IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION)
CIVIL APPEAL NO.Q-02-1047-05/2013
LEE LING TIMBER SDN BHD … APPELLANT
1. BUKIT MAS INDAH SDN BHD
2. MATZINI BIN SA’AT CONTRACTOR
3. KOMASAE HOLDINGS SDN BHD . RESPONDENTS
(DALAM MAHKAMAH TINGGI DI MIRI)
CIVIL TRIAL NO.22-06-2010-LG JOINTLY TRIED WITH HIGH COURT
1. BUKIT MAS INDAH SDN BHD
2. MATZINI BIN SA’AT CONTRACTOR
3. KOMASAE HOLDINGS SDN BHD . PLAINTIFFS
LEE LING TIMBER SDN BHD . DEFENDANT
MOHD HISHAMUDIN BIN MOHD YUNUS, HMR DAVID WONG DAK WAH, HMR UMI KALTHUM BINTI ABDUL MAJID, HMR
JUDGEMENT OF THE COURT
1. This is an appeal by the appellant against the decision of the High Court in two cases which were heard jointly in which the learned Judge found that the respondents have a right of way over the timber roads within the licensed timber areas of the appellant.
2. The two cases are:
(a) Suit No.22-06-2010-LG (Suit 06); and
(b) Suit No.LMN-22-3/2-2010 (Suit 3/2)
3. We heard the appeal and reserved our judgment to give due consideration to the submissions by respective counsel. Having done so we now give our decision together with our grounds.
4. The 1st respondent holds a quarry license under No 5D/1/2009 dated 16 April 2009 which allows it to operate a quarry for 20 years from 17 March 2009 at Lot 1 Block 12 Long Napir Land District situated at Bukit Jukut, Selidong , Ulu Sungai Limbang, Limbang.
5. The 1st respondent also holds a Temporary Occupation Licence (TOL) in respect of an area at Lot 2348 Danau Land District (Lot 2348) through a letter dated 20 December 2010 from the Lands & Survey Department. This area of land is for the purpose of stock piling for the respondents.
6. The 2nd respondent is the contractor of the 1st respondent engaged to operate the quarry by virtue of an agreement dated 6 May 2009. The 3rd respondent is the sub – contractor of the 2nd respondent by virtue of an agreement dated 31 March 2010.
7. The appellant is the:
(a) main contractor of one Limba Jaya Timber Sdn Bhd (“Limba Jaya”), the holder of Licence for Planted Forests No. LPF/0038 dated 06.12.2004 (“LPF/0038”);
(b) main contractor and attorney of one Sarawak Timber Industry Corporation (“STIDC”), the holder of Forest Timber Licence No. T/9161 dated 18.12.2009 (“T/9161”);
8. The appellant also has the consent of Sarawak Forestry Corporation to use a portion of Nanga Medamit Log Pond as a place to mark logs for the purpose of royalty collection. This area overlaps the area in TOL Lot 2348 granted to the 1st respondent.
9. There is no dispute that the 1st respondent’s quarry and Lot 2348 are situated within the licenced timber area and the log pond of the appellant. Hence the respondents could only access the quarry via the timber roads within the appellant’s timber area.
10. Sometime in early December 2010, it was alleged that the appellant had demanded that the respondents pay toll charges for the use of the timber roads at a rate of RM1,000.00 per truck. The respondents refused to comply with the request on the ground that the timber roads are public roads but agreed to repair and maintain the same.
11. No agreement was reached between the parties resulting in an ultimatum from the appellant to close the timber roads by 31 December 2010. In respect of the areas of the log pond used by the appellant and stock piling by the respondents, dispute arose as to who is actually the trespasser.
12. In view of the aforesaid disputes, two suits were initialled by the respondents. Suit 06 relates to the issue of who has the rights over the use of the timber roads while suit 3/2 relates to the issue who is actually the trespasser of the area in Lot 2348.
High Court decision:
Suit 06 – timber roads:
13. The learned High Court Judge found that the respondents have the right to use the timber roads and the appellant’s demand for
toll payment unlawful. The learned Judge also ordered that the respondents pay a monthly sum of RM15,000.00 as compensation to the appellant for use of the timber roads.
14. The rationale of the learned Judge’s decision is set out in paragraph 15 of his grounds which reads as follows:
“Although the licence holder has exclusive use and occupation of the forest areas, it is obvious that the licence LPF/0038 and the timber licence T/9161 do not confer any proprietary rights to the licensees, nor to the Defendant over the forest areas including the timber roads constructed within forest areas. They are only licensees and do not have any proprietary rights over the forest areas. Clause 26(3) of the timber licence provides that all roads and bridges made by the licensee shall have no claim to compensation. There is a similar provision in LPF/0038. Clause 23 of LPF/0038 also provides that the licensee shall not be entitled to claim any proprietary rights to the State land under the licence either during or after the expiry or cancellation of the licence.
15. As for the appellant’s contention that the disputes between the parties should have been referred to Superintendent of the Lands and Surveys for resolution pursuant to sec 34 of the Land Code, the learned Judge held that the aforesaid section does not oust the jurisdiction of the High Court to deal with this dispute. In the words of the learned Judge, they read as follows:
“Reading s.34, it does not give exclusive jurisdiction to the Superintendent or specifically oust the jurisdiction of the High Court to determine the dispute between the parties as to any right of way and the reasonable compensation payable for the construction and or use of such right of way. There is no specific provision in the Land Code to oust the jurisdiction of the courts to determine this dispute.”
16. Furthermore, the learned Judge took cognisant of the decision of the Superintendent in 15 June 2004 in directing a similar dispute between the 2nd respondent and Limbang Trading (the previous Timber Licence holder) to be resolved in the Court.
Our Grounds and decision:
Jurisdiction of the Courts – section 34 of the Land Code.
17. Section 34 of the Sarawak Land Code reads as follows:
“34.- (1) All land shall be held subject to an implied right-
(b) that the holder of a licence or permit to take rock material or forest produce who has no other reasonable means of access from a public road, way, river, creek or foreshore to such rock material or produce; and
shall have right of way for all reasonable purposes over such land and to pass and repass with or without boats or vehicles.
(2) If the persons concerned cannot agree among themselves to the location of the path or track which will constitute a right of away, the matter shall be referred to the Superintendent of Lands and Surveys by the person or persons requiring the right of way and the Superintendent of Lands and Surveys shall have power to decide the matter;
(3) The Superintendent of Lands and Surveys shall have power to declare the terms upon which a right of way shall be granted under this section and may impose such conditions as to formation and maintenance as may be considered necessary. Where the right of way is granted to over the existing path or track which has been formed or maintained at the expense of the person over whose land it passes, the Superintendent of Lands and Surveys may require the person to whom the right of way is granted to pay to such other person such reasonable sum as may be assessed by way of compensation.
(5) Compensation for damage, if any, to trees or other property belonging to the persons through whose land a right of way is made shall be primarily assessed by mutual agreement between the parties concerned and, in the absence of agreement, the matter shall be referred to the Superintendent of Lands and Surveys and the compensation assessed by him.
(6) Any person aggrieved by any decision of the Superintendent of Lands and Surveys under this section may, within 30 days of being informed of such decisions, appeal to the High Court and for the purpose of further appeal any decision of the High Court shall be deemed to be made in a civil proceeding.”
18. It is our view that the issue requiring our determination is this. Does the High Court have an original jurisdiction to hear and determine the “right of way” between the parties who cannot come to an agreement as to which track or path constitute a “right of way” in the context of section 34 of the Land Code?
19. The law on as to how Courts should interpret statutes is established and it is simply this. The Courts’ constitutional duty is both to interpret and enforce the laws as enacted. The words employed by the legislature must be given their natural meaning which are consistent to the true intention of the legislature. It is also paramount that in the process of ascertaining the true intention of the legislature, a clause in a statute must not be looked at in isolation but in the context of the whole statute.
20. Before we deal with the learned Judge’s construction of section 34 of the Land Code, we need to deal with the submission of the learned counsel for the respondents that this issue of jurisdiction of the Courts cannot be canvassed by this Court as it is caught by the principle of res judicata. In advancing this contention, learned counsel relies on a ruling by the learned Judge in Suit 06 in an interlocutory application by the appellant.
21. In that application, the appellant applied under Order 14A and Order 33 of the RHC for the preliminary issue of whether the High Court has original jurisdiction be determined on the ground that the determination of the aforesaid preliminary issue will dispose substantially off the entire action. The application was opposed by the respondents.
22. The learned Judge dismissed the appellant’s application and premised on that dismissal, learned counsel for the respondents submits that since there was no appeal by the appellant against that ruling, the same is final and binding. Hence the appellant is debarred from raising this issue before this Court.
23. Reading the learned Judge’s ruling ((2012) MLJU 970), it appears that the learned Judge had found that the High Court has original jurisdiction. This is what he said in paragraph 14:
Reading s34, it does not give exclusive jurisdiction to the Superintendent or specifically oust the jurisdiction of the High Court to determine the disputes between the parties as to any right of way and the reasonable compensation payable for the construction and or use of such right of way. The case of Darinsok Pangiran Apan & Ors v Hap Seng Consolidated Bhd & Ors (2011) 6 CLJ 733 can be distinguished because there are specific provisions in the Sabah Land Ordinance, in particular s 41, to oust the original jurisdiction of the courts to hear certain matters.”
24. However, if one looks at the learned Judge’s ruling in paragraphs 19, 20 and 21, we are in doubt as to whether the aforesaid ruling was really necessary. Those paragraphs are as follows:
19. The Defendant’s application is also under O33 RHC. As a general rule the Court will not exercise its power under O33 r2 to order a preliminary point of law to be tried unless the trial of that issue result in a substantial saving of time and expenditure in respect of the trial of the action. Huang Ei Hoe v Tiong Thai King (1991) 2 MLJ 51, Federal Insurance Co v Nakano Singapore (Pte) Ltd (1992) 1 SLR 390.
20. The Plaintiffs have sought declaratory orders, injunctive reliefs and damages against the Defendant in this suit. The Defendant has also filed a counterclaim similarly seeking declaratory orders, injunctive reliefs and damages. The Superintendent of Lands and Surveys has no power and or jurisdiction to grant such reliefs. These issues have to be determined by the Court. Therefore, the reference to the Superintendent for determination on the use and reasonable compensation for the right of way as applied for by the Defendant will not result in any substantial savings of time and costs.
21. For the reasons given, the Defendant’s application is dismissed with costs to be taxed, if not agreed.
25. In any Order 14A and Order 33 RHC application, the threshold issue is whether the disposal of the proposed preliminary issue
would result in substantial savings of time and costs. Once that issue is answered in the ‘negative’, the consequent order of the Court is simply to dismiss the application without the necessity of expressing any opinion on the proposed issue as was done by the learned Judge.
26. Be that as it may, we are of the view that the learned Judge was correct to conclude that the application under Order 14A and Order 33 RHC was not appropriate in the circumstances. Hence we say that the opinion expressed by the learned Judge was obiter dicta and our view is enforced by the fact that the learned Judge spent some six paragraphs in his grounds after trial on the applicability of section 34 of the Land Code. It also shows that what he did at the Order 14A and Order 33 RHC application was merely to delay his decision on the jurisdiction of issue at the end of the trial. Hence we find no merit in the respondents’ contention that the principle of res judicata applied to this issue.
27. In any event, even if we are of the view that the learned Judge had expressed an opinion on this issue, the appellant is fully entitled to wait until the end of the trial to lodge an appeal against the aforesaid ruling. In our view this is the appropriate approach as the aforesaid ruling is only an interlocutory ruling which forms part of the final decision of the trial. To have appealed straight after the ruling of the interlocutory decision would have delayed the trial unnecessarily. With that we now move to the deliberation of the substantive issue of who has the original jurisdiction.
We start off by trying to discern the intention of legislature in section 34 of the Land Code. The learned Judge in coming to his conclusion had relied on the fact that there is no specific provision in the Sarawak Land Code which expressly oust the jurisdiction of the Court as in section 41(2) of the Sabah Land Ordinance which reads as follows:
Except as herein expressly provided, no Court shall exercise jurisdiction as to any claim or question in respect of which jurisdiction is given by the Ordinance to a Collector or the Director.
We have no issue with the view that section 41(2) of the Sabah Land Ordinance gives a clear intention of the legislature of ousting the Court’s original jurisdiction. However that does not mean that in the absence of such a provision, there is no such intention to oust the original jurisdiction of the Court. Whether there is such intention can still be gleaned from the employed words in the statute.
Here, there is little doubt that section 34 of the Land Code is a specific provision concerning “right of way” over lands which are interlocked. In section 34(2), it provides that if there is a dispute between competing parties as to which path is the “right of way”, that dispute “shall” be referred to the resolution by the Superintendent of Lands and Surveys. In section 34(6), it provides that any party aggrieved by the decision of the Superintendent of Lands and Surveys has the option to appeal
to the High Court within 30 days of being informed of such decision.
31. The word “shall” appearing in the section should not be ignored as if it does not have any mandatory meaning. Suffice for us to refer to what is stated in NS Bindra’s Interpretation of Statutes (8th Edition) at pp 1029-1030:
“The word ‘shall’ is ordinarily mandatory but it is sometimes not so interpreted if the scope of the enactment, or consequences to flow from such construction would not so demand. Normally, the word ‘shall’ prima facie ought to be considered mandatory but it is the function of the court to ascertain the real intention of the legislature by a careful examination of the whole scope of the statute, the purpose it seeks to serve and the consequences that would flow from the construction to be placed thereon. The word ‘shall’ therefore, ought to be construed not according to the language with which it is clothed but in the context in which it is used and the purpose it seeks to serve. The meaning has to be ascribed to the word, ‘shall as mandatory or as directory, accordingly.”
32. The presence of an appeal provision to the High Court signifies that it is the intention of the legislature that such dispute should be best be dealt with by the Superintendent of Lands and Surveys first as he or she would be the most appropriate person in terms of familiarity of the disputed areas and manpower
available from the land office in terms of surveyors and rangers. One must not forget that it is the office of the Superintendent which demarcates areas for the purpose of alienation for TOL and timber areas. Further as this sort of dispute is mainly concerned with factual findings, a person familiar with the intricacy of the disputed area is best suited for such task. Hence we have no problem in holding that the High Court jurisdiction is one of appellate jurisdiction.
33. There is another principle of law which states that where there is an alternative remedy available to the 1st respondent in the form of another tribunal (such as the Superintendent in the instant appeal), the court will not interfere until the alternative remedy is exhausted. This principle was applied with full force in the Federal Court in Manggai v. Government of Sarawak & Anor  1 LNS 80 FC. In that case, a dispute over some land was determined by the district native court in Simanggang in the second Division of Sarawak. An appeal was lodged to the Resident’s Native Court under s. 8(1)(c) of the Native Courts Ordinance (Cap 43 of the Laws of Sarawak 1958), in which the appeal was allowed resulting in the quashing of decision of the district native court. Instead of appealing to the Native Court of Appeal under s 8(1 )(d), the applicant by a Court action at the Kuching High Court sought a declaration that the decision of the Resident’s native court was null and void. The High Court refused the application for declaration. On appeal, the Federal Court affirmed the High Court decision. The Federal Court explained as follows:
“ It is well settled law that the Court will not make a declaratory judgment where an adequate alternative remedy is available (see Halsbury’s Laws of England, 3rd ed. vol 22, page 749, para 1611). To quote but a few authorities in support of that proposition, Lord Herschell said in Barraclough v. Brown:  AC 615, 620.
It was argued for the appellant that, even if not entitled to recover the expenses by action in the High Court, he was, at all events, entitled to come to that Court for declaration that on the true interpretation of the statute he had a right to recover them. It might be enough to say that no such case was made by the appellant’s claim. But, apart from this, I think it would be very mischievous to hold that when a party is compelled by statute to resort to an inferior Court he can come first to the High Court to have his right to recover – the very matter relegated to the inferior court-determined. Such a proposition was not supported by authority, and is, I think, unsound in principle”.
In Pasmore v. The Oswaldtwistle Urban District Council  AC 387, 394 Earl of Halsbury LC said:
“…. The principle that where a specific remedy is given by a statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the statute, is one which is very familiar and which runs through the law.”
In the more recent case of Wilkinson v. Barking Corp  1 KB 721,724 Asquith LJ said:
“… It is undoubtedly good law that where a statute creates a right and, in plain language, gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce the right must resort to that remedy or that tribunal, and not to others.”
34. For reasons stated above, we hold that the High Court does not have original jurisdiction in dealing with disputes concerning “right of way”. That jurisdiction lies with the Superintendent of Lands and Survey and the High Court only possesses appellate jurisdiction.
35. In view of our conclusion on the jurisdiction issue, we find that there is no necessity for us to deal with other issues raised in this appeal.
36. This is a case in which the Superintendent of Lands and Surveys with respect had wrongly refused to exercise his statutory duty endowed upon him. There is a reason why the legislature has endowed this power to the Superintendent of Lands and Surveys and that is this sort of dispute must be resolved as soon as possible as economic status of the State demands a quick
resolution. And for reasons stated earlier, there is no other person who is more appropriate to deal with such dispute with the minimum delay.
37. Accordingly, we allow the appeal with costs. The orders of the High Court are set aside. We further order that this dispute be referred to the Superintendent of Lands and Surveys to adjudicate the same in accordance to the provision of section 34 of the Land Code as soon as possible. We finally order that the deposit to be refunded to the appellant.
Dated : 12 June 2015 (DAVID WONG DAK WAH)
Court of Appeal Malaysia
For the Appellant : Leong Hsin Ru with him
Ong Siok Gee Tetuan Tanga & Partners
For the Respondent : Lim Swee Huat with him
Bong Ah Loi Abigail Lim Jiunn Tetuan SH Lim & Co
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision.