Alauddin Mohd Sheriff FCJ:

Background

This is an appeal in respect of a land reference under s. 37 of the Land Acquisition Act 1960 ('the Act') heard and decided by the High Court at Johor Bahru vide Land Reference No. 15-859-1996 on 16 October 1997.

The respondents had earlier filed a notice of motion dated 11 October 2004 (encl. 24(a)) requesting that several documents be produced as additional or new evidence in the appeal.

Enclosure 24(a) was accompanied by a supporting affidavit dated 7 October 2004. There was an affidavit-in-reply by the appellant dated 30 November 2004. The respondents further replied by their affidavit dated 7 January 2005.

We thought it was appropriate to hear encl. 24(a) first and we proceeded to do so.

Enclosure 24(a)

By way of this application, the respondents sought to produce in all six (6) documents as new evidence in the appeal.

It was their contention that these documents were neither known nor available to them or their solicitors at the hearing of the land reference before the High Court. Further, the Federal Court has the inherent powers to hear any application or make any order as may be necessary to prevent injustice under r. 137 of the Rules of the Federal Court 1995. (See Chia Yan Tek & Anor v. Ng Swee Kiat & Anor [2001] 4 CLJ 61 and Megat Najmuddin Dato' Seri (Dr.) Megat Khas v. Bank Bumiputra Malaysia Bhd [2002] 1 CLJ 645).

For ease of reference, we would list out all the six documents. They are:

(i) Joint-Venture agreement dated 17 September 1992 between Netcoin Sdn Bhd and Yayasan Pelajaran Johor (exh. 'SHT1');

(ii) Valuation report by Raja Hamzah & Associates to Yayasan Pelajaran Johor dated 17 July 1992 (exh. 'SHT3');

(iii) Valuation report by Raja Hamzah & Associates to Netcoin Sdn Bhd dated 17 July 1992 (exh. 'SHT4');

(iv) Letter from the State Legal Adviser, Johor (hereinafter "the SLA") to Messrs. Soh Yok Lam & Co. dated 30 April 2003 (exh. 'SHT5');

(v) Letter from YPJ Holdings Sdn Bhd to Messrs. Gunapati Suppiah & Co. dated 25 April 2001 (exh. 'SHT7(A)');

(vi) Letter from Sebana Holdings Sdn Bhd to the Deputy Executive Chairman of YPJ Holdings Sdn Bhd dated 12 April 2001 (exh. 'SHT10').

The learned SLA, who appeared for the appellant argued that, in so far as these documents are concerned, they are not new evidence. As a matter of fact, they were available to the respondents at the hearing of the land reference before the High Court.

For instance, exhs. 'SHT1, 3 and 4' were available to the respondents but they failed to adduce them before the High Court.

The valuation reports by Raja Hamzah & Associates were not specifically prepared for the purpose of the land reference under the Act but more for the purpose of reflecting on the commercial viability of the scheduled land in other ventures.

Exhibit 'SHT5', the letter from the SLA, was written under a 'without prejudice' cover and it was therefore a 'privileged' document and no permission was obtained from the SLA to produce them (see Malayan Banking Bhd v. Foo See Moi [1981] 2 MLJ 17 and ss. 126 and 129 of the Evidence Act 1950).

It was further argued by the learned SLA that the respondents have failed to satisfy this court that the learned trial Judge's decision had occasioned any injustice to them to enable this court to exercise its discretion to invoke its inherent powers under r. 137 of the Rules of the Federal Court 1995.

On the contrary, the learned trial judge's decision was very much in the respondents' favour and it is their duty to defend it.

Having heard submissions from both parties, we were inclined to agree with the submission of the learned SLA that the documents sought to be produced by the respondents are not new evidence as such but were evidence available to them at the hearing of the land reference before the learned trial judge but never produced.

On the exercise of our discretion under r. 137, we share the view of the learned SLA that the respondents have failed to satisfy us that the trial j