1. Chai Yon Len v 1. Kamarul Jaman Bin Mydin (BA-12B-195-12/2017)

1.

GUARDIAN OF CHINESE TEMPLE (In Lot 168, Jalan Indah 14, Kampung Selayang Indah 68100 Batu Caves, Selangor) … APPELLANTS

KAMARUL JAMAN BIN MYDIN (NRIC No.: 490823-07-5519)

MOHAMAD AZAM BIN MOHAMAD ISA (NRIC No.: 750524-14-5187) … RESPONDENTS JUDGMENT (appeal to High Court against Sessions Court’s decision after trial)

I will refer to the parties in this case as they are in the Sessions Court

The first defendant (1st Defendant) occupies Lot 168, Jalan Indah 14, Kampung Selayang Indah, 68100 Batu Caves, Selangor (1st Defendant’s Premises). 2

The 1st Defendant’s Premises was used as a Chinese temple and a place for spiritual healing by a religious society named “Pertubuhan Penganut Dewa Yu Feng Zhi Fu Cai Bo Xing Jun” (Religious Society).

The first plaintiff (1st Plaintiff) is the registered proprietor of Lot 167, Jalan Indah 14, Kampung Selayang Indah, 68100 Batu Caves, Selangor (1st Plaintiff’s Premises) while the second plaintiff (2nd Plaintiff) is a tenant of Lot 171, Jalan Indah 14, Kampung Selayang Indah, 68100 Batu Caves, Selangor (2nd Plaintiff’s Premises).

The 1st and 2nd Plaintiffs (collectively referred to as the “Plaintiffs”) are the neighbours of the 1st Defendant.

The Plaintiffs have filed this suit in SC (This Suit) against the 1st Defendant and the second defendant (2nd Defendant). The 2nd Defendant has been described in the Plaintiffs’ Statement of Claim (SOC) as the “Guardian of Chinese Temple” (Penjaga Tokong Cina).

The SOC has pleaded that a tort of private nuisance has been committed against the Plaintiffs by the 1st and 2nd Defendants (collectively referred to as the “Defendants”) when the Defendants have used the 1st Defendant’s Premises as a place of worship and to heal those who are terminally ill (Healing Activities).

The Defendants resisted This Suit on the following grounds:

the Defendants have a fundamental right to practise their religion as enshrined in Article 11(1) of the Federal Constitution (FC); and 3

the Defendants have not committed a tort of private nuisance in the 1st Defendant’s Premises against the Plaintiffs because -

after the filing of This Suit, the Defendants have stopped using the 1st Defendant’s Premises as a temple and Healing

except for the Plaintiffs, the other neighbours of the 1st Defendant have not complained or filed any suit which has alleged the Defendants have committed a tort of private nuisance on the 1st Defendant’s Premises;

the Impugned Activities had not caused any physical loss or damage to the Plaintiffs and their premises (Plaintiffs’

before the filing of This Suit, the Impugned Activities were only conducted on certain days on the 1st Defendant’s Premises. Consequently, even if it was assumed that the Impugned Activities had caused some loss or damage to the Plaintiffs, there was no “continuous” loss or damage to the Plaintiffs;

there has been an inordinate delay in the filing of This Suit by the Plaintiffs. As such, the Plaintiffs are not entitled to the equitable remedies of mandatory and restraining injunctions against the Defendants; and

as the local authority responsible in this case, “Majlis Perbandaran Selayang” (MPS), has already demolished the zinc hoarders and furnace (used for the purpose of worship) in 4 the 1st Defendant’s Premises (MPS’s Demolition), there is no necessity for the court to order a mandatory injunction to demolish the same.

After a trial, the learned Sessions Court Judge (SCJ) allowed This Suit and decided as follows, among others (SC’s Decision):

a declaration is granted that the Defendants have unlawfully used the 1st Defendant’s Premises as a temple (Declaration);

an injunction is granted to restrain the Defendants from using the 1st Defendant’s Premises as a temple;

an order for the Defendants to demolish a large censer (a place for joss sticks to burn) in the 1st Defendant’s Premises; and

costs in a sum of RM30,000.00 shall be paid by the Defendants to the Plaintiffs. C. This appeal

The Defendants have appealed to this court against SC’s Decision (This Appeal).

When This Appeal was first heard by me, I posed a question to all learned counsel (Court’s Question). The Court’s Question is whether the 2nd Defendant is a legal entity against whom This Suit can be filed. I then gave all learned counsel a right to file supplemental written submission regarding the Court’s Question. The parties were also given a right to submit orally on the Court’s Question. I have taken this course of action because all the parties in This Appeal have a right under the 5 second rule of natural justice to be heard before this court decides on the Court’s Question which has not been raised by the parties - please see Tan Kang Hai v Slimming Sanctuary Sdn Bhd [2016] 5 MLRH 651, at [11(2)]. D. Issues

In addition to the Court’s Question, This Appeal raises the following issues:

whether the Defendants’ constitutional right to profess and practise their religion under Article 11(1) FC has been contravened in this case;

is the Religious Society’s constitutional right to administer property under Article 11(3)(c) FC subject to the tort of private nuisance?;

whether the Impugned Activities constitute a tort of private nuisance. In this regard -

should This Appeal be allowed on the ground that the neighbours of the 1st Defendant (other than the Plaintiffs) had not complained regarding the Impugned Activities?;

whether the 1st Defendant’s cessation of the Impugned Activities is a defence against This Suit?;

does a single act of interference with the Plaintiffs’ enjoyment of the Plaintiffs’ Premises amount to a tort of private nuisance?; and 6

are the Plaintiffs required to prove actual physical damage or loss to the Plaintiff’s Premises due to the Impugned Activities?; and

if the 1st Defendant has committed a tort of private nuisance in this case, whether the court should exercise its discretion under ss 50, 51(2), 52(3)(b), (c), (d) and 53 of the Specific Relief Act 1950 (SRA) to refuse a perpetual prohibitory injunction and perpetual mandatory injunction against the 1st Defendant due to the following reasons -

the Plaintiffs’ inordinate delay in the filing of This Suit; and/or

MPS’s Demolition has already been carried out. E. Can This Suit be filed against 2nd Defendant?

The Religious Society has been registered under Societies Act 1966 (SA). Section 9(c) SA provides as follows:

“Provisions applicable to registered societies The following provisions shall apply to registered societies - …

a society may sue or be sued in the name of such one of its members as shall be declared to the Registrar and registered by him as the public officer of the society for that purpose, and, if no such person is registered, it shall be competent for any person having a claim or demand against the society to sue the society in the name of any office-bearer of the society; …” (emphasis added). 7

I have decided as follows in Ramachandran A/L Meyappan & Ors v Chellapan A/L K. Kalimuthu & Ors [2019] 12 MLJ 488, [2019] 7 CLJ 788, [2019] 2 MLRH 634 (Seafield Temple Case), at [37]: “[37] The filing of This Suit by the Plaintiffs did not comply with s 9(c) SA. I am of the view that s 9(c) SA is a mandatory provision because the legislature has employed the use of the mandatory term “shall” in the opening sentence of s 9 SA. If s 9(c) SA is not mandatory, this will open the floodgates of litigation to any member of any registered society to sue on behalf of the registered society on any matter regarding the registered society. Such an interpretation is also contrary to good governance on the part of registered societies, namely any action to be filed by a registered society should be instituted in the name of the public officer declared to the ROS and is registered with the ROS for the purpose regarding suits under s 9(c) SA (presumably after the registered society’s office-bearers have duly considered such a proposed suit). As This Suit has breached s 9(c) SA, on this ground, the 3 Applications should be allowed with costs.” (emphasis added). No appeal to the Court of Appeal has been lodged against the above decision in Seafield Temple Case.

As the Religious Society has been registered under SA, the Plaintiffs should have complied with the mandatory provision in s 9(c) SA. More importantly, the Plaintiffs did not cite the Religious Society as a co-defendant in This Suit. The 2nd Defendant is not a legal entity which can be sued in court. Nor can any judgment or order of the court be enforced against the 2nd Defendant. I cite the following judgment in Darul Fikir v 8 Dewan Bahasa Dan Pustaka [2018] 5 AMR 392, [2018] 10 MLJ 693, [2018] 5 MLRH 524, [2019] 1 CLJ 103, at [8(1)]: “[8] I am of the view that there is no bona fide and serious question to be tried in This Action as regards [Dewan Bahasa Pustaka]. On this ground alone, Enc. 3 is dismissed with costs. This decision is premised on the following reasons:

based on [Dewan Bahasa Pustaka Act 1959’s (DBPA)] long title, ss 3(1), (2), 6(1), 7(1), (2) and 26 DBPA, Parliament has clearly intended for the “Board of Control” (Board) of [Dewan Bahasa Dan Pustaka (DBP)] to be the statutory entity for the purpose of all legal proceedings. Accordingly, by reason of DBPA, the Board (not DBP) should have been sued by the Plaintiff in This Action. In fact, under s 7(1) DBPA, the Contract should have entered into by the Board (not DBP); …” (emphasis added). There is no appeal to the Court of Appeal in Darul Fikir.

Premised on the reasons explained in the above paragraph 15, This Suit cannot be commenced against the 2nd Defendant. Nor can This Appeal be filed by the 2nd Defendant. Accordingly, SC’s Decision against the 2nd Defendant is set aside and This Appeal by the 2nd Defendant be dismissed. I will discuss later in this judgment regarding the question of costs of the trial in SC and This Appeal respect of the 2nd Defendant. F. Whether Defendants’ constitutional rights under Article 11(1) FC have been violated

I reproduce below the relevant part of Article 11 FC: 9 “Freedom of religion 11(1) Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it.

No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own.

Every religious group has the right -

to manage its own religious affairs;

to establish and maintain institutions for religious or charitable purposes; and

to acquire and own property and hold and administer it in accordance with law.

State law and in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.

This Article does not authorize any act contrary to any general law relating to public order, public health or morality.” (emphasis added).

The Defendants are guaranteed under Article 11(1) FC of their fundamental liberties to “profess and practise” their religion. This Suit does not affect in any manner the Defendants’ fundamental right of religion pursuant to Article 11(1) FC. This Suit merely concerns the main 10 issue of whether the Impugned Activities constitute a tort of private nuisance against the Plaintiffs. G. Has Religious Society’s constitutional rights under Article 11(3)(c) FC been infringed?

Firstly, the Religious Society does not own the 1st Defendant’s Premises. Nor is the Religious Society a tenant or occupant of the 1st Defendant’s Premises. As such, the Religious Society has no right over the 1st Defendant’s Premises, let alone a constitutional right to administer the 1st Defendant’s Premises under Article 11(3)(c) FC. This Suit therefore does not affect in any manner the Religious Society’s constitutional rights pursuant to Article 11(3)(c) FC.

Even if it is assumed that the Religious Society owns or occupies the 1st Defendant’s Premises, by virtue of Article 11(3)(c) FC, the Religious Society must “own … hold and administer” the 1st Defendant’s Premises “in accordance with law”. The word “law” in article 11(3)(c) FC has been defined in article 160(2) FC as follows: “ “law” includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof; ” (emphasis added). I am of the view that the term “law” in Article 11(3)(c) FC includes the “common law” regarding the tort of private nuisance. In other words, the Religious Body must own, hold and administer the 1st Defendant’s Premises in a manner which will not to cause a tort of private nuisance to the neighbours of the 1st Defendant’s Premises. 11 H. Whether Impugned Activities constituted a tort of private nuisance H(1). Elements of tort of private nuisance

Regarding the three elements of a tort of private nuisance (3 Elements), I rely on the Court of Appeal’s judgment delivered by Abdul Malik Ishak JCA in Projek Lebuh Raya Utara-Selatan Sdn Bhd v Kim Seng Enterprise (Kedah) Sdn Bhd [2013] 5 MLJ 360, at [124]-[128] (PLUS Case), as follows: “[124] Private nuisance concerns the unreasonable interference with another’s use or enjoyment of land. In determining what is reasonable, the court will balance each party’s right to use the land as they wish. [125] The elements of the tort of private nuisance are:

indirect interference with the enjoyment of the land;

that such an interference was unreasonable; and

that the interference had caused damage to the claimant. [126] In regard to the element of interference, it is the duty of the claimant to prove that the defendant has caused an interference with the claimant’s use or enjoyment of the land. The interference must be as a result of a continuing state of affairs rather than a one-off incident. Examples of physical invasion of the claimant’s land are found in Davey v Harrow Corporation [1958] 1 QB 60 (CA), where the roots of a neighbour’s tree spread into the claimant’s land, or in Sedleigh-Denfield v O’Callaghan and others [1940] AC 880 (HL), where water flooded onto the land as a result of what the neighbour had done, or in Christie v Davey [1893] 1 Ch 316 where nuisance was caused by a noise, or in Wheeler 12 and another v JJ Saunders Ltd and others [1996] Ch 19; [1995] 2 All ER 697 (CA), where the smell caused the nuisance. [127] In regard to the element of unreasonableness, the claimant’s enjoyment of his land constitutes nuisance if it can be considered unreasonable. An interference which goes beyond the normal bounds of acceptable behaviour will be unreasonable (Southwark London Borough Council v Mills And Others [1999] 2 WLR 409 (CA)). [128] In regard to the element of damage, it envisages a situation where the interference must have caused damage to the claimant like the case of The Directors, etc of the St Helen’s Smelting Company v William Tipping [1865] 11 HLC 642 where the fumes from the copper-smelting works seriously damaged the trees and shrubs that grew on the claimant’s land.” (emphasis added). H(2). Whether SC had made plain error of fact

It is not disputed by the parties in This Appeal that an appellate court should not intervene regarding a trial court’s findings of fact, especially findings regarding credibility of witnesses, unless there is a “plain error of fact” by the trial court which has caused an injustice and which warrants appellate intervention - please see the judgment of Steve Shim CJ (Sabah & Sarawak) in the Federal Court case of Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309, at 317-321.

Whether the 3 Elements have been proven in This Suit are findings of fact within the purview of learned SCJ. I have perused the notes of evidence as well as the detailed written submission of the Plaintiffs and 13 Defendants filed in This Appeal. I am not able to find any “plain error of fact” made by SC regarding the 3 Elements. In fact, the learned SCJ has made the following unassailable findings of fact in respect of the 3

the Impugned Activities had interfered directly and indirectly with the Plaintiffs’ enjoyment of the Plaintiffs’ Premises (Interference) as follows -

when the Impugned Activities were held, there was traffic congestion in the area of the Plaintiffs’ Premises (Traffic

on the days the Impugned Activities were held -

cars of the members of the Religious Society, worshippers and those who sought healing were parked in a haphazard manner; and

(ii) there was a lack of parking lots for the residents in the vicinity of the Plaintiffs’ Premises (Parking Problems); and

the Impugned Activities emitted a lot of smoke (due to the burning of joss sticks and incense at the 1st Defendant’s Premises) (Smoke) and caused a lot of noise which disturbed the quiet enjoyment of the Plaintiffs’ Premises (Noise). There is an express condition (Express Condition) imposed by the State Authority in the Register Document of Title regarding the land 14 upon which the 1st Defendant’s Premises is situated (1st Defendant’s Land). The Express Condition provides that the 1st Defendant’s Land can only be used for residence. By reason of the Express Condition, the 1st Defendant’s Land cannot be used for the Impugned Activities or for any activity other than for residential purpose only. It is to be noted that a breach of the Express Condition has adverse consequences as explained in Moo Hon Yee v S Abdul Rahman Bin PAK Shaik Abdul Kader [2019] 2 AMR 399, at [14] as follows - “[14] The Express Condition is conclusive under s 89(b) [National Land Code (NLC)]. I am of the view that when the defendant operates a grocery shop on the Land, this breaches the Express Condition under s 109(2)(b) NLC (defendant’s breach). The defendant’s breach has the following adverse consequences for both the plaintiff and defendant:

both the plaintiff and defendant are liable to a fine by the LA under s 127(1A)(a) and (b) NLC; or

the Land is liable to be forfeited to the State Authority pursuant to s 127(1)(a) and (b) NLC.” (emphasis added);

the Interference was unreasonable because the Traffic Congestion, Parking Problems, Smoke and Noise (Disturbance) had exceeded the “normal bounds of acceptable behaviour” which could be tolerated by a reasonable resident in the area of the 1st Defendant’s Premises; and 15

the Interference had caused damage to the Plaintiffs in the form of the Disturbance. I should add that when it is commonly known that a certain residential property is near a place of worship which causes the Disturbance, there may be a general reduction in the market value of the residential properties in the vicinity of the place of worship (Market Value Reduction). H(3). Whether tort of private nuisance required a suit by all neighbours of 1st Defendant

The Defendants’ learned counsel has submitted that This Appeal should be allowed because there are many neighbours of the 1st Defendant (other than the Plaintiffs) who have not complained regarding the Impugned Activities.

I am not able to accept the above submission because the tort of private nuisance does not require all the occupants of land which are affected by the tort to sue the tortfeasor. If I have accepted the above contention, the tort of private nuisance will lose its efficacy as an effective remedy for those who own and occupy land. H(4). Whether 1st Defendant can rely on cessation of Impugned Activities as a defence

The Defendants’ learned counsel has contended that in view of the 1st Defendant’s cessation of the Impugned Activities (Cessation), the learned SCJ should have dismissed This Suit.

I am of the view that once a plaintiff has proven against a defendant the 3 Elements on a balance of probabilities at a trial, the plaintiff has 16 established a tort of private nuisance against the defendant. Cessation is not a defence to exclude the 1st Defendant’s liability for a tort of private nuisance but only provides a mitigation in respect of the remedies which may be awarded to the Plaintiffs against the 1st Defendant.

In this case, the learned SCJ has not awarded any compensatory damages for the tort of private nuisance which has been committed at the 1st Defendant’s Premises. It is therefore clear that SC has duly considered Cessation as a valid mitigation in this case. H(5). Can a single interference with plaintiff’s enjoyment of plaintiff’s land amount to tort of private nuisance?

The Defendants’ learned counsel invited this court to allow This Appeal on the ground that the Impugned Activities only took place on certain days and there was no “continuous” Interference.

In PLUS Case, at [126], the Court of Appeal expressed the view that the “interference must be as a result of a continuing state of affairs rather than a one-off incident”. This dictum is purely obiter because in PLUS Case, neither the High Court nor the Court of Appeal has decided on the question of private nuisance. It is trite law that an obiter dictum or obiter dicta of any court does not constitute a binding precedent.

My research has revealed that in the United Kingdom (UK), a single act of interference with a plaintiff’s use and/or enjoyment of the plaintiff’s land may prove the first element of a tort of private nuisance (1st Element). I refer to the following judgment by David Steel J in UK’s High 17 Court in Colour Quest Ltd v Total Downstream UK plc [2009] 2 Lloyd’s Rep 1, at [421]: “[421] Taken as a whole, these authorities do not support [defendant company's] submission. The position is that on appropriate facts there can be liability in private nuisance for a single or isolated escape as opposed to a state of affairs where there is both unreasonable or negligent user of land and foreseeability of escape. (See Clerk & Lindsell on Torts 19th Ed para 20-16). …” (emphasis added).

I accept the above development of the tort of private nuisance in UK as stated in Colour Quest - a single act of interference by a defendant with a plaintiff’s use and/or enjoyment of the plaintiff’s land may be sufficient to prove the 1st Element. Whether a defendant’s single act of interference with a plaintiff’s use and/or enjoyment of the plaintiff’s land amounts to proof of the 1st Element, is a question of fact and degree. Having said that, if there is only a single act of interference by a defendant with a plaintiff’s use and/or enjoyment of the plaintiff’s land, this may reduce considerably the remedies available to the plaintiff as compared to a case of repeated or continuous acts of private nuisance by the defendant.

This case does not concern a single act of Interference. In the 1st Defendant’s witness statement, the 1st Defendant testified that the Impugned Activities took place from 2013 until 12.2.2017 (Period). In other words, the Interference had been committed on certain days in a week throughout the Period. 18 H(6). Whether Plaintiffs are required to prove actual physical damage to Plaintiffs’ Premises

According to the Defendants’ learned counsel, the Interference did not cause any actual physical damage or loss to the Plaintiffs’ Premises. Hence, This Appeal should be allowed on this ground alone.

Firstly, the Plaintiffs’ claim in This Suit is based on an Interference with the Plaintiffs’ enjoyment of the Plaintiffs’ Premises. I refer to a judgment of Lord Neuberger P in UK’s Supreme Court in Coventy v Lawrence [2014] 2 All ER 672, at [1], as follows: “[1] This appeal raises a number of points in connection with the law of private nuisance, a common law tort. While the law also recognises public nuisance, a common law offence, this appeal is only concerned with private nuisance, so all references hereafter to nuisance are to private nuisance. It should also be mentioned at the outset that the type of nuisance alleged in this case is nuisance in the sense of personal discomfort, in particular nuisance by noise, as opposed to actual injury to the claimant's property (such as discharge of noxious material or removal of support).” (emphasis added).

As This Suit concerns the Plaintiffs’ enjoyment of the Plaintiffs’ Premises, the Plaintiffs are not required to prove actual damage or loss to the Plaintiffs’ Premises. The third element of a tort of private nuisance (the Interference must have caused damage to a plaintiff) (3rd Element) can be satisfied if there is “non-physical” damage such as the Disturbance. In addition to the Disturbance, the Plaintiffs have also 19 suffered Market Value Reduction as an indirect consequence of the Interference in this case. I. Whether court can grant injunctive relief in this case I(1). Court’s discretionary power to grant perpetual injunctions

Sections 50, 51(2), 52(3)(b), (c), (d) and 53 SRA state as follows: “s 50. Preventive relief how granted. Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual. 51(2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff. s52. Perpetual injunctions when granted. …

When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely: …

where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

where the invasion is such that pecuniary compensation would not afford adequate relief;

where it is probable that pecuniary compensation cannot be got for the invasion; and … 20 Section 53. Mandatory injunctions. When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.” (emphasis added).

It is not disputed that upon the proof of the 3 Elements, the learned SCJ has the following discretionary power to -

grant a perpetual prohibitory injunction under ss 50, 51(2), 52(3)(b),

and/or (d) SRA to restrain the 1st Defendant from carrying out any of the Impugned Activities on the 1st Defendant’s Premises (Perpetual Prohibitory Injunction). The Perpetual Prohibitory Injunction is granted by SC because -

there exists no standard for ascertaining the actual Disturbance which has been caused by the Interference within the meaning of s 52(3)(b) SRA;

as provided in s 52(3)(c) SRA, the Interference in this case is such that pecuniary compensation would not afford adequate relief to the Plaintiffs; and/or

it is probable that pecuniary compensation cannot be got for the Interference as stated in s 52(3)(d) SRA; and 21

order a perpetual mandatory injunction under s 53 SRA to compel the 1st Defendant to demolish the large censer in the 1st Defendant’s Premises (Perpetual Mandatory Injunction). I(2). Should court refuse injunctive relief due to Plaintiffs’ inordinate delay in filing This Suit?

The Defendants’ learned counsel has alleged that the Plaintiffs have been guilty of inordinate delay in the commencement of This Suit. Hence, the learned SCJ should have declined to exercise her discretion to order a Perpetual Prohibitory Injunction and Perpetual Mandatory Injunction (Injunctions) in this case.

Firstly, there was no delay, let alone inordinate delay, in the institution of This Suit by the Plaintiffs. This was because, as admitted by the 1st Defendant, the Impugned Activities continued on the date of the filing of This Suit.

Alternatively, even if was assumed that there was delay in the commencement of This Suit by the Plaintiffs, the Plaintiffs had the following two reasonable explanations for any delay in the filing of This

the Plaintiffs had complained to MPS [Plaintiffs’ Complaints (MPS)] and were waiting for MPS to take action against the 1st Defendant. In fact, MPS’s Demolition was carried out pursuant to the Plaintiffs’ Complaints (MPS); and

This Suit concerned sensitive matters regarding the religious belief of the 1st Defendant and members of the Religious Society. It was 22 neither wise nor prudent for the Plaintiffs to file This Suit in haste. On the contrary, the Plaintiffs had exercised patience and tolerance in attempting to resolve amicably this case before instituting This Suit. I(3). Whether court should have refused Injunctions in light of MPS’s Demolition

Lastly, the Defendants’ learned counsel invited this court to set aside the Injunctions in This Appeal because MPS’s Demolition had already been carried out. According to the Defendants’ learned counsel, there was no necessity for SC to have granted the Injunctions in this case.

I am not able to accede to the above submission because the fact that MPS’s Demolition has been carried out, does not mean that the 1st Defendant or subsequent owner or occupier of the 1st Defendant’s Premises cannot recommence the Impugned Activities in the future. The grant of Injunctions in this case is necessary to ensure that there is a final resolution of this dispute. I(4). Should there be appellate intervention regarding SC’s exercise of discretion in granting Injunctions?

It is not disputed that an appellate court should be slow to set aside the lower court’s exercise of discretion - please refer to the Federal Court’s judgment delivered by Alauddin Mohd. Sheriff FCJ (as he then was) in Chase Perdana Bhd v Pekeliling Triangle Sdn Bhd & Anor [2008] 1 CLJ 313, at [49]. 23

I am mindful that I am sitting in an appellate jurisdiction over the exercise of the learned SCJ’s discretion in granting the Injunctions. I am of the view that in granting the Injunctions, the learned SCJ had not exercised her discretion on a wrong principle of law. Nor had SC taken into account an irrelevant matter in ordering the Injunctions. In the circumstances, there is no ground for appellate intervention regarding the learned SCJ’s exercise of discretion in granting the Injunctions.

As explained in the above paragraphs 15 and 16, there is no basis for the Plaintiffs to have filed This Suit against the 2nd Defendant. Accordingly, costs of RM30,000.00 awarded by SC (against both the Defendants) for the trial is reduced to RM20,000.00 (as against the 1st Defendant only).

The 1st Defendant shall pay the costs of This Appeal to the Plaintiffs because I have rejected all the contentions of the 1st Defendant in This Appeal. Hence, SC’s Decision against the 1st Defendant is affirmed. K. Court’s decision

In brief -

the 2nd Defendant is not a legal entity which can be sued by the Plaintiffs in This Suit;

This Suit (based on a tort of private nuisance) does not affect in any manner the constitutional right of the 1st Defendant and members of the Religious Society to profess and practise their religion as guaranteed under Article 11(1) FC; 24

if it is assumed that the Religious Society owns the 1st Defendant’s Premises, the Religious Society must “own … hold and administer” the 1st Defendant’s Premises pursuant to Article 11(3)(c) FC so as not to cause a tort of private nuisance to the Plaintiffs;

there is no appellate intervention regarding SC’s Decision against the 1st Defendant because the learned SCJ has not made any “plain error of fact” regarding the 3 Elements of a tort of private nuisance;

the 1st Defendant could not rely on the following defences against a tort of private nuisance -

all the neighbours of the 1st Defendant (other than the Plaintiffs) did not complain regarding the Impugned Activities;

Cessation of the Impugned Activities could not negative the 1st Defendant’s liability but could only constitute a mitigation for the 1st Defendant in this case;

a single act of Interference with the Plaintiffs’ enjoyment of the Plaintiffs’ Premises could prove the 1st Element of a tort of private nuisance. In this case, there was more than a single act of Interference which took place thoughout the Period; and

the Plaintiffs are not required to prove actual physical damage or loss to the Plaintiff’s Premises due to the Impugned Activities. The 3rd Element of a tort of private nuisance is satisfied in this case in the form of the Disturbance and Market 25 Value Reduction which have been suffered by the Plaintiffs; and

the learned SCJ had correctly exercised her discretion under ss 50, 51(2), 52(3)(b), (c), (d) and 53 SRA to award the Injunctions in this case because -

the Plaintiffs were not guilty of any inordinate delay in the institution of This Suit and even if they were, they had two reasonable explanations for any delay in the filing of This Suit; and

the fact that MPS’s Demolition has been carried out, does not mean that the 1st Defendant or subsequent owner or occupier of the 1st Defendant’s Premises cannot recommence the Impugned Activities in the future.

Premised on the above evidence and reasons, the following order is made in This Appeal:

the 2nd Defendant’s appeal is dismissed without costs;

SC’s decision is affirmed except that -

SC’s Decision against the 2nd Defendant is set aside;

the Declaration and Injunctions are only granted against the 1st

costs of RM30,000.00 awarded by SC is reduced to RM20,000.00 (against the 1st Defendant only); and 26

costs of This Appeal in a sum of RM8,000.00 shall be paid by the 1st Defendant to the Plaintiffs.

It is hoped that residential premises are not unlawfully used by their owners and occupants in a manner which constitutes a tort of private nuisance to their neighbours. WONG KIAN KHEONG Judge High Court of Malaya Shah Alam, Selangor Darul Ehsan DATE: 6 MAY 2020 Counsel for Appellants: Encik Azhar Bin Harun, Encik Abdul Halim Bin Abdul Karim & Encik Chiew Choon Man (Messrs William Leong & Co.) Counsel for Respondents: Puan Zarina Begum Binti Kamarul Jaman & Puan Anis Bazilah Binti Abdul Ghani (Messrs Lim Soh Wah & Zarina)