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2013 MarsdenLR 1951
HIGH COURT SABAH & SARAWAK SANDAKAN
PETRONAS DAGANGAN BERHAD – Appellant
Versus
KARAMUNTING DEVELOPMENT SDN BHD – Respondent
[Suit No: S-22-31-2009]
The court established that defamation requires objective determination of meaning, while unauthorised use of land results in trespass, necessitating damages to the rightful owner.
Headnote:(A) Land Ordinance - Sections 59 and 171A - Defamation and Trespass - Plaintiff sought a declaration for access to a road reserve, subsequently withdrawn post a granted right of way. Defendant counterclaimed for defamation and trespass. Court found no defamation as the language did not carry defamatory meaning (Paras 4, 5, 6). The Defendant proved trespass due to lack of permission for construction on road reserve, resulting in award for general and exemplary damages against the Plaintiff (Paras 54, 59).
(B) Legal Principles - The test for defamation is objective; words must lower a party in the estimation of right-thinking members of society (Para 4). The burden of proof for trespass lies on the Defendant to show ownership and lack of permission granted to the Plaintiff (Paras 23, 24).
(C) Issues - The main issues were whether the Plaintiff had a right to access the road reserve and whether the Defendant’s claims of defamation held merit.
(D) Findings of Court - The Defendant established the lack of Plaintiff’s permission for use of the road reserve and demonstrated the corresponding damages. The Court dismissed the defamation counterclaim (Para 7). (E) Ratio Decidendi - The Court ruled that without a legal right, the Plaintiff cannot claim access and recognized that the Defendant's rights were disregarded (Paras 56, 59). (F)
Result: The Defendant's claim for trespass was allowed with damages to be assessed and costs awarded in favor of the Defendant (Para 61).
| Table of Content |
|---|
| 1. plaintiff withdrew defamation claim. (Para 1) |
| 2. defamation claim requires objective test. (Para 3 , 4 , 5 , 6 , 7) |
| 3. defendant argues about trespass. (Para 10 , 11 , 12) |
| 4. right of access and permissions is central. (Para 14 , 15 , 16 , 17 , 18) |
| 5. proof of permission burden on parties. (Para 19 , 20 , 21) |
| 6. third party cannot encroach on reserved land. (Para 24) |
| 7. local authority must not infringe owners' rights. (Para 26) |
| 8. defendant must prove registered ownership. (Para 28) |
[1] The Plaintiff filed an against the Defendant, among others, for a declaration that it is entitled to the use and enjoyment of the access road which it had constructed over the Road Reserve held by the Defendant under TL. 077540491. However, the Plaintiff withdrew its legal action against the Defendant after the Plaintiff was granted a right of way only by the Director of Land and Surveys Department in Siasatan Tanah Pengarah (Rayuan) No. 20 Tahun 2011 on 18 January 2013. Thus, the trial before me was on the Defendant's Counterclaim only.
[2] I now address according to the parties' agreed issues to be tried. I will first deal with the issue on defamation. For the sake of completeness, the said letter is produced:-
[3] In respect of the Defendant's counterclaim on the purported defamation rests on the said letter. It was pleaded by the Defendant in its counterclaim that questions (1) to (4) above in their natural and ordinary meaning and/or in the context they were published concerning the Defendant or by innuendo the said words meant and were understood to mean (see para 20 p 21 BP):-
"20.1. That the said Road Reserve was unlawfully alienated to the Defendant and that the Defendant has no legal right whatsoever thereon;
20.2. That the Defendant has no legal right on the title deed of the Road Reserve and intended to cheat the Plaintiff by offering to sell to it a portion thereon;
20.3. That the Defendant is not the lawful owner of the said Road Reserved and unlawfully keeps the title deed thereto;
20.4. That the Defendant has unlawfully obstructed or stopped the Plaintiff from exercising legal right over the said Road Reserve which is a public property and not the Defendant's private property.
20.5. That by claiming ownership of the said Road Reserve which is a public road the Defendant is guilty of an offence and/or in breach of section 171A of the Land Ordinance ;
20.6. That the Defendant practices fraud and deception in its business management by keeping the said Road Reserve which does not belong to it and ought to have surrendered to the Government."
[4] It is trite law that the test in determining whether a statement is defamatory is an objective one. The law on defamation is well settled. In determining whether a statement is defamatory, I need only refer to the test laid down by Gopal Sri Ram JCA (as he then was) in the case of Chok Foo Choo v. The China Press Bhd , , which is: do the words published in their natural and ordinary meaning impute to the plaintiff, or in the present case, the Defendant any dishonourable or discreditable conduct or motives or a lack of integrity on his part? In other words, do the words complained of tend to lower the Defendant in the estimation of right-thinking men?
[5] After a careful consideration of the said letter, I find that the words in its ordinary and natural meaning would not be understood in a libellous sense by right-thinking members of the society. These words are not capable of bearing any defamatory meaning on the part of the Plaintiff. I say this because an ordinary reasonable person would understand the said letter as a letter merely seeking the opinion of the Director of Lands and Surveys Department in relation to the status of the road reserve on the land bearing the registration no. TL.077540491.
[6] Further thereto, since the impugned words were in the form of questions as oppose to statements of fact, I have also considered whether the said words by insinuation or by innuendo were d
