A plaintiff must possess legal capacity and valid authority to maintain a trespass claim, which was lacking due to an invalid Power of Attorney and absence of possession.

Introduction

[1] This action arises from an alleged trespass upon a parcel of land held under GM 115, Lot No 5599, Mukim Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur ("JV Land"). The plaintiff commenced this suit against the defendants alleging that the defendants had unlawfully entered and remained on the JV Land. The plaintiff contends that the alleged unlawful entry by the defendants unto the JV Land had deprived it of rights purportedly vested under a Joint Venture Agreement and a Power of Attorney, both dated 22 March 1995.

[2] In consequence, the plaintiff seeks several reliefs including damages for trespass, an order for vacant possession of the JV Land and an injunctive relief to restrain the purported further interference. In response to the claim, the 2nd defendant ("D2") initiated third-party proceedings against the 3rd defendant ("D3"). D2 seeks to be indemnified by D3 for any liability that may arise pursuant to the plaintiffs claim.

Background Facts

[3] Sometime in March 1995, the plaintiff entered into a Joint Venture Agreement ("JVA") with twenty-two registered proprietors of the JV Land including D3 for the purpose of undertaking a development project on the JV Land. On the same date, the twenty-two registered proprietors executed an Irrevocable Power of Attorney ("PA") in favour of the plaintiff which purported to vest in the plaintiff full authority to manage, develop and deal with the JV Land.

[4] Clause 4.2 of the JVA required the plaintiff to obtain all necessary regulatory approvals for the proposed development within twelve months from the date of the JVA with an allowable extension of six months. Clause 6.2 further stipulated that the development must be completed within thirty-six months from the date such approvals were obtained. Based on these terms, the development ought to have been completed by September 1999 at the latest. However, the JV Land has remained undeveloped and no construction was ever commenced by the plaintiff.

[5] Sometime in April or May of 2017, a majority of the landowners issued a notice purporting to terminate the JVA. Following the issuance of that notice, the plaintiff commenced arbitration proceedings against most of the landowners including D3. The arbitration concerned disputes relating to the alleged termination of the JVA and the purported continuing validity of the PA.

[6] The 1st defendant ("D1") acted as the developer of a project known as the "Cubic Botanical" development situated on the adjacent Lot 5598. D1 appointed the 4th defendant ("D4") as the main contractor for the said development. Subsequently, D4 appointed the 2nd defendant ("D2") as its subcontractor for building works comprised in the project.

[7] In August 2019, D2 entered into a tenancy agreement with D3 to lease a portion of the JV Land for a fixed term of twenty-four months commencing from 19 August 2019 until 18 August 2021 at a monthly rental of RM10,000.00. Under the terms of the tenancy, D2 was permitted to use the demised land for the construction of temporary office structures and workers' accommodation. It is alleged that one Dato' Low Boon An, who is a director of both D1 and D4, introduced D3 to D2 for the purpose of facilitating the tenancy arrangement.

[8] During the course of the tenancy, D2 sought to increase the area of the JV Land under lease. Following this, D2 agreed to pay D3 an additional