DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO: R-01-98-2005
DARAHMAN B. IBRAHIM & 53 OTHERS … PERAYU-PERAYU
(1) MAJLIS MESYUARAT KERAJAAN NEGERI PERLIS
(2) KERAJAAN NEGERI PERLIS
(3) LEMBAGA PENYATUAN DAN
PEMULIHAN TANAH PERSEKUTUAN … RESPONDEN-
DALAM MAHKAMAH TINGGI MALAYSIA DI KANGAR DALAM NEGERI PERLIS, MALAYSIA GUAMAN SIVIL NO: 21-01-2001
1. ROSILAH BT SAHAT
2. DARAHMAN B IBRAHIM
3. AHMAD B SUBOH
4. YAACOB BIN SHAFIE
dan 70 lagi Plaintif-Plaintif yang tersenarai
di dalam Lampiran A kepada Writ Saman … PLAINTIF-PLAINTIF
1. MAJLIS MESYUARAT KERAJAAN NEGERI PERLIS
2. KERAJAAN NEGERI PERLIS
3. LEMBAGA PENYATUAN DAN
PEMULIHAN TANAH PERSEKUTUAN … DEFENDAN-
Coram: Zaleha Zahari, J.C.A.
Raus Sharif, J.C.A.
Abdul Malik Ishak, J.C.A.
1. I have had the advantage of reading my learned brother Abdul Malik Ishak’s judgment and I am in agreement with him in allowing this appeal. However, I would like to express my own reasons for doing so.
2. Kerajaan Negeri Perlis (“2nd defendant”) decided to build a dam at Timah Tasoh, Perlis. It was also decided that the villagers displaced by the dam project were to be resettled in an area known as Lubuk Sireh.
3. The resettlement of the villagers was coordinated by Jawatankuasa Rayuan Penempatan Semula Empangan Timah Tasoh (“Timah Tasoh Committee”). The Timah Tasoh Committee was headed by a member of the “State Executive Council” (“1st defendant”) for the “Land, Forest and Environment
Portfolio”. The resettlement started in April 1987 and continued in stages as follows:
Stage 1 (April1987) – 91 families
Stage 2 (Mac 1988) – 156 families
Stage 3 (July 1988) – 92 families
Stage 4 (1990) – 36 families
Stage 5 (1993) – 12 families
Stage 6 (1994) – 07 families
Total 393 families
4. The plaintiffs were amongst the villagers who were resettled at Lubuk Sireh. In agreeing to do so, they received cash compensation and/or payment from the 2nd defendant for their loss of land, houses, etc. For those who owned lands, the 2nd defendant paid them compensation pursuant to the Land Acquisition Act 1960. The plaintiffs also received from the 2nd
defendant a plot of land to build their houses. They have obtained their titles to these plots of land and have each built their houses there.
5. In tendem with the resettlement programme, the 2nd defendant had invited Lembaga Penyatuan dan Pemulihan Tanah Persekutuan (“3rd defendant”) also known as “Felcra” to develop the state land at Lubuk Sireh into an agricultural estate. Felcra started its role and development programme in 1986, covering an area of 2,153 hectares mainly planted with rubber trees. The resettlement area and the agricultural estate are all in the same area.
6. It is the plaintiffs’ case that as a result of the negotiations between the plaintiffs and the defendants, it was agreed that in consideration of them moving to Lubuk Sireh, the 2nd defendant had promised to provide them not only compensation for loss of land, houses, etc and a plot of land to build their houses, they
were also promised participation in the agricultural estate undertaken by Felcra. In fact it is the contention of the plaintiffs that not only were they being promised participation at the Felcra scheme at the material time, they were and had already been accepted and recognised as participants of the scheme. They pointed out that they were resettled at Lubuk Sireh to enable them to participate in the Felcra scheme as their resettlement at Lubuk Sireh was part and parcel of ‘Rancangan Felcra Lubuk Sireh’.
1st and 2nd defendant’s case
7. The 1st and 2nd defendants’ case is that the offer made to the plaintiffs to participate in the scheme was conditional and not final. The final decision was only made on 17 November 1999, after interviews were conducted between 26 June 1999 till 29 June 1999 to select the successful candidates. It is also contended by the 1st and 2nd defendants that it is the privilege and prerogative as well as the discretion of the 1st defendant in
making the final decision on the allotment of shares in the scheme to the participants.
3rd defendant’s case
8. The Felcra’s case is simple. Felcra only played the role as assigned to it under section 5 (1) (a) of the Felcra Act and would develop the land at Lubuk Sireh based on the instruction of the 1st defendant. According to the 3rd defendant, the decision to choose the participants and allocate them land rights are entirely within the powers of the 1st and 2nd defendants.
Issues & Findings
(i) Whether the plaintiffs have been selected and accepted as participants
11. The learned trial Judge held that the plaintiffs have had never been selected and accepted as participants of Felcra scheme,
Lubuk Sireh. With utmost respect, I am unable to hold the same. In holding as such, I am fully aware that I am reversing the learned trial judge’s finding of fact and conscious of the guiding principle that appellate court ought not to disturb judgment of the court below in the absence of any error. But there are instances where appellate intervention is permissible. (See Gan Yook Chin & Anor v Lee Ing Chin @ Lee Teck Seng & Ors  2 MLJ 1; China Airlines Ltd v Maltran Air Corp Sdn Bhd (formerly known as Maltran Air Services Corp Sdn Bhd) and Another Appeal  2 MLJ 517; Kin Guan & Co Sdn Bhd v Yong Nyee Fah & Sons Sdn Bhd  2 MLJ 8 PC; and Anvest Corp Sdn Bhd v Wong Siew Choong Sdn Bhd  2 MLJ 30, 46). The present case is one of such instance. It is my judgment that there is overwhelming evidence in this case that the plaintiffs have already been accepted as participants of the scheme. The evidences are:
(i) Felcra Report (P1)
Paragraph 7.1 of P1 state explicitly that for Felcra Lubuk Sireh, all those resettled are recognized participants. It reads:-
7.1 Mengikut amalan yang dilaksanakan oleh Felcra bersama-sama Kerajaan Negeri, pemilihan peserta-peserta Rancangan Tanah adalah melalui proses temuduga, tetapi berbeza dengan Lubuk Sireh ini di mana semua penduduk yang terlibat dengan perpindahan ini akan diiktiraf sebagai peserta rancangan.”
The Pengurus Felcra Lubuk Sireh (SP3) at the material time, has confirmed the contents of P1 and testified that P1 was given to the representatives of the 1st defendant.
However, none of the witnesses were called on behalf of the 1st and 2nd defendants challenging the correctness of the statement in paragraph 7.1. In the entire crossexamination of SP3, it was not at all put to him that the said paragraph 7.1 was wrong. Thus, SP3’s evidence on the said paragraph was unchallenged in crossexamination. This could only mean that all the villagers who were involved in the resettlement exercise were considered as participants in Felcra Lubuk Sireh.
(ii) Exhibits P29, D40, D41A, D41B and D42
Exhibit 29 is called “LAPORAN PENEMPATAN SEMULA FELCRA LUBUK SIREH PERLIS SEHINGGA 31 OGOS 1997”. The report contains a list of 268 names under the category “SENARAI NAMA PESERTA PROJEK FELCRA LUBUK SIREH YANG TELAH MENDAPAT KELULUSAN MMK SEBAGAI PESERTA FELCRA”. The list of names include the plaintiffs and the names listed are all based on the decision of 1st defendant. The witness for the 1st and
2nd defendants, Dato’ Yazid bin Mat (SD2) in his evidence testified that:
“S: Ini senarai peserta Felcra Lubuk Sireh yang telah mendapat kelulusan Majlis Mesyuarat Kerajaan. Pada 1994 Felcra telah iktiraf 268 peserta sebagai peserta Felcra Lubuk Sireh?
Exhibit P29, clearly shows that as at 31 August 1997, the 1st and 2nd defendants have already recognised and accepted 268 participants in Felcra Lubuk Sireh. Exhibit P29 must be read together with exhibits D40, D41A, D41B and D42, which are minutes of meetings of the 1st defendant stating that all those who are given plots of land to build their houses were recognised and accepted as participants in Felcra Lubuk Sireh. Exhibit D42 explicitly states “bagi mendapat tapak rumah di Lubuk
Sireh untuk menjadi peserta-peserta Felcra Gugusan Lubuk Sireh”.
(iii) Co-operative Society
There is a co-operative society called “Koperasi Peserta-Peserta Rancangan Felcra Gugusan Lubuk Sireh” set up by Felcra pursuant to section 35 (2) of the Land (Group Settlement Areas) Act 1960. This co-operative society is the basis on which Felcra operates at Lubuk Sireh. The plaintiffs were members of the cooperative as can be seen in exhibits P7, P34, P51, P52 and P53. They were members of the co-operative because they were already participants of the Felcra scheme. The society’s byelaws 10 (1) provides as follows:-
“10. (1) Keanggotaan Koperasi ini terbuka kepada semua peserta-peserta Rancangan Felcra Gugusan Lubuk Sireh, Perlis dan keluarganya.”
Peserta” is defined as follows:-
“Peserta” ertinya seseorang yang menyertai tanah rancangan yang diselenggarakan serta di bawah jagaan FELCRA secara tetap dan termasuklah yang belum menandatangani sebarang surat ikatan atau perjanjian secara rasmi dengan FELCRA’.
(iv) JKPP (Felcra)
The Jawatankuasa Kemajuan Projek (JKPP) was set up on 21 April 1997. It was set up at a meeting attended by SD2 who was at the material time a member of the 1st defendant. One of the plaintiffs (SP3) was actively involved in setting up JKPP Felcra Lubuk Sireh. In fact the plaintiffs have been actively involved in the JKPP as participants of the Felcra shceme at Lubuk Sireh as can be seen in exhibits P5, P14, P16, P17, P19, P20 and P31. The members of the JKPP are elected at the Mesyuarat Agung Peserta-Peserta held every two years.
(v) Orientation programme
In 1990, Felcra organised an orientation programme for participants who had been accepted by the 1st defendant as participants of Felcra Lubuk Sireh. The orientation course was officiated by SD2, a member of the 1st defendant. The plaintiffs were amongst the participants who attended the course. This course programme shows beyond doubt that those who attended the programme were fully recognised as participants of the scheme.
(vi) Agreement between plaintiffs and Felcra
There were agreements signed by the individual plaintiffs and Felcra. Though not produced at the trial, exhibits P4, P3 and P10 show that written agreements were signed between the plaintiffs and Felcra. The oral evidence of SP1, SP2, SP3, and SP4 confirmed that written agreements were in fact signed individually between the plaintiffs and Felcra. Even SD2, the witness for the 1st
and 2nd defendants agreed that written agreements were signed by the plaintiffs. He, as a member of the 1st defendant was present when the agreements were signed.
(vii) Letters Terminating The Co-operative Society Membership
All the plaintiffs received letters from the Felcra Lubuk Sireh Co-operative Society terminating their memberships. The letters state that the plaintiffs are no longer participants of the scheme (bukan lagi sebagai peserta rancangan Felcra). This would of course mean that before the termination, they were participants (peserta rancangan Felcra).
(viii) Exhibit D45
Exhibit D45 is the letter dated 9 April 1999 from the 2nd defendant to Felcra. This letter shows that the 1st and 2nd defendants had already accepted and recognised 393
participants of Felcra Lubuk Sireh. The 393 participants were to get their share holding on an area to be determined later. The 393 participants were those who were already in Felcra Lubuk Sireh. The figure of 393 participants is consistent with the Felcra report as at 31 August 1997. All of the plaintiffs names appear there. By exhibit 45, the 393 participants were already given shares in the Felcra scheme except that the size of the land to be given to them was not yet settled.
12. From the above, the only reasonable conclusion that can be drawn is that the plaintiffs at all material time were already accepted, recognised and treated as participants in the Felcra scheme at Lubuk Sireh. All the villagers that were resettled at Lubuk Sireh were in fact participants of the Felcra scheme there. The 1st and 2nd defendants had already made the decisions via exhibits D40, D41A, D41B, D42 and D45 recognising and accepting the plaintiffs as “peserta-peserta rancangan Felcra Lubuk Sireh”. Felcra in turn treated, accepted and recognised all of the plaintiffs as participants
based on what the 1st and 2nd defendants officially informed and/or representated to Felcra.
13. It was submitted on behalf of the 1st and 2nd defendants that the plaintiffs’ earlier recognition as participants in the Felcra scheme at Lubuk Sireh, were temporary and were not final and/or were subject to interviews. But from exhibit D45, the interviews had nothing to do with determining or finalising the participants. The interviews were solely to find out from the 393 participants about the size of the land that they were expecting to get and their willingness to repay the development costs and within a shorter period. Exhibit D48 shows that the actual interviews were really with regard to the two points i.e. the amount of land expected and the shortening of the development costs repayment periods.
14. Therefore, it would be untenable to uphold the learned trial judge’s finding that the plaintiffs had never been accepted as participants of Felcra scheme, Lubuk Sireh. Such finding is clearly against the weight of evidence admitted and established
in this case. An appellate court is thus duty bound to intervene and correct the error.
(ii) Wrong assumption
15. The learned trial judge also ruled that both the plaintiffs and Felcra were under ‘wrong assumption’ that the plaintiffs were already participants of Felcra Lubuk Sireh before the 1st defendant’s decision on 17 November 1999. The learned trial judge held that 1st defendant’s final decision on plaintiff participants were actually only on 17 November 1999. In doing so, the learned trial judge accepted the evidence of SD5, on behalf of Felcra that Felcra had wrongly assumed that the villager who were located at Lubuk Sireh, were participants of Felcra Lubuk Sireh. Again, with utmost respect, I am unable to agree on the learned trial judge’s finding on this issue.
16. Firstly, there is absolutely no evidence that Felcra actually acted on the so-called wrong assumption. Felcra at all times acted purely on the instructions and directions of the 1st and 2nd
defendants. Before the decisions on 17 November 1999
Felcra was already informed that there were 393 participants at Felcra Lubuk Sireh. Exhibit D45 is very clear on this point.
17. Secondly, Felcra did not plead the so-called wrong assumption in its Statement of Defence. Since it is not pleaded, Felcra must be precluded from raising it as a defence. The importance of pleadings can be found in many authorities. In Muniandy & Anor v Muhamad Abdul Kader & Ors  2 MLJ 416, then Supreme Court, accepted with approval what was said by Lord Diplock in Hadmor Production v Hamilton  1 AC 191 at p 233:
“Under our adversary system of procedure, for a judge to disregard the rule by which counsels are bound, has the effect of depriving the parties to the action of the benefit of one of the most fundamental rules of natural justice, the right of each to be informed of any point adverse to him that is going to
be relied upon by the judge, and to be given the opportunity of stating what his answer to its is …”
In Yew Wan Leong v Lai Kok Chye  2 MLJ 152, the
Supreme Court agreed with what was said by Sharma J (as he then was) in Janagi v Ong Boon Kiat  2 MLJ 196, in
which Sharma J had made observation on the function of pleadings and the duty of the court to follow it:
“The court is not entitled to decide a suit on a matter which no issue has been raised by the parties. It is not the duty of the court to make out a case for one of the parties when the party concerned does not raise or wish to raise the point. In disposing of a suit or matter involving a disputed question of fact, it is not proper for the court to displace the case made by a party in its pleadings and give effect to an entirely new case which the party had made out in its own pleadings. The trial of the suit should be
confined to the pleas on which parties are at variance.”
Similarly in this case, to raise the so called issue of wrong assumption, is a non-starter, as it was never pleaded by the 3rd defendant in its Statement of Defence. The courts must only decide on the issues as pleaded by the parties.
18. Thirdly, SD5, the witness relied upon by the learned trial judge had absolutely no personal knowledge of the relevant matters. He was at the material time not attached to nor involved in Felcra at Lubuk Sireh. He joined Felcra office at Alor Star in 1996 and had nothing to do with Felcra Lubuk Sireh. SD5 was not involved in preparing the relevant Felcra reports i.e. exhibits P1, P28 and P29. The 393 participants were resettled in Felcra Lubuk Sireh well before SD5 joined Felcra at Alor Star. In contrast, SP3 was the Pengurus Felcra Lubuk Sireh at the material time. He had full personal knowledge of all relevant matters and he was involved in preparing the relevant Felcra reports/documents i.e. P1, P3, P9, P10 and P24. SP3’s
evidence does not show any wrong assumption whatsoever on the part of Felcra.
19. Fourthly, the issue of wrong assumption was not at all put to the plaintiffs’ witnesses. As such, the defendants cannot rely on it as a defence. In fact from the questions asked by the learned counsel for Felcra during cross-examination of the plaintiffs’ witnesses show that Felcra did not suffer from any wrong assumption but in actual fact merely followed the directions of the 1st defendant. Felcra at all times did not on its own choose or determine the participants at Lubuk Sireh. Felcra merely acted on the 1st and 2nd defendants instructions. Thus, the only conclusion is that the names of person listed at the various Felcra reports/documents prior to the decision on 17 November 1999 are based entirely on what the 1st and 2nd defendants notified, instructed and/or informed Felcra.
20. Therefore, the learned trial judge’s finding on the issue of ‘wrong assumption’ cannot be supported. Felcra’s action in accepting the plaintiffs as participants of the Felcra scheme
cannot be said to be based on its own ‘wrong assumptions’. This is because, at all times, Felcra had acted purely on instructions and directions of the 1st and 2nd defendants.
21. On the above reasons, I would make the same orders as that of my learned brother Abdul Malik Ishak, JCA.
22. My learned sister Zaleha Zahari, JCA has seen this judgment in draft and has expressed her agreement with it.
Dated 9 June 2008.
Raus Sharif Judge
Court of Appeal Malaysia
Counsel for the appellant:
Solicitors for the appellant:
Counsel for the 1st and 2nd respondents: Solicitors for the 1st and 2nd respondents:
Counsel for the 3rd respondent:
Solicitors for the 3rd respondent:
En. M. Thayalan
Tetuan Thayalan & Associates
En. Abdul Rashid bin Sudin
Pejabat Penasihat Undang-Undang Negeri Perlis
Cik Daya Nair
Tetuan Nik Saghir & Ismail