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2025 MarsdenLR 6251
HIGH COURT MALAYA SHAH ALAM
NG CHOK LING – Appellant
Versus
ABDUL GAFFAR KHAN AMIRULLAH – Respondent
[Civil Suit No: BA-23NCvC-58-11/2023]
The court ruled that claims regarding illegal constructions demand adherence to local regulations and highlighted the necessity for local authorities to be involved in disputes affecting their regulatory functions.
Headnote:(A) Evidence Act 1950 - Section 101 - Street, Drainage and Building Act 1974 - Section 70 - Legal structure of neighbouring properties - Plaintiff resided at No 47 while defendant resided at No 26; claim included demands for demolition, strengthening, damages for trespass, and diminution in value due to illegal constructions. (Paras 3-6, 28, 70)
(B) Burden of Proof - The party asserting the facts must substantiate the claims as per Section 101; illegality of construction established by defendant's admission. (Paras 10-12)
(C) Legal Authority of Local Government - Local authorities must be included in declarations affecting statutory duties; courts should refrain from adjudicating actions against local governments not present in proceedings to uphold natural justice. (Paras 70-71)
Facts of the case:
The plaintiff's claim for various orders against the defendant describes neighbourly disputes over renovations conducted illegally, causing damages and trespass; plaintiff asserts rights to fair construction under local laws. (Paras 4-6, 83)
Findings of Court:
Plaintiff entitled to general damages for trespass of RM50,000; defendant ordered to repair damaged awning but remaining claims dismissed. (Paras 95)
Issues: Court addressed the legality of the structure, safety, rights to property interference, and whether local government must be involved in disputes affecting their regulatory interests. (Paras 8, 84)
Ratio Decidendi: Court affirms local government's authority to approve building plans and maintain community safety; claims regarding illegal constructions must adhere to local regulations emphasizing statutory adherence. (Paras 71-80)
Result: Part of the plaintiff's claim allowed; remaining relief dismissed.
Key Points: - Plaintiff (No 47 Jalan PJU 3/12F) sued defendant (No 26 Jalan PJU 3/12E) over illegal wall construction on retaining wall, seeking demolition, repairs, and damages (!) (!) (!) (!) - Defendant admitted constructing the structure without MBPJ permit, constituting an admission under s 18(1) Evidence Act (!) (!) (!) - Court held burden of proof lies on asserting party per s 101 Evidence Act; plaintiff established prima facie illegality via admission (!) (!) - Street, Drainage and Building Act 1974 (s 70) vests local authorities like MBPJ with exclusive power to approve buildings, issue orders, and enforce against illegal structures (!) (!) (!) - Court declined to order demolition as MBPJ not joined as party, violating natural justice; claims on illegality premature without local authority involvement (!) (!) (!) - Trespass proven by defendant's admission of workers entering plaintiff's property and using awning for scaffolding (!) (!) (!) - Plaintiff awarded RM50,000 general damages for trespass, order for defendant to repair awning, interest at 5%, each bears own costs; other claims dismissed (!) (!) (!) - Court exercised inherent powers under O 92 r 4 ROC to prevent abuse of process by not usurping MBPJ's statutory functions (!) (!)
What is the burden of proof under Section 101 of the Evidence Act 1950? [p_22]
Whether the renovation and construction of the wall on top of the existing retaining wall is illegal, lacking approval from MBPJ? [p_29][p_37]
Whether the local authority must be involved in court proceedings regarding illegal constructions? [p_70][p_71]
| Table of Content |
|---|
| 1. neighborhood dispute and claims. (Para 3 , 4 , 5 , 6) |
| 2. court's analysis of illegal structure. (Para 9 , 10 , 11 , 24) |
| 3. admissions regarding structure legality. (Para 12 , 13 , 20 , 22) |
| 4. local authority's powers to regulate. (Para 28 , 32 , 34 , 36) |
| 5. trespass established through admissions. (Para 84 , 88 , 90) |
| 6. court's final order on claims. (Para 95) |
A. Introduction
[1] This case has been resolved through a full trial scheduled from 24 to 26 February 2025.
[2] On 19 May 2025, I allowed part of the plaintiff's claim against the defendant. Dissatisfied with the ruling, the plaintiff appealed against that part of the decision.
B. Material Facts
[3] The plaintiff and the defendant are neighbours residing in the Tropicana Indah Resort Homes, Petaling Jaya.
[4] The plaintiff is the registered owner of a property known as No 47 Jalan PJU 3/12F, Tropicana Indah Resort Homes, while the defendant possesses a property at No 26 Jalan PJU 3/12E.
[5] The defendant's property is located directly behind the plaintiff's property and is one floor above it.
[6] The plaintiff's claim against the defendant, among others, seeks:
a) An order requiring the defendant to demolish the wall and/or the illegal structure built on top of the original retaining wall;
b) In the alternative to (a), an order for the defendant to strengthen the original retaining wall and appoint a certified engineer and/or professional (approved by the plaintiff) to certify the construction of the illegal structure;
c) An order for the defendant to repair and/or replace the awning at the plaintiff's property;
d) Alternatively to paragraph (c), an order that the defendant bear all costs of repairing the awning incurred by the plaintiff;
e) An order for the defendant to pay damages for trespass to the plaintiff;
f) An order for the defendant to pay damages for the diminution in market value and the opportunity cost associated with the sale of the plaintiff's property;
g) General damages for trespass;
h) Special damages for trespass;
i) Interest at 5% per annum for (g) and (h), calculated from the date of the writ summons until the date of full settlement;
j) Costs;
k) Any other relief this Court deems fit and proper to grant.
C. Applicable Law
[7] In the case of Hong Yik Trading v. Liziz Plantation Sdn Bhd ; , the Federal Court makes findings on the burden of proof as follows:
12] It is settled law that the burden of proof rests throughout the trial on the party who asserts that the facts exist (s 101 of the Evidence Act 1950). Where a party on whom the burden of proof lies has discharged that burden, then the evidential burden shifts to the other party. However, if the party on whom the burden of proof lies fails to discharge it, the other party need not call any evidence. This is highlighted in the case of Selvaduray v. Chinniah ; where Terrell, Ag CJ stated:
... it is clear that the onus is on the plaintiff to prove his case. After the conclusion of the whole case, there must be some preponderance in his favour. It may be true that the plaintiff established a prima facie case, but at the conclusion of the trial, the learned Judge has found that the position was exactly even, ie that any preponderance in the plaintiff's favour had disappeared. That being the case, the plaintiff must necessarily fail, as he has not discharged the onus which is upon him. No doubt the defendant would equally have failed if he had been the claimant and had tried to establish, as a substantive part of his case, the alternative version which he tried to prove in answer to that of the plaintiff.
In the case of International Times & Ors v. Leong Ho Yuen [1980] 1 MLRA 438; at p 87, Salleh Abas FJ (as he then was) restated the same position in the following words:
For the purpose of this appeal it is necessary to bear in mind the distinction between the two senses in which the expressions burden of proof and onus of proof are used (Nanji & Co v. Jatashankar Dossa & Ors AIR 196
