Fairise Odyssey (M) Sdn. Bhd. v Tenaga Nasional Berhad (W-02(NCVC)(W)-1267-07/2014)

This was an appeal against the decision of the learned Judicial Commissioner (JC) who dismissed the Appellant‟s/Plaintiff‟s claim with costs of RM30,000.00.

We heard the appeal and had unanimously dismissed it with costs of RM20,000.00 and ordered the deposit to be refunded. We now give our reasons for doing so.

For ease of reference, we will refer the parties as they were in the Court below.

The background facts are as laid out by the learned JC in her Grounds of Judgment and we reproduce them here with such modifications as are necessary.

The Plaintiff‟s claim was in respect of a piece of land described as HS(D) No. 10045, PT No. 3980, Mukim Gemas, District of Tampin, Negeri Sembilan, measuring about 144.272 hectares (Land). It was originally State land. In the 1980‟s the State Government of Negeri Sembilan decided to develop the Land into an industrial zone. It 3 approved the alienation of the Land to Metro Angkasa Sdn. Bhd. (Metro Angkasa) in 1990. The alienation was cancelled in 1992 when Metro Angkasa failed to pay the land premium within the stipulated period.

In 1992, the Defendant engaged HG Power Transmission Sdn. Bhd. (HG Power) for the construction, installation and laying of high tension power transmission lines (transmission lines) on the Land. The works were completed sometime in November 1994.

In the meantime, Metro Angkasa successfully appealed against the cancellation of the sale of the Land to it. On 22.10.1993, the Land was alienated to Metro Angkasa.

Sometime in March 1996, Metro Angkasa charged the Land as security to Southern Bank for banking facilities granted to it. The Land was foreclosed when Metro Angkasa defaulted in its monthly payments and was sold to CIMB Bank Berhad (CIMB) on 2.8.2006. On 11.1.2010, CIMB entered into a sale and purchase agreement to sell the Land to Elitprop Sdn. Bhd. (Elitprop) on a “as is where is basis”. At the request of Elitprop, CIMB transferred the Land to the Plaintiff, its nominee, vide an agreement dated 1.11.2010.

On 30.12.2010, the Plaintiff, being the registered proprietor of the Land, objected to the existence of the transmission lines which occupied 4 about 5.4643 hectares of the Land (Disputed Area). There is no endorsement on the document of title to show any encumbrance or the existence of the transmission lines on the Land.

It is not disputed that on 25.8.1992, a separate individual title was issued and registered in the Defendant‟s name for a strip of land known as HS(M) 1561, PT No : 3926, Mukim Gemas, Negeri Sembilan, measuring 2.2356 hectares. That strip of land had originally been part of the Land until it was carved out by the State Authority and given to the Defendant for the construction of a power sub-station (TNB substation). The transmission lines are connected to the TNB substation and form part of the electricity grid that supplies power to residents living in the area from Gemas to Kuala Pilah.

On 30.5.2011, the Plaintiff filed this action against the Defendant alleging continuing trespass. The Plaintiff alleged that the transmission lines had been erected on the Land without the approval of the State Authority.

The Plaintiff therefore sought in the main the following reliefs:

12.1 a declaration that the use and/or possession of the Disputed Area by the Defendant is unlawful and void ab initio; 5

12.2 damages to be assessed and paid by the Defendant to the Plaintiff in respect of the loss of the Disputed Area by reason of paragraphs 11 and 12 of the Statement of Claim;

12.3 damages for trespass over the Disputed Area;

12.4 aggravated and exemplary damages;

12.5 an Order that the Defendant shall deliver vacant possession of the Disputed Area to the Plaintiff within seven days from the date of the Order.

It was contended by the Plaintiff that the transmission lines constituted a continuing trespass to the Land because it had been erected without the approval of the State Authority.

The Defendant had denied trespass and averred that it had the approval of the State Authority to do so. The Defendant relied on implied approval. The Defendant submitted that it was improbable that the State Authority would have alienated the land for the construction of the TNB substation if it had not approved the erection of the transmission lines on the Land. A substation served no purpose unless it was connected to the electricity grid by the transmission lines. So therefore the State Authority had implicitly given its approval for the erection of the transmission lines when it approved the construction of the TNB substation. 6

There was only one issue before the learned JC for her determination, which was – “whether the State Authority had given their approval to the Defendant to construct, install and lay a 132 KV transmission lines over the Plaintiff‟s land which at the material time was State owned land involving approximately 5.4643 hectares (the Disputed Area) out of the total of 144.272 hectares alienated, and if in the affirmative whether such approval binds all parties who have taken ownership of the Land including the Plaintiff?”

Before answering the agreed issue, the learned JC considered 2 sub-issues raised by the Plaintiff, they were –

16.1 whether the approval for the Defendant to construct the transmission lines must be in writing?

16.2 whether the approval must be given by the State executive Committee? Whether approval must be in writing

As there was a dispute between the parties as to whether the Electrity Supply Act 1990 (1990 Act) or its precursor Electricity Act 1949 (1949 Act) was applicable to the present case, it is convenient to 7 reproduce the relevant section of the said Acts, that is, section 52 of the 1949 Act and section 12 of the 1990 Act as follows: 1949 Act “52. For the purpose of constructing a supply line for any Board installation, the Chairman or any person authorized by him in that behalf may, at all reasonable times, enter upon any State land and may, subject to the approval of the State Authority, erect in or upon that State land such posts and other apparatus as may be necessary or proper for the purposes of the installation, and may carry out all necessary works in connection therewith, and may, in the course thereof, fell or lop trees, remove vegetation and do all other things necessary to the said purposes: Provided that –

(a) when any such work interferes with improvements, buildings, growing trees or crops, the Board shall pay compensation in accordance with section 58 for disturbance or damage; and

(b) where the land is occupied under a licence for temporary occupation, the compensation shall be paid to the occupant under the licence, and where the land is occupied under an approved application, such compensation shall be paid to the applicant recorded in the roll of approved applications, by whatever name such roll is called in the State wherein the land is situate.” 1990 Act “12. Supply lines and other equipment on State land

The learned JC was of the view that the 1990 Act was applicable to the present case as the erection of the transmission lines had commenced in 1992. In any case, she found that whether it was the 1949 Act or the 1990 Act, both Acts require the Defendant to obtain the approval of the State Authority. So the question arose whether the approval must be in writing. After referring to several authorities (Bennion on Statutory Interpretation, 6th Ed. s313; Multi Purpose Bank Bhd v Diamond Agreement Sdn. Bhd. [2000] 5 MLJ 576; Tenaga Nasional Bhd v Ong See Teong & Anor [2010] 2 MLJ 155), the learned JC found that both section 52 of the 1949 Act and section 12 of the 1990 Act did not require the approval of the State Authority to be expressly in writing. Therefore the statutory language must be read in its plain and ordinary context, which is, both provisions permit express and implied approval of the State Authority. Whether approval must be given by the State Executive Committee?

Since both section 52 of the 1949 Act and section 12 of the 1990 Act refer to the term “State Authority”, the Plaintiff argued that it referred to the State Executive Committee based on the Articles in The Laws of 9 the Constitution of Negeri Sembilan 1959 (Negeri Sembilan State Constitution) and section 3 of the Part I of the Interpretation Acts 1948 and 1967 (the Interpretation Acts) as well as the Federal Court case of PP v Haji Harun Haji Idris [1977] 2 MLJ 15, at page 20, where it was held that– “…It is the Executive Council who is the executive organ of the State Authority and exercise executive functions in the name of the Ruler…”.

The Defendant argued that, with reference to section 5,12,13,15 of the National Land Code (NLC) and the Federal Court Case of Government of the State of Negeri Sembilan & Anor v Yap Chong Lan & 12 Ors, Lesco Development Corporation Sdn. Bhd. v Yap Chong Lan & 12 Ors [1984] 2 MLJ 123, “State Authority” refers to the State Director of Lands and Mines.

After due consideration of the parties‟ arguments, the learned JC agreed with the submission of the Plaintiff and that the approval must be given by the State Executive Committee.

The learned JC then considered whether the Defendant had the implicit approval of the State Authority. She concluded that the evidence tendered by the Defendant showed that the Defendant had the approval of the State Authority and that the approval bound all parties who have taken ownership of the Land subsequent to its alienation to Metro 10 Angkasa. The learned JC found that the Plaintiff had failed to prove continuing trespass and proceeded to dismiss the Plaintiff‟s claim. This what the learned JC stated, at paragraphs 40 to 43 of her Grounds of Judgment, - “40. I now come to the critical issue in this case, to wit, did TNB have the implicit approval of the State Authority to erect the transmission lines on the land.

The State Executive Committee minutes of 8 August 1990 clearly demonstrates that the State Authority was aware of TNB‟s plan to erect a transmission line which would run from Kuala Pilah to Gemas. The minutes further show that it was for this specific reason that the State Authority had alienated land to TNB for the construction of a TNB substation on the land. A substation without a transmission line would serve no purpose. It is the transmission line, that connects the electricity system from Kuala Pilah to Gemas. It facilitates the transfer of power to consumers from the power stations and substations. For these reasons, it appears to me that that the State Authority not only did not object but approved the construction of the transmission lines. In my view, by their conduct, the State Authority had implicitly approved the erection of the transmission line on the land. In this regard, I refer to the Kertas Kerja attached to the minutes of the State Executive Committee meeting dated 8 August 1990 (“kertas mesyuarat bil. 1168/90”). It read in part as below : “Tujuan Tujuan kertas kerja ini adalah untuk mendapatkan pertimbangan Majlis Mesyuarat Kerajaan Negeri terhadap : - i. Permohonan dari Syarikat Angkasa Sdn Bhd untuk memiliki dan memajukan tanah kerajaan seluar 400 ekar di Mukim Kuala Gemas, Daerah Kecil Gemas sebagai kawasan perusahaan; ii. … Latarbelakang Kawasan yang dipohon merupakan tanah kerajaan seluas 400 ekar terletak di Mukim Kuala Gemas daerah kecil Gemas. Kawasan ini terletak 23 km di utara Pekan Gemas berhampiran 11 dengan Sungai Gemas dan bersempadan dengan daerah Segamat di Negeri Johor di sebelah selatannya. … Kemudahan Infrastruktur Dari segi kemudahan infrastruktur beberapa program pembangunan telah dirancangkan oleh Jabatan-jabatan/Agensi yang terlibat. Bekalan Elektrik Pihak LLN telah merancang untuk membina 2 buah Pencawang Masuk Utama (PMU) dikawasan dengan keupayaan 2 x 30 MVA. Projek ini akan dibuat melalui projek pemasangan kabel LLN dari Segamat ke Kuala Pilah yang melalui kawasan Gemas. Sebuah tapak pencawang seluas 4 ekar telah diluluskan oleh Pentadbir Tanah Daerah Kecil Gemas bagi keperluan ini, berdasarkan dengan kawasan tanah yang dimohon.” (emphasis added)

In my judgment, the absence of any endorsement on the register of title, does not vitiate the implied consent given to TNB. I accept the evidence of Khairil that the existence of the transmission lines is not endorsed on the register document of title as no survey has been done as the land is still held under a qualified title. It would be endorsed on the final title only after a survey is done.

On the evidence, it is clear that since 1992, the transmission line has been on the subject land. There is no evidence that any of the original owners had ever objected to the presence of the transmission line. Where there is a lengthy period during which materials remain on the land without objection or without a request for those materials to be removed, the law does not permit a landowner to assert a claim in trespass. In the instant case, there is no evidence that either the State Authority or Metro Angkasa or CIMB had protested about the transmission line…”

Not happy with the learned JC‟s decision to dismiss the Plaintiff‟s claim, the Plaintiff now appealed to us. 12

Before us, the Plaintiff only raised one issue, that is, whether the State Authority had given its approval to the Defendant, whether under section 52 of the 1949 Act or section 12 of the 1990 Act.

At the outset, we found that the learned JC‟s finding that the provisions of 1990 Act applied to this case was correct as the erection of the transmission lines had commenced in 1992. The 1990 Act came into force on the 1.9.1990 (see P.U.(B) 494/1990). Section 56(1)of the 1990 Act provides that “The Electricity Act 1949 and the Electrical Inspectorate Act 1983 are hereby repealed.” So on 1.9.1990, the 1949 Act was repealed. Our focus will therefore be on the provisions of section 12 of the 1990 Act.

We agreed with the learned JC‟s finding that based on the authorities cited by her (see paragraph 18 above), section 12 of the 1990 Act did not require the approval of the State Authority to be expressly in writing. As per Zulkefli CJ (Malaya) (as he then was) (delivering the judgment of the Federal Court) in Tenaga Nasional Bhd. v Majlis Daerah Hulu Terengganu [2014] 6 MLJ 800, at page 809, paragraph 16 – 13 “…It is a principle of interpretation of statute that the words used in a section must be given their plain grammatical meaning…” We also agreed with the learned JC‟s finding that section 12 of the 1990 Act permits the express or implied approval of the State Authority.

With regards to the issue of which person or body of persons who actually represents the “State Authority”, we again agreed with the learned JC‟s reference to the Negeri Sembilan State Constitution, section 3 of Part 1 of the Interpretation Acts and the case of PP v Haji Harun Haji Idris (supra) for this determination with one correction. That is, we found that instead of referring to the “State Executive Committee” as being the body of person exercising the executive functions in the name of the Ruler, it should have been reference to the “State Executive Council”. See Article XXXV of the Negeri Sembilan State Constitution which provides as follows: “EXECUTIVE XXXV. (1) The executive authority of the State shall be vested in the Ruler and exercisable, unless otherwise provided by the Federal Constitution or this Constitution, by his Highness or by the State Executive Council or any member of the State Executive Council, authorised by the State Executive Council, but executive functions may by law be conferred on other persons or authorities.

As for the learned JC‟s finding of fact that the State Authority had implicitly vide conduct of the relevant parties approved the erection of the transmission lines on the Land, we saw no reason to disturb her finding (see paragraph 22 above). It is trite law that an appellate court should be slow in disturbing the finding of facts by the trial court and we did not see the necessity to do so (see China Airlines Ltd. v Maltran Air Corp. Sdn. Bhd. & Another Appeal [1996] 3 CLJ 163).

The Plaintiff‟s counsel drew our attention on the Federal Court decision of Tenaga Nasional Bhd v Majlis Daerah Hulu Terengganu (supra) (Majlis case) in particular paragraph 14, on the need to furnish any credible evidence such as the extract copy of the decision of the Majlis Mesyuarat Kerajaan Negeri Terengganu („the state authority‟) and its gazette notification to support the Majlis Daerah Hulu Terengganu‟s contention that the 1999 valuation list had been extended by the state authority. We were of the view that the Majlis case was not relevant for the purpose of construing section 12 of the 1990 Act as the Majlis case was centred on the interpretation of sections 137 and 141 of the Local Government Act 1976 relating to rates and assessment thereof, which 15 obviously were not in issue in our case. In any event, in our case, the minutes of the State Executive Council dated 8.8.1990 referred to by the learned JC served the purpose of showing the State Authority‟s approval of the construction of the transmission lines. If the State Authority did not approve the construction of the transmission lines, it would not be possible for the said minutes of the State Executive Council to be so worded. E.

Based on the above reasons, we did not find any appealable error in the learned JC‟s decision, taking into consideration the facts of the case and the conduct of parties. We unanimously dismissed the Plaintiff‟s/Appellant‟s appeal with cost of RM20,000.00 and ordered the deposit be refunded. sgd (UMI KALTHUM BINTI ABDUL MAJID) Judge Court of Appeal Malaysia Putrajaya Dated: 22.05.2018 16 Counsels/Solicitors For the Appellant : Datuk Bee Chan together with Chin Yu Yen from Messrs. Shyong Wee & Danny. For the Respondent : Dato' Alvin John together with Steven Thiru, B. Thinagaran and Gregory Das from Messrs. Alvin John & Partners.