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2023 MarsdenLR 15
FEDERAL COURT PUTRAJAYA
YONG ING KAI & ANOR – Appellant
Versus
SUPERINTENDENT OF LANDS AND SURVEYS KUCHING DIVISION – Respondent
[Civil Appeal No: 01(f)-1-01/2022(q)]
Compensation for resumed land must be assessed based on the value at the time of the initial notice, not subsequent declarations, upholding the integrity of statutory provisions.
Headnote:(A) Land Code of Sarawak - Sections 47, 48, 51, 56, 57, and 60 - Compensation for land resumed - Appellants challenged the adequacy of compensation awarded for their lands resumed for flood mitigation purposes - The court ruled that the compensation must be assessed based on the value at the time of the s 47 notice, not the s 48 notice, and upheld the Court of Appeal's decision to restore the Superintendent's award. (Paras 3, 9, 12, 29)
(B) Statutory Interpretation - The court emphasized the necessity to interpret statutory provisions according to their clear terms and legislative intent, rejecting any reasoning that deviates from statutory mandates. (Paras 26, 27)
Facts of the case:
The appellants' lands were resumed by the respondent for flood mitigation, with compensation awarded by the Superintendent. The appellants contested the compensation amount, arguing it was inadequate. The High Court initially increased the compensation, but the Court of Appeal restored the Superintendent's award based on the s 47 notice.
Findings of Court:
The court affirmed that the compensation awarded at RM32.00 per square meter was adequate and in line with statutory provisions.
Issues: The primary issue was whether compensation should be based on the values assessed at the date of the s 47 or s 48 notice.
Ratio Decidendi: The court held that compensation must be determined based on the date of the s 47 notice, emphasizing the importance of adhering to statutory requirements in compensation assessments.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. compensation determination process. (Para 2 , 3 , 4 , 5 , 6) |
| 2. court's decision on compensation valuation. (Para 7 , 8 , 9) |
| 3. legality of resumption not challenged. (Para 10 , 11 , 12) |
| 4. court's observations on procedural conduct. (Para 13 , 14 , 15) |
| 5. valuation methods and market comparisons. (Para 17 , 18 , 19 , 20 , 21 , 22) |
| 6. interpretation of statutory provisions. (Para 23 , 24 , 25 , 26) |
| 7. actual compensation adequacy assessment. (Para 27 , 28 , 29) |
| 8. timeliness of objections filing. (Para 30) |
[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.
Factual Background
[2] The appellants' lands were resumed by the respondent through a notice issued under s 47 of the Land Code of Sarawak (Cap. 81) and dated 16 July 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 July 2009 that the Minister proceeded to declare under s 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 s 51. This, ultimately led to an award of compensation on 21 November 2011.
[5] The appellants accepted the award under protest. They then applied under s 56 to have their objection referred to the High Court for determination. The Superintendent did so accordingly.?
[6] In the Statement prepared by the Superintendent under s 57, it is quite evident that the appellants' basis of objection was filed under s 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 s 47 or s 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 ; instead of a later decision of the same Court in Superintendent of Lands & Surveys Samarahan Division v. Surianto Abdul Hamid & Anor ; .
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 s 47 notice, and not by reference to the date of the s 48 notice.
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 s 56 of the Land Code; dissati
