Cb Media Sdn Bhd v Kesas Sdn Bhd (B-02(NCVC)(W)-1495-08/2016)

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MEDIA SYNERGY PLUS SDN BHD … APPELLANTS AND KESAS SDN BHD … RESPONDENT (In Civil Suit No. 22NCVC-577-12/2014

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MEDIA SYNERGY PLUS SDN BHD … PLAINTIFFS And KESAS SDN BHD … DEFENDANT) CORAM ABDUL RAHMAN BIN SEBLI, JCA SURAYA BINTI OTHMAN, JCA STEPHEN CHUNG HIAN GUAN, JCA Page 2 of 14 JUDGMENT OF THE COURT Background facts [1] The 1st Appellant obtained an offer from the Kementerian Kerja Raya Malaysia (KKRM) via a letter dated 9.11.2011 to erect three unipole advertising structures including the unipole measuring 60’ x 40’ at KM 6.5, FT 190 Jalan Bukit Kemuning, Seksyen 33, from Kampung Baru-Hicom to Klang, Selangor. [2] By a letter dated 12.4.2012, the 1st Appellant obtained approval from KKRM to erect an advertising billboard at a federal road reserve at KM 6.5, FT 190 Jalan Bukit Kemuning, Seksyen 33, from Kampung Baru-Hicom to Klang, near to KM 6.5 Kesas Highway which was maintained by the Respondent as the highway concession holder. The 1st Appellant also obtained approval from Majlis Bandaraya Shah Alam (MBSA). The 2nd Appellant entered into an Outdoor Display Contract with Bandar Rimbayu Sdn Bhd in respect of this unipole advertising structure which was erected on or about 29.9.2013. [3] In the suit, the Appellants pleaded that on 7.7.2014 the Respondent had wrongfully and without permission taken down the billboard at the location. On 13.7.2014 the Appellants again erected the billboard at the same location which was taken down again by the Respondent on 14.7.2014. The Appellants pleaded that for the third time they re-erected the billboard at the same location on 29.9.2014 which was again taken down by the Respondent on the same day. The Appellants pleaded that the wrongful removal of the billboard had caused their client Bandar Rimbayu to terminate the agreement with the Appellants. The Appellants sued the Respondent for losses which Page 3 of 14 were set out in paragraphs 16 to 21 of their statement of claim. The 1st Appellant claimed a sum of RM1,260,540.59 and the 2nd Appellant RM2,825,950.00 and for injunctive reliefs. [4] The Respondent denied any knowledge of any approval given by KKRM for the unipole advertising structure at the location which the Respondent pleaded was erected illegally on federal road reserve land under its concession and that it had trespassed onto the Respondent’s property. [5] The Respondent filed a counterclaim against the Appellants for losses and damages suffered due to delay to the Respondent’s road widening and upgrading works caused by the obstruction of the unipole structure at a rate of RM30,000.00 per day until it was removed and for damages of RM371,000.00 to be paid to Gelumbang Jaya Sdn Bhd and costs of RM38,400.00 being costs for vinyl application. [6] After a full trial, the High Court dismissed the Appellants’ claims and allowed the counterclaim by the Respondent. This is the appeal by the Appellants against the decision of the High Court. The Appellants’ submission [7] The Appellants submitted that the learned High Court Judge had erred in dismissing the Appellants’ claims against the Respondent and erred in awarding damages for trespass of RM12,540,000.00 computed at RM30,000.00 per day from 10.12.2014 to 31.01.2016 (481 days) to the Respondent, a sum of RM371,000.00 to Gelumbang Jaya Sdn Bhd and RM38,400.00 being the purported cost incurred for vinyl removal. Page 4 of 14 [8] The Appellants submitted that they were acting pursuant to the directions and approval of KKRM and MBSA in constructing the unipole and advertisement billboard at the location which the High Court had entirely failed to appreciate. [9] The Appellants argued that the Respondent failed to demonstrate that it was the registered proprietor and/or an exclusive lawful occupier of the land and/or the location in respect of which the unipole and the advertisement structures were erected which the High Court again failed to appreciate. [10] It was submitted that the Respondent was not entitled to remove the unipole advertisement structure without the prior consent of the Appellants and that the Appellants should be given the opportunity to relocate the unipole advertising structure to a newly approved location. [11] The learned High Court Judge erred in law and in fact in holding that the 1st Appellant was liable to pay the sum of RM12,540,000.00 to the Respondent in the absence of evidence that the Respondent in fact suffered a total loss of RM12,540,000.00. [12] The learned High Court Judge erred in law and in fact in holding that the 1st Appellant was legally required to pay a sum of RM371,000.00 to Gelumbang Jaya Sdn Bhd who is not a party to the proceedings. It was submitted that no evidence had been elicited that Gelumbang Jaya Sdn Bhd had indeed suffered any loss let alone a loss of RM371,000.00 and therefore the learned High Court Judge fell into error in making the above awards against the Appellant in favour of Gelumbang Jaya without having Gelumbang Jaya appeared in court Page 5 of 14 to prove its case. In so doing, the principles of natural justice were not adhered to. The Respondent’s submission [13] The Respondent submitted that it was the concession holder having exclusive possession of the entire Kesas Highway/Lebuhraya Shah Alam. It was submitted that the Appellants had failed to produce any cogent evidence to prove that the unipole was erected at KM 6.5 and on the contrary, the Respondent had produced overwhelming evidence to prove that the unipole was erected at KM 31.6 Kesas Highway. Although Appellants obtained approval from authorities, such approval was only for erection of unipole at KM 6.5. The approval should not be used as a shield by the Appellants to justify their wrongful trespass to Respondent's territory at KM 31.6 Kesas Highway. [14] It was submitted that the Appellants had failed to challenge the Respondent's evidence which established that the Respondent had acquired exclusive right to possession to the land via the Concession Agreement with the Government of Malaysia. [15] The Respondent submitted that the Appellants had trespassed onto the Respondent's right of way along the Kesas Highway and clearly had intention to trespass and had interfered with Respondent's right of way by their intentional unlawful entry, wrongful erection of the unipole and subsequently when their unipole remained at KM 31.6 due to their failure to remove the same. It was submitted that it is trite law that a trespasser has no right in law or in equity and despite more than Page 6 of 14 sufficient notice given to the Appellants, they failed to reply to the Respondent's notice and had failed to remove the unipole. [16] The Appellants’ wrongful erection of the unipole had caused the Respondent to suffer losses and damages. Due to the obstruction caused by the unipole, the Respondent's road widening and upgrading works had suffered delayed which resulted in extra costs and penalties. It was submitted that SD-11 had testified that the delay resulted in costs of RM30,000.00 per day. The Respondent argued that it had to pay damages of RM371,000.00 to Gelumbang Jaya Sdn Bhd, which had the exclusive right to billboard advertising in LSA, for breach of contract. The Respondent had also incurred costs of RM38,400.00 for the removal of vinyl. [17] The Respondent submitted that there is nothing plainly wrong or perverse in the learned trial Judge's findings on both law and facts in this case and there is no compelling reason for the appellate court to resort to appellate intervention. The Court’s decision [18] In this appeal, it was the Appellants’ contention that the High Court fell into error by deciding the matter independent of pleadings, in the absence of evidence, independent of evidence actually led and independent of submissions actually made which required appellate intervention. It was submitted that the High Court failed to appreciate the fact that the unipole advertisement structure was rightfully erected by the Appellants at the approved location by KKRM and MBSA i.e. at KM 6.5, FT 190, Jalan Bukit Kemuning. This appeal centered on the finding of facts by the learned trial judge. Page 7 of 14 [19] It is settled law that the burden of proof rests throughout the trial on the party who asserts that the facts exist (s.101 of the Evidence Act 1950). Where a party on whom the burden of proof lay had discharged that burden, then the evidential burden shifted to the other party. But if the party on whom the burden of proof lay failed to discharge it, the other party need not call any evidence: Hong Yik Trading v Liziz Planatation Sdn Bhd [2017] 5 MLJ 398. [20] It was not in dispute that under section 85A of the Road Transport Act 1987 (RTA), KKRM had the jurisdiction to approve the construction of the unipole structure. Under section 22 of the Town and Planning Act 1976, MBSA had jurisdiction to approve the construction of the unipole structure at the approved location. It was also not in dispute that the Appellants were merely acting in compliance with the approvals granted by KKRM and MBSA in constructing the unipole structure and did not receive any notice under section 84 RTA to remove the structure. The question is, was the unipole advertising structure erected at the correct location? [21] In Lampiran ‘A’ to the letter of offer dated 9.11.2011 (exhibit P2), the 1st Appellant obtained an offer from KKRM to erect three unipole advertising structures on federal road reserve, including the unipole in this case measuring 60’ x 40’ at KM 6.5, FT 190 Jalan Bukit Kemuning, Seksyen 33, from Kampung Baru-Hicom to Klang, Selangor. By the letter dated 12.4.2012 (exhibit P3) the 1st Appellant obtained approval to erect the unipole advertising structure with “Lokasi Struktur Paparan: Seksyen 33/KM 6.5, FT190, Jalan Bukit Kemuning, Dari Kampung Baru Hicom Ke Klang, (Berdekatan KM 6.5 Lebuhraya Page 8 of 14 Kesas)”. Both letters were signed by PW2. The words inside the brackets that it was near to KM 6.5 Kesas Highway should serve as a guide or warning as to its exact location where to erect the structure. [22] Reading the above words inside the inverted comas, the location of the unipole structure to be erected was at KM 6.5 Jalan Bukit Kemuning and not at KM 6.5 Kesas Highway. The two locations were near to each other, by a difference of about 30 metres, as shown in a land survey plan (Plan No. JAM/SEL/2356/B3 at page 138 of Common Core Bundle of Documents [CCBD]) and in a photograph (page 398 CCBD), showing Kesas Highway running parallel to Jalan Bukit Kemuning with a road reserve in between. In his witness statement, SP2 testified that in approving the location of the structure at KM 6.5, FT 190, Jalan Bukit Kemuning, Shah Alam, he did not know that it was within the reserve land or right of way of Kesas Sdn Bhd. [23] PW1, the managing director of the Appellants, in Q&A4 of his witness statement, said that sometime in September 2013, the 1st Plaintiff has caused his Billboard structure together with the visual of Bandar Rimbayu (the said Visual) to be erected on the said location. In cross-examination, he said in applying for the location for the Billboard, “we will spot a location where to build… we will try to find out what are the landmark which is nearby the Billboard. And we will use this as the first initial reference. Subsequently, we will apply to the authority.” He said they applied for the location in Jalan Bukit Kemuning but it did not have any kilometer tag and the location was approved by the authority, KKRM and MBSA. He was asked before KKRM’s approval, based on his application, whether he did anything to verify the location and he answered he believed the authority was Page 9 of 14 the one responsible in doing this. Obviously the Appellants did not carry out any survey to verify the exact location. Instead they relied on the site plan provided by KKRM and MBSA (see Q&A17 and exhibits P13(a)-(c)). Although PW2 testified that based on his site visit that the structure was erected at KM 6.5 pursuant to the approvals of KKRM and MBSA, PW2 did not prepare the site plan and was not in a position to confirm the accuracy of the site plan or the location of the unipole advertising structure. The consultants who prepared the site plan were not called to testify as such. Any developer or contractor including the Appellants would have, and should have, carried out a survey to confirm its exact location before erecting the unipole advertising structure. [24] Although the Appellants submitted that they should be given the opportunity to relocate the unipole advertising structure to a newly approved location, as early as 27.9.2013, via a letter of same date, the Respondent warned the 1st Appellant that the Respondent was given a concession by the Federal Government to operate and manage the reserve land for Lebuhraya Shah Alam and that the 1st Appellant had illegally commenced to construct a structure for billboard advertisement at KM 31.6 Arah Barat Lebuhraya Shah Alam. By a letter dated 15.1.2014, Lembaga Lebuhraya Malaysia informed KKRM that the location of the unipole advertising structure being erected by the 1st Appellant at KM 31.6 was within the land reserve and right of way of the Respondent. Without taking steps to verify the situation and or the location, the Appellants continued to complete the construction of the structure which resulted in the Respondent taking down the billboard on 7.7.2014. Instead of carrying out a survey to verify the exact location, on 13.7.2014 the Appellants again erected Page 10 of 14 the billboard at the same location which again was taken down by the Respondent. It happened the third time. [25] Pursuant to a Concession Agreement dated 19.11.1993 between the Government of Malaysia and the Respondent, the Government granted exclusive right and license to the Respondent to enter and occupy the land in relation to the highway concession. The Respondent had carried out a survey for demarcation of the right of way near KM31.6-KM31.7 Lebuhraya Shah Alam (Kesas) including verification of unipole billboard encroachment (see exhibit D34). The survey showed that the unipole advertising structure was located at KM 31.67 Kesas Highway which had encroached onto Kesas Highway. [26] On evidence, the learned High Court Judge was correct in his finding that the Appellants erected the unipole advertising structure at the wrong location namely at KM 6.5 Kesas Highway, and not at KM

6.5, FT 190, Jalan Bukit Kemuning as applied and approved and had trespassed onto the land reserve of the Respondent. This is a finding of fact amply supported by the evidence in the Record of Appeal and we do not find any reason to disturb that finding. It is a settled principle of law that in an appeal, where facts have to be reviewed, it is undesirable that the findings of the court below should be disturbed by a court of appeal unless it appears that those findings are clearly wrong especially the trial judge has seen and heard the witnesses: see China Airlines Ltd v Maltran Air Corp Sdn Bhd [1996] 2 MLJ 517. We were unanimous that the Appellants had failed to prove their claims against the Respondent. We dismissed the appeal on the issue of liability and affirmed the High Court’s finding of liability. Page 11 of 14 [27] However, with regard to the issue of quantum, we were unanimous in our decision that the learned High Court Judge had erred in awarding the damages against the Appellants as prayed for. The Respondent had submitted that it had produced strong and cogent evidence to establish their counterclaim against the Appellants, particularly in respect of the trespass onto Kesas Highway. The Respondent contended that the Appellants’ wrongful erection of the unipole structure had obstructed and prevented the Respondent from carrying out its road widening and upgrading works at that location and caused delay to its works. The Respondent submitted that the delay resulted in prolongation costs and penalties at a rate of RM30,000.00 per day from 10.12.2014. [28] The Respondent did not specifically lead evidence on damages for the trespass. The Respondent also did not give a breakdown of this figure of RM30,000.00 or how it was derived in the Defence and Counterclaim. It is trite that a claimant claiming damages must prove that he has suffered the damage. The claimant has the burden of proving both the liability and quantum of damages before he can recover the sum claimed. It is not sufficient for the claimant to merely state the amount of damages, he must prove the damage that he had in fact suffered to the satisfaction of the court: Datuk Mohd Ali Hj Abdul Majid & Anor v Public Bank Bhd [2014] 6 CLJ 269. [29] In paragraph 16.a. of the Defence and Counterclaim, the Respondent claimed the aggregated sum of RM30,000.00 per day from 10.12.2014, i.e. from the date the contractor had to stop work because the 1st Appellant’s structure was still located at the site of the road widening works of Lebuhraya Shah Alam until the billboard was Page 12 of 14 removed from the location, for costs of piling works, pile embankment, reinforced earth wall, mobilization costs and insurance. These costs were not set out in the pleadings and the Respondent did not produce any documents such as invoices, bills or receipts to substantiate these costs or claims. [30] DW6 was asked about a claim for penalty of RM10,000.00 for each day of delay as notified by LLM. There was no explanation for this penalty or delay and he confirmed that no payment had been effected. He was also asked about idling machineries costs of RM15,000.00 per day and he confirmed this was not paid. These were estimates. DW5 from Budaya Restu had testified that the machineries could be moved and used at other sites and did not incur idling machineries costs. Reading exhibit D50, the Respondent was only entitled to carry out road widening works commencing 23.10.2014, and not from 10.12.2014. This was confirmed by DW6. Therefore the claim for delay at RM30,000.00 per day from 10.12.2014 could not be correct. DW4 and DW6 could not produce any record to show the alleged delay or the length or number of days of delay. [31] The Respondent had appointed Budaya Restu as its contractor to carry out the road widening works. In the event of delay in carrying out the works, Budaya Restu had to pay liquidated and ascertained damages (LAD) of RM5,066.95 per day to the Respondent. This figure was way below the sum of RM30,000.00 per day. In any event DW5 testified that the LAD was supposed to start by 2.3.2016 and there was no complaint and no claim for LAD by the Respondent. This would contradict the Respondent’s assertion that it had incurred loss as a Page 13 of 14 result of the delay at RM30,000.00 per day: see M Ratnavale v S Lourdenadin [1988] 2 MLJ 371. [32] On the next two items of its claims, the Respondent submitted that it had to pay Gelumbang Jaya a sum of RM371,000.00 for breach of contract which had the exclusive right to billboard advertising in Lebuhraya Shah Alam and that it incurred costs of RM38,400.00 for removal of vinyl. Firstly, the Respondent did not produce any invoices, bills or receipts that it had incurred or paid the sums of RM371,000.00 and RM38,400.00. Secondly, Gelumbang Jaya and the other unnamed party were not parties in this suit and did not claim against the Respondent or the Appellants for these sums. They were not called as witnesses to prove their claim as such. [33] Reading the Appeal Record, the Respondent has failed to prove specifically the damages prayed for in the Defence and Counterclaim. We set aside the High Court orders on special and general damages. We awarded a nominal sum of RM50,000.00 as damages for the trespass, which we considered to be fair and adequate, to be paid by the Appellants to the Respondent. The cost granted by the High Court in the sum of RM100,00.00 is affirmed, parties to bear their own costs in this appeal and deposit to be refunded. Dated: 04th March, 2019 signed STEPHEN CHUNG HIAN GUAN (delivering judgment of the court) Court of Appeal Judge Putrajaya Page 14 of 14 For Appellants : Rishwant Singh, Noor Muzalifah bte Shabudin Messrs. Cecil Abraham & Partners For Respondent : H Y Lee, Wong Huei Chin, Angus Tiong