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2025 MarsdenLR 4170
HIGH COURT MALAYA SHAH ALAM
NG CHOK LING – Appellant
Versus
ABDUL GAFFAR KHAN AMIRULLAH – Respondent
[Civil Suit No: BA-23NCvC-58-11/2023]
Local authorities have discretion in enforcing building regulations; unauthorized constructions without permits are illegal, and courts respect these powers unless proven unlawful.
Headnote:(A) Street, Drainage, and Building Act 1974 - Sections 70 and 101 - Evidence Act 1950 - Sections 18 and 21 - Complaint of illegal construction and trespass - Court found admission by defendant regarding the lack of permit for construction; plaintiff entitled to general damages for trespass with an award of RM50,000 - Relief for demolition declined pending local authority evaluation. (Paras 9, 95)
(B) Burden of Proof - It is established law that the burden of proof rests with the party asserting the facts. (Para 7)
(C) Local Authority Powers - Courts must respect the discretionary power of local authorities in enforcement matters unless proven unlawful. (Paras 63, 79)
(D) Trespass - Clear admission of trespass by defendant's workers; denial of special damages due to insufficient evidence. (Paras 84, 90)
Facts of the case:
The plaintiff, a property owner, alleged illegal construction by the defendant without permits and sought damages for trespass after the defendant's workers purportedly trespassed onto the plaintiff's awning. The defendant admitted to the lack of permit for the wall constructed atop an existing retaining wall. Issues raised included legality of construction, safety of the structure, and trespass.
Findings of Court:
The court found the construction illegal due to lack of permit and confirmed damages for trespass but dismissed further claims pending local authority review.
Issues: The legality of the defendant's construction, safety concerns, and related damages for trespass were the main issues.
Ratio Decidendi: Court emphasized the necessity of local authority involvement in enforcement of building regulations and found the plaintiff entitled to damages for trespass but limited further claims during the ongoing oversight by the municipal authority.
Result: Part of the plaintiff's claims allowed; general damages for trespass awarded and repair order made.
| Table of Content |
|---|
| 1. overview of the case initiation and plaintiff's appeal (Para 1 , 2) |
| 2. parties involved and properties in dispute (Para 3 , 4 , 5) |
| 3. claims and orders sought by the plaintiff (Para 6) |
| 4. issues for trial outlined (Para 8) |
| 5. court's findings on the evidence and admissions (Para 9 , 10 , 11 , 12 , 13) |
| 6. arguments regarding proper procedures and defenses (Para 14 , 15) |
| 7. legal powers of the local authority over buildings (Para 28 , 29) |
| 8. statutory prohibition on unauthorized erections (Para 31 , 32) |
| 9. local authorities’ role and judicial non-interference (Para 59 , 60) |
| 10. court's inherent power to prevent injustice (Para 80 , 81) |
| 11. final decision and orders issued by the court (Para 95) |
A. Introduction
[1] This case has been resolved through a full trial scheduled from 24 to 26 February 2025.
[2] On 19 May 2025, I allowed part of the plaintiff's claim against the defendant. Dissatisfied with the ruling, the plaintiff appealed against that part of the decision.
B. Material Facts
[3] The plaintiff and the defendant are neighbours residing in the Tropicana Indah Resort Homes, Petaling Jaya.
[4] The plaintiff is the registered owner of a property known as No 47 Jalan PJU 3/12F, Tropicana Indah Resort Homes, while the defendant possesses a property at No 26 Jalan PJU 3/12E.
[5] The defendant's property is located directly behind the plaintiff's property and is one floor above it.
[6] The plaintiff's claim against the defendant, among others, seeks:
a) An order requiring the defendant to demolish the wall and/or the illegal structure built on top of the original retaining wall;
b) In the alternative to (a), an order for the defendant to strengthen the original retaining wall and appoint a certified engineer and/or professional (approved by the plaintiff) to certify the construction of the illegal structure;
c) An order for the defendant to repair and/or replace the awning at the plaintiff's property;
d) Alternatively to paragraph (c), an order that the defendant bear all costs of repairing the awning incurred by the plaintiff;
e) An order for the defendant to pay damages for trespass to the plaintiff;
f) An order for the defendant to pay damages for the diminution in market value and the opportunity cost associated with the sale of the plaintiff's property;
g) General damages for trespass;
h) Special damages for trespass;
i) Interest at 5% per annum for (g) and (h), calculated from the date of the writ summons until the date of full settlement;
j) Costs;
k) Any other relief this Court deems fit and proper to grant.
C. Applicable Law
[7] In the case of Hong Yik Trading v. Liziz Plantation Sdn Bhd ; , the Federal Court makes findings on the burden of proof as follows:
12] It is settled law that the burden of proof rests throughout the trial on the party who asserts that the facts exist (s 101 of the Evidence Act 1950). Where a party on whom the burden of proof lies has discharged that burden, then the evidential burden shifts to the other party. However, if the party on whom the burden of proof lies fails to discharge it, the other party need not call any evidence. This is highlighted in the case of Selvaduray v. Chinniah ; where Terrell, Ag CJ stated:
... it is clear that the onus is on the plaintiff to prove his case. After the conclusion of the whole case, there must be some preponderance in his favour. It may be true that the plaintiff established a prima facie case, but at the conclusion of the trial, the learned Judge has found that the position was exactly even, ie that any preponderance in the plaintiff's favour had disappeared. That being the case, the plaintiff must necessarily fail, as he has not discharged the onus which is upon him. No doubt the defendant would equally have failed if he had been the claimant and had tried to establish, as a substantive part of his case, the alternative version which he tried to prove in answer to that of the plaintiff.
In the case of International Times & Ors v. Leong Ho
