A plaintiff must prove intent and voluntary action for claims of trespass; mere allegations without evidence are insufficient to establish liability.

JUDGMENT

(Enclosure 1)

Hayatul Akmal Abdul Aziz J:

Introduction

[1] The parties are registered owners of three (3) plots of land adjacent to and side by side:

(a) The plaintiff is suing (encl 2) the defendants for trespass and/or encroachment of its land, claiming mesne profits and RM2,818,002.73 in damages. A declaration is also sought to get the Second Defendant (D2) to remove the retaining wall alleged to have infringed on the plaintiff's land.

(b) D2 in its counterclaim (enclosure 6), alleged that the plaintiff's land, which is topographically higher than D2's, caused flooding to D2's land when the plaintiff failed to maintain the retaining wall on its land. A sum of RM62,145.00 for repair had been spent, and D2 sought general damages against the plaintiff.

(c) On 19 October 2022, after considering the facts, all evidence adduced at the trial and the parties' respective arguments, I dismissed this suit with costs of RM20,000.00 for each defendant against the plaintiff. Similarly, I dismissed the counterclaim by D2 against the plaintiff with costs of RM6,000.00. All costs are subject to the allocator fees.

(d) Aggrieved, the plaintiff (encl 78) and D2 (encl 79) filed their respective appeal against my decision, and these are my reasons:

Brief Facts

[2] The agreed facts (enclosure 13), is summarised as follows:

(a) The plaintiff is the registered owner of a property held under PT 38648, HSD 14979, Daerah Gombak, Mukim Batu, Negeri Selangor Darul Ehsan (plaintiff's property). The First Defendant (D1), a company, is the registered owner of a property situated next to the plaintiff's property known as Lot 4604, PN 42371, Daerah Gombak, Bandar Kepong, Negeri Selangor Darul Ehsan. D2, a company, is the registered owner of a property situated next to the plaintiff's property known as PT 8438, HSM 6663, Daerah Gombak, Mukim Batu, Negeri Selangor Darul Ehsan.

(b) Both D1 and D2 were served with the plaintiff's demand to remove the alleged encroachment on its land, to which both denied the allegation.

(c) The plaintiff was served a letter by D2 (28 May 2019) notifying of the alleged landslide on the plaintiff's property, causing the retaining wall's collapse and flooding D2's land. The plaintiff was alleged liable for the expenses to repair the retaining wall and for clearing works undertaken by D2, which the plaintiff denies.

(d) During the trial, the following witnesses gave evidence in Court:

For the plaintiff:

i. Lim Weison (PW1)

ii. Sr Tuan Haji Aziz bin Abdullah (PW2)

iii. Chin Shiow Wei (PW3)

For D1:

iv. Lee Aik Cheong (DW1)

For D2:

v. Chin Poh Fah (DW2)

vi. Wong Keng Sam (DW3)

The Law

[3] Trespass in a nutshell:

(a) Trespass to land had been defined by the Federal Court as the unlawful direct and immediate interference with the possession of the land which is in possession of another person, or which another person is entitled to possession of it: Tenaga Nasional Bhd v. Bukit Lenang Development Sdn Bhd , [2019] 1 MLJ 1, FC.

(b) The tort may be committed only against a person who has possession of the land on which the acts complained of are committed: Lim Yoke Foo v. Pun Tat Meng, [1974] 2 MLJ 99.

(c) The tort of trespass to land is actionable per se without any proof of damage: Hashim bin Din v. Sato Kogyo Co Ltd, [1988] 1 MLJ 527; [1987] CLJ 628.

(d) A plaintiff in trespass is entitled, even though he has sustained no actual loss, to recover damages (nominal): Segar Restu (M) Sdn Bhd v. Wong Kai Chuan & Anor, [1994] 3 MLJ 530. Liability is therefore strict: Terra Damansara Sdn Bhd v. Nandex Development Sdn Bhd Tan Wee Choon v. Ong Peck Seng & Anor; [1986] 1 MLJ 322; [1985] CLJ (Rep) 798; and

(e) Article 13(1) Federal Constitution provides that a person may not be deprived of his right over his property except as provided under the law.

(f) A person in lawful exclusive possession over the land (denoting physical control or occupation of the land) may institute an action at the time of the trespass. It need not be the landowner as the registered owner