Suffian FJ:

Mr. Tok Jwee Kee, the plaintiff, owns a piece of land, Lot 6232, in the Johore Bahru town, an area within the jurisdiction of the Johore Bahru Town Council, the second defendant. It is a small piece of land, only 8,365.4 square feet in area. On it stands a bungalow, 56H Jalan Ibrahim Sultan, occupied by the plaintiff and his family.

Tay Ah Hock & Sons Ltd the first defendant, (hereinafter referred to as the neighbour) owns the land next door, Lot 6233. It too is a small lot, only 11,135 square feet in area. The neighbour wanted to build a block of three 4-storey buildings on its land. It submitted building plans to the Town Council which were approved on 31 January and 8 June 1965, and the buildings have since been completed. Each of the 4-storey buildings consists of a shophouse on the ground floor and three flats above it, so the block of buildings has three shophouses on the ground floor and nine flats above them.

The plaintiff asks the Court for -

(a) a declaration that the approval of the building plans by the Town Council was illegal and inoperative;

(b)in the alternative, a declaration that the approval by the Town Council of the building plans was null and void as being ultra vires and was approved contrary to the rules of natural justice;

(c)an order that the block be demolished;

(d)damages;

(e)costs; and

(f) such further or other relief as the Court may deem just.

It is to be noted that the plaintiff's complaint against his neighbour is quite distinct from his complaint against the Town Council.

His complaint against the Town Council as given in paras 4 and 6 of his statement of claim is as follows. He says that the two lands concerned are within the residential zone of Johore Bahru town and the approval of the buildings on his neighbour's land was contrary to the provisions of the Town Boards Enactment No. 118 and the Town Board By-laws 1937. In his statement of claim he particularises these provisions as ss. 115A, 136, 137, 138, 143, 96 and 97 of the Enactment and by-laws 35, 30 and 10(i)(g). He says that, in consequence of the Town Council wrongfully approving the plans, his property has been adversely affected and he has suffered damages. Before us his Counsel, Dato' Seenivasagam, abandoned reliance on ss. 115A, 143, 96 and 97.

The plaintiff's complaint against his neighbour is spelt out in para. 5 of his statement of claim. He says:

In or about the month of May 1965, the [neighbour] commenced building operations on the lot 6233 in accordance with the said building plans without proper safeguard or precautions for the protection of the plaintiff and members of his family and his adjoining property as required by by-law 46 of the Town Board By-laws, 1937 and in consequence of the breach of the by-law and/or the negligence of the [neighbour], his servants or agents, the plaintiff suffered risk of bodily injury to his children and damage to his property, the expanded

metal fence, roof, roof-gutters and window panes of his bungalow. In addition cement plasters broken bricks, granite stones and pieces of timber have fallen on to the plaintiffs land in the course of the erection of the three 4-storey buildings by the [neighbour], his servants or agents.

It is to be noted that the plaintiff charges the neighbour with breach of a statutory provision and/or with negligence and nowhere does he expressly use the word trespass.

Both his neighbour and the Town Council deny that the building plans were approved otherwise than in compliance with the provisions of the Town Boards Enactment and the Town Board By-laws. The neighbour also states that, if as alleged, the plaintiff's property has been adversely affected and the plaintiff has suffered damage, the neighbour is not liable.

Further both defendants plead that the plaintiff's statement of claim discloses no cause of action and should be struck out as being frivolous and vexatious.

The merits of the claim have not been fully ventil