Apex court dismisses Semantan Estate's request for more judges to hear its appeal bid, hearing set for Nov 6

• The company is appealing against a Court of Appeal ruling in June that overturned a High Court order to register the 263-acre Duta Enclave to Semantan Estate. The appellate bench had also unanimously dismissed Semantan Estate's bid to physically acquire the land and its buildings.

KUALA LUMPUR (Oct 15): Semantan Estate (1952) Sdn Bhd's request for an enlarged panel of more than five judges to hear its motion for leave to appeal its case has been dismissed by the Federal Court.

Nov 6 has been set for the hearing of the company's application for leave to appeal, a file search by The Edge found.

The company is appealing against a Court of Appeal ruling in June that overturned a High Court order to register the 263-acre Duta Enclave to Semantan Estate. The appellate bench had also unanimously dismissed Semantan Estate's bid to physically acquire the land and its buildings.

The liquidated company, through its lawyers Messrs Chooi & Co, had written to the Federal Court on Oct 6, stating they had received instructions from their client to request for a larger bench to hear the motion for leave to appeal.

The lawyers argued that the Semantan Estate case is "one of the most prominent cases concerning the constitutional right to property which is of crucial importance to Malaysians".

They said the pre-Merdeka land case has been heard at the High Court, Court of Appeal, and Federal Court "several times over the years, with the recent ones in 2012 and 2019 at the apex court".

"The background of this case has not happened before and is unprecedented. Hence, it warrants an enlarged bench to hear the matter," the letter from Chooi & Co stated.

Semantan Estate has posed 26 questions of law to the Federal Court for determination, which touch on:

• Article 13 (concerning the right to property, alteration of a superior court order, and issues relating to the Government Proceedings Act 1956 (GPA) and Specific Relief Act 1950 (SRA));
• Section 8 of the SRA—specifically on whether the government can be ordered to return possession or transfer land; and
• adequate compensation.

In civil cases before the Federal Court, leave (permission) must be obtained under Section 96 of the Courts of Judicature Act for the appeal's merits to be heard, specifically on novel questions of law that need to be decided.

The central issue is whether the company is allowed to reacquire the land which courts, since 2009, have ruled the government trespassed upon during its acquisition in 1956.

Application to be heard before three-member bench

Federal Court deputy registrar Wan Norazimin Kassim, in a letter dated Tuesday (Oct 14), indicated that Semantan Estate’s application for an enlarged bench of more than five judges is not allowed.

“Hence, the motion (for leave) would be heard before a three-member bench,” she said in the letter that was sighted following a file search.

The appellate bench that overturned the High Court's ruling was composed of Datuk Lee Swee Seng, Datuk Wan Ahmad Farid Wan Salleh, and Datuk Azimah Omar.

Wan Ahmad, who is now the Chief Justice, had noted in his supporting judgement to Lee’s main judgement that the 2009 High Court decision by then judicial commissioner (JC) Zura Yahya—which ruled the government had trespassed on the land—did not make any order for the impugned land to be transferred to Semantan Estate.

“There is no evidence before this court that Semantan Estate had sought clarification from the learned JC as to whether the impugned land ought to be transferred and registered by the Federal Land Commissioner to Semantan Estate as a consequential order," the judgement stated.

"In short, there was no attempt made to ‘work out’ the order so as to give effect to the initial order. It is to be recalled that the ‘liberty to apply’ rule for a consequential order is implied in every court order. Semantan Estate did not exercise this right at the material time,” Wan Ahmad, who is now the Chief Justice, had said.

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