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2019 MarsdenLR 2692
FEDERAL COURT PUTRAJAYA
FAIRISE ODYSSEY (M) SDN BHD – Appellant
Versus
TENAGA NASIONAL BERHAD – Respondent
[Civil Appeal No: 02(f)-37-06-2016(W)]
Approval of State Authority can be implied, not solely written, as long as conduct shows tacit consent in land usage.
Headnote:The appeal concerns the dismissal of a claim for continuing trespass related to the erection of transmission lines on State land. The Court held that the Electricity Supply (Successor Company) Act 1990 governs the issue of State Authority approval. The findings affirmed that no express written approval was necessary; implied approval sufficed under the statute. The verdict reiterated that without evidence of wrongful occupation, a trespass claim fails.
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| 1. the dispute involves land ownership and the construction of transmission lines. (Para 1 , 2 , 10) |
| 2. the central issue addresses whether approval from the state authority is required in writing. (Para 12 , 30 , 31) |
| 3. the approval can be either express or implied according to the statutory provisions. (Para 14 , 22 , 57) |
| 4. statutory interpretation, focusing on implied approval. (Para 21) |
| 5. court's affirmation of established legal findings. (Para 32) |
| 6. final ruling confirming dismissal of appellant's claims. (Para 58 , 70) |
[1] This is an appeal by the appellant against the decision of the Court of Appeal which affirmed the decision of the High Court, in dismissing the appellant's claim for continuing trespass.
Background Facts
[2] The dispute in this appeal concerns a parcel of land described as HS(D) No 10045, PT No 3980, Mukim Gemas, District of Tampin, Negeri Sembilan measuring 144.272 hectares ("the land"), on which the respondent had built transmission lines.
[3] The land which was originally State land was first alienated to Metro Angkasa Sdn Bhd ("Metro Angkasa") in 1990. Due to Metro Angkasa's failure to pay the premium, the alienation was cancelled in 1992.
[4] Prior to 1990, the supply of electricity and matters connected to it were carried out by a department known as Lembaga Letrik Negara ("LLN"). On 12 July 1990, the respondent was incorporated as a public company limited by shares. Pursuant to the Electricity Supply (Successor Company) Act 1990 which came into effect on 1 September 1990, all properties, rights and liabilities of LLN were vested in the respondent.
[5] In 1992, the respondent engaged HG Power Transmission Sdn Bhd to construct the transmission lines on the land. The transmission lines were connected to the TNB's substation and formed part of the electricity grid that supplies power to residents living in the area from Gemas to Kuala Pilah, Negeri Sembilan. The substation was built on a strip of land which was carved out and given to the respondent for the construction of the substation, and which was originally part of the subject land in dispute. A separate individual title was issued and registered in the respondent's name on 25 August 1992 for this strip of land described as HS(M) 1561, PT No 3926, Mukim Gemas, State of Negeri Sembilan, measuring 2.2356 hectares.
[6] In the meantime, Metro Angkasa had appealed against the cancellation of the alienation. The appeal was successful and the land was re-alienated to Metro Angkasa in 1993.
[7] Sometime in November 1994, HG Power completed the works for the transmission lines. The transmission lines occupied about 5.4643 hectares of the land ("the affected area").
[8] Sometime in March 1994, Metro Angkasa charged the land to Southern Bank Berhad ("Southern Bank") as security for banking facilities granted by Southern Bank. By a vesting order dated 6 September 2006, all assets and liabilities of Southern Bank were vested in CIMB Bank Berhad ("CIMB").
[9] Metro Angkasa defaulted in repayment of the loan. The land was foreclosed and by a sale and purchase agreement dated 11 January 2010, CIMB sold the land on an 'as it where is' basis to Elitprop Sdn Bhd ("Elitprop"). At the request of Elitprop and by an agreement dated 1 November 2010, the land was transferred by CIMB directly to the appellant. The appellant is Elitprop's nominee.
[10] After the appellant became the registered proprietor of the land, on 30 December 2010, the appellant objected to the existence of the transmission lines. On 30 May 2011, the appellant commenced a suit against the respondent alleging continuing trespass. The appellant contended that the transmission lines had been constructed on the land without the approval of the State Authority.
[11] The appellant sought for inter alia a declaration that the use and/or possession of the affected area by the respondent for the transmission lines is unlawful and void ab initio and for damages for trespass, to be assessed.
Proceedings In
