22-766-2007

TELEKOM MALAYSIA BHD (No. Syarikat: 128740-P)

TENAGA NASIONAL BHD (No. Syarikat: 2200866-W)

SAJ HOLDINGS SDN BHD (No. Syarikat: 476718-H) ...DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT [1] This is an application in enclosure 6R by the 2nd Defendant filed under O33 r.2 and/or r.5 of the Rules of Court 2012 (ROC) and/or inherent jurisdiction of the Court, seeking for determination on the following questions: a) that the preliminary questions or issues of law and/or fact as set out in Annexure A which have arisen from, inter alia the Page 2 of 15 Plaintiff’s Witness Statements and/or documents filed in this action, be tried or determined as preliminary questions or issues of law and/or fact; b) that until the determination of the preliminary questions or issues of law and/or facts as set out in Annexure A, all further proceedings in this action be stayed; c) that such further directions be given by this Honorable Court for the determination of the preliminary issues or questions of law and/or fact as set out in Annexure A, as may be necessary and appropriate; d) that upon the determination by this Honorable Court of the preliminary questions or issues of law and/or fact as set out in Annexure A, the Honorable Court makes such order(s) or enters judgment, as the Honorable Court deems fit and proper; e) costs; and f) further and/or other relief as This Honorable Court deems fit and proper. [2] Annexure A contains the following questions: i. What is the degree and extent of the 2nd Defendant’s liability for trespass, per paragraph [44] of the High Court’s Judgment dated 28.7.2011? Page 3 of 15 ii. Upon the determination of Questions 1 above, whether the damages recoverable by the Plaintiff from the 2nd Defendant in respect of the trespass is divisible, viz, to the degree and extent of the 2nd Defendant’s liability for trespass, per paragraph [44] of the High Court’s Judgment dated 28.7.2011? iii. Upon the determination of Question 2 above, what is the period of the 2nd Defendant’s trespass, per paragraph [44] of the High Court’s Judgment dated 28.7.2011? [3] Paragraph 44 of the judgment of the High Court is extracted and produced as follows: “[44] On the evidence as to how the supply of electricity had been connected to the households in the subject land, it was improbable and incredible for D2’s lines and structures not to have encroached or trespassed onto P’s land. The degree and extent of encroachment was a different issue to be dealt with in the assessment of damages. I found on the facts that a cause of action grounded in trespass had been established against D2 beginning from the date the court judgment declaring the occupants to be squatters/trespassers occupying the land unlawfully had been communicated to D2. As D2 had been put to notice of the continuing trespass, it was by its conduct in continuing to supply electricity is liable for trespass beginning from the time of notification for failing to comply with the demand to discontinue the trespass. However, as a public utility body carrying out duties and obligations mandated under provisions of law (‘ESA’) to provide electricity to the occupants of the subject land, D2 cannot be held Page 4 of 15 liable for trespass prior to the notification that they had been declared trespassers. D2 was then not in a position to ascertain their actual status and neither did it have any authority to do so under ESA. To impose liability on D2 in these circumstances would be too burdensome in view of its role and obligations to the public”. [4] From the above excerpt, it is the finding by the High Court (and agreed by both the COA and the Federal Court as will be shown in the subsequent paragraphs of this judgment) to be as follows and this is relevant to the points raised in annexure A before this Court: a. the date D2 is liable for the damages on trespass by the continuous supply of the electricity is from the date of notification of occupants declared as trespassers made known to D2 (this refers to the date as agreed by the Federal Court in [2019] 1 CLJ 42 to be 28.4.2004); b. The degree and extent of encroachment by D2 is dependent on the lines and structures that have encroached or trespassed onto P’s land; c. P had established the cause of action of trespass against D2 independently as per para. 24.3 of the SOC until termination of power supply to the illegal occupants and demolition/removal of D2’s supply structures and lines and held D2 liable for trespass to this extent. Page 5 of 15 Background [5] As from the case registration number year 2007 and the name of the parties Bukit Lenang and others, this case originated earlier, from multiple proceedings between the trespasser squatters against the original owner Oakfield Enterprises Sdn Bhd and subsequently the Plaintiff, that finally led to a claim for damages by the Plaintiff against the squatters and in this particular case, against the 2nd Defendant (the claim against the other two Defendants in this same suit had been settled) arising from permitting the supply of power to these squatters. [6] The squatters were occupying 407 individual lots of Lot 83 Grant 72, Mukim Plentong, Johor Bahru. The High Court found that the 2nd Defendant, despite the fact of encroachment by the trespasser squatters made known to the 2nd Defendant, the Defendant was negligent in allowing the said supply to continue. The decision of the High Court was affirmed by both the Court of Appeal and the Federal Court (all respectively reported in [2012] 1 CLJ 228 (HC), [2017] CLJU 721 (COA), [2019] 1 MLJ 1 and [2019] 1 CLJ 42 (FC). It is therefore, important for the purpose of hearing this application, to have all the said judgments of the High Court (HC) dated 28.7.2011, the Court of Appeal (COA) dated 9.6.2017 and the Federal Court (FC) dated 31.10.2018 in sight. [7] As an additional information, there were other collateral decisions arising from this main suit pertaining to, amongst others new evidence in the form of detailed survey plan prepared by surveyor appointed by the 2nd Defendant. The Court of Appeal found that “the survey plan identified with precision the location of electricity poles and cable to the illegal residences of the squatters shows that the appellant was clearly aware at all material times which specific lots it was supplying electricity to through Page 6 of 15 the electrical poles and supply lines” (see: para15 Tenaga Nasional v Bukit Lenang Development Sdn Bhd [2016] 10 CLJ 164) [8] It is equally important to note that on further appeal, the Federal Court in [2019] 1 CLJ 42 (the Federal Court based on the reported judgment, dealt with only 405 lots), was tasked to deal with the question of law “whether an action in trespass was maintainable in law when the period of the alleged trespass was for the same period when a stay order of the High Court was in force in respect of the subject land”. [9] This, was further elaborated by the Federal Court as follows: “[54] As rightly submitted by learned counsel for the respondent, the squatter judgment had the effect of:

Firstly, determining the squatters as having no legal right to occupy the subject land;

Secondly, prohibiting the squatters from further occupying the subject land; and

Thirdly, giving the respondent the right to remove the squatters from the subject land should the squatters fail to give vacant possession of the same to the respondent. [55] To remove any doubt, there are three crucial facts to the 'stay order' in question that should be highlighted:

The 'stay order' was an order to stay only the execution of the squatter judgment. It was not a stay or suspension of the squatter judgment itself;

The appellant was not a party to the 'stay order'. It was obtained by the squatters against whom the squatter judgment was issued; and

The stay order did not provide for the continued supply of electricity to the squatters. [56] The stay of execution ordered by the learned High Court Judge prevented the respondent from executing the vacant possession order against the squatters until the disposal of the squatters' appeal against the same. The stay of execution did not, and could not, have the effect of suspending the determination by the High Court that the squatters were occupying the subject land wrongfully”. (emphasis mine) [10] The above determination by the Federal Court clearly maintains the finding that D2’s liability begins on 28.4.2004. Armed with these crucial findings, this Court proceeded to hear arguments on enclosure 6R and came to a finding that all the questions raised in annexure A have been answered hence there is no necessity for this Court to ventilate further on the questions raised, in order to provide with answers. The reasons for this decision are laid out in the paragraphs below. The judgment dated 28.7.2011 [11] The judgments of the COA and the HC can be seen exhibited as “TNB-2” and “TNB-3” respectively, to enclosure 8R affidavit in support by the applicant D2 to enclosure 6R. Following the history of claims arising between Oakland Enterprises and D2 as highlighted in para 5 above, the crucial excerpt from the HC 28.7.2011 decision that would have addressed the reliefs sought and the questions framed in Annexure A, (albeit lengthy but very important) is extracted from the said judgment and they are as follows: Page 8 of 15 “[29] Plaintiff’s counsel (‘P/C’) contended that D2’s position that it was unable to determine who were being supplied electricity in the subject land as a defence to the present claim was wholly irrelevant and in any event, untenable. The reasons for this contention were, inter alia, that the allegation of supply to squatters on the subject land was nothing new as the previous owner had commenced an action against TNB on the same land in 1989 [Oakfield Enterprises Sdn Bhd v. Tenaga Nasional Bhd [1998] 1 LNS 430. According to D/C, the 61 lots involved in this case did not belong to P. The point being made was that D2 must have known exactly the lots to which power had been supplied and the location of its supply structures. It was all the more so as TNB had successfully defended the suit in which the High Court held that its pylons and transmission lines had been lawfully erected on the lots in question. Secondly, that D2 did not seriously dispute the facts raised in P’s letters of demand in 2002 and 2004 except to maintain that the supply was lawful. [30] More importantly, P placed reliance on the evidence of key defence witnesses which seemed to indicate beyond doubt that TNB had the relevant information pertaining to the houses on P’s land which had been supplied with electricity which was subsequently disconnected during the execution process by P. DW4, the branch manager of TNB, Johor Jaya, who had supervised the disconnection during that process, admitted that D2 had details of the closed accounts for the 100 over houses which had electricity supply disconnected by reason of the execution. He also admitted that after the said process, the meters were taken back to the office and the final reading taken for record purposes. The records were still with D2. Also that a name search of the squatters on P’s land could be carried out to determine whether they had been supplied Page 9 of 15 electricity. He further admitted that D2 had details and records of all the squatters on the said land who had been provided electricity by TNB. Similarly, DW3, an Assistant Manager of the Consumer and Marketing Department at TNB’s Head Office, admitted in his evidence that searches could be done that would reveal whether a particular individual was a customer of D2 and similar searches could be done by reference to the addresses of the said individuals. [31] It was apparent from the above that with details of names and addresses (lot numbers) D2 had records that enabled it to trace whether a particular household had been supplied electricity. If the lots on which the households were located belonged to P, it followed that D2’s structures must have encroached into P’s land. It would be incredible to suggest that such a consequence did not follow. In this regard, P/C argued that D2’s belated attempt at the trial to suggest during cross-examination of its main witness (DW4) that its structures had been erected on road reserves was on a matter not pleaded on which no evidence could be led. He cited in support the Federal Court case of Pacific Forest Industries Sdn Bhd & Anor v. Lin Wen-Chih & Anor [2009] 6 CLJ 430 where the relevant part of the judgment (per Zaki Tun Azmi CJ) reads at p. 438: The effect of a judge making a decision on an issue not based on the pleadings and without hearing the parties on that particular issue would be in breach of the latin maxim audi alteram partem, which literally means, to hear the other side, a basic principle of natural justice. [32] In the instant case, the issue of D2’s structures being on road reserves was never as part of the averments in the Defence and as such, was never addressed by P in its case. This issue should, Page 10 of 15 thus, not be considered in deciding this case in accordance with established rules of pleadings. [33] In any event, the above issue involves the existence of a particular fact and therefore, the burden of proof of that fact lies on D2 (s. 103, Evidence Act, 1950) … However, as pointed out by P/C, the evidence of DW4 on this point was weak and far from satisfactory. It was contradictory and unsupportive of the fact alleged as well as unable to rebut the assertion that D2’s transmission lines and meters went over and/or on the subject land… [34] In summary, this is my finding on the issue whether this action should fail for non-identification by P of the lots that were alleged to have been trespassed upon by D. P had vide its solicitors’ letter of 28 April 2004 put D2 to notice that the court had determined that the occupiers on P’s land who had been supplied electricity were in illegal occupation or trespassers and thus, demanded that all structures erected by P be dismantled and removed. The lot numbers owned by P were supplied and so was the court order. D2 did not comply without any reply being given of its stand on the demand. Contrary to the defence raised there was no evidence of any response from D2 to the effect that P’s lots could not be identified from the entire piece of land. The occupants being squatters were strangers to P whereas D2 was in possession of records showing their identities and location of the households that had electricity supply. These facts were clearly within the exclusive knowledge of D2, which was fortified by the evidence of D2’s witnesses themselves. Furthermore, all houses or lots demolished in execution of the court order dated 28 April 2003 had electricity supply connected. Hence, the issue of non-identification or demarcation of P’s lots did not arise under the peculiar Page 11 of 15 circumstances of this case. From DW4’s evidence on how electricity was connected, it was improbable and incredible for D2’s supply lines not to have encroached into P’s land”. [12] What appears to be D2’s reservation, as observed by this Court from the whole arguments above and moved further by filing the present enclosure 6R, would probably have been triggered further by the following ‘connotation’ as expressed by the learned trial Judge in the said 28.7.2011 judgment: “The degree and extent of encroachment was a different issue to be dealt with in the assessment of damages”. [13] This judicial statement however, to this Court’s view is expressed merely to specify that the detail submissions of the facts in relation to firstly, “how the supply of electricity had been connected to the households in the subject land” and secondly, as put in the positive way by this Court on “D2’s lines and structures to have encroached or trespassed onto P’s land” would be ventilated at the assessment of damages stage. For this purpose, this Court not only is bound by the superior court decision of the COA in [2016] 10 CLJ 164 but rightly so, the ‘Detailed Survey Plan’ produced as exhibit “GTH-2” AIR enclosure 9R would be very relevant for the purpose of answering the above .Guided by this decision, it will be the course to be taken by this Court tasked to carry out the said assessment (see: [2014] 6 CLJ 713 (HC), [2016] 10 CLJ 164 (COA)). [14] This is further supported by the admission made by the Defendant before the earlier Judge when counsel for the Defendant took the stand as follows: Page 12 of 15 “[35] D/C himself conceded that the law of torts on trespass was harsh on trespassers in that even the slightest intrusion into land in the possession of another was sufficient to sustain a claim in trespass. The liability for trespass was, as such, strict against the trespasser in favour of the person in possession of land as even the slightest crossing of the boundary of land is sufficient to constitute trespass (Terra Damansara Sdn Bhd v. Nandex Development Sdn Bhd [2006] 8 CLJ 657). Given the state of the law, D/C submitted that it was imperative for P to be required to prove the trespass with precision and that, in this case, a precise and detailed survey plan was an elementary requirement to establish trespass… “ [15] The COA decision cited in para 13 above would confirm this position. The Plaintiff, similarly takes this stand. As to how much precision the detailed survey plan (DSP) would be able to accommodate the fact on the exact perimeters of the encroachment, this Court is of the view that unless and until the experts are before this Court for the purpose of deliberation on exhibit “GTH-2” (the DSP), to now decide that it may not be able to do so, would amount to this Court merely acting on assumption and conjecture. [16] As it stands now, any contention by the Defendant that the Plaintiff’s claim for damages is a duplicate claim as the same had been addressed in Othman bin Ali & 290 Ors v Bukit Lenang Development Sdn Bhd [2016] 3 MLJ 708, this Court can do no better than agree with the submission by the Plaintiff that D2 was not a party to that suit hence to say it is an overlapping claim goes against the finding by the High Court that “P had established the cause of action of trespass against D2 independently as per para. 24.3 of the SOC until termination of power Page 13 of 15 supply to the illegal occupants and demolition/removal of D2’s supply structures and lines and held D2 liable for trespass to this extent”. [17] Furthermore, with both parties are alerted of the order of the Court dated 1.7.2011 for damages to be assessed, the Plaintiff acted on it by putting up a proposal as to their belief the best way on how to assess and quantify this trespass damages, relying on the DSP as a basis and the proposed expert witness. D2 on the other hand, put up a challenge arguing that this proposed method does not satisfy the requirement pronounced in the written grounds of judgment “on the degree and extent of encroachment”. [18] This Court having perused some of the relevant authorities on quantifying of damages such as Alor Janggus Soon Seng Trading Sdn Bhd v Sey Hoe Sdn Bhd & Ors [1995] 1 MLJ 241 (Supreme Court), recognized that not in all circumstances where assessment of damages is straightforward, hence can be easily quantified. This present case is one example. Having heard submissions by both parties, and in the absence of other alternatives, this Court is of the view enclosure 6R is without merits for all the reasons above. In addition, for breach of rules of evidence when reliance by D2 on statement being unsigned witness statement and expert evidence which would be tendered to form part of the assessment proceedings, were relied by D2 (see: Nguang Chan aka Nguang Chan Liquor Trader & Ors v Hai-O Enterprise Bhd & Ors [2009] 5 MLJ 40). [19] All issues posed in the questions in annexure A are already addressed and answered in the existing GOJs of the High Court particularly para 26 to 34 of [2012] 1 CLJ 228 the 28.7.2011 judgment, Page 14 of 15 the Court of Appeal and the Federal Court. The determination on ‘degree and extent of encroachment’ can be ventilated by both Plaintiff and D2 when experts are before this Court when determination exercise for the purpose of assessment of damages is conducted. Until then, in the absence of oath administered to the witness and not tested by way of cross-examination, it is still not one properly before this Court. [20] Parties would be at liberty to put forward their submissions on the respective testimonies of these witnesses, having heard the necessary witnesses testified and challenged by way of cross-examination. Case is directed to be fixed for hearing of assessment of damages. -Signed- (NURULHUDA NUR’AINI BINTI MOHAMAD NOR) Judge High Court of Malaya Johor Bahru Dated: 29th MAY 2024 Page 15 of 15 COUNSEL: For the Plaintiff: Ahmad Iyas Abidin bin Ahmad Husni Messrs. Thomas Philip Advocates & Solicitors 5-1 Jalan 22A/70A Wisma CKL Desa Sri Hartamas 50480 Kuala Lumpur For the 2nd Defendant: Steven Thiru David Mathew Chong Jen Hui Messrs. Kenth Partnership Advocates & Solicitors Suite J-03-07, Solaris Mont Kiara 2 Jalan Solaris 50480 Kuala Lumpur