FACTS

The plaintiffs are the registered owners of 7 lots of land held under Geran 7899 Lot 234, Geran 7898 Lot 233, CT 26561 Lot 232, CT 26560 Lot 231, CT 26559 Lot 230, CT 26558 Lot 229, CT 26557 Lot 228 (the said lands). The 1st and 2nd plaintiffs became registered as trustees of ? share of the lands held under Geran 7899 Lot 234 and Geran 7898 Lot 233, in 1983 and the 3rd plaintiff became the registered owner of ? share of the said 2 lots of land in 1985. In respect of the remaining 5 lots of land, the 1st and 2nd plaintiffs became registered as trustees of ? share of the said 5 lots in 1975 and the 3rd plaintiff became the registered owner of ? share of the said 5 lots in 1985. The 1st plaintiff is also a director of the 3rd plaintiff.

COURT'S FINDINGS

Sometime in February 1989 the 1st plaintiff visited the said lands situated off Jalan Thamby Abdullah in Brickfields, Kuala Lumpur, to survey the same for the purpose of creating a car park. The 1st plaintiff discovered that unknown persons had illegally occupied the said lands and erected a few wooden huts thereon. The plaintiffs then discovered that one of the huts is being used as residence by the defendant and his family, another hut is being used as a place of worship of a Hindu shrine and another hut being used by the defendant's mother. The defendant was also using the said lands as a private car park and collecting fees and rearing cows thereon.

The plaintiffs maintained that they had not granted permission nor given consent to the defendant or his family or to his father to occupy the said lands. As the 1st plaintiff did not know the identity of the illegal occupiers then in February 1989, the 1st plaintiff lodged a police report at the Brickfields Police Station. PW2 testified that he had left the management of the said lands entirely to his brother PW1. However PW2 said that when he visited the said lands in 1980 he saw the defendant there but at that time he had no knowledge that the illegal occupier was the defendant. Both PW1 and PW2 (the 1st and 2nd plaintiffs) testified that the previous registered owner of the said lands was their late uncle, Ng Kong Kai. When they took over the said lands as co-trustees the said lands were vacant. They further testified that their late father did not grant permission to the defendant's father to occupy the said lands since the time of the Japanese occupation in the 1940's for a monthly rental because in the 1940's the plaintiffs' family had not bought over the said lands.

THE EARLIER SUMMARY PROCEEDINGS

In 1990 the plaintiffs filed summary proceedings under O 89 of the Rules of the High Court 1980 (the RHC) for possession of the said lands under Kuala Lumpur High Court Originating Summons S5-24-1114-90 (the OS action). The defendants in the said proceedings were cited as persons unknown to the plaintiffs. Upon service of the OS action the defendant herein entered an appearance. The said OS action was heard on 1.12.92 and was dismissed on the grounds that summary proceedings were inappropriate as there were triable issues raised by the defendant.

THE NEGOTIATIONS

Subsequently both PW1 and the defendant held several meetings to resolve the issue of unlawful occupation of the said lands. The first meeting was held at the plaintiffs' solicitors' office in the presence of the defendant and his solicitor and PW1 and his solicitor. At the said meeting, the defendant requested for 2 weeks to find alternative accommodation and also sought compensation from the plaintiffs. PW1 refused to consider the question of compensation but agreed to grant an extension to 1.4.91 to vacate the said lands.

The second meeting of all parties involved, together with their respective solicitors, was held on 1.4.91 wherein the defendant again requested for a further one month extension and again requested for compensation. PW1 again refused to grant compensation but agreed to the extension of one month and the defendant was to move out by 30.4