Persatuan Peniaga Kecil dalam v 1. Pengarah Tanah dan Galian Negeri Kelantan (DA-21NCVC-17-11/2018)

1.

KERAJAAN NEGERI KELANTAN DEFENDAN JUDGMENT [1] There is before me an application in suit DA-21NCVC-02-02/2017 [Encl 93], made by the plaintiff herein, to amend its amended writ and Statement of Claim (“SOC”) for the second time. In a nutshell, the plaintiff intends to amend the SOC: 2

So as to add new paras 26 to 31 of the amended

To add the words “Suatu deklarasi” to the prayer

of the SOC so as to read: Satu deklarasi bahawa Mahkamah memerintahkan agar Defendan menyediakan pasar baru Pasir Puteh yang lebih selesa, luas serta lebih selamat dan di tempat yang sesuai sebagaimana yang dijanjikan pada sesi dialog 2012 dan dalam mesyuarat bertarikh 25/8/2013. [2] This case is related to another action in DA-21NCvC-17-11/2018 (“suit 2018”) where the plaintiff has sued the Kelantan State Director of Land and Mines (“PTG”) and the State Government of Kelantan related to the same subject matter. The claim against the defendants in Suit 2018 was as a result of the 1st defendant therein, the PTG, having issued a notice dated 14.11.2018 (“the said notice to quit”) under s 425(1) of the National Land Code, 1965, (“NLC”) for the occupants of the Pasar Besar Pasir Puteh to vacate their respective business lots at the said market. [3] The plaintiff in Suit 2018, therefore, sought an order for this to issue a declaration that the said notice was null and void and of no legal effect. [4] There is another separate matter relating to application for an injunction in Suit 2018 which is Encl 5, which I will deal with later. 3 [5] By a consent order dated 22.10.2019, and pursuant to an application under O 4 r 1 of the Rules of Court 2012 (“ROC”) which is Encl 91, the parties agreed for suit 2018 to be consolidated with this action (“consolidation order”). [6] It was subsequent to the said consolidation order that the plaintiff made this application in Encl 93. [7] The brief pleaded case of the plaintiff is as follows. The plaintiff is a society established under the Societies Act 1966 whose members are the small traders operating their business at the Pasar Besar Pasir Puteh, Kelantan (“the said market”). One of the objectives of the plaintiff is to take care of the welfare and interest of its members. [8] The defendant, which is the local authority of Pasir Puteh is the registered owner of the said market. [9] The grounds stated in the application in Encl 93 can be summarised as follows. [10] First, the proposed amendments are to plead the relevant facts in view of the consolidation order dated 22.10.2019. One of the relevant facts is reflected in the proposed new para 26 of the Amended SOC which states as follows: Pada 14/11/2018, pihak Pengarah Pejabat Tanah & Galian Negeri Kelantan telah mengeluarkan satu (1) Notis di bawah seksyen 425(1) Kanun Tanah Negara 4 1965 secara umum tanpa menamakan seorang penama mendakwa bahawa para peniaga di Pasar Besar Pasir Puteh menduduki premis berkenaan secara tidak sah kerana ianya didakwa sebagai Tanah Kerajaan dan seterusnya mengarahkan keluar dan kosongkan premis berkenaan dalam masa 14 hari dari tarikh Notis tersebut. [11] Secondly, in view of Suit 2018, the proposed amendments are necessary to be placed before the court, so that all questions in controversy could be finally determined. [12] The application in Encl 93 is supported by the affidavit of Kamarzaman bin Che Ngah (“Kamarzaman”) dated 24.10.2019. Kamarzaman is the chairman of the plaintiff. [13] The defendant objects to the proposed amendment to the writ and SOC but did not file any affidavit in reply. The application to amend: The law [14] Under O 20 r 5 of the ROC, the Court may at any stage of the proceedings allow any party to amend its pleading. The phrase “at any stage” in the aforesaid rule gives a very wide discretion to the court to grant leave to parties to amend the pleadings. However, like any other discretion, it is not untrammelled or unfettered. It must, of course, be exercised judicially. [15] The principle of law with regard to any amendment of pleadings can be found in the then Federal Court case of Yamaha Motor 5 Co. Ltd v Yamaha Malaysia Sdn Bhd [1983] 1 MLJ 213 FC as restated by the Federal Court in Hong Leong Finance Bhd v Low Thiam Hoe & Another Appeal [2015] 8 CLJ 1. [16] Mohamed Azmi FJ (later FCJ) in delivering the decision of the then Federal Court in Yamaha Motor held as follows: … a Judge has a discretion to allow leave to amend pleadings. Like any other discretion, it must of course be exercised judicially (see Kam Hoy Trading v Kam Fatt Tin Mine [1963] MLJ 248. The general principle is that the court will allow such amendments as will cause no injustice to the other parties. Three basic questions should be considered to determine whether injustice would or would not result, (1) whether the application is bona fide; (2) whether the prejudice caused to the other side can be compensated by costs and (3) whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent character. (See Mallal's Supreme Court Practice page 342). If the answers to these three questions are in the affirmative, then the application for leave to amend should be allowed. If, on the other hand, one of these questions are answered in the negative, then the application ought to be dismissed. [17] This proposition of law was restated in Hong Leong Finance with an addendum. The Federal Court in Hong Leong Finance held that when the application to amend a pleading is made at a very late stage, the principles of Yamaha Motor ought not to be the sole 6 consideration. The Federal Court then held that when confronted with a late application to amend the pleadings, the Court should first investigate whether there was any reasonable explanation for the delay. [18] I have gone through the application and I am mindful that the application to amend only arises in view of Suit 2018. There is, therefore, no inordinate delay on the part of the plaintiff. [19] Reverting to the instant case, has the plaintiff complied with the three basic requirements as stated in Yamaha Motor? I will now proceed with examining the principles as stated in Yamaha Motor. Whether the three requirements fulfilled [20] According to Kamarzaman in his AIS, after the filing of Suit 2018, they were attempts by the parties to resolve the dispute. The offer was finally made by the State Legal Advisor, acting for both defendants in Suit 2018, vide his letter to the plaintiff’s solicitors dated 13.1.2019. [21] Unfortunately, there was no amicable settlement reached. [22] The plaintiff therefore, after having failed to reach a settlement with the defendants in Suit 2018, seeks to amend the SOC in Suit 2017 so as to give a clearer picture to the consolidated suits. I find the explanation of Kamarzaman to be reasonable, as the plaintiff could not have possibly made the application to amend the SOC while the negotiations were still ongoing. 7 [23] I therefore, hold that the application is not tainted with mala fide on the part of the plaintiff. [24] On whether the proposed amendments will in effect turn the suit from one character into a suit of another. Learned counsel for the defendant in Suit 2017 argued that since the relief sought by the plaintiff is in the form of a declaratory order, it is, therefore, an equitable remedy. Reference was made to the case of Syarikat Showkhat Industries Realty Sdn Bhd v Gergaji Development Sdn Bhd [2019] 2 MLRA 240 CA. [25] The contention of the plaintiff is that, in view of the proposed declaratory relief that the plaintiff seeks to add in prayer (a) of the SOC, the proposed amendment has in effect turn Suit 2017 from one character into a suit of another. [26] With respect, the proposed amendment and insertion of the phrase “satu deklarasi” in prayer (a) of the SOC is merely to state with clarity and precision, and are not inconsistent howsoever with the original prayers already pleaded and outlined. The proposed additional phrase in prayer (a) and inclusion of new paras 26 to 31 are premised on the same cause of action and nothing more. The amendments sought are based on existing facts which are substantially the same facts as the original claim with the exception to the new development in the form of the said notice to quit. [27] Finally, as to whether the prejudice caused to the defendant can be compensated by costs. On this, learned counsel for the 8 defendant argued that the proposed amendments, if allowed, would delay the proceedings herein since additional witnesses will have to be called to prove the allegations stated in the proposed inclusion of paras 26 to 31. [28] With respect, I cannot find this argument to be tenable. This action is consolidated with Suit 2018. The details of the said notice to quit are incorporated in Suit 2018 anyway. Since the two Suits are going to be heard together, the question of unnecessary delay will not arise. [29] The answers to the three questions raised in Yamaha Motor are in the affirmative. [30] For the reasons aforesaid, this application in Encl 93 is allowed. The proposed amendments to the SOC will not result in an injustice to the defendant within the meaning of Yamaha Motor. However, the defendant will be compensated with costs of RM10,000. On the injunction in Suit 2018 [31] On 29.11.2018, pursuant to an ex parte application in Encl 5 in Suit 2018, my learned brother Ahmad Bache J, had granted an interim injunction against the defendants in the following manner: MAKA ADALAH DENGAN INI DIPERINTAHKAN BAHAWA Perintah Injunksi sementara dibenarkan di mana Defendan-Defendan adalah dihalang, ditahan 9 atau ditegah sama ada sendirinya atau pengkhidmatnya atau ejennya atau sebaliknya daripada mengarahkan para peniaga dalam Pasar Besar Pasir Puteh supaya berpindah keluar dan menjalankan proses perobohan bangunan Pasar Besar Pasir Puteh sehingga pendengaran Notis Permohonan Plaintif (Kandungan 5) didengar secara inter parte pada 20 Disember 2018. [32] In essence, the members of the plaintiff are seeking to restrain the defendants from:

asking them to quit from the said market; and

demolishing the said market until the disposal of this application. [33] The case was then heard inter partes before me. [34] There is no doubt in my mind that the injunction sought herein is against the state government. S 2 of the Government Proceedings Act 1956 (GPA”) defines “Government” as to include the Federal Government and the Governments of the States. S 29(1)(a) of the GPA provides that: where in any proceedings against the Government any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, 10 but may in lieu thereof make an order declaratory of the rights of the parties. S 29(2) provides that “the court shall not in any civil proceedings grant any injunction or make any order against an officer of the Government if the effect of granting the injunction or making the order would be to give any relief against the Government which could not have been obtained in proceedings against the Government”. [35] The simple and straightforward questions therefore is, can the injunction, as worded in the said ex parte order, continue to lie against the defendants in view of s 29 of the GPA? The Supreme Court in Lim Kit Siang v United Engineers (M) Bhd & Ors [1987] 2 CLJ 195 SC held that the court's discretion to grant injunctions are limited statutorily and do not extend to granting injunctions against the government, regardless of whether the injunction sought is interim/interlocutory or permanent. The same view was echoed by the Court of Appeal in Superintendent of Lands and Surveys, Kuching Division & Ors v Kuching Waterfront Development Sdn Bhd [2009] 5 MLJ 607. [36] In Kuching Waterfront Development, the Court of Appeal held that even though the High Court has the discretion to grant the injunction, s 29 of the GPA does not permit the granting of an injunction against the government, and likewise s 54 of the Specific Relief Act 1950 (“SRA”) has the same bar for any department of any Government in Malaysia. 11 [37] S 54 of the SRA provides that an injunction cannot be granted to interfere with the public duties of any department of any Government in Malaysia. [38] Learned counsel for the plaintiff referred me a line of authorities to suggest that s 29 does not prohibit a grant of temporary injunction against the government. My attention was then drawn to the Court of Appeal’s judgment in Sabil Mulia (M) Sdn Bhd v Pengarah Hospital Tengku Ampuan Rahimah & Ors [2005] 2 CLJ 122 CA and the dicta found in the judgment of the Court of Appeal in Kekatong Sdn Bhd v Danaharta Urus Sdn Bhd [2003] 3 CLJ 378 CA and that of the High Court in Tengku Haji Jaafar & Anor v Government of the State of Pahang [1978] 2 MLJ 105. [39] Learned counsel for the plaintiff then referred me to the Court of Appeal case of Keet Gerald Francis Noel John v Mohd Noor bin Abdullah [1995] 1 MIJ 201 CA. It was held in that case, which now known as the Keet Gerald Inquiries, that in the exercise of its discretion in granting or dismissing an application for an injunction, the trial court should consider:

whether the totality of the facts presented before him discloses a bona fide serious issue to be tried;

having found that an issue has been disclosed that requires further investigation, he must consider where the justice of the case lies; and 12

the judge must have in the forefront of his mind that the remedy that he is asked to administer is discretionary, intended to produce a just result for the period between the date of the application and the trial proper and intended to maintain the status quo. [40] Having that as a background, learned counsel for the plaintiff submitted that in the event that the said market was to be demolished, its members will face difficulties in operating the business. But then it is not in dispute that the new market known as Pasar Baru Siti Hajar has been constructed by the defendant in Suit 2017 is already operational. [41] Be that as it may, the Keet Gerald Inquiries as I referred to aforesaid, should be viewed in the light of the majority judgment of the Supreme Court in United Engineers and the Court of Appeal’s judgment in Kuching Waterfront Development. The authorities cited by learned counsel for the plaintiff, in my considered opinion, do not have the effect of the overruling United Engineers which is still good law. [42] The plaintiff is moving the court to restrain a state department and a state government from exercising their statutory right under s 425(1) of the NLC. In short, it amounts to restraining the 1st defendant in exercising its public duty which is specifically barred under s 54 of the SRA. [43] For the aforesaid reasons, the ex parte injunction is discharged. 13 [44] I am making an order of costs for RM15,000 subject to allocatur. Dated: 24 November 2019. (DATO’ WAN AHMAD FARID BIN WAN SALLEH) Judge High Court Kota Bharu.