Chapter 20 - Injunction against Government

Question 1

INJUNCTION AGAINST GOVERNMENT

Overview

Answer 1

1) Restriction to grant specific relief against government
2) Granting of injunction against government is allowed
3) Granting of injunction against government is not allowed
4) Recent application

Question 2

INJUNCTION AGAINST GOVERNMENT

Restriction to grant specific relief against government

Answer 2

S.29GPA:

• Restricts the court’s power in granting injunction, order for specific performance & order for recovery of land or delivery of property.

Question 3

INJUNCTION AGAINST GOVERNMENT

Granting of injunction against government is allowed

Answer 3

Sabil Mulia (M) Sdn Bhd v Pengarah Hospital Tengku Ampuan Rahimah (CA, 2007):

Ref. Tengku Haji Jaafar & Anor v. Government of the State of Pahang:
- It was held that S.29 did not take away the right of the court to grant an interlocutory injunction.

Ref. Kekatong Sdn Bhd v. Danaharta Urus Sdn Bhd (CA):

• Although the Federal Court reversed CA’s decision in that case, the judgment on the point of granting an interlocutory injunction was approved sub silentio.
• Therefore, S.29 does not prohibit the grant of temporary injunctions against the government.
• However, the merits of the present case did not justify the grant of the injunction sought since damages is an adequate remedy.

Question 4

INJUNCTION AGAINST GOVERNMENT

Granting of injunction against government is not allowed

Answer 4

Supritendent of Lands & Surveys, Kuching & Ors v Kuching Waterfront Development Sdn Bhd (CA, 2009):

• S.29 of the GPA does not permit the granting of any injunction against the government.
• Likewise, S.54 of the SRA prohibits the grant of an injunction against any Malaysian government department.
• However, the court may make an order declaring that a plaintiff be entitled to such land or property.
• An aggrieved plaintiff is not deprived of other entitlement, such as compensation.

Question 5

INJUNCTION AGAINST GOVERNMENT

Recent application

CA, 2016

Answer 5

Superitendent of Land & Surveys, Bahagian Mukah & Anor v Bunyak Gadin & Ors (CA, 2016):

• An injunction cannot lie against the Government or a Government department to stop them from carrying out their public duties.
• The effect of S.29 GPA & S.54 SRA was discussed by CA in Superintendent of Lands and Surveys, Kuching Division & Ors v. Kuching Waterfront Development Sdn Bhd.
• Although the court is prohibited from granting an injunction, the aggrieved party is not deprived of certain entitlement such as compensation.
• As such, damages would be an adequate remedy and the balance of convenience did not favour the grant of injunction.