JUDGMENTBY: LORD DIPLOCK

(delivering the judgment of the Board): In June 1964 the land of which the market value is in dispute in the instant appeals was held in undivided shares by ten owners, of whom the first respondent (herein called "Alagappa") held a one-half share and the second respondent (herein called "Ong Thye Eng") held a one-twelfth share. The land was situate in Kuala Lumpur. It was 991,730 square feet viz. about 23 acres in extent. Alagappa had held his one-half share for many years; but Ong Thye Eng and the other eight co-owners had purchased the remaining half-share between them as recently as November 5, 1963, at a price of $ 1.10 per square foot from Devarayan Chettiar (herein called "Deverayan") who had himself become sole owner of that one-half share in 1962 as a result of a distribution of assets of a partnership on dissolution.

Notice that the land was likely to be acquired under the Land Acquisition Act 1960 was given on June 4, 1964. This was the relevant date at which its market value fell to be ascertained. The collector valued it at$ 2,975,190.00 or $ 3 per square foot. This was the valuation put upon it in a report by the Government valuer. The total sum was apportioned between the co-owners proportionately to their respective undivided shares in the land.

Each of the co-owners objected to the collectors award on the ground that the amount of compensation was too low. Their objections were referred to the High Court, under section 38 of the Act, for its decision. Mr. Justice Gill (as he then was), sitting with two assessors, heard the objections. He dismissed them and upheld the collectors award of $ 3 per square foot. In doing so he differed from the assessors, one of whom would have valued the land at $ 4.80 and the other at $ 6 per square foot.

Alagappa and Ong Thye Eng appealed to the Federal Court under section 49 of the Act. It was agreed that the other co-owners should be bound by the decisions in these appeals. The Federal Court (Ong Hock Thye F.J. (as he then was), Raja Azlan Shah and Pawan Ahmad JJ.) allowed the appeals. The judgment was given by Ong Hock Thye F.J. He valued the land at $ 6,960,456. This figure was arrived at by taking a value of $ 8 per square foot, deducting $ 200,000 as the cost of clearing squatters from the land, and subjecting the balance to a further reduction of 10% to cover "the bare possibility that I may have overlooked some other factor in the collectors favour. although I do not think so".

Leave to appeal to the Yang di-Pertuan Agong was granted to the collector. He seeks to have the High Courts valuation of $ 3 per square foot restored. Alagappa and Ong Thye Eng also obtained leave to cross-appeal against the final 10% reduction for factors which may have been overlooked. The collector has not sought to justify this 10% reduction if the valuation to which it was applied is correct. The real issue in the instant appeals is whether the Federal Court erred in principle in setting aside the valuation of Gill J. at $ 3 per square foot and substituting their own valuation of $ 8 per square foot less a deduction of $ 200,000 for squatter clearance.

At the hearing before their Lordships Board the appellant sought leave to support the valuation of Gill J. upon an additional ground which did not form the basis of his judgment and was not relied upon by the appellant at the hearing in the Federal Court. This was that the compensation ought not to have been assessed upon the value of the land as an undivided whole and apportioned among the co-owners proportionately to their respective undivided shares in it, but should have been assessed upon the aggregate of the separate values of the undivided shares in which the land was held. This new contention would involve a question of law of general public importance as to the true construction of a Malaysian statute dealing with the measure of compensation for land compulsorily acquired throughout the Federation. If