PUTRAJAYA: One hundred and thirty-one Musang King durian farmers from Raub, Pahang have failed in their attempt to gain access to their durian orchards to maintain and cultivate the durian trees pending the outcome of their appeal against an eviction order.
This follows a Court of Appeal decision today to dismiss the farmers’ application to vary a judge’s order that had disallowed them from entering the orchards to maintain the trees.
The Court of Appeal panel was headed by Datuk Che Mohd Ruzima Ghazali, with Court of Appeal judge Datuk Collin Lawrence Sequerah and High Court judge Datuk Noorin Badaruddin as the other members.
The panel also allowed Perbadanan Kemajuan Pertanian Pahang’s (PKPP) application to be discharged of the responsibility to maintain the durian trees.
In delivering the court’s decision, Justice Che Mohd Ruzima said the farmers should have sought a stay order at the High Court under Section 43 of the Courts of Judicature Act 1964.
He said the court was of the view that the High Court was the proper forum for the farmers to apply for the stay order.
Earlier, PKPP’s lawyer Mohd Fairuz Abdullah, Pahang state legal adviser Datuk Saiful Edris Zainuddin and lawyer Tan Sri Cecil Abraham representing the co-respondent Royal Pahang Durian Resources PKPP Sdn Bhd argued that the farmers should at first instance seek a stay order from the High Court following the dismissal of their judicial review application regarding the eviction order.
They argued that the farmers should not have gone straight to the Court of Appeal to seek the stay order.
Lawyer Brendan Navin Siva representing the farmers, however, countered that they could not apply for the stay order at the High Court since there were no pending matters before that court.
He argued that the Court of Appeal could entertain their stay application as their appeal against the eviction order is pending in that court.
On May 28 this year, Court of Appeal judge Datuk Lee Swee Seng denied the farmers’ request to enter the durian orchards to cultivate and maintain the trees, while awaiting the disposal of their appeal against the Pahang government’s decision to issue eviction notices against them.
Justice Lee also made an order that there shall be no destruction of structures or felling of the durian trees on the affected subject lands except with leave of the court pending the disposal of the farmers’ appeal.
He also ordered PKPP to maintain the trees by fertilising, watering them and harvesting their fruits, as well as by warding off all pests and animals and instructed PKPP to file an affidavit before the 10th of every month to account for the grade of durian fruits and their selling price.
The farmers subsequently applied to the Court of Appeal to vary Justice Lee’s order as they claimed that PKPP was not in a position to maintain the durian trees. Instead, they wanted to take care of the trees themselves pending disposal of their appeal.
PKPP, meanwhile, applied to vary Justice Lee’s order instructing them to maintain the trees and file an affidavit to account for the grade of durian fruits and their selling price, saying that it involved significant costs and difficulty to carry out work on a large piece of land.
On April 24 this year, the Kuantan High Court dismissed the farmers’ judicial review application challenging the Pahang government’s decision to issue eviction notices for them to vacate farms in Raub, including areas in Sungai Ruan, Sungai Chalit and Sungai Klau.
That court concluded that the farmers were encroaching on the land and had no legal or equitable rights and the state government’s action to evict them was not malicious. The farmers’ appeal is pending in the Court of Appeal.
