Easements of necessity can be extinguished when alternative access becomes available, and waiver or delay can affect enforcement of such rights.

JUDGMENT

Alexander Siew How Wai JC:

[1] This was an appeal from a decision of the 1st Defendant the Registrar of Lands and Surveys Kuching Division, in respect of the extinguishment of an 'easement right of way'.

[2] By the instant Originating Summons, the Plaintiffs prayed for the following relief:

(1) an order that the 1st defendant do within 14 days of this Order, set forth and serve to the plaintiffs' advocates in writing the grounds of the 1st defendant's decision to register instrument No L.25744/2019 of 14 November 2019;

(2) a declaration that the 1st defendant's decision to find that the registered easement right of way appurtenant to Lot 255 over Lot 254 Section 18 Kuching Town Land District vide Memorandum of Endorsement of Conditions of Survey Plan approved under the Land (Control of Subdivision) Ordinance No L2396/66 of 23 June 1966 has been determined or extinguished is erroneous because it is in contravention with the final Court of Appeal Order dated 18 October 2016 in Civil Appeal No Q02(NCVC)(W)-137-01/2016 which is a res judicata between the plaintiffs and 3rd defendant;

(3) a declaration that the 1st defendant's decision to register instrument No L.25744/2019 of 14 November 2019 to extinguish the registered easement right of way appurtenant to Lot 255 over Lot 254 Section 18 Kuching Town Land District vide Memorandum of Endorsement of Conditions of Survey Plan approved under the Land (Control of Subdivision) Ordinance No L2396/66 of 23 June 1966 is wrongful and ought to be set aside;

(4) an order that the 1st defendant do forthwith set aside the registration of instrument No L.25744/2019 of 14 November 2019 in the Land Register, do forthwith restore the registration of instrument L2396/66 of 23 June 1966 in the Land Register and do forthwith restore the endorsements of instrument L2396/66 of 23 June 1966 on the respective titles for Lot 254, Section 18, Kuching Town Land District and Lot 255, Section 18, Kuching Town Land District and upon any relevant instrument relating thereto;

(5) further or in the alternative, an order that the 1st defendant do forthwith register upon the Land Register, upon the respective documents of titles of both Lot 254, Section 18, Kuching Town Land District and Lot 255, Section 18, Kuching Town Land District and upon any relevant instrument relating thereto "an access road of an uniform width of 16 feet on Lot 254 Section 18 Kuching Town Land District as a registered easement right of way appurtenant to Lot 255 over Lot 254 Section 18 Kuching Town Land District vide Memorandum of Endorsement of Conditions of Survey Plan approved under the Land (Control of Subdivision) Ordinance No L2396/66 of 23 June 1966 as finally upheld by the Court of Appeal vide Court of Appeal Order dated 18 October 2016 in Civil Appeal No Q-02(NCVC)(W)- 137-01/2016";

(6) an order that the 3rd defendant shall be restrained and an injunction shall be granted to restrain the 3rd defendant whether by herself or her agents or her servants or nominees or otherwise from preventing the plaintiffs whether by themselves or their agents or their servants or nominees or otherwise unrestricted usage and/or access to the access road of an uniform width of 16 feet on Lot 254 Section 18 Kuching Town Land District, an easement right of way appurtenant to Lot 255 over Lot 254 Section 18 Kuching Town Land District as finally upheld by the Court of Appeal in Order dated 18 October 2016 in Civil Appeal No Q-02(NCVC)(W)-137- 01/2016;

(7) an order that the 3rd defendant shall be restrained and an injunction shall be granted to restrain the 3rd defendant whether by herself or her agents or her servants or nominees or otherwise from building or causing to be built any buildings or other erections upon the access road of an uniform width of 16 feet on Lot 254 Section 18 Kuching Town Land District, an easement right of way appurtenant to Lot 255 over Lot 254 Section 18 Kuching Town Land District as finally upheld by the Court of Appeal in Ord