Mcgilligan J:

The plaintiff's claim is based on an allegation of unlawful use and occupation by the defendants of what he says is his log pond at an area by the sea known as Tanjong Batu; this area is two or three miles from Tawau Town.

A log pond is a fenced-in portion of the sea, the sea-shore being one of its sides, and its other three sides being formed largely by lines of piles, i.e., heavy wooden stakes driven into the sea-bed. The main use of a log pond is for the storage of cut timber waiting to be loaded on to an exporting ship.

At Tanjong Batu there is a large piece of land fronting the sea, which is held on lease (PL No. 16148) by Mr. Hong Teck Guan, one of the directors of the defendant company. On the sea side of this piece of land there are two log ponds, as may be seen from the plan Exh. P18. The Court inspected the area, and the plan is accepted as being correct in every detail. The larger, more northerly, pond I shall call the large pond, and the smaller, more southerly, the small log pond.

The history of these ponds (and I am now making findings of fact) is this: On 9 June the defendants were granted a temporary occupation license over 800 feet (along the shore) by 400 feet (out to sea) at Tanjong Batu. On 10 November 1962 they were granted an extension of 200 feet (along the shore) by 400 feet out to sea, and the rent payable was increased to $200 a month. In 1961 and 1962 the defendants at the site held under temporary occupation licence by them fenced in an area of about 787 feet (along the shore) by between 800 and 1000 feet (out to sea) (This latter length I take from the Statement of Mr. Hong Seng Ho, general manager of the defendant company, and from the plaintiff's evidence). This area is the large log pond. In so fencing in the defendants went, out to sea, 400 to 600 feet beyond the area held by them under temporary occupation licence. Later, some time in the first half of 1963, the defendants fenced in a further area, south-east of the large log pond, of about 550 feet (along the shore) by about 800 feet (out to sea). This area is the small log pond. In so doing they went, along the shore, about 337 feet beyond the area held by them under temporary occupation licence, and, out to sea, about 400 to 600 feet beyond. On 21 May 1963 the plaintiff was granted a temporary occupation licence over an area, immediately to the left, (as one faces the sea), and south-east, of the area held by the defendants under temporary occupation licence, of 600 feet, (along the shore) by 600 feet (out to sea). The defendants are by, and because of the making of, the small log pond, in encroachment on about 337 feet by 600 feet of the area held by the plaintiff under temporary occupation licence.

I have made the finding that on 10 November 1962 the defendants were granted an extension of 200 'd7 400 feet on the strength of Exh. D5 and D4, which show the application for a further area of 200 'd7 400 feet and the approval of that application. I am satisfied that the 8000 square feet written on exh. D5 and on the defendants' temporary occupation licence resulted from a mistake in arithmetic, and should be 80,000 square feet. No-one would bother to apply for an extension of a mere 20 feet along the shore.

In parenthesis, I must here say that the temporary occupation licences with which we are concerned were granted under the Land Ordinance and are exactly the same as those used in respect of what is literally land, terra firma. For the purposes of this case and of the law the areas of sea and sea shore held under these temporary occupation licences (and indeed the areas contained in the two log ponds) is land. I shall sometimes refer to those areas, for convenience, as sea-land.

When the small log pond was completed is of importance, and is a difficult point. Mr. Hong Seng Ho, general manager of the defendant company, said that the second piling (which created the small log pond) was done in 1963, about March. A