A constructive trust can be implied by law based on conditions of fairness and justice, irrespective of the parties' intentions.

Introduction

[1] This is an appeal against the decision of the High Court that dismissed the claim of the appellants who were plaintiffs in a trespass action. The respondent's counterclaim that the Chinese temple that is on the land in question is a beneficiary of a constructive trust was allowed. Pursuant to this finding, the High Court made a consequential order for the appointment of a surveyor to draw a plan of the land to determine the portion of the land occupied by the temple.

The Parties

[2] The land, which is the subject matter of the dispute in this case is described on the title as EMR 618, Lot 1421 Mukim Pengkalan Bharu. It is situated in Pantai Remis, Manjung District, Perak. It measures about two acres. The appellants/plaintiffs are the current registered owners of the land. The first to fourth appellants are the children of the previous registered owner, one Chong Swee Sing who died in 1995. The fifth appellant is the widow of the late Chong Swee Sing. The land was purchased by the late Chong Kew Sang (CKS) who is the father Chong Swee Sing in 1944 from one Haji Rahimah binti Haji Ismail. The land was transferred to Chong Swee Sing by CKS on 6 May 1966. The late CKS is the central figure in the claim of the respondent that he donated the land for the purpose of constructing the temple in question.

[3] The respondent/defendant is the Chairman of Pertubuhan Penganut Penganut Ting Leong Keng Lee Hu Tong Chu. The society was registered in 1986. Prior to that, the temple was run by an informal committee. It manages and runs a Taoist temple that bears the name Ting Leong Keng Lee Hu Tong Chu Temple. The temple proper is situated on one end of the rectangular shaped land in question. It takes up about a quarter of the land. However, if a hall (which is actually an open shed) and an area used for fire walking ceremonies is taken into account, the total area occupied by the temple would be slightly more than 1.5 acres.

The Appellants' Suit

[4] The appellants became registered owners of the land in 1995. They pleaded that they did not consent to the occupation of their land for temple activities. They issued several notices to quit since becoming registered owners. The last notice to the temple management was issued in 2015. Since no action was taken to vacate the land, the appellants filed the instant writ on 17 November 2016 which is founded in trespass. The plaintiff prayed for the following reliefs:

(a) Vacant possession of the land;

(b) An injunction to prevent the respondent from trespassing on their land;

(c) A mandatory injunction for the demolition of all structures including the temple in question within 30 days;

(d) Damages.

Amended Defence And Counterclaim

[5] The respondent has pleaded that the temple is not a trespasser as it was constructed on the land in 1961 and has been used for worship since then. The land was donated by CKS who was the registered owner at the material time. The purpose of the donation was to raise funds to construct the said temple. The respondent's pleaded case is that the trespass action is without basis for the following reason. An express trust had been created by the late CKS or a constructive trust had arisen over a portion of the land in question. That portion comprises three areas, ie the land on which the temple proper sits, the land on which the hall sits and the land at the back of the hall that is used for activities. The respondent prayed in the counterclaim for a declaration a trust had been created or