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2013 MarsdenLR 1251
COURT OF APPEAL, PUTRAJAYA
THE STATE GOVERNMENT OF SABAH – Appellant
Versus
SIPADAN DIVE CENTRE SDN BHD & ORS – Respondent
[Civil Appeal No: S-01-742-2010]
Illegal occupation of state land bars claims of legitimate expectation; public authorities are not bound by unambiguous representations when land use contravenes statutory provisions.
Headnote:(A) Sabah Land Ordinance (Cap. 68) - Section 28 - Protected Areas and Protected Places Act 1959 - Breach of legitimate expectation and tort of trespass to goods and property - Plaintiffs operated dive resorts on Sipadan Island claimed damages for unlawful eviction - Court found no unambiguous representation by defendant to permit plaintiffs' presence - Claim for reasonable notice to wind down business rejected, citing illegal occupation of state land. (Paras 4, 23, 29)
(B) Principles of legitimate expectation - Established when clear representation made by public authority creates an expectation of certain conduct or consultation. (Paras 9, 12)
Facts of the case:
The plaintiffs were dive resort operators on Sipadan Island since the 1990s. They were ordered to cease operations and demolish their facilities due to directives concerning conservation and state obligations. The High Court initially ruled in favor of the plaintiffs, allowing claims of legitimate expectation and trespass.
Findings of Court:
The court overturned the High Court's ruling, determining that the plaintiffs had no lawful claim or expectation due to their illegal occupation of the state land.
Issues: Whether the plaintiffs had a legitimate expectation that the Sabah Government would consult and notify them before eviction; whether their claim for reasonable notice was valid despite their illegal status on the island.
Ratio Decidendi: The court concluded that the plaintiffs could not claim legitimate expectation or rights regarding their occupation of the island, as their presence was unlawful under the Sabah Land Ordinance. Any representations made did not confer legal rights.
Result: Appeal allowed; High Court's orders set aside.
| Table of Content |
|---|
| 1. legitimate expectation claimed by defendants. (Para 4 , 5 , 22) |
| 2. vagueness of legitimate expectation claim addressed. (Para 8 , 11 , 12) |
| 3. court observed no right to remain due to illegality. (Para 10 , 15) |
| 4. notifications about vacating the island were issued. (Para 18 , 19 , 20) |
| 5. conclusion: appeal allowed; decision set aside. (Para 21) |
[1] In this appeal, on 28 September 2012, after hearing submissions, we reserved judgment.
[2] We now give our judgment.
[3] We are allowing the appeal with costs.
[4] The respondents'/plaintiffs' cause of action against the Sabah State Government (the appellant/defendant) is for breach of legitimate expectation and the tort of trespass to goods and property.
[5] The agreed facts of the case are as set out in the grounds of judgment of the learned High Court Judge. They are as follows:
(1) Sipadan Island has been reserved as a Bird Sanctuary under s 28 of the Land Ordinance (Sabah Cap 68) since 1933 by virtue of Gazette Notification No 69/1933.
(2) 1st to 4th plaintiffs are companies duly incorporated in Malaysia, operating and running resorts with dive facilities complete with full board and lodging at their respective sites on Sipadan Island since 1990s until 1 January 2005.
(3) The defendant had as early as 1992 directed the operators to stop erecting further building and structure on the Island.
(4) On 6 October 1994, the 1st plaintiff wrote a letter to Datuk Tham Nyip Shen the then Minister of Tourism and Environmental Development in his personal capacity, in respect of the position of the operators on the Island.
(5) On 10 February 1995, the defendant issued a show cause letter to the 2nd plaintiff informing the 2nd plaintiff that its buildings were erected and/or constructed on a reserved State land and were given fourteen (14) days to response thereof.
(6) On 24 September 1997, the Island was declared as a protected area under the Protected Areas and Protected Places Act 1959 and therefore all movement and conduct on the Island since then are under the control of Biro Keselamatan Negara (BKN).
(7) In compliance with a directive from BKN through its letter dated 8 November 1997, the 1st and 4th plaintiffs together with Borneo Divers & Sea Sports (Sabah) Sdn Bhd and Pulau Sipadan Resort & Tours Sdn Bhd incorporated the 5th plaintiff to handle all matters related to the dive activities with BKN on behalf of the six dive operators on Sipadan Island.
(8) Since 1997, the 1st and 4th plaintiffs including Borneo Divers & Sea Sports (Sabah) Sdn Bhd and Pulau Sipadan Resort & Tours Sdn Bhd have been dealing with BKN in all matters pertaining to the number of divers/tourists and workers staying on the island including the number of structures/buildings that could be set up/remained.
(9) By a letter dated 16 May 1998, BKN informed the 5th plaintiff and others directing that divers/tourists as well as workers gradually be reduced according to requirements stated in the letter.
(10) By a letter dated 12 November 1998, the BKN sought the 1st and 4th plaintiffs' cooperation in providing information on the plaintiffs' activities and investments on the Island. This information was sought in preparation on Malaysia's claim on the sovereignty of Sipadan Island at the International Courts of Justice (ICJ). The plaintiffs complied and listed their respective involvement as follows:
i. Sipadan Dive Centre RM1,655,030.00
ii. Borneo Sea Adventures Sdn Bhd RM1,040,000.00
iii. Syarikat Ramai Benar Sdn Bhd RM1,580,000.00
iv. Pulau Bajau Sdn Bhd RM1,500,000.00
BKN did not dispute these figures.
(11) With effect from 1 February 1999, the number of divers/tourists staying overnight was reduced from an average of 140 to 80 and the number of workers on the island was reduced from 180 to 23 on the directive of BKN. Some buildings were demolished on the instructions of BKN as the BKN had allocated only 14 divers/tourists for each resort.
(12) On one of the meetings with BKN, BKN had directed the 1st to 4th plaintiffs in
