1. Dispute over ownership and use of a gravel access road on undivided native title land, alleging trespass, nuisance, and conspiracy. (Para 1 , 2 , 3 , 4 )
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2026 MarsdenLR 1273
HIGH COURT SABAH & SARAWAK TAWAU
STEVE RITIKOS, JC
ABDUL RAZAK TAMPI – Appellant
Versus
IBRAHIM AB RASHID & ORS – Respondent
[Suit No: TWU-22NCVC-35-10/2024 (HC)]
Petitioner Advocates:Liew Hon Min,Nur Fadhilah Najihah Amir ,Respondent Advocate: Nur Hafizah Husna Elahab @ Lahab
Co-owners of undivided land cannot claim exclusive ownership of specific portions without an approved subdivision. However, they may recover damages for private nuisance if the use of the land by other co-owners is substantial and unreasonable, interfering with the enjoyment of the property.
Headnote:(A) Evidence Act 1950 - Sections 101 to 103 and 114(g) - Burden and standard of proof - In civil cases, the required standard is the balance of probabilities (Para 20) - An adverse inference under Section 114(g) may be drawn when a party withholds evidence, but it cannot replace proof of a basic element that the claimant failed to establish (Para 22).
(B) Land Law - Possession, Co-ownership and Trespass - Ownership of an undivided share does not grant exclusive legal ownership of a specific portion of land absent an approved subdivision or a binding agreement (Para 24) - Trespass protects possession; the claimant must show they possessed or had an immediate right to possess the land that was intentionally or negligently interfered with (Para 23).
(C) Tort - Private Nuisance - Occurs when there is substantial and unreasonable interference with the use or enjoyment of land (Para 26) - Factors to consider include the character of the area, duration, frequency, and the nature of the interference - Frequent use of a lane beside occupied residential houses by heavy ten-wheel lorries and excavators, especially at night, may constitute an actionable nuisance (Para 26).
(D) Tort - Conspiracy - Requires proof that two or more persons agreed to act together, acted pursuant to that agreement, and caused loss (Para 28) - For predominant-purpose conspiracy, the main purpose must be to harm the claimant; for unlawful-means conspiracy, the parties must intend to harm through unlawful acts (Para 28). (E) Damages and Injunctions - Special damages must be specifically pleaded and proved; a quotation is merely an estimate and does not prove actual payment or reasonable loss (Para 29) - A permanent injunction is discretionary and must be proportionate, protecting established rights without unfairly extinguishing others (Para 31).
Facts of the case:
An owner of an undivided share in a master title constructed houses on a parcel of land. A dispute arose over a gravel access road used by other parties to reach land at the rear. The defendants utilized heavy machinery and lorries for commercial haulage, leading to complaints of dust and noise. The plaintiff attempted to block the road with trenches and fencing, which the defendants cleared using machinery. Subsequently, a lorry driven by the defendants' employee collided with the plaintiff's vehicle and house. The plaintiff sued for trespass, nuisance, and conspiracy, while one defendant counterclaimed for contractual losses resulting from the road obstruction.
Findings of Court:
The court found that because the land title remained undivided and no approved subdivision existed, the plaintiff could not establish exclusive ownership of the road to sustain a trespass claim. However, the use of heavy industrial vehicles beside the residential houses was deemed a private nuisance. The defendants were also found liable for the physical damage caused by the removal of the road obstruction and the negligent vehicle collision. The conspiracy claim failed as there was no proof of an agreement to harm. The counterclaim for contractual losses was dismissed due to a lack of reliable evidence regarding profit loss, causation, and mitigation.
Issues: Whether the plaintiff proved exclusive possession of the road to establish trespass; whether the use of heavy vehicles constituted private nuisance; whether the defendants were liable for physical interference and damage; whether a conspiracy was formed to injure the plaintiff; and whether the counterclaim for contractual losses was proven.
Ratio Decidendi: Exclusive ownership of a specific portion of an undivided land title cannot be determined through a trespass action without a lawful subdivision. Private nuisance is established when the intensity and manner of land use (such as nighttime industrial haulage in a residential kampung) exceed what neighbours should reasonably tolerate. Special damages cannot be awarded based on estimates or quotations without proof of actual loss. Contractual loss in a counterclaim requires a proven link between the obstructing act and the loss, backed by audited profit calculations.
Result: Judgment entered against the second and third defendants jointly for RM30,000.00. Limited reciprocal injunctions granted to prevent industrial nuisance while preserving reasonable light-vehicle access. Other claims and the counterclaim dismissed.
Legal Category Hierarchy
- tort
- property law
- practice and procedure
Table of Contents
2. Plaintiff claimed exclusive road ownership; defendants asserted right of access and reasonable use. (Para 3 , 33 , 34 , 35 )
3. Court found plaintiff failed to prove exclusive road ownership due to undivided land; defendants committed nuisance through heavy vehicle use. (Para 33 , 34 , 35 , 36 , 38 , 39 , 40 , 41 , 42 )
4. Trespass requires possession; co-owner of undivided land cannot claim exclusive possession without subdivision. Nuisance requires substantial unreasonable interference. (Para 23 , 24 , 25 , 26 )
5. Plaintiff's ownership claim dismissed; second and third defendants liable for nuisance; limited injunctions granted; counterclaim dismissed. (Para 59 )
6. What is required for a co-owner to prove trespass against another co-owner on undivided land?
A co-owner must show exclusive possession via approved subdivision or binding agreement. Without such, all co-owners have equal right to possess the whole. (Para 23 , 24 , 25 , 33 , 34 , 35 , 36 )
7. What constitutes private nuisance in a residential kampung area?
Frequent heavy vehicle traffic, especially at night, causing dust, noise, and vibration beyond reasonable tolerance, constitutes nuisance even in a mixed area. (Para 26 , 27 , 38 , 39 , 40 , 41 , 42 )
8. What must a claimant prove for the tort of conspiracy?
Claimant must prove two or more persons agreed to act, acted pursuant to that agreement, and caused loss, with predominant purpose to harm or unlawful means. (Para 28 , 47 , 48 , 49 )
9. How should special damages for property damage be proved?
Quotations alone are insufficient; claimant must provide reliable invoices or evidence of reasonable cost of repair, excluding improvements. (Para 29 , 45 , 52 )
10. What is required to prove a counterclaim for lost contractual profits?
Claimant must prove actual profit lost, causation, reasonable foreseeability, and mitigation, with reliable accounting evidence not mere percentages. (Para 32 , 56 , 57 , 58 )
JUDGMENT
Introduction
[1] This case concerns a narrow gravel access road in Kampung Damai, Block D, Senalang, Semporna. It runs beside three houses erected by the plaintiff on a portion of Native Title No NT123034882 (the "Master Title"). The road later became the route used by the second and third defendants for heavy vehicles and machinery travelling to and from land at the rear. What began as tolerated access developed into a dispute over boundary, traffic, noise, dust, damage and obstruction.
[2] The plaintiff claims that the first defendant sold him a rectangular parcel measuring 50 feet by 200 feet, that the road was constructed within that parcel at his expense, and that the defendants thereafter trespassed upon it and subjected his houses and occupants to an actionable nuisance. He also alleges a conspiracy among the first, second and third defendants and seeks injunctive and monetary relief.
[3] The defendants acknowledge that, in 2002, 229/4915 undivided shares - representing approximately 10,000 square feet - were sold and registered for RM6,000.00. However, they deny that the road is part of the plaintiff's parcel. They assert that the access road either existed before the sale or was reserved to provide access to the rear lots. They further maintain that their use of the road was authorised and reasonable, and that the plaintiff unlawfully blocked the only practical access by constructing trenches, fencing, and a gate. The fourth defendant also counterclaims for contractual losses allegedly resulting from the obstruction.
Background Facts
The Land And The Parties' Arrangements
[4] The Master Title measures approximately 17.83 acres. In or about August 2000, the first defendant inherited or became registered for 4915/17830 undivided shares, equivalent to about 4.915 acres. On 6 February 2002, he transferred 229/4915 of his share to the plaintiff. The transfer was registered under Memorial No 12004444(03). The defendants expressly admitted that the bargain concerned a rectangular parcel of approximately 50 feet by 200 feet.
[5] The plaintiff divided the parcel informally into Lots 1, 2 and 3. Two permanent houses were completed on Lots 2 and 3 in 2012 and were later rented to tenants. Construction of the third house on Lot 1 began in 2023. No separate title has been issued for any of those lots, and no approved subdivision plan was produced. The plaintiff's registered interest therefore remains an undivided share in the Master Title.
[6] In practice, each party occupied a separate area. For many years, they treated the visible houses, fences, walls, and access routes as marking the boundaries of their respective areas. Abdul Hussin bin Madjakinal (PW5), who bought adjoining land from the first defendant, said that he and the plaintiff each contributed about five feet of land to create a shared lane. However, the plaintiff claimed that he built a 14-foot-wide gravel road entirely on his own land. The second defendant claimed that the road formed part of a long strip of land he had purchased to access the rear area.
The Two Survey Exercises
[7] The plaintiff hired Surgent Enterprise in May 2024. Its plan (P1) shows three house lots extending about 50 feet to the centre of the gravel road. As a result, only part of the road falls within the plaintiff's claimed parcel. Because no supporting documents were available, the proposed boundaries were based solely on the plaintiff's instructions. PW6, Yong Yuan Kang, admitted that he was not a licensed land surveyor, that P1 was not an approved cadastral plan, and that he surveyed only the area identified by the plaintiff.
[8] The second defendant separately wrote to the Assistant Collector of Land Revenue (ACLR) on 4 June 2024. The ACLR referred the matter to the Lands and Surveys Department by letter dated 5 June 2024 (P2). The documents included a statutory declaration dated 29 May 2024 made by the first defendant (P4) and an attached private allocation plan. The plain
