Court DecisionMY-COA

W-01(IM)(NCvC)-646-10/2024

XXXX v Pendaftar Hakmilik Wilayah Persekutuan, Kuala Lumpur (W-01(IM)(NCvC)-646-10/2024)

Court of Appeal of Malaysia24 Jun 2025

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1 COURT OF APPEAL, PUTRAJAYA W-01(A)-668-11/2021 W-01(NCVC)(A)-519-08/2024 W-01(IM)(NCVC)-646-10/2024 CORAM: YA DATO’ LEE SWEE SENG, HMP YA DATUK AZIMAH BINTI OMAR, HMR YA DATO' WAN AHMAD FARID BIN WAN SALLEH, HMR

Supporting Judgment

1

I have had the benefit of reading the draft judgment of my learned brother, Lee Swee Seng FCJ. With respect, I am in complete agreement with the reasoning contained in the grounds of judgment of his Lordship. I would therefore, dismiss the appeal in Appeal No WA-01(A)-668-11/2021. The appeal in W-01(NCVC)(A)-519- 08/2024 is allowed the High Court Order compelling the Registrar of Titles to transfer the subject land back to Semantan Estate is hereby set aside. The Stay Appeal of Semantan Estate is hereby dismissed.

2

I would however, like to add one small point. It is this.

3

The Order dated 29.12.2009 made by Zura Yahya JC, was affirmed by the Court of Appeal on 18.5.2012.

4

There were two attempts made by the Government of Malaysia – first, to seek leave to appeal to the Federal Court, which was refused 2 on 21.11.2012. Unperturbed, the Government of Malaysia sought to review the said refusal, which was made under r 137 of the Rules of the Federal Court 1995. This review application was also denied by the Federal Court on 22.11.2018.

5

Allow me to revisit the relevant parts of the Order dated 29.12.2009 made by the learned JC. They are as follows:

1

The Plaintiff retained its beneficial interest in the 263.272 acres of the land held under CT 17038 Mukim of Batu (formerly part of the land known as Lot 4647 comprised in C.T 12530) of which the Defendant has through its servants and/or agents taken unlawful possession of and that the Plaintiff is entitled as against the Defendant to possession thereof.

2

That the Defendant do pay the Plaintiff mesne profits as damages for trespass, the said damages to be assessed by the Senior Assistant Registrar.

6

I have gone through the sealed copy of the Order of the learned JC with the proverbial fine-tooth comb. I take cognisance of the following:

a

There is no order made by the learned JC for the subject Land to be transferred to Semantan Estate

1952

Sdn Bhd.

b

There is no evidence before this Court that Semantan Estate had sought clarification from the learned JC as 3 to whether the subject Land ought to be transferred and registered by the Federal Lands Commissioner to Semantan Estate as a consequential order. In short, there was no attempt made to “work out” the order so as to give effect to the initial order. It is to be recalled that “liberty to apply” rule for consequential order is implied in every Court order; Stone World Sdn Bhd v Engareh (M) Sdn Bhd [2020] 12 MLJ 237 FC. Semantan Estate did not exercise this right at the material time.

c

The first remedy (para 1) allowed by the Zura Yahya JC is that Semantan Estate retained its beneficial interest in the subject Land. The sealed copy of the Order stopped short of directing that the subject Land to be transferred and registered to and in the name of Semantan Estate.

d

What then, is a beneficial interest? It is trite that if one holds a beneficial interest in an immovable property, he can only enjoy the benefit from the same. He has no registered interest in the land. However, he can still enjoy the benefit or profit from the Land where he has a beneficial interest.

e

Since Semantan Estate retained the beneficial interest in the subject Land, the learned JC was entirely correct in making a further order in para (2) that the company is entitled to mesne profit to be 4 assessed by the High Court, which order was affirmed by the Court of Appeal.

7

It is for these reasons that the learned High Court Judge in Appeal No: W-01(NCVC)(A)-519-08/2024 had fallen into an appealable error that warrants a curial intervention. The learned Judge in Appeal No. 519 should not have made an order for the subject Land to be transferred and registered in the name of Semantan Estate when there was no such order stated in the sealed copy of the order dated 29.12.2009 made by Zura Yahya JC, nor was there any clarification sought by Semantan Estate at the material time before the learned

Jc.

8

The transfer order by the learned Judge under s 417 of the National Land Code 1965 is therefore set aside. Sgd

(wan Ahmad Farid Bin Wan Salleh)

Judge

Court of Appeal

Dated: 21 July 2025

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Malaysian judgment

Case metadata

Court: Court of Appeal of Malaysia
Decision date: 24 Jun 2025
Case number: W-01(IM)(NCvC)-646-10/2024
Coram: YA Dato' Lee Swee Seng; YA Datuk Azimah binti Omar; YAA Tun Wan Ahmad Farid Bin Wan Salleh
Practice area: Mandamus – whether the Court can compel the Government to transfer the subject land to Semantan Estate based on a 2009 High Court Declaration Order — whether s 29(1)(b) of the Government Proceedings Act 1956 (“GPA”) bars recovery orders against the Government – whether the High Court Declaration Order 2009 is amenable to a subsequent mandamus. Section 29(1)(b) GPA – whether it must be read in tandem with Article 13 of the Federal Constitution — whether the Court can order an assessment of adequate compensation under O 53 r 2(3) Rules of Court 2012 - whether alternatively s 69(4) Courts of Judicature Act 1964 may be invoked. Adequacy of compensation – whether the sum paid was adequate for the purposes of Article 13 of the Federal Constitution having regard to the sum paid by the Government pursuant to the Collector’s Award under the Land Acquisition Enactment — whether Semantan Estate had lost the opportunity to make a land reference — whether Semantan Estate may not seek the return of the subject land but must be confined to monetary relief. Assessment of compensation – whether compensation should be calculated at the current market value or at the market value on the date 3.12.1956 when the Government took possession of the subject land — interest at the rate of 6% per annum under the Land Acquisition Enactment on amount assessed after deducting sums already paid from 3.12.1956 to date of payment — Whether upon payment of the compensation sum as may be assessed the mesne profits will cease to be payable. Section 417 of the National Land Code (“NLC”) – whether the Court can order the transfer of the subject land to Semantan Estate on the basis of the High Court Declaration Order 2009 – whether the High Court Declaration Order 2009 had stopped short of ordering a transfer of the subject land to Semantan Estate — whether the order made for transfer of the subject land under s 417 of NLC should be set aside
Version: supporting judgment.pdf 1
Published: 22 Jul 2025
Source ID: d94fd492-f529-4785-b682-df3d08ada2eb

Catchwords

Mandamus – whether the Court can compel the Government to transfer the subject land to Semantan Estate based on a 2009 High Court Declaration Order — whether s 29(1)(b) of the Government Proceedings Act 1956 (“GPA”) bars recovery orders against the Government – whether the High Court Declaration Order 2009 is amenable to a subsequent mandamus. Section 29(1)(b) GPA – whether it must be read in tandem with Article 13 of the Federal Constitution — whether the Court can order an assessment of adequate compensation under O 53 r 2(3) Rules of Court 2012 - whether alternatively s 69(4) Courts of Judicature Act 1964 may be invoked. Adequacy of compensation – whether the sum paid was adequate for the purposes of Article 13 of the Federal Constitution having regard to the sum paid by the Government pursuant to the Collector’s Award under the Land Acquisition Enactment — whether Semantan Estate had lost the opportunity to make a land reference — whether Semantan Estate may not seek the return of the subject land but must be confined to monetary relief. Assessment of compensation – whether compensation should be calculated at the current market value or at the market value on the date 3.12.1956 when the Government took possession of the subject land — interest at the rate of 6% per annum under the Land Acquisition Enactment on amount assessed after deducting sums already paid from 3.12.1956 to date of payment — Whether upon payment of the compensation sum as may be assessed the mesne profits will cease to be payable. Section 417 of the National Land Code (“NLC”) – whether the Court can order the transfer of the subject land to Semantan Estate on the basis of the High Court Declaration Order 2009 – whether the High Court Declaration Order 2009 had stopped short of ordering a transfer of the subject land to Semantan Estate — whether the order made for transfer of the subject land under s 417 of NLC should be set aside

Parties

XXXX - appellant - ejudgment_parties
PENDAFTAR HAKMILIK WILAYAH PERSEKUTUAN, KUALA LUMPUR - respondent - ejudgment_parties

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