James Foong JCA

INTRODUCTION

[1]There are three related appeals before us and they were heard together because they involved the same subject matter. For ease of reference, I shall refer to the appellant in appeal case no W–02–735–2006 as UDA Holdings, in appeal case no W–02–653–2006 as DBKL and in appeal case no W–01–79–2006 as Government of Malaysia. After deliberation, we are of the unanimous opinion that the decision of the court below should be upheld in respect of liability. However we differ on the issue of quantum where Low Hop Bing and Suriyadi JJCA, by majority, agreed with the finding of the learned trial judge whilst I am of the view that it should be reduced. But before I proceed to give my reasons, it is necessary for me to reproduce the facts of this case with emphasis on certain dates and events which are pertinent to the issue of quantum.

FACTS

[2]As to the basic facts of this case, I could not have put it more comprehensively than the learned trial judge in the following passages which I reproduce below. Reference made by the learned trial judge to the first defendant is UDA Holdings, second defendant is DBKL and the third defendant is the Government of Malaysia.

At the commencement of this action in 1997 the Plaintiff was running a supermarket business (the said supermarket) at the ground floor of a 19 storey building at No 69, Jalan Haji Hussein, Kuala Lumpur (the said premises). The Plaintiff had started its business at this premises sometime in 1975. The Plaintiff being a cooperative society, enjoyed getting customers mainly from its members consisting of about 6000 individual members and 50 cooperative societies eg Police Cooperative Society, the Armed forces Cooperative Society and Wilayah Persekutuan Government Servants Cooperative Society. The products sold at the supermarket were mainly food stuff and essential household goods. The main entrance to the supermarket was at Lorong Haji Hussein 3 where 35 car parking bays were located. This side road is a thoroughfare and proved to be very convenient to the customers of the plaintiff's supermarket for purposes of loading and unloading passengers and goods to their vehicles ….

Sometime towards the end of October 1996 the second defendant acting in concert with the first and the third defendants caused the Lorong Haji Hussein 3 (the said road) to be closed to all traffic. It began with the first defendant declaring and categorizing that part of Lorong Haji Hussein 3 adjacent to the Plaintiff's supermarket as a Temporary Occupational Licence (TOL) after an application by the second defendant who also closed the road to all traffic. Subsequently the first defendant constructed 76 stalls at Lorong Haji Hussein 3.

The purpose of the actions taken by the defendants was as follows. The first defendant, who at the relevant time known as Urban Development Authority (UDA), a statutory body, intended to construct two multi-storey building on Lot 2347, situated not far from the plaintiff's supermarket on the same Jalan Haji Hussein. It so happened that during that time UDA's land was occupied by unlicensed hawkers. To commence development on the said land UDA had to remove the unlicensed hawkers first. To do that UDA sought the assistance of Dewan Bandaraya Kuala Lumpur (DBKL), the second defendant in this suit, to have the said hawkers removed from UDA's land. However it was also necessary for the second defendant to locate a new place for the said hawkers. It was decided that the place would be Lorong Haji Hussein 3 that part of public road adjacent to the entrance to the plaintiff's supermarket. To do that the approval of the Land Administrator for Wilayah Persekutuan Kuala Lumpur, the third defendant, to have the Lorong Haji Hussein 3 converted from a public road to a TOL had to be obtained. An application to that effect was made by both the first and second defendants. The third defendant granted the application. Once that part of Lorong Haji Hussein 3 was converted i