Pentadbir Tanah Daerah Seberang Perai Tengah & 1 Lagi V Bagan Serai Housing Estate Sdn Bhd

  

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IN THE COURT OF APPEAL, MALAYSIA (APPELLATE JURISDICTION)

 

CIVIL APPEAL NO. P-01(IM)(NCVC)-382-11/2015

 

BETWEEN

 

1. PENTADBIR TANAH DAERAH SEBERANG PERAI TENGAH

 

2. PENGARAH TANAH DAN GALIAN

 

PULAU PINANG … APPELLANTS

 

AND

 

BAGAN SERAI HOUSING ESTATE SDN BHD

 

… RESPONDENT

 

(In the Matter of the High Court of Malaya at Pulau Pinang Civil Suit No. 22-72-130-1996

 

Between

 

Bagan Serai Housing Estate Sdn.Bhd. … Plaintiff

 

And

 

1. Pentadbir Tanah Daerah Seberang Perai Tengah

 

2. Pengarah Tanah Dan Galian

 

Pulau Pinang … Defendants)

 

CORAM

 

MOHD ZAWAWI SALLEH, JCA VERNON ONG LAM KIAT, JCA ABDUL RAHMAN SEBLI, JCA

 

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JUDGMENT OF THE COURT

 

Introduction

 

[1] This was an appeal against the decision of the learned judge of the High Court at Pulau Pinang dated 5.11.2015, whereby His Lordship granted the respondent/plaintiff the following reliefs –

 

“(a) satu pengisytiharan bahawa keseluruhan tindakan perampasan tanah Plaintif yang dikenali sebagai Lot 4382, Mukim I, Seberang Perai Tengah Pulau Pinang adalah salah dan atas alasan tersebut Plaintiff berhak untuk menuntut gantirugi daripada pihak Berkuasa Negeri Pulau Pinang menurut Seksyen 134(4) Kanun Tanah Negara, 1965;

 

(b) …. Penolong Kanan Pendaftar Mahkamah Yang Mulia ini diarahkan untuk membuat satu siasatan untuk mentaksirkan kerugian yang dialami oleh Plantif akibat perkara-perkara yang dinyatakan di atas;

 

(c) bahawa Defendan-Defendan membayar faedah keatas kerugian yang telah ditaksirkan di bawah Akta Undang-Undang Sibil, 1956.”.

 

[2] We had, after perusing the record of appeal and hearing and considering the written and oral submissions of learned counsel for the parties, allowed the appeal. We now give the detailed reasons for our decision.

 

[3] For ease of reference, the parties to this appeal will be referred to as they were in the Court below.

 

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Background Facts

 

[4] The parties have agreed to the following facts as set out in the Statement of Agreed Facts –

 

(a) The plaintiff was the registered proprietor of Lot 406, Mukim 1 Province Wellesley Central (“the said land”) which was, at the material times, held under Interim Register.

 

(b) The annual quit rent payable in respect of the said land as endorsed in the Interim Register is RM25,756.60 with effect from 1.1.1984.

 

(c) The said land was subject to Lien Holder’s Caveat Presentation No.34/80 Jilid 2 Folio 114 entered on 4.1.1980 by United Malayan Banking Corporation Berhad (“UMBC”) on the ground that the Issue Document of Title of the said land was deposited with them as security for a loan.

 

(d) On 16.9.1992, the 1st defendant i.e. the Pentadbir Tanah Daerah, Seberang Perai Tengah, issued a notice in Form 6A dated 16.9.1992 to the plaintiff at the address No.1-C, Belfield Street, Ipoh, Perak demanding payment of RM126,853.17 as quit rent and arrears due in respect of the said land.

 

(e) The said Notice in Form 6A could not be served by the 1st

 

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defendant because the plaintiff has changed its address from 1-C, Belfield Street, Ipoh to 32-1, Fair Park, Ipoh, Perak.

 

(f) Encik Ariffin bin Awang, the then Penolong Pentadbir Tanah Daerah, Daerah Seberang Perai Tengah caused the service of a notice in Form 6A by substituted service pursuant to subsection 432(1) of the National Land Code, 1965 (“the NLC”). The said notice in Form 6A was published in the Gazette vide notification No: 454 dated 31.12.1992.

 

(g) A note of the substituted service of the said notice in Form 6A was entered in the Interim Register of the said land on 17.5.1993 vide Forfeiture Proceeding Jilid 5 Folio 60 but was cancelled subsequently as wrongly entered on a date unknown.

 

(h) On 7.4.1993, the said Encik Ariffin bin Awang issued a notice in Form 8A dated 7.4.1993 stating that the said land has been forfeited to the State Authority. The said Form 8A was issued before the endorsement of the note of the substituted service of Form 6A on the Interim Register of the said land.

 

(i) The said notice in Form 8A dated 7.4.1993 was gazetted vide G.N. No: 115 dated 29.4.1993.

 

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(j) On 17.6.1993, the Notice of Reversion to the State under Jilid 1 Folio 68 was endorsed in the Interim Register of the said land but was cancelled subsequently as wrongly entered on a date unknown.

 

(k) On 22.10.1993, a new title in continuation of the said land was opened in the Interim Register for Lot 4382 and the note of the service of the Form 6A notice under Jilid 5 Folio 60 and the Notice of Forfeiture I Form 6A of Lot 4382 under Notice of Forfeiture Jilid 1 Folio 68 were entered in the Interim Register of Lot 4382 with only a mark “t.t” next to the said endorsement without the signature of the officer who entered the said endorsement.

 

(l) The 1st defendant did not serve any notice in Form 6A on UMBC and as a result of this UMBC lodged an objection to the defendants. Form 6A which was served by substituted service and published in the Gazette dated 31.12.1992 was not directed at UMBC.

 

(m) In consideration of the payment of RM4,500,000.00 paid by the State Government of Penang, UMBC renounced all it’s claim in respect of Lot 4382 under the Lien Holder’s Caveat registered on 27.12.1979 pursuant to its letter dated 20.5.1995 addressed to the 2nd defendant.

 

(n) On 5.7.1995, the State Authority alienated Lot 4382 to

 

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Messrs Penaas Sayang Resort Sdn. Bhd by way of 99 years lease expiring on 4.7.2094 in consideration of substantial payment of premium pursuant to qualified title under H.S (D) No. 5361, Mukim 1, District of Province Wellesley Central, Penang.

 

Findings of the High Court

 

[5] The central issue before the High Court was whether the plaintiff’s claim was caught by subsection 134(1) of the NLC and as such the High Court had no jurisdiction to deal with the matter.

 

[6] The defendants took a preliminary issue that the High Court had no jurisdiction to hear the plaintiff’s claim as the claim in substance sought to impugn the validity of the forfeiture of the said land. It was the contention of the defendants that the only procedure by which the plaintiff could assail the validity of the forfeiture was by way of an appeal to the High Court under subsection 134(1) of the NLC read together with subsection 418 of the NLC.

 

[7] The learned judge rejected the preliminary objection raised by the defendants. The learned judge reasoned –

 

(a) that the plaintiff’s claim was brought pursuant to subsection 134(4) of the NLC and was, as such, not caught by subsection 134(1) of the NLC. Therefore, the High Court had the jurisdiction to hear the matter;

 

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(b) that the substituted service of Form 6A was not in accordance with law as the defendants had failed to show any proof of the 2nd defendant having made an order to that effect under section 432 NLC;

 

(c) that the said land was forfeited before the note of service of Form 6A was endorsed on the title and this was fatal and in breach of section 100 of the NLC; and

 

(d) that the non-compliance was not a mere irregularity. The statutory provisions concerned were mandatory provisions that required strict compliance.

 

Analysis and Findings

 

[8] In our view, the outcome of this appeal hinges on the proper and true interpretation of section 134 of the NLC. For ease of reference, the section is reproduced below –

 

“134. Appeals against forfeiture.

 

(1) The validity of any forfeiture under this Act shall not be challenged in any court except by means of, or in proceedings consequent upon, an appeal under section 418 against the order of the Land Administrator under section 100 or, as the case may be, 129; and, notwithstanding anything in any other written law, no such appeal shall be commenced after the expiry of the period of three months allowed for the bringing thereof by the said section 418.

 

(2) No order of the Land Administrator under section 100 or 129 shall be set aside by any court except upon the grounds of its having been made

 

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contrary to the provisions of this Act, or of there having been a failure on the part of the Land Administrator to comply with the requirements of any such provision; and no such order shall be set aside by reason only of any irregularity in the form or service of any notice under Chapter 2 of Part Six or, as the case may be, Chapter 5 of Part Seven unless, in the opinion of the court, the irregularity was of a significant nature.

 

(3) In any such appeal or other proceedings as are mentioned in subsection (1), it shall be presumed until the contrary is proved that all notices required to be served under Chapter 2 of Part Six or, as the case may be, Chapter 5 of Part Seven were duly and regularly served.

 

(4) The provisions of sub-section (1) shall not affect the right of any person or body to bring an action of damages against the State Authority, or (subject to the provisions of section 22) against any officer appointed by the State Authority, in respect of any act or thing wrongfully done, or ordered to be done or omitted to be done, in connection with any forfeiture under this Act.”.

 

[9] It seems to us that the section is quite simple and straightforward. It provides that the validity of any forfeiture under the NLC shall not be challenged in any court except by means of, or in proceedings consequent upon, an appeal under section 418 against the order of the collector under section 100. An order of forfeiture can only be set aside on grounds circumscribed by the provisions of subsection 134(2), i.e., the order having been made contrary to the provisions of the Code or there having been failure on the part of the Collector to comply with the requirements of any

 

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such provisions. Subsection 134(2) also provides that no such order shall be set aside by reason only of any irregularity in the form or service of any notice under sections 97 and 98 unless, in the opinion of the Court, the irregularity was of a significant nature.

 

[10] The difficulty in interpreting section 134 of the NLC is basically this. How does one reconcile subsection 134(1) with subsection 134(4)? The opening words of the subsection 134(4) are these:

 

“The provisions of subsection (1) shall not affect the right of any person of body to bring an action of damages…”

 

[11] The critical question is whether subsections 134(1) and 134(4) are distinctly separate.

 

[12] This immediately brings us to the contention on behalf of the plaintiff that it is clear from a careful reading of subsections 134(1) and 134(4), the remedies available are distinctly separate. Learned counsel submitted, as he did in the High Court, that if the purpose of the proceedings filed by an aggrieved party is to seek the annulment of the forfeiture order, then the only available course of action is to appeal under section 418 of the NLC. However, if the proposed action is limited to a claim for damages only (as is the present case) such claim would fall within the four corners of subsection 134(4) of the NLC.

 

[13] Learned counsel vehemently defended the interpretation of the learned judge and argued that the learned judge below was correct

 

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when he concluded that the appeal referred to in subsection 134(1) of the NLC is for the purpose of setting aside any order of the Land Administer under sections 100 or 200, whereas subsection 134(4) covers the scenario where any person or body wishes to seek damages in a civil suit either against the State Authority or any Land Officer. Subsection 134(4) can stand independently by itself.

 

[14] Learned counsel referred us to the relevant part of the grounds of judgment where the learned judge reasoned his conclusion as follows –

 

“… Here, the relief sought is one under section 134(4) of the NLC, the provision that begins with the words “The provision of subsection (1) shall not affect the right of any person or body to bring an action of damages.

 

“. This words must to my mind, means as they are, that is the requirement of s.134 (1) for the aggrieved person to bring the case to court only by way of appeal is not applicable for the action under 134(4)).”.

 

(See page 52 – 53 Rekod Rayuan (Bahagian A – Jilid I).

 

[15] The learned judge sought to drive home his point by relying on the views expressed by Judith Sihombing in the text book, “National Land Code, A Commentary”, 2nd Edition wherein the author observed –

 

“Sub-section 4

 

Forfeiture can be appealed against only by reference to section 418 and, thus, if successful, the forfeiture will be set aside.

 

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This sub-section allows any person or body to seek damages in a civil suit either against the State Authority or any land officer. Apart from action by the proprietor or any person or body with an interest in the land who thereby has contractual relationship with the State Authority, any such action must be in tort. Section 22 limit such cause of action against the land officer to one where the officer acted ultra vires and mala fides.”.

 

[16] The learned judge then concluded as follows at page 59 –

 

“Although there is no authority stated there is support of such a comment that subsection allows any person or body to seek damages in a civil suit and that I am in no way bound by it, but for the reason I have alluded the above, I am in agreement with it. Such action under s. 134(4) of the NLC may be brought to court by way of a civil suit.”.

 

[17] The gravamen of the defendants’ complaint was that the learned judge erred in failing to hold that the plaintiff’s claim in substance pertains to the forfeiture of the said land. According to learned counsel, the main argument advanced by the plaintiff was that the forfeiture was wrongful in law as sections 97, 900 and 130 of the NLC were allegedly contravened. Therefore, in essence, the plaintiff was challenging the validity of the forfeiture of the said land. As such, the claim for damages, albeit pursuant to subsection 134(4) of the NLC, is consequential to the granting of the declaration. It was not a civil suit simpliciter, but in fact a claim for damages consequent upon the order of forfeiture.

 

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[18] Learned counsel for the defendants had argued vigorously that the plaintiff’s action was not maintainable on the ground that the learned judge did not have jurisdiction to grant the primary remedy sought and erroneously assumed jurisdiction to do so.

 

[19] A number of cases were cited to us in support of the submission. (See Pemungut Hasil Tanah, Kota Tinggi v United Malayan Banking Corp Bhd. [1982] CLJ 1 (Rep.); Tan Boo Bing & Ors v Tan Kooi Fook [1997] 1 CLJ 556). The key principle that can be discerned from these cases is that any challenge to a validity of a forfeiture order had to be brought by way of an appeal pursuant to section 418 of the NLC.

 

[20] To buttress his submission, learned counsel referred us to Parliament’s Hansard dated 10.8.1965 where at pages 1625-1653, the then Minister of Home Affairs, Dato’ Dr Ismail said –

 

“Mr Speaker, Sir the Honourable Member for Tanjong complains that there are insufficient safeguards for proprietors whose land is forfeited for non-payment of rent or for breach of condition. In particular, he asserts that there is no right of appeal. In this, I fear the Honourable Member is in error. I do not blame him for that, as he admitted that he might be mistaken. There is a right to appeal, and I would like to mention the specific sections here. They are clauses 133, 134 and 418.” .

 

[21] In a nutshell, the main plank of learned counsel’s submission is that the High Court is only empowered to consider, and to grant relief in connection with, challenges to the validity of forfeiture of the

 

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land under section 418 of the NLC where such challenges are brought pursuant to appeals mounted under section 418 of the NLC against decision made by the Land Administrator under section 100 or section 129 of the NLC.

 

[22] The starting point for discussion in this instant appeal is the issue of jurisdiction. In our view, the moment the issue of jurisdiction was raised (as is in the instant case), such issue had to be decided first as valuable time could be saved in case it is found that the Court does not have jurisdiction. Jurisdiction is a question of law and a court is precluded from adjudicating the matters on merits when itself lacks jurisdiction. Therefore, the question of jurisdiction has to be decided as a preliminary issue.

 

[23] The expression ‘jurisdiction’, as stated in Halbury’s Laws of England, Vol. 10 paragraph 314, is as follows –

 

“314. Meaning of ‘ jurisdiction’: By ‘ jurisdiction’ is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted, and may be extended or restricted by similar means.

 

If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the claims and matters of which the particular court has cognisance, or as the area over which the jurisdiction extends, or it may partake of both these characteristics.”.

 

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[24] In American Jurisprudence Vol. 32A, paragraph 581, it is said that –

 

“Jurisdiction is the authority to decide a given case one way or the other. Without jurisdiction, a court cannot proceed at all in any case; jurisdiction is the power to declare law, and when it ceases to exist, the only function remaining to a court is that of announcing the fact and dismissing the cause. “.

 

[25] It is pertinent to note that lack of jurisdiction cannot be waived, consented to, or overcome by agreement of the parties. Even though no party has raised objection with regard to jurisdiction of the court, the court has power to determine its own jurisdiction. In other words, in a case where the court has no jurisdiction, it cannot confer jurisdiction upon itself by the consent or waiver of the parties. (See Dato’ Seri Anwar Ibrahim v P.P [2010] 7 CLJ 397; Asean Security Paper Mills Sdn. Bhd v Mitsui Sumitomo Insurance (Malaysia) Bhd [208] 6 CLJ 1; Tan Sri Eric Chia Eng Hick v P.P [2007] 1 CLJ 565; Sia Cheng Soon & Anor v Tengku Ismail bin Tengku Ibrahim [2008] 5 CLJ 201; Taylor v Lawrence [2002] 2 All E R 353).

 

[26] We have carefully considered the submissions of both parties which were presented with skill and restraint and we are grateful to them both. We have also considered the facts and materials on record. We agreed with the submission of learned counsel for the defendants that the learned judge fell into serious error in ruling that

 

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he had jurisdiction to hear to the plaintiff’s claim.

 

[27] In our view, subsection 134(1) of the NLC is clear and unambiguous. Simply put, it says that any challenge to the validity of a forfeiture order had to be brought by way of appeal pursuant to section 418 of the NLC and not otherwise. Subsection 134(4) of the NLC does not lay down an excepting or qualifying proviso to the preceding provisions of the section. It is “an independent enacting clause” that permits any person or body to seek damages in a civil suit either against the State Authority or any Land Officer where consequential relief is not related to the forfeiture order. There is no conflict between the two subsections. They serve different purposes.

 

[28] Our conclusion that subsection 134(4) of the NLC should be interpreted that way and not as a proviso is reinforced by the absence in the section of words such “Notwithstanding what is provided in subsection (i)”; “Except as is provided in subsection (4)”

 

or, “Provided that…”. As things stand, there is no indication of an

 

intention in subsection 134(4) to qualify subsection 134(1).

 

[29] On the factual matrix of the instant appeal, we were of the opinion that the plaintiff’s claim was not a simple claim for damages but consequential to the forfeiture. The primary relief sought by the plaintiff was a declaration that the forfeiture proceedings were wrongful and damages under subsection 134(4) of the NLC were sought as a consequence. At the risk of repetition, the relief sought

 

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by the plaintiff was as follows –

 

“(a) satu pengisytiharan bahawa keseluruhan tindakan perampasan tanah Plaintif yang dikenali sebagai Lot 4382, Mukim 1, Seberang Perai Tengah, Pulau Pinang adalah salah dan

 

atas alasan tersebut Plaintif berhak untuk menuntut gantirugi daripada Pihak Berkuasa Negeri Pulau Pinang menurut seksyen 134(4) Kanun Tanah Negara, 1965.”. (emphasis added).

 

[30] The plaintiff claimed to be aggrieved by a decision of the Land Administrator made pursuant to section 100 of the NLC and the primary relief sought, was a declaration that “keseluruhan tindakan perampasan Plaintiff …. adalah salah”. We entertained no doubt that the claim for damages was consequential to the granting of the declaration. This was made clear by the pleaded position: “atas alasan tersebut Plaintiff berhak untuk menuntut gantirugi daripada Pihak Berkuasa Negeri Pulau Pinang menurut seksyen 134(4) Kanun Tanah Negara 1965.”.

 

[31] With respect, the plaintiff’s contention that its claim for damages under subsection 134(4) was an alternative claim flies in the face of the Amended Statement of Claim and the learned judge was erroneous in affording such a reading to the pleading. Further, where the claim under section 134(4) of the NLC is for tort, then the specific cause of action must be identified, for instance, negligence or breach of statutory duty and the pleading of such a claim must be directed to the wrongful act or omission complained of and not the

 

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forfeiture of land. The plaintiff had not done so.

 

[32] Before we conclude, it also pertinent to note that there was inordinate and inexcusable delay on the part of the plaintiff in instituting the present civil suit. It had seriously prejudiced the defendants by impairing their ability to defend themselves and the guarantee of a fair trial in Article 5(1) of the Federal Constitution. (See Manning v Benson & Hedges Limited [2004] 1 EHC 316; Bagnall and McDonnell Commercial Monaghan Limited v McCarthy Commercials and Ors [2012] 1 EHC (205). It goes without saying that the defendants’ ability to gather documentary evidence and witnesses was severely hampered.

 

[33] We, therefore, after giving our anxious consideration to the provisions of section 134 of the NLC unanimously held that the learned judge lacked the requisite jurisdiction to hear the plaintiff’s claim. Hence, we had allowed the appeal. We set aside the impugned decision passed by the learned judge.

 

Plaintiff’s Cross-Appeal

 

[34] The plaintiff’s cross appeal is a non-starter. It does not seek to vary the judgment of the High Court but findings in the grounds of judgment. In Dato’ Seri Anwar Ibrahim v Tun Dr. Mahathir bin Mohamad [2011] 1 MLJ 145, Arifin Zakaria CJ stated at pages 154155 –

 

“… a party may appeal against the judgment and not against some findings or statement which may be

 

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found in the reasoning given by the judge in support of a judgment or order.”.

 

(See also Pengerusi Suruhanjaya Pilihanraya Malaysia v See Chee How & Anor [2015] 8 CLJ 367; Leisure Farm Corporation Sdn. Bhd. v Kabushiki Ngu & Ors [2015] 3 CLJ 489)(CA); Kabushiki Kaisha Ngu v Leisure Farm Corporation Sdn Bhd & 2 Ors (Federal Court Civil Appeal No. 02(f)82-11/2015(W))

 

[35] In any event, the issue of UMBC being paid compensation by the defendants is wholly irrelevant to the present claim by the plaintiff. We, therefore, dismissed the cross-appeal.

 

[36] Before we conclude, it must be emphasised that the right to appeal is a statutory right and one who seeks to avail of that right must comply strictly with the procedures. For sure, observance of the prescribed procedure is not a mere technicality but mandatory and jurisdictional as well.

 

Costs

 

[37] We awarded costs of RM70,000.00 here and below to the defendants/appellants. The deposits were ordered to be refunded.

 

Dated: 25th August 2016 sgd.

 

(MOHD ZAWAWI SALLEH)

 

Judge

 

Court of Appeal Malaysia

 

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Counsel for the Appellants Dato’ Malik Imtiaz Ahmed bin Ghulam Sarwar (Dato’ Hajah Aliza Sulaiman & Pavendeep Singh with him) State Legal Adviser Office of the Penang State Legal Adviser Level 10, Federal Building Anson Road 10400 Penang.

 

Counsel for the Respondent M. Thayalan (Jegathesen Karupiah & Mohd Iqbal with him) Messrs Thayalan & Associates No. 24, Tingkat Satu Lebuh Penang 10400 Pulau Pinang.

 

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