QUESTION (JANUARY 2013, PART C QUESTION 2)

Majlis Perbandaran Kota Mas made a decision to zone a stretch of 10 hectares of land
which was owned by Munah in 2005. The land was finally gazetted as a "green lung area".
Under the power provided for in the Local Government Act 1976, the Majlis has the power to
compulsorily acquire any such land for public purpose in the event that the necessary
procedure for compulsory acquisition had been duly complied with under the Land
Acquisition Act 1960.
The acquisition procedure was duly complied with and in 2009 the Majlis proceeded
to rezone the area into a commercial centre. As it transpired, reports pertaining to the Majlis
initial survey in 2004 showed that the land was suitable for business centre. However, the
report was kept confidential and only remained within the office of the Yang di Pertua of the
Majlis. The Yang di Pertua, Kasim, retired from the Majlis in 2010. He set up Kota Mas
Construction Company the same year and within a few months of his retirement was
awarded a contract to develop the same piece of land. The new Yang di Pertua of the Majlis,
Salim, is Kasim's step brother. The latter is also a minority shareholder of the company.
In June 2011, Munah, who is also an officer attached to the Majlis, found out the whole
process of compulsory acquisition of the land and the prior zoning of the land into "green
lung area" was a mere sham designed for the personal interest of Kasim. Munah was not
satisfied with the decision of the Majlis and wanted to challenge the validity of the
acquisition.
Advise Munah.
(30 marks)

According to Wade, natural justice can be defined as the procedural safeguard against
improper exercise of powers by a public authority. Natural justice is characterised as fair
administrative procedure which forms an integral part of administrative law.
Right to fairness is actually according to the common law system, but however, in Malaysia,
it instead can be found under Art 8 as the fairness is the essence of Art 8 which act as a
constitutional footing
In challenging the validity of acquisition by Majlis Perbandaran Kota Mas by Munah, there
are several issues that shall be observed.
1. First issue:
The first issue in this problem is whether there is reasonable hearing provided by Majlis
Perbandaran Kota Mas in making the decision to acquire the land from Munah.
One of the elements of natural justice is the element of right to be heard or so-called as audi
alteram partem
In the case of Mak Sik Kwong v Minister of Home Affairs, in its judgment, the rules of right
to be heard are not rigid as it is a flexible principle that may be applied in accordance to the
circumstances & the need of a specific case.
Furthermore in the case of Tan Hee Lock v Commissioner of Federal Capital, in its judgment,
the procedure of the right to be heard may vary depending on the facts and circumstances of
individual case. However, the tribunal must apply minimal norms of procedure to ensure
justice and fairplay in adjudicatory proceeding.
One of the minimal forms of procedure to ensure justice and fairplay in adjudicatory
proceeding is the hearing procedure.
In the case of Ridge v Baldwin, in its judgment, hearing is the essential requirement of
natural justice procedure as it provides the person concerned with an opportunity to defend
himself
Furthermore, in the case of SESCO v Wong Ah Suan, it was stated that the hearing may take
any form.
Under the procedure of hearing, one of the forms of procedure need to be observed is the
reasonable hearing. To ensure that there is a fair hearing is given, the hearing must be
reasonable.
Reasonable hearing includes the disclosure of evidence or information
Illustrated in the case of Surinder Singh Kanda v Government, it was held that the decision of
the proceeding is invalid as the adjudicatory officer did not provide the person concerned

with a copy of report which contains material prejudicing to the persons case. The ratio in
this case is that the failure to disclose material used as evidence or being used by adjudicatory
body in making decision amount to breach of NJ by denying a reasonable opportunity to be
heard as he cannot prepare his defence against the allegation.
Therefore, in applying the law to the present problem, Majlis Perbandaran Kota Mas did not
disclose the sufficient information. This can be seen as the reports pertaining to the Majlis
initial survey in 2004 which showed that the land was suitable for business centre was kept
confidential and only remained within the office of the Yang di Pertua of the Majlis. Thus, no
reasonable hearing has been served.
As conclusion, there is a breach of the principle of natural justice as the reasonable hearing
has not been provided.

The second issue in this problem is whether the decision made by the Yang Dipertua
Majlis Perbandaran Kota Mas to acquire the land from Munah was null and void on the basis
of there was the existence of pecuniary bias.
Another element of natural justice is the element of rules against bias that is so-called as
nemo judex in causa sua
One of the rules is the rules against pecuniary bias or in other word financial bias.
In the case of Dimes v Grand Junction Canal, it was held that the proceeding is invalid that
presided by Lord Chancellor because the Lord Chancellor who is also a shareholder to a
company in dispute is disqualified as a judge no matter how remote it is the risk of bias in
order to illustrate the principle of rule against bias. Although it is a case of court proceeding,
it is also applicable in quasi-judicial proceeding.
In applying the law to the fact, there is pecuniary bias that influenced the decision making by
Yang Dipertua Majlis Perbanadaran Kota Mas. This can be seen as Yang di Pertua Salim is
minority shareholder of the compay constructed by former Yang Dipertua Majlis who is that
set up Kota Mas
Construction Company. Thus, there is pecuniary bias.
As conclusion, there is a breach of natural justice as the decision making is influenced by
pecuniary bias.

The third issue in this problem is whether Yang Dipertua Majlis Perbandaran Kota
Mas make the decision to acquire the land from Munah with the influence of personal bias.
Another rule of the rules against bias is the rules against personal bias. Whilst making
decision, the adjudicator cannot have relationship, friendship or business with party in dispute
In the case of Stollery v Greyhound Racing Control, it was held that a person cannot be
involved with the parties in dispute and be a judge at the same time.
In the case of Metropolitan Properties v Lannon is where the court laid down the test of real
likelihood of bias. In its judgment, it was stated that there must be a real likelihood of bias as
mere allegation of bias is not sufficient. The court will not enquire whether it is bias or not, it
is enough if reasonable people think the adjudicator is bias.
In reterating the test, it can be seen in the case of Sambasivam where the court adopted the
reasonable suspicion test of bias in Lannon. The court the reiterate the principle that under
this test, the court will determine whether there is likelihood to be bias in the eyes of
reasonable men, not in the eyes of the court.
In applying the law to the fact, there is personal bias. This can be seen when Yang di Pertua
of the Majlis who is Salim is a Kasim's step brother. Which later he has awarded the contract
to develop the same piece of land to Kasim. Thus, there is personal bias.
As conclusion, there is a breach of natural justice as the decision making is influenced by
personal bias.
As a whole conclusion, the decision to acquire the land by Majlis Perbandaran Kota Mas can
be challenged as there is a breach of natural justice as the reasonable hearing is not provided
as well as the existence of pecuniary bias and personal bias in making the decision.