ROBERTS, CJ.

THE PLEADINGS

The statement of claim was dated 18/10/94; the defence 23/1/95; an amended defence 24/4/94; the reply 17/7/95; a Third Party statement of claim 1/11/95; and a defence to it 25/3/96.

In the statement of claim, Hj Ahmad bin Bujang ("the plaintiff) asserts that he was owner of the land and premises known as Lot 3621 at Lumut ("the land").

On 17/6/94 Sin Boon Hua, ("the defendant") who is a contractor, entered the plaintiffs land wrongfully, for the purpose of obtaining access to the adjoining land ("the adjoining land"), providing cement for a chicken farm which the third party was building there. The adjoining land was owned by Sheikh Mansor Bin Sheikh Mohammad ("the third party").

The defendant brought three loaded lorries onto the land, without the permission of the plaintiff. The lorries became stuck on the land. A tractor, brought in to extract the lorries from the land, also became stuck.

The plaintiff protested on the site to representatives of the defendant on the evening of [Page 2] 17/6/94. The lorries and tractor were not removed from the land until about 2100 on 19/6/94.

The plaintiff claims, as loss and damage caused by the trespass, the cost of restoring the land to the state in which it was in before the trespass.

He also asks for exemplary damages, on the ground that the trespass was deliberate and was carried out for the commercial benefit of the defendant.

In his defence, the defendant asserts that permission was given by the plaintiff, or his agent, to the third party, authorizing the latter to allow the defendant's lorries to enter the land.

The defendant was misled by the third party into believing that the third party had authority from the plaintiff to enter the land of the plaintiff.

The tractor was used by the defendant to level the land to its original condition, so that the plaintiffs damages would only be nominal.

The defendant, through his solicitor, apologised for the use of the plaintiffs land as access to the adjoining site and asked, on 12/8/94, how the plaintiff wished the land to be improved further.

The use of the land by the defendant was as the result of a misrepresentation by the third party. The access was in the normal course of business and not calculated to exploit the land with a view to commercial gain.

A Third Party Statement of Claim, dated 1/11/93, was issued by the defendant against the third party. This seeks contribution from the third party of whatever amount the defendant might be called upon to pay to the plaintiff.

On 17/6/94, the third party sought delivery by the defendant of several loads of pre-mixed concrete. The premises of third party are accessable to laden lorries only by a wooden bridge, which is unfit for use by a laden lorry, or through the plaintiffs land.

The plaintiffs land was used, on the direction of the third party, who represented to the defendant that he had authority to give permission to the defendant to use the land to gain access to the third party's premises.

If there was a trespass, this was due to the misrepresentation of the third party.

The third party, in his defence, denies that he committed trespass or that he allowed the [Page 3] defendant to do so. He alleges that on 18/6/94, the plaintiff was himself on the land and directing the traffic.

BACKGROUND.

This is an unfortunate dispute between members of the family, who occupy adjoining lots but are on distant terms. The plaintiff is the father-in-law of the third party. The plaintiffs daughter, Zaliha Bte Hj Ahmad ("Zaliha") who is married to the third party, has not spoken to the plaintiff for at least three years, though she remains friendly with her mother, Hjh Dy. Rokiah bte Bujang ("Rokiah") the first wife of the plaintiff.

Rokiah lives in the house at Lumut. The plaintiff visits her there frequently, though he was absent when the lorries first arrived, about 17th June, 1994 and does not spend the night there. His second wife lives in another house, abou