JUDGMENT

Suffian LP:

The appellant's father ran a goldsmith's business for 45 years in a rented shophouse on Lot 715, Jalan To' Hakim in the town of Kota Bharu. In 1979 the landlady Tengku Besar Zabidah binti Tengku Abdul Kadir Kamaruddin after some persuasion agreed to sell it to the appellant. The appellant retained Encik Dzaiddin who happens to be Tengku Besar Zabidah's son-in-law as her solicitor to handle the transaction. On 8 October 1979, the parties executed a memorandum of transfer witnessed by Encik Dzaiddin.

On 3 March 1980, Encik Dzaiddin presented the memorandum and the issue document of title to the Registry of Titles. According to Encik Dzaiddin, the transfer should have gone through smoothly, as both the vendor and the appellant are natives of Kelantan and the land is outside a Malay reservation area and therefore there was no need for approval by the Ruler in Council. But, says Encik Dzaiddin, the transfer did not go through smoothly, for there was a formal enquiry by the Deputy Registrar of Titles, to determine whether or not the appellant was a native of Kelantan. The transfer was not registered until 26 July 1980.

But lo and behold! - three months later, on 23 October 1980, the Kelantan State Government; the respondent ("the State Government") published in the Gazette a declaration in form D ("G.N. 707") unders. 8 of the Land Acquisition Act 34 of 1960("the Act") saying that this property was needed for the purpose of ruang pejabat dan perniagaan Yayasan Kelantani.e. for the purpose of office and commercial space of the Kelantan Foundation.

There were three issues before the learned trial Judge who decided all of them in favour of the State Government; but before us there remain only two issues.

Declaration valid?

The first issue is whether or not the declaration was valid. Encik Dzaiddin submitted that it was not. With respect we are of the opinion that it was valid.

The Kelantan Foundation was established by law enacted by the Kelantan State Assembly. The law is the Kelantan Foundation Enactment No. 1 of 1974:

to provide for the establishment of a foundation for the purposes of improving and furthering the progress of educational facilities in the State ... and of encouraging and promoting a Malaysian consciousness therein... (long title).

The foundation is a statutory body with praiseworthy aims.

And s. 19(1) of the Enactment provides:

When any immovable property, not being State land, is needed to be acquired by the board for the purposes of this Enactment such property may be acquired in accordance with the provisions of any written law relating to the acquisition of land for a public purpose for the time being in force in the State, and any declaration required by any such written law that such land is so needed may be made notwithstanding that compensation is to be paid by the Board; and such declaration shall have effect as if it were a declaration that such land is needed for a public purpose in accordance with such written law.

In view of the words after the semicolon in the above provision, we have no alternative but to hold that the declaration in G.N. 707 had effect as if it were a declaration that this property was needed for a public purpose in accordance with the Land Acquisition Act. Subsection (3) of s. 8 of the Actprovides:

A declaration in Form D shall be conclusive evidence that all the ... land referred to therein is needed for the purpose specified therein.

We are therefore of the opinion that there is no merit in the appellant's contention on this issue.

Even where there is no such a finality clause, the Privy Council has held in an appeal from Ceylon in Wijeysekera v. Festing[1919] AC 646, that the decision of the Governor in Council that land is required for a public purpose is not open to challenge in the courts: but of course that ruling turns on the language of the enactment before their Lordships.

Mala Fides

The second issue is whether or not the State Government acted mala fidei.e. in bad faith