An application for interlocutory injunction must be made promptly; delayed applications may be dismissed unless urgency and merits are properly shown.

Kamaludin Md Said JCA:

Introduction

[1] This is the Appeal against the order granted by the learned Judicial Commissioner of the Ipoh High Court on 28 April 2021 where the respondents'/plaintiffs' application (encl 92) for interlocutory injunctions dated 9 October 2020 against the appellants/1st and 2nd defendants (the defendants) was allowed.

[2] For the purpose of this appeal, the parties will be referred to as they were in the High Court.

[3] The plaintiffs' cause of action against the defendants is solely in respect of trespass. The plaintiffs alleged that the land used for the construction of the mini-hydroelectric project was the customary lands of the plaintiffs, thereby claiming trespass against the defendants for entering the land.

[4] The application for an interlocutory injunctive order, is essentially as follows:

4.1 An interlocutory injunction that the 1st and 2nd defendant (the defendants), their servants and/or agents be barred from entering and/or trespassing the customary lands that are claimed by the plaintiffs in this action.

4.2 An order that the 1st and 2nd defendant (the defendants), their servants and/or agents be prevented and/or stopped from continuing and/or commencing any works on the customary lands that are claimed by the plaintiffs in this action.

[5] The defendants objected to the said application and contended that the lands used for the purpose of constructing the said project was lawfully approved by the state authorities to the defendants. The project was for public purpose, aiming at generating electricity to the public at large in that area. The selection of the river in Sungai Ulu Geruntum for the development of the project is based on the feasibility study made by the consultant to ensure that the project is viable and generate enough electricity for the public.

[6] The defendants have been awarded with a concession for 25 years by Sustainable Energy Development Authority Malaysia (SEDA) to undertake, operate and maintain the mini-hydroelectric project in that area. The approval from the state and local authorities to use the lands had been obtained earlier before the commencement of this action in 2018 by the plaintiffs.

[7] The defendants have started the preliminary works since 2011 and the construction work had commenced in 2016. Having notice of these events, no prompt action whatsoever has been initiated by the plaintiffs to prevent the project from being continued. Only in October 2020 did the plaintiffs make an application for an interlocutory injunction in Court, that is four years after the commencement of the construction work in that area. The inordinate delay and omission on the part of the plaintiffs would cause great injustice and jeopardize the defendants' hydroelectric project.

[8] The learned Judicial Commissioner had granted the interlocutory injunction to the plaintiffs and in this appeal the defendants contended that the learned Judicial Commissioner has misdirected himself in law and in facts in his decision to grant the injunctive relief to the plaintiffs.

[9] We have considered the grounds raised by the defendants and having heard the oral submissions and read the written submissions, we find the plaintiffs' application for interlocutory injunction was not made promptly. There is inordinate delay on the part of the plaintiffs in filing the application for interlocutory injunction and the delay was not explained. In other words, there was no urgency and the plaintiffs had slept on their rights. Added to that, we find that damages is an adequate remedy for the plaintiffs in the event that they succeed in the full trial of the action against the defendants.

[10] We find that there is merit in the appeal. It is our unanimous decision that the appeal is allowed with no order as to costs. The Order of the learned Judicial Commissioner to grant the interlocutory injunction to the plaintiffs is set aside without any order as to Costs.

Brief Facts Of The Case

[11] The plaintiffs a