Datuk Bandar Kuala Lumpur v R Meyyanathan A/L Retnasamy (W-01(NCvC)(W)-595-11/2023)

This is an appeal by the Appellant in respect of a decision by the High Court on 12.10.2023, which allowed the Respondent's claim for trespass and general damages.

My learned sisters, Justice Noorin Binti Badaruddin and Justice Faizah Binti Jamaludin have read this ground of judgement in draft and have approved the same.

The Respondent is an individual and the registered owner of a piece of land held under Geran 6462, Lot No. 9891, Mukim Petaling, Daerah Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur (hereinafter "the Land").

The Appellant is a body corporate established under the Local Government Act 1976 and a local government body for the Federal Territory of Kuala Lumpur.

The Respondent purchased the Land in 2004. In the year 2004 and 2013 respectively, the Respondent appointed a land surveyor to conduct a land survey on the Land.

As a result of a land survey dated 19.11.2013, the Respondent found that a structure which formed part of a drain built (hereinafter referred to as "the Drain") was on the Land and encroached onto the Land.

The Respondent alleged that the Appellant had erected and/or constructed the Drain onto the Land and the erection and/or construction of the Drain was done without his consent.

Consequently, the Respondent filed an action against the Appellant for the tort of encroachment and/or trespass.

The Appellant raised the defence of justification and pleaded statutory immunity for the existence of the Drain.

The Appellant pleaded that they are bestowed with a power under the law to maintain the Drain.

The Appellant also pleaded that the existence of the Drain is crucial to avoid any flash flood and/or erosion within the vicinity of the Land and is in the public interest.

The Respondent sought the following reliefs against the Appellant as follows (in Bahasa Malaysia):

Satu deklarasi bahawa Defendan telah menceroboh ke atas tanah Plaintif yang dipegang di bawah Suratan Hakmilik Geran 6462, Lot No. 9891, Mukim Petaling, Dearah Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur ("Tanah tersebut") dan Defendan dan/atau penamanya dan/atau wakil dan/atau agen-agen Defendan tidak berhak untuk masuk, menggunakan, meletakkan dan/atau mendirikan sebarang struktur atau pembinaan atau objek ke atas Tanah tersebut;

Satu injunksi mandatori bahawa Defendan diarahkan untuk mengalihkan dan/atau morobohkan dan/atau meruntuhkan segala struktur-struktur yang menceroboh ke dalam Tanah tersebut dalam tempoh empatbelas (14) dari tarikh Perintah di sini;

Sekiranya Defendan gagal mematuhi perintah di sini dalam tempoh empatbelas hari (14), satu injuksi mandatori bahawa Defendan diarahkan untuk memperolehi sebahagian Tanah tersebut yang mempunyai segala struktur-struktur dan objek-objek yang menceroboh ke dalam Tanah tersebut dengan harga yang pasaran serta pampasan bagi pecah pisah ("severance loss") dan penjejasan terbabit ("injurious affection") ke atas Tanah beliau yang wajar dan munasabah;

Gantirugi bagi pencerobohan yang ditaksirkan oleh Mahkamah Mulia sehingga pencerobohan tersebut tamat;

Gantirugi am;

Kos tindakan ini;

Faedah pada kadar 5% atas gantirugi-gantirugi berkenaan daripada tarikh tindakan ini hingga ke tarikh penyelesaian penuh; dan

Lain-lain relif yang Mahkamah Mulia ini fikirkan patut dan sesuai. [13] The High Court allowed the Respondent's claim and held, inter alia, as follows: i. the Appellant shall acquire parts of the Respondent's land measuring 2,411 square feet; and ii. the Appellant shall pay to the Respondent the damages for an amount of RM1,151,400.00; iii. the Appellant shall pay to the Respondent costs of RM45,000.00. C) ANALYSIS AND FINDINGS [14] The main issue in this appeal is whether the Appellant had trespassed on the Land of the Respondent. [15] In Segar Restu (M) Sdn Bhd v Wong Kai Chuan & Anor [1994] 2 MLRH 883, a trespasser was defined as follows: [7] Reading the pleadings, one would be able to detect the element of trespass. Who is a trespasser? In law, a trespasser is one who wrongfully enters on land in the possession of another, and has neither right nor permission to be on the land. Lord Dunedin in Robert Addie & Sons (Collieries) Ltd v. Dumbreck [1929] AC 358, 371 aptly described a trespasser as one who goes on the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to." (emphasis added) [16] In Tenaga Nasional Berhad v Bukit Lenang Development Sdn Bhd [2019] 1 MLRA 255, the Federal Court defined trespass as follows: "[23] Put simply, trespass onto land is the unlawful direct and immediate interference with the possession of land which is in the possession of another person, or which another person is entitled to possession of. A Latin maxim is frequently employed to define the extent of land: "cui us est solum, eius est usque ad coelum et ad inferos" he who owns the land, owns it all the way to the heavens and to hell. This principle is often referred to in its abbreviated form as ad coelum principle. In modern law, this principle is still accepted in limited form, and rights are divided into space rights and subsurface rights below." (emphasis added) The Drain was already in existence on the said Land even before the Respondent purchased the said land [17] The evidence adduced during the course of the trial showed that the Drain had existed on the said Land even before the Respondent purchased the land. The learned Judicial Commissioner ("JC") with respect, had therefore erred in fact and in law when failing to consider that the Drain had existed on the Land before the Respondent bought the Land. [18] The JC had relied upon a Survey Plan dated 30.11.2004 (P15) and another Survey Plan dated 19.11.2013 (P4) both prepared by PW3. [19] The JC in her Grounds of Judgment ("GOJ") said as follows: "[16] On the other hand, the plans that PW3 had undertaken - both in 2004 (P15) and 2013 (P4) show the location of the monsoon drains on the Plaintiff's land at that particular point of time respectively... Therefore, this Court is satisfied on a balance of probabilities that PW3's maps both 2004 (P15) and 2013 (P4) for comparison, showed where the monsoon drains are located on the Plaintiff's land and how much they had encroached unto it. The maps were done after conducting physical ground inspection and used scales for greater accuracy. [17] This Court accepts that the additional monsoon drain that thereafter existed at the southern perimeter of the Plaintiff's land shown in the 2013 map (P4) was not there when the land survey was conducted in 2004. [20] ... The evidence that can be relied on by this Court is the 2013 map P4 which showed that the monsoon drain as opposed to none in 2004 map (P15). This fact was affirmed by DW1 and DW2 as well. The Defendant was not able to produce any documents or records that showed the monsoon drain was constructed prior to 2004 (south of the Plaintiff's land)." [20] The JC had however, failed to consider the fact that there was a major contradiction between the Survey Plan 2004 (P15) prepared by PW3 and the oral testimony of the Respondent himself that the Drain had in fact already existed on the Land before he had purchased it. [21] The oral testimony of the Respondent is that he noticed the said Drain with his naked eyes except that he thought that the said Drain was outside the boundary of his premises but he was generally unsure of this. [22] In order to confirm the existence and whereabouts of the Drain, the Respondent then approached PW3 to conduct a land survey. [23] PW3 however testified that when he did the 1st survey in 2004 (P15), he did not see any drain. [24] PW3's testimony is as follows: "VIKNESH: Ok. In, to compare 2004 and 2013 plan, basically the only difference we can see is that additional monsoon drain running on the southern land of the perimeter and also there is new, what do you call it, slopes which have been built lah at the edge of the monsoon drain, which has also encroached into the Plaintiff's land." [25] However, when the Respondent approached PW3 for the second time in 2013, to carry out another survey, the Drain that the Respondent saw much earlier which PW3 claimed did not exist in 2004, was in existence in the year 2013 and encroached onto the Land. [26] This clearly gave rise to a contradiction between the statement by the Respondent and the land survey conducted by PW3 in 2004 which was not appreciated by the JC. [27] By way of contrast, the Appellant had produced, Lembar Susunan (D19) which was issued by the Jabatan Ukur dan Pemetaan Malaysia ("JUPEM") and was compiled from aerial photographs in 1974 and which shows a water stream running through the Land on the exact location where the Drain is now. [28] The Appellant also produced a Topography Map, Lembar 24 Petaling Jaya (D14) also issued by JUPEM. During the trial, DW1 testified that Exhibit D14 was compiled from aerial photographs in 1992 by a digital method and the field works were completed in 2003. [29] Both Exhibit D14 and Exhibit D19 respectively unmistakably show that there was a water stream running through the Land at the exact location where the Drain is located. [30] These documents fall within the ambit of section 83 of the Evidence Act 1950 which reads as follows: "Presumption as to maps or plans made by authority of Government

(1) The court shall presume that maps or plans purporting to be made by the authority of the Government of Malaysia or the Government of any State were so made and are accurate." [31] The JC had therefore, with respect, erred in failing to take judicial notice of the existence of the water stream on the Land as evident from both exhibits D14 and D19 respectively. [32] Although PW3 agreed that according to Exhibit D14, there was a drain that existed on the Land, he however said that Exhibit D14 is a low accuracy plan which was conducted through aerial photographs in 1990's as opposed to his ground survey which was conducted physically. PW3 contended instead that the Survey Plans in 2004 and in 2013 were very accurate. [33] PW3 further agreed that there is a "saliran" as shown in Exhibit D14 although it did not specify exactly what is the "saliran". [34] The legitimate question to be asked is since PW3 testified that the Survey Plan that he prepared was of higher accuracy than D14, how could a canal/waterway/drain which he agreed had existed as shown in Exhibit D14 fail to exist in the Survey Plan 2004? [35] PW3 also testified that "there (sic) probably a slope there, really small we could not fit into the Survey Plan." PW3 further testified that the scale of 1:250 of his Survey Plan is more accurate than the scale of 1:10000 of Exhibit D14. [36] This of course begs the question that if there is a "slope so small that could not fit into the Survey Plan" as testified by PW3, how could it possibly fit into Exhibit D14 which had the scale of 1:10000 but was too small for the Survey Plan 2004 which has the scale of 1:250? [37] The natural inference from this is that the Survey Plan 2004 prepared by PW3 was unreliable as it was also in contradiction to the other documentary and oral evidence adduced. [38] By way of contrast, D14 was compiled through aerial photographs and also verified through on-site physical inspection. [39] The JC had therefore, with respect, erred in placing reliance upon the said Survey Plan 2004. [40] The JC had also made a contradictory finding of fact that the Drain had yet to exist in 2004 while at the very same time, made the finding of fact that the Drain was already in existence prior to the Respondent purchasing the said land. [41] However, the JC went on to find that the taking part of Respondent's land without his permission was not legally acceptable. We find this to be plainly wrong on the part of the JC as the land did not belong to the Respondent at the time monsoon drain was built. [42] The pleaded case of the Respondent was that the Appellant has trespassed on the land without licence, or the Respondent's permission/consent to build a monsoon drain on the said land. [43] However, as the monsoon drain was already built prior to the Respondents purchase of the said land as per the findings of fact by the JC, it follows therefore that there cannot be trespass of the Respondent's land as he was not the owner of the land at the material time when the monsoon drain was built. The Appellant's Statutory Duties Under the Local Government Act 1976 [44] The Appellant is a local authority under the Local Government Act 1976 (Act 171) and pursuant to Sections 53 & 54 of the Street, Drainage, and Building Act 1974 (Act 133), the Appellant bears the obligation to maintain storm water drains, culverts, gutters and watercourses within the control of the Appellant. [45] As the Appellant is a local authority of the Federal Territory of Kuala Lumpur, it undoubtedly has a statutory duty to maintain storm water drains, culverts, gutters and watercourses within the Federal Territory of Kuala Lumpur. Defence of Justification [46] It inevitably follows that since the Appellant is mandated by law as stated above, to maintain storm water drains, culverts, gutters and watercourses within its sphere of control, the Appellant is lawfully entitled to rely upon the defence of justification in answer to an allegation of trespass. [47] In the case of Syarikat Air Negeri Sembilan Sdn Bhd v. One Visa Sdn Bhd [2017] 4 CLJ 718, it was held: "Diikhtisarkan dan sebagai titik permulaan, tort pencerobohan telah ditakrifkan oleh Clerk & Lindsell on Torts (12th edn) di ms. 1223 seperti yang berikut: Trespass to land consists in any unjustifiable intrusion by one person upon land in the possession of another." [48] The court in that case discussed the defence of justification as follows, quoting from Clerk & Lindsell On Tort at pages 1236-1238, paragraphs 19-29: "[27] Dapat diperhatikan dalam kes-kes tort pencerobohan ini, sama ada melalui nas-nas langsung (direct authority) atau sebaliknya, sifat-sifat (traits) am yang ada dalam kesemua keadaan pencerobohan itu ialah adanya kemasukan (entry or intrusion) atau jika pada mulanya dibenarkan, telah berada atas hartanah berkenaan seterusnya, tanpa apa apa kewajaran (unjustifiable). Dengan itu, kewajaran (justification) boleh menjadi dalihan kepada tort ini. Namun, kewajaran itu akan gugur jika kebenaran yang diberi itu, sama ada oleh pemilik atau oleh wewenang undang undang, disalah guna atau telah tamat kuat kuasanya di bawah undang-undang yang berkenaan. Clerk & Lindsell On Tort, supra, di ms. 1236-1238, perenggan 19-29, menyatakan inter alia:

Justification of Trespass Justification of trespass. An entry upon the claimant's land is not a trespass if it is justifiable. Justification of the entry may be afforded either by operation of law, or by the act of the claimant or of his predecessors in title, where the entry is made under a right of easement or of profit a prendre, or under a licence, and a like rule applies where persons deviate on to private land because the owner of such land has obstructed a right of way adjacent thereto..." (emphasis added) [49] The case of Azman Yaacob v Tenaga Nasional Bhd [2025] 5 CLJ 531 relying on the case of Oakfield Enterprise Sdn Bhd v Tenaga Nasional [1998] MLJU 70, held that where there was justification of entry afforded by operation of law, it cannot constitute trespass. [50] In the case of JMJ Food & Beverages Sdn Bhd v Mohamad Zukrillah Ismail [2016] 4 CLJ 368, the majority judgement also referred to Clerk & Lindsell on Torts that trespass to land consists in any unjustifiable intrusion by one person upon land in the possession of another. [51] Although the Appellant pleaded the defence of justification, the JC rejected the same based upon the failure of the Appellant to provide any reasonable statutory notice to the Respondent for entry into the said Land. [52] The JC however, with respect, failed to consider that the pleaded case of the Respondent was not in respect of the entry onto the land but was instead in respect of the existence of the Drain upon the land which they asserted constituted a trespass. [53] In this respect the JC had erred when she took into account matters which were not pleaded in coming to her findings. [54] The JC further erred when despite finding that the existence of the Drain on the Respondent's Land was essential and critical to the entire drainage network in Kuala Lumpur, her Ladyship dismissed the Appellant's defence of justification. The Drain was a Necessity for Public Interest [55] Although the JC had rejected the defence of justification, in her Ladyship's Grounds of Judgment, she nevertheless held that it would not be in the public interest to have it removed. [56] The relevant excerpt from the Grounds of Judgment is as follows: [43] Based on the topography map, the position of the main monsoon drain on the Plaintiff's land is where two other main drains meet and converge. Therefore, it is very critical. To remove or relocate it would disturb and disrupt the efficient flow of water. In the absence of any other suggestions or alternatives, this Court finds that it would not be in the public interest to have it removed or relocated from its current position even though it has encroached upon the Plaintiff's land. Even the Plaintiff in cross-examination had agreed that the water flows through that monsoon drain from the higher land to the lower land and is connected to another monsoon drain and later discharged into the river. The Plaintiff had confirmed that there were no flash floods that occurred on his land since he had owned it. [44] Premised on the evidence adduced at trial, to order the Defendant to remove or relocate the main monsoon drain is unreasonable, inconvenient, impractical and unjust. DW2 confirmed the necessity of the said main monsoon drain on the Plaintiff's land. Hence, this Court will not order for the monsoon drains located onto the Plaintiff's land and bordering it to be removed or relocated. The basis is public interest. Accordingly, there must be other means of resolution to this matter." (emphasis added) [57] Having held that the existence of the monsoon Drain upon the said Land was a necessity on grounds of public interest, the JC had erred in failing to consider that there was thus sufficient justification for the intrusion. Statutory Immunity under Section 95 (2) of Street, Drainage and Building Act 1974 (Act 133) [58] Section 95(2) of Act 133 reads as follows: "(2) The State Authority, local authority and any public officer or officer or employee of the local authority shall not be subject to any action, claim, liabilities or demand whatsoever arising out of any building or other works carried out in accordance with the provisions of this Act or any by-laws made thereunder or by reason of the fact that such building works or the plans thereof are subject to inspection and approval by the State Authority, local authority, or such public officer or officer or employee of the State Authority or the local authority and nothing in this Act or any by-laws made thereunder shall make it obligatory for the State Authority or the local authority to inspect any building, building to ascertain that the provisions of this Act or any by-laws made thereunder are complied with or that plans, certificates and notices submitted to him are accurate." [59] Section 95(2) of Act 133 thus grants immunity to the local authority from any action, claim, demand and liability while discharging its statutory duty. [60] This objective can also be discerned from the explanatory statement to the Street, Drainage and Building Bill 1974, in particular section 95(2) of the Bill which states as follows: "Clause 95 protects the State Authority or any one carrying out the terms of this Act from personal liability and imposes such liability on the local authority (clause 96)". [61] In the case of Dato' Seri Anwar Ibrahim v PP [2010] 9 CLJ 625, the Federal Court resorted to the explanatory statement to a statute as an aid to interpret the purpose of the legislation. [62] In the case of Majlis Perbandaran Ampang Jaya v. Steven Phao Cheng Loon & Ors [2006] 2 MLJ 389 the Federal Court discussed the issue of the immunity given by s. 95(2) of Act 133 as follows: "Thus, when the facts as found by the learned trial judge which were accepted by the Court of Appeal are examined in the context of the specific provision under s 95(2), in particular the second and third limbs thereof, they fall squally within its ambit. In my view, MPAJ and/or its predecessor Majlis Daerah Gombak are fully protected from liability under the said section." [63] In the case of UDA Holdings Bhd v Koperasi Pasaraya Malaysia Bhd & Other Appeals [2009] 1 CLJ 329 the Federal Court in a majority judgement held: [143] On the first point of error made by the Court of Appeal I am of the view that although the Federal Court in the Highland Towers case expressly referred to negligence and nuisance in its judgment, the policy considerations must necessarily refer and extend to all claims in tort, resulting in economic loss brought against local authorities, as otherwise, the rationale of the Federal Court decision (i.e., to preclude such claims against local authorities), would be lost." (emphasis added) [64] On a totality of the evidence, the action of trespass was not made out by the Respondent.

[65] Based upon the reasons enumerated above, it was clear that with the greatest of respect, the learned JC had made findings which, from the clear evidence adduced at trial, was plainly wrong. See Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97 and Jalani Mohamed & Anor v. Shahrom Abdullah & Anor [2024] 4 CLJ 868. [66] Appellate intervention was thus warranted. We find that the JC was also wrong to order that the Appellant acquire part of the Respondents land since the Appellant does not have the power to do so and was not in a position to do so under the law. Under the Land Acquisition Act 1960, the legal power to compulsorily acquire land is vested exclusively in the State Authority. [67] We further find that the JC had no basis to order the payment of damages of RM200.00 per day as the Respondent had not discharged his burden of proof in respect of the said amount. [68] In the premises, we allow the appeal with costs and set aside the order of the JC. [69] The costs awarded by the High Court of RM45,000.00 is to be refunded to the Appellant. [70] We award costs of this appeal of RM20,000.00 to the Appellant subject to allocatur. Dated :19 Februari 2026 (COLLIN LAWRENCE SEQUERAH) Judge Court of Appeal, Malaysia Counsel of the Appellant:

Muhamad Nakhaie Ishak

Waqiyuddin Najmullah Messrs J. Lee & Associates Menara UOA Bangsar, A-16-13, Tower A, No. 5, Jalan Bangsar Utama 1, 59000 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur. Counsel of the Respondent :

Muralidharan Kalidass

Ahmad Amir Mukhlis Bin Ahmad Shakir Messrs Wong & Kiu, C-03-07, Pusat Komersial Southgate, No.2 Jalan Dua, Off Jalan Chan Sow Lin, 55200 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur.