Semantan Estate to immediately appeal to Federal Court following Duta land loss

• Biswas said Tuesday’s Court of Appeal decision does not follow the 2009 High Court decision that was upheld by the Court of Appeal and Federal Court—namely that the company "retains beneficial ownership of the land".

PUTRAJAYA (June 24): Fresh from losing the battle over the 'Duta enclave' land title, Semantan Estate (1952) Sdn Bhd plans to turn to the Federal Court to appeal against Tuesday’s decision that went in favour of the federal government.

Datuk Cyrus Das, the lead counsel for Semantan Estate, and liquidator Dr John Lai for Semantan Estate, which is under voluntary liquidation, said the application seeking permission to appeal would be filed immediately.

For civil cases at the Federal Court, leave (permission) has to be gained first before the apex bench can consider the novel questions of law posed by the appellant. It is only after leave is obtained that the merits of the appeal will be heard.

Ira Biswas and Janet Chai Pei Ying, who appeared with Das, also said the application to seek leave to appeal would be filed immediately.

Biswas said Tuesday’s Court of Appeal decision does not follow the 2009 High Court decision that was upheld by the Court of Appeal and Federal Court—namely that the company "retains beneficial ownership of the land".

Biswas claims that the 2009 judgement by Judicial Commissioner Zura Yahya stipulated that the company retains beneficial ownership of the land in Kuala Lumpur. However, Court of Appeal judge Datuk Wan Ahmad Farid Wan Salleh in his supporting decision on Tuesday said that Zura had said and noted beneficial interests.

“Beneficial ownership” is maintaining the rights and benefits associated with owning a property or asset, even if the legal title is held by someone, while “beneficial interests” means a right to income for the use of the land.

The three-member bench, led by newly elevated Federal Court judge Datuk Lee Swee Seng, had allowed the federal government's appeal that the Federal Territories Land Registrar need not transfer the land title owned by the government back to Semantan Estate, as decided by the High Court last Aug 7, and dismissed the company’s appeal over a stay of that decision.

The unanimous appellate bench also dismissed Semantan Estate's appeal for a return of the land, including the government buildings on it.

Company to file stay of High Court valuation compensation determination

The bench on Tuesday ordered that compensation over the valuation of the land be calculated by both the government and the company, as the acquisition was deemed illegal from 1956, and this valuation report has to be submitted before the High Court within 90 days of Tuesday’s judgement.

The valuation report is to be prepared based on the 1956 market rate for the former rubber plantation with 6% interests per annum until the sum is paid.

The bench also said that the calculation of mesne profit, where the proceeding is currently being held at the Kuala Lumpur High Court, will continue.

Das told reporters they would also file a stay application on the Court of Appeal’s decision for the proceeding to calculate the compensation.

“This follows that they want the leave to appeal matter before the apex court to be heard first,” the senior lawyer said, adding that there is another legal battle to be fought at the Federal Court.

(Read also: Govt wins Duta land dispute, retains title but ordered to compensate)

Lee’s comment on the case

Lee, in ending his broad grounds, said this case is a timely reminder that problems do not disappear into thin air, and that some problems are like the probable tin can that has been kicked down the road.

“There is a cost to be paid for indecisiveness, and sometimes future generations are made to bear what previous generations have not adequately addressed. Looking back at the whole broad picture, this dispute could have been resolved much earlier with all due diligence from all parties. As Virginia Satir, a well-known psychologist, says, ‘A problem is not a problem, but coping is a problem’.

“May this judgement provide to some extent the certainty and the ability to cope with the consequences and fallout of one's decision, though [it was] first taken some seven decades ago,” he said.

The problem began following the acquisition of the land pre-Merdeka in 1956, which was enlarged and then reduced to the present disputed 263.272 acres.

The government paid RM1.325 million for the acquisition.

From rubber estates, Lee described the land had now become a ‘township’, where the various government buildings worth billions of ringgit now include the government office complex that houses the Inland Revenue Board headquarters, as well as the National Examinations Syndicate, Shariah Court Complex, the Federal Territory Mosque, the National Archives and the Tun Razak Hockey Stadium.

Other structures are the National Tennis Complex, Integrity Institute of Malaysia (IIM), Malaysian Anti-Corruption Academy, Institute of Islamic Understanding Malaysia (IKIM), and the Duta bus terminal. Some pockets of land have yet to be developed.

There is also the main road and overhead bypass from Jalan Duta (now known as Jalan Tuanku Abdul Halim) leading to Segambut on the land.

At the High Court hearing in 2009, it was decided that the federal government had trespassed on the land, and this decision was upheld by the Court of Appeal and Federal Court in 2012.

A review sought by the government in 2017 over the Federal Court 2012 decision also failed.

This led to Semantan Estate filing a three-pronged approach, namely to regain the land title from the government through the Federal Land Registrar, seeking to regain the land plus the buildings on it, and gain assessment for mesne profit.

While its attempt to recover the land and its buildings failed in 2021’s judicial review, on Aug 7 last year Semantan Estate managed to get a mandamus order from an originating summons for the land title to be registered back to the company.

However, this was overturned following Tuesday’s decision, and the appellate court dismissed Semantan Estate’s appeal over the judicial review.

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