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2020 MarsdenLR 2007
COURT OF APPEAL PUTRAJAYA
BAYANGAN SEPADU SDN BHD – Appellant
Versus
JABATAN PENGAIRAN DAN SALIRAN NEGERI SELANGOR & ORS – Respondent
[Civil Appeal No: B-01(NCVC)(W)-328-05/2018]
The court affirmed the principle of indefeasibility of registered title under the National Land Code, emphasizing the importance of registration and buyer awareness regarding existing land conditions.
Headnote:(A) National Land Code 1965 – Sections 204, 340, 57 – Property law – Appeal against the dismissal of the plaintiff's claim regarding the ownership of land involved in a flood mitigation project – The court found that previous owners had validly surrendered part of the land for flood prevention to the State authority – The plaintiff was aware of the retention pond on the land at the time of purchase – The claim of trespass was dismissed and counterclaim for declaration of ownership and damages was not granted. (Paras 20, 40, 201)
(B) Trespass – Definition and burden of proof – Unlawful entry onto land in possession of another constitutes trespass – No trespass occurred as the defendants acted with the alleged consent of previous owners. (Paras 22, 36)
(C) Limitation and continuing trespass – The court held that the plaintiff's claim for trespass is not barred by limitation as it is deemed continuing. (Paras 160, 161)
Facts of the case: The plaintiff bought the land at a public auction and later discovered structures built for flood mitigation, leading to claims of trespass against the State and its officials. (Paras 3-4)
Findings of Court: No trespass was found as the previous owners had allegedly consented to the use of land for a retention pond, and the plaintiff's claim was dismissed. (Para 40)
Issues: The legality of the previous surrender of the land, the plaintiff's awareness of existing structures, and the validity of the trespass claim against state bodies. (Paras 13, 14)
Ratio Decidendi: The court concluded that the plaintiff's awareness and the legal presumption of the previous owners' consent negate the trespass claim, confirming the indefeasibility of the registered title under the National Land Code. (Paras 20, 22)
Result: The appeal was partially allowed; the plaintiff's ownership was affirmed, but the counterclaim was dismissed. Costs awarded. (Paras 204, 206)
[1] This appeal arose from the decision dated 27 April 2018 in respect of a piece of land described as Lot PT 18903, HS(M) 20109, Mukim Klang, Tempat Bukit Kemuning, Daerah Klang (the Land). We heard the oral submissions of the respective counsel for the parties and upon evaluating both the oral and written submissions as well as considering the learned Judicial Commissioner's (JC) Grounds of Judgment (GOJ), by majority, we found no merits in the appeal to warrant our intervention and dismissed the appeal with costs. We now give our full reasons for deciding so.
[2] For the purpose of this judgment, the parties will be referred to as they were in the High Court.
Material Facts
[3] We summarised the material facts as follows. In the High Court the Plaintiff had sought the following reliefs:
a) an injunction restraining the Defendants from trespassing;
b) an Order that the Defendants remove the fence and/or other structures and restore the Land to the condition in which it was before such fences and/or structures were erected or constructed;
c) an Order that the Defendants, jointly and/or severally, pay damages for trespass on the Land from 25 March 2011 or a date the Court deems fit to the date the Defendants cease trespass; and
d) interest and cost.
[4] The Defendants, on the other hand, had filed a counterclaim against the Plaintiff and had sought the following reliefs:-
a) a declaration that the Land belongs to the State of Selangor;
b) an order that the Defendants are entitled for damages and the Plaintiff to bear the construction cost of the Retention Pond;
c) exemplary damages; and
d) interest and cost.
[5] The Land which is in dispute was previously jointly owned by Newacres Sdn Bhd and Bumi-Murni Sdn Bhd (the Previous Owners). The Plaintiff had on 25 March 2011 purchased the Land by a public auction conducted by the Klang Land Office. The judicial sale was on the application of the chargee bank, CIMB Bank Berhad (CIMB). The Proclamation of Sale dated 25 March 2011 described the Land and provided salient particulars of the Land. The Plaintiff conducted a search, however, it is contended by the Plaintiff that the search did not show the existence of the Retention Pond and the Structures built on the Land neither did it indicate that the portion of the Land had been surrendered to the Defendants by the Previous Owners. The Plaintiff successfully bid for the Land in the public auction and purchased the Land for RM3.66 million. After the auction, the Plaintiff carried out another land search on 4 May 2011 which, according to the Plaintiff, indicated that the portion of the Land where the Retention Pond and the Structures were built was never surrendered to the Defendants.
[6] Sometime in July 2011, the Plaintiff engaged a licensed land surveyor to conduct a survey of the Land. The survey revealed that the Retention Pond were on the Land and that there were also other permanent structures on the Land; a Tenaga Nasional Bhd (TNB) substation, staff quarters, huts and storeroom (the Structures) surrounding the Retention Pond which form part of the Land, about 9.554 acres out of 17.49 acres. The Plaintiff confirmed that the certified plan of the Land with the Department of Survey and Mapping Malaysia shows that the Retention Pond is part of the Land and that the Defendants had fenced up and erected the structures next to the Retention Pond. The Plaintiff had written a letter dated 27 September 2013 to the 1st and 2nd Defendants requesting for information and documents to justify the Defendants' occupation of the Land.
[7] In response by a letter dated 25 October 2013 the 1st Defendant explained that they were in the process of collecting the relevant documents as well as information with regards to the project and the Retention Pond on the Land. The Plaintiff were informed that a meeting would be called to discuss the matter once the relevant documents/information were obtained. Subsequently, by a letter dated
