TAN WEI MIA v Pentadbir Tanah Daerah Gombak (B-01(IM)-1-01/2024)

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1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. B-01(IM)-1-01/2024

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whereas, the respondent asserts that the category of land use is "building" or "building for residential purposes". [22] Upon hearing parties’ contradicting position regarding the category of land use of the Schedule Lands, the Court on its own motion, wrote to Majlis Perbandaran Ampang Jaya ("MPAJ"), Jabatan Perancangan Bandar dan Desa ("JPBD") and Pejabat Daerah dan Tanah Gombak ("PDT Gombak”) to enquire about the zoning of the Scheduled Lands in order to determine the category of land use as of the date of acquisition i.e. 17.2.1994. [23] In the meantime, the applicants vide the applicants’ Re-Amended Notice of Application dated 21.7.2023 sought for the determination of 5 questions of laws by a High Court Judge sitting alone under Order 14A and Order 33 rule 2 of the Rules of Court 2012. Questions of Laws [24] The Question of laws posed by the applicants before the learned High Court Judge were as follows: Q. 1 Whether the principle of issue estoppel and/or res judicata applies to the earlier decisions of the High Court given on 20.11.2019 (in particular, the finding at paragraph 16 of the Grounds of Judgment dated 8.1.2020) and on 3.5.2018 (in particular, the finding at paragraph 11 of the Grounds of Judgment dated 2.1.2018) that the Scheduled Lands are zoned as commercial as at the date of valuation and ought to be valued as "commercial building" (bangunan perdagangan) instead of "residential building" (bangunan kediaman) and which finding was not specifically varied or reversed by the Court of Appeal? Q. 2 In the event the High Court answers the 1st question of law in the negative, whether the Scheduled Lands ought to be valued on the basis that the Scheduled Lands were zoned as commercial based on the actual and existing land use of the Scheduled Lands as at the date of valuation of 17.2.1994? Q. 3 In the event the High Court decides that the Scheduled Lands are to be valued as zoned "building commercial" (bangunan perdagangan):

Preamble

Pursuant to the Land Acquisition Act 1960, the National Land Code 1965 and the Town and Country Planning Act 1976, the question of zoning is relevant to the determination of the market value of the scheduled lands as at the date of the gazette notification of 17.2.1994. Q5: Affirmative. When determining their opinion on the amount of compensation for the lands acquired, the Court's assessors shall refer only to the documentary evidence that has been filed by the parties in this rehearing of the land reference proceeding and not the previous rehearings of the proceeding or other sources. The Appeal [27] Based on the Appellants’ written submission Encl. 32, the appeal against the decision of the High Court is only in respect of Q1, Q2 and Q3 of the questions of law. [28] On Q1, the appellants submit that the issue of category of land use or zoning of the Scheduled Lands is res judicata as the High Court had, in its earlier decisions given on 3.5.2018 (Vazeer Alam J’s decision) and on 20.11.2019 (Che Mohd Ruzima J’s decision), ruled that the category of land use of the Scheduled Lands is building commercial. This finding was not overruled by the Court of Appeal. Hence, parties are bound by the High Courtʼs earlier decisions on this issue. [29] Vazeer Alam J (now JCA) in paragraph 11 of the Grounds of Judgment dated 2.10.2018 similarly held that the Scheduled Lands were of commercial zoning: “[11] The category of use of all three plots of land is "building" and they are situated within commercial zoning. At the time of acquisition, Lot 847 had some old rubber trees with thick undergrowth. The front part of Lots 841 and 843 were rented out to a hardware store, and the rest of it was covered by unattended rubber trees. Both Assessors have after analyzing the respective Valuation Reports of the Applicant's Valuer and the Respondent's concluded that the best comparable is Lot 378, which is the common comparable No 2. Lot 378 was transacted on 12.12.1994 at RM24.70 psf (RM265.87 psm or say RM266 psm). The Applicant's Valuer and Respondent's Valuer had made various adjustment to this base value, however, the Assessors are of the view that the reasonable adjustments ought to be made for the variants between the Scheduled Lands and the comparable lot. Having considered the recommendations of the Assessors, I find that the following adjustments are proper and reasonable:” [30] The Appellants also rely on paragraph 16 of the Grounds of Judgment dated 8.1.2020 wherein Che Mohd Ruzima J (now JCA) also held that the Scheduled Lands were building commercial lands: “[16] Walau pun ada pertikaian ke atas kategori penggunaan tanah, isu tersebut telah pun diputuskan oleh Mahkamah Rayuan. Diputuskan bahawa lot-lot tanah pemohon adalah di dalam kategori kegunaan tanah untuk 'Bangunan'. Kemudian timbul persoalan sama ada ianya adalah untuk kategori “bangunan kediaman” atau pun “bangunan perdagangan”. Setelah meneliti laporan-laporan penilaian serta mendengar pandangan daripada pengapit-pengapit, mahkamah ini di dalam keputusannya telah memutuskan bahawa lot-lot tanah pemohon perlu dikategorikan di bawah kegunaan untuk bangunan perdagangan yang mana nilainya adalah lebih tinggi daripada tanah untuk kegunaan bangunan kediaman. Oleh itu, jumlah pampasan yang diputus mahkamah ini bagi lot-lot tanah pemohon yang diambil balik adalah berdasarkan nilai pasaran tanah untuk kegunaan bangunan perdagangan.” [31] The appellants further submit that although both the decisions of Vazeer Alam J (now JCA) and Che Mohd Ruzima J (now JCA) were appealed against, their findings of law that the Schedule lands were building commercial lands was not overturned by the Court of Appeal either on 20.3.2019 or 26.1.2021. Thus, the principle of res judicata applies. [32] The appellants refer to the oft-cited authority of Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 at 198 where the Federal Court held: “What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicatum. When a matter between two parties has been adjudicated by a court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth; res judicata pro veritate accipitur. The public policy of the law is that, it is in the public interest that there should be finality in litigation – interest rei publicae ut sit finis litium. It is only just that no one ought to be vexed twice for the same cause of action – nemo debet bis vexari proeadem causa. Both maxims are the rationales for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy. Since a res judicata creates an estoppel per rem judicatum, the doctrine of res judicata is really the doctrine of estoppel per rem judicatum, the latter being described sometimes in a rather archaic way as estoppel by record. Since the two doctrines are the same, it is no longer of any practical importance to say the res judicata is a rule of procedure and that an estoppel per rem judicatum is that of evidence. Such dichotomy is apt to give rise to confusion. … Thus, there are in fact two kinds of estoppel per rem judicatum. The first type relates to cause of action estoppel and the second, to issue estoppel, which is a development from the first type. The cause of action estoppel arises when rights or liabilities involving a particular right to take a particular action in court for a particular remedy are determined in a final judgment and such right of action, ie the cause of action, merges into the said final judgment; in layman's language, the cause of action has turned into the said final judgment. The said cause of action may not be relitigated between the same parties because it is res judicata. In order to prevent multiplicity of action and also in order to protect the underlying rationales of estoppel per rem judicatum and not to act against them, such estoppel of cause of action has been extended to all other causes of action (based on the same facts or issues) which should have been litigated or asserted in the original earlier action resulting in the final judgment, and which were not, either deliberately or due to inadvertence. A few cases below will illustrate the point.” [33] Next, the appellants refer to the Federal Court’s decision in Superintendent of Land and Survey Department Kuching-Divisional Office & Anor v Ratnawati Binti Hasbi Mohamad Suleiman [2020] 2 MLJ 553 and submits that although the Court of Appeal reversed the High Court’s decision, the Federal Court nevertheless upheld a finding of fact made by the High Court based on the evidence that was not overturned by the Court of Appeal. [34] Based on the above authorities, amongst others, the appellants submit that the questions of law posed by the appellant ought to be answered in the affirmative and that the finding that the Scheduled Lands are commercial lands ought not be disturbed as the principle of res judicata is applicable in the instant case. [35] The respondents submit that the learned High Court Judge was not in error in deciding on the applicability of the principle of res judicata since the previous High Courts’ decisions were entirely set aside by the Court of Appeal which ordered that the land reference proceedings be reheard before a different High Court Judge. Furthermore, the appellants’ appeal against Vazeer Alam J. and Che Mohd Ruzima J’s decision was in respect of the whole decision. [36] On Q2, the appellants argued in the event that the learned High Court Judge finds that the principle of res judicata is not applicable and the issue of zoning is open to be determined by this Court in the present rehearing, the Scheduled Lands ought to be treated and valued as lands zoned for commercial use (and not residential use) based on the actual and existing land use of the Scheduled Lands as of the date of valuation on 17.2.1994. [37] The Appellants relied on the “Pelan Gunatanah di bawah Pentadbiran Majlis Perbandaran Ampang Jaya” (“MPAJ Land Use Plan”) which was the plan used by MPAJ since its establishment on 1.7.1992 till the first structure plan was gazetted in 2001. According to the appellants, Lot 481 was zoned for commercial use (areas shaded in light blue) and Lots 843 and 847 were not zoned with any land use (white areas) as shown in the MPAJ Land Use Plan (see page 33 of the Appellant’s Valuation report). Actual and Existing Use of the Scheduled Lands [38] The appellants submit that given that MPAJ did not assign or impose any zoning or land use upon the Scheduled Lands in the local plan, then consideration ought to be given to the actual and existing use of the Scheduled Lands when determining the market value of the Scheduled Lands. [39] Based on the actual and existing use of the Scheduled Lands as at the date of valuation on 17.2.1994, the appellants submit that the Scheduled Lands ought to be treated as zoned as commercial because:

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Schedule Lands, nor was there any confirmation from Majlis Perbandaran Selayang (“MPS”) or the Jabatan Perancangan Bandar dan Desa (“JPBD”) adduced by the appellants. [43] According to the respondent, the authority to prepare the Structure Plan and the Local Plan lies with the Local Authority defined under s. 2 of the Town and Country Planning Act 1976 (“Act 172”) which also acts as the Local Planning Authority pursuant to s. 5 of the Act 172. [44] The respondent also submits that s. 18 of Act 172 clearly provides that no person shall use or permit to be used any land or building in contravention of the applicable Local Plan. The prohibition imposed under section 18 is however subject to certain exceptions set out in subsection 19(2) of Act 172. Section 20 of Act 172 further stipulates that no person shall commence, undertake, or carry out any development otherwise than in conformity with the planning permission granted to him under s. in respect of the development or with the conditions of the planning permission. [45] Thus, the respondent argues that any utilization of land or buildings, together with all forms of development, must be in conformity with the Local Plan and with valid planning permission from the Local Authority. [46] In the absence of any Local Plan or Planning Permission being produced by the appellants, and given the fact that the authority to prepare and approve such matters vests exclusively in the Local Authority, the appellants’ contention that the Scheduled Lands constitute “building commercial” is unfounded and contrary to the principles of town planning law. [47] The appellants cannot unilaterally presume that the said

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Schedule Lands fall within a commercial zone. Any recognition of an area as commercial must comply with the procedure under subsection 21(6) of Act 172 which mandates notification to adjoining landowners and provides an opportunity to object within 21 days of the application being submitted. [48] In reply, the appellants also submit that as there is no information regarding the zoning of the Scheduled Lands at the time of the valuation in the absence of a Local Plan, the Scheduled Lands ought to be valued based on the actual and existing use at the date of the valuation, which is “building commercial”. As such the learned High Court Judge ought to answer Q2 in the affirmative and proceeded to answer the Q3. [49] For Q3.1, the appellants submit in the event the High Court decides that the Scheduled Lands are to be valued as zoned “building commercial”, lands that are subsequently used for the construction of a petrol station with similar characteristic as the Scheduled Lands and which are situated within the vicinity of the Scheduled Lands ought to be adopted as suitable comparables in the determination of the market value of the Scheduled Lands pursuant to paragraph 1(1A) of the First Schedule of the LAA 1960. [50] the Appellants submit that the comparables adopted by the appellants’ valuers, PT 30165 and PT 13887 (“Appellantsʼ Comparables”) are suitable to be adopted by this Court when determining the market value of the Scheduled Lands. [51] The Appellants submit that the Appellants Comparables are very similar and comparable to the Scheduled Lands because they were meant for commercial purposes prior to being used as petrol station lands. Even after being used as petrol stations, they still provided commercial services on the lands. [52] For Q3.2, the appellants submit lands that are located in an adjacent district (mukim) with similar characteristics as the Scheduled Lands which are situated within the vicinity of the Scheduled Lands can be used as comparable transactions to determine the market value of the Scheduled Lands. [53] The appellants further submit that the fact that the comparable land is located in a different district/mukim is irrelevant as along as the comparable shares similar characteristics as the Scheduled Lands which are situated within the vicinity of the Scheduled Lands. Paragraph 1(1A) of the First Schedule of the Land Acquisition Act 1960 does not prohibit comparables that are located in a different district/mukim as the Scheduled Lands. [54] In the present case, although the Appellants’ Comparable 1 (Lot 13887) is located in Mukim of Ampang, which is different from the Scheduled Lands which are located in Mukim of Ulu Kelang, the difference in Mukim alone does not automatically disqualify Appellants’ Comparable 1 (Lot 13887) from being considered when determining the market value of the Scheduled Lands. [55] The appellants further submit that a comparable located in a different district/mukim is still similar and can be a suitable comparable especially if it falls under the same local planning authority. In the present case, the district/mukim of Hulu Klang, Ampang and Hulu Langat all fall under MPAJʼs jurisdiction whereby the same planning policies are applicable. [56] The appellants submit that Q3.1 and Q3.2. ought to be answered in the affirmative. Our decision [57] Before addressing the specific grounds of appeal on the answer by the learned High Court Judge to the questions of law, it is necessary to first deal with the preliminary issue raised by learned state assistant legal counsel in her submission as to whether the present appeal is competent. [58] The respondent submits that the learned High Court Judge’s decision on the above questions of law is non-appealable because such decision is not final that concludes the land reference proceedings, but rather a determination on questions of law raised by the appellants prior to the full hearing on the assessment of compensation as a result of the acquisition of the Schedule Lands. [59] The appellants submit that the present appeal is properly before this Court as any parties to the land reference proceedings can appeal against the decision of the High Court on questions of law. The appellants further submit that the decision given by the learned High Court Judge in the present appeal falls within the definition of “decision” under section 3 of the Courts of Judicature Act 1964. [60] The appellant cited the Court of Appeal case of Public Prosecutor v Ng Wing Fau & Ors [2018] MLJU 181 which held as follows: “[12] In our view, that in order to determine whether a decision is final, it is important to bear in mind that not merely the result of the decision be considered but also predominantly its effect. The order of the High Court dismissing the P.Pʼs application to relist Appeals No.41LB-03-02/2015 and No.41ORS-01-02/3015 which were struck out earlier by another judge was not an interlocutory decision. It must be noted that this was at the appellate stage after the learned Magistrate had acquitted and discharged the respondents. The very nature of the dismissal of the notice of motion possesses element of finality. Upon dismissing the notice of motion, the P.Pʼs appeal would become infructuous and the order of acquittal and discharge made by the learned Magistrate must therefore be regarded as final. Therefore, the decision dated 19.2.2017 is appealable to the Court of Appeal.” [61] Upon hearing the submissions of the parties on this preliminary issue, we agree with the appellant that the decision delivered by the learned High Court Judge on 18.12.2023 bears the element of finality, as it effectively disposes of the appellant’s right in the land reference proceedings. The finality arises from the fact that the learned High Court Judge’s decision may negate the appellant’s claim concerning the category of land use for the Scheduled Lands designated for building commercial which would naturally command a higher value than those designated for building for residential purposes, thereby directly impacting the valuation exercise in the subsequent land reference proceedings. [62] We say so because in order to arrive at an award of compensation that is adequate to compensate the appellants for their loss of parts of the Scheduled Lands that were acquired, the Court must consider the principles set out in the First Schedule to the LAA 1960, which includes among others, the category of use of the Scheduled Lands as of the date of the gazette notification. [63] Thus, the decision of the learned High Court Judge on the category of land use is crucial to determine the market value of the Schedule Lands. This in turn provides a fair and reasonable award of compensation to the appellants pursuant to Article 13(2) of the Federal Constitution. [64] This also relates to Q4 on whether the question of zoning is wholly irrelevant to the valuation of the market value of the Schedule Lands as at the date of valuation of 17.2.1994 which was answered in the negative by the learned High Court Judge. [65] We now turn to the central issue of this appeal namely on the learned High Court Judge’s decision given on the 18.12.2023 in answer to the questions of law posed by the appellants. We will only deal with Q1 to Q3 of the questions of law submitted to the learned High Court Judge based on the submissions advanced before us. [66] On Q1, the appellants’ contention was that the doctrine of res judicata applies in the sense that the learned High Court Judge ought not determine the issue that was decided by the two previous High Court’s decision that the category of land use in respect of the Scheduled lands is “building commercial”. [67] Learned High Court Judge analysed the argument by the appellants and answered Q1 as follows: “[34] Learned counsel for the applicants, Mr. Raymond Mah, submits that the issue of zoning of the Scheduled Lands is res judicata as the High Court through Vazeer Alam J's decision of 03.05.2018 and Che Mohd Ruzima J's decision of 20.11.2019 had found that category of land use for the Scheduled Lands is "building commercial". [35] Mr. Mah says that although the applicant had filed appeals against both decisions of the Court, the issue of the category of land use or zoning of the Scheduled Lands was not challenged and did not form a ground of appeal against the said decisions. The respondent also did not file any cross-appeals to challenge the High Court's finding of law on the issue of the Scheduled Lands' category of land use. He submits that the Court of Appeal had only overruled the High Court's finding of facts pertaining to "market value, injurious affection, damages and rectification costs" and not the High Court's finding of law that the category of land use for the Scheduled Lands is "building commercial" lands. Hence, the issue of the category of land use is res judicata and ought not to be relitigated in this instant hearing. [36] Mr. Mah argues that the High Court's findings in both decisions that the category of land use for the Scheduled Lands is "building commercial" lands was not overturned by the Court of Appeal in its judgments on 20.03.2019 or 26.01.2021, and thus res judicata. He submits: "33. that the principle of res judicata applies and the respondent is estopped "from now (and again) contending that the Scheduled Land are zoned as residential land". 34. The finding of law that the category of land use of the Scheduled Land is building commercial was not reversed or overturned by the Court of Appeal either on 20.03.2019 or 26.01.2021. Thus, the Respondents are bound to comply with the earlier decisions of the High Court given on 20.11.2019 and on 3.5.2019 [sic]1 wherein the Court made a finding that the Scheduled Lands are zoned commercial as at the date of valuation and ought to be valued as “commercial building” instead of “residential building”. Hence, this issue of zoning ought not be relitigated at the present rehearing." [37] He cites the case of Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189; [1995] 3 CLJ 783; [1995] 3 AMR 2559, where he says that the Supreme Court had highlighted that the principle of res judicata does not apply to a cause of action but also to an issue that had been determined in previous judgments, and that parties are estopped from challenging the correctness of previous judgments in subsequent proceedings to prevent contradictions of previous judgments. He also cites the case of Government of Malaysia v Dato Chong Kok Lim [1973] 2 MLJ 74; [1973] 1 LNS 35. In that case, the defendant made an application (Enc. 9) in June 1971 to strike out the plaintiff's claim for recovery of income tax on the grounds that the government's statement of claim was frivolous vexatious and an abuse of the process of the court. The application was dismissed by Chang Min Tat J in December 1972. In April 1973, the defendant filed another application (Enc. 33) to strike out the statement of claim but on a different ground: namely, that the government was not entitled to maintain a claim for income tax and penalties for the years of assessment 1961 to 1967. Sharma J dismissed the defendant's application in Enc. 33 on the grounds that he is estopped on the principle of res judicata from making the second application to strike out the statement of claim since his earlier application in Enc. 9 had been litigated and decided by the Court earlier … … … [43] The Court of Appeal had allowed both appeals; it had set aside Vazeer Alam J’s decision and ordered the land reference to be remitted for rehearing before a different judge at this Court. It had also set aside Che Mohd Ruzima J’s decision and ordered this land reference be remitted to the High Court of Shah Alam for rehearing on the issues of market value, injurious affection, damages and rectification cost. [44] With respect to learned counsel for the applicants, his client, having appealed against the whole decisions of the High Court and the Court of Appeal had allowed the appeals, cannot now argue that the findings of the High Court as to the category of land use of the scheduled lands in both decisions remains binding on the parties. The Court of Appeal had set aside both decisions. Thus, the High Court’s decisions are no more and are, no longer binding. It follows, therefore, that the findings in both decisions as to the category of land use are also no more and no longer binding. [45] Accordingly, by reason of the setting aside of the earlier decisions of the High Court by the Court of Appeal, I find the issue of the category of land use of the scheduled lands is not res judicata. The parties are, therefore, not estopped from relitigating the issue of the category of land use of the scheduled lands”. [68] Upon our review, we find that the learned High Court Judge did not err in her decision when she answered Q1 in the negative. As rightly pointed out, the appellants had appealed against the whole of the decisions of the High Court, and this is clearly demonstrated by their memorandum of appeal wherein the appeal to this Court is expressly against the entirety of the High Court’s determination. In such circumstances, the appellants cannot then now be permitted to take a different position in the present appeal, for the law does not countenance such inconsistency in the assertion of rights. [69] Consequently, the previous High Court’s decisions, including the findings on the category of land use for the Scheduled Lands, are no longer binding. Accordingly, we agree with the findings of the learned High Court Judge that the issue of the category of land use is not res judicata, and the parties are not estopped from relitigating the matter. [70] As regards to Q2, the appellants’ contention was it should be answered in the affirmative that the Schedule Lands ought to be valued as “building commercial” i.e., buildings constructed for commercial purposes based on the actual and existing land use of the Schedule Lands as at the date of valuation of 17.2.1994. [71] Learned High Court Judge answered Q2 in the negative. The scheduled lands ought not to be valued on the basis that the Scheduled Lands were zoned as commercial based on the actual and existing land use of the scheduled lands as of the date of valuation on 17.2.1994. This is because the appellants failed to prove on a balance of probabilities that the actual and existing use of the scheduled lands was building for commercial purposes ("building commercial") as of 17.2.1994. [72] In answering Q2, the learned HCJ had considered the following sub-issues: (i) Were the Scheduled Lands located in area zoned as commercial as at the date of the Gazette Notification? (ii) Are the Scheduled Lands deemed to be “building land with commercial nature”? (iii) Were the Scheduled Lands used as buildings for commercial purposes as at 17.2.1994? Were the Scheduled Lands located in area zoned as commercial as at the date of the Gazette Notification? NEGATIVE (Paragraphs [54] to [59] of the GOJ) [73] On the first sub-issue, learned High Court Judge’s findings are as follows: “[54] MPAJ is the local planning authority for the area in which the scheduled lands are located. Both MPAJ in its letter of 27.02.2023 and JPBD in its letter of 08.03.2023 confirmed that MPAJ as the local planning authority is empowered to determine the zoning for the area where the scheduled lands are located. They also confirm that JPBD does not have the authority to determine zoning in the administration area of a local authority. Instead, JPBD acts as the main advisor in relation to town and country planning and is the main technical agency referred to for reviewing all applications for planning permissions. [55] MPAJ confirmed that in 1994 there was no local plan for the area. In 1994, MPAJ did not publish and/or gazette any local plan, and it had not designated any zoning in the area where the scheduled lands are located or the lands in its vicinity. SSP2 testified that the first local plan was published by MPAJ on 26.05.2011. [56] SSP2 testified that MPAJ has no records or information on the zoning of the scheduled lands in 1994. She said: " ..... kita tiada rekod atau pun tiada maklumat berkenaan penggunaan zoning pada tahun 1994 kerana rancangan struktur MPAJ ada disediakan pada tahun 1995". [57] In addition, JPBD confirmed that it did not publish and/or gazette any structure plan of the scheduled lands in 1994. [58] Both SSP1 and SSP2 confirmed that structure plans did not exist as of the date of the gazette notification. The only structure plan available, adduced by SSP1 and SSP2 during the hearing, was published in 1998, which is four years after the acquisition of the scheduled lands. SSP1 agreed that JPBD could not rely on the structure plan in order to determine the zoning of the scheduled lands in 1994. [59] Accordingly, as no local plan was published and/or gazetted by MPAJ, there was no zoning of the area in which the scheduled lands were located as at the time of the acquisition in 1994. Therefore, the scheduled lands were not zoned as commercial at the time of the Gazette notification”. Are the Scheduled Lands deemed to be “building land with commercial nature”? NEGATIVE (Paragraphs [60] to [65] of the GOJ) . [74] On the second sub-issue, learned High Court Judge’s findings are as follows: “[60] The applicants' valuer, Sr Azuan bin Abu Mansol ("SSR2"), in his valuation report dated 15.04.2022, stated that the scheduled lands are deemed as "building land with commercial status" and should, accordingly, be valued as such. He stated: As at the date of gazette notification, the land is deemed as building land with commercial status and therefore, the basis of valuation to determine fair and reasonable compensation shall subject to commercial land supported with evidence of commercial land transactions. … It is EMPHASIZED that Schedule Lands are to be valued as FULL BUILDING LAND for COMMERCIAL PURPOSES instead of Development Land with Building-Commercial Potential as taken by the • Government Valuer and Assessor in the earlier re-hearings even though the category of land use in the titles are stated as "NIL". [61] I find that SSR2's statement is misleading and incorrect. The Court of Appeal in its Order dated 19.01.2016 in Tan Wei Mia & Ors v Pentadbir Tanah Daerah Gombak & Anor Civil Appeal Originating Summons No. B-01(A)-310-09/2015 (Shah Alam High Court OS No. 24-754-06/2014) ("OS 754") ordered, inter alia: (c) Perenggan 1 Saman Pemula Perayu-Perayu dibenarkan seperti dipohon, iaitu Mahkamah ini mengisythirakan bahawa Lot-Lot 841, 842, 843 dan 844, Mukim Hulu Kelang, Daerah Gombak, Negeri Selangor adalah kini dan sejak permulaan penguatkusaan Kanun Tanah Negara 1965 tanah-tanah di bawah kategori bangunan". [62] As is evident from the Court of Appeal's judgment in OS 754 (reported at Tan Wei Mia & Ors v Pentadbir Tanah Daerah Gombak & Anor [2016] 5 MLJ 43; [2016] 7 CLJ 722) the applicants in OS 754 had sought for a declaration that Lots 841-844 "are and have been since the coming into force of the National Land Code, land subject to the category of “building”. They did not seek for a declaration that the category of land use of Lots 841-844 is building for commercial purposes. [63] The Court of Appeal allowed the declaration sought by applicants in OS 754: it held that it was not necessary for the applicants to seek from the state authority under section 124 of the NLC for a variation of the category of land use from "Nil" to “building". It made a declaration that category of land use of Lots 841-844 is "building": it did not make a declaration that category of land use of scheduled lands is "building for commercial status" as claimed by SSR2 in his valuation report. [64] Furthermore, the declaration made by the Court of Appeal was only in respect of the category of land use for Lots 841 and 843. It did not make a declaration that the category of land use for Lot 847 is "building". Therefore, the category of land use for Lot 847 as of the date of the gazette notification remains as "Nil". [65] Accordingly, I find that the scheduled lands were not deemed as building land with commercial status or commercial purposes as at the date of the gazette notification”. Were the Scheduled Lands used as buildings for commercial purposes as at 17.2.1994? NEGATIVE (Paragraphs [66] to [115] of the GOJ) [75] On the third sub-issue, learned High Court Judge’s findings are as follows: “[66] Learned counsel for the applicants, Mr. Raymond Mah, submitted that the scheduled lands ought to be valued based on their actual and existing use as of the date of the gazette notification, which he contends is "building commercial" for the following reasons: (a) Lot 841 and Lot 843 were tenanted to two separate tenants (Seng Huat Trading Company and AsiaGroup Sdn Bhd) for commercial purposes (hardware materials & storage purposes); (b) approval was granted by Majlis Daerah Gombak in 1982 to build a temporary stockyard on Lot 841; (c ) the Deceased applied and paid for planning permission for "setor/kedai sementara" in 1990 for Lot 847; and (d) the respondent's valuer observed that there was Bangunan Pejabat, Pondok Pengawal and Pagar (dawai berangkai) on Lot 847 during site visit on 16.05.1994. This fact was accepted by the Land Administrator in 1995. He had awarded the Deceased the sum of RM57,000.00, the sum of RM2,500.00 and the sum of RM3,500.00 as compensation for the loss of the Bangunan Pejabat, Pondok Pengawal and Pagar (dawai berangkai) respectively. [67] Below is my analysis of whether the applicants have proved on a balance of probabilities the actual and existing use of the scheduled lands as of 17.02.1994 were building for commercial purposes. • Lots 841 and 843 (i) Approval in 1982 to build a temporary stockyard on Lot 841 [68] Mr. Tan Boon Chit, the third applicant ("SSR1") averred in para. 7.3 of his affidavit dated 29.03.2023 in support of the QOLs ("AIS") that approval was granted to build a temporary stockyard on Lot 841 in 1982. A copy of a letter dated 19.07.1982 from the MajIis Daerah Gombak addressed to Kumpulan Senireka is exhibited on p. 270-271 of the AIS. … … [70] The letter from Majlis Daerah Gombak shows that the approval granted in 1982 was for a temporary stockyard to be built on Lot 841 for a period of 2½ years only. It is a condition of the approval that at the expiry of the 2½ year period, the stockyard area on the land must be cleaned to its original condition. [71] It follows therefore, the approval would have expired in early 1985 i.e., 2 ½ years after the date of the approval. The applicants did not provide any evidence that the approval was extended after its expiry up until the acquisition of part of Lot 841 in 1994. (ii) Approval in 1986 to build a temporary store on Lot 841 [72] SSR1 in para. 7.2 of the AIS averred that Majlis Daerah Gombak had approved building a temporary store (setor/kedai sementara) on Lot 847. However, as the images of the documents show (reproduced in paragraph [92] below), the documents were in respect to the payment of wang cagaran (deposit) to build a setor sementara (temporary store) on Lot 841. (iii) Was Lot 841 and 843 tenanted for commercial purposes in 1994? [73] SSR1 averred in para. 7.1 of the AIS that the applicant had rented Lots 841 and 843 (together with the adjacent lands - Lots 842 and 844) to two separate tenants ((Seng Huat Trading Company ("Seng Huat") and AsiaGroup Sdn Bhd ("AsiaGroup")) for commercial purposes (hardware materials & storage purposes). To support his averment, SSR1 stated that the documents exhibited on p. 260 to 265 of exhibit "TBC-1" is a Tenancy Renewal Agreement dated 01.05.1994 between the Deceased and AsiaGroup. [74] However, the document exhibited at the exhibit "TBC-1", p. 260-263 is the Tenancy Renewal Agreement between the Deceased and AsiaGroup ("AsiaGroup Tenancy Renewal Agreement"), and the document at p. 264- 265 is a Tenancy Renewal Agreement between the Deceased and Seng Huat ("Seng Huat Tenancy Renewal Agreement"). … [76] SSR1 did not adduce any other documents to show that the rental of parts of Lot 841 and 842 by AsiaGroup and the rental of Lot 841 by Seng Huat were extended beyond the two-year period provided in the AsiaGroup Tenancy Renewal Agreement and the Seng Huat Tenancy Renewal Agreement. [77] Additionally, the purpose of renting parts of Lots 841 and 842 by AsiaGroup and of Lot 841 by Seng Huat was not stated in either the AsiaGroup Tenancy Renewal Agreement or the Seng Huat Tenancy Renewal Agreement. [78] SSR1 agreed under cross-examination by the ALA that the aforementioned exhibits do not provide evidence that the actual and existing use of Scheduled Lands at the date of the acquisition was "building commercial". He agreed that nothing is indicated in the copy of the agreements the purpose of the tenancy… … … … [83] The documentary evidence exhibited by SSR1 in the AIS shows that (i) there was an approval in 1982 to build a temporary stockyard on Lot 841 for a period of 2 ½ years; and (ii) there was an approval in 1986 to build a temporary store on Lot 841. However, there is no evidence produced that the approvals for the temporary stockyard and the temporary store had been extended to February 1994. [84] The AsiaGroup Tenancy Renewal Agreement and the Seng Huat Renewal Agreement show that Lot 841 was tenanted to Seng Huat and parts of Lots 841 and 842 were tenanted to AsiaGroup at the time of the acquisition in February 1994. However, the applicants did not prove that the tenancy was for commercial purposes, which fact was admitted by SSR1 during the hearing. … [86] However, the applicants did not produce any document to show that Lot 843 was tenanted at the time of the acquisition. SSR1 did not produce any documents to show that Lot 843 was tenanted in 1994. … [88] Accordingly, on careful analysis of the evidence adduced by the applicants in SSR1's affidavit and SSR2's valuation report and the testimonies of the witnesses, this Court finds that the applicants have failed to prove their claim that Lots 841 and 843 were tenanted for commercial purposes as of the date of the gazette notification. By the applicants' own evidence, Lot 843 was tenanted only after 1994. • Lot 847 [89] SSR1 averred in para. 7.2 of the AIS that the applicant had applied and paid for a kebenaran merancang for setor/kedai sementara in 1990 for Lot 847. In support of his averment, SSR1 referred to a copy of the document exhibited in Lampiran E of SSR2's valuation report; and a copy of an application that was approved by the Majlis Daerah Gombak on 05.08.1986 (exhibit "TBC-1" p. 267-268 of the AIS). [90] The image of the document exhibited in Lampiran E of SSR2’s valuation report is reproduced below. It shows bill dated 17.05.1990 for the payment of the sum of RM399.00 for "Cadangan: Membina sebuah setor/kedai sementara di atas Lot 847, Jalan Hulu Klang Daerah Gombak”. The stamp on the top right-hand corner of the bill shows that the deposit was paid on 27.06.1990. … … … [94] From the images of the documents on pg. 267 and 268 of exhibit "TBC-1", it is clear that neither document is a planning permission (kebenaran merancang) to build a setor/kedai sementara on Lot 847. The documents are with respect to the payment of wang cagaran (deposit) to build a setor sementara (temporary store) on Lot 841. … … … [102] SSR1's testimony that the office building on Lot 847 is AsiaGroup or Jia Heng's office is a bare averment unsupported by any documentary evidence. The applicants did not provide any evidence to show that Lot 847 was tenanted to AsiaGroup or Jia Heng at the time of acquisition. … … [105] As for MPAJ's Pelan Gunatanah shown in exhibit "M" of SSR2's valuation report, SSR2 agreed that the Pelan Gunatanah was never gazetted and there was no zoning of the areas shown on the plan. The plan does not show the scheduled lands were zoned as “building commercial” as at the date of the gazette notification. [106] SSR2 in his valuation report had stated that the scheduled land is deemed as building land with commercial status. However, he agreed under cross-examination that as at the date of the Gazette notification there was no evidence that the category of land use of the scheduled lands was building for commercial status. … … … [114] The evidence shows there was no zoning, no local plan or structure plan for the area where the scheduled lands are located at the time of the acquisition. And as SSP2 testified during the hearing, MPAJ did not have any record or information on the zoning of the area in 1994. Also, for the reasons discussed above, the applicants could not prove on a balance of probabilities that the actual and existing use of the scheduled lands as of the date of the gazette notification was building for commercial purposes. In brief, the applicants' evidence is: (a) Lot 841: approval was given in 1982 to build a temporary stockyard for 2 ½ years; approval was given in 1986 to build a temporary store on the land; and the land was tenanted to AsiaGroup and Seng Huat as of the date of the gazette notification. They did not produce any evidence to show that the approval for the temporary stockyard was renewed after its expiry. There was also no evidence produced as to the purpose of the tenancy to AsiaGroup and Seng Huat; (b) Lot 843: no evidence was produced to show that there was any building on the land or that the land was used for a commercial purpose as of the date of gazette notification. SSR1's testimony is that Lot 843 was tenanted after 1994, i.e. after part of the land was acquired; (c) Lot 847: the Court of Appeal in OS 754 did not declare that the category of land use of Lot 847 was "building" before and since the commencement of the NLC, as they did for Lots 841 and 843 (see para. [64] above). Therefore, the category of land use of Lot 847 remains as "Nil" as of the date of the gazette notification. The applicants did not produce any evidence to show the building that was on Lot 847 was used for commercial purposes as of the date of the gazette notification. [115] Accordingly, for all these reasons, this Court's answer to the questions in Q2 is in the negative. This Court is of the opinion, based on the evidence before it, the scheduled lands ought not be valued as lands that were zoned as commercial based on the actual and existing use of the lands as of 17.02.1994”. [76] Similarly, upon our review, we find that the learned High Court Judge did not err in answering Q2 in the negative. As she rightly observed, the appellants failed to discharge their burden of proof on the balance of probabilities that, as at 17.2.1994, the actual and existing use of the Scheduled Lands was for building of a commercial nature (“building commercial”). Conclusion [77] In regard to Q3, as the learned High Court Judge had answered Q2 in the negative and did not hold that the

Schedule

Schedule Lands ought to be valued as “building commercial”, we agree with her that Q3 does not require an answer. What is material, in any event, is that the parties are not precluded from re‑litigating the issue of zoning or the category of land use in respect of the Schedule Lands in the land reference proceedings, which remain pending. [78] It is important to emphasise that the decision of the learned High Court Judge on the above questions of law was a mixed findings of fact and law, reached upon a careful consideration of the documentary evidence and the testimony of the witnesses called upon by both the appellants and the respondent. [79] The law is clear and well-settled in that the principle on which an appellate court could interfere with findings of fact and law by the trial court is “the plainly wrong test” principle (Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309; [2005] 2 MLJ 1; Tengku Dato’ Ibrahim Petra Tengku Indra Petra v Petra Perdana Bhd & Another Appeal [2018] 2 CLJ 641; Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67). [80] In the present appeal, we find that the learned High Court Judge was not plainly wrong, in the sense that her decision is capable of reasonable explanation and justification, and cannot be said to be one which no reasonable judge could have reached. [81] Based on the foregoing reasons, the appeal is dismissed. The learned High Court Judge’s decision is affirmed. [82] We direct the appellants to pay costs of RM20,000.00 to the respondent. Dated this: 2nd December 2025 -sgd-ALWI BIN HJ. ABDUL WAHAB JUDGE COURT OF APPEAL COUNSEL: For the Appellants : Raymod Mah (Joseph Khor & Rachel Ng Ker Chi with him) Messrs. Mah Weng Kwai & Associates For the Respondent : Puan Hani Aziza Ismail @ Aziz (Nur Syafinaz Hayati Binti Kamarrudin with her) Assistant legal Advisor Kamar Penasihat Undang-Undang Negeri Selangor