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Sabindo Open Space Trial – Day 5 June 20, 2009

Posted by wong jimmy in Open Space.
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DAY 5                                   NOTES OF PROCEEDINGS                    16 JUNE 2009

9.15 am

CHONG SUI JIN & 9 ORS

v

AGGASF SDN. BHD.

& JERAMAS SDN. BHD

v

MAJLIS PERBANDARAN TAWAU

 

Civil Suit No. T(21) 52 2005

Civil Suit No. T(21) 53 2005

 

Datuk: The parties are as before. May I call my next witness, Mr. Philip Balasom Basalant .

 

Plaintiff calls 1st Witness – Mr. Philip Balasom Basalant (PW10)

(Sworn – solemnly & sincerely declare the evidence given in this court is the whole truth, the truth and nothing but the truth in Malay.)

 

Datuk: YA, may I request any other witness other than the parties to leave the court room?

 

*Witness (Abdul Manap bin Aneh) leaves court room*

 

Examination in chief

 

Datuk: Encik Basalant, you have prepared a witness statement this morning. Can you confirm your

            signature at the bottom?

 

Philip: Yes.

 

Datuk: Can you also confirm that the contents of your statement are correct?

 

Philip: Yes.

 

Datuk: May I refer to paragraph 4 of your statement please? Before this, may I tender this as PW10?

 

Judge: PW10.

 

Datuk: May I refer to paragraph 4 of your statement please? *Reads out paragraph 4* What is your

            understanding of the word “state reserve”?

 

Philip: As an ACLR, when I received the application, I submit this application to the District Surveyor

            (Land & Survey Tawau). The feedback I got from him is the land applied for is a State Reserve

            (Open Space). So based on the comment, I rejected the application. Because anything outside the

            state land cannot be alienated. So state reserve is earmarked and reserve for the state use &

            cannot be used.

 

Datuk: Do you agree that the land was reserved for the purpose of an open space?

 

Philip: Yes, because of the comment he got from the District Surveyor.

 

Datuk: I take it that you’re familiar with the Provisions of the Land Ordinance (Cap 68).

 

Philip: Yes.

 

Datuk: Can you please look at Section 9 of the Land Ordinance? Can you please tell the court what type

            of land can the director alienate?

 

Philip: Based on that section, only state land can be alienated.

 

Datuk: Are state land and state reserve mutually exclusive?

 

Philip: Yes.

 

Datuk: May the witness be shown Page 21 to 61 of PBD2?

 

Ronny: My Lady, my learned friend has to explain why he has to show the legality in showing an

            affidavit in opposition filed by this witness in another proceedings which is not the concern of

            the Plaintiff’s in this case. If this is allowed, it means that the witness can at anytime just produce

            in court his affidavit evidence in other proceedings in this case. The Rules of the High Court are

            very clear. Only affidavits in previous proceedings in one case can be referred to, and even that

            is subject to condition – that notice has to be given to the other side. This affidavit is used in a

            completely different application and has nothing to do with this case. The admission of this

            particular document have not been admitted by the Defendants in this case, on legal ground. My

            Lady, I invite this court to take into recognition, this affidavit includes exhibits which are

            irrelevant in this proceedings. It’s admission would also tantamount to tendering all the exhibits           

            in the documents. We therefore object to this affidavit tendered by the witness altogether. Much

            obliged.

 

Datuk: We have earlier settled on this issue as to the use of affidavit in this proceedings. My learned

            friend, Mr. Brendon Soh submitted at Pages 6 and 7 of the Notes of Proceedings that “therefore

            the use of such affidavit will be extremely prejudicial unless the witness is present in court…”

            and bearing in mind that the tendering of this affidavit is allowed under O41r10(4) of the Rules

            of the High Court. I therefore humbly urge My Lady to allow this witness to tender his affidavit

            that we referred to in paragraph 5 of his witness statement. Yes, we have served notice on all

            parties and the court of the Plaintiff’s intention to use the affidavit of this witness – we have on

            the 8th June 2009 served by fax to all the relevant parties, that although this is not required under 

            O41. Much obliged.

 

Brendon: My Lady, just to maintain O41r10 does not expressly allow an affidavit on separate

                proceedings with different parties to be used in this proceedings – would be a serious error of

                law to allow such affidavit to be admitted in its entirety. Any evidence from the witness must

                be by way of an examination in chief either orally or by virtue of a witness statement. Any

                documents referred to must again be subject to the rules of evidence. And therefore we object

                to this affidavit in opposition. Furthermore, my learned friend has not been able to produce

                any authority on this affidavit being used in this proceedings. Much obliged.

 

Judge: Why can’t you just orally examine him?

 

Datuk: *Argues about the use of affidavit under O41r10(4)* I leave it entirely to your discretion. Certain

            documents where this witness is not the maker but is referred to in the affidavit. There

            are 2 documents in PB8 and PB9 Page 58 to 61…

 

Judge: The witness is here, why don’t you just ask him directly?

 

Datuk: Yes, oral evidence is the best. Affidavit evidence is 2nd best.

 

Judge: Is that how you tender documents in court?

 

Datuk: ………………………. I leave it to YA’s decision.

 

Ronny: The 2 letters referred to are basically the letters from the THEN president of the TMC. If he so

             requires, he can anytime subpoena the then TMC who is still in Tawau because he is the maker

             of the document.

 

Judge: Objection sustained.

 

Datuk: En. Basalant, please look at Pages 32 to 38 of PBD2. Can you please..

 

Ronny: When the affidavit is out of the window, it means the exhibits are out of the window as well. If

             my learned friend can refer it as a separate document and not as an exhibit of the affidavit, then I

             will allow the application.

 

Datuk: Can you tell the court what it is?

 

Philip: This is an application by MPT.
Datuk: Now can you please look at the bottom of the page 31, there is a signature. Can you tell whose

            signature is it?

 

Philip: Yes, it is my signature.

 

Datuk: Can you confirm to the court that that is the application made under s12 under the Land

            Ordinance?

 

Philip: Yes.

 

Datuk: Can you please explain to the court what is Section 12?

 

Philip: s12 is an application for state land. The form to be used is mentioned in Page 31 to 38 mentioned

            just now.

 

Datuk: I’d like to tender this document as an exhibit.

 

Ronny: No objection.

Judge: This will be P28 (Pages 31 to 38 of PBD2)

 

Datuk: May the witness be shown page 39 of PBD2? Please tell the court what is this document?

 

Philip: This is a letter signed by me as a notice to MPT that their application has been rejected.

 

Datuk: Did you give reasons for your rejection?

 

Philip: Yes, the reason is…*reads letter out in Malay* – it is open space, therefore application rejected.

 

Datuk: May this document be tendered as an exhibit?

 

Ronny: No objection.

 

Judge: P29.

 

Datuk: Encik Basalant, do you that there was a challenge in court as to your decision to reject the

            TMC’s application?

 

Philip: Yes.

 

Datuk: Do you know what’s the outcome of that court action?

 

Philip: Yes.

 

Datuk: Can you please tell the court what is that outcome?

 

Philip: The outcome was that it was set aside.

 

Datuk: Since you have rejected the application for alienation of the land on the grounds that the land was

            a state reserve (Open Space), my question is this, what do you regard any structure on that piece

            of land?

 

Philip: Any structure on such land is illegal.

 

Datuk: May I now refer to paragraph 6 of your witness statement please? Was that the reason why you

            were directed by the Director to order the 1st Defendant clear all sites?

 

Philip: Yes.

 

Datuk: As an ACLR Tawau, were you also an enforcement officer?

 

Philip: Yes.

 

Datuk: I would like to refer the letter written by you – Page 40 of PBD2?

 

Philip: Yes.

 

Datuk: Please tell the court what is the nature of that document?

 

Philip: A notice requesting the 1st D to remove all structures & to vacate the site. *Reads letter

            addressed to Jeramas Sdn. Bhd.* (menceroboh kawasan Bandar Sabindo & mengembalikan

            kawasan ke bentuk asal. – kalau tidak, denda sebanyak RM100,000 akan dikenakan atau

            hukuman penjara…)

 

Datuk: Can you explain in simple terms what does this document mean?

 

Philip: This is a notice requesting them to vacate the area and remove all structures because it is illegal.

 

Datuk: And was this letter served on Jeramas Sdn. Bhd?

 

Philip: Yes, there was an acknowledgment.

 

Datuk: How did you serve this notice to vacate?

 

Philip: By personal service on the site.

 

Datuk: May this document be tendered as an exhibit?

 

Ronny: No objection My Lady.

 

Judge: P30.

 

Datuk: En. Basalant, will you be able to confirm that your decision to reject the said land application and

            to enforce the provisions of the Land Ordinance is entirely your decision, independent of any

            other authority?

Philip: Yes.

 

Datuk: Will you be able to confirm that no one else including the TMC can interfere with your decision?

 

Philip: Yes.

 

Datuk: And in making your decision, to reject the application, and to enforce the provisions of the Land

            Ordinance, you were guided by the provisions of the Land Ordinance?

 

Philip: Yes.

 

Datuk: En. Basalant, coming back to the notice that you wrote, P30, at Page 40 of PBD2, can you tell

            the court where is this land located?

 

Philip: It is located based on the application, Block D.

 

Datuk: Please explain only why Block D? Why only block D only?

 

Philip: Because only in Block D there were structures that were put up.

 

Datuk: So as at November 9, 2005, only Block D was under construction?

 

Philip: Yes.

 

Datuk: En. Basalant, I’d like you to clarify, is your notice (P30) to vacate anything to do with the State

            Cabinet decision to stop work in respect to this particular piece of land?

Philip: Yes.

 

Datuk: Was there any court action, either by the developer or the TMC regarding your notice to stop

            work and vacate the site?

 

Philip: No.

 

Datuk: I have no further questions.

 

Cross Examination

 

Ronny: I’d like to refer the witness to Exhibit P30, Page 40 of PBD2? Can you please look at this letter

            carefully, especially the heading – Kawasan Terbuka/Tanah Kerajaan. Can you explain to the

            court, that phrase means 1 thing or 2 thing?

 

Philip: This notice was based on the format – for any illegal structure. That is why I issued this letter.

 

Ronny: If this is only a matter of format, why did you answer to the question posed to you just now to

             mean that that phrase refer to Block D?

 

Philip: Because the illegal structure & development is only in Block D and no other block.

 

Ronny: So do you not agree with me, that this particular notice was in respect of the piece of land where

             Block D is situated?

 

Philip: Yes.

 

Ronny: As ACLR then of Tawau, can you please confirm to the court whether the land where Block D is

             situated, is a Kawasan Terbuka or Tanah Kerajaan?

 

Philip: It is Kawasan Terbuka and Government Reserve. That’s why based on my rejection letter and

           comment from District Surveyor – it is Open Space, Government Reserve.

 

Ronny: Are you trying to tell the court that when you have described that piece of Land as Kawasan

             Terbuka/Tanah Kerajaan was the description of the District Surveyor only?

 

Philip: It is not a description, it is an area only for government reserve?

 

Ronny: Do you agree with me that open space only come into being when there is a development on a

            piece of land?

Philip: There are 2 things. Normally 1) For open space where the land is developed, there will be set

            aside 10% as open space. 2) In the Plan, the Government can make an area or set aside an area

            for open space.

 

Ronny: Do you agree with me that Block D is a piece of land earmarked by the government as open

            Space?

 

Philip: It is mentioned for Open Space, Government Reserve. The answer is yes.

 

Ronny: Why do you address your letter to Jeramas Sdn. Bhd.?

 

Philip: Because we went to the site to enquire who were the developer, they said Jeramas. And also the

            address was given by the Enforcement officer by my department.

 

Ronny: Is the office of the ACLR Tawau a memberof the development committee of TMC when

            determining the application on a piece of land by anybody?

 

Philip: Yes.

 

Ronny: So, if your office is a member that means, you would know that there is an application for

             approval of the development project in Block D and C? Do you agree with me?

 

Philip: Yes.

 

Ronny: Were you in that committee when this development project was approved?

 

Philip: I cannot remember because it was sometime ago.

 

Ronny: Can you remember whether the ACLR himself attended the meeting?

 

Philip: Normally the ACLR will attend all government meetings but if he cannot attend, he will assign

           his assistant.

 

Ronny: So did you know the development plan for Block C and D is approved by the TMC?

 

Philip: Yes. But with condition.

 

Ronny: You said you cant even remember whether you attended the meeting… how do you remember

             the condition?

 

Philip: The approval that is normally given by the committee – normally there is a condition attached to

            the approval. Not just this case but all the other applications.

 

Ronny: Who is the developer of Block C and D, who is the developer?

 

Philip: Based on my finding, it is Jeramas.

 

Ronny: Are you trying to tell the court that you don’t know that there is a JVA between TMC and the

             developers?

 

Philip: Yes I know there is JVA between MPT and the developer.

 

Ronny: If I may refer the witness to Page 39 of PBD2. Why do you address this letter to the President of

            the MPT Tawau?

Philip: Because the application is submitted by MPT – that is why the letter is addressed to them.

 

Ronny: From the content of this letter, P29, do you agree with me that the MPT was applying for the

            piece of land for the purpose of development into Block C and D?

 

Philip: Yes.

 

Ronny: Would you agree with me that MPT is the developer of Block C and D?

 

Philip: Yes.

 

Ronny: Can you refer to page 40 of the same bundle? You just said MPT is also a developer. Why didn’t

             you issue a notice to the MPT as well?

 

Philip: Because I rejected the application from the MPT. And I sent the notice to the developer who is  

            on the site.

 

Ronny: You know that the MPT was a JV partner of Jeramas Sdn. Bhd, did you?

Philip: Yes.

 

Ronny: Don’t you think this notice also applies to the MPT?

 

Philip: No.

 

Ronny: You mentioned to the Court that this notice was issued because the structure on Block D is

             illegal. Can you explain why was it illegal?

 

Philip: Because there was no title on the land and they haven’t gotten any approval on it from the Land

            and Survey Dept.

 

Ronny: Can you confirm again that the office of the ACLR is a member of the development committee

             of the MPT?

 

Philip: Yes.

 

Ronny: Can you now explain why this allegation of illegality was not raised during the development

             committee meeting and why did the ACLR office took part in the development project?

 

Philip: I cannot remember but what I know is the approval for any development plan must have a title to

            the land developed and all the committee knows that procedure.

Ronny: Open space within the Tawau municipality are controlled by MPT, am I right?

 

Philip: Yes whereby that open space is surrendered to them.

 

Ronny: So, do you mean therefore that that land earmarked for Open Space for Block C and D were to

             be situated, have not been surrendered to the TMC yet?

 

Philip: I don’t agree to the government surrender the open space to MPT. Cannot simply surrender an

           open space. There is no such thing that any open space will be MPT or any Majlis anywhere.

 

Ronny: What you’re trying to say is that the government have not alienated any land to MPT?

 

Philip: No. Its not something to do with the government to alienate. In the first place, they submitted the

            MPT submitted land application, that’s why the Land Office (ACLR) rejected it. There is

            nothing to do with the government alienating the land.

 

Ronny: Do you not agree with me, when a person apply for a state land, and when it is approved, then

             the land would become alienated to the applicant. Would you agree with me?

 

Philip: Yes.

 

Ronny: So MPT applied and it is rejected by you. Is it not right to say that the government have not

            alienated the land to MPT?

 

Philip: Cannot say the government have not alienated.

 

Ronny: Can I refer the witness to his witness statement PW10 please. Paragraph 1, the last 2 lines

             appearing on the top of page 2? You have come to court this morning to testify on behalf of the

             Land and Survey Dept of Sabah, am I right?

 

Philip: Yes.

 

Ronny: The Land and Survey Dept represents the State of Sabah, am I right?

Philip: Yes.

 

Ronny: So you are also testifying on behalf of the State Government, am I right?
Philip: Yes.

 

Ronny: Does MPT which is the local government of Tawau, represents the government of the State of

             Sabah as well?

Philip: Yes.

 

Ronny: As an officer of the government of the state of Sabah, was it your duty to protect the interest of

             the local government?

 

Philip: No, (Yes, but in this case, I’m referring to this application rejected by my office, I need to do

            my duty following the Land Ordinance)

 

Ronny: According to the provisions by the Land Ordinance, how would you describe the status of the

             Land whereby Block C and D is to be situated?

 

Philip: Is does not fall under the terms of State Land. – s4

 

Ronny: Why the land where Block C and D does not fall between the State Land as earlier mentioned?

 

Philip: Because the status of the land at the time when the application was submitted, falls between

           Open Space (Government Reserve).

 

Ronny: Under the Sabah Land Ordinance, is there a provision for the government to reserve a piece of

             land for public purpose?

 

Philip: Yes, there is a provision.

 

Ronny: Since you are so sure that the piece of land where Block C and D to be situated, is not State

             Land, can you confirm to this Honourable Court that that particular piece of land has been

             specifically reserved with the permission of the TYT for a public purpose with gazette

             notification?

 

Philip: Yes, in this case, it has not been vacated.

 

Ronny: Can I refer the witness to paragraph 6 of his witness statement? Do you know that the JVA have

            been mutually terminated between the MPT and developers?

 

Philip: Yes, I knew about it.

 

Ronny: Do you also know that the development plans have been withdrawn by the Council?

Philip: That one I’m not sure.

 

Ronny: Do you stand by your statement in paragraph 6?

 

Philip: Yes.

 

Ronny: Every word of that, you stand by it?

 

Philip: Yes.

 

Ronny: No further cross-examination.

 

Break for 15 minutes.

 

Resumed at 11.50 am.

 

Re-Examination

 

Datuk: En. Basalant, do you confirm that you come to testify in court today as your capacity as former

            ACLR Tawau?

Philip: Yes. I came here today because I am subpoenaed.

 

Datuk: On your evidence that the notice is with regards to Block D only, if construction was going on in

            any of the other 4 blocks where the open space is located, would you also issue similar notice?

 

Philip: Yes.

 

Datuk: Would you also do so where there is a breach of title condition as to the usage of the land?

Philip: Yes.

 

Datuk: My learned friend asked you if you knew about the JVA. You said you knew. I’d like to ask you,

            does it matter whether MPT has a JVA or partnership agreement or any sort of relationship with

            anybody at all when considering MPT’s application for alienation of state land?

 

Philip: No, doesn’t matter because every application – I treat as applicant. I don’t care if there have any

            joint venture with any developer.

 

Datuk: Now on the question on why you did not serve notice on MPT as well, are you aware that before

            you issue the notice to vacate in November 2005, the MPT President together with his officers

            also went to the site to order the developer to stop work?

 

Philip: Yes.

 

Datuk: And since MPT also wanted the developer to stop work,

 

Ronny: My Lady, the question on whether MPT ordered to stop work has already been determined in

             another court case, shouldn’t be mentioned in this proceeding.

 

Datuk: I haven’t asked the question yet and I’ll leave it to YA discretion. And since MPT also wanted

            the developer to stop work, is there any necessity for you to issue similar notice “stop work

            notice” to MPT?

 

Ronny: I withdraw my objection.

 

Philip: No.

 

Datuk: On your evidence that the structure was illegal, would you confirm that the construction work

            being carried out on Block D are works on the piece of land that is without title?

 

Philip: Yes.

 

Datuk: My learned friend asked you about the duty to protect the interest of the state and MPT

            represents the government or the State of Sabah. I’d like to ask you, and if you cannot answer,

            just say so. Do you know that MPT is a separate legal entity formed under the Local Government

            Ordinance as well as the Municipal Council Tawau instrument?

 

Philip: Yes.

 

Datuk: And do you also know, that MPT has a legal capacity of suing or being sued? In the context of

            MPT’s land application, how do you treat MPT in that instance?

 

Philip: I treat it the same as other applicants.

 

Datuk: So you mean to say that in so far as the land application is concerned, you treated MPT as a land

            applicant.

 

Philip: Yes.

 

Datuk: You mentioned State Land under s4 of the Land Ordinance. Please have a look at s4 under State

            Land. Let me try to be very basic to get a confirmation from you. Do you agree that under s4,

            State Land means land which have not been alienated and have not been reserved or public

            purpose.

 

Philip: Yes.

 

Datuk: To put it conversely, land which have been reserved for public purpose, cannot be state land?

 

Philip: Yes.

 

Datuk: And public purpose in this case can include open space?

 

Philip: Yes.

 

Datuk: Again on s4, can you tell the court, does the section describe the way in which the land may be

            reserved for public purpose?

 

Philip: No.

 

Datuk: Does that mean that it is up to your department to decide how lands may be reserved?

 

Philip: Yes.

 

Datuk: Do you agree with me that reservation of land by TYT is only one of the ways?

 

Philip: Yes.

 

Datuk: Now, on the question of gazette notification, since you said that the section does not prescribe in

            which the land may be reserved, do you agree with me that as a matter of good practice, this

            piece of land where Block C and D are located, should be gazetted?

 

Philip: Yes.

 

Datuk: And do you also agree that gazetting a piece of land is an administrative act and can be easily

            done by the government?

Philip: Yes.

 

Datuk: In that case, the TYT is only playing a constitutional role?

 

Philip: Yes.

 

Datuk: I have no more further questions.

 

Witness is released.

 

Datuk: YA, that concludes the claimant’s case.

 

Ronny: My Lady, then we will call the 1st Defendant, Mr. Alex Kong.

 

Judge: How many witnesses do you have?

 

Ronny: I only have 2 witnesses.

 

Adjourned to 2.30 pm.

 

Resumed at 3.00 pm.

 

Ronny: May it pleases My Lady, I would like to call the government civil servants first.

 

Defendant calls 1st Witness – Mr. Abdul Manap Haji Aneh (DW1)

(Sworn – solemnly & sincerely declare the evidence given in this court is the whole truth, the truth and nothing but the truth in English.)

 

Ronny: Are you still the district surveyor currently?

 

Abdul: Yes.

 

Ronny: Can you tell the court when did you commence your position as District Surveyor Tawau?

 

Abdul: 1 January 2007.

 

Ronny: Now sometime in May 2008, did anybody ask you to confirm the status of a piece of land in the

            Sabindo area in Tawau?

 

Abdul: Yes – the State Attorney General.

 

Ronny: Did you provide your confirmation on the status of the land to the State AG?

 

Abdul: Yes.

 

Ronny: I would like to refer the witness to the documents of Pages 1, 2, 3, 4 and 5 of PBD1. First of all,

             Page 1 and 2, is this your letter?

 

Abdul: Yes.

 

Ronny: And on Page 2 on the bottom, is that your signature?

 

Abdul: Yes.

 

Ronny: If you look at Page 1 on the top right hand corner, is that an acknowledgement by the State AG’s

            office?

 

Abdul: Yes.

 

Ronny: If you look at Page 3, 4 and 5, are they the attachment to your letter?

 

Abdul: Yes.

 

Ronny: Can you tell the court, what is the purpose of this letter?

 

Abdul: Because the State AG asked me to provide some information on this piece of land.

 

Ronny: On page 2 of the letter, the bottom paragraph, can you confirm that is your finding on the status

             of that piece of land?

 

Datuk: YA, if my learned friend is using this document and this witness to establish the Defendant’s

            case, then I’m afraid I must object. The reason being that the defence case has shown in these

            documents (Pages 1-5 of PBD1) to this witness was never put to my witnesses in particular PW6

            and the former ACLR, PW10. In fact the evidence on the status of the land, in particular this 2

            witnesses, has not been challenged. To allow this witness to establish the defence’s case, and to

            use the documents that I’ve just mentioned, is grossly prejudicial to the plaintiff’s case. This also

            means that the Plaintiff’s have been deprived of an opportunity to respond to the defendant’s

            case. That is the fundamental rule, this must not be allowed. And I humbly urge my Lady not to

            allow this line of examination to be continued. Much obliged.
Ronny: My Lady, it is the defence duty to bring the attention to this Honourable Court to the current

             status of the land. The best person to testify would be the current District Surveyor. Past ACLR

             and past Surveyor wouldn’t know the current situation in the Land & Survey in Tawau. The

             Plaintiff are in liberty to subpoena any witnesses as they wish from any department to assist the

             court in their case. They have chosen to call and subpoena past witnesses. The Defendant’s have

             subpoenaed this witness as the District Surveyor of Tawau who have given the latest status on

             that piece of land. It is improper for me to cross examine past Surveyors and past ACLR

             concerning the action taken by the current District Surveyor as this is a document that was not

             admitted or agreed by the Plaintiff’s, it has got to be adduced through the maker of the

             document – and that is this witness himself. This witness is entitled to refer to this document in

             his testimony before Your Ladyship this afternoon.

 

Judge: Any response to that?

 

Datuk: Yes, 2 points. I think my learned friend missed my objection. I’m objecting to the establishment

            of the defence in this LATE stage. Which is most fatal in any trial. And it is not for my learned

            friend to say whether my witnesses can or cannot say to that document. My 2nd point is that, my

            learned friend has made a very serious error of fact, the surveyor, that is PW6 who has given

            detailed evidence of the history and status of the land, and his personal involvement in the

            ascertainment in the status of the land, is not a past officer. He is not a past surveyor – he is still

            the surveyor of the Land Office Tawau. And his evidence on the status of the land was not

            challenged at all. How can my learned friend now establish his case without first putting his case

            to witnesses especially the surveyor PW6? And it is for this reason that I must object to his line

            of examination.

 

Judge: Is this pleaded?

 

Ronny: Yes, it is pleaded.

 

Judge: How is it pleaded?

 

Ronny: My Lady, this is on paragraph 3 – Suit T(21) 52 of 2005. The 1st Defendant’s statement of

             Defence. It is not in the bundle of documents. It is filed in a separate bundle.

 

Judge: Why is it not in the bundle?

 

Datuk: We are sorry we have not filed the supplementary bundle – We have not received the sealed

            amendment Statement of Claim and Defence. Can I reply to your Ladyship’s question on

            pleadings? Whether or not the issue was pleaded was completely irrelevant in this stage. Because

            we are talking about evidence and not pleadings in this case. I’m talking about evidence which

            are established, contradicted and tested. All these are based on the fundamental rule that the

            defence must put his case to his witnesses, so that the Plaintiff witnesses may agree, disagree or

            rebut. Failure to put the defence of the case to the witnesses must necessarily mean that the

            plaintiff’s are unfairly and unjustly deprived of their pride and opportunity to respond to the

            Defendant’s case. It is for this reason and now that the Plaintiff have already closed their case,

            this line of examination must not be allowed. Much obliged.

 

Judge: My understanding is that if a case have not been pleaded and wish to put the unpleaded defence,

           the other party must object to it unless it will be noted as evidence. Eventhough the defence have

           been pleaded…

 

Datuk: We are not here to help the defendant’s. We have already closed the case.

 

Judge: I want authority. You submit to me tomorrow.

 

Ronny: I stand corrected on the surveyor’s position. The surveyor I have challenged him that he has not

            come under the Land and Survey Dept – so he has no right to come under the Department. As

            for the ex- ACLR this morning, I tested him at cross examination at length regarding the status of                                                               

            that piece of land especially at the time of the approval of the Development Plan. I beg to

            differ from my learned friend is not important/relevant. A pleading is the brief statement of

            fact of the case. This letter was pleaded in paragraph 3 of the amended 1st Defendant’s statement

            of defence. And the Plaintiff’s reply state that the Plaintiff’s further contend…

            *Judge wants to read paragraph 3 by herself*

 

Adjourned and resumed at 3.50pm.

 

Ronny: I’m also referring my Lady to paragraph 2 of the Plaintiff Reply to the 1st Defendant’s Amended

            Defence T(21) 52 of 2005 where the letter was pleaded – “that letter does not make any

            difference to the Plaintiff’s contention at all”. This witness is the author to the letter and must be

            tendered through this particular witness. As to how the defendant have conducted the trial, I

            think it is for submission at the end of the day. Much obliged.

 

Judge: You want further submission on this?

 

Datuk: I leave it to your Ladyship’s discretion.

 

Judge: Since the letter is pleaded, the defence is allowed to examine the witness.

 

Ronny: I’d like this letter to be admitted as Exhibit D2 and I have no further examination in chief in this

            case.

 

Judge: The court still does not know the content of the letter. This will be exhibit D2.

 

Ronny: My Lady, if I may just ask the last question. Encik Abdul, if you look at the last paragraph of

            D2, can you confirm that that is your finding?

 

Abdul: Yes.

 

Ronny: I have no more further examination in chief on this witness.

 

Judge: What is your finding?

 

Ronny: Encik Abdul, can you please read to the court of the finding as stated in your letter?

 

Abdul: *Reads out letter (D2)*

 

Ronny: That is all.

 

Datuk: Since the defence is only putting their case now, I’d like to reserve my cross examination to

            tomorrow morning.

 

Judge: To tomorrow morning at 9.00 am.

 

Adjourned till tomorrow morning at 9.00am.

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