Abdul Malik Ishak J:

Introduction

[1] The plaintiff is essentially seeking in encl. one (1) a mandatory injunction requiring the defendant to remove from the plaintiff's land all permanent and/or temporary structures, be it in the form of ground anchors or otherwise, and a perpetual injunction to prevent the defendant and/or its agent from further encroaching and trespassing onto the plaintiff's land.

The Undisputed Facts

[2] From the relevant affidavits, the following objective and undisputed facts giving rise to the plaintiff's claim may be stated accordingly:

(a) that the plaintiff is the registered and beneficial owner of Lot 55482, Geran 50059 in the Mukim and District of Kuala Lumpur (hereinafter referred to as the "plaintiff's land") on which the plaintiff is undertaking the development of a residential project (see para 4 of the plaintiff's first affidavit in encl. 2);

(b) that the defendant is the owner of plots of land adjoining the plaintiff's land and the defendant is similarly undertaking the development of service apartments on the defendant's land (see para 5 of the plaintiff's first affidavit in encl. 2);

(c) that the defendant admits that in carrying out its development, the defendant had caused to be inserted ground anchors into the plaintiff's land without consent from the plaintiff thereby constituting an act of trespass (see para 7 of the plaintiff's first affidavit in encl. 2 read together with para 8 of the defendant's affidavit in reply in encl. 5); and

(d) despite numerous requests by the plaintiff, the defendant has to date failed and/or refused to remove the ground anchors (see paras 8-12 of the plaintiff's first affidavit in encl. 2).

The Plaintiff's Entitlement To The Reliefs Sought

[3] As the registered proprietor of Lot 55482, the plaintiff is statutorily entitled by virtue of s. 44(1)(a) of the National Land Code 1965 to the exclusive use and enjoyment of Lot 55482 including so much of the land below the surface. Without a doubt, the protection of such a right is beyond dispute. The plaintiff's land is the legal domain of the plaintiff and no one else. As the registered proprietor, the plaintiff stands in a better position than others. In Ng Yee Fong & Anor v. EW Talalla [1986] 1 MLJ 25, Mohamad Azmi SCJ delivering the judgment of the then Supreme Court aptly said at pp 25-26 of the report:

As a matter of law, it cannot be disputed that a proprietor who establishes a proprietary right is ex-debito justitiae entitled to an injunction unless it can be said against him that he has raised such an equity that it is no longer open to him to assert his legal or proprietary title. Further as stated at p 30 in Kerr on Injunctions (6th edition):

After the establishment of his legal right and of the fact of its violation, a plaintiff is in general entitled as of course to a perpetual injunction to prevent the recurrence of the wrong unless there be something special in the circumstances of the case, such as laches or where the interference with the plaintiff's right is trivial.

The onus is therefore on the appellants to establish that there is something special in the circumstances of the present case why the learned trial judge ought not to have granted the injunction in favour of the respondent.

[4] So, the onus squarely falls on the defendant to establish why the injunctive reliefs sought by the plaintiff ought not to be granted. The defendant advanced the following reasons:

4.1 the defendant's ground anchors are below the ground, and start from a depth of 10 metres (approximately more than 30 feet) - see the averment at para 9 of encl. 8;

4.2 the only building which is to be built on the plaintiff's land in the area where the ground anchors are would be a water tank pump house (see exh. "CS2" of encl. 5 and this has not been denied by the plaintiff);

4.3 to build the water tank pump house, the ground beams would only need to be at a depth of not more than two metres (approximately between 6 to