Superintendent of Land and Survey Dept. Kuching DIV Office v Ratnawati Binti Hasbi Mohamed Suleiman (01(f)-27-08/2018(Q))

Superintendent of Land and Survey Department, Kuching-Divisional Office

Government of the State of Sarawak ... Appellants And Ratnawati binti Hasbi Mohamed Suleiman ... Respondent Coram: Tengku Maimun Tuan Mat, CJ David Wong Dak Wah, CJSS Rohana Yusuf, FCJ Idrus Harun, FCJ Nallini Pathmanathan, FCJ DISSENTING JUDGMENT Introduction:

I have had the benefit of reading the draft Judgment of my learned brother Idrus Harun FCJ and with regret and respect I find myself in disagreement with the same. As the draft Judgment represents the majority view, I am constrained to write a separate Judgment. This is that Judgment.

As my learned brother has ably and succinctly set out the largely undisputed facts, I adopt the same.

The five questions of law framed for determination in this appeal, in my view, can be resolved by determining the following two questions:

(i) in a compulsory land acquisition exercise under the Sarawak Land Code ("Code"), would a failure to comply with any mandatory provision of the acquisition procedure by the acquiring authority render the entire acquisition process null, void and of no effect; and

The Court of Appeal had sustained the position of the Respondent which in essence is that there had been a noncompliance of the provisions of the land acquisition process set out in the Code resulting in an order of the Court ordering the acquired land to be re-alienated back to the Respondent.

Having studied the rationale of both the High Court and the Court of Appeal and taking into consideration of respective submissions of counsel, I am minded to agree with the reasoning of the Court of Appeal which, in my considered view, had taken the correct and only available approach to dissect the issues before them. Hence, I would dismiss the appeal, and affirm the Court of Appeal's order dated 27.10.2017. My reasons are as follows. The Operation of Article 13(1) of the Federal Constitution Generally

The starting point of any discussion on compulsory acquisition of land in this country must be Article 13(1) of the Federal Constitution which reads as follows: "No person shall be deprived of property save in accordance with law."

The critical phrase for my consideration is simply "in accordance with law". Though there appears to be scant attention by the Courts on what the aforesaid phrase entails in the context of Article 13(1) of the Federal Constitution, it is not difficult to comprehend what it entails. In simple and plain English, the law is what is prescribed in the acquisition of land provisions of the Code and if there has been any noncompliance with those provisions, the acquisition would not have been done "in accordance with law" and hence there would be a constitutional breach. The consequence would render the acquisition void and invalid.

The rationale for such a phrase "in accordance with law" can be gleaned analogously from the dictum of Raja Azlan Shah Ag. CJ (Malaya) in Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd[1979] 1 MLJ 135 ("Sri Lempah") where his Lordship said as follows, at page 148: "In these days when government departments and public authorities have such great powers and influence, this is a most important safeguard for the ordinary citizen: so that the courts can see that these great powers and influence are exercised in accordance with law. I would once again emphasise what has often been said before, that "public bodies must be compelled to observe the law and it is essential that bureaucracy should be kept in its place", (per Danckwerts L.J. in Bradbury v London Borough of Enfield [1967] 3 All ER 434 442.) The Land Executive Committee is a creature of statute, and therefore possesses only such power as may have been conferred on it by Parliament. Therefore when a power vested in it is exceeded, any act done in excess of the power is invalid as being ultra vires. If authority is needed for what may be considered as axiomatic, I need only refer to the cases of Chertsey UDC v Mixnam's Properties, Ltd [1964] 2 All ER 627 and Hall & Co Ltd v Shoreham-by-Sea UDC [1964] 1 WLR 240." [Emphasis added]

In the present case, the relevant law applicable is the Code. The Code therefore operates as a restriction on the right to possess property and, bearing in mind that ownership of property is a constitutional right, the provisions of the Code must accordingly be read with the utmost scrutiny.

I agree with the manner in which the majority deals with the land acquisition procedure, in sections 47, 48, 49, 51, 53 and 54 of the Code based on decided cases. For instance, it is trite that sections 47 and 48 may operate severally or jointly. It is also trite that once either declaration is issued, the time for assessing compensation freezes as at the date of the issuance of the relevant section 47 or section 48 declaration. What I disagree with however, is essentially on the legal ramifications of noncompliance with such provisions.

Where I differ from the majority's view is that I approached the issues before this Court with a constitutional flavour in that the Respondent's deprivation of her land by the Appellants must be considered in the context of Article 13(1) of the Federal Constitution. And, it is trite that the Court must take a vigilant and protective stand when confronted with issues pertaining to the rights guaranteed by the Federal Constitution. That is the oath that we, as judges, take when we assume the office of a Judge: to preserve, protect and defend the Federal Constitution.

The Supreme Court of India analogously explains this approach in the case of Wazir Chand v State of H.P. [1955] 1 SCR 408. In that case, the appellant's medicinal herbs had been seized due to an allegation that he was involved in embezzlement. The Supreme Court found, as a matter of course, that none of the provisions of the Indian Criminal Procedure Code had any application to enable the search and seizure of the appellant's goods. It therefore followed that the search and seizure was not countenanced in law.

This is how Mahajan CJ put it: "The procedure prescribed by the section was not followed. The Jammu and Kashmir police had no jurisdiction or authority whatsoever to carry out investigation of an offence committed in Jammu and Kashmir in Himachal territory without the authority of any law or under the orders of any magistrate passed under authority of any law. No such authority was cited before us. The whole affair was a hole-and-corner affair between the officers of the Kashmir police and of the Chamba police without any reference to any magistrate. It is obvious that the procedure adopted by the Kashmir and the Chamba police was in utter violation of the provisions of law and could not be defended under cover of any legal authority. That being so, the seizure of these goods from the possession of the petitioner or his servants amounted to an infringement of his fundamental rights both under article 19 and article 31 of the Constitution and relief should have been granted to him under article 226 of the Constitution. All that the Solicitor-General could urge in the case was that on the allegation of Prabhu Dayal, the goods seized in Chamba concerned an offence that had been committed in Jammu and being articles regarding which an offence had been committed, the police was entitled to seize them and that Wazir Chand had no legal title in them. Assuming that that was so, goods in the possession of a person who is not lawfully in possession of them cannot be seized except under authority of law, and in absence of such authority, Wazir Chand could not be deprived of them.". [Emphasis added]

What is stated by learned Chief Justice Mahajan requires no further explanation from me as his words are self-explanatory. With that, I now move to my deliberation on the Code. Interpretation of the Sarawak Land Code and the Unlawful Deprivation of the Respondent's Land

It is undisputed that when the Appellants realised their mistake of serving the section 49 notice at the wrong address, they cancelled the First Compensation Award. But, by that time, the land had already resumed to the Appellants in that the land had been registered to them. In their attempt to remedy, they cancelled the resumption purportedly under section 136 of the Code by way of a Memorandum of Rectification dated 13.9.2013. Let me state here that this cancellation by the Appellants is a clear admission that they had not complied with the relevant provisions. The consequence of such admission is telling as shown in the paragraphs below.

The position of the Respondent is simple and clear and that is, once the section 136 cancellation was effected, the Appellants and the Respondent reverted to the status quo ante the issuance of the defective section 49 notice.

However, the Appellants' position is this. The effect of the section 136 cancellation was only to nullify the first section 49 notice and that the section 48 declaration survived the cancellation. And since section 48 survives, there was no necessity to reissue a fresh section 49 notice on the surviving section 48 declaration.

With respect, that contention cannot be correct in law and I shall give my reasons later in my Judgment. At this point in time, I would like to refer to cases which set out the legal principles on the effect of noncompliance with provisions which are mandatory in nature. Strict compliance to provisions regarding compulsory acquisition of land can be gleaned from the following cases.

LC Vohrah J's judgment in Goh Seng Peow & Sons Realty Sdn Bhd v Collector of Land Revenue, Wilayah Persekutuan [1986] 2 MLJ 395 ("Goh Seng Peow”), is on point. The facts, as gleaned from the head notes, were these.

The applicant company became the registered owner of 2 lots of land in Kuala Lumpur. While developing the said land the applicant company was informed that the same had already been compulsorily acquired. The applicant-company wrote to the respondent asking for further information on the matter. The respondent forwarded copies of certain Forms issued pursuant to the Land Acquisition Act 1960. All these forms did not name the applicant-company as the registered owner of the lands.

The applicant company only came to know of the acquisition proceedings after the compensation award was made by the respondent. It accordingly contended that the acquisition proceedings were illegal, null and void since as it had no notice whatsoever of the purported acquisition proceedings and that the necessary notices and documents had not been duly served upon the registered owner (the applicant-company) as required by law.

The Government-respondent raised a preliminary objection contending that the procedure adopted by the applicant-company was incorrect and that the applicant-company could only ask for an order of certiorari to quash the proceedings as there was merely an error on the face of the record which made the proceedings only voidable and not void.

The learned judge was not inclined to uphold the preliminary objection. This is what he held at page 396 of his rather succinct judgment: "In the light of Senior Federal Counsel's admission of the relevant facts in the applicant's affidavits, I agreed with counsel for the applicant-company that the acquisition of the lands had taken place contrary to the provisions of the Act and in breach of the fundamental rules of natural justice and I was of the view that the applicant-company had made out a case that its constitutional right might have been impinged contrary to Article 13 thus entitling the applicant-company to seek a declaration." [Emphasis added]

In the learned Judge's view, there had been occasioned a breach of Article 13 (presumably Clause (1) thereof) and he had no hesitation, correctly so, to declare that the purported acquisition was null and void.

Another case on point is the judgment of the High Court at Madras in Neyveli Lignite Corporation Ltd. v P.R. Govindaraju [1993] 2 Madras Law Journal 523 ('Neyveli'). Section 20(d) of the Madras Land Acquisition Act 1894 mandatorily required the court to issue a notice specifying the day on which the court will proceed to determine objections against acquisition. The compensation awards were issued without first giving the petitioner the right to appear at the compensation hearing. The petitioner accordingly filed a challenge at the Madras High Court to set aside the awards. It will be noticed that the facts of the case are strikingly similar to the facts in the present case.

In respect of the procedural noncompliance, this is what Lakshmanan J held, at paragraphs 6 and 8: "... In my opinion, the noncompliance of the statutory provision provided under section 20(d) of the Land Acquisition Act is fatal to the case. Hence, the awards passed by the $ 3^{rd} $ respondent without affording an opportunity to the interested person cannot be allowed to stand... For the foregoing reasons, I am of the view, that the awards of the $ 3^{rd} $ respondent... are illegal, ab initio and unenforceable on the short ground of non-issue of statutory notice to the interested person, viz. the writ petitioner." [Emphasis added]

That is exactly what happened here. The difference between the above case and the present one is the reissuance of the section 49 notice. In my view, once the First Compensation hearing was held without the presence of the Respondent, and upon that hearing the land was acquired without giving her benefit of being heard, the entire process became void ab initio.

I am aware that the majority and the Appellants consider the exercise to have happened in two stages. Common to the two stages is the understanding that the section 48 declaration survived the section 136 cancellation. In light of the authorities cited above, once it has been determined that the entire process was void ab initio, it would mean that the section 48 declaration fell with the cancellation.

If I may say so here, this case would have been different had the Appellants realised from the very beginning that they had served the section 49 notice at the wrong address. They would have been at liberty to revoke it and later re-issue it at the correct address. The facts, however, are materially different. Like in Neyveli (supra), the compensation hearing had already been conducted in the absence of the Respondent. The land was thereafter registered to the Appellants and they subsequently took physical possession of it. Thus, as far as the entire acquisition process was concerned, the entirety of the Appellants' exercise of such powers under the Code was spent.

This is also supported on a wholesome reading of the Code. I take for example section 15A(1)(b) thereof which reads as follows: "Alienation of land surrendered, reverted or resumed to the Government

(1) Subject to the direction of the Minister and the provisions of Part III, the Director may-

(b) re-alienate any alienated land which has been surrendered to or resumed by the Government under Part IV, for any purposes specified in section 46." [Emphasis added]

Section 15A(1)(b) of the Code makes specific reference to the right of the Government to re-alienate any land which has been resumed to it under Part IV. Part IV houses sections 46 onward i.e. the very sections which are under scrutiny before us. Reading the Code as a whole, it is clear to me that once land resumes to the State, the section 48 notice will, upon such resumption, have extinguished. Otherwise, we would have an absurd situation where once land has resumed to the State and thereafter re-alienated by the Government, that the said section 48 notice would continue to survive. That cannot of course, with respect, be considered correct.

Instructive guidance can be gleaned from the Australian apex Court in its 3-2 judgment in SAAP & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ('SAAP'). Those in the majority were McHugh, Kirby and Hayne JJ; while the dissenting judges were Gleeson CJ and Gummow J.

The facts were these. The appellant, an Iranian citizen, applied for a protection visa to gain entry into Australia. The delegate, before whom the application was first heard, refused it. The appellant then took the matter up to the Refugee Review Tribunal ('RRT') which affirmed the delegate's decision. Aggrieved, the appellant further appealed to the Federal Court of Australia who also affirmed the delegate's refusal. She further appealed to the High Court of Australia. The majority allowed the appeal and held that the RRT had a committed a jurisdictional error.

The issue was this. Section 424A of the Australian Migration Act 1958 generally requires the RRT to give the applicant particulars of any information that the RRT considers would be the reason, or part of the reason, for affirming the decision under review, to ensure, as far as reasonably practicable, that the applicant understands why it is relevant, and to invite the applicant to comment on it (per Gleeson CJ, at paragraph 5).

Section 424A(2) specifically prescribed a specific method for such information to be supplied to the applicant. The applicant's complaint was that the procedural steps were not complied with. The Government's retort was that the appellant was illiterate and thus it would have served no useful purpose to deliver that document to her. In any event, the adverse matter had been brought to her attention and she was aware of what was going on. Thus, according to the Government, the common law requirements of procedural fairness were complied with even if the section was breached.

So, the question before the High Court was essentially whether a plain and formal breach of the statute was fatal to the hearing or not. The majority held that the statute was passed to ensure that specific safeguards would be complied with. Once a breach of the statute had been proved, what happened after or before would of no relevance and could not be used to cure such a breach. Thus, whether the common law requirements of procedural fairness were complied with or not were irrelevant once a breach of the formal procedure was established.

The above proposition is best expressed in the separate judgment of McHugh J who at paragraph 77, observed as follows: "However, because the Act compels the Tribunal in the conduct of the review to take certain steps in order to accord procedural fairness to the applicant for review, before recording a decision, it would be an anomalous result if the Tribunal's decision were found to be valid, notwithstanding that the Tribunal has failed to discharge that obligation. It is not to the point that the Tribunal may have given the applicant particulars of the adverse information orally. It is also not to the point that in some cases it might seem unnecessary to give the applicant written particulars of adverse information (for example, if the applicant is present when the Tribunal receives the adverse information as evidence from another person and the Tribunal there and then invites the applicant orally to comment on it). If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function. There can be no "partial compliance" with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not. Given the significance of the obligation in the context of the review process (the obligation is mandated in every case), it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act. Any suggestion by the Full Federal Court in NAHV to the contrary should not be accepted. Parliament has made the provisions of s 424A one of the centrepieces of its regime of statutory procedural fairness. Because that is so, the best view of the section is that failure to comply with it goes to the heart of the decision making process. Consequently, a decision made after a breach of s 424A is invalid." [Emphasis added]

The passage is crystal clear in that partial compliance with provisions in regard to compulsory acquisition of land which affects a constitutional right as it has here can never amount to full compliance of those obligations in the provisions when those obligations are there as safeguards. Everything which occurs after the breach is completely irrelevant.

It will be noted that subsequent judgments of the High Court of Australia such as those in: Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489; and Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448, appeared to have overruled their own decision in SAAP. The issues in those cases seemed to be substantially the same as the ones raised in SAAP i.e. formal noncompliance with mandatory statutory provisions. However, the departure from the principle in those cases was due to legislative changes in the relevant immigration legislation which now require the courts to assess in individual cases whether there had indeed been a breach of the principles of procedural fairness above and beyond simple or strict breaches of formal provisions of the statute.

That said, it is my considered view that the principle in SAAP still stands as good law by virtue of the narrow interpretation afforded to the Code on the basis that its provisions remain to be tested against the grain of Article 13(1) of the Federal Constitution. The analogy drawn from SAAP vis-à-vis the present case is therefore an apt comparison.

Reverting to the facts of this case, we will have to look at the entire transaction again. The First Compensation Award had been pronounced, and the land thereby resumed to the State. The only logical conclusion after that is that once the resumption had happened, the entire acquisition procedure was exhausted and the Government became at liberty to re-alienate the subject land.

Specifically, it is worth emphasising that the Appellants have exhausted the whole of their acquisition powers right from section 48 of the Code (to issue the declaration) up until section 54 (the making of the entry in the register indicating that the State has taken possession of the Respondent's land). Assuming the land had been acquired lawfully (and not in the way it was in this case), the Appellants would have been entitled to re-alienate the same under section 15A of the Code.

For all intents and purposes therefore, the entire acquisition procedure at the first resumption process was exhausted, used up, or spent. This does not mean that the section 48 declaration had been nullified. What it means is that that the section 48 declaration was already spent in the first resumption exercise.

This leads me to the Registrar's powers of correction under section 136 of the Code. For ease of reference, the relevant portion of that provision reads: "Rectification of the Register

(1) Subject to any rules made under section 213, the Registrar may, upon such evidence as appears to him sufficient, correct errors or omissions in any document of title or other instrument, or in the Register, and may make any entry necessary to supply any such omission, and any errors so corrected or entries so supplied shall have the like validity and effect as if such error or omission had not been made, except as regards any entry in the Register prior to the actual time of correcting that error or omission.

(b) any document of title, instrument, entry or endorsement has been fraudulently or wrongfully obtained, or is fraudulently or wrongfully retained;...” [Emphasis added]

The Registrar's power is an administrative power. He is therefore only at liberty to do strictly and only what the law permits him to do. His power, in the context of this case, and in my strict interpretation of the section, is only to cancel the document of title in the Appellants' name (after the unlawful resumption) and to reflect the Respondent as the registered proprietor. As the section 48 declaration was spent in the unlawful resumption process, the net effect is that when the cancellation happened - and when the land reverted in the Respondent's name - it did so without the section 48 declaration attached.

Finally, one must not forget that the Code is premised on the Torrens System whereby registration to confer title to or interest in land is the heart and soul of such System. Once the land had reverted to the Respondent, she became the indefeasible owner of the land and such indefeasibility can only be defeated by what is provided in the Code. That being the case, the Appellants must start the whole process all over again. To say that section 48 survives runs contrary to the very concept of a Torrens System, more particularly the indefeasible nature of the ownership of the land by the Respondent. I am aware that PW7's opinion was rejected on the premise that it is for the Court to decide what is the law. I have no issue with that. But the experience of PW7 in the acquisition process should not have been brushed aside without a deep analysis of PW7's reasoning.

For the reasons stated above, the position of the Appellants on the survival of the section 48 declaration is misguided.

Learned counsel for the Appellants further argued that the Respondent's case suffers from a fatal omission in not taking out an application for judicial review against the Minister's decision to issue a section 48 notice being the genesis of the whole case. At first blush, I must say that the argument appears to possess some merit. But as one dwelled deeper into it and gave it more careful consideration, the argument misses the gist of the Respondent's complaint.

While it is true that the section 48 declaration was not challenged directly, one must not forget that the Respondent's challenge is against the glaring procedural noncompliance with the provisions of the Code. The substance of the Respondent's challenge is the entire resumption process and not just the section 48 declaration premised on Article 13(1) of the Federal Constitution. This she is entitled to do, and I cannot imagine how the Appellants may have been misled or confused by her challenge.

The core of the Respondent's case is not that the section 48 notice was issued wrongfully by the Minister. As already pointed out earlier, the section 48 declaration did not, in law, survive once the land reverted to the Respondent via the Registrar's correction under section 136 of the Code. The effect of a successful judicial review application would be to invalidate the section 48 notice. The outcome here however is materially different and it lies in my legal finding that the section 48 notice expired upon the unlawful resumption exercise. This is attributable entirely to the Appellants' own negligence.

Once the Appellants resumed the Respondent's land, they had exercised their acquisition powers under the Code and in the process everything they did thereafter rendered the whole process void ab initio by virtue of their subsequent breaches of the mandatory provisions of the Code. And while the Appellants did subsequently become the owners of the land, such ownership amounted to deprivation which was not in accordance with law. The deprivation was therefore in breach of Article 13(1) of the Federal Constitution. Motive of the Respondent

The learned Judicial Commissioner in his grounds of judgment appeared to fault the Respondent's discontentment with the insufficiency of the quantum of compensation as her motivation for initiating this suit. The majority judgment also appears to embrace this attribution of fault. With respect, I am of the view that the Court of Appeal took the right approach that is, the compensation issue was actually beside the point.

The substantial issue in this case is the whole acquisition process. Even if the ultimate aim of the Respondent is to gain adequate compensation, and even though she ought to be taken to be aware of the section 48 declaration, that in itself is no excuse to justify a breach of the mandatory provisions of the Code. She has the constitutional right to ensure that she is not a victim of any constitutional breach of obligations by the Appellants.

The long and short of it all is simply that the Appellants (or the Government generally) do not have a freehand to flaunt the law or to only partially comply with it. The right of the Respondent to hold land is a guaranteed constitutional right. And should the Government choose to acquire it, then in such case, the Respondent is (as is any other person) under the reasonable expectation that the law will be followed. If the law is not followed, adequate compensation shall be afforded.

Further there is no question of any waiver on the part of the Respondent despite of her knowledge of the acquisition process. Hers is a right guaranteed by the Federal Constitution and once that right is breached, she is entitled to the benefit of that breach. Further, the draconian effect of sections 47 and 48 of the Code cannot be ignored. The aforesaid sections seemingly freeze the market value of the land to the time when such declaration was made and not the time the compensation hearing actually takes place - irrespective of the amount of time which may have elapsed between the two processes. The vigilant proprietor therefore ought to have a field day insofar as glaring procedural defects are concerned. This, in my considered view provides a suitable counterbalance to the extraordinary latitude afforded to the Government under the Code, and in my view, the best possible method to accord a restricted construction of the Government's powers under the Code in line with settled principles of constitutional interpretation.

This is what the Court of Appeal said of the Appellants' noncompliance: [55] It is trite and we are clear that it is a fundamental right guaranteed by art. 13 of the FC that no person shall be deprived of his or her property save in accordance with the law. What it means is this - that legislative, administrative and judicial action undertaken by the State against the individual is and must be objectively fair. It should not be done with the arrogance of arbitrariness or tainted with elements of unfairness or done in an excessive manner. Thus, the appellant herein has a constitutionally guaranteed right to receive a fair representation or hearing before the first respondent in the aforesaid inquiry under s. 49 of the SLC before her property is resumed to the State. She must have the right to have notice of the inquiry in respect of the resumption of her land. Hence, she must be given the right to attend the said inquiry by the issuance and proper service of the notices issued under the said s. 49 upon her. The appellant cannot be deprived of this right although she retained the option to waive it. [56] Clearly, the appellant's fundamental right to her property guaranteed by art. 13 of the FC was violated when her appearance before the first respondent in the inquiry was denied because the notice of the said inquiry was nonchalantly served at the wrong address. [57] As we have mentioned earlier, the first respondent went further by conducting the inquiry and handing down the award in respect of the resumption of the said land in the absence of the appellant and thereafter vesting the said land to the State without the knowledge of the appellant when notice of the same under s. 54(1) was not served on the appellant. Clearly, from the entire narrative of the case, the appellant was denied a fair hearing before her land was resumed to the State. Clearly too, the deprivation of the appellant's land to vest in the State was not done in accordance with law as sacrilegiously protected by art. 13 of the FC. Hence, to give meaning to such constitutional protection, the said provisions must be strictly interpreted in favour of the appellant whose property is to be deprived. The provisions prescribe clear procedures to be followed by the acquiring authority in acquiring a person's land. As such, any digression therefrom would constitute a violation of art. 13 of the FC. [58] We are further of the considered view that the second inquiry in the second resumption exercise cannot rectify the nullity apparent in the first resumption process. This is grounded upon the fact that at all material times, the subject land was still vested in the State pursuant to the first resumption exercise and there is no evidence of its proper re-alienation to the appellant pursuant to s. 13 and/or s. 15A of the SLC. We have before us the appellant's unrebutted averment that the ownership of the subject land was conveniently re-registered to the appellant less than two months after the appellant, through her solicitor, had complained to the first respondent alleging their failure and negligence in not complying with the provisions of the SLC in the resumption exercise of the subject land."

The foregoing paragraphs indicate that the Court of Appeal took into account all the correct considerations and principles of law. And, having read and re-read the appeal record, I have no hesitation in agreeing with the Court of Appeal's conclusion that the Appellants breached Article 13(1) of the Federal Constitution. Section 29(1)(b) of the Government Proceedings Act 1959 [Act 359]

Learned counsel for the Appellants relied heavily on section 29(1)(b) of Act 359 to argue that the Court of Appeal had acted beyond its jurisdiction by ordering that the Respondent's land be reverted to her. This argument finds favour and is embraced by the majority Judgment in toto.

Section 29(1)(b) of Act 359 provides as follows: "Nature of relief

(1) In any civil proceedings by or against the Government the court shall, subject to this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require: Provided that—

(b) in any proceedings against the Government for the recovery of land or other property the court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the Government to the land or property or to the possession thereof."

The complaint of the learned counsel for the Appellants is this. When the Court of Appeal made a declaration that the Respondent is entitled to the land and that the Appellants ought to cancel the transfer under section 136 of the Code, that declaration essentially amounts to an order for the recovery of land which runs afoul section 29(1)(b) of Act 359.

Again, at first blush, the aforesaid complaint appears to possess some merit. But again, with respect to learned counsel, no reference was made to Clauses (6) and (7) of Article 162 of the Federal Constitution which provide as follows: "162. ...

Article 4(1) of the Federal Constitution is only applicable to strike down laws on grounds of inconsistency if such law was passed after Merdeka Day. The controlling mechanism for laws passed before Merdeka may be found in Article 162 of the Federal Constitution. Clause (1) thereof indicates that a pre-Merdeka law shall continue to be in force until and unless the relevant authority (appointed by the Yang Di-Pertuan Agong under Clauses (4) and (5)), either repeals it or modifies it. In cases where the Yang Di-Pertuan Agong has not appointed anyone, or if anyone has been appointed but has not so acted, the duty to bring that law into accord with the Federal Constitution lies with the Court.

The first known case to apply Clauses (6) and (7) of the Federal Constitution is the judgment of the Privy Council in Surinder Singh Kanda v The Government of the Federation of Malaya [1962] 1 MLJ 169 ("Surinder Singh Kanda"). In that case, Lord Denning noted that there was in place two conflicting bodies having the power to appoint police officers. One was the Commissioner of Police and the other the Police Service Commission. To resolve this conflict, his Lordship applied Articles 162(6). At page 171, Lord Denning held: "But the Yang di-Pertuan Agong did not make any modifications in the powers of the Commissioner of Police, and it is too late for him now to do so. In these circumstances, their Lordships think it is necessary for the Court to do so under Article 162(6). It appears to their Lordships that there cannot, at one and the same time, be two authorities, each of whom has a concurrent power to appoint members of the police service. One or other must be entrusted with the power to appoint. In a conflict of this kind between the existing law and the Constitution, the Constitution must prevail. The Court must apply the existing law with such modifications as may be necessary to bring it into accord with the Constitution. The necessary modification is that since Merdeka Day it is the Police Service Commission (and not the Commissioner of Police) which has the power to appoint members of the police service. And that is just what has happened. The Police Service Commission has in fact made the appointments. And their Lordships are of opinion that they were lawfully made." [Emphasis added]

The most recent case applying such modification power is the dissenting judgment of Zainun Ali FCJ in Ketua Polis Negara & Ors v Nurasmira Maulat bt Jaafar & Ors and other appeals [2018] 3 MLJ 184 ('Kugan's case'). In that case, the estate of one Mr Kugan, who died in police custody sought exemplary damages against the Government. The Government argued that exemplary damages were expressly debarred by virtue of section 8(2)(a) of the Civil Law Act 1956.

Now, as rightly noted by her Ladyship, exemplary damages for a breach of a fundamental right is a part and parcel of Article 5(1) of the Federal Constitution. Thus, her Ladyship exercised her powers under Article 162(6) to modify the section. This is what her Ladyship held at paragraphs 73 and 78-79: "As had been alluded to above, the Civil Law Act 1956 predates the Federal Constitution. Thus it is a pre-Merdeka law or an existing law. It is clear that the section violates the right of the deceased (Kugan) in this case to have, as a matter of constitutional guarantee, an award of exemplary or aggravated damages. Being a pre-Merdeka law and therefore an existing law that is inconsistent with a provision of the Constitution, the duty of this Court is to read it in accordance with art 162(6) of the Federal Constitution to bring it into accord with the latter... Taking the above and acting upon the dictates of art 162(6), I would interpret sub-sub-s 8(2)(a) of the CLA as follows, to bring it into accord with the Federal Constitution. It would thus read: Section 8(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person-

(a) Shall not include any exemplary damages save where the cause of action concerns the violation of a right guaranteed by the Federal Constitution, any damages for bereavement made under subsection 7(3A), any damage for loss of expectation of life and any damages for loss of expectation of life and any damages for loss of earnings in respect of any period after that person's death; By reading into para (a) of sub-s 8(2) the emphasised words, the section is brought into accord with the Federal Constitution.".

The underlined portion in the above passage constitutes her Ladyship's amendment to section 8(2)(a) of the Civil Law Act 1956. Now, one might question how the Courts may exercise what are essentially legislative powers. This very question was addressed by Gopal Sri Ram JCA in Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors [2004] 4 CLJ 169, at page 191 (which was cited with approval by Zainun Ali FCJ in Kugan's case (supra) at paragraph 75): "How then do you modify section 12 to render it harmonious with art. 13(2)? I think you do that by reading the relevant phrase in section 12 as "the State Authority shall grant adequate compensation therefor." By interpreting the word "may" for "shall" and by introducing "adequate" before compensation, the modification is complete. I am aware that ordinarily we, the judges, are not permitted by our own jurisprudence, to do this. But here you have a direction by the supreme law of the Federation that such modifications as the present must be done. That is why we can resort to this extraordinary method of interpretation." [Emphasis added]

I am fully aware that neither the Appellants nor the Respondent raised Article 162 of the Federal Constitution during the course of argument. Be that as it may, it is my considered view that my reliance on that provision does not occasion any breach of natural justice. From the tenor of the judgments aforementioned, it is patently clear that the duty to modify the law to bring it into accord with the Federal Constitution lies with the Courts (when the Yang Di-Pertuan Agong or the relevant body appointed has not done so).

The duty on the Courts is a mandatory one notwithstanding that Article 162(6) itself stipulates that the Court "may" apply the pre-Merdeka law with such modifications. Neither the Courts, nor any other body for that matter, are permitted to encourage the pervasion of a law inconsistent with the Federal Constitution. That the word "may" is mandatory and not directory is reflected in the following passage of Suffian FJ from Assa Singh v Menteri Besar, Johore [1969] 2 MLJ 30, at page 40: "Answering the second part of the question posed, even assuming that the Enactment is inconsistent with the Constitution, I say that the Enactment is not void but that it must be applied with modifications to bring it into accord with the Constitution.". [Emphases added]

A further reason why I think applying Article 162 here does not occasion a breach of natural justice is this. The Appellants essentially argue that we cannot be permitted to act against the express prohibition in section 29(1)(b) of Act 359 even though there has been a breach of a constitutional right. Such submission, in my respectful view, goes to the extent of saying that the right to property in Article 13(1) must be read subject to a statute where in this country we practice Constitutional supremacy as opposed to Parliamentary supremacy. The argument cannot therefore be correct for obvious reasons.

In my considered view, the case at hand is factually no different from Kugan's case (supra). Here, the Respondent was unlawfully deprived of her land. I do not consider it a sufficient answer to say that the Courts, which by constitutional design exist to do justice, may be debarred from granting an order for recovery of land by a pre-Merdeka law. Prioritising the pre-Merdeka law over Article 13(1) of the Federal Constitution is, in my respectful view, to completely disregard the supremacy of our founding document. Accordingly, I would, and do, modify section 29(1)(b) of Act 359 to read as follows (amendments marked in underline): "29. (1) In any civil proceedings by or against the Government the court shall, subject to this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require: Provided that—

(b) in any proceedings against the Government for the recovery of land or other property the court shall not, save where the action concerns a violation of a right guaranteed by the Federal Constitution, make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the Government to the land or property or to the possession thereof."

With the insertion of the modifications in the underlined portion, it is therefore apparent that section 29(1)(b) no longer applies to prohibit the recovery of land where the action concerns a violation of a constitutionally guaranteed right. In this case, we are dealing with a breach of Article 13(1) of the Federal Constitution, and it is my view that the said section 29(1)(b) does not prohibit this Court from enforcing the Respondent's right guaranteed her by Article 13(1).

The Appellants also placed reliance on the judgment of the Privy Council in Pemungut Hasil Tanah Daerah Barat Daya, Penang v Kam Gin Paik & Ors [1986] CLJ (Rep) 33 ('Kam Gin Paik') to support the argument that section 29(1)(b) of Act 359 prohibits the Court from making an order for recovery of land against the Government. In that case, the Privy Council agreed with the concurrent decisions of the Courts below that the acquisition process was invalid. However, in light of section 29(1)(b), the Board modified the order of the lower Court ordering the recovery of land to a mere declaration that the original proprietor was entitled to the land.

From my reading of the judgment, I did not notice any reference to Article 162. I can only assume that it was not brought to their Lordship's attention. It cannot be said that the Privy Council was ignorant of the existence of that Article considering the first ever case to have applied it was the decision of the Board itself in Surinder Singh Kanda (supra). But for some reason or another, Article 162 was not at all referred to in the judgment.

In recent times, our Courts have seen no impediment in harmonising laws (acquisition laws more specifically) with Article 13(1) of the Federal Constitution. They have accordingly read the law in such a way so as to uphold the right to property, as far as permissible. The two cases that come two mind are Tenaga Naisional Bhd v Bukit Lenang Development Sdn Bhd[2019] 1 MLJ 1 ('Bukit Lenang') and Jais Chee & Ors v Superintendent of Land & Surveys Kuching Division [2014] 3 CLJ 467 ('Jais Chee').

In Bukit Lenang (supra), the Federal Court expressed the following general proposition which I find most instructive, at paragraph 27: "It is trite canon [sic] of interpretation that statutes which encroach upon rights, whether as regards persons or property, are subject to strict construction in the same way as penal Acts. It is a recognised rule that they should be interpreted, if possible, so as to respect such rights and if there is any ambiguity, the construction which is in favour of the protection of the individual rights should be adopted..." [Emphasis added]

This leads me to the Jais Chee (supra) decision which is a more analogous example. The facts were shortly these. The Government of Sarawak had issued a section 48 declaration to acquire some lands sometime in 1996. The section 49 notice for the compensation hearing was only issued in 2005, that is, nine years later. When the compensation hearing was ultimately held in 2005, the land was valued at its market price as at 1996 and not 2005. At the compensation hearing, the aggrieved party had in fact tendered her own expert evidence of valuation as at 2005. Land is generally an appreciating asset and thus it was no surprise that its 2005 value was markedly higher than its 1996 value.

The Appellant ultimately had the issue of the inadequacy of the compensation sum referred to the High Court. Her request was essentially that she be paid the difference between the 2005 and 1996 valuation sums. The High Court declined to disturb the compensation award considering itself bound by section 60(1)(a) of the Code which stipulates that the value of the land shall be determined as at the date the section 48 notice declaration was issued.

Thus, a literal and pedantic interpretation of section 60(1)(a) of the Code would mean that the 1996 sum was the right one and not the 2005 one.

On appeal, the Court of Appeal noted that Article 13(2) guarantees adequate compensation. The law generally requires that things be done with 'convenient speed'. The nine-year delay on the part of the Government was unreasonable and as such, the Court read section 60(1)(a) of the Code subject to Article 13(2) of the Federal Constitution and not the other way around. It was on this reading that the Court ascertained that the 2005 compensation sum was the right one. The Court of Appeal therefore granted her the difference between the 2005 and 1996 amounts.

Ours, as pointed out earlier, is a system which epitomises Constitutional supremacy over Parliamentary supremacy. In any event, reverting to the facts of the present case, Act 359 is a pre Merdeka law which means it was not, in the first place, enacted by Parliament. I am reluctant to think that their Lordships of the Privy Council in Kam Gin Paik (supra) would have made the decision they did had they been referred to both Article 162 of the Federal Constitution and their prior judgment in Surinder Singh Kanda (supra).

Thus, with the greatest of respect and deference to their Lordships, the judgment of the Board in Kam Gin Paik (supra), insomuch as it decides that section 29(1)(b) debars the Court from granting on order of recovery of land for a breach of a constitutional right, was a decision made in ignorance of Article 162 of the Federal Constitution, and thus per incuriam-and on that basis, is not liable to be followed for the proposition it purports to make.

Based on the foregoing, I am constrained to grant an order in favour of the Respondent i.e. that the Appellants to rectify the register to reflect the Respondent as the registered proprietor without the section 48 declaration attached. This, in my view, does not prejudice the Appellants because they are at liberty to issue a fresh section 48 declaration. And, in light of the modification I have made to section 29(1)(b) of Act 359, I see no impediment to my granting such an order in favour of the Respondent. The Appellants' Liability in Negligence, and Damages

The High Court dismissed the Respondent's claim outright. The Court of Appeal reversed and granted her prayers for general and special damages. This order was based on the Court of Appeal's finding that there was indeed a breach of the Respondent's Article 13(1) rights.

The majority Judgment sets aside the above award on the premise that the section 48 declaration remained in force during the second resumption exercise. As I have indicated, I do not agree that it did.

Therefore, there has been a clear breach of the Code on the part of the Appellants and as such, a breach of a duty of care owed by them to the Respondents. I therefore see no mistake on the part of the Court of Appeal in granting the Respondent damages (general and special) to be assessed by the High Court. I am therefore inclined to uphold that order.

This is purely a case where the Appellants had failed to comply with what has been provided in the process of compulsory acquisition of land under the Code. The section 48 declaration could not have survived the section 136 cancellation. Failing to start the whole process from point zero resulted in a constitutional breach and thus resulted in an unlawful deprivation of the Respondent's property in breach of Article 13(1).

As for the remedy, I do not think it was quite correct for the Court of Appeal to declare that the Appellants are to "re-alienate" the Respondent's land to her. The second resumption was unlawful and void ab initio because it failed to comply with the strict legal requirements of the Code. "Re-alienation" is only possible under section 15A of the Code when the resumption itself was in the first place lawful. The more appropriate order, in my respectful view, is for the title of the Respondent to the subject land be reinstated.

Section 29(1)(b) of Act 359 cannot operate to debar the reinstatement because it is a pre Merdeka legislation and must therefore be modified to be read subject to the Federal Constitution and not the other way around.

For the purposes of completeness, I think it is pertinent to reproduce the questions of law raised in this appeal and to provide my answers to them in accordance to my analysis above. These are:

(a) whether, in an action for negligence, against the Government and an officer of the Government for breach of noncompliance with statutory provisions relating to inquiry and award of compensation when land is compulsorily acquired for a public purpose, a Court of law has the power or jurisdiction to order that the acquired land be reinstated or re-alienated to the landowner; alternatively; Answer: affirmative to the extent that the remedy is reinstatement and not re-alienation.

(b) whether, having regard to section 29(1)(b) of the Government Proceedings Act 1956, a Court of law has the jurisdiction to order reinstatement and/or realienation of land acquired by Government for public purpose where there has been breach of duty on the part of its officers to comply with the statutory provisions relating to inquiry and award of compensation; Answer: affirmative to the extent that the appropriate order to be made is reinstatement.

(c) where a declaration has been made by the Minister under section 48 of the Land Code, to resume land needed for a public purpose, can the resumption process or exercise carried out pursuant thereto be fatal or unlawful and be set aside by reason only that the Superintendent has failed to comply with the statutory requirements in the conduct of an Inquiry to assess compensation to be paid for the acquired land even though the owner of the acquired land had not discharged the onus of providing that the award of compensation based on the market value of the land as at the date of the section 48 declaration was inadequate; Answer: affirmative.

(d) whether an owner of land, who at the time of the purchase thereof, had declared that he/she was aware the land was already subject to a declaration made by the Minister under section 48 of the Land Code as being needed for a public purpose, is entitled to seek a declaration that the resumption process was unlawful or fatal, due to noncompliance with the procedural requirements laid down by the Land Code for assessment of compensation; and Answer: affirmative.

(e) whether a declaration made by the Minister under section 48 of the Land Code is deemed extinguished and lapsed upon convening an inquiry under section 51 of the Land Code. Answer: affirmative.

Accordingly, I dismiss the appeal with costs in the sum of RM20,000.00. In view of what I have said on Court of Appeal's order to "re-alienate", I modify the order of the Court of Appeal dated 27.10.2017 and substitute it with the orders that follow. And to avoid confusion, the following shall constitute the order of the Court in place of the said Court of Appeal order, that is to say:

(a) the Respondent's prayers in terms of paragraphs 19(i) and (ii) of the Statement of Claim dated 17.11.2015 ('SOC') are allowed, namely:

(i) a declaration that the $ 1^{\mathrm{st}} $ Appellant had failed to comply with the mandatory provisions of sections 49,51,52,53,and 54 of the Sarawak Land Code in the resumption process of the said subject land, whereby such noncompliance is fatal;

(b) a consequential declaration that the Memorandum of Rectification dated 13.9.2013 which had the effect of cancelling the first resumption also had the effect of lapsing and extinguishing the section 48 declaration originally attached to the subject land as gazetted on 2.7.2009 ('the section 48 declaration');

(c) a consequential declaration that because the section 48 declaration had lapsed or extinguished, the subsequent resumption vide Memorandum of Declaration of Resumption Instrument No. L202/2012 （'second resumption'）was therefore in breach of the Sarawak Land Code and Article 13(1) of the Federal Constitution. Accordingly, the second resumption was also null and void;

(d) a consequential declaration that because both the first and second resumptions were null and void, the Respondent remains the lawful registered proprietor of the subject land without the section 48 declaration attached;

(e) for the removal of doubt, a declaration that the Minister is at liberty to impose a fresh section 48 declaration if the Appellants remain interested to acquire the subject land on account that the earlier section 48 declaration had lapsed and extinguished;

(f) an order directing the Appellants forthwith to take all necessary steps, measures and action to rectify the register so that the title of the subject land may be reinstated in the name of the Respondent without the section 48 declaration attached;

(g) an order that the Respondent do refund the sum of RM811,693.89 to the $ 2 ^{n d} $ Appellant without interest within 30 days from the service of this Order; and

(h) the Respondent's prayer in terms of paragraphs 19(iii) of the SOC is allowed, i.e. general and special damages to be assessed before a Judge of the High Court. The matter is accordingly remitted to the High Court for assessment of damages. Dated: 15 January, 2020. (DAVID WONG DAK WAH) Chief Judge, Sabah and Sarawak. For the Appellants: Dato' Seri JC Fong Joo Chung and Evy Liana Atang [Sarawak State Attorney-General's Chambers] For the Respondent: William Ding [Messrs. William Ding & Co. Advocates]