Thursday, December 20, 2007

THURSDAY-20TH DECEMBER 2007-Surprising twist in Tawau open space devt case

Surprising twist in Tawau open space devt case Council agrees joint-venture pact for project is invalid
TAWAU: In a surprising turn of event at the High Court here yesterday, the ten plaintiffs in the controversial Sabindo open space development case reached an amicable settlement with the Tawau Municipal Council (TMC), which is the second defendant. What was supposed to be a trial turned out to be a hearing as the plaintiffs’ lawyer Datuk Simon K. Y Shim informed Judicial Commissioner Y.A Puan Yew Jen Kie that the second defendant had agreed to the plaintiffs’ claims as follows: 1. A declaration that the joint venture agreement dated 13th December 1996 between the 1st and 2nd defendants is invalid, illegal and unenforceable, being ultra vires the Local Government Ordinance 1961 and the Tawau Municipal Council Instrument 1983 (G.N.S. 22 of 1983) 2. A declaration that the Development Plan submitted on 12th October 2004 and approved by the 2nd defendant on 27th May 2005 vide DP37/2004 is invalid, illegal and unenforceable; 3. An order that the said Development Plan DP37/2004 be set aside. 7. The second defendant agreed on no contest on the plaintiffs’ claim for cost. 4. An order restraining the 1st defendant, their servants or agents from entering, trespassing on, remaining and carrying out construction works on the open public places described under TL107522985 together with the adjoining land; 5. An order compelling the 1st defendant
whether by themselves or their servants or agents or any of them or otherwise howsoever to forthwith dismantle, remove and clear all plants, equipments and materials laden on the said land. The plaintiffs, on the other hand, waived their claims to damages in addition to the aforesaid orders; and any other relief this Honourable Court may deem fit to grant. The first defendant Jeramas Sdn Bhd and Aggasf Construction Sdn Bhd’s lawyer Ronny Cham objected to the application by the plaintiffs’ lawyer for permission from the court to enter the terms of consent judgement. He applied for an adjournment of the proceedings as the 2nd defendant in the case is closed tight together with the 1st defendant not only as a joint- venture partner but also as the approving authority. Cham said, “Whatever the amicable settlement that they may be, it would only mean that the second defendant is admitting that they have got the whole thing wrong as far as the joint-venture and the approving of project is concerned. “In view of the surprise turn of event this morning and the fact that we now have to draw in the second defendant as third party, I am of the view the trial fixed today should be adjourned to allow the first defendant to take stock of the situation to reconsider the pleadings in this case especially the third party proceedings. There are other reasons which I have stated in my written submission I wonder whether I need to proceed or my learned friend agreed with the adjournment,” he said. The court granted the adjournment and fixed 25 January next year for the hearing of a third party notice. Cham said that in regards to the third party proceedings, he and fellow lawyer Brendon Keith Soh would like to take the instruction from their clients to possibly join the State Government as a third party because the council’s approval must be with the consent of the minister concerned. The plaintiffs in the case are Chong Sui Jin, Yong Sie King, Lee Kok Ming, Pang Koh Len, Wong Chew See, Chin Kon Tai, Chen Yuh Bih, Lim Kon Hock, Yong Yu Min and Rev. James Wong Chong Leong, who had recently obtained an injunction to halt the open space development by Jeramas Sdn Bhd and Aggasf Construction Sdn Bhd. All the plaintiffs are represented by lawyer Datuk Simon K. Y. Shim and Wilson Lim, while the first defendant are represented by lawyer Ronny Cham and Brendon Keith Soh, and second defendant by Mohd Hanafiah Mohd Kassim and State AttorneyGeneral Department.