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IN THE HIGH COURT IN MALAYA AT
KUALA LUMPUR
(CIVIL DIVISION)
CIVIL SUIT NO. 22 NCvC-950-08/2012
SENTUL MURNI SDN. BHD
… PLAINTIFF
V.
RAMLEE BIN AHMAD
…
DEFENDANT
JUDGEMENT
(In respect of Committal proceedings)
Enclosure 22
This is the Plaintiff’s Application for an
Order of committal against the
Defendant, for contempt of this Court, for
disobeying the Order of the
Court dated 6.9.2012 (“the High Court
Order”).
Background facts
On 6.9.2012 the Court granted the
Plaintiff’s Application for an injunction,
which to date, the Plaintiff complained
that the Defendant has continued
to breach such Order.
The High Court Order provided the
following:
(1) That the Defendant, Ramlee Bin Ahmad,
either on its own, its agents, employees or otherwise, either directly or
indirectly, are bound until further orders, at the moment, from doing the following:
(a) Entering or crossing a plot of land
which is part of H.S. (D) 81870 P.T. 5748, Mukim Setapak, District of Kuala Lumpur,
Federal Territory and the land area as shown in Appendix A hereto (“the Land”)
and from invading the Land;
(b) To make, persuade, incite, conspire or
encourage anyone else to erect or attempt to erect any structure, whether
permanent or temporary on the Land;
(c) To make, persuade, incite, conspire or
encourage anyone else to remove/move or try to remove/move any property or
fixtures belonging to the Plaintiff on the Land;
(d) To make, persuade, incite, conspire or
encourage anyone else to tamper/change or attempt to tamper/change the soil on
the Land;
(e) To make, persuade, incite, conspire or
encourage anyone else to destroy or damage the property belonging to the
Plaintiff ;
(f) To make, persuade, incite, conspire or
encourage anyone else to threaten or attempt to threaten the Plaintiff, its
agents, its employees or otherwise, whether
with weapons or without weapons;
(g)
To make, persuade, incite, conspire or encourage anyone else to harm or attempt
to harm the Plaintiff, its agents, its employees or otherwise, whether with weapons
or without weapons; and
(h) To interfere or cause interference
with construction work carried out by the Plaintiff, its agents and its
employees or otherwise on the Land.
The Plaintiff contended that the Defendant
is in contempt of Court as he has failed to comply with the High Court
Order despite having full knowledge of the terms of the Order.
The High Court Order was indorsed with the
penal Notice.
Court’s Decision given on 7.2.2013
regarding enclosure 22
The Plaintiff’s Application is dismissed. No Order as to costs.
4
Grounds for the Court’s Decision
1. The Defendant contended that there is
no proof of personal service on him of the High Court Order and the Writ of
Summons on the following grounds:
a) The Defendant’s accurate address is No.
170A, Kampung Chubadak Tambahan, Kuala Lumpur and not No. 179A, Kampung
Chubadak Tambahan, Kuala Lumpur as stated in exhibit AW-7.
b) The covering letter dated 14.8.2012
referred to in exhibit AW- 7 stated that the Writ and Notice of Application
were served by hand and by registered post.
The Plaintiff’s Affidavit of Service
did not state that the Defendant personally received service of the same and
there is no proof of receipt of such documents by the Defendant.
c) The covering letter for the alleged
service of the documents in paragraph b) above informed the Defendant of the
Hearing as 23.8.2012 whereas the High Court Order is dated 6.9.2012.
d) The High Court Order was obtained by
the Plaintiff on 6.9.2012 but it was served on the Defendant on 24.9.2012.
Before it was
served on the Defendant, the Defendant had received another letter from
Pembinaan Kerry Sdn. Bhd.(“Pembinaan Kerry”) dated 19.9.2012
(exhibit RA-1 of Defendant’s Affidavit In Reply) which was not addressed to the Defendant,
but to Persatuan Penduduk Kampung Chubadak Tambahan (“Persatuan Penduduk”) of
which the Defendant is the Chairman.
Pembinaan Kerry had requested the
Persatuan Penduduk to give cooperation to the company to start work on the
construction of 500 units of flats under the Program Perumahan Rakyat (PPR), in
Sentul, Kuala Lumpur.
On 24.9.2012 a representative of Pembinaan
Kerry, Fazrul, came and met the Defendant and served documents from the Plaintiff’s
Solicitors, Messrs Skrine.
The Defendant refused to accept service of the
documents. However, later on, upon advice of his Solicitors, Messrs Rashid
Tasin & Co, the Defendant accepted service of the High Court Order from Fazrul
and this is the first time that the Defendant was made aware of the High Court
Order.
Under O.52 r.2B of the Rules of Court 2012
(“the ROC”), in all cases other than contempt committed in the face of the
Court,“a formal notice to show cause why he should not be committed to the
prison or fined shall be served personally”.
In paragraph 28 of the Plaintiff’s
Affidavit In Reply (1), the Plaintiff averred that in actual fact, the
Plaintiff’s employee, Issa Bin Zulkepli (“Issa”) was the one who served the
High Court Order on the Defendant. Fazrul merely accompanied Issa to effect
such service.
In my view, it is not material whether it
was Issa or Fazrul who personally served the High Court Order on the Defendant. What is
important is that Issa, the Plaintiff’s employee, was with Fazrul when service
was effected personally on the Defendant.
The Court is satisfied that service of the
High Court Order on the Defendant was regularly effected on 24.9.2012 and this
is in accordance with the requirements of O.52 r.2B of the ROC.
As for the Defendant’s contentions that he
was not served the Notice of Application pursuant to which the High Court Order
was granted, to me that cannot be raised as an issue now since the Defendant
did not apply to set aside such Notice of Application granting the ex parte
High Court Order, within 30 days from the date of the Order.
2. The burden of proof is on the Plaintiff
to prove on a standard beyond reasonable doubt that the Defendant had breached
the High Court Order.
In Houng Hai Hong
& Anor V. MBF Holdings Bhd. & Anor & 3
Other Appeals [1995] 4 CLJ 427 the Supreme Court stated:
“Dalam prosiding-prosiding menghina
Mahkamah, bukti standard yang dikehendaki adalah bukti di luar keraguan yang munasabah,
dan di mana terdapat keraguan, keraguan sedemikian haruslah diputuskan memihak
kepada orang yang tertuduh. Dalam ertikata yang lain, standard bukti tersebut mestilah
sepertimana yang dikehendaki dalam satu kes jenayah.”.
The Plaintiff alleged that the Defendant
has wrongfully entered and wrongfully taken possession of the Land belonging to
the Plaintiff, and has wrongfully remained in possession of it. This has prevented
the Plaintiff from fulfilling its contractual obligations to deliver vacant
possession of the Land to the Federal lands Commissioner and delayed or
obstructed the construction of 500 PPR low cost flats.
The main grounds for my Decision are based
on the following historical facts involving the Land:
The Defendant has been living on the Land
since the year 2000 i.e. for 12 years before the Plaintiff’s project was implemented.
The Defendant has remained on the Land based
on the certainty and belief that he is not a squatter but is occupying the Land
with a licence in equity.
The Defendant relied on a previous
Decision by the Court of Appeal, Sentul Murni Sdn.
Bhd. V. Ahmad Amiruddin Bin Kamaruddin & Lain-lain in Rayuan Sivil No. W-02-593-98 given on 29.6.2000.
In
that case, the Court of Appeal held that the occupiers of Kampung Chubadak
Tambahan (in which the Land in the present case is situated) are not squatters
but had been given permission and licence from the State
Authority and they can continue to occupy the Land.
The Court of Appeal further stated that
the Plaintiff, as the registered proprietor of the said Land, can get vacant possession
of the Land subject to payment of compensation to the occupiers of the Land for
costs which have been expended by the occupiers to build and renovate their
houses or, as an alternative, current costs according to the market value of
their houses which have to be valued by an independent valuer agreed upon by
both parties, or if they fail to agree, such valuer to be appointed by the
Court, and all other incidental costs connected to the relocation of such occupiers.
The Plaintiff (SENTUL MURNI) did not appeal to the
Federal Court regarding the Court of Appeal Decision.
In view of the above Court of Appeal
Decision, I am satisfied that the Plaintiff has failed to prove beyond
reasonable doubt that the Defendant is in contempt of Court for not complying
with the High Court Order.
It is clear from the historical background
and facts, that the Plaintiff is only one of several occupiers of the Land in Kampung
Chubadak Tambahan, and they are now occupying the Land with a licence in equity
founded on the permission or consent given by the State Authority.
It appears to me that unless the Plaintiff
offers compensation as stated by the Court of Appeal, the Defendant
is allowed to remain on the Land.
Going by the foregoing grounds, I
therefore hold that the Defendant is not
in contempt of the High Court Order and ordered accordingly.
Dated 1 March 2013
-sgd-
( DATIN YEOH WEE SIAM )
Judge
Civil Division
High Court, Malaya, Kuala Lumpur
Counsels/Solicitors for the Plaintiff
1. Ms Sharon Chong
2. Mr. Nimalan Devaraja
Messrs Skrine
Counsel/Solicitors for the Defendant
Encik Abdul Rashid Bin Tasin
Messrs Rashid Tasin & Co.
Defendant present
