Wan Suleiman SCJ

The appellant who was defendant in the High Court is a company incorporated in Malaysia under the Companies Act 1965 with registered office at No. 76, Jalan Lemon, Seremban, Negeri Sembilan and the respondent plaintiff (plaintiff in the court below) is a medical practitioner who carries on his practice at No. 26, Jalan Tuan Sheikh, Seremban. Both appellant and the respondent are the registered owners of adjoining landed properties in the township of Seremban. As a result of development works carried out on the appellant's land, the respondent on December 26, 1980 took out a writ against them claiming inter alia, damages and also prayed for an injunction. The appellant delivered a defence denying liability. The learned trial judge found the appellant liable for actionable nuisance and gave judgment in favour of the respondent.

It is common ground that the case against appellant is summed up in paragraph 8 of the Statement of Claim filed by the respondent/plaintiff which reads as follows:

"The indiscriminate excavation and removal of earth, stone and clay from the defendants' property without ensuring sufficient support for the adjoining properties and without taking