JUDGMENT

This is my JUDGMENT in respect of the plaintiffs' claim in trespass and the defendants' counterclaim.

Brief Facts

1. The Plaintiffs in this instant action had sought for various injunctive relief and also damages against the defendants on issues of trespass, nuisance, dumping of construction debris and encroachment onto the plaintiffs' land including a declaration that the defendants are not entitled to build or position its embankment or road with supporting slopes encroaching, entering into and occupying over the plaintiffs' said land or any part thereof as shown in the defendants' site layout plans.

The plaintiffs in this action say that the defendants, a developer has encroached into the plaintiffs' land. The defendants say there was no encroachment as the previous owners of the plaintiffs' land had already given consent to the defendants for the alleged encroachment and the alleged encroachment benefits both parties and also adjoining land owners.

Preliminaries

2. Plaintiffs' main witness, PW2 gave evidence and in essence his complaint was that the previous landowners have not informed him of the consent. However, the previous landowners gave evidence and said that they have given consent to the defendants in respect of encroachment. It is pertinent to note here that the plaintiffs have not brought any action against the previous owners for misrepresentation etc. Further, the plaintiffs did not comply with various direction of the court and also did not file the submission within the prescribed time. Further, the plaintiffs had earlier applied for mandatory injunctive relief. The application as well as the appeal to the court of appeal was dismissed. The granting of injunctive relief as prayed in this action will actually interfere with third parties right, which I do not wish to elaborate.

3. I have heard the evidence, read the documents and the submission of the parties in detail. I take the view that the plaintiffs' action as well as the defendants' counterclaim must be dismissed. My reasons are as follows:

(i) What ever the defendants have done, has the appropriate approval from the relevant authority and the defendants have obtained prior consent from the previous owners of the plaintiffs' land. Further, the purported encroachment in law and fact amounts to an improvement in the land and has placed added value to the land, as well as the adjoining land owners. It must also be seen as a necessity at the time the previous landowners gave the consent. Support for the proposition is reflected in the evidence of defendant DW3 who said as follows:

"It is common practice when you have road reserve along the common boundary the relevant owners will also have to contribute land - usually half. This is to access to both lands. We propose otherwise their land will not be able to be access from the mainland. Normally, in that type of proposal BDA will not approve as there is access for the adjourning land. We cannot make that type of proposal."

(ii) I also find merits in the defendants' submission which reads as follows:

a. The plaintiff have led no evidence at all to show that the Defendant's Approved Plan (exhibit PI) and or the Engineering Plan (exhibit P2-) were illegal or unlawful;

b. The plaintiff action if granted by this Honourable court would be vexatious, oppressive or will cause inequitable hardship - In the first place, the defendant had complied with the requirements of the planning authorities, namely the BDA and carried out their constructions works in accordance with the Approved Plans and Engineering Plans;

c. The plaintiff have failed to prove and did not lead evidence to show in what ways and means did the defendant directly caused the alleged damages for nuisance, trespass, dumping and discharge of water;

d. The plaintiff did not lead any evidence to show that the defendant did not or were not in compliance of any of the rules or regulations of the relevant planning laws, ie, Sarawak Land Code (Cap.81), Building O