Abdul Aziz Rahim J:

[1] On or about 19 October 2000 the appellant was driving his taxi bearing registration no. HQ207 ("the vehicle") along Jalan Crookshank near the entrance of Kuching Civic Centre and Sarawak Tennis Court. The appellant alleged that while he was driving, a tree fell on the vehicle. As a result of the accident the 1st appellant sustained injuries and the vehicle was badly damaged.

[2] The 1st appellant was the authorized driver of the vehicle. The vehicle belonged to the 2nd appellant. Thus both appellants claimed against the respondent damages and injuries. The 1st appellant's claim is for injuries suffered and the 2nd appellant's claim is for special damage for the damaged vehicle.

[3] The appellants' action is premised on negligence and breach of statutory duty purportedly on the part of the respondent for failure to ensure and maintain the trees. The particulars of negligence are set out in para. 6 of the appellants' amended statement of claim.

[4] The appellants' case is that the place of accident ie along Jalan Crookshank near the entrance of the Kuching Civic Centre or thereabout is within the jurisdiction of the City of Kuching North pursuant to s. 3 (particulars of which are in the Schedule) of the Kuching North Ordinance 1988. Therefore the appellants contend that the respondent is under a duty to maintain the trees in a healthy state to ensure it did not pose a risk and danger to the public, in particular to 1st appellant when driving along the said road.

[5] The respondent's case is that it has no statutory obligation pursuant to the Local Authorities Ordinance 1996 or any other legislation to attend to the caring, maintenance, preservation or supervision of the trees. It was also the respondent's case that the alleged place of accident was not at any time a public place within the meaning of the Public Parks and Green Ordinance 1993. Also, it was contended by the respondent that the place was never vested in them under the Ordinance and therefore it has no general control or care for the protection and preservation of the said tree. Alternatively, the respondent contends that the accident was an inevitable one or it was attributed solely to an act of God, natural calamities or forces of nature or inclement weather at the material time which were entirely beyond the control or foreseeability of the respondent.

[6] It is not in dispute that the trees in question were situated on lots 43 and 51, which are state land. It is also not in dispute that the two lots are within the territorial limits of City of Kuching North and therefore is within the jurisdiction of the respondent. The respondent contends that it is under no statutory duty to maintain or care for any tree grown on state land within the jurisdiction of the city limit unless the area has been gazetted and vested with the respondent under the Public Parks and Green Ordinance 1993. In this regard it is not disputed that the area covering lot 51 was never gazetted and vested as such.

[7] The learned Sessions Court dismissed the appellants' claim against the respondent on the ground that lot 51 on which the fallen tree was purportedly situated was not within the jurisdiction of the respondent and thereby the respondent did not have a duty to maintain the trees grown at the shoulder or verge of Jalan Crookshank. The Court also held that the respondent had no duty to maintain the trees grown on the road shoulder or verge of Jalan Crookshank under s. 119 of the Local Authorities Ordinance 1996. The Court found that lot 51 was never gazetted and vested with the respondent under the Public Parks and Green Ordinance 1993 and therefore the respondent is under no obligation to maintain the trees grown on that lot.

[8] The appellants adduced evidence through PW3, who is the Town and Country Planner with the respondent. PW3 testified that Jalan Crookshank is within the respondent's jurisdiction and it is the respondent's duty to maintain the ro