An easement granted out of necessity ceases when an alternative access becomes available, validating its extinguishment under the Sarawak Land Code.

A. Introduction

[1] The Appeal before us concerns a case of the extinguishment of a private easement (which was initially granted to the Appellants out of necessity) by the Registrar of Land and Survey Kuching Division ("1st Respondent") exercising his authority under s 141 of the Sarawak Land Code (" SLC ") when it was found that the previous necessity for the easement had already ceased due to the subsequent availability of a public access road (via Persiaran Cooke) to access the Appellants' land.

[2] The factum of the Appellants' land being no longer landlocked, and the accessibility of the public access road to the Appellants' land remains entirely undisputed. The only challenge the Appellants had mounted against the extinguishment was merely leveraged on some alleged 'procedural error' in breach of the SLC and res judicata in view of an alleged earlier Court of Appeal decision, which allegedly was decided in favour of the Appellants (which, in actuality, was not).

[3] There was a barrage of technical issues raised in the present Appeal which we have identified to be no more than smoke and mirrors to detract us from the core and pure substance of the matter, being the justifiability of the extinguishment of the private easement by the 1st Respondent. We believe that it is far more practicable and just that we directly address the core substance of the present Appeal, rather than unnecessarily protracting our deliberation on mere matters of technicality.

B. Background Facts

[4] For better understanding of the matter at hand, it is necessary for us to lay down the essential facts of the case which had led the Appellants to file the present Appeal.

[5] The four Appellants here ("the Plaintiffs/Appellants") are the registered proprietors of a piece of land situated in Lot 255, Section 18, Kuching Town Land District ("Lot 255").

[6] Lim Siok Luan ("the 3rd Respondent") is the registered proprietor of the land immediately adjacent to Lot 255, situated in Lot 254, Section 18, Kuching Town Land District ("Lot 254"). Both Lots 255 and 254 sits along the same row of land with Lots 256 and 257.

[7] It was an admitted fact that circa 1966, the only lot with direct access to a public road ("Jalan Green") was the 3rd Respondent's Lot 254. Out of pure necessity (due to the absence of any public access road to Lot 255), the then Superintendent of Lands and Surveys had endorsed a private right of way ("easement") to be allowed along Lot 254 for the benefit of Lot 255, and the same between Lots 256 and 257 via Memorandum No. L2396/66 ("the 66 Memorandum").

[8] The 66 Memorandum stipulated that the easement, through Lot 254, shall be 16 feet wide. Accordingly, an access road was built through Lot 254 (although less than the stipulated 16 feet). Notwithstanding, for almost 50 years, there has never been any issues or complaints whatsoever regarding the propriety of the built-up easement. In respecting the establishment of the easement (as well as for privacy and security purposes), the 3rd Respondent's late husband (the original proprietor of Lot 254) had set up a chain-link fence along the boundary line of the easement.

[9] Upon