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Court of Appeal of Malaysia |
] [Hide Context] DALAM MAHKAMAH RAYUAN MALAYSIA
RAYUAN SIVIL NO.
N-01-34-1996
1.
NG KIM MOI (P)
2.
GOH CONG LEY @ YE CHONG NEY
3.
NG CHOON ENG (P)
4.
LEE YOON HENG
5.
ENG SHI LIN @ NG CHEU LING … PERAYU-
PENTADBIR TANAH DAERAH, SEREMBAN,
NEGERI SEMBILAN DARUL KHUSUS … RESPONDEN
1.
NEGERI SEMBILAN TOWNSHIP SDN BHD
2. NEGERI SEMBILAN INDUSTRIAL
(Dalam Perkara Mahkamah Tinggi di Seremban
Dalam Perkara di bawah Seksyen 3 Akta Pengambilan
Tanah 1960
Dalam Perkara di
bawa perkara 8 dan 13 di bawah Perlembagaan Persekutuan
Dalam Perkara di
bawah Kaedah-Kaedah Mahkamah Tinggi 1980
1. Ng Kim Moi (P)
3. Ng Choon Eng (P)
4. Lee Yoon Heng
5. Eng Shi Lin @ Ng Cheu Ling … Perayu-
Pentadbir Tanah Daerah, Seremban,
Negeri Sembilan Darul Khusus … Responden
1. Negeri Sembilan Township Sdn Bhd
2. Negeri Sembilan Industrial
Abdul Aziz bin Mohamad,
J.C.A.
Azmel bin Haji Maamor, J
DISSENTING
JUDGMENT OF GOPAL SRI RAM, J.C.A.
The background
1. The new township of Bandar
Baru Nilai stands on lands acquired by the State Government of Negeri Sembilan
in the exercise of their
powers under the Land Acquisition Act 1960 (“the
Act”). The present litigation arises
out of that acquisition.
2. The appellants were
registered co-proprietors of a piece of land in the Mukim of Labu. It was one of the several pieces of land
acquired for the new township. The
complaint is that the acquisition is in violation of law.
3. The appellants’ case in
support of that complaint is simple enough.
It is based on facts that are common ground between the parties. The appellants say that the Forms A and B
prescribed by the Act were never issued and that Forms D, E and F though issued
were not
served. The certificate of
urgency to take possession in Form I was issued on September 18, 1993. Two days later, on September 20, 1993, the
notification of acquisition in Form K was issued. It was only after Forms I and K were served on the appellants
that they became aware of the acquisition.
However, by the time Forms I and K were issued and served, the Land
Administrator’s inquiry into the issue of compensation had already
commenced. The award of compensation for the
acquisition was made on July 14, 1994.
The appellants were awarded RM 2 per square foot as compensation. However, about two years later, the
appellants land was sold to a private limited company at a price of RM 53 per
square foot, that
is to say, almost thirty times the value assessed and awarded
by the Land Administrator.
4. The appellants being
dissatisfied with the value assessed and awarded initiated land reference
proceedings. They also took out an
originating summons claiming the following relief: (i) an order setting aside
the acquisition; (ii) an order
retransferring their land to them; (iii)
damages; and (iv) further or other appropriate relief.
5. The land reference came
for hearing before the High Court on February 12, 1996. Counsel for the appellants moved the court
for an adjournment pending the disposal of the summons which by then had been
fixed for
hearing on March 4, 1996.
The learned judge did not deal with the appellants’ application for adjournment. Instead, in the face of strong objection,
he directed that the summons be brought forward before him on the following
day, that is,
February 13, 1996 for hearing and disposal. The summons was heard on February 13 and
dismissed. As for the land reference,
this was adjourned on several occasions and was dismissed on February 12,
2001. The present appeal is directed
against the order of the learned judge dismissing the appellants’ summons.
The issues
6. On these facts, two main
issues arise for decision. These are,
first, whether the acquisition of the appellants’ lands was in accordance with
law, that is to say, in this particular
instance, whether it was in accordance
with the provisions of the Act.
7. Second, if the acquisition
was not in accordance with law, then the relief, if any, that ought to be
granted to the appellants.
The first issue: the
legality of the acquisition
8. The main plank of the
submission of learned counsel for the appellants on the first issue rests on
two alleged violations of the Act. The
first violation, it was submitted, relates to the non-issuance of Forms A and B
prescribed by the Act. The second
violation relates to the non-service of Forms D, E and F. Since the acquiring authority’s response to
these two parts of the case differs, I shall deal with them separately.
9. Now, it is common ground
that Forms A and B were never issued.
Learned counsel for the appellants submits that this is fatal to the
acquisition process. In order to
appreciate this argument regard must be had to section 4 which is the relevant
provisions of the Act. It reads as
follows:
“(1) Whenever the State Authority is satisfied that any land in any
locality in the State is likely to be needed for any of the purposes
referred
to in section 3 a notification in Form A shall be published in the Gazette.
(2) The Land Administrator shall give public notice of any notification
published under subsection (1) in the manner prescribed by
section 52.
(3) A notification under subsection (1) shall lapse in so far as it
relates to any land or part of any land in respect of which there
is not
published in the Gazette within
twelve months from the date of publication of such notification a declaration
under section 8 (1).
(4) Notwithstanding subsection (3), it shall be lawful for the State
Authority to publish a fresh notification under section 4 (1)
in respect of the
land or part of the land in relation to which the notification had lapsed if
the State Authority is satisfied that
such land or such part of the land is
likely to be needed for any of the purposes referred to in section 3.”
It is common ground that subsection (4) is not relevant to the facts of
this case.
10. It is to be noticed at once
that the section uses the word “shall” in each of its subsections. Learned counsel for the appellants
submitted that this points to the section being imperative or mandatory. He cited no authority in support,
presumably because he considered the point beyond argument. However, the learned state legal adviser
argued that compliance with section 4 (1), or indeed any of the other
subsections of that
section is not mandatory.
She submitted that the word “shall” in section 4(1) was merely directory
and not mandatory. In support of her
argument, she cited Grunwick
Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service
[1978] AC 655. But I really do
not think that that case is of any assistance. That was a case involving section 14(1) of the United Kingdom
Employment Protection Act 1975. The
issue was whether the word “shall” appearing in that section was mandatory or
directory. It was in the particular
context of that case that Lord Salmon said in his speech (at p 698):
“The result of this appeal
turns solely on whether that part of s 14(1) which I have cited is mandatory or
directory. Prima facie the word
‘shall’ suggests that it is mandatory but that word has often been rightly
construed as being directory. Everything turns on the context in which
it is used: the subject-matter, the purpose and effect of the section in which
it appears.” (Emphasis added.)
11. The caveat inserted by Lord
Salmon in the concluding sentence of his speech is, I think, is an expression
of the true guide to construction.
12. At this stage something
needs to be said about the value of precedent in cases that concern statutory
interpretation. It is trite that when
a court interprets words in a particular statute, decisions of other courts on
similar words appearing in a
different statute have little or no weight in
determining what meaning we ought to ascribe to those words. The point was made by Lord Diplock in Carter v Bradbeer [1975] 3 All ER 158,
161:
“A question of statutory
construction is one in which the strict doctrine of precedent can only be of
narrow application. The ratio
decidendi of a judgment as to the meaning of particular words or combinations
of words used in a particular statutory provision
can have no more than a
persuasive influence on a court which is called on to interpret the same word
or combination of words appearing
in some other statutory provision. It is not determinative of the meaning of
that other provision. This is because
the inherent flexibility of the English language may make it necessary for the
interpreter to have recourse to a variety
of aids or canons of construction,
which are not merely lexicographical, in order to select from what may be a
number of different
meanings which the words as a matter of language are
capable of bearing, the precise meaning in which the legislature intended them
to be understood. Canons of
construction may prove to be conflicting guide posts: they may point different
ways. Fashions in parliamentary
draftsmanship and the attitude of the legislature toward innovations in
established law are not unchanging.
Such
changes as have taken place are properly reflected in the relative importance
to be attached to the guidance given by competing
canons of construction which
point in different ways. If one looks
back to the actual decisions of this House on questions of statutory
construction over the past thirty years one cannot
fail to be struck by the
evidence of a trend away from the purely literal towards the purposive
construction of statutory provisions.”
13. In Brennan v Comcare [1994] 122 ALR 615, 634, Gummow J
distinguished between a case that establishes a principle and thereby a
precedent and a decision on the meaning and effect
of particular words
appearing in a particular statute. He
said:
“The judicial technique
involved in construing a statutory text is different from that required in
applying previous decisions expounding
the common law. In the latter class of case, the task is to
interpret the legal concepts which find expression in the various language used
in the
relevant judgments. The
frequently repeated caution is against construing the terms of those judgments
as if they were the words of a statute.
The concern is not with the ascertainment of the meaning and the
application of particular words used by previous judges, so much
as with
gaining an understanding of the concepts to which expression was sought to be
given. The distinction is usefully
expressed in the following passage from Judge Posner’s work The Problems of
Jurisprudence, 1990, p 248:
‘Translation may be
imperfect and alter the meaning of the original doctrine; nevertheless many
common law doctrines have a stable
meaning, though expressed in a variety of
different ways. We are not afraid that
we would lose the meaning of negligence if we put it in different words from
those used by Learned Hand, or
William Prosser, or some other authoritative
expositor of the concept.’
Statutory law differs in that the statutory
text – the starting point for decision, and in that respect (but only that
respect) corresponding
to judicial opinions in common law decision-making -- is
in some important sense not to be revised by the judges, not to be put into
their own words. They cannot treat the statute as a stab at
formulating a concept. They have first to extract the concept from
the statute – that is, interpret the statute.
(There is a sense in which
common law judges ‘interpret’ common law, but it is the sense in which
‘interpretation’ means ‘understanding’.)”
14. Bearing in mind what has
been said in the cases referred to above, I turn now to consider whether the
word “shall” in section 4(1)
of the Act is mandatory or merely directory. In doing so, I take into account the fact
that regard must be had to section 4(1) not in isolation but in the context of
the Act when
read as a whole. And it
is this approach that I adopt.
15. It may be accepted as
settled beyond argument that the object or purpose of the Act in essence is to
empower the State to deprive
an owner of his immovable property in exchange for
fair and reasonable compensation.
There is no right vested in an owner to a pre-acquisition hearing: see, S. Kulasingham v Commissioner of Lands,
Federal Territory [1982] 1 MLJ 204.
However, there is a right to be heard at an inquiry held by the Land
Administrator with regard to the quantum of the compensation
that is to be
awarded. Since it is a statute that is
aimed at deprivation of property, courts require the acquiring authority to act
strictly in accordance
with the terms of the Act. See, Pemungut Hasil Tanah, Daerah Barat Daya, Pulau Pinang v Ong Gaik Kee
[1983] 2 MLJ 35.
16. Thus, when section 4(1) is
read in the context of the Act as a whole, it is clear that the word “shall”
that appears in that subsection
is mandatory and not merely directory in
effect. Put in another fashion, the
word “shall” prima-facie denotes a
mandatory provision and there is nothing in the context of the Act that points
to a contrary meaning.
17. No Malaysian case was cited
to us either in support or in opposition to the view I take. However, there is a decision of the Indian
Supreme Court on section 4(1) of the Indian Land Acquisition Act, 1894. That provision reads as follows:
“4 (1). Whenever it appears
to the appropriate Government or Collector that land in any locality is needed
or is likely to be needed
for any public purpose, a notification to that effect
shall be published in the Official Gazette, and the Collector shall cause
public
notice of the substance of such notification to be given at convenient
places in the said, locality.”
18. As may be seen the Indian
provision is similar to our section 4(1).
And it may be added for good measure that our courts have repeatedly
relied on Indian cases when deciding land acquisition disputes. See, Superintendent
of Lands And Surveys, Sarawak v Aik Hoe & Co Ltd [1966] 1 MLJ 243. For a more recent illustration, assistance
may be had from the well-reasoned judgment of Abdul Malik Ishak J in Guan Seng Co Ltd v Pentadbir Tanah
Daerah Larut etc [1994] 1 MLJ 4.
19. In Collector of Allahabad v Raja Ram Jaiswal AIR 1985 SC 1622,
Desai J said of the Indian section 4(1):
“A bare perusal of S. 4(1)
clearly shows that in order to comply with the statutory requirements therein
set out, a notification stating
therein ‘the land which is needed or is likely
to be needed for a public purpose’ has to be published in the official
Gazette. The second part of the
sub-section provides that the Collector has to cause public notice of the
substance of such notification to
be given at convenient places in the locality
in which the land proposed to be acquired is situated. Both the conditions are held by a catena of
decisions to be mandatory. Whether the
second condition is mandatory or directory is no more res integra. In Khub
Chand v. State of Rajasthan, (1967) 1 SCR 120 at p. 125 : (AIR 1967 SC 1074
at p. 1077), Subba Rao, C. J. speaking for the. Court observed that
‘the statutory intention is, therefore, clear,
namely, that the giving of public notice is mandatory. If so; the notification issued under S. 4
without complying with the said mandatory direction would be void and the land
acquisition
proceedings taken pursuant thereto would be equally void.’”
20. As earlier observed, Form A
was admittedly not issued. This
omission amounts to a clear violation of the mandatory provisions of section
4(1) of the Act.
21. That brings me to the
second alleged violation of the Act, namely, the non-service of Forms D, E and
F. Before us, the learned state legal
adviser conceded that issuance and service of these forms is a mandatory
requirement under sections
8, 10 and 11 of the Act. I think that the concession was rightly made. There is a surfeit of authority that
supports the proposition that has been conceded. See, Syed Omar bin
Abdul Rahman Taha Alsagoff v Government of the State of Johore [1975] 1 MLJ 241;
Hong Lee Trading & Construction
Sdn Bhd v Taut Hing Realty Sdn Bhd [1991] 1 MLJ 250.
22. Form D which is issued
pursuant to section 8 of the Act is a critical document because it is the
declaration that the land in question
is needed by the State. It seals the fate of the land. By virtue of section 10(1), Form E
commences the acquisition process.
When served, Form D must accompany Form E (s. 10(3)). Based on the authorities decided on section
8, only some of which I have referred to in paragraph 21of this judgment, the
non-observance
of the provisions of section 8 is a serious matter. The learned legal adviser readily concedes
the point. But she provides a two
pronged response.
23. Her first answer is that
there was in fact service of Forms D, E and F on the appellants. However, the enthusiasm with which she
initially pursued her argument waned as she took us through the evidence. All I need say is that there is abundant
evidence on record affirmatively proving quite conclusively that there was no
service of
Forms D and E as mandated by the Act. So far as Form F is concerned, it was to have accompanied Forms
D and E. Hence no separate comment in
respect of it is called for.
24. Her second response was
that this was a case to which section 56 of the Act applies. That section provides as follows:
“No omission or
failure to make due publication of a notice or to make due service upon persons
and parties interested as provided
in this Part shall invalidate any
proceedings under this Act.”
25. According to the learned
legal adviser, section 56 is applicable to the present instance because the
instant respondent served Forms
D, E and F by posting them on the appellants’
land pursuant to section 53(2) of the Act.
That section reads:
“(2) If the person to whom any copy referred to in subsection (1) is
delivered or tendered is unwilling or unable to sign the acknowledgement
thereof, or if no proper person can be found on whom to effect service, service
may be effected by fixing a copy thereof -
(a) upon the outer door of the building in
which the person therein named ordinarily dwells or carries on business; and
(b) on any public notice-board in the town, village
or mukim in which the person to be served usually resides.”
26. With respect I find no
merit in this argument. The facts here
simply do not come within section 53(2) at all. This is not a case in which there was a person (or were persons)
to whom a document was – to use the opening words of section 53(2)
– “delivered
or tendered” but was “unwilling or unable to sign the acknowledgement
thereof”. Neither is this a case where
“no proper person can be found on whom to effect service”. In the present case there was simply no
service whatsoever. The appellants
lived at an address along Jalan Kelang Lama.
The forms in question were sent by the instant respondent to the Land
Administrator at Kelang who returned them unserved. That is not a matter of surprise at all because Jalan Kelang
Lama is not in Kelang: it is in Kuala Lumpur.
So, the pre-conditions set by section 53(2) are absent in this case.
27. If I were to accept the
argument of the learned legal adviser it would amount to this. In every case, an acquiring authority may,
without serving any of the Forms prescribed by the Act on the registered
proprietor, deprive
the latter of his or her land. Even if the land were acquired without giving the owner notice
(in Form E) of the compensation inquiry section 56 would validate the
acquisition. The proposition needs
only to be stated to reveal its absurdity.
28. A similar argument as that
advanced before us was taken in Wong
Kee Sing Realty Sdn Bhd v The Collector of Land Revenue, Gombak [1995] 1 LNS
363. Mahadev Shankar J found
no difficulty in repelling it. He
said:
“In my view a ‘failure to make due service’ [appearing in section
56] cannot be equated to a total failure to make any service at all. This
is not a situation of nought equals nought, but rather a situation of making
service, in a manner not provided for by section
53, an irregularity rather
than a nullity.
59.
The proviso to section 11 reflects a principle which is fundamental to our
legal system which is that no person shall be condemned
unheard. As D.Y.M.M. Tuanku Raja Azlan Shah (as he
now is) said in Ketua Pengarah v. Ho Kwan
Seng (1977) 2 M.L.J. at 154:
‘The Courts clung to this principle as the powers of government
expanded, and applied it frequently in many fields such as ... compulsory
purchase of land.’ (emphasis added)
60. Similar statements were expressed by Adams J in Lai Tai v. The Collector of Land (1960) 26 M.L.J. 83 where he said:
-
‘It is a matter of natural justice that before property is taken
compulsorily and compensation fixed, the owner should be made aware
of the
proceedings, where it is humanly possible to do so, so that he may be
heard. The Enactment makes it quite
clear that every reasonable effort should be taken to ensure that the owner and
occupier are served with
notice of the proceedings.’
61.
And by Y.A. V.C. George in the
Application of Tan Oon and Others (1985) 2 M.L.J. 67 at page 71:
‘The Courts not only have power but will readily use such power to quash
administrative decisions which were arrived at without due
observance of the
requirements of the statute under which the decision was purported to have been
arrived at or which was arrived
at without due observance of the principles of
natural justice if it can be shown that the effect of the decision is in some
real
sense against good conscience.’
62.
Consequently I must hold that in so far as these lots were concerned, the total
failure to effect service invalidated the acquisition.”
29. I would respectfully adopt
his lordship’s views. Section 56 is
directed at a situation where there was service but not “due service”, that is
to say, service in exact terms as prescribed
by section 53. It is has no application to a case as the
present, where there was no service at all.
30. Applying the principle in Wong Kee Sing Realty Sdn Bhd v The
Collector of Land Revenue, Gombak to the facts of the instant case, it
is my considered judgment that the acquisition here was wholly invalid. The question then arises: what is the
effect of invalidity? And that brings me
to the second principal issue in this case.
The second issue: the
appropriate remedy
31. As stated earlier, the
primary relief sought by the appellants in their summons is for an order
setting aside the acquisition. Learned
counsel for the appellants submitted that his clients are entitled to this
relief by reason of the acquisition not being in
accordance with law. With respect, I consider that argument to
be unsound.
32. In substance, what the
appellants seek is to quash the acquisition proceedings as being null and
void. Such an order is only available
in certiorari proceedings either
under RHC Ord. 53 as it formerly stood or on an application for judicial review
under Ord 53 as it is presently
cast.
Alternatively, it was open to the appellants to seek a declaration that
the acquisition is null and void. Such
a declaration would, if granted, have the effect of nullifying the
acquisition. The appellants’ case is
amply covered by Lord Diplock’s speech in Grunwick
Processing Laboratories Ltd v Advisory Conciliation and Arbitration Service
where he said:
“where a statutory authority
had acted ultra vires any person who would be affected by its act if it were
valid is normally entitled
ex debito justiciae to have it set aside, if he has
proceeded by way of certiorari, or to have it declared void”
33. Since the summons here does
not seek a declaration, the second limb of Lord Diplock’s dictum does come to
the appellants’ rescue. I would add
for good measure that even if these were certiorari
proceedings, a quashing order should not, in the court’s discretion have issued
by reason of the facts here. This is a
case where the land has been transferred to third parties who have bona fide acquired titles to the
separate lots. It is common knowledge
that Nilai New Town (Bandar Baru Nilai) has already been built and that third
parties have in good faith purchased
individual lots in it. It would therefore be practically unjust
for a court to set aside the acquisition.
34. For the reasons already
stated, the prayer to have the acquisition set aside fails. The second prayer is merely consequent on
the first. Since there can be no
setting aside, it follows that there can be no restoration of the status quo ante. Accordingly the second prayer also fails.
35. Now the claim for
damages. It is trite law that an award
of damages may only be made where authorised either by statute or the common
law. Here, neither the Act nor other written
law empowers the court to award damages in a case where there is an acquisition
in violation
of its provisions. So no
question of statutory authorisation arises.
36. As for the common law, if
the appellants are to recover damages in a case as the present, their remedy
lies in what Lord Diplock in
Dunlop v
Woollahra Municipal Council [1982] AC 158 described as “the
well-established tort of misfeasance by a public officer in the discharge of
his public duties.”
37. The 5th edition of de Smith, Woolf and Jowell’s Judicial
Review of Administrative Action sets out the ingredients of the tort as
follows:
“A public authority or
person holding a public office may be liable for the tort of misfeasance in
public office where:
(1) there is an exercise or
non-exercise of public power, whether common law, statutory or from some other
source;
(2) which is either (a)
affected by malice towards the plaintiff or (b) the decision maker knows is
unlawful; and
(3) the
plaintiff is in consequence deprived of a benefit or suffers other loss.”
38. It is to be noted that the
requirement of malice in ingredient (2) (b) refers to an intent to injure the
plaintiff and not to any
ill-will towards him or her. See, Bennett v
Commissioner of Police of the Metropolis [1995] 1 WLR 488, 501. As for the requirement of knowledge, all
that needs to be proved is that the particular defendant knew or had means of
knowledge that
his act or omission was contrary to law: Bourgoin SA v Minister of Agriculture, Fisheries and Food [1986] QB
716.
39. The present case is not one
framed as a cause of action in the tort of misfeasance in public office. None of the ingredients of the tort have
been either alleged or proved. The
issue of a remedy in damages in tort simply does not arise.
40. For the reasons given, the
claim for damages also fails.
41. The position then is
this. The appellants have made out a
clear case of deprivation of their land in violation of the provisions of
written law. But, because of the way
in which their pleading has been settled, they are not entitled to the principal
reliefs they claim. Does it then
follow that they are to leave the precincts of this Court bereft of any remedy
for the wrong they have suffered? If
that be so then there is something terribly wrong with our justice system.
42. But I do not apprehend that
to be the case. The law is not so
impotent that it will let an injustice pass by while having its limbs bound by
procedural technicalities. As Ong Hock
Sim FJ said in Othman v Mek [1972] 2
MLJ 158, 165:
“…it is the duty of the
courts to exercise the utmost diligence in applying the maxim ubi jus ibi remedium, so that justice
shall be done, unless we are strictly constrained by law to uphold any decision
which results in injustice.”
43. The attitude of our courts
to legal technicalities is summed up in the following passage in the judgment
of Ahmad Fairuz JCA (now
Chief Justice) in United
Malayan Banking Berhad v Ernest Cheong Yong Yin [2001] 1 MLJ 561 where
his lordship collected the authorities on the subject:
“Our Federal Court in the
case of Tan Chwee Geok & Anor v Khaw
Yen-Yen & Anor [1975] 2 MLJ 188 at p 189 said:
‘The Rules of the Supreme
Court are intended to facilitate, not impede, the
administration of civil justice.
In the bad old days in England from where we took
our Rules, if you put a comma wrong you were thrown out of court, so strict
were
they about technicalities.
But over the years this strictness gave way to
common sense, and every time the Rules were amended it was with the object of
removing
fussy technicalities, and making it easier for parties to get justice.
This changed attitude was reflected in the remarks
of Lord Collins MR about 70 years ago in Re
Coles and Ravenshear [1907] 1 KB 1:
“Although a court cannot
conduct its business without a code of procedure, the relation of the rules of
practice to the work of justice
is intended to be that of handmaid rather than
mistress; and the court ought not to be
so far bound and tied by rules, which are after all only intended as general
rules of procedure, as to be
compelled to do what will cause injustice in the
particular case.” (Emphasis
added.)
And in the same case, Ali FJ, said (at p 192):
‘The general principle, I
think, is that rights of parties in an action are not to be defeated by
technical objections.’
In this connection, we would also like to quote what this court had
said in Boustead Trading (1985) Sdn Bhd v
Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331, at p 342, ie:
‘…After all, courts exist to do justice according to
the law as applied to the substantial
merits of a particular case …’ (Emphasis added.)
Kaikaus J, in Imtiaz Ahmad v
Ghulam Ali PLD 1963 SC 382 at p 400 said:
‘Any
system which by giving effect to the form and not to the substance defeats substantive rights is defective to
that extent. The ideal must always
be a system that gives to every person what is his. (Emphasis added.)
Bearing in mind the abovementioned authorities, I feel that the
preliminary objection should not be allowed. The objection is indeed
on a mere
technicality.”
44. So, the fact that a
plaintiff claims the wrong relief or does not claim the correct relief does not
bar the court from granting the
relief appropriate to the particular
circumstances to prevent injustice by acting under the prayer for further or
other relief. Thus, in Lim Eng Kay v Jaafar bin Mohd Said
[1982] 2 MLJ 156, Salleh Abas FJ (as he then was) said:
“We cannot see how the
respondent should be deprived of his right by a purely technical error on the
part of his solicitors, who were
not up-to-date with this aspect of legal
technicalities. In any case prayer (e) in paragraph (7), ‘Any
other relief which this Honourable Court deem fit to grant’ must not be treated
as a
mere ornament to pleadings devoid of any meaning.”
45. Further, this Court has
ample jurisdiction and power under section 69(4) of the Courts of Judicature
Act 1964 to “make any order which
ought to have been given or made, and make
such further or other orders as the case requires”. These words which were adopted, with slight inconsequential
variation in language, from Ord. 41, r. 33 of the Indian Civil Procedure
Code
1908 empower this Court to do complete justice between the parties. See, Harris
Solid State (M) Sdn Bhd & Ors v Bruno Gentil Pereira & Ors [1996] 3 MLJ
489; Kumpulan Perangsang Selangor
Bhd v Zaid bin Hj Mohd Noh [1997] 1 MLJ 789 (FC).
46. Acting on the foregoing
authorities, it is plain that this Court is empowered to grant the appellants
such relief as is appropriate
in law to do justice in accordance with the
circumstances of the case. Now, this
is a case in which, I have already said, the appellants were deprived of their
land in violation of the provisions of the
Act. In other words the deprivation here was not in accordance with
the provisions of written law and therefore contravenes Article 13(1)
of the
Federal Constitution. That Article
reads:
“13. (1) No person shall be
deprived of property save in accordance with law.”
Article 160(2) of the Federal Constitution defines law as follows:
“Law includes written law,
the common law in so far as it is in operation in the Federation or any part
thereof, and any custom or
usage having the force of law in the Federation or
any part thereof.”
47. In S. Kulasingham v Commissioner of Lands , Federal Territory [1982] 1
MLJ 204, Abdoolcader J said:
“The Privy Council decided
in Government of Malaysia & Anor v
Selangor Pilot Association [1977] 1 MLJ 133, 135; [1978] AC 337, 347 that
Article 13 cannot properly be construed in the way in which Article 31 of the
Constitution
of India has been construed as deprivation may take many forms
which would naturally include acquisition or use but that those are
not the
only ways by which deprivation can be effected. We therefore have to consider the connotation of the term ‘law’
in Article 13(1) which stipulates that no person shall be deprived
of property
save in accordance with law. Lord Diplock in delivering the judgment of the
Privy Council in Ong Ah Chuan v Public
Prosecutor [1981] 1 MLJ 64, 71; [1981] AC 648 said (at page 670) that ‘law’
in such a context refers to a system of law which incorporates those
fundamental rules of natural justice that had formed part and parcel of the
common law of England that was in operation at the commencement
of the
Constitution, referring to that of Singapore but this equally applies to
similar written constitutions including ours.”
48. In Ong Ah Chuan v Public Prosecutor, Lord Diplock pointed out
the serious error in treating the word “law” in the Singapore Constitution
(and, as Abdoolcader J pointed
out in Kulasingham’s
case (supra), the same applies to our Constitution), as meaning only
written law. His Lordship there said:
“Accordingly their Lordships
are unable to accept the narrow view of the effect of Articles 9(1) and 12(1)
for, which counsel for
the Public Prosecutor contended. This was that since ‘written law’ is
defined in Article 2(1) to mean ‘this Constitution and all Acts and Ordinances
and subsidiary
legislation for the time being in force in Singapore’ and ‘law’
is defined as including “written law”, the requirements of the Constitution
are
satisfied if the deprivation of life or liberty complained of has been carried
out in accordance with provision contained in
any Act passed by the Parliament
of Singapore, however arbitrary or contrary to fundamental rules of natural
justice the provisions
of such Act may be.
To the full breadth of this contention one limitation only was conceded:
the arbitrariness, the disregard of fundamental rules of
natural justice for
which the Act provides must be of general application to all citizens of
Singapore so as to avoid falling foul
of the anti-discriminatory provisions of
Article 12(1).
Even on the most literalist approach to the
construction of the Constitution this argument in their Lordships’ view involves
the logical
fallacy of petitio principii. The definition of ‘written law’ includes provisions of Acts
passed by the Parliament of Singapore only to the extent that they are
‘for the
time being in force in Singapore’; and Article 4 provides that ‘any law enacted
by the Legislature after the commencement
of this Constitution which is
inconsistent with this Constitution shall, to the extent of the inconsistency,
be void’. So the use of the expression
‘law’ in Articles 9(1) and 12(1) does not, in the event of challenge, relieve
the court of its duty to
determine whether the provisions of an Act of
Parliament passed after September 16, 1963 and relied upon to justify depriving
a person
of his life or liberty are inconsistent with the Constitution and consequently
void.”
49. In a later passage his
Lordship added:
“It would have been taken
for granted by the makers of the Constitution that the ‘law’ to which citizens
could have recourse for the
protection of fundamental liberties assured to them
by the Constitution would be a system of law that did not flout those
fundamental
rules [of natural justice].
If it were otherwise it would be misuse of language to speak of law as
something which affords ‘protection’ for the individual in
the enjoyment of his
fundamental liberties, and the purported entrenchment (by art 5) of arts 9(1)
and 12(1) would be little better
than a mockery.”
50. These cases make it clear
that a court that reads the expression “law” in Articles 5(1), 8(1) and 13(1)
as meaning only written law
would fall into serious error for two reasons. First, it would fall foul of the definition
of “law” itself in Article 160(2) which includes common law. Second, it would mean that any and all of
the fundamental liberties guaranteed under Part II of the Federal Constitution
could be
swept away by one ordinary Act of Parliament. This would render illusory the words of
Article 4(1) of the Federal Constitution which declares:
“This Constitution is the
supreme law of the Federation and any law passed after Merdeka Day which is
inconsistent with this Constitution
shall, to the extent of the inconsistency,
be void.”
For, it would be an Act of Parliament and not the Constitution that
would be supreme. And that is
certainly not the case.
51. It follows that any
deprivation of property under Article 13(1) or for that matter life or personal
liberty under Article 5(1) must
be in accordance with a statute that meets the
common law test of fairness of State action.
In the context of the present appeal, there is no doubt that there was a
deprivation of property that was not in accordance with the
provisions of
written law, namely, the Act.
52. One of the appropriate
remedies for the breach of a fundamental right guaranteed by the Constitution
is an award of monetary compensation.
In Maharaj v Attorney-General
of Trinidad & Tobago (No.2) [1979] AC 385, the appellant, a member
of the Bar had been convicted of contempt of court without the particulars of
the charge being put to him
as required by law and sentenced to imprisonment a
portion of which he served. The Privy
Council quashed his conviction. The
appellant then brought proceedings to recover compensation for a breach of his
fundamental right not to be deprived of his liberty
save in accordance with due
process of the law, which right was guaranteed by section 1(a) of the
Constitution of Trinidad &
Tobago.
In allowing his claim, the Privy Council, speaking through Lord Diplock
said:
“The claim is not a claim in
private law for damages for the tort of false imprisonment, under which the
damages recoverable are at
large and would include damages for loss of
reputation. It is a claim in public
law for compensation for deprivation of liberty alone. Such compensation would include any loss of
earnings consequent on the imprisonment and recompense for the inconvenience
and distress
suffered by the appellant during his incarceration. Counsel for the appellant has stated that
he does not intend to claim what in a case of tort would be called exemplary or
punitive
damages. This makes it
unnecessary to express any view whether money compensation by way of redress
under s 6(1) can ever include an exemplary
or punitive award.”
53. The decision in Maharaj v Attorney-General of Trinidad
& Tobago (No.2) has been followed and applied by courts across the
Commonwealth in jurisdictions having written constitutions. It has been applied in Canada (R. v Germain (1984) 10 C.R.R. 232;
Oag v R. (1985) 22 C.R.R. 171), in South Africa (Fose v Minister of Safety and Security
[1996] 2 BCLR 232; in New Zealand (Simpson
v Attorney General [
1994] 3 NZLR 667) in India (Nilabati Bahera v State of Orissa 1993 AIR SC 1960), and by
the Privy Council on an appeal from Mauritius concerning the deprivation of
property (Socit
United Docks v Government of Mauritius [1985] AC 585).
54. In Jaundoo v Attorney-General of Guyana [1971] A.C. 972, the
appellant owned an area of land in Guyana upon which the Government proposed to
construct a new road. The appellant
brought proceedings against the Government on the ground that its action
contravened her fundamental rights under Article
8(1) of the Constitution of
Guyana (the equivalent of our Article 13).
That Article provided as follows:
“No property of any
description shall be compulsorily taken possession of, and no interest in or
right over property of any description
shall be compulsorily acquired, except
by or under the authority of a written law and where provision applying to that
acquisition
or taking of possession is made by a written law - (a) requiring
the prompt payment of adequate compensation; and (b) giving to any
person
claiming such compensation a right of access, either directly or by way of
appeal for the determination of his interest in
or right over the property and
the amount of compensation, to the High Court.”
55. The courts of Guyana having
dismissed her action on procedural grounds, the appellant appealed to the Privy
Council. By the time her appeal came
on for hearing, the road had been completed and her claim for an injunction was
rendered academic. The Privy Council
allowed the appeal and remitted the case to the courts of Guyana for disposal
on merits. It held that upon the
appellant establishing her case on the merits she would be entitled to the
award of monetary compensation for
a breach of her fundamental rights. Lord Diplock who delivered the advice of
the Board said:
“Their Lordships accept that
if the landowner is successful on the merits in establishing her claim that her
fundamental rights under
article 8 of the Constitution have been contravened,
any order for redress to be made by the High Court against ‘the Government of
Guyana’ ought not to be in form, as it cannot be in substance, coercive. There is more than one way in which this
could be avoided. The order could be
declaratory in form and declare the right of the landowner to be paid by the
Government of Guyana the amount assessed
by the court as appropriate redress by
way of compensation or damages.
Alternatively, following the precedent of the Crown Liabilities Act 1888
of South Africa and the Crown Proceedings Act 1947 of the
United Kingdom, the
High Court could make an order for payment against the Government of Guyana,
but accompanied by a further order
that ‘no execution or attachment or
process in the nature thereof shall be issued out of any court for enforcing
the payment by the Government of Guyana of any such money or costs.’ Their Lordships have no doubt that an order
in either of these forms would be complied with by the Government of
Guyana.” (The underlining is ours.)
56. I would observe that the
words which I have underlined in the foregoing passage may be found in section
33(4) of our Government Proceedings
Act 1956.
57. In Socit United Docks v
Government of Mauritius the Privy Council applied the principle in Jaundoo to a case concerning the
breach of a fundamental right to property under the Constitution of
Mauritius. Lord Templeman said:
“In Jaundoo v. Attorney-General of Guyana [1971] A.C. 972 the Board
held that redress … included redress by way of an award of compensation for
damages. The same principles apply to
the Constitution of Mauritius although on the present appeals the contrary was
faintly argued.”
58. Ireland has a written
constitution, guaranteeing fundamental rights. Like our Federal Constitution it contains no provision of a
remedy for the infringement of those rights.
Yet, the Courts of Ireland have developed remedies, including the award
of monetary compensation, for the infringement of fundamental
rights. Thus, in State (At the Prosecution of Quinn) v. Ryan (1965) IR 70, O’
Dalaigh CJ said:
“It was not the intention of
the Constitution in guaranteeing the fundamental rights of the citizen that
these rights should be set
at nought or circumvented. The intention was that rights of substance
were being assured to the individual and that the Courts were the custodians of
those rights. As a necessary corollary, it follows that no
one can with impunity set these rights at nought or circumvent them, and that
the Court’s
powers in this regard are as ample as the defence of the
Constitution requires.”
59. Again, in Byrne v Ireland (1972) IR 241,
Walsh J. said (at p. 264):
“In several parts in the
Constitution duties to make certain provisions for the benefit of the citizens
are imposed on the State in
terms which bestow rights upon the citizen and,
unless some contrary provision appears in the Constitution, the Constitution
must
be deemed to have created a remedy for the enforcement of these rights. It follows that, where the right is once
guaranteed by the State, it is against the State that the remedy must be sought
if there
has been a failure to discharge the constitution obligation imposed.”
60. In Cullen v Chief Constable of the Royal Ulster Constabulary (Northern
Ireland) ), [2003] 1 WLR 1763 the House of Lords (by a majority) held
that no damages could be recovered by a private citizen for damage caused to
him by the breach
of a statute by a public authority, though the position was
different if what was violated was a fundamental right guaranteed by
the
Constitution. Lord Hutton who
delivered the principal majority speech of the House said:
“In the present case the
appellant does not use the term ‘constitutional right’ in this limited
sense. He cites decisions in other
jurisdictions with written constitutions as establishing that a breach of a
‘constitutional right’ can
give rise to a claim for damages without proof of
damage or harm. In the sense in which
the appellant seeks to rely on it, a
‘constitutional right’ is a right which a democratic assembly representing the
people has enshrined in a written constitution. As the Judicial Committee of the Privy
Council stated in Mohammed v The State
[1999] 2 AC 111, 123F-H:
‘It will be recalled that in King v The Queen [1969] 1 AC 304, at p 319, Lord Hodson observed
that it matters not whether the right infringed is enshrined in a constitution
or
is simply a common law right (or presumably an ordinary statutory
right). Their Lordships are satisfied
that in King v The Queen, which was decided in 1968, the Board took too narrow
a view on this point. It is a matter
of fundamental importance that a right has been considered important enough by
the people of Trinidad and Tobago, through
their representatives, to be
enshrined in their Constitution. The stamp of constitutionality on a
citizen’s rights is not meaningless: it is clear testimony that an added value
is attached to
the protection of the right.’
See also Darmalingum v The State
[2000] 1 WLR 2303, 2308 A-B.
Therefore where a right is
contained in a written constitution it is accorded a special value by
the courts and a breach of that right
without damage or harm can lead to an award of damages. In this case which relates to a provision
in an ordinary statute I consider that the decision of the House in Pickering [Pickering v Liverpool Daily
Post [1991] 2 AC 370] affords clearer guidance than decisions in other
jurisdictions relating to rights
set out in written constitutions.” (Emphasis added.)
61. In the same case, Lord
Millett said this:
“If Mr Cullen had been
deprived of access to a lawyer in a country with a written constitution on the
Westminster model, his remedy
would not lie in a private law action for
damages, but in a motion for constitutional redress. In Maharaj v A-G of
Trinidad and Tobago (No 2) [1979] AC 385 Lord Diplock explained that this
was the means by which the subject
could seek redress from the Crown for a contravention of his constitutional
rights by an arm of the state.
In an appropriate case redress could be made by an award of damages, but
the state’s liability, he said at p 399: ‘is not a liability
in tort at all; it
is a liability in the public law of the state.’” (Emphasis added.)
62. Three principles may be extracted
from the majority speeches in Cullen. First, a fundamental right guaranteed by
the Constitution is a value added right.
Second, because it is a value added right, its breach is to be redressed
by an award of compensation without proof of actual damage,
i.e., on the
footing of strict liability. Third,
the State is liable to compensate a citizen for a violation of his or her
constitutional right by any arm of the State.
63. Closer to home, in R Rama Chandran v The Industrial Court
of Malaysia [1997] 1 MLJ 145, the Federal Court commented favourably
upon the decision of the Indian Supreme Court case of Nilabati Bahera v State of Orissa. Edgar Joseph Jr. FCJ said as follows:
“To interpolate, I should
like to make a separate reference to a recent landmark judgment of the Indian
Supreme Court in Nilabati Behera [1993]
2 SCC 504, which shows that the reach and extent of the court in Judicial
Review proceedings, arising from a violation of a
fundamental right, extends to
the making of an award of monetary compensation, against the State, even though
the India Constitution
does not provide for the payment of damages or monetary
compensation in such a situation, thus over-riding the principle of sovereign
immunity. In so holding, the court had
laid stress on the point (at pp 762–763) that this remedy was ‘distinct from
and in addition to, the
remedy in private law for damages for the tort
resulting from contravention of the fundamental right’ for which a regular writ
action
could be commenced, in which event, as Mr Soli J Sorabjee has observed,
in his article aforesaid, the matter may hopefully be decided
after a couple of
decades. What appeared to be in the
forefront of the court’s mind was to ensure prompt redress by an Award of
monetary compensation to the
aggrieved party or his family. In the picturesque phrase of the court, to
hold to the contrary would ‘render the court powerless and the constitutional
guarantee
a mirage’.
I should perhaps add that
the importance of a litigant who has succeeded in his action for wrongful
dismissal not being usually sent
away empty handed was stressed by Lord
Brightman in Chief Constable of North
Wales Police v Evans [1982] 1 WLR 1155 at p 1172 in these terms:
‘… it would, to my mind, be
regrettable if a litigant who establishes that he has been legally wronged, and
particularly in so important
matter as the pursuit of his own profession, has
to be sent away from a court of justice empty-handed save for an order for the
recoupment
of the expense to which he has been put in establishing a barren
victory.’
Having regard to the breadth of the provisions of
para 1 of the Schedule to the Courts of Judicature Act 1964, it would be wrong
to
assume that the extent of the power of the courts in Malaysia in the field
of Public Law remedies is limited in the same manner as
that of the courts in
the United Kingdom, where there are no such equivalent provisions.”
64. That liability for the
breach of any of the fundamental rights guaranteed under Part II of the Federal
Constitution is strict and
not fault based was established even before the
decision in Cullen by Anand J (later
CJ India) in DK Basu v State of West
Bengal AIR 1997 SC 617 where his lordship said:
“It is now a well accepted
proposition in most of the jurisdictions, that monetary or pecuniary
compensation is an appropriate and
indeed an effective and sometimes perhaps
the only suitable remedy for redressal of the established infringement of the
fundamental
right to life of a citizen by the public servants and the State is
vicariously liable for their acts. The claim of the citizen is based on the
principle of strict liability to which the defence of sovereign
immunity is not available and the citizen must receive the amount of
compensation from the State,
which shall have the right to be indemnified by
the wrong doer. In the assessment of compensation, the emphasis has to be on the
compensatory and not on punitive element.” (Emphasis added.)
65. Based on these authorities,
it is my considered judgment that the appellants are entitled to recover from
the respondent reasonable
compensation for the violation of their fundamental
right guaranteed by Article 13(1) of the Federal Constitution.
66. For the reasons already
given, I would allow the appeal and set aside the order of the High Court
dismissing the appellants’ summons
and enter judgment for the appellants in the
following terms:
(i) the respondent pay to the appellants reasonable compensation,
to be assessed, for breach of the appellants’ rights under Article 13(1)
of the
Federal Constitution;
(ii) this matter is hereby remitted to the senior assistant registrar
of the High Court at Seremban with a direction to forthwith inquire
into and
assess the amount of compensation to be paid by the respondent to the appellants;
(iii) that the costs of this appeal and the costs of the proceedings in the High Court, including the costs of the assessment, shall be paid by the respondent to the appellants;
(iv) that no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing the payment by the respondent of any such money or costs.
Guidelines for assessment
67. To obviate any difficulty
that may be encountered at the assessment before the registrar, I would issue
the following guidelines.
68. When assessing the
compensation hereby awarded, the registrar shall have regard to the following
matters. First, the registrar, when
assessing compensation, shall not have regard to or take into account the sum
awarded to the appellants
in the acquisition proceedings. This is because the compensation awarded is
for a distinct wrong in public law suffered by the appellants. See, Lord Diplock in Maharaj No. 2 quoted under paragraph 52 of this
judgment. Second, the quantum of
compensation must reflect the loss suffered by the appellants in consequence of
the breach of Article 13(1). The loss
must be assessed as at the date when that breach occurred. Accordingly, the registrar shall ascertain
the date on which the appellants’ constitutional right was breached. Third, the inquiring registrar must ensure
that what the appellants receive is only reasonable monetary compensation with
no punitive
element. Fourth, the
compensation assessed shall carry interest at the rate of 4 % per annum simple
interest from the date of breach until
the date of settlement. Fifth, the parties shall be at liberty to
adduce evidence on all issues relevant to the assessment of compensation.
69. The deposit shall be
refunded to the appellants.
Postscript
70. I have, since writing this judgment, had
sight of my learned brother Abdul Aziz Mohamad JCA’s draft judgment in which he
proposes
to dismiss this appeal. With
great respect to my learned brother, it is entirely my misfortune that I find
myself unable to agree with him as to the result
of this appeal. My reasons now follow.
71. The draft judgment of my learned brother
accepts in entirety the appellants’ contention that Form A was never issued and
that Form
E was never served. However,
my learned brother has gone on to hold that issuance of Form A is not mandatory
despite the imperative language of section
4(1). With respect, this approach disregards well settled principles
of statutory construction. We are here
dealing with a statute which is aimed at the prevention of arbitrary
escheatment of proprietary rights, the protection
of which the supreme law of
the Federation guarantees as
a fundamental right. To read mandatory
provisions in such a statute in a generous and favourable manner towards those whose
duty it is to ensure their
due observance is to condone and promote
maladministration in a matter so important as the deprivation of property. It is a message from the judicial arm of
Government to the bureaucrats that due compliance with mandatory provisions of
the Act will
produce no consequences for them. I am therefore unable in the face of compelling authority as I
have found and cited in this judgment to accept an ipse dixit based on no
authority that compliance with section 4(1) is not mandatory.
72. In paragraph 21 of his draft judgment, my
learned brother accepts that Form E was not served on the appellants – and I
quote – “in
accordance with section 11(1)”.
Accordingly, there was a breach of the written law that guards against
the arbitrary compulsory acquisition of a person’s immovable
property. Here, my learned brother and I are on
common ground. However, in the same
paragraph, the draft judgment goes on to absolve this non-compliance on the
ground that there was no bad faith
on the part of the acquiring authority. It is with this rider that I must take
issue. In the first place, the Act
does not say that an acquisition may only be attacked for breach of its terms
upon proof of bad faith. Second, and
more importantly, we are here dealing with a statutory provision that is
mandatory in terms which is designed to be consonant
with a constitutionally
guaranteed fundamental right. A breach
of the Act results in a state of affairs that is –to use the words of Article
13(1) – “otherwise than in accordance with
law.” It violates the right guaranteed by that Article. Now, if at every turn, the victim of a
constitutional violation is required to prove that the contravening public
authority acted
in bad faith then, the right calling for protection would be
illusory, or, to borrow the more picturesque words of Brewer J in Gulf
Colorado
and Santa Fe Railway Co. v Ellis,
(1897) 165 US 150, it would “be a mere rope of sand”.
73. The next point on which I regretfully
dissent from my learned brother is on his refusal to accept the correctness of
the decision
in Wong Kee Sing Realty
Sdn Bhd v The Collector of Land Revenue, Gombak. I have already expressed my agreement with
the judgment of Mahadev Shankar J in that case. It is really an elementary point of statutory
interpretation. At the risk of
repetition, it is trite that section 56 of the Act applies only to save a case
where there has been due
service and not a case where there has been no service.
74. I now deal with my learned brother’s
conclusion that the appellants suffered no prejudice in consequence of the
admitted breach of
section 11(1) of the Act.
With respect I am unable to agree with this conclusion as it suffers
from two errors. In the first place, we
are concerned with a statute that empowers the State to acquire the property of
another only strictly in accordance
with its terms. It follows that the courts must therefore insist on the strict
compliance of the terms of the statute to ensure that property is not
deprived
save in accordance with law. There is
no added burden on a property owner to show that he has suffered prejudice in
addition to establishing the breach of a mandatory
provision of the Act. Secondly, if in any event one wants to look
for prejudice, one can quite easily find it writ large across this case. This is a case where a challenge was taken
to the acquisition of property on the ground, inter alia, that section
11(1) the Act had been breached. And
there is no dispute that it was. There
it is then. There is the
prejudice. As far as the hearing
before the High Court is concerned, short shrift was made of the appellants’
complaint. The appellants’ originating
summons that had not even been listed for hearing was called up on short notice. There was insufficient time given to the
appellants to prepare their case. It
is difficult to envisage a case of graver prejudice. Unfortunately, this point has not been addressed by my learned
brother’s judgment.
75. There is a final matter that requires
mention. In paragraph 2 of his draft
judgment, my learned brother makes a point that no complaint about Form D had
been made by the appellants. With
respect, my learned brother’s observation overlooks the fact that in the course
of his arguments learned counsel for the appellants
did argue the point. More importantly, the learned legal adviser
conceded before us that the appellants’ complaint was the non-service of Forms
D, E and
F. However, she argued that
no prejudice had been occasioned in consequence by reason of section 56 of the
Act. It is therefore my regret that I
am unable to agree with my learned brother’s view as it overlooks the
proceedings that had transpired
before us.
76. With respect, I am left unpersuaded by my
learned brother’s draft judgment.
77. All that is required to be added is that my
learned brother Azmel Haji Maamor J having read the draft of this judgment and
that of
my learned brother Abdul Aziz Mohamad JCA has expressed his agreement
with the latter judgment.
Dated
this 7th day of May, 2004.
Gopal
Sri Ram
Judge,
Court of Appeal
Malaysia
Counsel for the appellants: K.
Anantham (K.Kirubakaran with him)
Solicitors for the appellants: M/s Kiru & Yong
Counsel for the respondent:
Engku Nor Faizah bte Engku Atek
Solicitors for the
respondent: Penasihat Undang-Undang
Negeri,
Negeri Sembilan
Arguments heard on July 22, 2003.
] [Hide Context]
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