The sanctity of a court order must be observed, and a collateral attack on such an order without proper procedure is invalid.

[1] The two appeals before us, relate to the issue on the sanctity and validity of an Order of the High Court at Pulau Pinang made in 1995 (the 1995 Order). The Order was perfected and not appealed against or set aside. The Order was challenged on the basis that, it was made in excess of jurisdiction, hence liable to be set aside. This challenge was brought upon as a defence to a trespass suit filed about ten years after the Order was made. The High Court had allowed the trespass suit and dismissed the challenge made on the 1995 Order, but it was reversed by the Court of Appeal.

[2] The appeals emanate from a claim of trespass filed by the plaintiff Ann Joo Steel Berhad on 22 April 2010, against Tenaga Nasional Berhad as the 1st defendant, Pengarah Tanah dan Galian Negeri Pulau Pinang, the 2nd defendant and Mohd Noor Rejab, the officer of Pengarah Tanah dan Galian Negeri Pulau Pinang, the 3rd defendant.

[3] For convenience, we will refer the parties in this judgment as they were referred to in the High Court.

The Background

[4] The background facts to these appeals begin with an application by the predecessor in title of the 1st defendant, Lembaga Letrik Negara (LLN) in the year 1962, to reclaim 48 acres of land from the sea (the Reclaimed Land). The State Government of Penang allowed the application of LLN. The land was reclaimed for constructing Prai Power Station which was completed in 1967. LLN and later the 1st defendant had occupied the Reclaimed Land pursuant to a Temporary Occupation License (TOL) which had been renewed annually between the years, 1961 and 2001.

[5] The Reclaimed Land is adjacent to Lot 78 Seberang Perai Tengah, Bandar Perai, Pulau Pinang (Lot 78). Lot 78 then belonged to Prye (Penang) Syndicate Limited (Prye). The plaintiff (formerly known as Malayawata Steel Limited) purchased Lot 78 from Prye. On 10 December 1970, the Collector of Land Revenue Butterworth had determined and set out the boundary of Lot 78 in Plan No 544, in accordance with Traverse Mark. According to the plaintiff, the Traverse Mark (TM) method had resulted in a loss of land area of the plaintiff as opposed to measurement following High Water Mark (HWM). The plaintiff claimed it would obtain an additional estimated area of 7.5 acres (the Disputed Land) if HMW method is to be employed. Since TM was used, this part of the land remained as state land.

[6] Dissatisfied with the Collector's Decision, on 12 March 1971, the plaintiff applied to the Director of Land Titles, pursuant to s 28(1) and s 30(3) of the National Land Code (Penang and Malacca Titles) Act 1963 [Act 518] to redetermine the measurement of Lot 78. On 22 July 1985, the Deputy Director of Titles, Pulau Pinang (the Deputy Director) affirmed the decision of the Collector (the First Decision). The plaintiff then appealed to the Land Titles Appeal Board (the Appeal Board), under s 15 of Act 518. It was dismissed, on the basis that the First Decision was a final decision under s 27(3) and s 28(3) thus not appealable under s 15 of Act 518. The plaintiff then filed an appeal against the decision of the Appeal Board to the High Court pursuant to s 19(1) of Act 518.

[7]The High Court heard the plaintiff's appeal and issued the 1995 Order on 22 September 1995. By that Order, the High Court remitted the matter to the District Commissioner of Land Titles (Pesuruhjaya hak milik Tanah Daerah) for it to be determined in accordance with the law. No appeal was lodged by any of the parties against the 1995 Order. Instead, the Deputy Director complied with that Order and proceeded to conduct an enquiry.