Under the Land Acquisition Act 1960, the proviso to Section 49(1) prohibits appeals against decisions of the High Court on compensation for land acquisition.
Section 49(1) of the Land Acquisition Act 1960 reads:
“Any person interested, including the Land Administration and any person or corporation on whose behalf the proceedings were instituted 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.”
In April 2017, the Federal Court, in the landmark decision of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Another Case [2017] 5 CLJ 526 held that that the prohibition in Section 49(1) is not a complete bar on all appeals relating to compensation. An aggrieved party still has the right of appeal against the decision of the High Court on questions of law. The Federal Court however did not define or indicate what may amount to “questions of law”.
In a recent Federal Court decision, in the case of Pentadbir Tanah Daerah Johor v Nusantara Daya Sdn Bhd (“Nusantara”) [2021] 1 LNS 479 on whether the questions posed were questions of law, a narrow approach was taken.
Background
In the case of Nusantara, the landowner was awarded a sum of RM16,516,800 as compensation for the acquisition of its land by the land administrator. Dissatisfied with the award, the landowner referred the matter to the High Court, who further increased the award to RM19,026,907. The landowner, still dissatisfied, appealed to the Court of Appeal.
At the Court of Appeal, a question was raised as to whether the appeal was barred, given that the issues were factual relating to the amount of compensation. The Court of Appeal found that the points raised were questions of law, allowed the appeal, and increased the compensation a further 15%.
The Court of Appeal’s decision was appealed to the Federal Court.
Federal Court’s decision
The Federal Court reversed the decision of the Court of Appeal, warning against a “liberal reading” or a “wide or flexible understand construct to the phrase ‘question of law’”, which may defeat the intent of finality in Section 49(1).
The Federal Court found that the issues raised in the Court of Appeal were “all about the award of compensation that was made by the High Court, how the final amount was arrived at and how that amount was wrong”:
- Issues of fact and/or application of valuation principles when computing the amount of compensation to be awarded for the acquisition are not questions of law.
- The landowner’s complaints relate solely and ultimately to the amount or inadequacy of compensation by reason of the deductions and adjustments made by the learned Judge. This is a methodology and exercise that a High Court Judge sitting as the Land Reference Court is perfectly entitled to undertake in order to determine the market value of the land.
- The complaints are not about the process of assessment or how the assessors had assisted the High Court in determining the compensation to be awarded.
- The complaints are in substance, about the computation of the award, how deductions were said to be erroneously made or certain factors not taken into account. These complaints posed ostensibly as question of law are really allegations about the amount awarded as compensation by the High Court and are not questions of law.
Commentary
Even though not all appeals relating to compensation will be barred from appeal, it is clear that the Court will take a stricter approach in examining whether there are questions of law in determining whether it is appealable. Factual issues or application of valuation principles which is within the discretion of the High Court are not questions of law.
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Th’ng Yan Nie is a Senior Associate in the dispute resolution practice group at Donovan & Ho. She has a wide range of experience in litigation matters including contractual and commercial disputes, compulsory land acquisition, debt recovery and strata and property management issues.
Donovan & Ho is a law firm in Kuala Lumpur, Malaysia. Our practice areas include employment law, dispute resolution (litigation and arbitration), corporate and tax advisory, and real estate/conveyancing. Have a query? Contact us.
