Wan Yahya J:

[1] On 15 December 1981 the plaintiff who was desirous of carrying on his business as a second-hand goods dealer bought land No 37 of town area 29 Bandar Malacca. Towards the rear of the plaintiff's left adjacent lot as one faces the road stands the house of the second defendant as well as a cluster of other houses. The house built by the 2nd defendant is maintained by payment of ground rent to the owner of that lot. The first defendant, the son of the second defendant, Ong Peck Seng, came to live with his father in that house some time in 1979 when he commenced to do the same business as the plaintiff. The defendant's house partly encroached on the plaintiff's land. However, as this part of the building had been demolished this matter no longer forms the issue in this case. Right in the centre of the plaintiff's land from the rear portion to the front main road there existed a path used by the first and second defendants as access to their house.

[2] Some time after taking possession of his newly purchased lot the plaintiff with a view to commencing his second-hand dealer's business fenced the entire area but the fence was forcibly pulled down by the first defendant who continued to use the path for his vehicles access to his house. The plaintiff claims that the defendant threatened his workmen who were erecting the fence with the use of force. He therefore seeks this Court's remedy for a declaration that he is entitled to the exclusive possession and enjoyment of the land; an injunction to restrain the defendants whether by themselves or by their servants or agents from trespassing on the said land; an Order that the defendant do forthwith pull down and demolish the wooden shed erected on the plaintiff's land, damages and costs.

[3] The defendants did not dispute the facts but disclaim that the plaintiff is entitled to the Orders he seeks for two reasons. Firstly, they contend that the plaintiff had failed to prove that their continued use of the plaintiff's land constitutes trespass To establish trespass, according to them, the plaintiff must prove damages. Secondly, the defendants also claim that they have acquired an equitable right of way to use the path through unobstructed use of the same over some 40 years.

1

Every unlawful entry by one person on land in the possession of another is a trespass for which an action lies, although no actual damage is done. A person trespasses upon land if he wrongfully sets foot on, or rides or drives over, it, or takes possession of it, or expels the person in possession