Perbadanan Kemajuan Iktisad v Na’Aimah Binti Muda (DA-15-21-10/2020)

This is an application by the Applicant to intervene and to be made as a party in the land reference by the Appellant. This application is made by virtue of O.15 r.6 of the Rules of Court 2012 (“2012”).

There are 2 other cases involving the same application by the same Applicant. Both cases are registered as DA-15-22-10/2020 and DA- 15-23-10/2020 and are all represented by the same counsel. The facts of all cases are identical except the units and the owners of the flat involved are different. As matter of convenience and by virtue of concession by all counsels, this court will analyses this case and the decision of this case will be binding upon two other cases.

The background facts which are relevant to this application can be summarized as follows: a) The Appellant in this case is a statutory body established by virtue of Kelantan State Economic Development Corporation Enactment 1966 whose duties are among others to promote residential, industrial and commercial development of areas in the State designated for this purpose, 6 and to stimulate, facilitate and undertake land development in the State; b) The Appellant is the owner to Unit Strata M1/3/3, Lot 584, Seksyen 14, Bandar Kota Bharu, Kelantan (“the said premise”) which is one of the unit in a flat known as Flat Jalan Bayam which was subject for an acquisition by the government under Land Acquisition Act 1960 (“the Act”) for the purpose of extension of Hospital Pakar Perdana; c) Flat Jalan Bayam was built on Lot 584, Seksyen 14, Bandar Kota Bharu, Kelantan (“the said land”) which is owned by the Applicant; d) Being dissatisfied with the compensation awarded by the Respondent, the Appellant lodged an objection by filing Form N in order to challenge the compensation; e) The objection was referred to this court by virtue of Form O of the Act and was registered as Rujukan Tanah No DA-15-21- 10/2020; f) In a separate action, the Applicant as the registered owner of the said land had also lodged an objection by filing Form N in order to challenge the compensation and it was referred to this court by virtue of Form O of the Act and was registered as Rujukan Tanah No DA-15-25-10/2020. 7

This court at this juncture need to record a unique position whereby, the Applicant in this case is not only the registered owner of the said land but also the paymaster of the land acquisition. In other word, the Applicant is asking the Government to acquire the said land that belongs to the Applicant and will eventually pay the owner of the Strata unit involved, like the Appellant in this case, as well to the Applicant.

It is important for this court to take note that for case Rujukan Tanah No DA-15-25-10/2020, the matter is put on hold until the determination on this application. The Appellant had made an undertaking that their stand in that case will very much depended on the outcome of this application.

Be it as it may, the pertinent issue in this application is whether the Applicant should be allowed to intervene in this land reference by the Applicant. The counsel for the Applicant contended that, the Applicant as the land owner has to ensure that their interest of the land acquisition is not being prejudiced by this land reference.

On the other hand, the counsel for the Appellant submitted that the Applicant as the paymaster shall have no locus to intervene in this action. This as promulgated by the Federal Court in the case of Tenaga Nasional Bhd v Unggul Tangkas Sdn Bhd & Anor and Other Appeals [2018] 4 CLJ 285. 8

The counsel for the Applicant had raised a preliminary issue in regards to the late filing of Affidavit in Reply by the Appellant. The last date of filing the Affidavit in Reply according to the Applicant was on 13/1/2021 whereas the Appellant’s Affidavit in Reply was only filed on 15/2/2021 but was initially emailed to the Applicant’s counsel on 20/1/2021.

According to the record of proceeding as recorded by court, there was no order by this court as to the last date of filing of the Affidavit in Reply. In fact, during the proceeding on 10/2/2021, counsel of the Applicant had informed court that the Applicant is yet to receive any Affidavit in Reply. Nevertheless, the written submission filed on 4/3/2021 by the Applicant indicated their objection to the late filing.

This court is in the opinion that by virtue of O1A of the ROC 2012, in order to administer justice, this court shall have regard to the overriding interest of justice and not only to the technical non-compliance with these rules and by virtue of O.2 r.1 of ROC 2012, the non-compliance shall only be treated as an irregularity and shall not nullify the proceedings. As such, this court is in the opinion that the late filing as mere irregularity and shall not invalidate the Affidavit in Reply just for a mere 7 days late from the date it supposed to be filed. (refer to Duli Yang Amat Mulia Tunku Ibrahim Ismail ibni 9 Sultan Iskandar al-Haj v Datuk Captain Hamzah Mohd Noor & Anor Appeal [2009] 1 MLRA 528).

Before this court endure to the merit of this application, this court realized that there is another preliminary issue which for this court is more serious compared to the first issue. The court noticed that the Notice of Application did not mentioned the exact intitulement for this court to move this application. The intitulement of this application is only in regards to Land Acquisition Act 1960 and have no relation whatsoever to the intervenor application. Likewise, the body of the Notice of Application did not mention under which provision of the law or rules the Applicant intended to move this application.

On this issue, the Court of Appeal in Ung Goh Guan & Anor v. Chan Eng Hooi & Ors And Another Appeal [2010] 1 LNS 1208 held as follows: “Every originating summons must be in Form 6, 7 or 8 whichever is appropriate (see O. 7, r. 2(1) Rules of The High Court 1980 (RHC) ). O. 7, r. 2(1A) RHC stipulates that every originating summons shall state in its intitulement the particular rule of court and provisions of written law under which the court is being moved.”

On the same opinion, Gopal Sri Ram JCA (as he then was) in Cheow Chew Khoon v. Abdul Johari Abdul Rahman [1995] 4 CLJ 127 had this to say: 10 “In my judgment, this matter, which is a point of practice and procedure, is to be resolved by reference to the fundamental principle that a party must not take his opponent or the court by surprise. It is my opinion that an originating process requiring an intitulement must state, with sufficient particularity, either in its heading or in its body, the statute or Rule of Court under which the court is being moved: otherwise it would be an embarrassing pleading and may be liable to be struck out, unless sooner amended.”

This court is in the opinion that it is clear that the Applicant had failed to state the required intitulement in this action and failed to mention the sufficient particularity under which provisions of the law the court is to be moved. This failure is for this court is fatal because it is mandatory in nature and it goes to the root of the application.

On this issue alone, this application shall be liable to be struck out.

Nevertheless, notwithstanding the failure which is fatal, this court have taken the safer approach to deal with the merits of the case. The only issue to be determined is whether the Applicant either as the owner or the paymaster has the legal right to intervene.

As to the position of the Applicant as the land owner, this court is of the opinion that the Applicant’s interest will be eventually dealt with 11 their own reference which was already registered in this court as Rujukan Tanah No DA-15-25-10/2020. In Form O of the said action, it was clearly indicated that the challenge is as to the amount of compensation awarded. Though this court must once again put on record that this is weird since the Applicant as the paymaster will eventually pay the land owner who is obviously the Applicant themselves.

The next consideration is as to the position of the Applicant as the paymaster. At first glance, this court find that this will lead to the issue of conflict of interest of the Applicant. It is pertinent to note that the Applicant is this action take the stand to protect their interest as paymaster in view that the compensation is not to be increased but in their own land reference case, the Applicant is taking a different stand when the Applicant is dissatisfied with the compensation awarded by the Land Administrator.

This in the opinion of this court to be inappropriate and tantamount to an abuse of the court’s process. Court of Appeal in the case of Sistem Lingkaran Lebuhraya Kajang v Inch Kenneth Kajang Rubber Ltd & Anor [2011] 4 MLJ 403 held as follows: "[16] In the overall scheme and context of the Land Acquisition Act, any application by the appellant under O. 15 r. 6(2) (b) of the RHC 1980 to be made a party, is inappropriate. It would amount to an abuse of the process of the court and an attempt to circumvent the clear and unambiguous provisions of the LAA 1960 as 12 regards to the manner and circumstances in which 'persons interested' under the LAA 1960 are to participate in proceedings either before the land administrator at an enquiry or, in the court, upon a reference by the land administrator upon any objection to an award. Filing of Form N is the most appropriate and the only mode available under the LAA 1960 to any person interested under the LAA 1960 to become a party in a land reference at the High Court relating to an objection to the amount of compensation. ''

This finding of the COA was later affirmed by the Federal Court in Tenaga Nasional Berhad v Unggul Tangkas Sdn Bhd (supra) through the judgement of Zulkifli Ahmad Makinuddin PCA as follows: "[33] On careful examination of the above two conflicting decisions of the Court of Appeal cases, we are of the view that the decision in the case of Sistem Lingkaran Lebuhraya Kajang Sdn Bhd which was followed by the Court of Appeal in the present case was correctly decided on this issue. The court in Sistem Lingkaran Lebuhraya Kajang Sdn Bhd had considered the totality of the circumstances of the case in the light of the scheme of the Act and the kind of special regime it has created, such that O. 15 r. 6(2)(b) of ROC 2012 is not applicable for the purpose of making a party either a co-respondent or an intervener. We fully endorse the views expressed and the decision arrived at in the case of Sistem Lingkaran Lebuhraya Kajang Sdn Bhd." 13

This court is also in the opinion that under the Act, the only mode of any interested party to participate in the land reference proceedings before this court is to file the compulsory statutory Form N which the Applicant had done in the separate action. An application to intervene either by virtue of O.15 r.6 ROC 2012 or any other means shall not be permissible in land reference proceedings. This as this court had said earlier, is tantamount to abuse of court’s process.

This stand as what was decided by the Court of Appeal in Lembaga Lebuh Raya Malaysia v Semenyih Jaya [2011] 3 CLJ 159, which held as follows: "[78] The procedure by the said summons in chambers is wholly irregular and unauthorized under the provisions of the LAA 1960, vide a reference to court by the Land Administrator under the LAA 1960. The summons in chambers ought to have been struck off in limine by the High Court judge. Land Reference proceedings should not be protracted and delayed in the High Court by unnecessary interlocutory proceedings."

For the above said reasons, this court find that the application in Enclosure 6 is of without merit. Hence, the application is hereby be dismissed with cost at RM 3,000.00 subject to allocator fee to be borne by Applicant to the Appellant. 14

As for the two other cases DA-15-22-10/2020 and DA-15-23- 10/2020, for the same reasons the applications are hereby be dismissed with cost at RM 3,000.00 to be borne by the Applicant to each Appellant subject to allocator fee. Bertarikh: 8th November, 2021 (DATUK MOHAMAD ABAZAFREE BIN MOHD ABBAS) Pesuruhjaya Kehakiman Mahkamah Tinggi (2) Kota Bharu Kelantan 15 Counsels: For The Appellant : Encik Raihan bin Yusoff Tetuan Ridzuan Awang & Co. Peguambela dan Peguamcara Lot 343, Tingkat 2, Jalan Sultan Yahya Petra, 1520 Kota Bharu, Kelantan. For The Respondent : Tuan Adam bin Mohamed Penolong Penasihat Undang-Undang Pejabat Penasihat Undang-Undang Negeri Kelantan, Blok 5, Aras Bawah Kompleks Kota Darulnaim 15050 Kota Bharu, Kelantan. For The Applicant : Encik Mohd Khuzaimi bin Mohd Salleh Wan Jawahir & Takiyuddin PT 2226, Jalan Long Yunus 15200 Kota Bharu Kelantan Tarikh Bicara : 23hb. Ogos, 2021 Tarikh Keputusan : 20hb. Oktober, 2021 16 Laws Referred  Kelantan State Economic Development Corporation Enactment 1966  O.15 r.6 of the Rules of Court 2012  Land Acquisition Act 1960 Cases Referred  Tenaga Nasional Bhd v Unggul Tangkas Sdn Bhd & Anor and Other Appeals [2018] 4 CLJ 285  Duli Yang Amat Mulia Tunku Ibrahim Ismail ibni Sultan Iskandar al-Haj v Datuk Captain Hamzah Mohd Noor & Anor Appeal [2009] 1 MLRA 528  Ung Goh Guan & Anor v. Chan Eng Hooi & Ors And Another Appeal [2010] 1 LNS 1208  Sistem Lingkaran Lebuhraya Kajang v Inch Kenneth Kajang Rubber Ltd & Anor [2011] 4 MLJ 403  Cheow Chew Khoon v. Abdul Johari Abdul Rahman [1995] 4 CLJ 127  Lembaga Lebuh Raya Malaysia v Semenyih Jaya [2011] 3 CLJ 159