Court held injunctions against government departments are not permissible. There are serious issues to be tried regarding customary land rights; however, damages are deemed adequate if plaintiffs prevail.

JUDGMENT

Mohamad Abazafree Mohd Abbas JC:

Introduction

[1] This is an application by Plaintiffs vide Notice of Application dated 11 March 2021 for injunction orders under of O 29 r 1 and r 4 Rules of 2012 ("ROC").

[2] Initially an ex parte injunction was granted by this Court on 18 March 2021 and expired on 8 April 2021. Pending this application, this Court had on 25 April 2021 ordered the interim injunction be extended.

[3] In the Notice of Application, the Plaintiffs ask the following reliefs;

(a) An injunction to stop and/or restraint all the Defendants and/or their servants and/or agents from conducting all activities of mining, logging and plantation within the vicinity of the customary land of Orang Asli Kg Kelaik pending the disposal of their actions against all Defendants;

(b) An injunction to stop and/or restraint all the Defendants and/or their servants and/or agents from performing any secondary activities of mining, logging and plantation within the vicinity of the customary land of Orang Asli Kg Kelaik pending the disposal of their actions against all Defendants;

(c) An injunction to stop and/or restraint all the Defendant 14 and/or their servants and/or agents and/or with assistance and advice of Defendant 12 and 13 from approving and/or granting any license involving the said customary land and it's vicinity pending the disposal of their actions against all Defendants;

(d) An injunction to stop and/or restraint all the Defendants and/or their servants and/or agents from any activity to demolish the said land of any trees and/or the orchard and/or the adjacent forest and/or the grave and/or buildings within the vicinity of the customary land of Orang Asli Kg Kelaik pending the disposal of their actions against all Defendants;

(e) An injunction to stop and/or restraint all the Defendants and/or their servants and/or agents from any activity that could contaminate the rivers and its' sources on the said land; and

(f) An injunction to stop and/or restraint all the Defendants and/or their servants and/or agents from trespassing and conducting any logging, mining, plantation and/or commercial activities for monetary gain or any businesses on the said land.

Factual Background

[4] The relevant facts are as follows;

(a) The Plaintiffs are member of Suku Kaum Temiar aboriginal people and are filing this action on behalf of themselves and other residents of Kampung Kelaik, Pos Blau, Gua Musang or Kampung Cabil, Pos Blau, Gua Musang;

(b) Suku Kaum Temiar residing within the vicinity of Native Customary Land of Kg Kelaik and they are known as "Orang Asli Kg Kelaik";

(c) The Plaintiffs claimed that the native customary land is their ancestral land which they depended to forage for their livelihood in accordance with the tradition. The Orang Asli Kg Kelaik have occupied the customary land and have enjoyed such freedom of livelihood within the vicinity of the customary land since time immemorial;

(d) The Plaintiffs claimed the total area of their native customary land are 8923.9 hectares;

(e) However, according to Affidavit in Support in encl 56 and 57, approximately only 28.002 hectares within the area of Kg Kelaik by virtue of Pelan Warta PW 1141 has been reserved as customary land;

(f) The remaining area has been declared as Forest Reserve under s 5 of Forestry Enactment 1939 by virtue of Government of Kelantan Gazette dated 11 October 1990 and is known as Hutan Simpan Sungai Betis;

(g) Certain parts of the remaining portions of the Hutan Simpan Sungai Betis were given to various Defendants in this action for purpose of mining, plantation and timber activities ("commercial activities");

(h) According to the Plaintiffs, the reserve of the customary land by Defendant 14 was done without the knowledge and consultation with Orang Asli Kg Kelaik and this had effected their livelihood.

[5] Accordingly, the Plaintiffs have filed a writ inter alia for the following reliefs;

a) A declaration that Orang Asli Kg Kelaik is the beneficial owner of the customar