Injurious Affection PDF

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A summary on Injurious Affection In Malaysia...

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Injurious Affection In Malaysia 1. What is Injurious Affection? At law, Injurious Affection is synonymous with and equivalent to ‘damaged’. Although legislation does not define ‘Injurious Affection’, authorities have interpreted its meaning. In the English case of McCarthy v Metropolitan Board of Works,1 the Court held, “the word "injuriously" does not mean "wrongfully" affected. What is done is rightful under the powers of the Act. It means hurtfully or "damnously" affected. As when we say of a man that he fell and injured his leg. We do not mean that his leg was wronged, but that it was hurt. We mean he fell, and his leg was injuriously, that is to say, hurtfully affected. At the same time, I am clearly of opinion that to entitle the parties interested to compensation, the injury or hurt must be such as could not lawfully be inflicted except by the powers of the Act.” This was case was adopted locally in Shaik Sahib Bin Omar Bin Abdullah Bin Omar Makarim v The Municipal Commissioners,2 where the court held, “The term "injurious affection" is used in the cases quoted and the word "damages" is the term used in our section. The Plaintiff contends (I think rightly) that they are to all intents and purposes synonymous. It seems to me reasonable to regard "injurious affection" as a synonym of Damages. Injury may be "sine damno" or may result in damages. It is only where it results in damages that any substantial claim can arise under the Acts quoted above. On the other hand "injuriously" in the phrase "injuriously affected" cannot have precisely the same connotation as the word "injury" usually has.

1 MCCARTHY v. THE METROPOLITAN BOARD OF WORKS. (1872) L.R. 8 C.P. 191 2 SHAIK SAHIB BIN OMAR BIN ABDULLAH BIN OMAR MAKARIM v THE MUNICIPAL COMMISSIONERS [1932] 1 MLJ 53

Injury is essentially a wrong. But as Bramwell J. says inMcCarthy v Metropolitan Board of Works (42 LJCP 93) 94 "Injuriously affected does not mean wrongfully affected. What is done is rightful under the powers of the Act.It means hurtfully or 'damnously' affected … At the same time I am clearly of the opinion that to entitle the parties to compensation the injury or hurt must be such as could not be lawfully inflicted except by the powers of the Act."

In the case of Silvadorai Maniam & Satu Lagi lwn. Pentadbir Tanah Daerah, Bentung,3 the court accepted the Indian definition of “Injurious Affection” and held, “Izinkan

saya

menarik

petikan

dari

buku

Aggrawala

bertajukkan

"Compulsory Acquisition of Land in India" (Fifth New Revised and Enlarged 1985 Edn.) di muka surat 659 yang mana memberi panduan caramana hendak menguji keadaan "injurious affection" seperti berikut:

The test is this. Where by the construction of works there is a physical interference with any right, public or private, which the owners or occupier, of property are by law entitled to make use of in connection with such property and which rights gives an additional market-value to such property apart from the uses to which any particular owner or occupier might put it, there is a title to compensation if by reason of such interference to property a property is lessened in value." "Injurious affection" really means a depreciation in value.” In a nutshell, injurious affection is a form of damages that can be rewarded where the remaining land not acquired by law is ‘damnously’ affected/ deprecated in value and can be compensated by the powers of the Land Administrator provided by relevant statutes.

3 Silvadorai Maniam & Satu Lagi lwn. Pentadbir Tanah Daerah, Bentung [1994] 2 CLJ 611

2. What are is that law that governs Injurious Affection?

In Malaysia, the Land Acquisition Act 1960 (“ LAA”) ,4 provides that Injurious Affection is considered in determining compensation by the Land Administrator. The First Schedule Section 2 (d) of the LAA provides, “2. In determining the amount of compensation to be awarded for any scheduled land acquired under this Act there shall be taken into consideration the following matters and no others: (d)

the damage, if any, sustained or likely to be sustained by the person interested at the time of the Land Administrator’s taking possession of the land by reason of the acquisition injuriously affecting his other property, whether movable or immovable, in any other manner;”

From the above provision, the schedule provides compensation if the property whether moveable or immovable of the ‘ person interested’ in the land arising from the acquisition. 3. Who is entitled to Injurious Affection under the LAA? Pursuant to Para 2 (d) of the First Schedule of the LAA read together with section 2 (1) “Interpretation”, a “person interested” includes every person claiming an interest in compensation to be on account of the acquisition of land under the LAA, but does not include a tenant at will. From the above, it is clear that a person interested need not be the registered proprietor. Authorities are clear that a liberal approach must be adopted in construing the term ‘person interested’ as pronounced by the Federal Court in Cahaya

Baru

Development

Bhd

v

Lembaga

Lebuhraya Malaysia.5 The Federal Court affirmed the principle in 4 Act 486 5 Cahaya Baru Development Bhd v Lembaga Lebuhraya Malaysia [2011] 2 MLJ 729

Magasu Sundram a/l T Magasu & Ors v Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur,6 where the High Court was confronted with an application by the intended intervener who was appointed to procure a higher award of compensation on behalf of the first claimant and having been promised a 10% share of any additional compensation he could obtain, sought to intervene in the proceedings between the claimants and the land administrator. In deciding whether the intended intervener fell within the scope of the term 'person interested' in ss 2 and 14(2) of the Act, the Court held, “… However, the counsel for the intended intervener referred to an authority in the first applicant's bundle of authorities.At p 3 of the first applicant's bundle of authorities refers to the content of a book entitled The Law of Land Acquisition and Compensation Vol 1 written by VG Ramachandran. In his dealing with the definition of 'a person interested', the author, at p 2 stressed that the definition of the term clearly is not exhaustive. At p 3, the author quotes the observation of the Indian Supreme Court judge in the case of Sunderlal v Paramsuladas AIR 1968 SC 306 as follows:

It is not necessary that in order to fall within the definition a person should claim an

interest in land which has been

acquired. A person becomes a person interested if he claims an interest in the compensation to be awarded. (Emphasis added.) On the same p 3, the learned author went on to quote the decision of another Indian Supreme Court case of Himalayan Tiles v FV Coutinho AIR 1980 SC 1118 as follows: … it seems to us that the definition of the term is an inconclusive one and must be liberally construed to embrace all persons who

6 Magasu Sundram a/l T Magasu & Ors v Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur [2003] 5 MLJ 470; [2003] 2 CLJ 422

may be directly or indirectly interested either in the title of the land or in the question of compensation.(Emphasis added.) Based on the circumstances as mentioned above, the following conclusion can be made. The term 'person interested' is inconclusive and a person can be said to be a person interested if he has interest in the land either directly or indirectly or if he has interest in the compensation in respect of the land acquired.” Therefore, it is pertinent to note that the Malaysia have taken a liberal interpretation of ‘persons interested’, that even if one does not have an interest in the land acquired but has an interest in the compensation to be awarded then one can claim for injurious affection as compensation under the LAA. 4. Can you seek for injurious affection if land was not acquired i.e no award was given by the LA?

It is pertinent to note that every claim for compensation before the civil courts

is an

appeal against

the award

determine

by the

Land

Administrator (“LA”). If the claimant has not accepted the LA’Ss award on the claim, or has accepted payment of the amount of the award under protest as to its sufficiency, may subject to the following provisions, make objection to (1)The measurement of land; (2)The amount of the compensation; (3)The persons to whom it is payable; (4)The apportionment of the compensation.7 The court hearing is governed by Part V of the LAA (Sections 36-51). A Record of Appeal in Form O will have to be filed by the Land Administrator when referring the objection to the High Court. The landowner is entitled to file its valuation report and affidavits annexing any evidence in support of his case.

7 Land Acquisition Act 1960 s 37(1)(a)-(d).

From this, if no land was acquired, no award was given by the LA, then no proceedings before the court for a compensation on injurious affection can be made. Alternatively, if there was a proceeding and a claimant was not part of the original proceedings at the Land Enquiry, then he can apply for as intervener following the principles held in Magasu Sundram a/l T Magasu.8 But if no land acquisition had taken place, no proceedings was commenced by the LA, no legal avenue would be available to claim for such compensation. 5. What are the alternative remedies? The alternative remedies one is entitled to in cases of injurious affection beyond the scope of land acquisition would be in the law of tort. In a Malaysia case, Alfred Templeton & Ors v Low Yat Holdings Sdn Bhd & Anor [1989] 2 MLJ 202, the Plaintiff saw that his family house which stood on lot 48 was being buried by reason of the earthworks being carried out by the second defendant, as contractors for the first defendant on the condominium scheme on lot 39 and also that the construction works carried out were hindering access from the plaintiffs' lots to the public highway. The plaintiff’s solicitors also wrote a letter dated 2. July 1981 to the first defendant's managing director and stated that the road leading to the plaintiffs' family house on lot 48 and to lot 55 had been cut off by the first defendant's development. The plaintiff then claimed against the Defendants for general damages for trespass, nuisance and injury to their two plots of land allegedly caused by the development activities of the first defendant and its contractor the second defendant, on neighbouring land, resulting in obstruction of access from the plaintiffs' lots to the public highway. The plaintiff lost their claim for lot 55 for diminution in value. However, in regards to lot 48, the court held that there was injurious affection due to the fill and awarded the plaintiff damages for diminution in value to lot 48. The Court held, 8 Supra note. 5

“Similarly, I am unable to accept the opinion of the defendants' expert valuer, Mr S Gopal Krishnan, 'that there appears to be no valid claim for injurious affection due to lack of access in respect of lot 48'… … Accordingly, proceeding by the steps indicated by Millet J but always bearing in mind the particular circumstances of this case and that the assessment of damages may sometimes be purely guesswork (per Vaughan Williams LJ inChaplin v Hicks [1911] 2 KB 786 (CA) at p 792 and at p 795 per Fletcher Moulton LJ quoted with approval by Hamid J (as he then was) inFernando v Indrarajah [1987] 2 CLJ 365, - a case of trespass to land and encroachment). I would award the plaintiffs $100,000 by way of general damages for diminution in value of lot 48; in particular, for loss of amenity, namely, that instead of an access consisting of two branches with a combined width of 30 ft envisaged in cl 11 of the sale and purchase agreement, they will have to be content with a single access of about 12 ft wide offered by the defendant company at the hearing as evidenced by the plan D75.” From the above case, it is evident that damages can be claimed for injurious affection in action for tort. Conclusion Therefore, two conclusions arise from the law of Injurious Affection in Malaysia. One, damages can be claim if land acquisition was conducted, and claims for such damages were determined at the Land Enquiry. Two, if no land was acquired but due to construction works which deprecated the value of the affected land, the Plaintiff may claim under the law of tort for injury/diminution in value of the said land....