The absence of certain parties does not bar easement claims if alternative access exists, but the court lacks authority to extinguish easements under sections of the Land Code.

Introduction

By this action the Plaintiffs (Chin & Sons (1955) Sdn Bhd ("1st Plaintiff"), Chin Shen Syn ("2nd Plaintiff") and William Chin ("3rd Plaintiff") seek a declaration that an easement (right of way) that was created over part of Lot 30, Block 10, Kuching Central Land District, which the 1st Plaintiff owns, ought to be extinguished as the dominant land owners William Crocket @ William Crocker ("1st Defendant") and Yu Lee Hong Motors Sdn Bhd ("2nd Defendant") have an alternative access to public roads. Another claim concerns the Superintendent of Land & Survey Department ("3rd Defendant"), for the return or re-alienation of certain land to the Plaintiffs if the claim against the other two Defendants should fail.

Facts of case

The dominant properties are Lot 401, owned by the 2nd Defendant Yu Lee Hong Motors Sdn. Bhd., Lot 2002, owned by the 1st Defendant, Lot 2003 owned by a Andrew Dexter Chia who is not a party to this action but who had given up his right to the easement and Lot 206 owned by an unknown owner and who is also not a party to this action. As for the owner of Lot 206, he had also given up his right, the extent of which will be discussed later, to use the easement. The servient property which the 1st Plaintiff owns is Lot 30. The 1st Plaintiff also owns a parcel of land known as Lot 31 which is contiguous to Lot 30 but separated from it by the easement. The various locations of these properties are best shown by the following plan:-

[Ommitted]

This plan is a reproduction by me of a plan admitted as evidence and the details are culled from the plans and evidence in the case. A copy of this plan was during the closing speeches shown to learned counsel for all the parties and they agreed that the plan accurately represents the facts. The numbers there refer to the Lot numbers of the land which I have earlier mentioned. The easement is represented by a red line. Lot 2004, in turquoise, is a road reserve. Lot 2663 in black is a tarred road. It was formerly part of Lot 81 but was surrendered to the government following a subdivision of Lot 81. The Plaintiffs are claiming against the 3rd Defendant, the Superintendent of Land and Survey Department, for a re-alienation of Lot 2663 back to the Plaintiffs if their claim against the 1st Defendant and 2nd Defendant should fail. The two main roads, Rock Road and Jalan Kereta Api, are in yellow while the feeder roads providing alternative access to Lots 2002 and 401 are indicated in brown.

Lots 401, 2002, 2003 and 2004 were formerly comprised in one lot known as Lot 207. At one time Lot 207 and Lot 30 were owned by one person who had granted the said easement by an instrument which is worded in the following terms:

EASEMENT (RIGHT OF WAY)

Kuching Central Land District, Block 10, Lot 30 and 207

I, Greenslade, Phyllis Dorothy... ..registered owner of ... ..Lots 30 and 207 do hereby agree to the registration of a right of way over that portion of the said lands as shown coloured red in the sketch on the reverse hereof.

AND this right of way shall be registered as a servient easement on Lot 39... ..and Lot 207.

Dated this 18th day of October 1952.

[Signed etc... ..]

Registered at Kuching this 18th day of November 1952.

The reverse side of this document contains a layout plan of the easement. This plan shows and it is common ground that the easement also served Lot 206. It was upon this instrument and its registration that the 1st Defendant and 2nd Defendant claimed a right to the easement. There is no dispute thus far. In so far as the case concerns the 1st Defendant and 2nd Defendant, nothing much turns on the oral testimony and almost all the evidence relate to the matters which are shown in the plan, supra, which should not be matters of any controversy.

Owner of Lot 206 not a party

The first issue revolves around the absence of the owner of Lot 206 from the present proceeding