Superintendent of v Ratnawati Binti Hasbi Mohamad Suleiman (01(f)-27-08/2018(Q))

SUPERINTENDENT OF LAND AND SURVEY DEPARTMENT KUCHING-DIVISIONAL OFFICE … 1ST APPELLANT

STATE GOVERNMENT OF SARAWAK … 2ND APPELLANT AND RATNAWATI BINTI HASBI MOHAMAD SULEIMAN (WN. KP. 751002-13-5468) … RESPONDENT [In The Court of Appeal of Malaysia At Kuching (Appellate Jurisdiction) Civil Appeal No: Q-01(NCvC)(W)-98-04/2016 Between Ratnawati binti Hasbi Mohamad Suleiman (WN.KP.751002-13-5468) … Appellant And

Superintendent of Land And Survey Department Kuching-Divisional Office … 1st Respondent

State Government of Sarawak … 2nd Respondent] 2 [In The High Court of Sabah and Sarawak At Kuching Civil Suit No: KCH-21NCVC-10/9-2014 Between Ratnawati binti Hasbi Mohamad Suleiman (WN.KP.751002-13-5468) … Plaintiff

And Superintendent of Land And Survey Department Kuching-Divisional Office … 1st Defendant

State Government of Sarawak … 2nd Respondent] CORAM TENGKU MAIMUN TUAN MAT, CJ DAVID WONG DAK WAH, CJSS ROHANA YUSUF, FCJ IDRUS HARUN, FCJ NALLINI PATHMANATHAN, FCJ GROUNDS OF JUDGMENT Introduction [1] This is a judgment of this Court on an appeal by Superintendent of Land and Survey Department Kuching-Divisional Office and the State Government of Sarawak, the defendants to the action, against the order 3 of the Court of Appeal made on 27.10.2017. Before going more closely into this appeal, it is necessary to state at the outset that this judgment sets forth the majority opinion of the judicial panel of this Court which is agreed to by my learned sisters Tengku Maimun Tuan Mat, CJ, Rohana Yusuf, PCA, and Nallini Pathmanathan, FCJ, having read this judgment and the conclusion reached in draft. [2] The Court of Appeal allowed the appeal by Ratnawati Binti Hasbi Mohamad Suleiman, the plaintiff to the action, setting aside in the result, the High Court Order dated 29.2.2016. Shorty stated, the Court of Appeal in the aforesaid order granted a declaration that the first appellant’s failure to comply with mandatory procedural provisions of sections 49, 51, 52, 53 and 54 of the Sarawak Land Code (Cap. 81) in the resumption process of the subject land taken by the first appellant up to the registration of Declaration of Resumption vide Instrument no. L679/2012 (the first resumption) whereby the same was resumed to the State on 12.3.2012 without any notice being given to the respondent herein and/or without her knowledge was fatal and therefore null and void. The status quo of the subject land prior to the first resumption exercise was ordered to be reinstated and was to be re-alienated to the respondent pursuant to section 15A of the Sarawak Land Code (Cap. 81). However, the minister was at liberty to impose a fresh section 48 declaration and have it regazetted if the State was still interested to acquire the subject land on account that the section 48 declaration gazetted on 2.7.2009 affecting the subject land was deemed extinguished and lapsed upon the convening of the first inquiry. Following the above decision, the respondent was ordered to make full repayment of the sum of RM811,693.89 to the second appellant without interest and her claim for special and general damages was allowed with interest. 4 Facts [3] For the most part, the salient facts central to this appeal which we draw from the record of appeal, are not in dispute. The subject land in question is Lot 582, Block 6, Matang Land District in the locality of 4th mile, Matang Road, Kuching, Sarawak. On 2.7.2009, the minister made a declaration under section 48 of the Sarawak Land Code (Cap. 81) (the Land Code for short) vide G.N.2624 that the subject land was needed for a public purpose, namely, “Proposed Flood Bypass From Sg. Sarawak to Batang Salak” (Exhibit D3). [4] A notice under section 49 of the Land Code dated 26.6.2009 was served on Mary Ling Moi Moi and Agatha Cheong Siew Yeng who at the material time were registered owners of the subject land for the purpose of inquiry which was fixed for 29.7.2009. However, the inquiry was postponed until further notice. [5] On 1.8.2011 the respondent, who resided in Doha, Qatar since 2003, acquired the subject land from the above-named proprietresses by way of 2 Memoranda of Transfer (Exhibit D10) dated 1.8.2011 which were registered at the Kuching Land Registry on 17.08.2011. The acquisition price for the subject land as stated in the said Memoranda of Transfer was RM1,500,000.00. The respondent’s evidence during cross-examination reveals that despite admitting that she had engaged a professional valuer for a valuation of the subject land at the time she bought the subject land, she paid this sum without knowing the market value of the land in 2009 when the section 48 declaration was made by the minister. 5 [6] At the time of the submission of the Memoranda of Transfer for registration with the Kuching Land Registry Office, the respondent simultaneously signed a declaration (Exhibit D10) whereby she declared that she was aware of the subject land being subject to the section 48 declaration dated 2.7.2009. This declaration was signed by the respondent in the presence of her own advocate, Mohd Osman bin Ibrahim. In her testimony, the respondent also admitted that at the time she purchased the subject land, she was aware of the aforesaid section 48 declaration. She also agreed that the market value of the subject land was frozen when the said declaration was made. [7] On 28.9.2011, the first appellant caused to be issued to the respondent a notice under section 49 of the Land Code to attend an inquiry to be held on 25.10.2011 for the purpose of determining the amount of compensation to be awarded for the acquisition of the subject land. However, the notice was mistakenly sent to the wrong address at No. 366, Jalan Abang Ateh, Kuching and consequently, the respondent did not attend the inquiry on 25.10.2011 (the first inquiry). The undisputed evidence shows that the respondent’s correct address is Lot No. 336, Jalan Abang Ateh, 93400 Kuching, Sarawak. In the event, the first inquiry proceeded without the presence of the respondent. [8] Following the first inquiry, vide Award No. 293/2011 dated 21.11.2011 (Exhibit D6), an award was made by the first appellant pursuant to section 51 of the Land Code to pay the sum of RM811, 693.89 as compensation for the acquisition of the subject land. On 13.12.2011, vide a Memorandum of Declaration of Resumption of Land, Instrument L 679/2012, the subject land, together with lands acquired from 32 other 6 registered proprietors, were thereupon resumed and taken possession of by the first appellant pursuant to section 54 of the Land Code. [9] The respondent later discovered that the subject land had been resumed to the second appellant when her brother-in-law namely Dzamaluddin bin Zainuddin (PW2) went to pay quit rent for the year 2013, but was informed by the counter staff of the first appellant that the subject land was no longer registered in the respondent’s name. Complaints therefore were made by the respondent through his advocates that the resumption of the subject land to the second appellant was made without her knowledge. The first appellant then decided to remedy the mistake that resulted in the respondent not being present at the first inquiry by rectifying the Land Register by way of a Memorandum of Rectification of Land Register in accordance with section 136 of the Land Code in the course of which the respondent’s name was thereby restored as the registered proprietress of the subject land. It is to be noted that the aforesaid Memorandum states that the error was due to typographical error and that the first appellant was satisfied that the error in question had been proved to his satisfaction. [10] Having remedied the mistake, the respondent was subsequently served with a fresh section 49 notice dated 27.9.2013 under the Land Code to inform her of a second inquiry. On 24.10.2013, the second inquiry was held in her presence. William Ding, her lawyer, and Terrance Yap Wei Tzen, her valuer, were also present at the said inquiry. Arising from this second inquiry, the first appellant, vide Award No. 420/2013 made an award on 11.11.2013 to compensate the respondent with a sum of RM811,693.89 (Exhibit D9). This award was based upon the market value of the subject land at the date the section 48 declaration was 7 gazetted. Although, in the course of the proceedings before the High Court the respondent called a professional valuer namely Henry Lu Nam Huat (PW1) as her witness, PW1 offered no evidence to dispute the market value of the subject land was RM811, 693.89 as at the date of the publication of the section 48 declaration in the Sarawak Government Gazette on 2.07.2009. [11] On 12.11.2013, the respondent through her lawyer informed the first appellant that she accepted the award under protest and applied to the first appellant under section 56 of the Land Code to require the matter to be referred by the first appellant to the High Court for its determination on the validity and quantum of the award. The second Memorandum of Declaration of Resumption of Land affecting the subject land vide Instrument No. L202/2014 by the first appellant was entered in the Land Register on 27.12.2013. The respondent was paid the sum awarded on 10.1.2014 and at the same time was informed by the first appellant that her application for reference to the High Court was under preparation. However, before the matter could be referred to the High Court under section 56, the respondent, on 15.9.2014, filed her claim in this action seeking to be granted –

(i) a declaration that there was a failure on the part of the first appellant to comply with the mandatory statutory procedural provisions of sections 49, 51, 52, 53 and 54 of the Sarawak Land Code in the resumption process of the subject land and whereby such non-compliance is a fatal irregularity;

(v) a declaration that since the first Memorandum of Declaration of Resumption had not been revoked, the first appellant cannot in law register another second Memorandum of Declaration of Resumption affecting the subject land as this is amounting to duplicity of two awards being issued;

(i) whether, in an action for negligence, against the Government and an officer of the Government for breach or non-compliance 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 realienated to the landowner; alternatively;

(v) 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 57 of the Land Code. [23] In considering the legal questions that have been raised in this appeal, we will need to look at and understand the statutory scheme or process of compulsory acquisition of land under the Land Code to which the material facts outlined above relate. It is trite to state that the various processes of compulsory acquisition of land in Sarawak is governed by Part IV of the Land Code. These processes begin with a decision of the 16 minister that any alienated land is likely to be needed for any of the purposes specified in section 46 of the Land Code after which the land may be resumed or acquired using either a combination of sections 47 and 48 of the Land Code or section 48 alone. Here we would quote from the Land Code sections 47 and 48 in full – Section 47. Power to enter and survey.

(b) In the case of Native Customary Land or Kampung Reserve, the declaration shall also state that any native customary rights or other rights to occupy the same under section 5, 6 or 7, shall be deemed to have been terminated on the date of the publication of the declaration in the Gazette, and that claims for compensation consequent upon the termination of such rights may be made in accordance with section 49.

(c) The declaration shall be published in the Gazette and posted on the notice board of the offices of the Superintendent and District Officer for the area where the land is located, and if it affects Native Customary Land or Kampung Reserve, the declaration shall also be published in at least one newspaper circulating in the State.

(a) a decision by the minister either to issue a notification under section 47 that the land is likely to be needed for a public purpose or make a declaration under section 48 by him that the land is needed for a public purpose (the first stage); and

(b) thereafter, the Superintendent (the first appellant herein) would proceed to, inter alia, hold an inquiry to determine and award compensation (the second stage). [27] The above approaches did not escape the learned Judicial Commissioner’s notice when His Lordship at paragraph [24] of the judgment correctly said – “[24] I agree with the Defendants’ submission that as a Superintendent, the 1st Defendant’s duty only commences after the declaration by the Minister under section 48 of the Land Code.” [28] Having briefly outlined the law as we understand it, we now turn to consider the questions of law posed by the appellants in this appeal. We shall first deal with questions (i) and (ii) together as there are clear links between both questions. This will in turn be followed with our deliberations on questions (iii) to (v) which, for the same reason, will also be considered together. 20 [29] Before us, the first two leave questions are taken on jurisdiction which concerns the extent to which the court may make an order in any proceedings against the government for the recovery of land by reason of section 29 of the Government Proceedings Act 1959 (Act 359). For the appellants, it is submitted that the relief granted by the Court of Appeal amounts to reinstatement and realienation of the subject land. Such relief, according to learned State Legal Counsel, is wrong in law and legally unsustainable the reason principally being that the court has no jurisdiction to grant the order for recovery of land against the government because of section 29(1)(b) of Act 359. [30] Mr William Ding, submitting on behalf of the respondent disagrees with the above submission. He argues that the Court of Appeal is right to have made the declaratory order that the first appellant fails to comply with mandatory provisions of sections 49, 51, 52, 53 and 54 of the Land Code in the resumption process of the subject land. Such non-compliance, according to learned counsel, is fatal. The Privy Council’s decision in Pemungut Hasil Tanah, Daerah Barat Daya, Penang v Kam Gin Paik & Ors [1986] CLJ (Rep) 33 is distinguishable. It is further submitted that the principal issue before the Privy Council was whether the Federal Court was correct in affirming the decision of the High Court that the long delay between the publication of a declaration under section 8 of the Land Acquisition Act 1960 in G.N 89 and the inquiry into compensation vitiated the appellant’s award and rendered it a nullity. In the instant appeal, the respondent was seeking various declaratory orders on the ground of non-compliance with the aforesaid provisions and the respondent was also claiming for special and general damages premised on negligence. It has also been urged upon us to consider that the Court of Appeal did not make a direct order for the appellant to deliver the subject land to the 21 respondent. Indeed, it made an indirect order in declaring that the respondent was entitled to possession of the subject land. As it was, learned counsel very sensibly submits, if the declaratory order made by the Court of Appeal in directing the re-alienation of the subject land to the respondent is erroneous, the said declaratory order may be varied to the effect that the respondent is entitled as against the appellants to possession of the subject land. The parties have had a fair opportunity to address their arguments on this issue. Needless to say, for our part being the ultimate court of appeal, what then we need to do is to confine our deliberations to these submissions, the case or issues put forth before us and we do not propose to venture or travel beyond it. [31] There is admittedly much attraction in the argument urged for the appellants, and if there is any real substance in these arguments, it would follow that the Court of Appeal was wrong in making the order it did in this section. The order in question is stated to the effect that the subject land is to be reinstated and re-alienated to the respondent by reason of non-compliance with statutory provisions governing inquiry or award of compensation for the land acquired for public purpose. It is clear, in our view, that such order of reinstatement and realienation of the subject land to the respondent is akin to an order for recovery of land made against the second appellant which the court is not entitled to grant under section 29(1)(b) of Act 359. The reasoning of the Court of Appeal for the conclusion reached by it in the granting of the declaratory order of reinstatement and realienation of the subject land can be gleaned from paragraphs [58] to [62] and [65] to [66] of the judgment. Simply put, based on these paragraphs the Court of Appeal allowed the declaratory orders in favour of the respondent and directed that the subject land to be 22 reinstated on a status quo basis or reverted to its original position prior to the first resumption exercise. [32] Section 29(1)(b) of Act 359 is a plain provision in express terms on a prohibition imposed on the court from granting any order for recovery of land against the Government. It is expressed in peremptory language as follows: “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 appropriate relief as the case may require: Provided that –

(a) –

(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. [our emphasis] [33] What is important to note is that the order made by the Court of Appeal goes to the extent of making it explicit that the subject land be reinstated to the respondent or that the subject land be realienated to the respondent under section 13 or 15A of the Land Code. It leaves no room for doubt that the order is intended to ensure that the subject land is reinstated or restored to the ownership of the respondent and require the minister to re-gazette a fresh section 48 declaration if the second appellant still needs the subject land for the public purpose. One thing 23 which is very clear is that the immediate effect of the order is to entitle the respondent to take possession of and recover from the Government the subject land leaving it with absolutely no choice but to comply with it. We see nothing in this order to entitle us to come to a different conclusion. It is indeed pointless for the Court of Appeal to make the order in question when it has no power to make the order in the nature of the recovery of the subject land as against the Government because section 29(1)(b) of Act 359 prohibits such order being so made against the Government whose servant the first appellant is. The order cannot therefore be allowed to stand. [34] To set the context, Lord Keith of Kinkel who delivered the judgment of the Pricy Council in the case of Pemungut Hasil Tanah, Daerah Barat Daya, Penang, supra, alluded to section 29(1)(b) of Act 359 and proceeded to hold that the said section precludes an order being made against the Government for the recovery of the land. In the above case, the Penang State Authority, on 30.3.1972 published in the Gazette under section 8 of the Land Acquisition Act 1960 a declaration (G.N.89) that certain lands including some in the ownership of the respondent were needed for public purposes. The appellant held an inquiry under section 10(1) of the Act in 1976, seven years after the publication of the aforesaid publication of the declaration in 1972. The appellant issued an award to the respondents. Subsequently, leave of the High Court to apply for certiorari to quash the appellant’s award was obtained by the respondents. The respondents later made application for certiorari in relation to alleged contravention of the natural justice in the appellant’s conduct of the inquiry leading to the award and also in relation to whether the delay of 7 years in the holding of the inquiry had the effect of invalidating the award. The High Court inter alia quashed the declaration 24 in G.N.89 and all subsequent proceedings including the inquiry and the award and declared that any acquisition or taking possession by the appellant of the respondent’s land was null and void. Consequently the appellant was directed by the High Court to deliver back to the respondent’s possession of any of their lands which the appellant had taken. The Federal Court allowed the appeal in part (see Pemungut Hasil Tanah, Daerah Barat Daya (Balik Pulau) Pulau Pinang v Kam Gin Paik & Ors [1983] 2 MLJ 390). With regard to section 29(1)(b) of Act 359, the Federal Court held that the High Court had no power to make an order against the appellant for delivery up of possession of the respondents’ land, and accordingly set aside that part of the High Court’s order. At page 395 of the report, the Federal Court succinctly said – “Having regard to the express provisions of section 29(1)(b) of the Government Proceedings Ordinance, 1956 can the court at all make an order of repossessions of the lands against the Government?...Section 29(1)(a) was also examined in Ramamoorthy v. Menteri Besar Selangor & Anor [1971] 1 MLJ 187 and Gill F.J as then was, said that the provisions of section 29 are “sufficiently clear so as to leave no room for argument.”…the special position of the Government is nevertheless maintained and the power of the court to grant relief against the Government is expressly restricted. In the preliminary note of Halsbury’ Statute Vol. 6 the following note explains the position of the Crown in all civil proceedings as provided by section 21 of the Crown Proceedings Act, 1947 of the United Kingdom which is in pari materia with section 29 of our Government Proceedings Ordinance, 1956: No relief by way of injunction or order of specific performance may be given against the Crown or an officer of the Crown if the effect would be to bind the Crown, but instead an order declaratory of the rights of the parties must be made. Not order may be made against the Crown for the recovery of land or the delivery of property, but instead any order 25 must declare that as against the Crown the plaintiff is entitled to the land or property." [our emphasis] [35] The Privy Council held that the High Court and the Federal Court were correct in holding that the inquiry and subsequent award were invalid and should be set aside. Hence, the appellant was not entitled to take possession of the respondents’ land under the Act and the appellant was under a duty to restore possession to the respondents. However, the Privy Council agreed with the Federal Court that under section 29(1)(b) of Act 359 the High Court had no power to direct the appellant to deliver back the subject land to the respondents. It was further held that the Federal Court should have gone on to make an order in terms of section 29(1)(b) of Act 359 declaring that the respondents were entitled as against the appellant to possession of the land. Lord Keith of Kinkel, whilst referring to the Federal Court’s decision at page 37 of the report noted that – “They also held that having regard to s. 29(1)(b) of the Government Proceedings Ordinance 1956, the trial Judge had no power to make order against the appellant for delivery up of possession of the respondent’s lands, and accordingly set aside that part of his order. In other respects the Federal Court dismissed the appeal.” At page 39 His Lordship proceeded to hold that – “…their Lordships agree with the Federal Court that s.29(1)(b) of the Government Proceedings Ordinance 1956 precludes an order being made against the Government whose servant the appellant is, for the recovery of the land. So the Federal Court rightly set aside that part of the order of the learned trial Judge which ordered the appellant to deliver possession of the lands back to the respondents. What the Federal Court should, however, have gone on to 26 do was to make an order, in terms of s. 29(1)(b), declaring that the respondents were entitled as against the appellant to possession of the land.” [36] The above Privy Council’s decision manifestly shows that the Court of Appeal is bereft of any power to make the order as it did. The order is not only bad, it is in law a nullity. It thus cannot be expected to stay. For all these reasons, we see nothing wrong in the submission made on behalf of the appellants. We think the point is well taken and is supported by law and authority. Accordingly, the order made by the Court of Appeal is set aside. The result is therefore that both questions (i) and (ii) are answered in the negative. [37] We would say, though, that the question of whether we have to go on to make an order in terms of section 29(1)(b) of Act 359 declaring that the respondent is entitled as against the appellants to possession of the subject land, we think that the answer to that question hinges on the outcome of our deliberations on questions (iii) to (v). Accordingly we shall reserve our answer until the end of our deliberations on these 3 questions of law. [38] Questions (iii), (iv) and (v) are framed on the basis that the respondent founded her action on the tort of negligence arising from the failure by the first appellant to serve the notice of inquiry on the respondent when it was mistakenly served at a wrong address thereby depriving her of the opportunity to state her claims and objections before any valid award could be given by the first appellant. It is important to bear in mind that the alleged negligent act was committed at the second stage of the resumption process which concerns only the assessment of the award of compensation to be paid to the respondent. 27 [39] Drawing all these questions together, we set down the arguments taken before us for the respondent in summary. Firstly, according to learned counsel, question (iii) is of no issue before this Court because the issue before the courts below is not a land reference matter relating to the inadequacy of award pursuant to section 56(i) of the Land Code. The issue in the appeal herein relates to the alleged wrongful declaration and resumption of the subject land without the respondent’s knowledge due to the error committed when the subject land was earlier resumed. Secondly, as regards question (iv), the respondent’s cause of action is not about challenging the minister’s section 48 declaration affecting the subject land but the manner in which the appellants resumed the subject land without any notice or knowledge of the respondent. Thirdly, it is the respondent’s position that once the land acquisition process is completed, the registration of the subject land as state land is final and conclusive and as such the section 48 declaration has been done with, extinguished, lapsed and exhausted. [40] To evaluate the above rival contentions on these questions we consider that it is necessary to set out the facts material to these questions in their proper perspective. A pertinent point to emphasize is that the minister is only involved in the first stage of the resumption process. The minister, as the record shows, is not a party to the proceedings herein. The evidence which can be gleaned from the scrutiny of the record of appeal reveals the undisputed fact that the section 48 declaration has never been challenged by the respondent in this action. It is also noteworthy that no order is sought by the respondent in her Statement of Claim against the said section 48 declaration that the subject land is needed for public purpose or to nullify it. It seems to be the case that the respondent merely alleges without any supporting legal authority that the 28 declaration is deemed to have lapsed or extinguished after the first inquiry was carried out for which, it should be noted, the Court of Appeal agreed and accordingly declared to the like effect. The declaration does not only affect the subject land but also, as found by the High Court, a total of 152 parcels of land needed for the purpose of a flood bypass channel in the Kuching area, as part of the flood mitigation scheme for the city. It is important to realise that the respondent never applied for judicial review to set aside the said ministerial declaration affecting the subject land. The Court of Appeal too, in allowing the respondent’s appeal, did not act on its own initiative to grant any affirmative order to nullify or quash the declaration. [41] The general principle of law relating to land acquisition under the Land Code is that both sections 47 and 48, read together with section 60

(a) the market value of the date of the publication of notification under section 47 or, if no such notification has been published, the market 35 value at the date of the posting of the declaration made under section 48”;

(b) any increase in the value of the other land of the person interested likely to accrue from the use to which the land resumed will be put;

(c) the damage, if any, sustained by the person interested, at the time of the Superintendent’s taking possession of the land, by reason of severing such land from his other land;

(d) the damage, if any, sustained by the person interested, at the time of the Superintendent’s taking possession of the land, by reason of the resumption injuriously affecting his other property, whether movable or immovable, in any other manner or his actual earnings;

(e) if in consequence of the resumption he is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change;

(f) any improvement to the land made with the prior consent of the Superintendent after the publication of the notification under section 47(1) or the posting of the declaration under section 48(2), whichever is the date in respect of which the market value is taken in accordance with the provisions of paragraph (a); and

(g) in the case where rights over Native Customary Land or Kampung Reserve have been terminated, any agreement by the Government to resettle or relocate the persons affected to any other land or buildings, if any, provided by the Government, and at any costs of resettlements or relocation which the Government has agreed to bear and pay.

(a) if the market value has been increased by means of any improvement made by the, proprietor or persons in occupation of the land or his predecessor interest within two years before the notification was published under section 47(1) or, if no such notification was published, within two years before the declaration under section 48 was published, such increase shall be disregarded unless it be proved that the improvement was made in good faith and not in contemplation of proceedings for resumption of the land being taken under this Part:

(b) when the value of the land is increased by reason of the use thereof, or of any premises thereon, in a manner which could be restrained by any Court, or is contrary to law, or is detrimental to the health of the inmates of the premises or to the public health, the amount of that increase shall not be taken into account.

(c) the market value of the land resumed shall be deemed not to exceed the price which a bona fide purchaser might reasonably be expected to pay for the land on the basis of its existing use or in anticipation of the continued use of the land –

(i) for the purpose stipulated in the document of title for the land; or

She also agreed to a suggestion that she wanted the subject land to be realienated so that a fresh section 48 declaration could be issued to enable the market value of the subject land to be based on the current market value, not the value in 2009. This evidence corresponds and agree almost exactly with one of the relief sought by the respondent in paragraph 7 of the Statement of Claim which is that the valuation of the subject land should be based on a date a fresh section 48 declaration ought to be re-gazetted and that she ought to be compensated not less than RM1.5 million. It is also consistent with the finding made by the learned trial judge that the root of all these claims boiled down to the unsatisfactory amount of compensation awarded to the respondent which was less than RM1.5 million she paid to purchase the subject land. We apprehend, by ordering that the subject land should be reinstated and realienated to the respondent and that the minister is at liberty to impose a fresh section 48 declaration, the Court of Appeal has in effect allowed the above relief sought by the respondent although it dismissed the aforesaid finding made by the High Court as being a subsidiary issue. [57] Drawing all these reasons together, in our respectful opinion, the alleged non-compliance with procedural statutory provisions relating to 42 assessment of compensation for the acquisition of the subject land was not a fatal irregularity since compensation was based on the date of the section 48 declaration and therefore the respondent did not suffer any loss as a result of the alleged procedural lapse. The award that was made indisputably reflected the market value of the subject land as at the date of the section 48 declaration in compliance with section 60(1)(a) of the Land Code. On such evidence, no monetary loss would have been sustained by the respondent. In these circumstances, there is no basis for the resumption of the subject land to be invalidated and deemed to have lapsed or extinguished, and that the ownership of the land ought to be reinstated or re-alienated to the respondent. [58] The respondent is seeking various declaratory remedies. It is undoubtedly the law that declaration is a discretionary remedy. It is stated by the learned authors Zamir & Woolf in ‘The Declaratory Judgment, Third Edition at page 123 that – “A most important feature of the declaratory judgment is that it is a flexible and discretionary remedy. This helps to explain its increasing popularity with litigants and judges both in the private and public law fields. Its flexible and discretionary nature enables the court to exercise precise control over the circumstances and terms in which relief is granted. Although a claimant or an applicant may have proved his case, he still has to persuade the court both that it should in its discretion make a declaratory judgment and, if it does, that the terms he seeks are appropriate.” [our emphasis] We need only say on this point that in Malaysia, the courts have held that such discretionary remedies like declaration or certiorari would only be granted where substantial injustice has occurred or resulted from any wrongful act by the government or its officers. It is also settled in our law 43 that the courts should not allow themselves to be turned into courts of appeal or revision to set right mere errors of law which do not occasion substantial injustice. The law as explained in Ngu Toh Tung & Ors v Superintendent of Lands & Surveys, Kuching Division, Kuching & Anor [2006] 1 MLJ 142 at pages 147 to 148 is as follows: “[12] …But it is not. If you look carefully enough at those cases where the remedy was granted, you will find that they concerned applicants who had suffered or were likely to suffer a substantial injustice in consequence of a breach of law. In my considered judgment, the correct approach to public law remedies is that stated by Bose J in Sangram Singh v Election Tribunal AIR 1955 SC 425 at p 429: That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not, act as courts of appeal under art 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognized lines and not arbitrarily; and one of the limitations imposed by the courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely, to ensue. They will not allow themselves to be turned into courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case.” [59] In fact, the Federal Court in Land Executive Committee of Federal Territory v Syarikat Harper Gilfillan Berhad [1980] 1 LNS 150 whilst taking the line that the court had the power to grant declaration in order to prevent an injustice to the plaintiff added a warning note to the exercise of the power to grant a declaration that its use must not be carried too far. 44 Instead the power to grant declaratory judgment in lieu of the prerogative orders or statutory relief must be exercised with caution, it must be exercised sparingly, with great care and jealousy with proper sense of responsibility and after a full realization that judicial pronouncements ought not to be issued unless there were circumstances that properly called for their making. [60] In dealing with these 3 questions, the following finding of fact by the High Court which was never disapproved nor dissented upon by the Court of Appeal ought to be taken into account: “[19] In my view, the 1st Defendant could not be blamed for the loss of investment suffered by the Plaintiff because as rightly pointed out by the counsel for the Defendants, the Plaintiff is fully aware that the land in question is subject to section 48 at the time when she purchased it. What this means is that the Plaintiff ought to have taken the risk when she proceeded to buy the subject land although she knew that the subject land could be acquired by the State Government for public purpose and the amount of compensation to be paid in the event of such acquisition ought to be based on the market value of the subject land as at the date of the publication of section 48 declaration as assessed by the government’s valuer.” [our emphasis] [61] Further, it is clear, and is rightly accepted by and in fact agreed between the parties that the award of compensation of RM811, 639.89 given by the first appellant was the market value of the subject land as at the date of the section 48 declaration. In the light of this agreement between the parties, it is right to emphasize that the respondent did not as a result of the same testify that the said sum did not represent the market value of the subject land as at the date of the section 48 45 declaration. It follows from the above that no substantial injustice had been caused to the respondent by the first appellant’s mistake in addressing the notice under section 49 of the Land Code to the wrong address of the respondent resulting in her absence from the first Inquiry. It is just that in the event that transpired, the said notice was mistakenly sent to the wrong address which mistake, as the evidence has shown, was subsequently remedied by the first appellant. [62] We will close with a final thought. Let us in this regard revert to the point we earlier raised relating to the question as to whether we should go on to make an order in terms of section 29(1)(b) of Act 359. The declaratory orders, in our judgment, were granted in the improper exercise by the Court of Appeal of its judicial discretion by not taking into account the said undisputed factual findings of the High Court and by drawing conclusions on a false premise and wrong assumption of law that the Court of Appeal, notwithstanding the provisions of section 29(1)(b) of Act 359 and that the subject land has been declared to be needed for a public purpose, could grant in the concluding paragraph 37(a) of the judgment a declaratory order which amounted to an order for the recovery of land against the Government of Sarawak as follows: “(a) We allow the prayers enumerated at paras. 19(i) and (ii) above. The status quo of the subject land prior to the first resumption exercise is to be reinstated, meaning the subject land is to be re-alienated to the appellant pursuant to s. 15A of the Land Code.” [our emphasis] 46 [63] In Hj. Wan Habib Syed Mahmud v Datuk Patinggi Hj. Abdul Taib Mahmud & Anor [1986] CLJ (Rep.) 149, the Supreme Court at pages 150 to 151 held – “It is also well established that such an exercise of discretion will not be interfered with by an appellate Court save in exceptional cases such as where the decision of the trial Judge is shown to be based on erroneous assumptions of law or fact or where no reasonable explanation is given for the decision. It is not enough that the appellate Court might have exercised the discretion differently. See Equitable Remedies, by Spry, 3rd Edn and Hadmor Productions Ltd & Ors v Hamilton & Anor [1983] 1 AC 191. We might add that a decision will be set aside on appeal if the Court has failed to act in accordance with recognized principles.” Reference may also be made to the decision of this Court in Lian Keow Sdn. Bhd. & Anor v Overseas Credit Finance (M) Sdn Bhd & Ors [1982] CLJ (Rep.) 182 at page 189 as an authority that an order previously made by the court could be set aside where the exercise of discretion by the court below such as the Court of Appeal herein was based upon a misunderstanding of the law and the fact before it. [64] Therefore, in our judgment, for the reasons set out in the preceding paragraphs [60] to [62] of this judgment and having regard to the Supreme Court’s decision in Hj. Wan Habib bin Syed Mahmud, supra, the declaratory order to reinstate the subject land to the respondent should be set aside and the respondent is not entitled to any order for recovery of the subject land against the second appellant. For this reason, the necessity for this Court to make an order declaring that she is entitled as against the State Government of Sarawak, the second appellant in this appeal, to the subject land does not arise. 47 [65] In the end, we answer Questions (iii), (iv) and (v) in the negative. [66] For our part, we would accept entirely the submission on behalf of the appellants, forcibly argued before us, as broadly correct and clearly supports the finding that the matter before us is a meritorious appeal. On the contrary, we are unable to discern anything material turns on all the points raised in the respondent’s submission to entitle this Court to dismiss this appeal. Accordingly, the respondent is unsuccessful in all of her claims for relief. The outcome, as clearly indicated above, is that the appellants’ appeal is allowed. We set aside the decision of the Court of Appeal and correspondingly restore the High Court’s decision. The parties are ordered to bear their own costs. Signed (IDRUS BIN HARUN) Federal Court Judge Malaysia Dated: 15 January 2020 48 Solicitors For The Appellant: Dato Sri Fong Joo Chung & Puan Evy Liana binti Atang Jabatan Peguam Besar Negeri Sarawak 15th and 16th Floor, Wisma Bapa Malaysia, Petra Jaya, 93502 Kuching Sarawak Solicitors For The Respondent: Tuan William Ding William Ding & Co. Advocates Lot 335, 1st Floor, Rubber Road 93400 Kuching Sarawak