The government stuck to its guns Tuesday (15 July) and wants the country’s highest court of appeal to throw out the suit by 184 pig farmers affected by the Nipah disaster a decade ago. It said the suit is frivolous and vexatious.

But the farmers’ counsel fought back and argued before the Federal Court in Putrajaya today that their suit cannot be shot down as there are issues in law and facts to be heard.

Some 30 pig farmers from Bukit Pelanduk in Negri Sembilan were present in court. One of them told one of their lawyers, Ser Chong Ing, in Mandarin: “You must win the case today. We are here to celebrate,” to the laughter of the others.

The case was filed by 184 victims of the Nipah Virus outbreak in 1999, claiming losses suffered which they alleged were due to the negligence of the government during the epidemic. The Federal Government together with three state governments; Perak, Selangor and Negri Sembilan) are named as defendants in the suit.

They are asking for RM136 million for loss of pigs, funeral and medical expenses, farm damage and unspecified damages, among other things.

The suit was first filed in 2002 and the government has succeeded in staving off the farmers’ bid on technical grounds until the Court of Appeal stage on 13 May 2005 where the farmers fought back and won.

Justice Gopal Sri Ram, sitting with Justices Richard Malanjum and Hashim Yusoff, allowed the appeal and directed the case to go back to the High Court for the farmer’s claims to be heard. But the government is appealing against this judgment.

In handing down his written judgment, Justice Sri Ram then said, “This is an important case.”

“This is the first occasion upon which we are deciding whether as a matter of policy, the Government of the Federation and its respective states enjoy blanket immunity for original liability in the tort (wrongful act) of negligence.”

He said the facts of the case are complex but in a nutshell, the farmers complaint was that the respective governments did not act fast enough but allowed the situation to worsen to such an extent that led to the farmers suffering injury.

“In the present instance there are several triable issues have been disclosed. It is, therefore, inappropriate to summarily strike out the (farmers’) pleading,” he said in favour of the farmers.

Today’s appeal is heard by Justices Ariffin Zakaria, Nik Hashim A.R. and Zulkefli Ahmad Makinudin. The plaintiffs are represented by Ser Choon Ing, Malik Imtiaz Sarwar and Neo Hoe Kee, while the government is defended by senior Federal Counsel Mary Lim and Ameerjit Singh.

In arguing against Sri Ram’s judgment, Lim wanted the Federal Court to determine five points in law:
* Whether the alleged government officials involved in the epidemic must be named in the suit
* Whether the government can personally commit tort (wrong doings) or other breaches as alleged
* Whether the government is covered by immunity in its action
* Whether the government can be sued as the primary tortfeasors (wrongdoers)
* Whether the government must plead its argument that the case if out of time at this stage.

She said the farmers’ suit is obviously hopeless and unsustainable in facts and in law. Their claims are frivolous and vexatious. Therefore, no lengthy or serious argument are needed.

Lim said the farmers despite having received financial help from the government still wanted to claim damages of RM134 million and other exemplary damages.She said in law the actual wrongdoers must be named as parties in the suit, the government cannot by itself personally commit the wrongdoings and as such the government cannot be directly be sued.

Therefore, because of this non-compliance in law, the farmers’ action should be struck out.

Lim also said the farmers’ action is out of time because the case was filed only on 20 Mar 2002 whereas the alleged wrongdoing was more than three years ago.

She said the law provides the government “absolute protection” in its action in trying to contain the epidemic and this has not been challenged by the farmers earlier.

Malik Imtaiz countered by saying that it was clear that the suit against the government was filed on the basis that it is equally liable for the wrongdoings of its officers or agents in this instance. Furthemore, there was no need to name the actual wrongdoer as it would be impossible to pinpoint each and every wrongdoer.

He argued against “absolute protection” as statutory powers must be exercised without negligence and without committing avoidable nuisance.

Regarding time limitation, Malik argued that the farmers’ suit is a mixed claim by 184 plaintiffs and a continuous action but it was filed within the three-year period allowed by law.

Judgment is reserved. (By BOB TEOH And TAN LEE CHIN/ MySinchew)