land reference proceedings. TNB being the paymaster, it had at the highest only a pecuniary interest. (See the case of Tohtonku Sdn Bhd v Superace (M) Sdn Bhd [1992] 2 CLJ 1153; [1992] 1 CLJ (Rep) 344). The evidence in the present case showed that TNB was 7 not aggrieved by the award but was merely apprehensive that the outcome of the land reference proceedings in the High Court may adversely affect its pocket. At any rate, TNB's rights on whose behalf acquisition proceedings were instituted (see s 43 of the Act) and whose interests must be considered by the court whether they have objected or not (see s 44(2) of the Act) without the need for intervention.” (emphasis added). Despite not allowing TNB to intervene in the land reference proceedings in Tenaga Nasional Bhd, the Federal Court held that the land reference court “must” consider TNB’s interest pursuant to s 44(2) LAA. In this case, the Land Owner had participated in the enquiry before the LA under s 12(1) LAA and had filed the Land Owner’s Land Reference. As such, the Land Owner is entitled to intervene in the 3rd LLM’s Land Reference. Despite the Land Owner’s withdrawal of its intervention application, I exercise my powers suo motu under s 44(2) LAA to make the Joinder Order; and

the Joinder Order is supported by the following reasons -

the Land Owner is directly affected by the 3rd LLM’s Land Reference. This is because if this court allows the 3rd LLM’s Land Reference, this will reduce the Award which will then adversely affect the Land Owner. Hence, the Land Owner has a right to be heard before this court decides the 3rd LLM’s Land Reference. Such a right is in consonance with rights to property as guaranteed by Article 13(1) and (2) of the Federal 8 Constitution (FC), our supreme law [please see Article 4(1) FC]. Article 13(1) and (2) FC provide as follows - “Rights to property 13(1) No person shall be deprived of property save in accordance with law.

No law shall provide for the compulsory acquisition or use of property without adequate compensation.” (emphasis added); and

if the Joinder Order is not made and if this court reduces the Award (Reduced Award), the Land Owner may subsequently apply to this court or file a new suit to set aside the Reduced Award on the ground that the second rule of natural justice has been breached (because the Land Owner has not been given a right to be heard in the 3rd LLM’s Land Reference) - please see Chow Chuan Fat v Yeo Chai Seng & Ors [2017] 1 AMR 676, at [20(5)], [21] and [22]. The Joinder Order thereby ensures finality in litigation regarding the amount of compensation to be awarded for the Acquired Land. The need for finality in this case is accentuated by the fact that LLM’s land reference is now heard for a third time (as ordered by two Court of Appeal’s decisions).

Additionally or alternatively, the Joinder Order is premised on O 15 r 6(2)(b)(i) and/or (ii) read with O 1A and O 2 r 1(2) and RC as follows: 9

according to s 45(2) LAA, a provision in RC can only apply to land reference proceedings if that provision is not inconsistent with LAA. I am of the view that O 1A, O 2 r 1(2) and O 15 r 6(2) (b)(i) and/or (ii) RC are not inconsistent with LAA and can therefore apply to land reference proceedings;

the Court may join a person (who is originally not a party in a proceedings) as a party in the proceedings under O 15 r 6(2)(b)(i) RC [1st Limb] or O 15 r 6(2)(b)(ii) RC [2nd Limb]. In this case -

the 1st Limb is satisfied because the Land Owner “ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon”; and/or

the 2nd Limb is fulfilled as between LLM and the Land Owner, there exists “a question or issue arising out of or relating to or connected with” the Award (relief or remedy claimed by LLM) in this case “which, in the opinion of the Court, would be just and convenient to determine” as between LLM and the Land Owner;

the wording of O 15 r 6(2) RC (of its own motion) expressly allows the court to act suo motu to join a party. I rely on the following cases -

in Tsoi Ping Kwan v Medan Juta Sdn Bhd & Anor [1996] 3 MLJ 367, the Court of Appeal acted of its own motion to join a 10 company (which was not a party in the suit before the High Court) at an appellate stage. I cite the following passage of Gopal Sri Ram JCA’s (as he then was) judgment in Tsoi Ping Kwan, at p. 379-380 - “After having heard Mr Wong Chong Wah on the appellant's behalf, and Mr Abraham on behalf of the first respondent, we were satisfied that as between the appellant and the first respondent, the balance of justice certainly swung in the former's favour in having the caveat restored to the title. But that was not the end of the matter. The problem had been compounded by the transfer of the lands to Ayer Hitam. Any order that we were prepared to make at that stage would have most certainly resulted in serious prejudice to Ayer Hitam as the transferee, and it was not before us. We therefore considered it essential, as a matter of natural justice, that we should have evidence from Ayer Hitam and hear counsel on its behalf before finally deciding where the justice of the case lay. Therefore, in order to achieve the ends of justice, we made the following orders and gave the following directions:

that the appeal be allowed to the limited extent that the caveats be restored to the register documents of title until further order of this court;

(ii) that Ayer Hitam be added as a second respondent to the appeal;

(ii) that the title to this appeal be amended accordingly; 11

(iii) that the appellant do forthwith, that is to say, before the close of business on 7 August 1996, serve a copy of the record of appeal on solicitors for Ayer Hitam; and

(iv) that Ayer Hitam as the added second respondent be at liberty to file an affidavit in support of its case. This court has ample jurisdiction under O 15 r 6(2)(b) of the Rules of the High Court 1980 read with r 4 of the Rules of the Court of Appeal 1994 to make these orders. See Tong Swee King v Pegang Mining Co Ltd & Ors [1967] 2 MLJ 214, affirmed sub nom Pegang Mining Co Ltd v Choong Sam & Ors [1969] 2 MLJ 52. The appeal was then adjourned to 16 August 1996 to hear arguments from the second respondent as to why the caveats should not continue to remain on the register of the lands of which it was now the registered proprietor.” (emphasis added); and

Abdul Malik Ishak J (as he then was) acted suo motu and joined four non-parties as co-defendants in the High Court case of MBF Property Services Sdn Bhd v Madihill Development Sdn Bhd & Ors [1998] 1 CLJ Supp 110, at 112-114;

O 1A provides that RC [including O 15 r 6(2) RC] should be administered with regard to the overriding interest of justice. O 2 r 1(2) RC states that RC are subject to the overriding objective of enabling the Court to deal with cases justly. Premised on O 1A and O 2 r 1(2) RC, in the interest of justice, I have no hesitation to make 12 the Joinder Order under O 15 r 6(2)(b)(i) and/or (ii) RC because the Land Owner is directly affected by the 3rd LLM’s Land Reference and has a right to be heard before this court decides the 3rd LLM’s Land Reference - please see the above sub-paragraph 7(4)(a); and

the Joinder Order is also made under O 15 r 6(2)(b) (i) and/or (ii) to ensure finality in this matter - please refer to the above sub-paragraph 7(4)(b). WONG KIAN KHEONG Judge High Court of Malaya Shah Alam, Selangor Darul Ehsan DATE: 13 MARCH 2019 Counsel for Applicant: Mr. Shahman A/L Sangaran (Messrs Kumar Jaspal Quah & Aishah) Counsel for Respondent: Puan Etty Eliany Tesno (Kamar Penasihat Undang-Undang Negeri Selangor)