Mohd Azmi SCJ:

[1] This appeal involves the interpretation of O 89 Rules of the High 1980 as relates the propriety of its application to the facts and circumstances of the respondent's claim for recovery of possession of state land from the appellants in Sabak Bernam in the state of Selangor. Apparently, the parcels of land were originally intended to be alienated to the appellants and other landless farmers who have been occupying and farming them for years, but the respondent now thought it fit to hand them over to the Federal Land Consolidation and Rehabilitation Authority (FELCRA), a statutory body, whose main function currently we are told is to rehabilitate abandoned agricultural land. The main issue before us is whether on the facts, the respondent ought to have sued the appellants by writ instead of by the summary procedure under O 89.

[2] It is common ground that by originating summons dated 17 January 1990, the respondent applied under O 89 for an order to recover possession of the whole of the land identified as Lots 386 to 4522 against the six appellants and other persons in occupation of the state land at Mukim Sungai Panjang in the district of Sabak Bernam. The body of the summons states that the grounds for application is that "the plaintiff is entitled to possession and the defendants named herein and all those other persons in occupation are in occupation without licence or consent." The fundamental issue is therefore the absence of either licence or consent.

[3] The learned Judge not only summarily granted the respondent order of possession but also made a consequential order whereby he ordered that the writ of summons and statement of claim filed by two of the aggrieved farmers (not the appellants) on 20 March 1990 vide Shah Alam High Court Suit No 21-226 of 1990 be consolidated with the O 89 proceedings, and be struck out forthwith. In that writ action, one Mokhtar bin Jaafar, a deponent in the O 89 proceedings and one Mat Jani bin Ali Gasan have sued the Pengarah Tanah dan Galian Selangor on behalf of themselves and all other persons in occupation of portions of the land in dispute, for a declaration that they are entitled in law and in equity to be in possession of the said land, and for other consequential orders. In making the order that he did, the learned Judge after referring to two leading authorities of the Federal Court in Government of the State of Negeri Sembilan & Anor v. Yap Chong Lan and 12 Ors, [1984] 2 MLJ 123 (the Lesco case) and Sidek bin Hj Muhamad & 461 Ors v. Government of the State of Perak & Ors; [1982] 1 MLJ 313; [1982] CLJ (Rep) 321, took a swipe at Counsel for the appellants in this pernicious term:

39. When the defences taken in this case were so absolutely sterile one needs to ask why they were solemnly put forward by officers of this Court whose duty is to advise their clients on what the law is and not what in their or the clients opinion it ought to be. Failure to give advance notice of legal points intended to be taken may be minor misdemeanours not in the best of the traditions of the bar. But filing legal proceedings for relief where it is obvious that none exists is quite something else.

[4] Be that as it may, we cannot help but are amazed at the long history of permitted occupation of Lots 386 to 4522 by the farmers and at the dispute on approved alienation by the state authority to them under the National Land Code. From the record of appeal there is hardly any question that the forefathers of the appellants and the other unnamed occupiers or some of them at least were pioneer settlers of the agricultural land in dispute. The land scheme comprises of 717 lots each measuring three acres in area, but in this appeal we are concerned only with 515 of them, including the ones occupied by the appellants. Under what circumstances, the land authority has debilitatingly acquiesced or consented to this pioneering activities, we are not at all clear. But between 1971 and 1976