Land Acquisition Act, 1960 (Act 486) - the right of appeal, if any, pursuant to s. 49 and the role of the assessors in land reference proceedings.
Contributed by Su Tiang Joo, Advocate & Solicitor, High Court in Malaya
Introduction
The Land
Acquisition (Amendment) Act, 1997 (Act A999) which came into force on 1st
February 1998 introduced various provisions on how land reference proceedings
in the High Court are dealt with.
This article discusses how the [constitutional] right
of appeal to the Court of Appeal and the Federal Court arising from the
aforesaid Amendment Act seem to have been lost and that the procedure currently
adopted by the High Court in dealing with land reference proceedings results in
any person interested including the Land Administrator and any person or
corporation on whose behalf the land acquisition proceedings were instituted
being deprived of their right of pursuing an appeal to the Court of Appeal and
to the Federal Court.
As statutory relief by Parliament against the
perceived loss of the right of appeal would most probably be slow in coming, suggestions are made on how various procedural
safeguards should be implemented when assessors are appointed to deliberate on
the issue of compensation payable. In this regard,
reliance and hope will be placed upon the judiciary to breathe life into the
current statutory provisions taking into account the needs of our time whilst
at the same time paying heed to the principles of justice and the legal and
constitutional framework.[1]
For purposes of this article, the Land Acquisition
Act, 1960 (Act 486) shall be referred to as the Act.
Loss of right of appeal
Section 49 of the Act provides as follows:-
“49. Appeal
from decision as to compensation.
(1)
Any person interested, including the Land
Administrator and any person or corporation on whose behalf the proceedings
were instituted pursuant to section 3 may appeal from a decision of the Court
to the Court of Appeal and to the Federal Court:
Provided that where the decision comprises an award of
compensation there shall be no appeal therefrom.” (Prior
to 1st February 1998, there was a right of appeal from any decision
comprising an award of compensation if the amount awarded exceeds five thousand
ringgit) [2]
“(2) Every
appeal under this section shall be presented within the time and in the manner
provided for appeals in suits in the High Court:
Provided that the time within which an appeal may be
presented shall only be capable of enlargement by order of a Court in such
special circumstances as the Court may think fit.”
At first blush it is clear that unless the decision
comprises an award of compensation the right to appeal to the Court of Appeal
and to the Federal Court remains intact. This, however, is illusory.
As section 49 (1) makes mention of section 3 of the
Act, the provisions of section 3 are
set out hereunder to facilitate ease of reading.
“3. Acquisition
of land.
(1)
The State Authority may acquire any land
which is needed-
(a)
for any public purpose;
(b)
by any person or corporation for any
purpose which in the opinion of the State Authority is beneficial to the
economic development of Malaysia or any part thereof or to the public generally
or any class of the public; or
(c)
for the purpose of mining or for
residential, agricultural, commercial, industrial or recreational purposes or
any combination of such purposes.”
There follows another five subsections which need not
concern us for purposes of our discussion. It is, however, opportune to set out
hereunder Article 13 of our Federal Constitution which provides that:
(2) No law shall provide for the compulsory acquisition or use of
property without adequate compensation.”
The Act specifically says in its introductory
statement that it is an Act relating to the acquisition of land, the assessment
of compensation to be made on account of such acquisition, and other matter,
incidental thereto.[3]
Reading the provisions of Article 13 of our Federal Constitution and the Act,
it is clear that the Act is the law providing for the compulsory acquisition or
use of property and for the assessment of adequate compensation and any other
matter incidental thereto.
The Oxford Dictionary and Thesaurus[4]
defines “incidental” as “a - having
a minor role in relation to a more important thing,
event etc b - not essential c - casual happening by chance. It
follows that save for the act of acquisition itself and the assessment of
compensation, everything else are
but incidental.
It would logically follow that a decision of the High
Court in a land reference matter arising from a land acquisition exercise
carried out pursuant to the Act can only be appealed against if it is a
challenge only as to the validity of the proposed acquisition and the
acquisition itself because any other case will invariably be a decision that
comprises an award of compensation.
The bulk of the cases fought out in the land reference
proceedings in the High Court are on the assessment of adequate compensation. A
trawl through both the reported and unreported (i.e. MLJU and LNS) cases of
both the Malayan and Current Law Journals shows that as from 1st
February, 1998 until 19th
November, 2012 all the reported land
reference cases were ultimately on compensation. This means that the amendments
brought about by the Land Acquisition (Amendment) Act,
1997 (Act A999) to the proviso of section 49 (1) effectively nullifies the
provision of the right of appeal contained in section 49 (1).
Constitutional right of appeal
The right not to be deprived of one’s property is a
fundamental liberty specially recognised by Article 13 of our Federal
Constitution which comes under Part II with the subheading of Fundamental
Liberties. Intrinsic to this right is the right to a fair trial which under our
legal jurisprudence is one trial and a right of appeal and subject to leave
being granted a further right of appeal i.e. or in common parlance, one strike
and two appeals.
With all due respect, if the legal effect of the
proviso contained in section 49 (1) is to take away the right of appeal of a
person dissatisfied with the decision of the court of first instance, which in
land reference proceedings, is the High Court, the constitutionality of the
amendment leading to the proviso contained in section 49 (1) is highly suspect
and should be challenged.
To quote the late Mohtar
Abdullah FCJ’s words:-
“The Court of Appeal is created to confer any litigant
dissatisfied with the decision of the trial judge in the High Court the
constitutional right of appeal to an intermediate appellate body (the Court of
Appeal) and thence to the final appellate body (the Federal Court). Article
121(2)(a) of the Constitution clearly confers on the Federal Court the
'jurisdiction to determine appeals from decisions of the Court of Appeal, of
the High Court or a judge thereof', qualified by art 128(3) of the Constitution
that such jurisdiction shall be as provided by federal law. Article 128(3) of
the Constitution is the enabling provision in the Constitution that allows
federal law to regulate the exercise of the jurisdiction of the Federal Court
conferred on it by art 121(2)(a) of the Constitution, ie to allow federal law
to be made to provide for rules, procedure or conditions (including the
question of leave, etc) to ensure the proper exercise of the Federal Court's
jurisdiction. Article 128(3) of the Constitution cannot be interpreted as
allowing federal law to fetter the jurisdiction of the Federal Court to hear
any appeal on the merits from the Court of Appeal emanating from a decision of
the High Court or a judge thereof. A harmonious interpretation of art 128(3)
vis-á-vis art 121(2)(a) of the Constitution, will promote the purpose or object
of the law providing for a three tiered pyramidal judicial system of 'one trial
+ two appeals' as envisaged in the Constitution and structured accordingly in
the CJA.”[5]
Role of assessors in land reference proceedings
Whilst purporting to take away the right of appeal in
a decision comprising an award as to compensation, there are 4 new sections
relevant to the issue under discussion that come with the Land Acquisition
(Amendment) Act, 1997 (Act A999) namely sections 40A, 40B, 40C and 40D. These
four new sections provide as follows:-
"40A. Constitution of the
Court.
(1) Except as provided in
this section the Court shall consist of a Judge sitting alone.
(2) Where the objection
before the Court is in regard to the amount of compensation, the Court shall
appoint two assessors (one of whom shall be a valuation officer employed by
the Government) for the purpose of aiding the Judge in determining the
objection and in arriving at a fair and reasonable amount of compensation.
(3) For the purpose of subsection (2) the Court shall appoint the
two assessors from the lists of names submitted to the Court under subsections
(4) and (5).
(4) The President of the Board of Valuers, Appraisers and Estate
Agents established under the Valuers, Appraisers and Estate Agents Act 1981
shall submit a list of names and business addresses of valuers and appraisers
registered under that Act to every High Court before the thirty-first day of
December of each calendar year.
(5) The Director General of the Valuation and Property Services
Department shall submit a list of names of valuation officers employed by the
Government and the offices to which they are attached or posted to every High
Court before the thirty-first day of December of each calendar year.
40B. Assessors.
(1) Every person appointed as an assessor under section 40A shall
be legally bound to attend and serve as an assessor unless excused for some
reason to be approved by the Judge.
(2) Without prejudice to subsection (1), if an assessor fails to
attend and serve as an assessor without written excuse by the Judge, the Court
shall report the matter to the President of the Board of Valuers, Appraisers
and Estate Agents for disciplinary proceedings to be taken against the assessor
under the Valuers, Appraisers and Estate Agents Act 1981.
(3) Without prejudice to subsection (1), if
an assessor who is a valuation officer employed by the Government fails to
attend and serve as an assessor without written excuse by the Judge, the Court
shall report the matter to the Director General of the Valuation and Property
Services Department for disciplinary proceedings to be taken against the
assessor under the appropriate disciplinary regulations applicable to such
officer.
(4) If an assessor dies, or becomes incapable of acting, or is
excused by the Judge, another assessor from the list referred to in section
40A(4) or (5), as the case may be, shall be appointed in his stead.
(5) Every assessor who is not a valuation officer employed by the
Government shall receive a fee for his service as the Judge shall direct
provided that such fee shall not exceed five hundred ringgit a day, or such
higher figure as the Minister may, with the approval of the National Land
Council, by notification in the Gazette
prescribe.
(6) The fee of an assessor shall be deemed to be costs in the
proceeding.
40C. Opinion of assessors.
The opinion of
each assessor on the various heads of compensation claimed by all persons
interested shall be given in writing and shall be recorded by the Judge.
40D. Decision of the Court on
compensation.
(1) In a case before the Court as to the amount of compensation or as to
the amount of any of its items the amount of compensation to be awarded shall
be the amount decided upon by the two assessors.
(2) Where
the assessors have each arrived at a decision which differs from each other
then the Judge, having regard to the opinion of each assessor, shall elect to
concur with the decision of one of the assessors and the amount of compensation
to be awarded shall be the amount decided upon by that assessor.
(3) Any
decision made under this section is final and there shall be no further appeal
to a higher Court on the matter.”
(the provisions emboldened in
italics are done by the author to lay emphasis)
The provisions of sections 40A to 40D read together
with section 49 would drive one to conclude that Parliament intends that only
in matters of compensation as decided by the High Court Judge sitting with two
assessors in accordance with the provisions of these sections [40A, 40B,
40C and 40D] are the decisions to be final with there being no further appeal
to a higher court on the matter. If this is not accepted then it would further
strengthen the point made above that the taking away of the right of appeal as
provided in the proviso to section 49 is unconstitutional.
Following from this, it can be safely concluded that
if the decision is not one carried out in accordance with the provisions of
sections 40A to 40D then such a decision should be appealable.
From the statutory provisions contained in sections
40A to 40D of the Act, it is clear
that the role of the assessors is limited to only one of providing an opinion
on the amount of compensation to be awarded under the various heads of
compensation claimed by all persons interested.
However,
before the two assessors provide their respective opinions, it must first be determined whether each head of
compensation claimed by all persons interested is permissible or not in law and
whether there is admissible and sufficient evidence led to support the claim.
In other words, it must first be
determined whether such heads of compensation are claimable or not, by persons interested and if so, whether there is admissible and sufficient
evidence led to prove them. The determination of this is,
it is submitted, for the Judge and
the Judge alone.
It follows that in a land reference proceeding, the
hearing should be before a Judge sitting alone. After all evidence have been
led and arguments presented, the Judge should first determine as a matter of
law the objections made by persons interested. Only if the objections pertain
to the amount of compensation that the assessors should be invited to render
aid in determining the objections and in arriving at a fair and reasonable
compensation.
That the assessors’ role is limited is underscored by
the provision of section 40C which provides for each of the assessors to render
an opinion in writing on the various heads of compensation only and the
opinion(s) shall be recorded by the Judge. Where the assessors have each
arrived at a decision which differs from each other then the Judge, having regard to the opinion of each of the
assessors, shall elect to concur
with the decision of one of the assessors and the amount of the compensation to
be awarded shall be the amount decided upon by that assessor.[6]
Current practice
However, a practice has developed in the High Court
since the coming into force of the Land Acquisition (Amendment) Act 1997 on
1-2-1998 where the two assessors appointed, sit with the Judge, once hearing
commences on the reference.
It is submitted that the procedure introduced by the
Land Acquisition (Amendment) Act 1997 does not alter the very substantial role
of the Judge before such amendments came into force on 1-2-1998. The Judge’s
role and judicial function of hearing evidence and submissions and making
rulings, decisions and orders is for the Judge and the Judge alone. The vast
array of issues, which are non-exhaustive, that can arise in a land reference
matter that requires the Judge’s decision are inter alia:-
1)
Procedural
1.1
Timelines
for the filing of affidavits;
1.2
Timelines
for the filing of heads of claims;
1.3
Mode
of evidence to be tendered;
1.4
Order
of witnesses;
1.5
Order
and timelines for submissions;
2)
Su bstantive
2.1 Whether the issue is one of compensation or law;
2.2 The legality of the reference proceedings itself;
2.3 Admissibility of evidence;
2.4 Whether a particular head of compensation can be claimed
e.g. loss of profits and wasted development expenditure;
2.5 Whether an applicant has established a prima facie case;
2.6 Whether in establishing a prima facie case can the valuer’s reply be considered or is it only
his primary report that can be considered;
2.7 Whether land for which approval has been obtained for the
change in category of land use but for which premium has not been paid ought to
be valued based upon the original or the approved category of land use;
2.8 Whether the valuation of the scheduled land should be
determined on the category of land use as stated in the title or provided in
the information submitted by the State Director of Town & Country Planning
to the Land Administrator under s. 9A of the Act;
2.9 Whether injurious affection can be claimed for the remaining
unacquired land which adjoins the scheduled land and if so, to what extent;
2.10 The interpretations of the provisions of the Act;
2.11 Whether equitable principles such as estoppel, waiver and acquiescence apply in construing the
provisions of the Act.
Against the vast array of issues to be determined, it
can be seen that the role of the assessors are very limited.
At the risk of repetition,
section 40D expressly provides that the opinions of the assessors are only
required in matters of quantum or amount of compensation.
In circumstances under which it is not clear as to
whether it is a question of compensation or law simpliciter or is a mixed
question of compensation and law, it
is respectfully suggested that it should still be for the Judge to direct the
assessors whether a particular head of compensation is claimable and for the
assessors to then opine on the amount payable. After each of the assessors has
decided on the quantum and if the two assessors agree with each other on the
quantum, the Judge is bound to accept
the quantum. Only if their decisions differ that the Judge has to concur with
one or the other in the making of an award on compensation.
Section 40D (3) goes on to provide that any decision
under this section is final and there shall be no further appeal to a higher
court on the matter. This section has
received judicial interpretation to the effect that any decision of the High
Court on any decision pertaining to the compensation payable in a land
reference proceeding is non-appealable. With all due respect, this is
incorrect.
It is only after the Judge makes a decision that a
particular head of claim is claimable, that there are lawful persons interested
before it making the claim and/or objections and that there is admissible and
sufficient evidence for these claims to be considered, that the assessors will
then be called upon to determine the quantum of compensation. Whether a
particular head of claim is claimable or not,
whether there are lawful persons interested before the court, whether there is admissible and sufficient
evidence before the court are questions of law and falls to be decided by the
Judge and the Judge alone. Su ch
decisions are and should be subject to appellate scrutiny and correction.
We now return to section 49 which carries the
headnote of “Appeal from decision as to compensation” and it reads :-
“49. Appeal from
decision as to compensation.
(1)
Any person interested, including the Land
Administrator and any person or corporation on whose behalf the proceedings were
instituted pursuant to section 3 may appeal from a decision of the Court
to the Court of Appeal and to the Federal Court:
Provided
that where the decision comprises an award of compensation there shall be no
appeal therefrom.”
At the conclusion of a land
reference case, the High Court will
make a decision which invariably concerns “the amount of compensation” but
which may or may not involve a determination of questions of law. Besides those
mentioned earlier above, other examples of questions of law are:-
(i) whether
a party ought to be allowed to cross-examine the other party’s valuer, bearing
in mind Rule 2 of the Third Schedule to
the Act;
(ii) whether
a party’s valuation report is admissible or ought to be expunged;
(iii) whether
compensation may be awarded in excess of the claim made during the inquiry,
bearing in mind Rule 4 of the First
Schedule to the Act.
A
reported authority that supports this argument can be found in the case of A
Karunathan Arunasalam v Pentadbir Tanah Daerah Petaling[7].
In this case, the Court of Appeal
allowed a cross-appeal against the decision awarding compensation and set aside
the compensation on a question of law and principle viz.,
that a land owner who has not established a prima facie case by reason
of the rejection of his valuation report is not entitled to any additional
compensation.
Decision
of Calamas
However,
in Calamas Sdn Bhd v Pentadbir Tanah Batang Padang[8], the Federal Court
(speaking through Hashim Yusoff FCJ) held that the appeal in a land reference
matter was barred by the provisions in sections
40D (3) and 49 (1) of the Act.
The
Federal Court held[9] that there is no right of appeal in that case because “the issue put
forward before the court was whether the learned judge was correct in
determining the amount of compensation
to be awarded to the appellant (emphasis added)” – even though the appeal
was on the basis of the interpretation of certain provisions in the Act.
With all due respect, this case effectively makes the right of appeal
contained in section 49 (1) a dead letter simply because the Federal Court had
failed to consider the correctness and
legality of the judicial evaluative process undertaken to arrive at the quantum
of compensation awarded. Instead,
the Federal Court in Calamas had
seized upon the fact that as the case was ultimately to do with the amount of
compensation, no appeal lies. With
the greatest of respect, by now it
would be clear that such a decision goes against the underlying reason for the
taking away of the right of appeal as contained in the Land
Acquisition (Amendment) Act 1997 (Act A999). As it stands, Calamas
would invariably defeat each and every appeal on compensation irrespective of
whether the appeal is one on a question of law or not.
Conclusion
In concluding, it cannot be gainsaid that the decision in Calamas has to be revisited by the
Federal Court and the sooner the better. Until then,
it is proposed that the following procedural safeguards be implemented in the
High Court in land reference proceedings. These safeguards are akin to trials
by juries where questions of law are answered by the Judge and questions
pertaining to facts are to be answered by the jury. In land reference
proceedings, in each and every
decision handed down in land reference proceedings under the Act, it is suggested that all evidential rulings and
questions of law be answered by the Judge [of the High Court] and are clearly
set out in writing and any questions on quantum of compensation be answered by
the assessors [and] the Judge, only
if the assessors are split on their decisions on quantum of compensation.
What
is being suggested is in fact contained in section 40C of the Act which is
repeated below:-
“40C. Opinion of assessors.
The opinion of
each assessor on the various heads of compensation claimed by all persons
interested shall be given in writing and shall be recorded by the Judge.”
In the interim, subject to any challenge and finding
on the constitutionality of the proviso to section 49 of the Act taking away
the right of appeal, this suggestion would then make it clear as to whether any
opinion is one that falls within the special province of the assessors or that
of the Judge for purposes of addressing whether it is appealable to the Court of
Appeal and to the Federal Court.
[1] See Dato’ Mohd Hishamudin
Yunus JCA, “Judicial Activism – The Way To Go”, [2012] 5 CLJ (A) ix.
[2] See section 27 of Land Acquisition (Amendment) Act
1997 (Act A999) on amendments to section 49 of the Land Acquisition Act, 1960 (Act 486).
[4] Oxford Dictionary and Thesaurus (Oxford : Oxford University
[5] Megat Najmuddin Bin Dato Seri (Dr) Megat Khas v Bank Bumiputra (M) Bhd
[2002] 1 MLJ 385 at 429 per Mohtar Abdullah FCJ.
[6] See section 40 D (2) of
the Land
Acquisition Act, 1960 (Act 486).
[7] [2011] 7 CLJ 130
[8] [2011] 5 CLJ 125
[9] [2011] 5 CLJ 125 at 133