The court found that the construction of a road by the Defendant on the Plaintiff's Lands constituted trespass as consent was neither validly given nor acquired.

Introduction

The Parties

[1] The Plaintiff is the Administrator of the estate of his late father, Yunof @ Edward Meringking ("the Deceased") who was the registered owner of the lands held on Native Title No(s) 043175515 and 043175524, both situated at Kampung Pais, in the District of Tuaran, Sabah ("the Plaintiff's Lands").

[2] The Defendant is the registered owner of the land held under Country Lease No 045332625 registered in 2001 pursuant to LA 90041033 situated adjacent to the Lands ("the Defendant's Land").

[3] The Defendant operates a hotel resort and golf course known as "Shangri-La's Rasa Ria Resort & Spa" ("the Hotel") at the Defendant's Land.

The Plaintiff's Claim

[4] The dispute in this case pertains to a concrete road ("the said road"), which the Plaintiff alleged the Defendant to have constructed without the consent of the Deceased and which encroached into the Plaintiff's Lands.

[5] The Plaintiff claimed for the following reliefs in this action:-

(a) A declaration that the construction and/ or existence of the said road on the Plaintiff's Lands constitutes a trespass and continuing thereon and are ultra viresart 13 of the Federal Constitution;

(b) A declaration that the Defendant acted in breach of its duty of care and/ or committed negligence by excavating the Plaintiff's Lands without the consent of the Plaintiff and thereafter by leaving several big boulders on parts of the Plaintiff's Lands to render the area thereof unsuitable for any crops cultivation;

(c) A declaration that the Defendant's incorporation or inclusion of the severed portion on the top part of the Plaintiff's Lands and into the Defendant's area of Layout Plan/ Development Plan prepared in 2007 as illegal;

(d) An order that damages for the portion of the Plaintiff's Lands actually affected and/ or severed by the construction of the said road in the Master Layout Plan/ Development Plan 2007 be assessed and/ or valued based on the current market price of the Plaintiff's Lands;

(e) Special damages in the sum of RM8,340.00;

(f) General damages for trespass and/ or negligence to be assessed;

(g) Exemplary and/ or aggravated damages for the Defendant's brazen and wanton act and/ or for totally disregarding the Plaintiff's constitutional proprietary rights on the Plaintiff's Lands to be assessed;

(h) Interest on all sum awarded to the Plaintiff at the rate of 5% per annum;

(i) A permanent injunction to restrain the Defendant from trespassing and/ or making use of any portion of the Plaintiff's Lands howsoever and for whatsoever purpose whether by itself or its servants and/ or employee or agents;

(j) Further and/ or in the alternative, an Order that the Defendant forthwith purchase that portion of the Plaintiff's Lands affected by the construction of the said road and thereafter to take all necessary steps to survey the boundary of the Plaintiff's Lands so as to exclude that portion affected by and purchased for the construction of the said road; and