JUDGMENT

Hashim Yusoff JCA:

[1] The plaintiff's (appellant) claim against the defendant (respondent) is for trespass. In the High court, the learned trial judge after a full trial, dismissed the appellant's claim with costs. Hence, this appeal before us. After hearing arguments from both parties, we unanimously dismissed this appeal with costs. We now give our reasons for doing so.

Facts

[2] The full facts of this case can be found in the grounds of judgment of the learned trial judge (see appeal record Bahagian A pp. 21-35). We do not intend to reproduce them here.

[3] At the outset of hearing this appeal, learned counsel for the appellant applied to adduce a new piece of evidence ie, a letter dated 1 November 1974. However he also said that the letter was available earlier but did not know why it was not produced at the court below. As such we found no merits in the said application (kandungan 10A) and accordingly dismissed it.

[4] Learned counsel for the appellant proceeded to raise three main issues which were agreed upon by learned counsel for the respondent in this appeal ie,:

(i) Whether s. 53(1)-(9) of the Electricity Act 1949 ("the Act") was followed by the respondent;

(ii) Whether the respondent followed s. 53(9A) to protect their interest, if any;

(iii) (a) Whether the transfer of the land from Mosbert Berhad to Jet Age and subsequently from Jet Age to Oakfield would have extinguish the respondent's rights over the said land;

(b) Whether the surrender and realienation into sub-divided lots of the original land would have destroyed any interest the respondent had in the original land.

Re Issues (i) And (ii)

[5] We will deal with these two issues together as they both relate to s. 53 of the Act .

[6] Learned counsel referred to paras 2-6 of the Memorandum of Appeal and submitted that the learned trial judge had erred in finding that there was an enquiry held under s. 53 of the Act when there was no evidence to support that finding.

[7] Learned counsel for the respondent referred to a letter dated 20 April 1974 whereby the Land Administrator had given notice to the respondent to hear any objections from the land owners to be held at the Johor Bahru Land Office on 30 April 1974 at 9.30am (see AR Bahagian C p. 387).

[8] On this issue, we find that the learned trial judge in his grounds of judgment (at p. 47 of the appeal records ("AR") Bahagian A) referred to the evidence of the Assistant Land Administrator (SD2) who said that according to his records, LLN had served a notice on Mosbert Berhad on 3 January 1973 and that the Collector had received a letter dated 6 January 1973 from one Messrs Wong & Paramjothy acting on behalf of Mosbert Berhad objecting to the proposed entry by the LLN on the said land. His subsequent records also showed that Mosbert Berhad never appeared at the enquiry to put further their objection although they were informed of the date, ie, 30 April 1974.

[9] It is a finding of fact by the learned trial judge on this issue that although Mosbert Berhad had been informed about the date of the enquiry, it still did not appear at the enquiry. We are of the view that the learned trial judge did not err on this part.

[10] In his grounds of judgment the learned trial judge also referred to the provisions of s. 53 and its sub-sections (1)-(7) of the Act . As submitted by the learned counsel for the respondent, if Mosbert was unhappy with the order of the Collector, it could have appealed against the same, but it did not.

[11] We also agree with the submission of the learned counsel for the respondent that the letter dated 9 November 1974 from the Johor Bahru Land Office to the respondent, confirms that fact that the respondent had sent the notice to the land owner (Mosbert Berhad) for the purpose of doing the works to install the cable lines and since the Land Office did not receive any objection from the land owner, they therefore assume that the respondent could enter on the lands involved to carry out the works.

[12] The