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2017 MarsdenLR 2325
HIGH COURT MALAYA JOHOR BAHRU
EDDY SALIM & ORS – Appellant
Versus
ISKANDAR REGIONAL DEVELOPMENT AUTHORITY & ORS (NO 2) – Respondent
[Suit No: 22NCVC-158-06/2013]
The balance of convenience and protection of customary rights justifies granting injunctive relief despite the absence of an undertaking as to damages.
Headnote:The court analyzed the grounds for injunctive relief, requiring that a legitimate serious issue exists to be tried, weighing the balance of convenience, and considering public interest alongside plaintiffs' customary rights over land. The court found sufficient justification for granting an injunction based on the risk of irreparable harm to customary territory without a waiver for the undertaking as to damages. "For the above reasons I grant order in term of prayers 1 and 2 of the plaintiffs' application with cost in the cause."
| Table of Content |
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| 1. application for injunctory orders and description of the claim. (Para 1 , 2 , 3 , 4) |
| 2. plaintiffs assert customary rights over disputed lands. (Para 5) |
| 3. criteria for granting injunctive relief, emphasizing serious issues and balance of convenience. (Para 6 , 23) |
| 4. criteria for granting injunctions established. (Para 7 , 8 , 9 , 12) |
| 5. plight of indigenous rights affects the case materially. (Para 13 , 14 , 15 , 21) |
| 6. discussion on the balance of convenience relevant to granting the injunction. (Para 16 , 20 , 31 , 38) |
| 7. defendants' jurisdictional arguments regarding regulatory compliance stressed. (Para 25 , 37 , 42) |
| 8. court's decision to grant injunctive relief based on balance of convenience. (Para 45) |
[1] This is an inter parte hearing of an application by the plaintiff against the 7th and the 9th defendants for inter alia, the following injunctory orders:
(a) An Order that the 7th and/or the 9th defendants by themselves and/or their servants, agents, nominess howsoever be restrained from continuing to carry out any type of works (including but not limited to construction and/or land reclamation works) within the area claimed by the plaintiffs in the instant action marked as exhs "KOAS-2" and "KOAS-3" in the statement of claim filed in the suit herein and attached hereto as appendix 1 and particularly the areas marked as A, B and C in appendix 2 hereto, pending the final determination of the suit filed herein;
(b) An Order that the 7th and/or the 9th defendants by themselves and/or their servants, agents, nominess howsoever be restrained from commencing any type of works (including but not limited to construction and/or land reclamation works) within the area claimed by the plaintiffs in the instant action marked as exhs "KOAS-2" and "KOAS-3" in the statement of claim filed in the suit herein and attached hereto as appendix 1 and particularly the areas marked as A, B and C in appendix 2 hereto, pending the final determination of the suit filed herein.
[2] In a nutshell, the 1st prayer is to restrain the 7th defendant and the 9th defendant from continuing to carry out any type of works within the areas claimed by the plaintiff and the 2nd prayer is to restrain the 7th and the 9th defendants from commencing any types of works within the areas claimed by the plaintiffs.
The Background Facts
[3] The plaintiffs filed an action against the defendants seeking declaration that (among others) the plaintiffs have customary rights over the lands at Kampung Temon and Kampung Bakar Batu (hereinafter referred to as "the said lands") and specifically in respect of the 7th to the 10th defendants a declaration that alienations of the said lands to the 7th to the 10th defendants are null and void. The plaintiffs also seek a declaration that the acts of the 7th to the 10th defendants amount to trespass and pray for an order for damages.
[4] After the filing of the writ, it came to the plaintiffs' notice that (among others) significant reclamation works have continued to take place in their customary lands and customary waters (collectively referred to as customary territory) which is the subject matter of the dispute. The plaintiffs then filed this application in encl 63 for injunctive relief. The plaintiffs alleged that the 7th and the 9th defendants had acted in a manner that is detrimental to the subject matter of the plaintiffs' claim. The plaintiffs had identified the disputed areas and alleged that the 7th and the 9th defendants acted in destructions of the plaintiffs' customary territory.
[5] The defence put forward by the 7th and the 9th defendants is that they are the registered owners of the disputed areas and any reclamation and or earth works at the disputed areas are done in compliance with regulations of the relevant authorities.
Note: The background facts culminating to the present application can be found at paras 5 to 12 of the plaintiffs' 1st affidavit.
The General Principles
[6] It is trite law that a judge hearing
