Jitendra Chhotalal Doshi v Malaysia Rail Link Sdn Bhd (BA-22NCvC-425-10/2023)

JITENDRA CHHOTALAL DOSHI

KIRON CHHOTALAL DOSHI (NO. K/P: 690810-10-6335) PLAINTIF-PLAINTIF DAN 1. MALAYSIA RAIL LINK SDN BHD

CHINA COMMUNICATION CONSTRUCTION (ECRL) SDN BHD (COMPANY NO: 201701022218) DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] The Plaintiffs are the registered proprietors of two (2) pieces of land held under Geran 44416 Lot 2979 and GM 981 Lot 3217, both in Mukim Setapak, Daerah Gombak, Negeri Selangor ( and respectively and collectively, ). 21/11/2024 11:19:08 BA-22NCvC-425-10/2023 Kand. 60 [2] The Plaintiffs claim that they discovered on 19-9-2022 that the 2nd Defendant had trespassed upon the Lands. According to the Plaintiffs, the Lands were found to be a construction site with workers and machinery. Its terrain had been altered in that hills had been cut, the river flow had been realigned and tunneling works were underway. [3] In this action, the Plaintiffs seek various remedies for trespass against the Defendants jointly and severally. [4] In Enclosures 14 and 18, the 1st and 2nd Defendants have respectively applied to s claim under Order 18 Rule 19(1) of the Rules of Court 2012. Enclosure 18 - 2nd striking out application Background Facts [5] Sometime after 19-9-2022, negotiations ensued for the 2nd Defendant to rent part of the Lands as it was represented that such part of the Lands would eventually be compulsorily acquired for the East Coast Rail Link (ECRL) project ( ECRL Project ). [6] The Plaintiffs and 2nd Defendant entered into a tenancy agreement on 23-12-2022 ( ) for the rental of 2.606 hectares (or 6.44 acres) of the Lands ( ). [7] The Tenancy Agreement and the sums payable thereunder were negotiated between solicitors representing the parties. It was an express provision in clause 5.0(l) of the Tenancy Agreement that the Plaintiffs waive all rights in respect of any claim for trespass against the 2nd Defendant in respect of the Leased Lands. [8] The grounds for the 2nd therefore that:

the Plaintiffs have waived all their rights to claim for trespass after the parties entered into the Tenancy Agreement

no particulars of the alleged misrepresentation are pleaded in the Statement of Claim to nullify the said Tenancy Agreement [9] The Plaintiffs argue that the waiver argument does not extinguish the claims in this action because:

the validity of the Tenancy Agreement is disputed

the area trespassed exceeds the area of the Leased Lands Analysis and Findings Validity of the Tenancy Agreement [10] The Tenancy Agreement stipulates that the use of the Leased Lands is for the implementation of the ECRL Project and that it would terminate upon the compulsory acquisition of the Leased Lands. [11] In the Statement of Claim, the Plaintiffs contend that the Tenancy Agreement is vitiated on the grounds of misrepresentation. The pleaded misrepresentations appear to relate to the use to which the Leased Lands may be put pending the compulsory acquisition:

ECRL works would only commence after the compulsory acquisition is completed

all activities of the 2nd Defendant on the Lands must be approved by the authorities. [12] pleaded case that the Tenancy Agreement is voidable or void is obviously unsustainable for the following reasons:

The Plaintiffs had known since September 2022 that ECRL works had commenced when they entered into the Tenancy Agreement. The scope, nature and purpose of the 2nd activities on the Leased Lands were the pleaded impetus for the Tenancy Agreement. It was entered into to address the complaint of trespass pending the compulsory land acquisition.

The Plaintiffs were represented by solicitors throughout the negotiations on the terms of the Tenancy Agreement. The contemporaneous evidence of the exchange of correspondence until its execution and stamping demonstrated that it was concluded with the full knowledge and consent of the Plaintiffs.

There was no obligation to furnish the Plaintiffs with the 2nd for works on the ECRL Project. It was of no direct concern to the Plaintiffs if the activities of the 2nd Defendant on the Leased Lands were unlawful, if this is the case, since the Plaintiffs have an indemnity under the Tenancy Agreement. The relevant indemnity given by the 2nd Defendant is in Clause 3.0(c)(ii) and

(iii) of the Tenancy Agreement. [13] I therefore find that the Tenancy Agreement is valid. The express provision in clause 5.0(l) of the Tenancy Agreement that the Plaintiffs waive all rights in respect of any claim for trespass against the 2nd Defendant in respect of the Leased Lands appears to mean just that, but I will hold back from giving it a definitive interpretation and effect at this stage because there is a possibly related issue that needs to be tried. Trespassed Area [14] There is an allegation that there is trespass on parts of the Lands other than the Leased Lands. The Plaintiffs contend that they commissioned a survey in May 2023 by one Indah Geomatik and plead that the 2nd Defendant is using 4.02 hectares (or 9.938 acres) of the Lands, which is beyond the area of the Leased Lands. The 2nd Defendant denies this and argues that there is no evidence of any use beyond the 2.606 hectares (or 6.44 acres) of Leased Lands. [15] I find these competing contentions troublesome. The 2nd Defendant made no effort to interpret the survey results produced and put the burden on the Plaintiffs to prove the alleged trespass. Counsel argued that the bare assertion and cryptic survey results are insufficient to raise a triable issue. Counsel for the Plaintiffs similarly made no effort to interpret the survey results and argued simply that this is precisely a matter to be explained at trial. [16] On this point, I have to lean in favour of the Plaintiffs because the basic test for striking out a claim is that it must be obviously unsustainable. Thus, the burden is on the 2nd Defendant to persuade me that I can make a conclusive finding on the affidavits that there is definitely no trespass beyond the Leased Lands based on the affidavit evidence. The law requires that I review the evidence and not disregard them because they are difficult to understand. [17] I have reviewed survey results and with some effort, I can make out the dotted blue line representing the perimeter of the Lands subject to compulsory acquisition (that is presumably identical to the Leased Lands) as shown in the satellite photograph. This is Ga I can also discern the dotted pink line representing the perimeter of land in use that lie beyond the Acquired Lands as explained by the same legend (Limit Guna Tanah Berdasarkan Ukuran). I reproduce the extract from the survey scrutinized below. [18] There is a stretch of area between the pink and blue dotted lines in the satellite photograph that looks like part of the larger construction site. This appears to be the area coloured pink in the accompanying drawing. I may be wrong but for this reason alone, I conclude that there remains some element of the claim for trespass that is triable. I therefore dismiss Enclosure 18 with costs in the cause. Enclosure 14 1st Background Facts [19] On 22-12-2022, it was gazetted that 2.6263 hectares (or 6.488 Acquired Lands for the ECRL Project. The 1st Defendant does not dispute that it is the owner of the ECRL Pr st Defendant paid an aggregate sum of RM10,252,917.17 on 9-10-2023 to each of the Plaintiffs being compensation for the acquisition of the Acquired Lands. [20] The land acquisition process has concluded, subject to separate judicial review and other proceedings that the Plaintiffs have taken out to challenge the compulsory land acquisition and object to the compensation paid via land reference proceedings. The Plaintiffs have complained about the area gazetted and paid for as well as various irregularities in the compulsory land acquisition process. [21] The grounds for the 1st tion are that:

the Plaintiffs have no locus standi to sue for trespass since the Form K for the compulsory land acquisition has been registered on the titles;

the Plaintiffs are approbating and reprobating, having already received compensation for the Acquired Lands; and

the 1st Defendant is not liable for the actions of the 2nd as to why it should be so liable. Analysis and Findings Locus Standi [22] The 1st Defendant relies on case law for the proposition that a land owner ceases to have locus standi to sue trespassers on the land once the land is compulsorily acquired. The cases say that this is so once the land acquisition process has reached the stage where the requisite Form K has been registered on the title as part of the process. [23] Section 22 of the Land Acquisition Act 1960 provides that: scheduled land by serving upon the occupier thereof or, if he cannot [24] I am not with the 1st Defendant on this ground for striking out the claim for the simple reason that in this case, the Plaintiffs are complaining about trespass over areas of the Lands beyond the Acquired Lands i.e. what has been gazetted for compulsory land acquisition. The Plaintiffs are the registered proprietors of those areas and remain so regardless of the acquisition. This issue disqualifies the case for striking out based on the locus standi. Receipt of compensation [25] The receipt of compensation for the Acquired Lands would not justify any trespass over additional areas of the Lands as alleged by the Plaintiffs. As the land reference and judicial review proceedings are still pending, I cannot yet say that the Plaintiffs are approbating and reprobating by filing this action for trespass. For this reason, this ground for striking out also fails. Cause of Action against 1st Defendant [26] The 1st pleaded in the Statement of Claim as to how or why the 1st Defendant should be held jointly and severally liable for the alleged trespass of the Lands by the 2nd Defendant at all. This is a pleading point and the state of the pleadings remains as it was when this application was filed. [27] The only question appears to be how joint liability for the tort of trespass can arise as a matter of fact and law where the trespass was carried out solely by the 2nd Defendant. [28] In Brooke v Bool [1928] KB 578, the Court considered the question of joint liability for the tort of negligence in the context of an explosion caused by a lodger who held a flame near a leaking gas pipe, when he accompanied the defendant to ins . The defendant had been allowed by the plaintiff to access and secure it at night. The lodger smelt gas coming from the shop and informed the defendant. [29] In that case, the Court held that the defendant was liable to the plaintiff for the damage by the negligent act of the lodger on any one of the following grounds:

that the act of the lodger was done by him as agent for the defendant;

that the act was done in the course of proceedings of which the defendant had the control;

that the act was done in pursuance of a concerted enterprise of the defendant and the lodger and was their joint tort. [30] The law on this is also explained in Seri Ahmad Zubair @ Ahmad Zubir bin Hj Murshid & Ors (Tun Musa Hitam & Ors, third parties) [2012] 9 MLJ 464 ( Sime Darby In that case, third party notices for indemnity and contribution were taken out against non-executive directors in a claim of negligence and breach of fiduciary duties against executives and senior directors of the plaintiffs in the operation and implementation of several projects by the plaintiff companies. [31] In striking out the third-party notices, the High Court held in Sime Darby that: -executive director is not co-extensive with that of an executive director. In a road accident claim the defendant would be able to plead specific acts of negligence of a third party whereas here as the pleading stands there are no specific acts of a tortious nature that have been pleaded against the third party non-executive directors. As stated before for the third party to be a joint tortfeasor with the defendant, there must be more than passive presence and participation in decision or even being kept posted on performance and profitability or otherwise of the projects and the problems encountered in its progress. There must be the element of active and purposeful procurement of the [32] Indeed, the Plaintiffs have not pleaded the legal basis for the 1st However, the Plaintiffs have pleaded that:

the 1st Defendant is the project owner of the ECRL Project;

the 1st Defendant had appointed the 2nd Defendant as its main contractor to carry on works on the ECRL Project; and

the Defendants are in a 50:50 joint venture for the operation and maintenance of the ECRL Project Save that it is the owner of the ECRL Project and assets, the 1st Defendant denied these allegations. [33] In submissions, counsel for the Plaintiffs maintained that the legal basis for joint and several liability is contractual, even though the 1st Defendant had responded to say that there is no privity of contract between the Defendants because the 1st the ECRL Project are 2 other China Communication Construction (CCC) entities. The Plaintiffs say that they need to look into all the contractual relationships and that this is therefore an issue to be tried. [34] It is nowhere pleaded that there is or was at any time, people answerable to the 1st Defendant or structures belonging to the 1st Defendant trespassing on the Lands. However, this Court finds that the material facts pleaded by the Plaintiffs point to the 1st as the ultimate owner of the ECRL Project and project assets and that this is sufficient in an action for trespass related to the Lands. [35] The facts on this case are distinguishable from Sime Darby in that here, it is sought to have struck out, the party to whom control of the enterprise probably vested. The actions of the 2nd Defendant would have been undertaken in pursuance of a concerted enterprise, namely completion of construction of the ECRL Project assets under the 1st pursuit of that enterprise was their joint tort. [36] In See Thong & Anor v Saw Beng Chong [2012] CLJU 817 the Court of Appeal held as follows: O. 18 r. 19(1) of the RHC is not only confined to the power to strike out pleading or claim. It also empowers the court to amend any pleadings, in appropriate case. To facilitate that, the court may order the action to be stayed, so as to give time to the plaintiff to effect the necessary amendment to the pleadings or the statement of claim. Where the pleadings are defective and the opposing party seeks to strike out those pleadings, the court ought not to act summarily if an amendment can correct the defect (see: Kuala Lumpur Finance Berhad v. KGV & Associates Sdn Bhd [1995] 1 CLJ 519; [1995] 1 MLJ 504; and Lim Weow @ Lim Neu v. Perwira Habib Bank Malaysia Berhad [2000] CLJU 138; [2000] 1 LNS 138; [2001] 2 AMR 1307). [37] See Thong also cited the Court of Appeal in Abdul Rahim Abdul Hamid & Ors v. Perdana Merchant Bankers Bhd & Ors [2000] 2 CLJ 457 which pertinently, held as follows: It is no part of the Court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to be decided difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial." [38] The pleading against the 1st Defendant in this case is not hopeless, baseless or so obviously unsustainable that a striking out is warranted at this stage. For this reason, I also dismiss Enclosure 14 with costs in the cause. Bertarikh : 21 November 2024 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Plaintif-Plaintif : Siti Masturah Binti Mat Amin, Messrs Masturah Law Chambers Untuk Defendan Pertama: Austen Emmanuel Pereira, Messrs Rosli Dahlan Saravana Partnership Untuk Defendan Kedua : Choo Shi Jin, Messrs Firoz Julian (Kuala Lumpur)