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2025 MarsdenLR 359
COURT OF APPEAL PUTRAJAYA
MOHD AZMAN YAACOB – Appellant
Versus
TENAGA NASIONAL BERHAD – Respondent
[Civil Appeal No: D-02(NCVC)(W)-673-04/2023]
Compliance with statutory procedures for obtaining a wayleave is essential; a wayleave survives despite subsequent changes in land ownership.
Headnote:(A) Electricity Act 1949 - Sections 53 and 56 - Appeal for trespass against landowner by utility company for existing structures - Appellant contended absence of lawful wayleave; Respondent demonstrated compliance with statutory procedures for wayleave obtained prior to Appellant's ownership. (Paras 2-5, 25-50)
(B) Wayleave - Definition and statutory requirements - Court upheld that wayleave obtained through proper procedures survives subsequent ownership changes of land. (Paras 25, 50)
(C) Compliance with statutory procedures - Court found sufficient evidence of service of statutory notices and absence of objections from previous owners, validating Respondent's claim. (Paras 40-46)
(D) Appellant's knowledge of existing structures - Court noted Appellant's awareness of structures prior to purchase, undermining trespass claim. (Paras 18-19, 50) (E)
Result: Appeal dismissed with costs of RM15,000.00 to be paid by Appellant to Respondent.
JUDGMENT
A. Introduction
[1] The Appeal before us is a claim for trespass by a subsequent landowner against the Respondent, Tenaga Nasional Berhad ("TNB") for existing electrical transmission towers and transmission lines which were erected across the subject land prior to the Appellant's subsequent purchase and ownership of a subdivided portion subject land.
[2] Essentially, the Appellant ("Mohd Azman bin Yaacob") contended that TNB had not lawfully obtained an 'izin lalu' or 'wayleave' under s 53 of the Electricity Act 1949 (now s 11 of the Electricity Supply Act 1990) and s 56 of the Electricity Act 1949 (now s 15 of the Electricity Supply Act 1990).
[3] On the other hand, TNB contended that there was no trespass or continuing trespass as they had appropriately obtained a wayleave from the previous registered proprietor of the subject land via the proper compliance of statutory procedures prescribed under s 53 of the Electricity Act 1949 ("1949 Act") circa 1979 approximately thirty-eight (38) YEARS BEFORE the Appellant's registered proprietorship over a subdivided portion of the subject land.
[4] The High Court had dismissed the Appellant's claim and thus, the Appellant filed the present Appeal before us. In any case, before we delve into the substance of our deliberations, it is necessary to state the underlying facts of the case.
B. Brief Facts
[5] Circa 1978, [TNB - at that time Lembaga Letrik Negara ("LLN") "the Respondent"] had commenced a project (known as Aliran Elektrik 33kV dari Machang ke Pasir Puteh, Kelantan) for the primary objective of providing basic electricity supply to the public especially in the rural areas of Kelantan. To achieve this public objective, TNB / LLN ("the Respondent / LLN / TNB") would have to necessarily erect electricity transmission towers and power lines across plots of land in Kelantan.
B(i) The Respondent's Obtainment Of Wayleave Well Before The Appellant's Registered Proprietorship Of A Subdivided Portion Of The Subject Land
[6] It had long been the Respondent's standard practice that the requirement for reserve area for 33kV transmission lines, must necessarily be an area of 132 feet (or 2 chain rentice) (as per TNB's guideline in Medium Voltage bre Overhead Line Handbook: Chapter 8 - General Installation).
[7] To comply with the guideline (and to legally obtain the necessary reserve area from private landowners), the Respondent had opted to obtain the requisite statutory wayleave via one of the two procedures prescribed under the Electricity Act 1949 being the the procedure of wayleave via notification under s 53 of the Electricity Act 1949 (as opposed to the other procedure by way of wayleave agreement under s 56 of the Electricity Act 1949 ).
[8] Section 53 (1) of the Electricity Act 1949 clothes LLN (now TNB) with the conditional authority to enter and erect structures or apparatuses upon any private land which are necessary for the purposes of supplying electricity:
" Section 53 . Power to enter land for purposes of construction
(1) Subject as hereinafter provided, whenever it is necessary so to do for the purpose of installing any system of distribution of energy under this Act, the Board or a licensee may lay, place or carry on, under or over any land, other than State land, such supply lines and may erect in or upon any land, other than State land, such posts and other apparatus as mav be necessary or proper for the purposes of the Board installation or licensed installation, as the case may be, and may take such other action as may be necessary to render the installation safe and efficient, paying full compensation in accordance with s 58 to all persons interested for any disturbance, damage or disability that may be caused thereby;..."
[Emphasis Added]
[9] This authority is conditional upon full compliance of all the requisites and procedures as laid down in the subsections of the same provision of the 1949 Act:
"(2) Before entering on any land for the purpose specified
