Federal Court Must Overrule High Court Decision Declaring Semantan Owners of Duta Enclave

We refer to the report Govt wins Duta land dispute, retains title but ordered to compensate [The Edge, 30 July 2025]

The Duta land dispute between the Government and Semantan Estate (1952) Sdn Bhd [Semantan] has its roots in pre-Merdeka Malaya, around 69 years ago.

In 1956, the government acquired around 250 acres of land owned by Semantan for public purposes under the Land Acquisition Enactment. An enquiry was held to determine the quantum of compensation. The Collector awarded RM1,320,500 and Semantan wanted RM 3,250,000. They accepted the award under protest. They did not object to the acquisition but only disputed the amount of compensation awarded. Pursuant to the powers given to him under the Enactment, the Collector took possession of the acquired land on 3/12/56.

After the Collector had taken possession, the parties agreed on the acres of land to be acquired which was different from that in the plan shown during the enquiry, and to waive irregularities in the acquisition process. Based on the agreement, on 29/5/59, a reference was made to the High Court at the request of Semantan to decide the amount of compensation to be paid for acquiring the agreed acres of land. The Court dismissed the reference on the ground that it did not comply with the requirements of the Enactment and therefore had no jurisdiction. Semantan took no steps to appeal against the Court decision, as suggested by the Collector.

0n 18/1/63, the Ruler-in – Council granted the acquired land to the Federal Land Commissioner, and separate titles were issued and registered on 20/2/63.

After more than twenty years, Semantan applied to the High Court for an order requiring the Collector to complete the acquisition proceedings by holding an enquiry and determining the amount of compensation to be paid. The application was struck out  and the appeal to the Supreme Court dismissed. The Supreme Court held: “There must be an end to litigation, and the process of the Court should not be allowed to be abused. Under the circumstances, he (Semantan) must be regarded as having elected to accept the status quo since he did not enforce his right by appealing against the decision of the High Court in declining jurisdiction. He must take the consequence of his election.”

The matter should have ended there, with the Supreme Court’s decision that “there must be an end to litigation”, but it did not. Three years after the Supreme Court dismissed its appeal, Semantan filed a writ against the government alleging continuing trespass since 3/12/56, the date the Collector notified them that he had taken possession of the land pursuant to the powers given to him under the Enactment. For over three decades, since the government taking possession of the acquired land and developing it, there was no allegation of trespass by Semantan which was only claiming higher compensation. Having failed, due to their own fault, to get that, they filed a claim in trespass, although there were existing legal precedents holding that such a claim was not maintainable.

The government applied to strike out the writ and Justice Dr. Zakaria Yatim, relying on the Supreme Court decision, allowed the application. In his written grounds of judgment, he stated that it was time-barred as well as estopped by the doctrine of res judicata. He also held that, since the Collector’s award was not set aside, the government was in lawful possession.  His decision was reversed by the Federal Court without giving reasons. It is incumbent on the Federal Court to give cogent reasons for reversing the High Court decision striking out the Writ, which is based on the judgment of the highest court then.

The case was then heard by Judicial Commission Zura Yahya who decided that the award was invalid and, therefore, the government had remained in wrongful possession of the land. The Court of Appeal upheld her decision and the Federal Court denied leave to the Government to appeal. None of these courts considered the powers of the Collector, under the Enactment, to take possession of the acquired land upon completion of the enquiry in normal cases, and, in urgent cases, even before the enquiry. They also ignored precedents on land acquisition cases which unequivocally established a land owner cannot claim damages for trespass and must adopt the procedure specified by the Enactment.

1. Ng Chee Keong and Anor v Lembaga Letrik Negara and Anor [1991] 3 CLJ (Rep) 323, approved and applied by Court Appeal in Konsortium Lebuhraya Utara-Timur Sdn Bhd v Liew Choong Kin [2018] 6 CLJ 217.

2. Mohideen Abdul Kader, Duta Enclave Case Saga: Manifest Miscarriage of Justice [2025] 6 CLJ I]

The recent decision of the Court of Appeal is on the enforcement of JC Zura’s declaratory judgment. It did not consider the issue whether her judgment was flawed for being in conflict with the statutory provisions in the Enactment and established precedents cited above. Unless overruled, her judgment, affirmed by the previous Court of Appeal, will create uncertainty in law. Therefore, the Federal Court, on its own accord, or on the application of the Attorney General Chambers or the Bar Council, should review and overrule the impugned decision. The Federal Court has inherent powers under Rule 137 of the Rules of the Federal Court to make any order as may be necessary to prevent injustice.

Read more here:
https://consumer.org.my/wp-content/uploads/2025/09/8-Sept-2025-Duta-Enclave.pdf

Mohideen Abdul Kader
President
Consumers Association of Penang (CAP)

Letter to the Editor, 8 September 2025