Lee Hun Hoe CJ (Borneo):

This is an appeal against the decision of the late Arulanandom J given on 1 October 1980 on liability and the decision of Edgar Joseph Jr. J, given on 31 October 1985 on quantum. The Senior Assistant Registrar assessed damages at RM400,000 as appeared from his certificate dated 21 April 1984. The defendants, consenting to a final order on the application of the plaintiffs incorporating the Senior Assistant Registrar's assessment, Edgar Joseph Jr. J, on 10 July 1986 adjudged that the defendants do pay the plaintiffs RM400,000 and costs of the inquiry to be taxed.

The plaintiffs are in the business of sand mining and sand contractors. They sued defendants jointly for damages for conspiracy to create a nuisance, that is, to injure them and individually for obstruction. They entered into agreements with various landowners to mine, work, win and take away sand from their holdings. Entry to their holdings was by way of an access road known as Lot 1277 which for many years had been reserved for road and set aside as such and used by public as such. Although Lot 1277 was surrendered to the Government the Government had not taken it over. They claimed that the defendants wrongfully and maliciously conspired and combined amongst themselves, with intent to injure their business, by obstructing the access road and prevented their lorries and other vehicles transporting sand from going in and coming out from their holdings.

The defendants denied the claim. It appears that Tan Soon Keat, deceased, who was the 3rd defendant at the trial and Chew Eng Eam acquired Lot 1239 which had a frontage on Relau Road, Penang to the south of it. Lot 1239 was the result of the amalgamation of Lots 69 and 79 Pt.I of Mukim 13. In 1957 they applied for subdivision of this lot. It was subdivided into 16 smaller lots, namely, Lot Nos. 1255 to 1270 (15 lots) and Lot 1277 (1 lot).

The subdivision was such that except for subdivided Lots 1263 and 1270 they had no road access to Relau Road and it was therefore necessary to provide for such access by the reservation of a strip of land which will provide a frontage for these subdivided lots. The strip of land or path became Lot 1277. The 3rd defendant retained Lot 1277 and the remaining lots were sold. The 1st defendant bought Lot 1255 and the 2nd defendant Lot 1264.

The 3rd defendant averred that he exercised his right of entry to Lot 1277 which he granted to the occupiers of the subdivided lots only with his consent. He further averred that he had no intention of allowing the general public access to the said lot. But the evidence would seem to suggest otherwise. He said after the plaintiffs were denied entry on 4 September 1975 they sought his consent and approval to allow them entry but he refused. As a result, they applied to the Registrar of Lands, Penang and eventually successfully obtained a Collector's right of way on 3 March 1976. Since then he had not interfered with their use of the said lot.

It was suggested that the plaintiffs could have access though Lot 353 though it might incur heavy expenses of constructing a road for vehicular traffic. Thus there is no jurisdiction for regarding Lot 1277 as a way of necessity. The defendants maintained that the access was meant for the subdivided lots and that there never was dedication as a public road.

Before the late Arulanandom J the parties agreed that there were two issues: (i) was Lot 1277 a public highway prior to 1957? (ii) was Lot 1277 a public highway after 1957? On the evidence the learned Judge gave judgment for the plaintiffs. Unfortunately, he died on 22 February 1982 before he could give a written judgment. It is clear that he answered the two issues in the affirmative. However, before us Encik Manecksha for defendants disagreed that there were two issues. He said the question was whether there was a cause of action at the time of the issuance of the writ on 13 August 1975. Further, whether the subdivision in 1957