PUTRAJAYA (May 23): The Court of Appeal (COA) has ordered the counsel of 131 Musang King durian planters around Raub — who are seeking a stay of a High Court ruling which dismissed their judicial review application to challenge the Pahang government's decision to issue eviction notices against them — to refile their interim stay application before the court.
A three-member panel, led by judge Datuk Che Ruzima Ghazali, had ordered the planters, who were represented by lead counsel Brendan Navin Siva, to file their application again before the COA registrar.
This is because of Section 44(1) of the Courts of Judicature Act which states that “any interim order to prevent prejudice to the claims of parties pending the hearing of the proceeding, any order for security for costs, and for the dismissal of a proceeding for default in furnishing security so ordered may at any time be made by a judge of the Court of Appeal”.
As Section 44 states “a judge of the Court of Appeal”, Ruzima ruled that the application must be heard by one COA judge.
The bench then agreed with Pahang state legal adviser Datuk Saiful Edris Zainuddin and lawyer for another respondent Royal Pahang Durian Resources PKPP Sdn Bhd, Tan Sri Cecil Abraham, who had submitted that the application shouldn’t be heard by the panel of three.
“We agree with the request that the application be delayed and be sent back to registrar to take a continuation… this is in line with the respondents' argument that we can’t hear the appeal,” said Ruzima, who was flanked by judges Datuk Azman Abdullah and Datuk Azmi Ariffin.
Earlier, Brendan told the bench that his application was an interim preservation relief until the appeal is disposed of.
He said his application was to seek the court's permission to allow the planters to go into the land (which has now been sealed off) to maintain the durian trees.
“We want to enter merely to cultivate, trim, fertilise and water the durian trees. Durian trees are very sensitive,” he said.
Speaking after the proceedings, Brendan’s partner Siew Choon Jern said they will make their application for a single judge before the court registrar and wait for instructions.
The farmers are applying for the interim preservation relief which encompasses land in or around Sungai Ruan, Sungai Chalit, Sungai Klau and Tranum, Gali, Sang Lee, Kampung Sungai Chetang, Tras, Mukim Tras, all within the Raub district, and the Gunung Benom forest reserve where the durian trees are planted.
In August 2020, the Musang King durian farmers filed the application to obtain permission for a judicial review against a state government order for them to vacate their farms in various areas in Raub, including in Sungai Ruan, Sungai Chalit, Sungai Klau, measuring about 2,167 hectares.
They named Raub District Land administrator, Pahang Forestry director, state authorities, Pahang state government, Pahang State Agricultural Development Corporation (PKPP) and Royal Pahang Durian Resources PKPP Sdn Bhd as respondents.
The application was dismissed by the Kuantan High Court in December 2020, which prompted them to appeal to the COA.
In 2021, the COA allowed their application to stay the land eviction notice issued to them to vacate the plantations, pending the hearing of the judicial review leave application.
In April this year the Kuantan High Court also dismissed the judicial review application by the planters to challenge the Pahang government's decision to issue eviction notices against them.
Judge Datuk Mohd Radzi Harun ruled that the 186 planters involved had no legal right to be on the land in question. He also said the court also confirmed their status as squatters and that the state government's action to evict them was not malicious.
The application at the COA on Thursday is an appeal against this decision.