Continuous trespass allows claims to proceed without naming the actual tortfeasor initially when discovery can identify responsible parties.

[1] An application for striking out for failure to name the actual tortfeasor ought not to succeed if adjectival law in the form of discovery can be pressed into aid to ascertain his identity for purposes of establishing vicarious liability.

Introduction

[2] The Appellant (plaintiff) sued the Respondents (defendants) for trespass claiming that the Respondents in carrying out excavation works for a retention pond adjoining her land, brought onto her land waste materials causing her oil palm trees to be cut down and her land made unsuitable for the planting of oil palm trees.

[3] In the Sessions Court, the Respondents succeeded in their application to have the action struck out summarily pursuant to O 18 r 19(1) (a), (b) and (d) and O 92 r 4 of the Rules of 2012 (" ROC "). I had on 9 February 2023 allowed the Appellant's appeal with costs, set aside the Order of the Sessions Court of 15 July 2022, and remitted the case back to the Sessions Court. These are the grounds for my decision.

[4] The parties shall be referred to as they were in the Sessions Court.

Salient Facts

[5] The plaintiff is the registered proprietor of a piece of land held under GM 9395, Lot 8205, Mukim Bagan Serai, Daerah Kerian, Negeri Perak measuring 0.8398 hectares ("the said Land"). Since 2011, she and her husband have been planting oil palm on the said Land and reaping benefits therefrom. She avers she has 50 oil palm trees on the said Land.

[6] The 1st defendant is a statutory body established under the Farmers' Organization Act 1973. The 2nd defendant is alleged to be the employer and or principal of the 1st defendant and in turn, it is asserted that the 3rd defendant is the employer and or principal of the 2nd defendant.

[7] Sometime in 2016 or 2017, there were excavation works on the land adjoining the said Land. These works caused the oil palm trees on the said Land to be cut down. Solid waste materials from the excavation works were dumped onto the said Land causing the land to become clayey and unsuitable for the planting of oil palm trees. The plaintiff suffered losses which are alleged to be continuing.

[8] The excavation works were alleged to have been carried out by the 1st defendant and or its agents or done with its permission and alleged to have been done with the approval of the 2nd and 3rd defendants. Attempts made by the plaintiff to find out who exactly was responsible were unsuccessful due to a lack of cooperation by the 1st defendant.

[9] The plaintiff sued for trespass on the grounds the defendants had entered onto the said Land, cut down her oil palm trees, and placed things thereon causing it to be infertile and the Plaintiff to suffer losses estimated at RM1,100.00 per month since 2016 and continuing.

Defendants' Application To Strike Out

[10] In support of their application to have the plaintiff's action struck out, the defendants filed two affidavits plus a corrective affidavit. All these three affidavits were filed by Muhammad Firdaus Bin Nor Azlan, a Federal Counsel with his address at the State of Perak's Legal Advisor's office. In response, the plaintiff filed an affidavit in reply affirmed by Amirah Farzana Binti Aminuddin, the plaintiff's solicitor.

[11] The defendants raised the following assertions in support of their striking out application:

(i) pursuant to ss 5 and 6 of the Government Proceedings Act 1956 , in any claim in tort against the Government, the public officer who is responsible has to be made a party and his or her liability first established before the Government can be made liable, and the