Yong Ing Kai v Superintendent of Lands and Surveys, Kuching Division (01(f)-1-01/2022(Q))

YONG ING KAI [WN. KP.530727-13-5095]

HII LEH NGIICK @ HII YAING SING [WN.KP.940702-13-5042] … APPELLANTS AND SUPERINTENDENT OF LANDS AND SURVEYS, KUCHING DIVISION … RESPONDENT [In The Matter of Court of Appeal Civil Appeal No. Q-01(W)-324-07/2019 Superintendent of Lands and Surveys, Kuching Divisions …

Yong Ing Kai

No. 26 Lane 1, Tapang Road, Sg. Antu, 96000 Sibu Hii Leh Ngiick @ Hii Yaing Sing 22A, Jalan Ipoh Persiaran Brooke 20, 96000 Sibu … Respondents 2 Decided by the Court of Appeal on 13th January 2021

Between

Yong Ing KaI Hii Leh Ngiick@Hii Yaing Sing … Objectors And Superintendent Of Lands And Surveys, Kuching Division … Respondent] CORAM: ABDUL RAHMAN BIN SEBLI, CJSS ZABARIAH BINTI YUSOF, FCJ MARY LIM THIAM SUAN, FCJ SUPPORTING JUDGMENT [1] I have read the draft judgment of my learned brother and while I agree with the conclusion reached for the reasons given [save for the view on statutory interpretation], that is, that the appeal must stand dismissed, these are my further reasons. 3 Factual background [2] The appellants’ lands were resumed by the respondent through a notice issued under section 47 of the Land Code of Sarawak (Cap. 81) and dated 16.7.1997. The effect of such a notice is to put all, especially the landowners, that the Minister had decided that the appellants’ lands were “likely to be needed for any of the purposes specified in section 46”. Such a notice authorized the lawful entry onto the appellants’ lands for the purpose of survey, boring, taking of levels, setting out and marking boundaries as well as doing “all other acts necessary to ascertain whether the land is suitable for such purpose”. That, as was mentioned, was in 1997. [3] It was not until some 12 years later on 2.7.2009 that the Minister proceeded to declare under section 48 of the Land Code that the appellants’ lands were indeed “needed for any of the purposes specified in section 46”. The purpose identified was “for the purpose of Sungai Sarawak Flood Mitigation Channel”. The purpose and legality of this declaration and hence the resumption was not challenged by the appellants and is thus not in issue. What was instead challenged by the appellants was the adequacy of compensation awarded by the Superintendent. [4] Returning to the facts, the Superintendent conducted an inquiry under section 51. This, ultimately led to an award of compensation on 21.11.2011. [5] The appellants accepted the award under protest. They then applied under section 56 to have their objection referred to the High Court for determination. The Superintendent did so accordingly. 4 [6] In the Statement prepared by the Superintendent under section 57, it is quite evident that the appellants’ basis of objection was filed under section 71(2), that it was in respect of the sufficiency of the amount awarded as compensation. At the High Court [7] Before the High Court, the appellants contended that the compensation was inadequate. According to the learned Judge, the only issue to be determined was whether the compensation to be awarded should be based on the value of the appellants’ lands at the date under section 47 or 48 notice. Upon answering that question would then arise the matter of quantum of compensation to be awarded – see paragraph [8] of the grounds of decision of the High Court. [8] In answering the question, the learned Judge preferred to follow the decision of the Court of Appeal in Jais Chee & Ors v Superintendent of Lands & Surveys Kuching Division [2014] 3 CLJ 467 instead of a later decision of the same Court in Superintendent of Lands & Surveys Samarahan Division v Surianto Abdul Hamid & Anor [2016] 3 CLJ 591. At the Court of Appeal [9] The Court of Appeal allowed the appeal and restored the award of compensation made by the Superintendent. According to the Court of Appeal, the Superintendent was obliged to award compensation based on the values assessed by reference to the date of the section 47 notice, and not by reference to the date of the section 48 notice. 5 Determination [10] The appellants’ challenge in Court at all material time was always over the sufficiency of compensation. It was never a question of the legality of the resumption exercise. This is why land reference proceedings are initiated – see section 56 of the Land Code; dissatisfaction: i. on the measurement of the land resumed, ii. the amount of compensation, iii. the persons to whom it is payable or the apportionment of the compensation among the persons interested. [11] Had the challenge been about the validity of the resumption, then such challenge must be a frontal or direct challenge in entirely different proceedings, whether through judicial review applications as was the case of Pemungut Hasil Tanah, Kuantan v Oriental Rubber & Palmoil Sdn Bhd [1986] 1 MLJ 39 and Pemungut Hasil Tanah Daerah Barat Daya, Penang v Kam Gin Paik & Ors [1986] 1 MLJ 362; or for declaratory orders as in Superintendent of Land & Survey Department Kuching Divisional Office & Anor v Ratnawati Hasbi Mohamad Suleiman [2020] 1 MLRA 385. [12] Collateral attacks have always been frowned upon by the Court; and the present circumstances are no different. This was reminded by this Court in Ann Joo Steel Bhd v Pengarah Tanah & Galian Negeri Pulau Pinang & Anor And Another Appeal [2019] 9 CLJ 153. Although discussed in the context of a Court order, that until and unless such order is set aside in direct proceedings, the order stands valid and enforceable and cannot be the subject of some collateral attack; it is equally true in the 6 case of compulsory resumption of land. That until and unless a notice of resumption has been set aside on any reason including a delay in holding an inquiry to determine the amount of compensation, the notice of resumption stands valid. [13] I make this observation as the arguments before us really seeks to challenge the resumption by reason of delay but for reasons best known by the appellants themselves, the proper and appropriate steps were not taken at the material time. In my view, the submissions urging this Court to deploy the power of modification under Article 162(6) of the Federal Constitution are not feasible not only for the reasons ably discussed by my learned brother but is also questionable. [14] Therefore, the issue of compensation, and that is the single issue before us, must be addressed within the confines of the Land Code. Since the complaint of the appellants is about the adequacy of compensation, it would make sense that the appellants argued for a valuation of the subject lands at the date of the section 48 notice while the respondent pressed for a valuation by reference to the section 47 date. Logically, the appellants’ must have been unsuccessful at the inquiry. [15] However, this was not what transpired. And, this is where I must remind all counsel of their primary duty as officers of the Court to ensure that full facts are duly and properly disclosed. A scrutiny of the records of appeal reveal some basic but material and relevant facts which ought to have been brought to our attention, but were not. These facts throw a completely different light on the appellants’ case, quite different from that portrayed. 7 [16] Going back to the salient facts as to the appellants and the lands resumed. [17] The appellants were, until the resumption, the registered proprietors of two parcels of land described as Lot 4000 Block 17 Salak Land District (“Lot 4000”) and Lot 5052 Block 17 Salak Land District being part of Lot 4004 Block 17 Salak Land District (“Lot 4004”) (collectively “the subject lands”). The subject lands comprised a 60-year leasehold interests from 27.7.1962 and expiring on 31.12.2022. At the time of purchase, the appellants had less than half of the remaining years of the relevant lease. On record, unless renewed, the leases have since expired. [18] The appellants had purchased the subject lands on 23.12.1996 at a consideration of RM210,000.00, equivalent to RM102,754,81 per hectare. This is stated at paragraph 18.0 of the appellants’ own valuation report. This works out to RM10.30 per square metre [p.s.m.] as explained by the government valuer in her witness statement and, as cited by the Court of Appeal at paragraph [39] of its grounds of judgment. See also page 16 of the appellants’ valuation report. [19] Before the Superintendent who was conducting the inquiry, both the appellants’ valuers and the government valuer offered their respective opinion on the market value as at both dates, be it under the section 47 or 48 notice. This indicates that everyone involved was fully aware of the delay and were already offering their views on the appropriate value(s) so that the Superintendent could determine the amount of compensation. [20] After offering the best comparative value of RM17.50 p.s.m. and recognizing the matter of delay, the government valuer recommended at paragraphs 5.7 and 6.2 of the report, a compounded rate of interest at 4% 8 per annum for 15 years till the date of resumption on 9.1.2012 calculated by reference to the date of the notice under section 47. The market value of the subject lands was then opined to be RM31.50 p.s.m, increased from RM17.50 p.s.m. As for the market value calculated by reference to the section 48 notice, the government valuer opined that the appropriate market value was also within the range of RM30.00 p.s.m. to RM32.00 p.s.m. – see paragraphs 7.5 and 7.7 of the report. [21] On the other hand, the appellants’ valuation report offered the value of RM10.30 p.s.m. for a valuation under the section 47 notice without the element of interest; and values of RM41.00 p.s.m. and RM42.00 p.s.m. for a valuation under the section 48 notice. These latter values were based on a transaction in 2007, a sale closest to the section 48 notice and said to be the most appropriate comparative valuation. [22] The Superintendent awarded compensation for the subject lands based on the value of RM32.00 p.s.m. More than that, the Superintendent stated that this was a valuation under section 48 – see paragraph 6.1 of the Statutory Statement filed by the Superintendent under section 57 of the Land Code. This was despite knowing that section 60(1)(a) required the material date to be as at the date of the publication of the section 47 notice since there was such a notice to begin with. [23] At the High Court, the learned Judge disagreed with the award of the Superintendent. His Lordship rejected the opinion and exercise of upward adjustment by the government valuer taking the view that “even with any upward adjustment, the amount of compensation would still be far less than the value of the land as at section 48 notice”. With this, the learned Judge proceeded to accept the valuation offered by the appellants. The award was increased to RM333,512.30 and the 9 respondent was ordered to pay the difference between this sum and the sum already paid pursuant to the section 51 inquiry. [24] At paragraph [4] of the grounds of decision, the learned judge set our section 60(1)(a) of the Land Code. I noticed that His Lordship stated as follows: “In determining the amount of compensation to be awarded for land resumed under this part, the Court should take the following matters and no others...” [emphasis added] [25] It is unclear whether this was a typographical error for section 60(1)(a) states that the Court “shall” and not “should” take into consideration the following matters and no others. Perhaps this may, in part, account for the route or line of reasoning embarked by the learned Judge. [26] Regardless, it was not open to the High Court to take the course of reasoning in view of the terms of the section 60. Recent decisions have pointed to section 17A of the Interpretation Acts 1948 & 1967 [Act 188] as suggesting and preferring the purposive approach; reading the object, purpose, and content of the provisions. Legislation is seen as enacted in clear terms conveying its intent and thus when it interpreting or construing their meaning, it should no longer be the 3-step formula. See Bursa Malaysia Securities Bhd v Mohd Afrizan Husain [2022] 4 CLJ 657; AJS v JMH & Another Appeal [2022] 1 CLJ 331; Tan Kah Fatt & Anor v Tan Ying [2023] 2 MCLR 525; and Datuk Bandar Kuala Lumpur v Perbadanan Pengurusan Trellis & Ors & Other Appeals [2023] 5 CLJ 167. In the 10 context of sections 47 and 48 read together with section 60(1)(a) of the Land Code, it is evident that these provisions are enacted to provide for adequate compensation of any land resumed by the State Government. Any delay in carrying out any exercise of determination of the adequacy of compensation does not alter that intent. [27] I must add that since compensation for the resumption of the subject lands was actually under section 48, as specified by the Superintendent in the Statutory Statement, there was really no room or cause for the appellants to complain. After all, the appellants were indeed paid compensation based on section 48. If anyone should complain, it would have been the acquiring authority. [28] Although the Court of Appeal had allowed the appeal of the respondent and ordered compensation to be paid by reference to the date of the section 47 notice and supposedly restoring the award of the Superintendent, it must be pointed out that in actuality, it was not. The value under the section 47 notice was RM31.50 p.s.m. whereas the value under the section 48 notice was a range between RM30.00 p.s.m. to RM32.00 p.s.m. The Superintendent awarded compensation at the rate of RM32.00 p.s.m.; clearly a value under section 48 and not section 47. And, this is what appears in the Statutory Statement of the Superintendent. [29] Be that as it may, the market values of the subject lands were effectively similar, whether under the section 47 or 48 notice. The appellants who had purchased the subject lands the year before the resumption notice under section 47 at the price of RM10.30 p.s.m. was ultimately paid RM32.00 p.s.m. for the resumption. Such compensation 11 cannot be said to be inadequate by the terms of Article 13 of the Federal Constitution; even if the modification exercise can be undertaken in law. [30] A final word, and this concerns the time taken for the appellants’ objections to be referred to the High Court. I noticed that the appellants had filed their objections in 2011 but the reference was only filed 7 years later, in 2018 and duly disposed by the High Court in the same year. For the same reasons so well-articulated by Lee Hun Hoe CJ (Borneo) in Superintendent of Lands & Surveys, Fifth Division, Limbang (Kuching Division) v Lim Teck Hoo [1980] 1 MLJ 58 and the implications to rights under Article 13 of the Federal Constitution, I make this additional observation that all objections should be promptly referred to the High Court for determination. [31] For the reasons added above, this appeal is dismissed. Dated: 9 October 2023 Signed (MARY LIM THIAM SUAN) Federal Court Judge Malaysia 12 Counsel/Solicitors For the appellant: Arthur Lee Cheng Chuan & Sylvester Tze Yang Messrs. Arthur Lee, Lin & Co. Advocates No. 10, Tingkat 2, Bangunan Cheema Lot 543, Jalan Tun Ahmad Zaidi Adruce 93400 Kuching Sarawak For the respondent: J.C Fong, Ronald Felix Hardin & Beatrice Minda Anak Wiston Bale Jabatan Peguam Besar Negeri Sarawak Tingkat 15 & 16, Wisma Bapa Malaysia 93502 Petra Jaya, Kuching