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2021 MarsdenLR 4260
HIGH COURT SABAH SARAWAK TAWAU
MOHD MANUKE – Appellant
Versus
AFFANDAY S MOHD & ANOR – Respondent
[Civil Suit No: TWU-22NCvC-22/10-2020]
The right of way does not confer ownership or possessory rights; thus, the Plaintiff cannot maintain an action in trespass.
Headnote:(A) Land Ordinance (Cap 68) – Sections 30(1)(d) and 31(1)(d) – Right of way granted to the Plaintiff does not constitute proprietary rights necessary to sustain an action in trespass – The Plaintiff does not have the right of occupation or possession over the land, hence the claim for trespass and nuisance falls short as per court principles. (Paras 14, 43)
(B) Breach of Contract – The termination of the rental agreement was justified due to the Plaintiff's unilateral increase in costs, constituting a repudiatory breach. (Paras 36, 40)
Facts of the case: The Plaintiff claimed trespass and nuisance against the Defendants, alleging wrongful use of his granted right of way and breach of a rental contract for land use. He alleged that the 2nd Defendant wrongfully terminated the contract and both Defendants trespassed on his property.
Findings of Court: The Court found the Plaintiff lacked exclusive rights over the ROW to sustain a claim for trespass, and justified the 2nd Defendant's termination of the rental agreement. (Paras 43, 45)
Issues: Whether the Plaintiff had rights to sustain trespass and whether the 2nd Defendant's termination of the rent agreement was wrongful. (Paras 9, 33)
Ratio Decidendi: The ROW granted was for passage only, lacking possession rights necessary for a trespass claim; the 2nd Defendant was justified in terminating due to the Plaintiff's breach. (Paras 14, 40)
Result: The Plaintiff's action is dismissed, with costs awarded to the Defendants.
Certainly. Based on the provided legal document, here are the key points summarized:
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The right of way granted to the Plaintiff does not confer ownership or possessory rights over the land, and therefore, the Plaintiff cannot maintain an action in trespass. The right of way is only for passage and does not include possession rights (!) (!) .
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The Plaintiff's claim in trespass and nuisance fails because he does not have exclusive possession or ownership of the land over which the right of way runs. His rights are limited to passing and repassing, not possession or control of the land itself (!) (!) (!) .
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The Plaintiff's assertion that he bears the costs of maintaining the right of way is contradicted by evidence of an agreement with the 1st Defendant, who paid a portion of the costs. The Plaintiff's claim for costs-sharing is therefore unsubstantiated (!) (!) .
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The Plaintiff's claim in nuisance is not sufficiently pleaded, lacking specific particulars of how the Defendants' conduct caused unlawful interference or annoyance. Furthermore, the Plaintiff lacks the locus standi to sue in nuisance as he does not have exclusive possession of the land (!) (!) (!) .
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The Plaintiff's claim for breach of contract against the 2nd Defendant for wrongful termination is unfounded because the 2nd Defendant was justified in terminating the agreement due to the Plaintiff's unilateral increase of the rental rate, which constituted a repudiatory breach (!) (!) .
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The Plaintiff failed to prove that the 2nd Defendant induced a breach of contract, as there was no breach by the 2nd Defendant following his termination of the agreement (!) (!) .
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The Plaintiff's action should have been brought in the Sessions Court, as it primarily concerns damages and does not involve a land ownership dispute. The High Court's jurisdiction was improperly invoked, and the case is dismissed on this basis (!) (!) .
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The Court concludes that the Plaintiff's rights are limited to use of the right of way as endorsed on the land titles, and he does not possess rights that would support claims of trespass or nuisance against the Defendants. The Defendants' actions do not amount to trespass or nuisance, especially given the permission obtained from landowners and the contractual arrangements (!) (!) (!) .
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As a result of the findings, the Plaintiff's claims are dismissed, and the Plaintiff is ordered to pay costs to the Defendants (!) .
Please let me know if you need a more detailed analysis or specific legal advice related to this case.
JUDGMENT
[1] The Plaintiff is and was at all material times the registered proprietor of a parcel of land in Kinabutan, Tawau, held under NT 103015381.
[2] On 21 May 1996, the Plaintiff was granted a right of way ("ROW") by the Assistant Collector of Land Revenue ("the ACLR") to his land - which would otherwise have been landlocked - through 2 adjacent parcels of land owned by different persons which were held under PL 106146329 and CL 105113853. The ROW was said to be granted pursuant to s 30(1)(d) of the Land Ordinance (Cap 68). See CBOD Part B, p 9.
Case Against The Defendants
[3] The Plaintiff alleges that sometime in 2018, he discovered that the 1st Defendant (the applicant for a parcel of land adjacent to the Plaintiff's land) had trespassed on what he claimed to be his ROW.
[4] As against the 2nd Defendant, the Plaintiff sued for breach of the "Perjanjian Sewa Tapak Punggah Sawit" in writing dated 4 November 2019 ("the agreement"). See CBOD Part B, pp 18-19.
[5] The 2nd Defendant, a bankrupt before the agreement was signed, had agreed to rent a part of the Plaintiff's land for unloading oil palm fruits at RM12.50 per ton for a period of 1 year, from 4 November 2019 onwards. He also agreed to pay a deposit of RM5,000.00 before entering the demised area for which he would be allowed to pass and repass the ROW. The Plaintiff's only responsibility was to have the jetty site and a Hitachi/crane ready.
[6] Sometime in February 2020, the Plaintiff received a notice of termination of the agreement, from the 2nd Defendant. The termination was to take effect from 15 February 2020.
[7] The Plaintiff says the termination was wrongful and a breach of contract, and it disentitled the 2nd Defendant from using the ROW. The Plaintiff further says it discovered the Defendants had themselves entered into a similar agreement thereafter.
[8] In the upshot, the Plaintiff sued both Defendants for trespass and nuisance in relation to the ROW. He further sued the 1st Defendant for inducing the 2nd Defendant's breach of the agreement, while suing the 2nd Defendant for breach of contract.
Whether The ROW Of 21 May 1996 Can Sustain The Action In Trespass
[9] To begin with, under s 30(1)(d) Land Ordinance (Cap 68), the right is reserved to the Government "to resume without payment from any land held under a Provisional Lease or entry in a Field Register a section not exceeding twenty metres in width for the purpose of making a public road, railway, tramway, right of way, canal, irrigation channel, aqueduct, watercourse, drain or sewer through the said land in any direction provided always that reasonable compensation shall be paid to any person for any actual damage caused to his property by exercise of such right [Emphasis Added]."
[10] By s 31(1)(d), every title shall be subject, unless there is an express term to the contrary, to an implied condition that "any owner of alienated land may apply to the Collector of the district in which his land is situate for a right of way from his land over any other alienated land to the nearest public road or a river or foreshore, or for permission to construct a pipeline, drain or irrigation channel across such land, and the Collector shall deal with the application in the manner prescribed."
[11] Read together, s 30(1)(d) confers on the Government the right of resumption while s 31(1)(d) stipulates who may apply for a right of way, viz, the owner of a parcel of alienated land. The application for a ROW, as submitted by learned counsel for the Plaintiff, is made and granted pursuant to s 31(1)(d), not under s 30(1)(d) as stated by the ACLR vide CBOD Part B, p 9. See Freddolin Ujoe v. Bigraise Inanam Sdn Bhd, [2014] 9 CLJ 198 and Ina Yapp Pui Vun v. Borneo Samudera Sdn Bhd & Ors.
[12] While a land applicant such as the 1st Defendant (who is not the owner of an alienated parcel of land) has no right to apply for a ROW, a ROW is not a private road for the sole use of the successful applicant.
[13] Section 30 (
