Case Study – A Brief Overview Of Eddy Salim & Ors v Iskandar Regional Development Authority & Ors

Brief facts of the case

The plaintiffs, in this case, were a group of orang asli (Eddy Salim being one of them) who were in a land dispute with Iskandar Regional Development. They alleged that Iskandar Regional Development trespassed onto their native customary land while doing reclamation work for development purposes (mix development project). However, Iskandar Regional Development claimed otherwise, stating that they are merely exercising their rights as the registered owner of the said land and anything that was done was done in compliance with the relevant laws and regulations.

While in the process of suing Iskandar Regional Development, Eddy Salim and Co. discovered that Iskandar Regional Development had continued to trespass on the land, where significant reclamation works were done to the land. Eddy Salim and Co thus proceeded with the filing of an interlocutory injunction against Iskandar Regional Development, asking the court to halt the reclamation work until the disposal of the case in court. 

What does the court say Eddy Salim and Co have to prove?

In order for Eddy Salim and Co to succeed, the court noted that they must prove the following matters:

1. Their case must disclose a bona fide serious issue to be tried; 
2. Where does the balance of convenience lie i.e. whether either party would suffer from harm/ damage/ injustice if the injunction is granted vice versa;
3. Whether damages (i.e. compensation) would be adequate in the event Eddy Salim and Co suffer loss as a result of not granting the injunction.

Eddy Salim and Cos’ contention

1) In relation to whether there is a serious issue to be tried

Eddy Salim and Co contended that there is a serious issue to be tried. Among the issues they pointed out that was contentious and needed the court’s attention was:

1. Whether or not the alienation of their land to Iskandar Regional Development is void due to the fact that those lands are considered customary lands that belongs to Eddy Salim and Co; and
2. Iskandar Regional Development has stated that there are a number of issues that require a trial.

2) In relation to the balance of convenience

Eddy Salim and Co noted that the balance of convenience lies with them i.e. injunction should be granted for the following reason:

1. The continued destruction of the customary territory by the Iskandar Regional Development amounts to an attempt to destroy the subject matter of the suit prior to the resolution of the issues raised herein and is therefore calculated to unfairly and gravely prejudice their rights in their customary territory; and
2. The fact that those reclamations were illegal as the Environmental Impact Assessment for the mixed development project proposed to be carried out on the said lands has been rejected by the Department of Environment.

3) In relation to whether damages are an adequate remedy

Eddy Salim and Co contended that damages will not be an adequate remedy as, if the reclamation work were to continue, by the time the trial starts, the subject’s customary land would have totally been destroyed. This would also mean that Eddy Salim and Co’s life support system- shelter, livelihood, food, medicines, spiritual and cultural nourishments would be totally evaporated and no compensation can replace the loss suffered by them.

The court’s decision and rationale

The court allowed Eddy Salim and Co. application. In coming to its decision, the court (amongst others) took into account the harm that stems from granting the injunction versus the harm that stems from the refusal to grant the injunction. 

The court held that it is better to grant the injunction, on the basis that: 

1. As Eddy and Co.’s claim is for the restoration of their customary land, the refusal will cause a complete and irreversible loss to their customary land- If Iskandar Regional Development is allowed to continue with their reclamation works pending the full disposal of the trial,  and in the event, the court favors the plaintiffs, the whole exercise would have been rendered futile as their land would have been destroyed. No amount of compensation can remedy such a situation. 
2. If Iskandar Regional Development are allowed to continue with their reclamation exercise, the subject matter i.e. the land in dispute would have been gone by the time the matter is decided in its entirety by the court. It will therefore render the whole matter before court futile. 

In conclusion, the court noted that Eddy Salim and Co would suffer a greater injustice if the interlocutory injunction is not granted, the court has no choice but to side with Eddy Salim and Co.

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