Thursday, August 26, 2010

Final victory: Settlers get RM11 mil from Felda

After more than 10 years, 354 Felda Kemahang 3 settlers received some Hari Raya cheer today after the Federal Land Development Authority (Felda) was ordered to pay RM11 million for cheating them over the grade of their oil palm fruit.

This follows the Federal Court's decision today in refusing a review of Felda's application to challenge a similar Federal Court decision by another panel which before this dismissed Felda's appeal.

More than 150 settlers were present before a packed courtroom to hear the court's final decision. Hundreds more were waiting outside after they braved a nine-hour trip from Kelantan.

With today's decision, the settlers are expected to receive between RM25,000 and RM30,000 each.

This was the first suit filed by the settlers against the federal agency.

Today's decision has serious repercussions for Felda and the government as it may open the floodgates to further suits. Felda is regarded as a backbone of the Malays and bumiputera community and a 'safe deposit' for BN.

It will also undermine the confidence of the 100,000 settlers in Felda which was formed by second prime minister Abdul Razak Hussein - the father of current PM Najib - to protect their interests and welfare.

This was highlighted by Felda counsel Firoz Hussein Ahmad Jamaluddin, who referred to a string of suits faced by the federal authority from its settlers. There are other similar suits filed at the Johor Baru High Court and Seremban High Court.

Court of Appeal president Alauddin Mohd Sheriff led a three-member panel in hearing today's application.

Justice Alauddin said that in a unanimous decision, the court did not have jurisdiction to review the earlier decision of the Federal Court.

"Hence, this application is dismissed."

The other judges are justices Hashim Yusof and Md Raus Sharif.

Alauddin also ordered the appellants to pay RM20,000 legal costs.

The irony of today's victory comes courtesy of opposition leader Anwar Ibrahim, who failed in his review application at the Federal Court to get documents for his sodomy case on Feb 25. This came about when the judges ruled that the inherent power of the court to review its own decision is limited and strictly confined to procedural matters.

This decision bars the apex court from holding a review of another panel's decision. This binds the court and future cases.

CJ Zaki rules in favour of Felda settlers

On Feb 10, a three-member bench of the apex court led by Alauddin granted a stay order after another panel led by Chief Justice Zaki Azmi dismissed Felda's leave application.

The Zaki panel had on Jan 19 unanimously ordered Felda to pay RM11 million to the 354 settlers in Felda Kemahang 3.

In dismissing Felda's leave application, Zaki said the court was satisfied there was no part in law for the matter to be reviewed by this court.

"Following this, we uphold the findings of the High Court and the Court of Appeal and order Felda to pay the amount owed," Zaki had said.

The settlers named Felda, its area manager Ibrahim Ismail (since deceased) and Felda Palm Industries Sdn Bhd as defendants.

They were represented by lawyers Wan Rohimi Wan Daud and Yusfarizal Yusoff.

Foong: Felda cheated settlers

Gopal Sri Ram, who was a member of Zaki panel, in his judgment - the last before his retirement - said the High Court judge had correctly used his discretion to proceed with the trial without the presence of Felda's lawyers and subsequently accepted the evidence of the settlers' witnesses and awarded the damages to the settlers.

"There is material placed before us that shows that the applicants' (Felda) solicitors were aware of the hearing date. In fact, solicitors for the respondents (settlers) took the unusual but cautious step of writing to the applicants' solicitors reminding them of the trial date.

"Despite this, neither counsel nor solicitors for the applicants were present."

On Jan 13, 2008, Kota Baru High Court judge Mohd Azman Husin ordered Felda to pay RM7.8 million plus interest after counsel representing Felda and Felda Palm Industries failed to turn up for the hearing.

On June 26 last year, the appellate court delivered a two-to-one verdict in favour of the settlers, when then justice James Foong noted that Felda, which was supposed to uplift the standard of living of the settlers, had instead cheated them.

Throughout today's proccedings, Alauddin said the panel felt uncomfortable in light of the decision made in Anwar's case over the power of review.

However, Firoz Hussein in submitting today said the decision was reviewable as the apex court's decision was not final. He said it would prejudice his clients as there would be injustice.

“There are various case laws previously that say a review can be made under Rule 137 of the Federal Court rules.”

“Furthermore, by not allowing a full trial to reconvene it would prejudice my clients as the area manager who has since died would not be allowed to clear his name and similarly with Felda. Furthermore, this would undermine Felda which is also the prime minister's initiative.”

Alauddin said we do not care it was, but your client had been given ample opportunity to come to court but they did not appear.

'Where is finality on this issue?'

Justice Hashim also commented where is the finality on this issue if it were to allow this review.

“If we allow this review, what will stop the lawyers for the Felda settlers to come before another panel to challenge our findings. There would not be an end to this if we allow your application,” he said

Counsel for the settlers, Wan Rohimi Wan Daud, submitted there must be uniformity in judicial policy and if in Anwar's sodomy case there was no power for review, then the decision by an earlier panel should stand.

Outside court, settler Othman Hamat (left), who is the chairperson of the action committee said it had been a long wait, as 50 applicants had since passed away. Their families will receive the damages.

“We have travelled a long way to seek justice as we got to know that our fruits were of a better grade and not what had been paid to us. That is why we made this application,” he said, adding this was their third time in Putrajaya.

Wan Rohimi said this was the first suit instituted against Felda by the settlers and he had particpated in another filing in Johor Bahru of a RM71.8 million suit involving more than 400 settlers in Labis.

He said he understood that after Hari Raya some Felda settlers in Pahang will be filing similar suits against Felda, but he was not acting for them

Firoz Hussein said Felda would not apply for a review of today's decision.

Quality of oil palm fruits understated

The Kemahang 3 settlers had sued Felda in 2002 claiming that the agency had understated the quality of their oil palm fruits during the period from 1996 to 2002 which caused them to suffer losses.

Felda area manager Ibrahim Ismail was alleged to have cheated the settlers on the grade of their palm oil fruit - they were paid a lower grade (17.05 percent of the extraction rate), whereas the settlers found it was of a higher grade (23 percent) after they did their own testing.

In the suit, they claimed an average rate of 19.5 percent in the extraction rate.

Before filing the suit, International Trade and Industry Ministry Mustapa Mohamed had threatened the settlers with eviction.

The matter was heard at the Kota Baru High Court but one of the Felda counsel was not present, resulting in the judge making the decision to award the settlers.

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