KUALA LUMPUR, May 23 — The High Court in Melaka today approved Sime Darby Plantation Berhad’s (SDP) bid to sue a purported foreign-controlled company’s alleged bid to take over its land at below market prices.
Besides granting leave to SDP, High Court judge Ahmad Nasfy Yasin also granted a stay on all proceedings relating to the compulsory acquisition process of the land, until the lawsuit is heard and decided on.
This effectively means that the process to compulsorily acquire SDP’s land in Melaka cannot go on until the legal dispute is resolved.
The High Court in Melaka had this morning heard SDP’s application for leave for judicial review, where the government-linked company sought the court’s nod to go ahead with its legal challenge against GI A Resources Sdn Bhd’s attempt to compulsorily acquire 75.07 hectares of its land in Merlimau in Melaka’s Jasin district.
According to SDP, GI A Resources is a property investment firm formed in 2015, with 70 per cent of its shares held by Xinzhongwei Capital Holdings Sdn Bhd, and with the latter virtually owned at 98 per cent by shareholders who are Taiwan and China nationals.
SDP had on April 29 filed for leave for judicial review against the Melaka Land and Mines Department director, the Jasin land administrator, the Melaka state government and GI A Resources.
SDP’s lawyer Rosli Dahlan told Malay Mail that the legal team was informed that the Attorney-General’s Chambers was not objecting to the granting of leave for the lawsuit.
“The stand taken by the AGC is commendable as it shows that the AGC being the government’s legal advisor will not condone administrative misconducts by state officers, state agencies and state government,” Rosli said.
SDP had about over two weeks earlier served the court papers for its leave for judicial review to the AGC, which plays the role of custodian where it decides whether to object or not to object to applications for leave for judicial review.
Rosli noted GI A Resources’ lawyers had however came without notice to the High Court in Melaka today to object to SDP’s leave application for judicial review.
“The ambush by this foreign-owned company who never gave us notice is a clear attempt to prevent this matter from being ventilated in court. It is surprising that this foreign interest is strongly contesting this judicial review leave application whereas the AGC has already indicated that they have no objection,” he told Malay Mail.
In an affidavit filed to oppose the leave application, GI A Resources director Lum Mun Fook had argued that the court should refuse leave.
In arguing for the leave to be refused, Lum claimed the application was allegedly filed beyond the mandatory time limit and that the application involves non-justiciable matters or matters which the court cannot hear or decide on.
Among other things, Lum said GI A Resources’ lawyers had advised him that SDP was allegedly required to have filed its legal challenge within three months of the receiving of Borang E dated October 1, 2018. (Borang E is a notice given as part of the compulsory acquisition process).
In arguing that the High Court has no jurisdiction to hear SDP’s challenge due to the alleged “non-justiciable” matters, Lum said he was also advised that SDP’s legal challenge is based on a purported letter or royal command dated April 4, 2018 and allegedly sought declaratory orders against the Istana Negara and the Yang di-Pertuan Agong.
Highlighting two of the declarations that SDP was seeking, Lum argued that both the palace and the Yang Di-Pertuan Agong (YDPA) enjoy sovereign immunity and cannot be subject to legal process except for proceedings involving the latter in his personal capacity in a special court.
Lum had highlighted SDP’s seeking of a declaration that the Istana Negara or YDPA as a federal institution cannot interfere with or instruct a state government in relation to a state’s land matters, and the seeking of a declaration that the purported April 4, 2018 letter allegedly from Istana Negara to purportedly instruct the Melaka state government to compulsorily acquire SDP’s land as being invalid and unconstitutional.
But Rosli argued that SDP had filed its lawsuit “well within time” and “well within the 90-day period” as the oral award of the RM35.28 million compensation was made on March 27, 2019 and the Borang H — another part of the land acquisition process — was just recently served on May 2, 2019.
He also described GI A Resources’ objections as “highly misconceived and premature”, highlighting that the company was only a “putative respondent with no right of audience”.
“Also both the Istana Negara and YDPA are not parties named in this action. The action is against the PTD, PTG, and State Government of Melaka whom SDP alleged conspired with GI A Resources to forfeit its land for a foreign interest,” he told Malay Mail when explaining that the lawsuit was not against the Istana Negara and YDPA.
Those named in an application for leave for judicial review are known as “putative respondents”, and only become respondents after the court grants leave for the judicial review to be heard.
It is understood that David Mathew and David Lee from Steven Thiru & Sudhar Partnership appeared for GI A Resources today, while Rosli and Dayana Najwa Jainon from Lee Hishammuddin Allen & Gledhill appeared for SDP.
In its judicial review application, SDP is seeking about 26 court orders, including the quashing of the compulsory acquisition, as well as declarations that the compulsory acquisition is an abuse of power, made in bad faith, tainted with procedural impropriety and breaching both the Federal Constitution and the Land Acquisition Act.
SDP had in court documents alleged that the compulsory acquisition process was rushed through after GI A Resources allegedly used Kelantan ruler Sultan Muhammad V’s name and mentioned his previous role as Yang di-Pertuan Agong.
Among other things, SDP had cited GI A Resources’ claim of a purported April 4, 2018 letter allegedly by Istana Negara to SDP’s CEO regarding the Agong’s alleged assent for the compulsory acquisition of the land for a Bandar Pendidikan Bestari development project. SDP said its CEO never received the alleged letter.
SDP had said the RM35.28 million awarded as compensation for land in the compulsory acquisition process did not reflect market value, and claimed GI A Resources had refused the option of purchasing the land via open tender based on current market prices.
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