The plaintiffs failed to prove possessory rights over the disputed land, leading to the dismissal of their claims for trespass, nuisance, and negligence.

JUDGMENT

Su Tiang Joo JC:

Introduction

[1] After a full trial conducted over five days, the plaintiffs' claim grounded on trespass, nuisance, and negligence was dismissed on inter alia the ground that none of them proved that they had legal or possessory rights over the lands alleged to have been encroached and damaged Aggrieved, the plaintiffs appealed and these are the grounds of judgment.

Summary Of Background Facts

[2] The first and second plaintiffs are individuals with a common address for service at No 51-2 Jalan Radin Anum 1, Bandar Baru Seri Petaling, 57000 Kuala Lumpur. They pleaded that they are the joint owners of the propetty known as Lot 3709, Mukim Gali, Daerah Raub, Pahang Darul Makmur ("Lot 3709"). Their assertion of them being joint owners of Lot 3709 was not admitted by the both the defendants.

[3] The third plaintiff is a private limited company incorporated in Malaysia with its registered office at Suite D23, Tkt 2, Plaza Pekeliling, Jalan Tun Razak 50400 Kuala Lumpur, Wilayah Persekutuan. It pleaded that it is the owner of Lot 3710, Mukim Gali, Daerah Raub, Pahang Darul Makmur ("Lot 3710"). Its assertion that it is the owner of Lot 3710 was not admitted by both the defendants.

[4] Lots 3709 and 3710 will hereinafter be jointly referred to as "Lots 3709 and 3710" or "the two Lots".

[5] The following evidence can be found in the Statement of Agreed Facts (D) between the parties that:

i) the first defendant is a private limited company incorporated in Malaysia with its business address at E-06-03, East Wing, Business Park, Subang Square, Jalan SS15/4G, Subang Jaya, 47500 Selangor Darul Ehsan;

ii) the first defendant is the proprietor of Lots 4244 and 4255 of Mukim Gali, Daerah Raub, Pahang Darul Makmur;

iii) the second defendant is the consultant appointed by the first defendant and is a company incorporated in Malaysia with its registered address at 7B, 7th Floor, Pearl Court , 61 Jalan Thamby Abdullah, 50470 Kuala Lumpur; and

iv) the second defendant was the consultant who planned the earthworks, the steel structure and reinforced concrete works to construct a biomass renewable energy plant on Lots 42444 and 42445 of Mukim Gali, Daerah Raub, Pahang Darul Makmur.

[6] The plaintiffs' pleaded claim against the defendants is for trespass, negligence, nuisance and "strict liability" (sic) for works carried out in or around July 2017 by the first defendant, its workers, agents or representatives including the second defendant on land adjoining Lots 3709 and 3910 (sic) (see A p 9 paragraph 8).

[7] The plaintiffs asserted that the works were intentionally or negligently carried out resulting in:

i) a portion of Lots 3709 and 3710 measuring 894 square metres having been cleared;

ii) land or rather earth of about 13,410 sq. metres were cut and carried out by the defendants, its workers, agents and representatives;

iii) a drain having been built by the defendants on the two lots;

iv) eight of the plaintiffs' oil palm trees having been cut down and removed;

v) 26 of the plaintiffs' rubber trees which were each of 7 years and each with a girth of 24 inches having been cut down and removed; and

vi) a 60 feet steep and dangerous slope, without any retaining wall or a suitable protective remedy in place.

[8] The plaintiffs claimed for:

i) RM3,025,484.00 being the costs to construct a retaining wall or to provide for a suitable remedy;

ii) RM6,598.50 for carrying out a survey of Lots 3709 and 3710;

iii) RM10,600.00 being the loss of eight oil palm tree being the loss of RM530.00 per tree per year for 20 years;

iv) RM862,200.00 being the loss of 26 rubber trees at a loss of RM1,507.50 per tree per year for 22 years;

v) RM469,300.00 for land reclamation;

vi) in the event, the defendants refuse to compensate for i) and v) above (although the plaintiffs had inaccurately pleaded for something else (A p 11 paragraph 12 f)) that their loss of 12 units of Super-link houses at RM350,000.00 per unit amounting to be payable to the plaintiffs for them not bein