Gani Meyang

[2016] MLRHU 1092 v. Superintendent Land & Survey Department & Ors pg 1

GANI MEYANG
v.
SUPERINTENDENT LAND & SURVEY DEPARTMENT &
ORS

High Court Sabah & Sarawak, Miri

Alwi Abdul Wahab JC
[Case No: MYY-21NCvC-4/4-2015]
11 August 2016

Case(s) referred to:

Adib Mokhtar & Ors v. Jason Chan Chee Khong & Anor [1999] 2 MLRH 462;
[1999] 2 MLJ 473; [1999] 5 CLJ 555 (refd)
Gilbert Engineering Co Inc v. Zainuddin Ahmad [2001] 3 MLRH 259; [2001] 7
CLJ 489 (refd)
Husli @ Husly Mok v. Superintendent of Lands and Surveys & Anor [2015] 2
MLRA 195; [2014] 6 MLJ 766; [2014] 9 CLJ 733; [2015] 1 AMR 554 (refd)
Kordial Kor Kundang Singh v. EC Controlled Demolition Sdn Bhd & Ors [2002]
2 MLRH 55; [2002] 7 MLJ 386; [2002] 6 CLJ 295; [2002] 2 AMR 2380 (refd)
Manggai v. Government of Sarawak [1970] 1 MLRA 344; [1970] 2 MLJ 41 (refd)
Voon Mow Chen v. Menteri Hal Ehwal Dalam Negeri [1993] 2 MLRH 573;
[1993] 4 CLJ 195; [1993] 2 AMR 2199 (refd)

Legislation referred to:

Rules of Court 2012, O 18 r 19, O 41 r 1(8), Form 74
Sarawak Land Code, ss 5(4), 202
Sarawak Limitation Ordinance

Counsel:
For the plaintiff: Majen Panyog; M/s Padawan Majen & Co
For the 1st & 2nd Defendant: Joseph Chioh; State Attorney General's Chambers

[Order accordingly.]

RULING

Alwi Abdul Wahab JC:

Introduction

[1] There are two applications before the Court namely the 1st and 2nd
Defendants' application to strike out the Plaintiff's writ and statement of claim
pursuant to O 18 r 19 (Encl 15) and the Plaintiff's application to strike out
certain paragraphs in the 1st and 2nd Defendants' affidavits affirmed on 14
March 2016 and 7 April 2016 (Encl 21).

[2] The 1st and 2nd Defendants had given notice to the Plaintiff to raise some
 Gani Meyang
pg 2 v. Superintendent Land & Survey Department & Ors [2016] MLRHU 1092

preliminary objection against the use of the Plaintiff's affidavit affirmed on 19

May 2016 in support of Encl 21 on the ground that such affidavit is defective.

[3] It was suggested to me that I should hear Encl 21 first because in the event
that the Court decides to strike out the disputed paragraphs in the 1st and 2nd
Defendants' affidavit, then Encl 15 would be untenable for it lacks substratum
to support it and ought to be dismissed.

The Plaintiff's Application To Strike Out The 1st And 2nd Defendants'
Affidavit (Encl 21)

[4] The Plaintiff's application in encl 21 is supported by the affidavit of Gani

Bin Meyang affirmed on 19 May 2016 ("Gani's affidavit").

[5] The grounds of the Plaintiff's application to strike out the 1st and 2nd
Defendants' affidavits (both affirmed on the 14 March 2016 and 7 April 2016)
are that the deponent (Ady Shahlani Bin Suud) in both affidavits did not give
evidence from his own personal knowledge but merely based on information
which sources are not determined. For convenience, both Defendants' affidavit
are referred to as Ady's first affidavit and Ady's second affidavit. The various
paragraphs in Ady's first and second affidavit (paras 13, 14, 15, and 16 of
Ady's first affidavits and paras 6, 7, 8, 9, 11, 12 and 13 of Ady's second
affidavit) which the Plaintiff wanted to expunge are in the following terms:-

"I am advice by the State Counsel of the State Attorney General's

Chambers, Sarawak and I verily believe."

[6] The Plaintiff complained that the deponent did not disclose as to who was
the state counsel who gave the advice.

The 1st And 2nd Defendants' Preliminary Objection

[7] The 1st and 2nd Defendants raised a preliminary objection to Gani's
affidavit affirmed on 19 May 2016.

[8] The 1st and 2nd Defendants gave two grounds of their objections namely
the jurat in Gani's Affidavit is not in Form 74 of the Rules of Court, 2012
("ROC") pursuant to O 41 r 1(8) of the same Rules and that this jurat of the
said affidavit falls on a fresh page.

[9] It was the 1st and 2nd Defendants' contention that the jurat used by Gani's
affidavit in support of the Plaintiff's application encl 21 is defective and ought
to be disregarded by this Court.

The Court's Findings On The 1st And 2nd Defendants' Preliminary Objection

[10] In order to appreciate the objection taken up by the 1st & 2nd Defendants,
the jurat in Gani's affidavit is reproduced as follows:-

"Affirmed by the said GANI BIN MEYANG on the 19th day of May,
 Gani Meyang
[2016] MLRHU 1092 v. Superintendent Land & Survey Department & Ors pg 3

2016 at Miri, Sarawak. (The content of this Affidavit In Support was

read over and translated to the Deponent in Bahasa Melayu by Majen
Panyog who is fluent in English and Bahasa Melayu").

[11] I wholly agree and subscribe to the 1st and 2nd Defendants' submission
that Gani's affidavit is defective and it cannot be used to support Encl 21. For
the deponent like Gani Bin Meyang who does not understand English and
interpretation is required before he could sign the affidavit, the jurat should be
in Form 74 pursuant to 5 O 41 r 1(8) of the ROC 2012 and it is as follows:-

[12] In holding to the above view, I find support from the case of Kordial Kor
Kundang Singh v. EC Controlled Demolition Sdn Bhd & Ors [2002] 2 MLRH
55; [2002] 7 MLJ 386; [2002] 6 CLJ 295; [2002] 2 AMR 2380. In this case, it
was held as follows:-

"...The purpose of the Jurat in Form (d) is crystal clear. It is when a

deponent files an affidavit not in the language of the court then the
person who interprets it to the language of the court must first take an
oath. But, in the event that the interpretation is done by the court
interpreter then using Form (d) the court interpreter need not take an
oath."
 Gani Meyang
pg 4 v. Superintendent Land & Survey Department & Ors [2016] MLRHU 1092

[13] I am also of the view that the fact that this jurat of Gani's affidavit began
and ended on a fresh page and did not immediately follow after the end of
deposition is defective following the case of Amanah International Finance Bhd
v. Thiem Juk Cheung & Anor Suit No KG 392 of 1986 quoted in the case of
Voon Mow Chen v. Menteri Hal Ehwal Dalam Negeri [1993] 2 MLRH 573;
[1993] 4 CLJ 195; [1993] 2 AMR 2199.

[14] It is also my view that the Plaintiff's application ought to be dismissed as it

was filed after the Plaintiff had taken a fresh step by filing his Affidavit in
Opposition (Gani Bin Meyang's affidavit affirmed on 23 March 2016) and also
his written submission to oppose to both Ady's first and second affidavit and
the 1st and 2nd Defendants' application (Encl 15). The Plaintiff's application
was only taken up on the 20 May 2016 after the learned counsel indicated to
the Court on the 18 May 2016 which date was supposed to hear the 1st and
2nd Defendants' application encl 15.

[15] The Plaintiff had even made a reply to certain paragraphs of Ady's first
and second affidavits in his affidavit (Gani Bin Meyang's affidavit affirmed on
23 March 2016) which he later objected to in his application. Having taken a
fresh action by filing the relevant documents to oppose the 1st and 2nd
Defendants' application, the Plaintiff is therefore precluded from taking the
objection by Encl 21 which was only filed after more than a month later.

1st & 2nd Defendants' Application To Strike Out The Plaintiff's Writ And
Statement Of Claim (Enclosure 15)

[16] Having dismissed the Plaintiff's application in encl 21, I move on to

consider Encl 15 ie the 1st and 2nd Defendants' application to strike out the
Plaintiff's writ and statement of claim. The application is supported by the
affidavits of Ady Shahlani Bin Suud affirmed on the 14 March 2016 and 7
April 2016 respectively ("Ady's first and second affidavit").

[17] The Plaintiff filed in an affidavit in opposition of Ghani Bin Meyang

affirmed on 23 March 2016 ("Gani's affidavit affirmed on 23 March 2016").

The Facts

[18] The undisputed facts are that the Ministry of Planning and Resource
Management issued THE LAND (NATIVE CUSTOMARY RIGHTS) (NO
29) 2007 DIRECTION (the "Direction") informing that all that area situated at
Lopeng, Miri is required for public purpose namely for BPR office and
Quarters. The said notification was published in the Borneo Post on 13 July
2007.

[19] After the notification was published, the Lands & Surveys Department,
Miri wrote a letter to the Plaintiff inviting him to attend a dialogue on 30
August 2007. Sometime on 16 July 2007, the Plaintiff submitted "Form E" to
claim for compensation for the extinguishment of his native customary rights
("NCR") over the land covered by the said Direction.
 Gani Meyang
[2016] MLRHU 1092 v. Superintendent Land & Survey Department & Ors pg 5

[20] Through Gani's affidavit in opposition affirmed on 23 March 2016, he

averred that he was deliberately or fraudulently misrepresented by an officer of
the 1st Defendant during the inspection of the Plaintiff's NCR land in August
2007. He further averred that he was told by the said 1st Defendant's officer
that there will be a second inspection conducted on the remaining NCR area
of 4,4605 hectares. Upon this representation, the Plaintiff said he agreed to
receive the amount of RM 168,290.00 for compensation of the Plaintiff's NCR
land of 0.335 hectares.

The 1st And 2nd Defendants' Case

[21] It was the 1st and 2nd Defendants' case that the 1st Defendant had
decided that the Plaintiff had acquired an area of 0.335 hectares of NCR
covered by the said Direction and the Plaintiff was compensated the sum of
RM 168,290.00 for the extinguishment of his NCR and also for the crops
planted on the said area of land.

[22] The said decision was duly communicated to the Plaintiff vide a letter ref
ACD No 4D/5/2007(1) dated 4 October 2007 which was served personally on
the Plaintiff and duly acknowledged by him on the same day.

[23] The above decision was conveyed to the Plaintiff in Form "F" stating that
if the Plaintiff is dissatisfied with the compensation and intends to refer the
matter to Arbitration, he must inform the Lands & Surveys Department, Miri
within 21 days from the date of the receipt of the said decision. However the
Plaintiff agreed to the compensation and did not request for referral to an
arbitration. This can be shown in Form "G" exhibited in Ady's first affidavit
affirmed on 14 March 2016 which was signed by the Plaintiff indicating his
agreement to the amount of the compensation in the sum of RM 168,290.00.

Remedy Provided By The Sarawak Land Code

[24] The 1st and 2nd Defendants contended that the Plaintiff must resort to the
remedy provided under the Sarawak Land Code (the "Land Code") instead of
filing this suit. The Plaintiff's remedy in the present action is provided for
under s 5(4) of the Land Code if he is not satisfied with the decision made by
the Superintendent under subsection (3) of the same Land Code.

[25] It was submitted by the 1st and 2nd Defendants, since the remedy is
available and provided for under the Land Code, the Plaintiff ought to exhaust
this remedy first namely to require the matter be referred to arbitration before
proceeding with his claim in this Court (Manggai v. Government of Sarawak
[1970] 1 MLRA 344; [1970] 2 MLJ 41). In Manggai's case, the Federal Court
ruled that Plaintiff should go to the Native Court of Appeal instead of the High
Court for a declaration in appealing against the decision of the Resident's
Native Court.

The 1st And 2nd Defendants' Allegation That The Plaintiff's Statement Of
Claim Is Defective
 Gani Meyang
pg 6 v. Superintendent Land & Survey Department & Ors [2016] MLRHU 1092

[26] The 1st and 2nd Defendants also submitted that the Plaintiff's statement
of claim did not plead that there was a deliberate fraudulent and
misrepresentation by an officer of the 1st Defendant. It was only pleaded in
Ghani's affidavit in opposition. It was the 1st and 2nd Defendants' submission
that the omission to plead the particular of fraud in the statement of claim
cannot be made good by the affidavits.

Limitation

[27] According to the 1st and 2nd Defendants, the limitation period is 3 years
pursuant to s 202 of the Land Code. Limitation sets in 2010 as the date when
the right to bring the action accrued in 2007.

The Plaintiff's Case

[28] It was the Plaintiff's contention that the issue of fraudulent

misrepresentation was pleaded in the Plaintiff's Reply which is considered as
pleading. It was averred in the Plaintiff's affidavit in opposition that the
Plaintiff's claim is premised on the basis that the Plaintiff was fraudulently
misrepresented by an officer of the 1st Defendant during the inspection of the
Plaintiff's NCR in August 2007.

[29] It was also averred to in the same affidavit that the Plaintiff had actually
submitted his claim for compensation for a total land size of 4,4605 hectares
but accepted a lesser sum of compensation of RM 168,290.00 for 0.335
hectares because he was told by the same officer that there will be a second
round of inspection where the compensation for the remaining portion of the
NCR would be paid for. The representation according to the Plaintiff was
made in the presence of the Ketua Kaum Kampung Lopeng, Yakob @
Matjakop Bin Mudin.

[30] The Plaintiff also submitted that the limitation period for the present
action is 12 years pursuant to item 101 of Sarawak Limitation Ordinance and
not under s 202 of the Land Code.

The Court's Findings On Enclosure 15

[31] It is indisputable that the Plaintiff never pleaded in their statement of

claim that he was deliberately or fraudulently misrepresented by an officer of
the 1st Defendant and this allegation was introduced in Ghani's affidavit in
opposition. Although the Plaintiff claimed that such claim of fraudulent
misrepresentation was pleaded in the Reply, I would say, that action is
improper as the Plaintiff should have introduced his claim for the first time in
the statement of claim to enable the 1st and 2nd Defendants to prepare their
defence. The Plaintiff could have applied for the statement of claim to be
amended to include the claim of fraudulent misrepresentation but opted to
bring the new evidence through his affidavit in support to oppose the 1st and
2nd Defendants striking out application. It is settled law that any defect or
omission in the statement of claim cannot be made good by affidavit evidence
 Gani Meyang
[2016] MLRHU 1092 v. Superintendent Land & Survey Department & Ors pg 7

(Adib Mokhtar & Ors v. Jason Chan Chee Khong & Anor [1999] 2 MLRH 462;
[1999] 2 MLJ 473; [1999] 5 CLJ 555; Gilbert Engineering Co Inc v. Zainuddin
Ahmad [2001] 3 MLRH 259; [2001] 7 CLJ 489).

[32] The Plaintiff's claim is basically for the inadequacy of the compensation
upon the acquisitions of the NCR land. In my view the Plaintiff's present claim
is caught by the limitation period under s 202 of the Land Code. I am guided
by the Federal Court's decision in the case of Husli @ Husly Mok v.
Superintendent of Lands and Surveys & Anor [2015] 2 MLRA 195; [2014] 6
MLJ 766; [2014] 9 CLJ 733; [2015] 1 AMR 554 where it was held that the
Plaintiff's action for recovery of damages against the Government was barred
by limitation pursuant to s 202 of the Land Code. In view of this authority, I
therefore reluctant to accede to the learned counsel for the Plaintiff's argument
that s 202 of the Land Code only applies to claim for damages on title land
and not NCR land. I also could not agree with the said learned counsel on the
applicable law on the limitation issue ie item 101 of Sarawak Limitation
Ordinance as this provision concerns payment of money charge of immovable
property.

[33] From the facts of the case, it is clear that the 1st Defendant's decision was
made known to the Plaintiff on 4 October 2007 and the area to be
compensated is 0.335 hectares. The Plaintiff also knew that the remaining area
of the NCR claim had not been compensated but kept quiet until the present
action was filed on 17 May 2015, some 8 ½ years outside the limitation
period. Worst still, the Plaintiff had indicated in Form "G" that he did not
wish for the matter be referred to arbitration as he agreed to accept the amount
of compensation of RM 168,290.00.

[34] Premised on the above considerations, I am of the view that this is a plain
and obvious case where summary procedure could have been resorted to. The
Plaintiff's claim is obviously unsustainable, frivolous and vexatious, and also
an abuse of the process of the Court.

Conclusion

[35] In the circumstances, the Court makes the following orders:-

(i) The 1st and 2nd Defendants' preliminary objection is allowed.

(ii) The Plaintiff's application (Encl 21) is dismissed.

(iii) The 1st and 2nd Defendants' application (Encl 15) is allowed.

(iv) Costs for the 1st and 2nd Defendants of RM3,000.