Is an Omission Capable of Being Communicated?

Puthan Perumal from Perumal Brothers comments on the need for an amendment

to section 418(3) of the National Land Code 1965.

The purpose of this article is to inform the general public and to show how a very likely injustice can be caused by property and land being taken away, due to an omission on the part of state land authorities in complying with certain provisions of the National Land Code 1965 and how those omissions are, for some strange reason, considered as a "decision" under the same Code — a "decision" which one never comes to know about until it is too late and the property or land is gone, and the avenue to appeal against that "decision"’ is no more there. It is a very frightening situation and there are many, many cases of this nature.

The classic example would be where a property or land is subjected to a charge for a loan taken from a financial institution, and a default occurs in the repayment of that loan and foreclosure proceedings are commenced. In such situations, the state land authorities are to ensure that all steps are taken to inform the owner of the property or land that actions are being taken to auction the property or land. This is to ensure that the owner is given the opportunity to redeem the property or land.

There was a case where a land had been sold for interest in the sum of RM1,928.00 which was owing, which the owner did not know about and was never informed by anyone. Neither did the state land authorities comply with mandatory provisions of the National Land Code 1965 to inform the owner that the land was going to be sold.

In such an instance, when the owner comes to know that the land had been sold, the owner runs to court only to be told that their time to appeal is over.

The question is this: Against which decision was the time to appeal considered over? Was there a decision in the first place?

Essentially, the argument is -- can there ever be a situation where an omission would be capable of being communicated for an aggrieved party to appeal within a particular time frame?

And therefore, can an omission be considered a "decision" which is capable of being communicated?

It goes against the very trite principles of statutory interpretation, and an amendment is necessary as the general public is unaware that actions are being taken against their property and land, and they are instead told by the courts that the time to appeal is over.

In this regard, there has since been no decision from the apex courts clarifying this position; therefore an amendment to section 418(3) of the National Land Code 1965, by deleting the word "omission" appearing therein, would settle the issue. This would save the general public of unnecessary legal burden.

The Law

1. Section 418 of the National Land Code 1965 (‘the Code’) provides that:-

(1) Any person or body aggrieved by any decision under this Act of the [State Director], the Registrar or any [Land Administrator] may, at any time within the period of three months beginning with the date on which it was communicated to him, appeal therefrom to the Court.

(2) Any such appeal shall be made in accordance with the provisions of any written law for the time being in force relating to civil procedure; and the Court shall make such order thereof as it considers just.

(3) In this section “decision” includes any act, omission, refusal, direction or order.

2. The question here is:-

(i) Whether an omission on the part of the State Director or the Registrar or the Land Administrator should be included in sub-section (3) of section 418 of the Code as constituting a “decision” and;

(ii) whether the Courts, in accordance with trite principles of statutory interpretation should reject the use of the word ‘omission’ appearing in the abovesaid sub-section (3) as such reliance would result in absurdity.

3. In Black’s Law Dictionary 7th Ed, the word ‘omission’ is defined as “failure to do something; esp a neglect of duty” OR “the act of leaving something out” OR “the state of having been left out or of not having been done” OR “something that is left out, left undone or otherwise neglected”.

4. Non-compliance, by the State Director or the Registrar or the Land Administrator, of any mandatory statutory requirements appearing in the Code, such as those appearing in section 258(1) or 264(1) of the Code (to name a few), is, for all intent and purposes an omission on the part of the State Director or the Registrar or the Land Administrator.

5. The objective or the purpose behind section 418 of the Code is essentially to provide an opportunity or an avenue to an aggrieved party to appeal to the Courts against a decision of the State Director or the Registrar or the Land Administrator within three (3) months beginning from the date on which such a decision is communicated to that aggrieved party by the State Director or the Registrar or the Land Administrator.

6. Two obvious and glaring questions one can ask is this:

(i) Can there ever be a situation where the State Director or the Registrar or the Land Administrator will be able to communicate a ‘non-compliance of a mandatory statutory requirement’ or an omission on his part to any party?

(ii) Will a State Director or a Registrar or a Land Administrator ever communicate a ‘non-compliance of a mandatory statutory requirement’ or an omission on his part to any party?

7. In situations involving an ‘act’ or a ‘refusal’ or a ‘direction’ or an ‘order’ by the State Director or the Registrar or the Land Administrator, such questions as stated above would not arise, as there would be some form of active and positive communication of those acts or refusals or directions or orders which affect some party concerned, either by way of prescribed statutory forms or a specified method of communication.

In other words, such acts or refusals or directions or orders are capable of being communicated to the party concerned, and therefore the date from which such acts or refusals or directions or orders are communicated is capable of being calculated clearly for the purposes of appeal to the Courts.

8. On the other hand, however, an omission or non-compliance of a mandatory statutory requirement can never — or rather, will never — be communicated by the State Director or the Registrar or the Land Administrator to any party concerned, as such an omission is not capable of being communicated and therefore the date from which such an omission is ‘communicated’ is not capable of being calculated clearly for purposes of appeal to the Courts.

To put it bluntly, logically speaking, no State Director or Registrar or Land Administrator will communicate that he has NOT DONE SOMETHING which the law requires him to do.

9. Clearly, if the word ’omission’ appearing, for whatever reason, in sub-section (3) to section 418 of the Code is not rejected by the Courts, this would result in absurdity and a non-harmonious reading with sub-section (1) of section 418 of the Code.

This clearly would frustrate the objective or purpose of the entire section 418 of the Code. Even more so, it would create uncertainty as to the time to appeal to the Courts. Would it be three months from the time the aggrieved person finds out of such a non-compliance or omission on his own accord?

No one knows. If that approach is taken, then the word ‘communicated’ would not make sense. Either way, it would result in absurdity.

10. Reference is made here to Principles of Statutory Interpretation by Guru Prasanna Singh 9thEd 2004:-

“The words of a statute, when there is doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature has in view….The courts have declined ‘to be bound by the letter, when it frustrates the patent purpose of the statute’.

“A construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty and friction in the system which the statute purports to regulate has to be rejected and preference should be given to that construction which avoids such results.

“If the grammatical construction leads to some absurdity or some repugnance or inconsistency with the rest of the instrument, it may be departed from so as to avoid that absurdity and inconsistency. Similarly, a construction giving rise to anomalies should be avoided. As approved by Venkatarama Aiyar J, ‘where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.

“ ‘Absurdity’ according to Willes J, should be understood “in the same sense as repugnance that is to say something which would be so absurd with reference to the other words of the statute as to amount to a repugnance. ‘Absurdity’ said Lord Greene MR like public policy, is a very unruly horse. He proceeded to add, “There is one rule, I think which is clear that, although the absurdity or the non-absurdity of one conclusion as compared with another may be and very often is, of assistance to the court in choosing between two possible meanings of ambiguous words, it is a doctrine which must be applied with great care, remembering that judges may be fallible in this question of an absurdity and in any event must not be applied so as to result in twisting language into a meaning which it cannot bear. It is a doctrine which must not be used to re-write the language in a way different from that in which it was originally framed. The alternative construction contended for must be such which does not put an undue strain on the words used and does not require recasting of the Act or any part of it….In holding so Venkatarama Aiyar J observed: It is no doubt true that if on its true construction, a statute leads to anomalous results, the Courts have no option but to give effect to it and leave it to the Legislature to amend and alter the law. But when on a construction of a statute, two views are possible, one which results in an anomaly and the other not, it is our duty to adopt the latter and not the former, seeking consolation in the thoughts that the law bristles with anomalies.

“It has already been seen that a statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute. Such a construction has the merit of avoiding or repugnancy either within a section or between a section and other parts of the statute. It is the duty of the courts to avoid ‘a head on clash’ between two sections of the same Act and ‘whenever it is possible to do so, to construe provisions which appear to conflict so that they harmonise’. It should not be lightly assumed that Parliament had given with one hand what it took away with the other…. The same rule applies in regards to sub-sections of a section. In the words of Gajendragadkar J: The sub-sections must be read as parts of an integral whole and as being interdependent; an attempt should be made in construing them to reconcile them if it is reasonably possible to do so, and to avoid repugnancy.”

11. It is apparent that non-compliance of mandatory statutory requirements or ‘omissions’ on the part of the State Director or the Registrar or the Land Administrator can never possibly be a ‘decision’ contemplated and so defined in sub-section (3) of section 418 of the Code, simply because such omissions are not capable of being communicated to achieve the purpose and objective in sub-section (1) of section 418 of the Code.

There being no communication, there can be no calculation of time as well for purposes of appeal to the Courts, as time does not begin to run and is constantly enlarged. This cannot be what Parliament had intended. Therefore, the word ‘omission’ should be rejected.

12. In light of the above, the honourable draftsmen should look into deleting the word ‘omission ’ appearing in section 418(3) of the Code, as it appears to be in direct conflict with the word ‘communicated” appearing in section 418(1) of the Code and injustice is being caused.

Puthan Perumal (perumalbrothers@gmail.com) is an Advocate & Solicitor of the High Court of Malaya.

Picture credits:Amazon