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Empty promises
24/06/2008 The Star Articles of
Law by BHAG SINGH
Promises made by government officers may have little or no value when it
comes to the issue of land.
A PROMISE made by one person to another that is acted upon often leads to a
binding arrangement. It is an arrangement that not only creates rights but
can also be pursued and enforced.
But this is not always the case nor is it an absolute rule. Promises made by
servants of the state to citizens, specifically on matters related to land,
may have little value or no value at all. When this happens, there may be no
option but to accept as a fait accompli what has transpired.
This state of affairs can arise in situations where individuals have been
occupying a piece of land. It may be state land or private land. For one
reason or another, the person may be asked to move. In the process,
assurances are given that he will be given land elsewhere.
He may or may not then be given land to live on. Where land is made
available for the purpose and pursuant to the promise made, he may at least
feel assured that the promise is being pursued, if not carried out. But if
nothing else happens, his dream may vanish when he is asked to move on.
A scenario
An example can be seen in the case of the Government of the State of Negri
Sembilan & Anor v Yap Chong Lan & 12 Ors, which also involved a company
called Lesco Development Corporation Sdn Bhd. This is a story of individuals
who were dislocated twice from the land where they were staying, and were
let down in the expectations that had been created.
Yap Chong Lan and the others were the aggrieved individuals who, with many
others, lived in houses which they had built on land in Rahang Kecil,
Seremban. They paid ground rent to Seremban Enterprise Ltd, the registered
proprietor.
In April 1972, they were informed that a portion of the said land had been
acquired by the state government for a road-widening project. The aggrieved
individuals appealed to the collector for time to vacate and for low-cost
houses on state land.
In due course, they were asked to attend an inquiry before the collector
which they did, with regard to compensation as a result of the acquisition.
They were offered, and they agreed to accept, varying amounts by way of
compensation and were also allotted lots of land in Ulu Temiang for
resettlement.
There was undisputed evidence before the court that they had appeared before
the State Land Committee and submitted applications for state land in that
area. Such events would no doubt create expectations that they would be
allocated a piece of land to live on.
The letdown
But even as they were led to believe that they were going to be the owners
of the land, the powers that were in charge of land administration and
alienation, caused the land to be alienated for a term of 99 years to a
company called Lesco Development Sdn Bhd.
Lesco was to develop the land in question into a housing estate and
accordingly called on the aggrieved individuals and the other families
settled there to deliver vacant possession of the parts occupied by them and
demolish the buildings erected there. Each of them were offered compensation
and an option to purchase a low-cost house at a reduced price, among others.
Several families accepted the offer but the aggrieved individuals were
adamant and refused to accept the offer. They instituted proceedings to
advance claims against the state government of Negri Sembilan and Lesco
Development Sdn Bhd. They claimed to have a right to stay on the land.
Temporary relief
In the High Court, Justice Peh Swee Chin found that the collector did
intimate to the aggrieved individuals that they would be allowed to remain
on the land on a permanent basis and that they would be given leases for a
term of 99 years in respect of the lots allocated to them.
He went on to decide that the aggrieved individuals had at all times been
licensees of the land occupied by them, coupled with an equity. And that
Lesco had notice or actual knowledge of the circumstances under which the
aggrieved persons moved to Ulu Temiang and built their houses on the land in
question, and that an equity arose in consequence.
To satisfy this equity, he ordered Lesco Development Sdn Bhd to pay monetary
compensation in the sum of RM25,000 to each of the aggrieved persons and
that on such payment, the aggrieved persons should vacate the land within
two months and make consequential directions for the demolition of their
houses and the expenses in connection therewith.
The response
The state government and Lesco Development Sdn Bhd were not happy with the
decision. The matter ended up in the Federal Court where the niceties and
technicalities of the law were entirely against the aggrieved individuals in
their effort to obtain what they believed they were entitled to.
Abdoolcader F.J, in handing down the decision of the Federal Court, based
his decision in part on the fact that the collector had no power to bind the
state authority in making the commitment which had been made.
The judge reasoned along the lines that it was the state authority which had
power to alienate land. Therefore he took the view that the collector had no
authority to give the assurance that was given. He went on to say:
“The state authority may under the provisions of section 13 delegate the
exercise or performance of any of its powers or duties to the collector, and
on the evidence of the Acting Director of Lands and Mines. The collector has
? with the concurrence of the District Land Committee only been delegated
with authority to approve the conversion of land not exceeding three acres
in area for agricultural purposes, and he has no power to alienate land
regardless of acreage for housing.”
The judge took the view that Section 48 prescribed that no title to state
land shall be acquired by possession, unlawful occupation or occupation
under any licence for any period whatsoever, and section 78(3) provided that
the alienation of state land shall take effect on the registration of a
register document of title.
And as Lesco Development Sdn Bhd had been alienated the land, they were
rightfully entitled to the ownership and the consequential rights.
Conclusion
Whilst the statements made by the judge are based on the law, the reality is
that to the ordinary individual, the collector and other senior officials in
the Land Office are the agents of the land authorities to whom they have
access.
How is an individual to know that he is not to rely on what he is told by a
government officer who holds such a position?
Is it fair to expect the ordinary individual to know that it is the state
authority and not the collector who decides?
And how is the individual to know who decides and who conveys the message to
the public?
Of course, on the basis of the technicality of the legislation, the decision
of the Federal Court would represent the existing law though it may be open
to criticism. Where such a situation arises, the welfare of the individual
can only be protected by judicial activism or legislative intervention.
The latter approach would involve a complex and tedious task which in our
context is usually rare. In the former approach, the following statement by
Dr Oliver Wendell Holmes would be worth reflecting upon: “Of relative
justice, law may know something. Of expediency, it knows much. With absolute
justice, it does not concern itself.” |
