1. Alan Van Niekerk & 1 Lagi v 2. Tan Boon Ee & 1 Lagi (WA-12ANCVC-305-12/2018)

ALAN VAN NIEKERK

YUSTRIATI MD HASHIM (NRIC NO.: 720714-09-5036) …APPELLANTS / DEFENDANTS

TAN BOON EE

LEE YUPIN (NRIC NO.: 610910-10-5548) …RESPONDENTS / PLAINTIFFS Page 2 of 35 GROUNDS OF JUDGMENT (Appeal against the Sessions Court’s decision) A. INTRODUCTION [1] This is an appeal from the decision of the learned Sessions Court Judge given 7.12.2018 dismissing the First Appellant’s application to strike out the Respondents’ Statement of Claim (Enclosure 9)

2.1 For the sake of convenience, the parties hereinafter will be referred to as Plaintiffs and Defendants respectively as they were in the Sessions Court.

2.2 The First and Second Plaintiffs are a pair of husband and wife who are the registered owners of a property located in Damansara Heights addressed at 12, Lorong Batai Dalam, Damansara Heights (the said Property). At all material times, the Plaintiffs were residents of the said Property.

2.3 The First and Second Defendants (are the registered owners of a Premise (the said Premise) bearing an address of 14, Lorong Batai Dalam, Damansara Heights).

2.4 The Plaintiffs’ Property and the Defendants’ Premise share a common boundary at the south western side of the Plaintiffs’ Property.

2.5 In or around 2011, the Defendants engaged a contractor, ID Industries Sdn Bhd, to construct a cantilevered concrete wall (the Structure) along the common boundary of the Property and Premise.

2.6 Upon completion of the Structure, it was alleged by the Plaintiffs that the Structure had encroached into their Property. Subsequently on 19.11.2011, the Plaintiffs engaged and instructed a private surveyor, Juruukur Permata Malaysia to conduct a detailed survey of the Plaintiffs’ property. From the detailed survey conducted, the Plaintiffs discovered that the Structure constructed by the Defendants had encroached and/or trespassed the Plaintiffs’ Property by an area equivalent to 4m2.

2.7 Vide a letter dated 21.3.2013 issued by the Plaintiffs’ solicitors (Messrs. Rahmat Lim & Partners), the Plaintiffs demanded the Defendants to take immediate action to rectify the alleged encroachment.

2.8 In response to the letter of demand, vide an email dated 10.4.2012 the Defendants had informed the Plaintiffs’ solicitors that they will refer the issue of the encroachment to their contractor and their solicitors.

2.9 To date, the Defendants had not taken any steps to rectify the encroachment.

2.10 Six years since discovery of the alleged encroachment and the communications via the letter of demand and email, the Plaintiffs for the second time issued a letter of demand dated 7.6.2018 to again demand the Defendants to take steps to rectify the alleged encroachment.

2.11 The Defendants however failed and/or refused and/or neglected to rectify or remove the Structure from the Plaintiffs’ Property.

2.12 The Plaintiffs subsequently initiated this action in the Sessions Court. With reference to paragraph 15 the Statement of Claim, the Plaintiffs sought for the following reliefs:- i. a declaration that the Defendants are not entitled to erect and/or construct the Structure or any other structures over any part of the Plaintiffs’ Property; Page 6 of 35 ii. an order requiring the Defendants to remove the Structure from the Plaintiff’s Premises within 21 days from date of this Judgment; iii. alternatively, damages in lieu of the above orders; iv. general damages to be assessed and paid to the Plaintiff;

2.13 The Plaintiffs’ claim was vigorously challenged by the First Defendant. In the Statement of Defence, the First Defendant contended the following:- i. the First Defendant pleaded that the Structure was erected within the boundary of their Premise; ii. at all material times the survey conducted by Juruukur Permata Malaysia (the Plaintiffs’ surveyor) was done before the issuance of the Final Title of both the Property and the Premise. Therefore the First Defendant challenges the result of the survey conducted by the Plaintiffs surveyor (Juruukur Permata Malaysia) by Page 7 of 35 pleading the surveyor the First Defendant had engaged in 2012 (Juruukur Perunding Services Sdn Bhd) to carry out survey works on both the Property and the Premise resulted in a different finding in respect of the common boundary between the Property and the Premise. This is set out in paragraphs 5, 6, 7 and 8 of the First Defendant’s Statement of Defence; iii. the Plaintiffs’ action is time barred pursuant to the Limitation Act 1953. C. THE STRIKING OUT APPLICATION FILED BY THE FIRST DEFENDANT [3] On 30.10.2018, the First Defendant filed a notice of application in the Sessions Court (Enclosure 9) to strike out the Plaintiffs’ Writ and Statement of Claim pursuant to Order 18 rule 19 (1)(a) of the Rules Of Court 2012 (ROC 2012) on the ground that there is no reasonable cause of action against them. Page 8 of 35 D. THE DECISION OF THE SESSIONS COURT [4] The Sessions Court on 7.9.2018 in dismissing the First Defendant’s application held as follows:- i. the crux of the Plaintiffs’ claim against the Defendants is for the recovery of land which they alleged has been encroached and/or trespassed by the Defendants. Therefore, the limitation period of the Plaintiffs’ claim falls under section 9(1) of the Limitation Act 1953 (the Act), which provides twelve (12) years from the date on which the cause of action accrued. The Plaintiffs’ Writ and Statement of claim which was filed in 2018, is therefore well within the limitation period. ii. as the Defendants have failed to remove the Structure, the Sessions Court determined that the encroachment and/or trespass are continuing. Hence it was held that the Plaintiffs’ claim is not time barred. Page 9 of 35 [5] Enclosure 9 was ultimately dismissed by the Sessions Court Judge on 7.12.2018, with the First Defendant ordered to pay costs of RM1,000.00 to the Plaintiffs. E. THE APPEAL BEFORE THIS COURT [6] Dissatisfied, the First Defendant filed an appeal against the decision of the Sessions Court. Based on the submission filed by counsel of the First Defendant/Appellant, it is clear that the appeal is premised on the following:- i. that the Sessions Court had erred in finding that the Plaintiffs/Respondents’ Statement of Claim (SOC) is a claim for recovery of land. Instead the First Defendant/Appellant contends that the pleaded case in the SOC is limited to a tort of trespass; ii. that the Sessions Court had erred in determining that Section 9(1) of the Limitation Act is applicable. In contrast, the First Page 10 of 35 Defendant/Appellant contends that the appropriate law to be applied in a claim under tort of trespass is Section 6(1) of the Limitation Act, and therefore the Plaintiffs/Respondents’ claim are time-barred; iii. that the Sessions Court had erred in holding that there exists a ‘continuing trespass’ on the Property. The First Defendant/Appellant submits that as a claim for ‘recovery of land’ was not pleaded in the SOC, Section 9 of the Limitation Act and Section 341 of the National Land Code cannot be applied to the facts of the case, thus there is no ‘continuing trespass’ [7] Naturally, the Plaintiffs/Respondents counter as follows:- i. that their claim is indeed for the recovery of land allegedly encroached by the Structure erected by the First Defendant/Appellant; Page 11 of 35 ii. that Section 9(1) of the Limitation Act was correctly applied to the circumstances of the suit; iii. there exists a ‘continuing trespass’ of the First Defendant/Appellant’s Structure on the 4m2 of the Property. F. DIRECTIONS FOR CLARIFICATION [8] Prior to coming to a decision in respect of the appeal, this Court had directed parties, specifically the Plaintiffs/Respondents counsel, to provide further clarification in respect of the exact claim of their clients. It was brought to the attention of the Court that the Plaintiffs/Respondents maintain that the crux of the claim is for the ‘recovery of land’, and not for the tort of trespass. [9] As such, this Court is bound by the stand taken and submitted by the parties. Page 12 of 35 G. THE LAW ON ORDER 18 RULE 19 OF THE ROC 2012 [10] The principle of law in respect of a striking out application filed pursuant to Order 18 rule 19 of the ROC 2012 is trite and well settled. [11] Order 18 Rule 19 of the ROC 2012 provides as follows:- “Striking out pleadings and endorsements (O. 18 r. 19)

20.

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that:

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court, Page 13 of 35 and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

No evidence shall be admissible on an application under subparagraph (1)(a).

This rule shall, as far as applicable, apply to an originating summons as if it were a pleading.”. [12] Order 18 rule 19 of the ROC 2012 confers the Court a discretionary power to strike out any action on grounds set out under rule 19 (1)

(a), (b), (c) and (d) at any stage of the proceedings. However such discretionary power must be exercised judiciously and in accordance with the established legal principles. [13] In the case of Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7, the legal principles of the court's discretionary powers under Order 18 Rule 19 have been explained eloquently by Mohamed Dzaiddin HMA (as he was then) as follows: Page 14 of 35 “It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley MR in Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd), and this summary procedure can only be adopted when it clearly seen that a claim or answer is on the face of it “obviously unsustainable” (see AG of Duchy of Lancaster v L & NWRly & Co). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (see Wenlock v Moloney & Ors). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under Order 33 r 3 (which is in pari material with our Order 33 r 2 of the RHC) (see Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd). The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable.”. [14] Vincent Ng H (as he then was) in the case of Suppuletchemi v Palmco Bina Sdn Bhd [1994] 2 AMR 1191, at page 1205 of his judgment stated that: “But in an application under Order 18 r 19 or Order 14, it is still incumbent upon the court to determine whether issues could more Page 15 of 35 appropriately have been decided, without the expence of a full trial with a witnesses and expenditure of the court’s invaluable time. No party in a proceeding is entitled to require the court to accord them valuable time of several days open court viva voce trial only upon mere or bare assertions in their affidavits. The crucial question the court would have to ask itself in applications under Order 14 or Order 18 r 19(1)-(d) is first, whether the piece or pieces of evidence essential to make out the reasonable prima facie cause of action or a prima facie triable issue of fact are of the nature such that they are adduceable by affidavit evidence; and secondly – if the answer to this question is in the positive – whether such essential prima facie evidence had been so adduced in the supporting affidavits. Such affidavits ought not to contain bare averments but must condescend or come definitely into particulars fro serious argument such that they are sufficient to satisfy the court that there is a reasonable prima facie cause of action or triable issue or issue of fact or law in the defence as the case may be. …the court must and ought to look at the whole situation and ask itself whether the plaintiff (in an application to strike off a claim) has satisfied the court that he has a bona fide or prima facie cause of action,…”. Page 16 of 35 [15] In the case of Mooney & Ors v Peat Marwick Mitchell & Co & Anor [1967] 1 MLJ 87 Raja Azlan Shah J (His Royal Highness as he then was) at page 88 stated as follows: “It is firmly established that the power exercisable under r. 4 “is only appropriate in cases which are plain and obvious so that a judge can say at once that a statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to the relief of which he ask for”: See the judgment of Lindley MR in Hubbuck & Sons v Wilkinsons Heywood & Clark Ltd. Where the situation arises, the pleadings and particulars alone shall be considered and all the allegations in it shall be presumed to be true, and it is only on that assumption that any statable case can be made for this application: see Peck v Russell. The court cannot and indeed is not empowered to look behind the pleadings and particulars if it discloses a reasonable cause of action. So long as the statement of claim discloses some ground of action, the mere fact that the plaintiff is not likely to succeed on it at trial is no ground for it to be struck out: (see Boaler v Holder) A recent exposition of the law is afforded by the judgment of Danckwerts LJ in Wenlock v Moloney: “Under the rule (ie. O. 25 r. 4) it had to appear on the face of the plaintiff’s pleadings that the action could not succeed or Page 17 of 35 was objectionable for some other reason. Not evidence could be filed… But, as the procedure was of a summary nature the party was not to be deprived of his right to have his case tried by a proper trial unless the matter was clear.’’ After stating that the former rules are now incorporated in the revised Rules of the Supreme Court, O. 18 r. 19, he continues: “But this summary jurisdiction of the court was never intended to be exercised by a minute and protracted examination of the documents and facts of the case in order to see whether the plaintiff really has a cause of action. To do that is to usurp the position of the trial judge.” …” [16] In Sivakumar a/l Varatharaju Naidu v. Ganesan a/l Retanam [2010] 9 CLJ 825; [2011] 6 MLJ 70, Abdul Malik Ishak JCA held: “The summary procedure under order 18 rule 19 should only be resorted when it is conspicuously clear that the Plaintiff's claim, on the face of it is obviously unsustainable. The court will always strike out a claim in plain and obvious cases and where the claim is obviously unsustainable: The power to srike out must be exercised by the Court sparingly. It is a rule of thumb that if it can be shown that the pleadings do disclose some cause of action or that it has Page 18 of 35 raised some question fit to be decided, then the case should be set down for argument notwithstanding that the chances of success are minimal. The pleadings must be entirely hopeless, baseless or without foundation in law or in equity before they can be struck out....”. (emphasis added) H. THE PLAINTIFFS/RESPONDENTS’S CLAIM – TORT OF TRESPASS OR RECOVERY OF LAND? [17] It is pertinent to note that in seeking to strike out the Plaintiffs/Respondents’ Writ and Statement of Claim, the First Defendant/Appellant relied solely on Order 18 rule 19(1)(a) of the ROC 2012, specifically that the Plaintiffs/Respondents’ claim discloses no reasonable cause of action against them. [18] The First Defendant/Appellant counsel submits that the Sessions Court erred when it held that the Respondents’ claim is for recovery of land. It was submitted by the First Defendant/Appellant Counsel that upon perusing the Plaintiffs/Respondents Statement of Claim (SOC), the Plaintiffs pleaded claim is purely founded on trespass. Page 19 of 35 [19] On the other hand, counsel for the Plaintiffs/Respondents argued that the Plaintiffs/Respondents are seeking to recover the portion of their land which has been encroached by the Structure erected by the Defendants/Appellants. In essence, the Plaintiffs/Respondents are claiming for recovery of possession of their land of which they claim they are entitled to. The Plaintiffs/Respondents exercised reliance on the provision of section 341 of the National Land Code 1965 (NLC). [20] Section 341 of the NLC reads as follows:

Adverse possession not to extinguish titles or interest Adverse possession of land for any length of time whatsoever shall not constitute a bar to the bringing of any action for the recovery thereof by the proprietor or any person or body entitled to an interest therein, and accordingly, the Limitation Act 1953 [Act 254], shall in no circumstances operate to extinguish any title to, or interest in, land. Page 20 of 35 [21] To ascertain the prayers and/or claim pleaded by the Plaintiffs/Respondents, this Court must now first refer to the Plaintiffs/Respondents Statement of Claim. It therefore is necessary to set out the whole pleaded case of the Plaintiffs/Respondents in their Statement of Claim:- [1] The 1st and 2nd Plaintiffs are the registered owners of a double storey property at 12, Lorong Batai Dalam, Damansara Heights, 50490 Kuala Lumpur, with the freehold Lot No.: 1377, Lorong Batai Dalam, Mukim Kuala Lumpur, Wilayah Persekutuan (Plaintiffs’ Premises). The 1st and 2nd Plaintiffs occupy the Plaintiffs’ Premises for the purposes of a dwelling house. [2] The Defendants are the registered owners of a 3 storey detached house at 14, Lorong Batai Dalam, Damansara Heights, 50490 Kuala Lumpur, with the Freehold Lot No.: 1376, Lorong Batai Dalam, Mukim Kuala Lumpur, Wilayah Persekutuan (Defendants’ Premises). [3] In this regard, the Plaintiffs’ Premises and the Defendants’ Premises shares a common boundary at the south-western side of the Plaintiffs’ Premises. Page 21 of 35 [4] It had come to the Plaintiffs’ attention and knowledge that in or around 2011, the Defendants had engaged ID Industries Sdn Bhd of A-G-06, Block Allamanda 10 Boulevard, Lebuhraya Sprint, PJU 6A Petaling Jaya, Malaysia (ID Industries), to construct and/or erect a cantilevered concrete wall along the common boundary between the Plaintiffs’ Premises and the Defendants’ Premises (Structure). [5] In this regard, the said Structure supports a swimming pool located within the Defendants’ Premises, along the common boundary between the Plaintiffs’ Premises and the Defendants’ Premises. [6] On or around 19.11.2011, the Plaintiffs have engaged and instructed a private surveyor, Juruukur Permata Malaysia to conduct a detailed survey of the Plaintiffs’ Premises, and had thereafter discovered that an area of 4m² forming part of the Plaintiffs’ Premises has been encroached and/trespassed by the Defendants by virtue of the said Structure. [7] By way of letter of demand dated 21.3.2012, vide the Plaintiffs’ solicitors, Messrs. Rahmat Lim & Partners, the Plaintiffs had demanded that the Defendants do take immediate steps to rectify the encroachment and/or trespass caused by the Structure against the Page 22 of 35 Plaintiffs’ Premises and to propose to the Plaintiffs further steps that would need to be taken in respect of the rectification works. [8] By way of an e-mail dated 10.4.2012, the 1st Defendant had informed the Plaintiffs’ solicitors that the Defendants had purportedly referred the issue to ID Builders and the Defendants’ solicitors. [9] On 8.6.2012, the 1st Defendant had further informed the Plaintiffs’ solicitors that the Defendants will address the issue concerning the encroachment and/or trespass by the Defendants’ Structure into the Plaintiffs’ Premises. [10] In this regard, the Plaintiffs state that at all material times, the Defendants have never disputed that the Defendants were in fact encroaching and/or trespassing into the Plaintiff’s Premises. [11] Despite the said e-mail dated 10.4.2012, the Defendants have failed, refused and/or neglected to take any steps to rectify the encroachment and/or trespass by the Defendants into the Plaintiff’s Premises. The Plaintiffs were also not given any response and/or Page 23 of 35 proposal from ID Builders and/or the Defendants’ solicitors in this respect. [12] Pursuant thereto, by way of a second letter of demand dated 7.6.2018, the Plaintiff had issued a further demand for the Defendants to take immediate steps to rectify the encroachment and/or trespass into the Plaintiffs’ Premises by the Defendants’ Structure. [13] However, to-date, the Defendants had refused, failed and/or neglected to rectify and/or remove the Structure from the Plaintiffs’ Premises, and thereby continues to encroach and/or trespass into the Plaintiffs’ Premises. The Defendants have also refused, failed and/or neglected to respond to the Plaintiff’s Solicitors’ demand letter dated 7.6.2018. [14] As a result of the matters set out above, the Plaintiffs state that the Plaintiffs have suffered loss and damage as a result of the encroachment and/or trespass by the Defendants caused by the Defendants’ Structure in the Plaintiffs’ Premises. [15] As such, the Plaintiffs claim from the Defendants:

15.1 a declaration that the Defendants are not entitled to erect and/or construct the Structure or any other structures over any part of the Plaintiffs’ Premises;

15.2 an order requiring the Defendants to remove the Structure from the Plaintiffs’ Premises within 21 days from the date of this Judgment;

15.3 alternatively, damages in lieu of the order stated in paragraph 15.2 above;

15.4 general damages to be assessed and paid to the Plaintiffs;

15.5 pre-judgment interest at the rate of 8% per annum from the date of filing this claim until the date of judgment of the damages awarded by this Honourable Court pursuant to

15.6 post-judgment interest at the rate of 5% per annum on the damages awarded by this Honourable Court from the date of judgment until full and final settlement;

15.7 cost; and 15.8 any other orders or further relief as this Honourable Court deems fit and proper. Page 25 of 35 [22] Upon reading and considering the pleaded case filed by the Plaintiffs/Respondents in paragraph 14 of the Statement of Claim, this Court is in agreement with the First Defendant/Appellants counsel that the Plaintiffs/Respondents’ action against the First Defendant/Appellants is purely premised on the tort of encroachment and/or trespass. This Court elaborates as follows: i. nowhere it is specifically pleaded in the Statement Of Claim that the Plaintiffs/Respondents’ is seeking for the recovery of land which was alleged to have been encroached / trespassed by the First Defendant/Appellant pursuant to the construction of the Structure; iii. the Plaintiffs/Respondents’ action was founded on trespass is also evidenced by paragraphs 15.1 and 15.2 of their Statement of Claim which are as follows:

15.1 a declaration that the Defendants are not entitled to erect and/or construct the Structure or any other structures over any part of the Plaintiffs’ Premises;

15.2 an order requiring the Defendants to remove the Structure from the Plaintiffs’ Premises within 21 days from the date of this Judgment [23] This Court is of the considered view that the four reliefs sought by the Plaintiffs/Respondents in paragraph 15 of their Statement of Claim are reliefs relating to an action under the tort of trespass and its consequential effect thereof, and hereby determines that the SOC filed by the Plaintiffs/Respondents is not a claim for ‘recovery of land’. I. WHETHER THE PLAINTIFFS/RESPONDENTS’ CLAIM IS TIME-BARRED UNDER THE LIMITATION ACT? [24] It is be observed that the First Defendant/Appellant’s application to strike out the Plaintiffs/Respondents’ action filed in the Sessions Court hinges upon the contention that the Plaintiffs’ claim is time barred, with limitation is alleged to have lapsed on 7.6.2018. [25] In gist, the First Defendant/Appellant having submitted that the SOC is in totality an action under the tort of trespass, further submits that Page 27 of 35 the limitation period for the Plaintiffs/Respondents to file their action against the First Defendant/Appellant is six years as prescribed under section 6 (1) of the Act. [26] The counsel for the First Defendant/Appellants further submitted that the Plaintiffs/Respondents had full knowledge regarding the construction of the Structure since 2011 and the first letter of demand alleging the said encroachment and/or trespass was sent to the First Defendant/Appellant in March 2012, namely after the survey conducted by Juruukur Permata Malaysia was completed. [27] The Writ and Statement of Claim was only filed on 14 August 2018. Therefore, according to the First Defendant/Appellant the action filed by the First Defendant/Appellant had clearly exceeded the limitation period provided under section 6(1) of the Act. [28] The counsel for the Plaintiffs/Respondents however submitted that the core of the Plaintiffs/Respondents had sought to recover possession of the 4m2 of land they allege that they are entitled to, the Plaintiffs/Respondents therefore took the position that neither Page 28 of 35 sections 6(1) and 9(1) of the Limitation Act are applicable in respect of the Plaintiffs/Respondents action. [29] Additionally, counsel for the Plaintiffs/Respondents submits that the provisions of the Limitation Act do not operate to bar any part of the Plaintiffs/Respondents claim by applying the provision of Section 341 of the National Land Code to the facts of this appeal. [30] In the current circumstances, this Court is of the view that the of the Plaintiffs/Respondents arguments in respect of Section 341 of the NLC for recovery of adverse possession of the disputed 4m2 area cannot be sustained. Based on this Court’s earlier finding that the Plaintiffs/Respondents’ claim is one that falls under the tort of trespass, this Court hereby agrees with the submission of counsel for the First Defendant/Appellant that Section 6(1) of the Limitation Act should be appropriately applied. [31] This Court hereby finds that the Plaintiffs/Respondents’ action for encroachment or trespass was filed clearly outside the permitted time of six (6) years. Page 29 of 35 J. THE ISSUE OF ‘CONTINUING TRESPASS’ [32] This Court finds it very peculiar for both parties to the appeal to raise issue in respect of an alleged ‘continuing trespass’. It is without a doubt that to date, the Structure continues to stand within the 4m2 boundary of land, whose ownership is in limbo and is disputed by both parties. [33] At all material times the First Defendant/Appellant had strongly refutes the Plaintiffs/Respondents’ allegation of encroachment and/or trespass. The First Defendant/Appellant pleaded that the Structure was erected within the boundary of their Premise. [34] The First Defendant/Appellant further challenges the result of the survey conducted by the Plaintiffs/Respondents’ surveyor (Juruukur Permata Malaysia). It was pleaded by the First Defendant/Appellant that the surveyor they had engaged in 2012 (Juruukur Perunding Services Sdn Bhd) to carry out survey works on both the Property and the Premise had resulted in a different finding in respect of the Page 30 of 35 common boundary which – this is set out in paragraphs 5, 6, 7 and 8 of the First Defendant/Appellants’ Statement of Defence. [35] There exists a crystal clear dispute between both parties as to who is the rightful owner of the contended area of land, on which the Structure was built. [36] It is this Court’s finding that the Plaintiffs/Respondents SOC did not specifically plead any claim for an alleged ‘continuing trespass’. Additionally, the Court has not made any finding in respect of who is the ‘true owner’ of the disputed area of land measuring 4m2 that spawned this litigation. At best, this Court finds that the Plaintiffs/Respondents claim for ‘continuing trespass’ is premature until ownership of the disputed area is determined. K. OBITER DICTA: THE PROPER FORUM / JURISDICTION [37] This Court disagrees with the contention of the Plaintiffs/Respondents that the Sessions Court has jurisdiction to hear their claim by virtue of Sections 70 (1) and 71 of the Subordinates Court Act 1948 (SCA). Page 31 of 35 [38] And it must be borne in mind that the jurisdiction vested to the Sessions Court under Sections 70 (1) and 71 of the SCA are for the recovery of possession of immoveable properties where the ownership of the property is not an issue or not disputed. [39] It is trite law when the ownership of an immovable property is disputed by parties to an action, the jurisdiction of the ensuing suit is with the High Court. It is also trite law that in an action to recover possession of land, the right of action accrues when there was an infringement of such right or at least when there is clear unequivocal threat to infringe that right by a party against whom the action is instituted. [40] Section 23 of the Courts of Judicature Act 1964 (CJA) provides as follows: Civil jurisdiction – general 23.

Subject to the limitations contained in Article 128 of the Constitution the High Court shall have jurisdiction to try all civil proceedings where – Page 32 of 35

the cause of action arose;

the defendant or one of several defendants resides or has his place of business;

the facts on which the proceedings are based exist or are alleged to have occurred; and

any land the ownership of which is disputed is situated. within the local jurisdiction of the Court and notwithstanding anything contained in this section in this case where all parties consent in writing within the local jurisdiction of the other High Court.

Without prejudice to the generality of subsection (1), the High Court shall have such jurisdiction as was vested in it immediately prior to Malaysia Day and such other jurisdiction as may be vested in it by any written law in force within its local jurisdiction. (Emphasis added) [41] Based on the findings of this Court, the Sessions Court had partly fallen into error. The Sessions Court was correct when it held that in any claim for recovery of land, the limitation period of twelve (12) years as prescribed under Section 9(1) of the Limitation Action is applicable. But, this Court further finds that any action recovery land where ownership of the land is in dispute, the Sessions Court would Page 33 of 35 have no jurisdiction to hear such action to begin with. Such a dispute is within the exclusive jurisdiction of the High Court. [42] The Court had made clear of its position when counsel for both parties attended the hearing of the appeal. It was intimated to the Plaintiffs/Respondents counsel that they would be still within the limitation period if to file an action to recover the disputed 4m2 of land in the High Court. However, the counsel for the Respondents insisted that this Court should proceed to decide the merit of the Appellant’ appeal. [43] Therefore this Court has no alternative to make a finding that following the Plaintiffs/Respondents’ choice to file this action in the Sessions Court, and therefore the cause of action within the jurisdiction of the Sessions Court is limited to tort of trespass or encroachment. Page 34 of 35 L. CONCLUSION [44] Ultimate this Court’s findings are as follows:- i. a thorough read of the SOC reveals that the Plaintiffs/Respondents claim falls under the tort of trespass, and not a claim for recovery of land; iv. subsequently, this Court agrees with the First Defendant/Appellant’s submission that Section 6(1) of the Limitation Act is to be applied. Therefore it is held that this suit is time barred as it was filed after the lapse of time on 7.6.2018; v. there is no ‘continuing trespass’ as the ownership of the disputed 4m2 area of land has not been determined, and any claim for damages is premature until and unless this issue is decided. [45] This Court hereby orders that the Appellants’ appeal is allowed with costs of RM2000.00 to the Appellants (subject to allocatur). Page 35 of 35 ………………………………………………………………………. (AZIMAH BINTI OMAR) Judge High Court of Kuala Lumpur 15 July 2019 For the Respondents - Messrs. Rahmat Lim & Partnership Daphne Koo For the Appellants - Messrs. Mohd Irwan Mohd Mubarak Hussin Bin Mohd Razak