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 The Highland Towers Judgment -
 Civil Suit No. S5-21-174-1996

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9th & 10th Defendants

The Plaintiffs Claim

The plaintiffs' claim against the 9th and 10th defendants for both negligence and nuisance is based on the following: Firstly, these defendants are and, at all material time, were the owners of the East Stream and responsible for the care and management of this watercourse as well the drainage system in the Highland Towers Site, Arab Malaysian Land and the surrounding areas. Secondly, JPS, as a department of the 9th defendant in charge of drainage and irrigation, had involved itself in the drainage problems of the Highland Towers Project since inception. Thirdly, by the acts and/or omissions of JPs, as disclosed from the chronology of events concerning the development of the Highland Towers Project, these defendants in allowing the 1st, 2nd and 3rd defendants to proceed with the building of Highland Towers and consenting to the issuance of CF for Block 1 & 2 before the drainage issue in the area was settled committed negligence and nuisance resulting in damages to the plaintiffs.

Further, the plaintiffs insist that these defendants as owners and/or occupiers of certain portion of the Arab Malaysian Land had committed the same negligence and nuisance as described above. This allegation is deducted from the following. According to Mr. Navaratnam, when the lands on Highland Towers Site and the Arab Malaysian Land were sub-divided on the application of the 1st defendant, there were areas required for road reserves. Such reserves, upon issue of the individual documents of title subsequent to the sub-division, were deemed to have been surrendered to the State Authority under section 136(2)(a)(ii) of the NLC. And since the State Authority owns the surrendered lands, the plaintiffs insist that the 9th defendant, representing the State Authority, should have taken reasonable care to ensure that drains and retaining walls thereon would not cause damage to its neighbors. This they have failed resulting in damages to the plaintiffs.

Preliminary Points Raised By The 9th & 10th Defendants

Wrong party named

There are a number of preliminary points raised by the 9th & 10th defendants which should be disposed off before this Court ventures into a discussion of the substantive matter. If they are valid, then there is no necessity to proceed further.

The first concerns the citation of the wrong party. Dato Mohd. Zawawi, State Legal Advisor of Selangor, representing the 9th and 10th defendants, contends that there is a difference between the entities: "Government of the State of Selangor" (9th defendant), the "Ruler of the State" and the "State Authority". He supports it with these provisions:

Section 3 of the Water Act reads:

"Subject to the terms of any express grant made by or on behalf of the Ruler of a State, the entire property in and control of all rivers in any State is and shall be vested solely in the Ruler of such State; provided that in the case of lands held by the Government under grant or lease or reserved for a public purpose and maintained by a Government Department, such control may be exercised by the Head of such Department, under the direction of the State Authority (emphasis added)."

This is fortified by section 49 NLC which states:

"Where the shoreline or the bed of any river advances so as to encroach on any alienated land, the area affected by the encroachment shall thereupon cease to form part of that land, and shall become State land; but the boundaries of alienated land shall not (except in circumstances mentioned in paragraph (ii) of the proviso to sub-section 2 of section 353) be affected by any retreat of the shoreline or of the bed of any river (emphasis added)."

Then by virtue of section 16(2) of the NLC:

"Any action suit or proceedings relating to land in which it is sought to establish any liability on the part of the State Authority shall be brought against the State Director in the name of his office (emphasis added)."

By these provisions, Dato Zawawi argues that all rivers (which by definition under the National Land Code includes streams and watercourses) are vested in the Ruler of the State, and the control of them is under the direction of the State Authority, and if any action is to commenced against any party in respect of them it should be the State Director. To support this, the case of Stamford Holdings Sdn Bhd v Kerajaan Negeri Johor & Ors. (1995) 3 CLJ 114 is cited. In that case Mohd Ghazali J. disagrees that a "State Government" is synonymous to a "State Authority". Thus when a State Authority is the responsible party in an action, the correct person to be named as the defendant is the State Director.

I believe that this is the correct approach. But for the purpose of this case, in respect of claims arising out of rivers, streams or watercourses, very little difference is made since the State Director, who is the 10th defendant, is already a party in this action. However concerning matters arising out of the ownership and/or occupier of the surrendered lands, the situation is different. The plaintiffs have not in their pleadings alleged that the 10th defendant is the person being sued for this particular aspect of the claim. The plaintiffs' Statement of Claim repeatedly and distinctively asserts that the 10th defendant is brought in as a party to this suit "by virtue of the fact that the property in stream and watercourses on Arab Malaysian Land and its surroundings is vested in the State Authority of Selangor". Never as a State Director to the surrendered lands.

Thus, based on the aforesaid principle, the claim of the plaintiffs against the 9th defendant must failed in respect of drainage matters but maintainable against the 10th defendant. But for the surrendered lands, the plaintiffs' claim must fail against both these defendants.

Particular Officer or officers not named

The second attack mounted by Dato Mohd. Zawawi is that by the provisions of sections 5, 6(1), 6(4), and 18 of the Government Proceedings Act (GPA) the particular officer or officers in the Government who committed the tortuous wrong must be identified otherwise the claim against the 10th defendant must fail. To comprehend this, pertinent parts of the sections mentioned must be highlighted.

Beginning with, section 5 of the GPA (which provision has been produced earlier but reproduced once more to facilitate easy and quick understanding) states:

" Subject to the provisions of this Ordinance, the Government shall be liable for any wrongful act done or any neglect or default committed by any public officer in the same manner and to the same extent as that in which a principal, being a private person, is liable for any wrongful act done, or any neglect or default committed by his agent, and for the purposes of this section and without prejudice to the generality thereof, any public officer acting or purporting in good faith to be acting in pursuance of a duty imposed by law shall be deemed to be the agent of and to be acting under the instructions of the Government (emphasis added)."

Section 6(1) GPA is as follows:

"No proceeding shall lie against the Government by virtue of section 5 in respect of any act, neglect or default of any public officer, unless proceedings for damages in respect of such act, neglect or default would have lain against such officer personally (emphasis added)."

Section 6(4) GPA requires that:

"No proceedings shall lie against the Government by virtue of section 5 in respect of any act, neglect or default of any public officer, unless that officer was at the material time employed by the Government...(emphasis added)".

Section 18 GPA says:

"Subject to this Act, the written law relating to procedure shall apply to civil proceedings by or against the Government in the same way as to suits between subject and subject."

To strengthen his argument, Dato Mohd. Zawawi cited the case of Haji Abdul Rahman v Government of Malaysia & Anor. (1966) 2MLJ 174 @ 175, where Abdul Aziz J. (as he then was) ruled that sections 5, 6(1), 6(4) of the GPA, "contemplate(s) that the identity of the officer must be ascertained and the liability of the officer must be established before the Government can be made liable".

Mr. Navaratnam refusing to concede brought to my attention the judgment of Chang Min Tat J. (as he then was) in the case of Lai Seng & Co. v Government of Malaysia & Ors. (1973) 2 MLJ 36 @ 38 where, while not disagreeing the need to name the officer involved offers this:

"Section 5 renders the government liable for tort by any public officer. Section 6(1) limits the action to those torts which "would have lain against such officer personally," while section 6(4) defines such public officer as someone employed at the material time by the government and paid out of revenues or appropriate funds. With every respect, it does not seem that on a proper reading, these sections can be construed as laying down strict rule of practice of proceedings against the government, failure to observe which would incapacitate the action. It is correct, I concede, that in an action for tort, the proper defendant is the wrong doer but the person for the acts of the wrong-doer or to whom the liability for injury has passed is also a proper defendant, and for myself, I would adopt the attitude of Viscount Simon,

"the courts before whom such a case as this comes have to decide it as between the parties before them."

in Adams v Naylor which is a case for damages for negligence but which must be read subject to the qualification that since then the Crown Proceedings Act 1947 has come into force."

With the greatest of respect, I cannot quite appreciate the rational behind Justice Chang's view in the aforesaid case, particularly in adopting a single phase of "just between the parties before them", by Viscount Simon in Adam v Naylor (1946) AC 543 to imply, somewhat, that it is permissible to sue the government without any particular officer of the Government being specified. On the contrary, the emphasis by Viscount Simon was on the need to determine the liability of the government officer involved in the negligent act. When this is the requirement then it weights heavily on the need to name the officer or officers involved in the alleged tortuous act before liability can be attributed to the government. This was the approach adopted by Justice Aziz in Haji Abdul Rahman. The rational behind this is best explained by Viscount Simon in Adam v Naylor at page 550 in the following manner:

"The question whether he is personally liable is of course a question for the court on evidence. But it is to me somewhat surprising and, I think, misleading, to refer him, as the evidence does, as the "nominal" or "nominated" defendant. Such language seems to suggest that the issues at trial are really issues between and the Crown and the defendant mentioned as a party merely as a matter of convenience. That is not the true position. The court before whom such a case as this comes have to decide it as between the parties before and have nothing to do with the fact that the Crown stands behind the defendant. For the plaintiff to succeed, apart from the statute, they must prove that the defendant himself owed a duty of care to the plaintiffs and has failed in discharging that duty. Whether the plaintiff in the present case would succeed in doing this it is superfluous to inquire, since the decision goes against them on other grounds; but it may be useful to put on record, in passing, that the success of the plaintiffs would depend on establishing a personable liability of the defendant to them, as the Crown is not is any sense a party to the action."

When there is a necessity to first decide whether a particular officer or officers, as the case may be, is negligent or has committed a tortuous wrong, before the Government can be held liable, then it is absolutely necessary and essential to identify and name the particular officer or officers whom the plaintiff alleged committed the negligence or tortuous wrong. If he is not liable then the government is also exempted from liability. This is the concept of vicarious liability under common law. In this situation we have even statutory provisions to affirm this approach where they continuously assert and declare the need to determine fault of the particular officer before the government can be held liable. This clearly implies a need to identify and distinguish the officer or officers concerned before the plaintiffs can proceed with attributing liability to the government. In the situation at hand, only the drainage and irrigation department was named in respect of matters related to drainage. This is a department operated by officers. Who then was the officer or officers who committed the act or omission? Without him being specified and singled out how could liability against him be ascertained, Without the determination of his liability how could the 10th defendant be found liable. Similarly in respect of other acts or omissions involving the surrendered lands no individual was specified or mentioned, not even the particular department of State's machinery. Such defects, in my opinion are too serious and fundamental for such proceedings against the Government to succeed; it must fail for non-compliance of the legislative provisions laid down for such action against a State Government.

By the reasons above, I hereby rule that the plaintiffs' claim against the 9th and 10th defendants must fail. With this, there is no compulsion for me to proceed into the arena of the substantive issues.

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