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First hurdle passed November 6, 2007

Posted by wong jimmy in Open Space.
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With the injunction granted against the developer by the High Court in Tawau yesterday (Nov 5), its a victory to the people, but shame on the authorities and the government for not upholding justice and not doing anything concrete to protect public interest.

It is a shame I say because it has to go down where the public had to bring back justice. They had put their hopes to the State government, Attorney General and local authorities. They had given all of them a chance to carry out their duty and protect the public interest, but in the end lost all confidence and hope and had to do it themselves in order to expose wrongs and get back the open spaces.

From The Borneo Post, Tuesday, November 6, 2007.

Tawau open space devt:
Injunction granted

Plaintiffs succeed in obtaining High Court order against developer

TAWAU: Ten plaintiffs yesterday succeeded in obtaining an injunction from the High Court here against a developer.

Plaintiffs, Chong Sui Jin, Yong Sie King, Lee Kok Ming, Pang Koh Len, Wong Chew See, Chin Kon Tai, Chen Yuh Bih, Lim Kon Hock, Yong Yu Min and Rev. James Wong Chong Leong had applied for the injunction against Jeramas Sdn Bhd (1st Defendant), Tawau Municipal Council (2nd Defendant) and Aggasf Construction Sdn Bhd (1st Defendant) and Tawau Municipal Council (2nd Defendant).

The landmark decision by Judicial Commissioner Justice Yew Jen Kie was delivered by Sabah, Sarawak, Tawau Senior Court Registrar Melissa Chia Pui Fung.

The plaintiffs had filed their application through lawyer Datuk Simon Shim for an order to stop the construction of shoplots at an open space in Sabindo here.

Yew, in her rulling, said she found the plaintiffs’ questions or issues submitted were serious and warranted a just determination by the court.

On whether the said land is trust property, Yew said after careful reading of Section 38(1) Local Government Ordinance, she agreed with the plaintiffs that the question whether the said land is a trust property by virtue of the provision in section 38(1) LGO and whether the plaintiffs have thereby acquired a common right over the open space are serious questions to warrant the court’s determination.

On whether the Joint Venture Agreement (JVA) between the first defendant and second defendant is ultra vires, Yew said although section 37 LGO empowers the 2nd defendant to enter into contracts necessary or desirable for the discharge of any of its function under the Local Government Ordinance, it did not state whether it empowers the 2nd defendant to enter into any agreement including the JVA for commercial project for profit.

“The answer to this question will ultimately decide whether the JVA is ultra vire. I therefor find that this is a serious question to warrant the court’s determination,”.

The plaintiffs further argument that the authority is only given to the President and the Secretary of the 2nd defendant to execute joint venture agreements, whereas the JV agreement in question was actually executed by the President and the Deputy Secretary. This has raised a serious question as to whether the JVA is ultra vires to be tried.

“It would appear from the above contention that one of the two signatory to the JVA was Deputy Secretary, who is not the authorized signatory under the LGO. This inevitable raises the question on the validity of the JVA. I am therefore satisfied that the issue on the validity of the JVA is a serious question to warrant the court’s determination,” she said.

Assuming the JV agreement is not ultra vires or illegal, the plaintiffs argued that the 1st defendant is still not allowed to develop the said land as it is expressly provided as a condition precedent in clause 4 of the JVA that the said land shall be successfully alienated to the 2nd defendant and that the change of the land use from open space to that of the commercial use shall have been approved before th 1st defendant can develop the said land.

The land described under T107522985, claimed the plaintiffs, still remains as an open public space and no change of land use had been approved.

Notwithstanding the above non-fulfillment of the condition precedent, the plaintiffs further argued, the 2nd defendant on May 27, 2005 wrongfully approved the Development Plan submitted by the 1st defendant in respect of the said land and the 1st defendant subsequently started works thereon. (The 1st defendant did not submit on this).

“It seems clear to me that the question whether the 1st defendant could commence development on the said land in view of non-fulfillment of the condition precedent of the project, which is not challenged by the1st defendant, posed a serious issue to warrant the court’s determination,” she said.

On whether the plaintiffs have abuse process of the court, Yew said it was a public litigation. The plaintiffs claimed that there is strong public objection when the joint venture project came into the public domain.

The 1st defendant argued that the ten plaintiffs in the suit does not represent the public at large in Tawau.

“To my mind, whether there is a strong public protest to the works carrying out by the 1st defendant on the said land is disputed fact which cannot be tried on Submission. Moreover, the 1st defendant has not shown that the plaintiffs is instituting the writ action against the defendants are trying to circumvent the rigorious requirement under Order 53 Rules of the High Court 1980.

“Accordingly, with respect, I do not agree that the plaintiffs have abuse the process of the court. It is for all the reasons aforesaid that I find the plaintiffs have satisfied the requirement for interlocutory injunction by showing that there are serious question which warrant a just determination by the Court,” Yew added.

Whether damages is an adequate remedy in the case, Yew said she has no doubt the 1st defendant’s financial ability to compensate the plaintiffs, in the event the plaintiffs succeed in the action.

“Money, however, can never adequately compensate for the adverse effects on the loss of quality of life resulting from permanent loss of open public space. Considering the fact that the structure which the 1st defendant seeks to erect thereon are shoplots, it is not difficult to see that unless restrained by the court, the shoplots when built on the said land will change irrevocably the character of Bandar Sabindo. The open space will be lost permanently thereby adversely affecting the ambience and environment of Bandar Sabindo and quality of life of its inhabitant. There are irreparable damage or injury which in my view cannot be adequately compensated by monetary payment,” she pointed out.

On the 1st defendant claim that it would suffer enormous losses if an injunction is granted, Yew in her written judgement stated it would be worse still without any undertaking by the plaintiffs as to damages.

If the Court is minded to grant an injunction, submitted the 1st defendant, the plaintiffs be then ordered to fortify their undertaking by depositing into court a sum of no less then RM5 million.

“If the Court Acceeds to what the 1st defendant has requested and orders the plaintiffs to give an undertaking which commensurates with the losses which the 1st defendant would suffer, it does not need much to imagine the chilling effect it will be on public spirited citizens to approach the court. As V.C George had said, ‘to vindicate the rule of law and to get the unlawful conduct stopped’. Accordingly, I will not impose the undertaking in damages on the plaintiffs,” she stressed.

“Moving to conclusion of the decision, let me recapitulate by saying that the plaintiff has amply shown that their claims are not frivous or vexatious. On the contrary, there are serious questions to be tried. They have also shown that damages will not be an sufficient remedy and that the balance of convenience tilts in their favour. There are also special circumstances in the plaintiff’s favour which justify the preservation of status quo. It is for all the reasons aforesaid that I allow the plaintiffs’ application and ordered in terms of prayers 1 and 3 of the Summon in Chambers,” she said in her written judgement delivered yesterday morning.

The date for mention had been fixed on Nov 23, 2007 and the trial date had been brought forward from Jan 22, 2008 to Dec 17-19, 2007.

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Comments»

1. Taktahan - November 7, 2007

This is the first step to justice. if we rely on the government to protect our rights and to preserve the people’s interest, we are still soundly asleep. Heaven’t u read Digi’s advertisement everywhere? “Time to change.” If the whole government cannot deal with one commercial warlord, what else can this government do? Don’t ever dream to have a cripple man to win the 100 meters race in the olympic for you! We are moving towards 2020, bangun lah!

2. Justice 2 the people - November 12, 2007

Its time to expose those who are involved in approving these projects and be a lesson to all not to be to greedy at the people’s expense. I am very, very dissapointed wit the local municipal council that is forgetting its primary role to oversee the public interest.


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