Lee Sok Lie v Majlis Perbandaran Hang Tuah Jaya (MA-21NCvC-7-10/2025)

KERAJAAN MALAYSIA ... DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (Enclosure 26 the First Defendant's Application to Strike Out) A. INTRODUCTION [1] Enclosure 26 is an application by the First Defendant, Majlis Perbandaran Hang Tuah Jaya, to strike out the Writ (Enclosure 1) and the Statement of Claim (Enclosure 2) as against itself. It is brought under Order 18 rule 19(1)(a), (b) or (d) of the Rules of Court 2012 and, in the alternative, under the inherent jurisdiction of this Court. [2] The action is one in trespass. The Plaintiff is the registered proprietor of the land held under GM 618, Lot 1356, Mukim Ayer Molek, Daerah Melaka Tengah, Negeri Melaka ("Lot 1356"). She says that a road and a collection of structures serving a housing development known as Taman Molek Residen have been built upon, and remain upon, her land. She sues the local authority, the utility providers, the public works authorities, the land office and the two Governments. She has not sued the developer. [3] The First Defendant says that this claim, so far as it concerns the First Defendant, is hopeless on its face and hopeless on the facts, and that in any event it is out of time. Whether that is so is the question to which these grounds are directed. B. THE CAUSE PAPERS [4] The papers material to Enclosure 26 are these. The Writ (Enclosure 1) is dated 16.10.2025. The Statement of Claim (Enclosure 2) is subscribed 15.10.2025 and was filed with the Writ on 16.10.2025; nothing turns on the discrepancy, and I shall take the action as having been commenced on 16.10.2025, as both parties did. The First Defendant's Statement of Defence (Enclosure 20) is dated 23.01.2026, and the Plaintiff's Reply to the Defences is dated 06.04.2026 (Enclosure 28). [5] Enclosure 26 is dated 27.03.2026. It is supported by the affidavit of Sapiah binti Haron, affirmed on 27.03.2026 (Enclosure 27). The Plaintiff affirmed her affidavit in reply on 27.04.2026 (Enclosure 29). The First Defendant's affidavit in reply, again of Sapiah binti Haron, was affirmed on 14.05.2026 (Enclosure 30). The written submissions are Enclosure 31 (dated 15.06.2026) and Enclosure 36 (dated 09.07.2026) for the First Defendant, and Enclosure 34 (dated 24.06.2026) and Enclosure 38 (dated 13.07.2026) for the Plaintiff. I have had regard also to the Defences of the other Defendants, which are on the file of this Court: the Amended Defence of the Third Defendant (Enclosure 23), the Defence of the Fifth, Seventh and Eighth Defendants (Enclosure 24) and the Defence of the Sixth and Ninth Defendants (Enclosure 25). The First Defendant relied upon passages in the last two; the Plaintiff, upon passages in all three. C. THE PLAINTIFF'S PLEADED CASE [6] The Statement of Claim, so far as it concerns the First Defendant, pleads as follows. [7] First, that the Plaintiff is the registered proprietor of the whole of Lot 1356 (paragraph 11). [8] Secondly, that the First Defendant is the interested party administering the municipal affairs of Hang Tuah Jaya, Melaka, and is responsible, among other things, for traffic management and general maintenance, including the erection of road signboards for the convenience of urban infrastructure (paragraph 12). [9] Thirdly, that around the end of 2024 the Plaintiff became aware of a newly constructed road fronting the housing project known as Taman Molek Residen, and that the road had been built upon Lot 1356 (paragraph 16). [10] Fourthly, that in or about January 2025 the Plaintiff appointed a licensed surveyor, Tetuan Kumpulan Ukur Petanah, to survey Lot 1356, and that the survey revealed encroachment upon and use of the land by the Defendants (paragraph 17). [11] Fifthly, and centrally, that the Defendants jointly and/or severally, wrongfully and without the Plaintiff's knowledge, consent or permission, constructed and/or permitted to be constructed upon Lot 1356 (paragraph 18): twelve electricity poles belonging to the Third Defendant; four telephone poles belonging to the Fourth Defendant; a road shoulder and four access roads under the control of the First, Fifth and Sixth Defendants; two water meters belonging to the Second Defendant; a manhole belonging to the Fourth Defendant; a traffic light manhole under the control of the First, Fifth and Sixth Defendants; and road signboards belonging to the First Defendant. [12] Sixthly, that those structures have remained on Lot 1356 from the day they were first built and remain there to this day (paragraph 19); that the entry and the structures constitute a trespass which has denied the Plaintiff the use of her land and damaged it (paragraphs 20 and 21); that a notice of demand was issued through solicitors on 23.06.2025 (paragraph 23); and that the Defendants have refused to comply and have allowed the structures to remain (paragraph 24). [13] The relief claimed includes general, aggravated and exemplary damages, a mandatory injunction for removal of the structures, and, in the alternative, acquisition of 0.347 hectare (3,470 square metres) of Lot 1356 under section 3 of the Land Acquisition Act 1960 with compensation of RM1,214,500.00 computed at RM350.00 per square metre. I record, without attaching consequence to it at this stage, that the certified copy of the title exhibited by the First Defendant records the area of Lot 1356 as 0.3407 hectare (Exhibit SH-3 Enclosure 27). D. THE FIRST DEFENDANT'S CASE [14] The First Defendant's answer, as developed in Enclosures 27, 30, 31 and 36, may be reduced to five propositions. [15] (a) There was no "new road" on Lot 1356 at all. The road adjacent to Lot 1356 is Jalan Kandang-Jasin (Route 144), which the First Defendant says has existed for many decades. The "new road" serving the project was constructed by the developer upon the developer's own land, comprising Lot 14552 (Mukim Ayer Molek, Daerah Melaka Tengah), Lot 1406 and Lot 3727 (both Mukim Ayer Panas, Daerah Jasin), as shown in the layout plan exhibited as "SH-2" to Enclosure 27. [16] (b) Route 144 was declared a Federal road with effect from 04.09.2003 by the Federal Roads (West Malaysia) Amendment) (No 5) Order 2003. The signboards, road shoulder, four access roads and traffic light manhole (collectively, "the Structures") form part of Route 144. Responsibility for traffic signs and for access roads connected with a Federal road lies, under the Road Transport Act 1987, with the Minister of Works and not with a local authority. The First Defendant therefore neither erected, owns, nor controls the Structures, and is not a proper party. [17] (c) Any encroachment arising from the construction works was the act of the developer, whom the Plaintiff has chosen not to sue. [18] (d) The claim is in any event time-barred. Lot 1356 was first alienated on 09.02.1909. The Plaintiff acquired it on 06.11.2007. Route 144 and the Structures already existed then. Any cause of action accrued on acquisition, and the action, commenced on 16.10.2025 nearly eighteen years later, is barred by section 124 of the Local Government Act 1976 read with section 2 of the Public Authorities Protection Act 1948 and/or section 6(1)(a) of the Limitation Act 1953. I adopt the First Defendant's own rendering of those provisions in Enclosure 31; in the affidavits, and in the Plaintiff's submissions, they are rendered as section 2(a) of the former Act and section 6 of the latter. Nothing turns upon the difference on this application. [19] (e) The First Defendant was itself constituted a local authority only with effect from 01.01.2010, by a notification under section 3 of the Local Government Act 1976 published in the Warta Kerajaan Negeri Melaka dated 17.12.2009 (Enclosure 30, paragraph 9(c), and Exhibit "SH-1" thereto). It could not, it says, have erected anything before that date. E. GOVERNING LAW AND FRAMEWORK [20] Order 18 rule 19(1) of the Rules of Court 2012 permits the Court, at any stage of the proceedings, to order that a pleading be struck out on the ground that (a) it discloses no reasonable cause of action or defence; (b) it is scandalous, frivolous or vexatious; (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court. [21] The governing principle is not in dispute, and both sides invoked it. In Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 1 MLRA 611, the Supreme Court held that the principles upon which the Court acts in exercising its power under any of the four limbs of the rule are well settled: it is only in plain and obvious cases that recourse should be had to the summary process, and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable. [22] Two consequences follow, and they are the discipline of this application. [23] The first is a matter of procedure. Where the application is founded on limb (a), no evidence is admissible: Order 18 rule 19(2). The question is whether the pleading, taken at its highest and assumed to be true, discloses a cause of action known to law. The exhibits which the First Defendant has placed before me - the layout plan, the gazette order, the certified copy of the title and land plan, Form 14A and the photographs - are simply not available to it on that limb. They are available under limbs (b) and (d) and under the inherent jurisdiction, but there they encounter the second consequence. [24] The second is a matter of function. A striking out application is not a trial on affidavit. In The Golf Cheque Book Sdn Bhd & Anor v Nilai Springs Bhd [2006] 1 CLJ 259, Gopal Sri Ram JCA held that an application to strike out an action under Order 18 rule 19 must not be permitted to degenerate into a trial on affidavit; the task of the court is to determine whether the pleadings have thrown up facts warranting a trial of the action. A pleading which is weak, or which the defendant is confident of defeating, is not for that reason a pleading which discloses no reasonable cause of action. A reasonable cause of action, as the Plaintiff correctly submitted, means a cause of action with some chance of success. [25] I bear in mind also Order 1A and Order 92 rule 4 of the Rules of Court 2012, to which the Plaintiff referred me: the Court is to have regard to the justice of the case and not only to technical non-compliance, and it retains an inherent power to prevent injustice or an abuse of process. Those provisions cut both ways. They do not licence the continuation of a claim that is truly hopeless; equally, they do not permit a claim with a triable core to be terminated because it is inelegantly pleaded. F. ANALYSIS AND DETERMINATION The Dispositive Question [26] Stripped of its detail, this application turns on a single question: is it plain and obvious, without a trial, that the Plaintiff cannot succeed against the First Defendant? That question has three components — whether the Statement of Claim pleads a cause of action in trespass against the First Defendant at all; whether the First Defendant's factual answer is so incontrovertible that a trial would be a waste; and whether limitation supplies a complete and obvious bar. I take them in that order. Whether the Statement of Claim Discloses a Reasonable Cause of Action [27] The elements of trespass to land are not controversial and were common ground. The First Defendant itself cited Segar Restu (M) Sdn Bhd v Wong Kai Chuan & Anor [1994] 3 MLJ 530, where the High Court adopted the classic formulation: 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; and, per Lord Dunedin in Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929] AC 358 at p 371, 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. [28] Measured against that formulation, the Statement of Claim pleads: title and possession in the Plaintiff (paragraph 11); the placing of physical structures upon her land (paragraphs 16 to 19); the absence of her knowledge, consent or permission (paragraph 18); the continuance of the structures upon the land (paragraph 19); and consequent loss (paragraphs 20 and 21). Every ingredient of the tort is there. [29] The First Defendant's answer, put at its highest in Enclosure 36, is that the Statement of Claim pleads only the First Defendant's general status as the local authority for the area and no material facts as to how the First Defendant owned, controlled or maintained the Structures, or how it committed, authorised or participated in the trespass; and that the Plaintiff cannot rely on status alone to infer liability. That submission is attractively put, but it does not survive a careful reading of the pleading. [30] Paragraph 18 does not stop at status. It pleads, as a positive allegation of fact, that the Defendants the First Defendant among them constructed and/or permitted to be constructed upon Lot 1356 the road shoulder and the four access roads, and the traffic light manhole, each said to be under the control of the First, Fifth and Sixth Defendants; and the road signboards, said to belong to the First Defendant. An allegation that a defendant built, or permitted the building of, an object on the plaintiff's land, and that the object is the defendant's and under its control, is an allegation of authorship, authorisation and continuing occupation. It is not a bare recitation of municipal function. [31] Nor is that reading a strained one. Paragraph 6 of the First Defendant's own Statement of Defence answers paragraph 12 of the Statement of Claim in two parts. It puts the Plaintiff to strict proof of the allegation that the First Defendant is responsible for traffic management and general maintenance involving the erection of road signboards; and it admits the remaining averments in paragraph 12 as to the First Defendant's responsibilities, to the extent provided under the relevant written law. The First Defendant is therefore right to say, as it does in Enclosure 36, that it has admitted nothing as to the signboards. But an averment which a defendant meets by putting the plaintiff to proof is, by definition, an averment which awaits proof. Whether the First Defendant's functions extend to the erection of the road signboards which the Plaintiff says stand on Lot 1356 and belong to the First Defendant is therefore an issue joined upon the pleadings. It is a matter for evidence, not for summary disposal. [32] I should say at once what this finding does not decide. It does not decide that the First Defendant erected anything. It does not decide that anything at all stands on Lot 1356. It decides only that the pleading, assumed true as Order 18 rule 19(2) requires it to be assumed on limb (a), discloses a cause of action in trespass against the First Defendant with some prospect of success. On limb (a), that is the end of the inquiry. The First Defendant's Factual Answer: Limbs (b) and (d) [33] Under limbs (b) and (d) the First Defendant is entitled to put evidence before the Court, and it has done so. Its case is that the "new road" is on the developer's land; that the road beside Lot 1356 is the Federal road, Route 144; that the Structures are appurtenant to Route 144; and that responsibility for them lies with the Federal Government. If all of that were established, the claim against the First Defendant would indeed fall away. [34] But it is not established. It is asserted, and it is contradicted. [35] The materials exhibited do not, at this stage, establish the propositions for which they are tendered. The gazette order establishes that Route 144 was declared a Federal road with effect from 04.09.2003. It does not identify where the boundary of the Federal road reserve lies on the ground, still less that every structure the Plaintiff complains of stands within that reserve and outside Lot 1356. The layout plan exhibited as "SH- 2" to Enclosure 27 shows the approved project on the developer's lots and a colour-coded depiction of Lot 1356 and the roads; it is the developer's plan, submitted to the First Defendant, and it is not a survey of the Plaintiff's boundary. The photographs, being images captured from a public roadway, show structures - a signboard, a shoulder, access roads, a traffic light manhole - but they cannot and do not show whose land those structures stand on. The certified copy of the title and Form 14A prove alienation in 1909 and the Plaintiff's registration on 06.11.2007, which is not in dispute. [36] The Plaintiff, for her part, pleads that in or about January 2025 she appointed a licensed surveyor and that the survey disclosed encroachment. In her affidavit in reply (Enclosure 29) she goes further, and avers that the encroachment arises from works of upgrading carried out to Jalan Kandang-Jasin in connection with the project, which the First Defendant as local authority approved; she avers also that she was resident in the United States from about June 2016 until July 2021. The First Defendant answers (Enclosure 30, paragraphs 8(a) to (c) and 9) that the approved layout plan involves no upgrading of Route 144 at all, and that the averment as to residence is bare and unsupported. Whether the survey exists, what it shows and whether it withstands scrutiny; whether any works of upgrading were carried out and by whom they were approved; and what the Plaintiff knew, and when-all of these are questions for trial. The essential point is that the central factual issue in this action does anything of the First Defendant's stand on Lot 1356, and if so did the First Defendant put it there or permit it to be put there-is a boundary and attribution question. It is the kind of question that is resolved by survey evidence and by witnesses who are cross-examined. It cannot be resolved on competing affidavits, and I decline the invitation to try it on affidavit: The Golf Cheque Book Sdn Bhd. The Pleadings of the Co-Defendants [37] There is a further matter which, under limbs (b) and (d), I am entitled to and do take into account. The Defences of the other Defendants are on the file of this Court; the First Defendant itself relied upon two of them, and the Plaintiff, in Enclosure 38, upon three. Read as a whole, they bear directly upon the factual premises of Enclosure 26:

(a) The Amended Defence of the Third Defendant (Enclosure 23) pleads, at paragraphs 5.1 and 5.2, that by a letter dated 03.01.2023 from City MNE Consultant on behalf of the developer, Paduwan Realty Sdn Bhd - enclosing an approval of Jabatan Kerja Raya Melaka contained in a letter dated 07.11.2022 - the developer requested the Third Defendant to relocate ten of its electricity poles; and that the Third Defendant relocated and re-erected those poles in accordance with that request and with the permission of Jabatan Kerja Raya Melaka. The pleading dates the correspondence; it does not date the works, and it does not say where the poles were re-erected.

(b) The Defence of the Fifth, Seventh and Eighth Defendants (Enclosure 24) admits, at paragraph 12, the averment in paragraph 16 of the Statement of Claim to the extent that there is a newly constructed road fronting the housing project (there described as Taman Ayer Molek Residence; the Statement of Claim calls it Taman Molek Residen, and nothing turns on the difference).

(c) The Defence of the Sixth and Ninth Defendants (Enclosure 25) contains an admission in like terms at paragraph 9.

(d) The First Defendant's own Defence (Enclosure 20) admits, at paragraphs 3 and 6, that it is the local authority for the area of Hang Tuah Jaya, and admits the responsibilities pleaded against it in paragraph 12 of the Statement of Claim to the extent provided under the relevant written law save as to traffic management and the erection of road signboards, upon which it puts the Plaintiff to strict proof.

(e) The Defence of the Fifth, Seventh and Eighth Defendants pleads, at paragraph 13.3, that Lot 1356 is elongated in shape and lies along Jalan Kandang-Jasin; and, at paragraph 13.4, that Jalan Kandang-Jasin was originally a State road and was gazetted a Federal road (FT 144) on 04.09.2003. These are the passages upon which the First Defendant relies.

(f) The Defence of the Sixth and Ninth Defendants pleads, at paragraph 10(b), that Lot 1356 is elongated in shape and adjacent to the Federal road FT 144 (Jalan Kandang Jasin). [38] Four things follow, and they are matters of the record rather than of argument. First, the existence of a newly constructed road fronting the housing project, and adjacent to Lot 1356, is not an assertion of the Plaintiff's alone: it is admitted, in terms, by five of the Defendants - the Fifth, Sixth, Seventh, Eighth and Ninth. Secondly, the housing project lies within the area of Hang Tuah Jaya, for which the First Defendant admits it is the local authority. Thirdly, the Third Defendant's pleading places works of relocation and re-erection of electricity poles at the developer's request and with the approval of Jabatan Kerja Raya Melaka, pursuant to correspondence of 07.11.2022 and 03.01.2023. The Plaintiff submits (Enclosure 38, paragraph 6) that it follows that works of upgrading to the existing road were carried out in or about 2022 and 2023. That is an inference from the pleading, and not something the Third Defendant has itself pleaded; I take it no higher than that. Fourthly, and to the contrary effect, the Fifth, Seventh and Eighth Defendants plead that Lot 1356 lies along Jalan Kandang-Jasin, and the Sixth and Ninth Defendants that it is adjacent to the Federal road. Those averments, if made good at trial, would go a considerable distance towards the First Defendant's case. [39] I emphasise the limits of these observations. None of them establishes that anything stands on Lot 1356. None of them establishes that the First Defendant erected or authorised the erection of anything. Nor is any of them a finding that the Third Defendant's poles, or any of the Structures, do or do not encroach upon the Plaintiff's land. These are averments in pleadings, not proven facts, and they are for the most part the averments of parties who are not before me on this application. But they demonstrate that the questions raised by this action - whether works of construction or upgrading were carried out beside Lot 1356, when, at whose instance, under whose approval, and with what consequence for the Plaintiff's boundary - are live questions upon which the parties are not agreed, and upon which each of the Defendants has a different account to give. Those questions require a full trial. They cannot be answered by summary process. [40] The statutory argument does not avoid this. The First Defendant's reliance on sections 2, 77(1) and 85(1) of the Road Transport Act 1987 is an argument about who is lawfully responsible for traffic signs and access roads connected with a Federal road. I am prepared to assume that argument to be correct in every particular. It establishes who ought to have erected and to maintain such structures. It does not establish who did. A defendant does not answer an allegation that it trespassed by demonstrating that, had the works been lawfully executed, somebody else would have executed them. And the argument is in any event contingent upon the very fact in issue that the Structures form part of Route 144 rather than standing on the Plaintiff's land - which is precisely what remains to be proved. [41] A further matter confirms that evidence will be required. The First Defendant's answer on the substantive complaint proceeds on the footing that the road serving the project is a recent construction executed by the developer. Its answer on limitation proceeds on the footing that everything of which the Plaintiff complains was already in existence when she acquired Lot 1356 in 2007 - indeed, before the First Defendant was itself constituted a local authority on 01.01.2010. The positions may well be reconcilable at trial, by distinguishing between the developer's road on the developer's land and the Structures said to appertain to Route 144, and by distinguishing between the several dates at which the several Structures came to be erected. Whether they are reconcilable is not something that can be determined on the affidavits, and I say nothing about it. I observe only that the reconciliation depends upon facts which have yet to be established. The Authorities Relied Upon by the First Defendant [42] The First Defendant relied on three decisions in support of Enclosure 26. Each is distinguishable, and the distinctions are instructive. In OG Heights Management Corp v One Aug Land Sdn Bhd & Ors [2012] 3 MLJ 665, the High Court held that the law maintains that the source and the creator of the interference, and he who authorises the impugned activity from which the interference is foreseeable, is the person who should be sued; and dismissed the claim against the third defendant, who was merely an independent contractor, and the fourth defendant, a director of the first and third defendants, on the ground that they were not the proper parties. The Court in that case was in a position to identify the role which each defendant had in fact played. In the present application I am not, and the Plaintiff's pleaded case is that the First Defendant is itself among the creators or authorisers. [44] In Condolink Sdn Bhd v SDB Properties Sdn Bhd & Anor [2026] MLRHU 1168, the High Court struck out a trespass claim against a developer because the plaintiff there had not pleaded material facts showing that the developer committed, authorised or participated in the alleged trespass, or that any exception to the independent contractor principle applied. The decision turns on an absence of material facts in the pleading. That is exactly what is not the position here: paragraph 18 of the Statement of Claim does allege, in terms, that the First Defendant built or permitted the building of the Structures and that they are under its control. Condolink is authority for striking out a pleading that omits the allegation; it is not authority for striking out a pleading that makes it but may fail to prove it. [45] The First Defendant cited Tun Dr Mahathir Mohamad & Ors v Datuk Seri Mohd Najib Tun Haji Abdul Razak [2018] 1 MLRA 419 for the proposition that a trial cannot be used to rectify or cure a defective pleading, and that triable issues presuppose properly pleaded material facts. I accept the proposition. It does not assist the First Defendant, because it presupposes a defect, and for the reasons given I do not find the Statement of Claim defective in the relevant sense. The Plaintiff's pleading may be sparse. Sparse is not the same as absent. [46] The limitation argument requires separate treatment because, if it is good and if it is plain, it disposes of the action irrespective of everything else. [47] Two preliminary observations. First, limitation cannot be raised under limb (a), where no evidence is admissible; and a claim is not struck out on that limb as time-barred unless the bar appears ex facie the pleading itself. It does not appear here: the Statement of Claim pleads a trespass which subsists to this day. Secondly, limitation is a defence which the First Defendant has pleaded, and it remains available to it at trial. The only question before me is whether it is so plainly unanswerable that the Plaintiff should be driven from the judgment seat now. [48] The Plaintiff's answer is the doctrine of continuing trespass. She relies on Cheah Kim Tong & Anor v Taro Kaur [1989] 1 MLRH 281, where the High Court accepted that in a continuing trespass a fresh cause of action arises de die in diem, that is, from day to day, and held that this alone disposed of the defendant's limitation contention. The learned Judge also referred to section 341 of the National Land Code, which provides that adverse possession of land for any length of time shall not constitute a bar to the bringing of any action for the recovery thereof by the proprietor, and that the Limitation Ordinance 1953 shall in no circumstances operate to extinguish any title to or interest in land. [49] The First Defendant seeks to distinguish Cheah Kim Tong on the footing that the plaintiffs there complained promptly upon acquiring title in 1980, whereas the present Plaintiff has said nothing for nearly eighteen years. That is a distinction of fact going to laches and to the extent of recoverable damages. It is not a distinction of principle. The principle stated in Cheah Kim Tong - that a trespass which subsists gives rise to a fresh cause of action daily - is not displaced by delay; indeed Peh Swee Chin J in that case addressed laches expressly and held that laches means something more than mere delay, namely delay amounting to acquiescence. [50] Whether the Plaintiff's inaction amounts to acquiescence, and whether she or her predecessors in title knew of the encroachment, are questions of fact upon which no finding can presently be made - the more so given her averment, which the First Defendant disputes, that she was resident abroad for some five of the years in question. The First Defendant's further contention in Enclosure 36 - that the Plaintiff is now estopped from alleging trespass - is, if anything, an even clearer illustration of the difficulty: estoppel of that kind depends upon knowledge, representation, reliance and detriment, none of which is established on these affidavits. [51] The First Defendant's strongest authority on limitation is Datuk Bandar Kuala Lumpur v R Meyyanathan Retnasamy [2026] 3 MLRA 526, in which the Court of Appeal held that there could be no trespass upon the respondent's land where the monsoon drain complained of had already been built before the respondent purchased the land, so that he was not the owner at the material time when the drain was built. The proposition is sound and, in an appropriate case, unanswerable. [52] But the reasoning of the Court of Appeal in R Meyyanathan Retnasamy rests expressly upon findings of fact made by the learned Judicial Commissioner the Court of Appeal says so twice in the very passages relied upon, referring to what the Judicial Commissioner "went on to find" and to the position "as per the findings of fact by the JC". It is a decision upon what follows once it has been found that the structure predated the purchase. It says nothing about how a court is to proceed where that very fact is disputed and unproved. [53] That is this case. The Plaintiff pleads that the road was newly constructed around the end of 2024. The First Defendant asserts that everything predated 06.11.2007. The gazette order of 04.09.2003 establishes the status of Route 144 as a Federal road; it establishes nothing at all about when the signboards, the road shoulder, the four access roads or the traffic light manhole were erected. The photographs were captured, on their face, in February 2025. The First Defendant has not adduced a single document fixing the date of erection of any of the Structures. Nor do the pleadings of the co-defendants assist it: five of them admit that there is a newly constructed road fronting the housing project, and the Third Defendant pleads the relocation and re-erection of ten electricity poles at the developer's request, pursuant to correspondence of 07.11.2022 and 03.01.2023. Whether any of those works touched Lot 1356, and whether any of the Structures now complained of was erected or re-erected in the course of them, are questions of fact which nobody has yet answered. To hold at this stage that the Structures predated the Plaintiff's acquisition would be to make a finding of fact on a contested issue on affidavit evidence, and to make it in favour of the party asserting it and against the party who pleads the contrary. That I cannot do. [54] It follows that the periods prescribed by section 124 of the Local Government Act 1976 read with section 2 of the Public Authorities Protection Act 1948, and by section 6(1)(a) of the Limitation Act 1953, cannot presently be applied, because the date of accrual upon which their application depends is unascertained. The limitation defence is pleaded and remains fully open to the First Defendant. The principle in Cheah Kim Tong and the principle in R Meyyanathan Retnasamy will each fall to be applied, or not, according to the findings of fact made at trial. The answer lies at the end of a trial and not at its threshold. Abuse of Process [55] The First Defendant's final ground is that the maintenance of the action against it is an abuse of the process of the Court. Before coming to it, I should dispose of the First Defendant's objection, taken in Enclosure 36, that the Plaintiff's answer on this ground was not foreshadowed in her affidavit (Enclosure 29) and ought to be disregarded. The objection is misconceived. Abuse of process is a ground raised by the First Defendant in Enclosure 26; the Plaintiff is entitled to answer it in submission, and the answer she advances is one of law upon materials already before the Court. In any event, the burden upon this application rests upon the First Defendant throughout. As to the ground itself, the First Defendant relies upon Condolink, and upon the Plaintiff's own authorities: KPF Quality Foods Sdn Bhd v Stansom Marketing Sdn Bhd & Ors [2016] MLJU 537; [2016] 1 LNS 896, in which the High Court held that a claim found to be obviously unsustainable is an abuse of process, and Zaina Abidin Hamid & Ors v Kerajaan Malaysia & Ors [2009] 6 CLJ 683 - a decision of the Court of Appeal, notwithstanding its description in the passage quoted in KPF Quality Foods Sdn Bhd - in which the categories of abuse of process were said never to be closed, the term having been given a wide interpretation embracing considerations of public policy and the interests of justice, the process of the Court being required to be used bona fide and properly. [56] I accept those propositions without reservation. But each of them takes as its premise a claim that is obviously unsustainable, or a process that is not being used bona fide. Having held that the claim against the First Defendant is not obviously unsustainable, the premise fails and the conclusion cannot follow. The passage in Zaina Abidin Hamid upon which the Plaintiff relies makes the same point from the other direction: to succeed in striking out on the ground of abuse of process, the applicant must satisfy the test that the pleading is obviously unsustainable. [57] The First Defendant points out that the Plaintiff has not joined the developer. Whether the developer ought to have been joined, and what consequences may follow from the omission, are matters for the Plaintiff and, in due course, for the trial. The selection of defendants is for the plaintiff to make, and she carries the risk of that selection. The joinder of a defendant against whom a cause of action is pleaded, but who may ultimately be found not to be liable, is not by itself an abuse of the process of the Court. The submission that the Plaintiff "cannot cast a wide net" is understandable as a criticism, but it is not a ground for summary termination in a case where the pleading identifies particular structures as belonging to, or under the control of, the First Defendant. [58] I add, for completeness, that a good deal of the argument on both sides was directed to matters that do not arise on this application. The Plaintiff's reliance on sections 41, 50 and 51 of the Specific Relief Act 1950 establishes only that declaratory and injunctive relief are within the Court's power; that was never in issue. Her citation of Kerajaan Malaysia v Semantan Estates (1952) Sdn Bhd [2019] 1 MLRA 619 (FC) and Semantan Estates (1952) Sdn Bhd v Kerajaan Malaysia [2010] 2 MLRH 214 (HC) does not bear upon the issues arising on this application: the former concerned a notice of motion for review under rule 137 of the Rules of the Federal Court 1995, and the observations relied upon concern delay in the prosecution of an application; the latter concerned an acquisition which the Court found not to have been made in substantial conformity with the relevant provisions, with the result that the defendant remained in wrongful possession of the land. The First Defendant's objection to those two authorities is, in my view, correct. It does not follow that Enclosure 26 succeeds. The sufficiency of the pleading, and not the aptness of the citations, is the measure of an application under Order 18 rule 19. [59] Nor do I express any view upon the viability of the alternative prayer for compulsory acquisition under section 3 of the Land Acquisition Act 1960, or upon the quantification of compensation at RM1,214,500.00. No submission was directed to those prayers, and the sufficiency of individual prayers for relief is not the measure of an application under Order 18 rule 19(1)(a). G. CONCLUSION [60] Drawing the threads together:

(a) On limb (a), the Statement of Claim, taken as it must be taken without evidence, pleads every ingredient of trespass against the First Defendant, including the positive allegation that the road shoulder, the access roads and the traffic light manhole were built or permitted to be built by the First Defendant and are under its control, and that the signboards on Lot 1356 are its own.

(b) On limbs (b) and (d), the First Defendant's exculpatory case rests on facts which are asserted but disputed where the boundary of Lot 1356 lies, whether the Structures stand within it, who erected them, and when. Those are questions for trial and not for affidavit. The Defences of the co-defendants, five of which admit a newly constructed road fronting the project while others plead that Lot 1356 lies along or adjacent to the Federal road, confirm that the factual matrix is contested among the Defendants themselves.

(c) On limitation, the date of accrual is unascertained. The Plaintiff pleads a continuing trespass, and the authority upon which the First Defendant principally relies proceeds upon findings of fact made by the Judicial Commissioner at first instance. The defence is pleaded and preserved; it is not presently plain and obvious.

(d) On abuse of process, the claim not being obviously unsustainable, the ground falls with the premise upon which it depends. [61] This is not a plain and obvious case within the meaning of Bandar Builder Sdn Bhd. I make no finding upon any of the matters in contest between the parties. Nothing in these grounds is to be read as an expression of any view upon the merits of the Plaintiff's claim or upon the strength of the First Defendant's answer to it, whether upon the location of the boundary of Lot 1356, the ownership, control or authorship of the Structures, the status or extent of Route 144, or the date upon which any cause of action accrued. Each of those matters remains entirely at large, to be determined upon evidence by the trial judge. The single question I have decided is that the summary jurisdiction conferred by Order 18 rule 19 is not the appropriate means of determining them. [62] Enclosure 26 is accordingly dismissed. The First Defendant shall pay the Plaintiff the costs of this application, which I fix at RM5,000.00 subject to allocatur. Those costs are the costs of Enclosure 26 only and do not extend to the costs of the action. Dated : 23 July 2026 (MELAKA) Lawyer For Plaintiff : Encik Suhaidi bin Zakaria Tetuan Riza, Yusoff & Partners Peguambela dan Peguamcara No. 1-1, Jalan TAKH 15, Taman Ayer Keroh Heights 1, 75450 Ayer Keroh, Melaka. Lawyer For Defendant : Encik Sugandra Rao s/o Naidu bersama Cik Noor Munirah binti Abdullah Sani Tetuan Rao & Co. Peguambela dan Peguamcara No. 11 & 11-1, Jalan KL 3/13, Taman Kota Laksamana, 75200 Melaka. (b/p Defendan 1) Encik Chan Mun Yew bersama Cik Dyana Parmar Tetuan Lee Hishammuddin Allen & Gledhill Peguambela dan Peguamcara Aras 6, Menara 1 Dutamas, Solaris Dutamas, No. 1, Jalan Dutamas 1, 50480 Kuala Lumpur. (b/p Defendan 4)