Trespass leads to liability where damages must account for loss of use and benefits derived by the trespasser, emphasizing that damages are to be assessed fairly based on the evidence presented.

Surita Budin SCJ:

GROUNDS OF JUDGMENT

[AFTER FULL TRIAL] ENCL.1

A. INTRODUCTION

[1]On 31.01.2025, this Court has allowed the Plaintiff’s claim as follows:

a)A declaration that the Defendant and/or his agents and/or his employees and/or his servants have trespassed upon the Plaintiffs property held under Grant No. 216348, Lot 3445, Mukim Pantai, Seremban District, Negeri Sembilan;

b)An injunction that the Defendant and/or his agents and/or his employees and/or his servants are prohibited from entering and/or trespassing onto the Plaintiffs property held under Grant No. 216348, Lot 3445, Mukim Pantai, Seremban District, Negeri Sembilan;

c)Special damages in the amount of RM6,150.00 to be paid by the Defendant to the Plaintiff for the cost of surveyor’s services;

d)General damages (Compensatory damages) for encroachment on Lot 3445 and illegal felling of trees and/or plants on Lot 3445 globally amounting to RM150,000.

e)Interest on the judgment sum at the rate of 5% per annum from the date of filing of this writ until full realization.

f)Costs are according to scale.

[2]Aggrieved by this decision, vide Notices of Appeal dated 13.02.2025 (end. 69), the Defendant is now appealing to the High Court only on the aspect of compensatory damages. Below are my grounds of the said decision.

B. BACKGROUND FACTS

[3]The plaintiff instituted proceedings against the defendant for breach of their duty of care, negligence and for trespass onto the plaintiff’s land, resulting in damages and losses.

[4]The Plaintiff is the registered owner of two pieces of land, i.e., Geran 216437, Lot 3446, Mukim Pantai, Daerah Seremban, Negeri Sembilan and Geran 216348, Lot 3445, Mukim Pantai, Daerah Seremban, Negeri Sembilan (“Lot 3446” and “Lot 3445”).

[5]The Plaintiff has an orchard on Lot 3445 and 3446.

[6]This suit concerns only the trespass by the Defendant on Lot 3445.

[7]On or around 15 March 2021, the Defendant and/or his servants and/or his agents and/or his contractors trespassed onto Lot 3445 whilst constructing an illegal road (“the illegal road”) by encroaching onto Lot 3445 without the Plaintiff’s permission. The Defendant and/or his servants and/or his agents and/or his contractors encroached into Lot 3445, cutting, digging and extracting soil out of Lot 3445 without the Plaintiffs authorization, and felling palm oil trees and durian trees which belonged to the Plaintiff on Lot 3445.

[8]The Plaintiff, through her representative (PW2), has made two police reports dated 30 March 2021 and 5 April 2021 respectively against the Defendant’s trespass on Lot 3445.

[9]The total area trespassed by the Defendant on Lot 3445 is 346 square meters (refer surveyor’s report P1).

[10]The Defendant’s own witness, SD2 supported the SP1’s contention that the height of the slope cut by the Defendant at certain points reached 4 meters.

[11]The trespass by the Defendant not only has had destroyed the oil palm and durian trees on Lot 3445, but it has also caused Lot 3445 to be exposed to continuous and severe soil erosion, especially during rainy seasons. The Plaintiffs orchard on Lot 3445 also faces a risk of flood due to the trespass (rediverting the natural flow of the stream) by the Defendant.

[12]The steep slope still stands on the boundary of Lot 3445 and suffers from soil destabilization. The condition of the slope has exacerbated; inviting soil erosions or landslides.

C. WITNESSES

[13]The Plaintiff has called three (3) witnesses as follows:

a)Tan Kean Poh (SP1) - Surveyor

b)Wong Man Leong (SP2) - Plaintiff’s cousin

c)Wong Poh Lee (SP3) - Plaintiff.

[14]Whereas Defendant called two (2) witnesses as follows:

a)Nor Dahnia binti Saharuddin (SD1) - surveyor

b)Gan Kiam Kiat (SD2) - Defendant.

[15]The legal principle on assessment of damages is trite. A party claiming damages must discharge the burdens of (i) proving his losses; and (ii) proving that the losses were attributable to the party from whom damages are claimed (see Taiping Poly (M) Sdn Bhd v. Wong Fook Toh & Ors Lim Tze Sian v. Coverright