Ng Chok Ling v Abdul Gaffar Khan Bin Amirullah (BA-23NCvC-58-11/2023)

This case has been resolved through a full trial scheduled from 24 to 26 February 2025.

On 19 May 2025, I allowed part of the plaintiff’s claim against the defendant. Dissatisfied with the ruling, the plaintiff appealed against that part of the decision.

The plaintiff and the defendant are neighbours residing in the Tropicana Indah Resort Homes, Petaling Jaya. 02/06/2025 16:35:26 BA-23NCvC-58-11/2023 Kand. 43

The plaintiff is the registered owner of a property known as No. 47 Jalan PJU 3/12F, Tropicana Indah Resort Homes, while the defendant possesses a property at No. 26 Jalan PJU 3/12E.

The defendant's property is located directly behind the plaintiff's property and is one floor above it.

The plaintiff’s claim against the defendant, among others, seeks – a) An order requiring the defendant to demolish the wall and/or the illegal structure built on top of the original retaining wall; b) In the alternative to (a), an order for the defendant to strengthen the original retaining wall and appoint a certified engineer and/or professional (approved by the plaintiff) to certify the construction of the illegal structure; c) An order for the defendant to repair and/or replace the awning at the plaintiff’s property; d) Alternatively to paragraph (c), an order that the defendant bear all costs of repairing the awning incurred by the plaintiff; e) An order for the defendant to pay damages for trespass to the plaintiff; f) An order for the defendant to pay damages for the diminution in market value and the opportunity cost associated with the sale of the plaintiff’s property; g) General damages for trespass; h) Special damages for trespass; i) Interest at 5% per annum for (g) and (h), calculated from the date of the writ summons until the date of full settlement; j) Costs; 3 k) Any other relief this Court deems fit and proper to grant. C. APPLICABLE LAW

In the case of Hong Yik Trading v Liziz Plantation Sdn Bhd [2017] 8 CLJ 481, the Federal Court makes findings on the burden of proof as follows – 12] It is settled law that the burden of proof rests throughout the trial on the party who asserts that the facts exist (s. 101 of the Evidence Act 1950). Where a party on whom the burden of proof lies has discharged that burden, then the evidential burden shifts to the other party. However, if the party on whom the burden of proof lies fails to discharge it, the other party need not call any evidence. This is highlighted in the case of Selvaduray v. Chinniah [1939] CLJU 107; [1939] 1 LNS 107; [1939] 1 MLJ 253 where Terrell, Ag CJ stated: ... it is clear that the onus is on the plaintiff to prove his case. After the conclusion of the whole case, there must be some preponderance in his favour. It may be true that the plaintiff established a prima facie case, but at the conclusion of the trial, the learned Judge has found that the position was exactly even, i.e. that any preponderance in the plaintiff's favour had disappeared. That being the case, the plaintiff must necessarily fail, as he has not discharged the onus which is upon him. No doubt the defendant would equally have failed if he had been the claimant and had tried to establish, as a substantive part of his case, the alternative version which he tried to prove in answer to that of the plaintiff. In the case of International Times & Ors v. Leong Ho Yuen [1980] CLJU 31; [1980] 1 LNS 31; [1980] 2 MLJ 86 at p 87, Salleh Abas FJ (as he then was) restated the same position in the following words: For the purpose of this appeal it is necessary to bear in mind the distinction between the two senses in which the expressions burden of proof and onus of proof are used (Nanji & Co v. Jatashankar Dossa & Ors AIR 1961 SC 1474, 1478 and Raghavamma v. Chenchamma AIR 1964 SC 136, 43). The first sense, signified by the expression burden of proof such as referred to in section 101 of the Evidence Act is the burden of establishing a case and this rests throughout the trial on the party who asserts the affirmative of the issue. The appellants in 4 the present appeal relied on justification and fair comment. Therefore, the burden of proving these defences rests entirely upon them (Gatley on Libel and Slander 7th Edition paras. 351 and 354). The second sense referred to as onus of proof, on the other hand, relates to the responsibility of adducing evidence in order to discharge the burden of proof. The onus as opposed to burden is not stable and constantly shifts during the trial from one side to the other according to the scale of evidence and other preponderates. Such shifting is one continuous process in the evaluation of evidence. According to sections 102 and 103 of the Evidence Act, if the party with whom this onus lies whether initially or subsequently as a result of its shifting does not give any or further evidence or gives evidence which is not sufficient, such party must fail Similarly, in the case of Stoney v. Eastbourne Rural District Council[1927] 1 Ch 367, Lord Hanworth MR had articulated on the issue of the burden of proof in the following manner: It appears to me that there can only be sufficient evidence to shift the onus from one side to the other if the evidence is sufficient prima facie to establish the case of the party on whom the onus lies. It is not merely a question of weighing feather on one side or the other, and of saying that if there were two feathers on one side and one on the other, that would be sufficient to shift the onus. What is meant is, that in the first instance, the party on whom the onus lies must prove his case sufficiently to justify a judgement in his favour if there is no other evidence given. D. ISSUES TO BE TRIED

The issues being raised by parties are as follows – i. Whether the renovation and construction of the wall on top of the existing retaining wall is illegal, lacking approval and/or a permit from the Petaling Jaya Municipal Council (MBPJ), and not in accordance with the specifications provided by the MBPJ. ii. Whether the construction of the wall on top of the existing retaining wall between the plaintiff’s property and the 5 defendant’s property, constructed by the defendant and/or the defendant’s contractor, is strong and safe. iii. Whether the construction of the wall on top of the existing retaining wall has affected the rights of the plaintiff to lighting and interfered with the plaintiff’s natural rights to the plaintiff’s property as pleaded through paragraph 7 of the Statement of Claim. iv. Whether the defendant and/or the defendant’s contractor has trespassed and entered the plaintiff’s property while carrying out the renovation and/or construction works. v. Whether the plaintiff has suffered damages and losses due to the construction of the wall by the defendant and/or the defendant’s contractor. vi. Whether the plaintiff is entitled to claim for the reliefs included general damages and special damages for trespass, damages for diminution of market value and opportunity cost for selling the plaintiff’s property as pleaded at paragraph 16 of the Statement of Claim.

Having reviewed the pleadings, the evidence presented by the witnesses, and the submissions from the respective counsel for both the plaintiff and defendant, below are my findings. Issue 1: Whether the renovation and construction of the wall on top of the existing retaining wall is illegal, lacking approval and/or a permit from the Petaling Jaya Municipal Council (MBPJ), and not in accordance with the specifications provided by the MBPJ. Issue 2: Whether the construction of the wall on top of the existing retaining wall between the plaintiff’s property and the defendant’s property, constructed by the defendant and/or the defendant’s contractor, is strong and safe.

Regarding Issue 1, I note that in the defendant’s testimony, he admitted that he constructed the illegal structure without permits as follows - S: .. apakah maksud kamu, maksud kamu adalah struktur ini dibina tidak by law? Betul atau tidak. J: Ya, betul S: .. ada sebarang kebenaran membina struktur ini dari MBPJ. J: Tidak S: Setuju ke kalau tidak ada kebenaran dari MBPJ struktur ini merupakan satu struktur yang tidak sah di sisi undang-undang. J: Ya setuju.

Based on the defendant’s evidence on the issue of illegality of the structure, I agreed with the plaintiff that the evidence constitutes an admission pursuant to section 18(1) of the Evidence Act. Section 18(1) of the Evidence Act provides as follows -

It is important to note that the plaintiff’s counsel used the words of the bylaws while cross-examining the defendant. Therefore, there is no 7 doubt that the plaintiff is aware of the rules and responsibilities of the local council concerning an illegal structure.

The statute grants the local council the authority and responsibility to monitor and address issues concerning illegal structures and to rectify them.

For submission purposes, the defendants’ counsel argues the issue of whether the plaintiff is entitled to demand the demolition of the disputed structure without following the procedures specified by the Street, Drainage and Building Act 1974, which amounts to an abuse of court process and a collateral challenge.

However, the learned counsel for the plaintiff does not agree with this proposition because this issue was not listed in the statement of Issues To Be Tried, and the defendant is estopped from raising new issues at the stage of written submissions to divert the attention of this Court. In support of his position, plaintiff’s counsel relies on the case Tama Lamada v Hariwood Sdn Bhd & Anor [2016] CLJU 565 that -

There was yet another reason why the 1st defendant was precluded from requiring either the plaintiff or the 2nd defendant to adduce evidence of the creation of NCR in the land in question. The question of whether the Pulau Engkabang is NCR land was simply not a live issue between the parties. A reading of the Common Agreed Issues to be Tried i.e. Bundle E would reveal that this issue was not included. In my judgment, the non-inclusion of this issue in Bundle E meant that the parties never intended it to be an issue for determination at the trial. I would interpolate that the reason for not including this as an issue to be tried is obvious - the parties very well knew that it is a fact deemed admitted by the pleadings. It will be recalled that pre-trial case management (PTCM), the parties were directed, amongst others, to formulate and settle the issues requiring determination at the trial. These directions were issued pursuant to the provisions of O. 34 r. 2 of the Rules of Court 2012. To my mind, the parties were bound by the agreement that they had reached at PTCM on any fact or issue that they had settled or formulated. The whole meaning of the regime of PTCM under O. r. 2 is to narrow the parties to definite issues, and thereby diminish expense and delay especially as regards the amount of testimony required on either side at the hearing. The issues to be tried that were agreed and settled between the parties before trial are analogous to the pleadings, if not an integral part. As they are matters that have been agreed by the parties, in my judgment, it would be against all tenets of fair play to allow any party to resile or renege from what had been agreed. In my opinion the pronouncement of the Federal Court in Anjalai Ammal v. Abdul Kareem [1968] CLJU 8; [1968] 1 LNS 8; [1969] 1 MLJ 22 FC that a judge should not depart from the strict rules of procedure in deciding the case on an issue not raised in the pleadings applies with equal force to the Agreed Issues to be Tried. A judgment decided on issues that are not raised in the pleadings is bound to be set aside: see also The Chartered Bank v. Yong Chan [1974] CLJU 178; [1974] 1 LNS 178; [1974] 1 MLJ 157.

I refer to paragraph 6 of the Statement of Claim, which states that – MBPJ. Tiada sebuah papan rasmi yang dikeluarkan oleh MBPJ bagi tujuan Kerja-kerja Pengubahsuaian tersebut dijalankan atas Tanah Defendan.

To contest paragraph 6 above, the defendant pleaded as follows – Azizul dari Tetuan LWS Architects Sdn Bhd (selepas ini dirujuk sebagai Arkitek tersebut). Arkitek tersebut telah memaklumkan kerja-kerja mengubahsuai kepada pihak MBPJ pada 25.8.2023 di bawah borang rujukan No. MBPJ-MPK(U/KP)-08.B09.

Having considered the above and compared the facts in the case of Tama Lamada v Hariwood Sdn Bhd & Anor (supra) with the facts of this case before me, I find that although the issue raised by the defendant is not listed in the list of issues to be tried, the wording in Issue 1, which is - without approval and/or permit from Petaling Jaya Municipal Council (MBPJ) and not in accordance with the specification given by the MBPJ, cannot, in my opinion, prevent this Court from referring to the relevant statute enacted by Parliament that grants power to MBPJ as the local authority.

The reasons for my findings are as follows – i. The facts regarding the lack of approval and/or permit from Petaling Jaya Municipal Council (MBPJ) and not in accordance with the specification given by the MBPJ have been pleaded by the plaintiff and denied by the defendant. ii. The defendant has raised an issue regarding whether the plaintiff is entitled to demand the demolition of the structure without following the procedures outlined by the Street Drainage and Building Act 1974 (SDBA 1974). The question is whether such a failure constitutes an abuse of court process or a collateral challenge. The argument put forth by the defendant’s counsel relates to a question of law. iii. The plaintiff opted not to call an officer from MBPJ, even though the subpoena had been filed with this Court. The issuance of the subpoena at the outset indicates that this Court should consider the duties and functions of MBPJ as a 10 local authority in relation to the renovation carried out without a permit from MBPJ.

I noticed that in the reply submission, the plaintiff declined to address this issue because it was not part of the list of issues to be tried. It is also pertinent for this Court to highlight the plaintiff's admission that he cannot confirm whether the wall he claimed was illegal was erected on the retention wall.

The plaintiff stated that he has not had a land surveyor check the entire area. During cross-examination, the plaintiff also agreed that he cannot confirm and has no knowledge of any structure currently on his property, which was allegedly erected illegally by the defendant.

The concerns of the plaintiff and other residents regarding the safety risks associated with the renovations of the defendants' house No. 26 have been conveyed to MBPJ via email.

Now, the pertinent question is whether this Court possesses the authority to consider an issue not specified in the Issues to be tried.

Having read the statement of claim and the statement of defence, and in light of the relief claimed in paragraph (a) of the Statement of Claim 11 and the evidence presented by the plaintiff during cross-examination, I find that this Court must consider whether the plaintiff is entitled to demand the demolition of the structure without adhering to the procedures set out by Act 133. This raises the question of whether such failure constitutes an abuse of the court process or a collateral challenge.

I also consider that the defendant has raised the issue of the allegedly illegal structure, which has been explained to MBPJ, as can be found in paragraph 11 of the Statement of Claim.

In the case of Darahman Ibrahim & Ors v Majlis Mesyuarat Kerajaan Negeri Perlis & Ors [2008] 4 CLJ 538, the Court of Appeal held that -

Secondly, Felcra did not plead the so-called wrong assumption in its statement of defence. Since it is not pleaded, Felcra must be precluded from raising it as a defence. The importance of pleadings can be found in many authorities. In Muniandy & Anor v. Muhd Abdul Kader Muhd Saheed & Ors [1989] 2 CLJ 577; [1989] 1 CLJ (Rep) 116 SC, then Supreme Court, accepted with approval what was said by Lord Diplock in Hadmor Production v. Hamilton [1983] 1 AC 191 at p 233: Under our adversary system of procedure, for a judge to disregard the rule by which counsels are bound, has the effect of depriving the parties to the action of the benefit of one of the most fundamental rules of natural justice, the right of each to be informed of any point adverse to him that is going to be relied upon by the judge, and to be given the opportunity of stating what his answer to its is...

Furthermore, the Court of Appeal stated that – In Yew Wan Leong v. Lai Kok Chye [1990] 1 CLJ 1113; [1990] 1 CLJ (Rep) 330 the Supreme Court agreed with what was said by Sharma J (as he then was) in Janagi v. Ong Boon Kiat [1971] CLJU 42; [1971] 1 LNS 42, in which Sharma J had made observation on the function of pleadings and the duty of the court to follow it: The court is not entitled to decide a suit on a matter which no issue has been raised by the parties. It is not the duty of the court to make out a case for one of the parties when the party concerned does not raise or wish to raise the point. In disposing of a suit or matter involving a disputed question of fact, it is not proper for the court to displace the case made by a party in its pleadings and give effect to an entirely new case which the party had not made out in its own pleadings. The trial of the suit should be confined to the pleads on which the parties are at variance.

The Street, Drainage and Building Act 1974 (SDBA 1974) constitutes a significant statute that enhances the regulatory and supervisory capacities of local governments in Malaysia concerning building and construction activities. It establishes legal frameworks designed to prevent and control unauthorized developments, including illegal renovations, extensions, or modifications executed without the requisite approval or permit from the local authority.

The definition of local authority in Act 133 refers to any City Council, Municipal Council, or District Council, as applicable. In relation to the Federal Territory, it pertains to the Commissioner of the City of Kuala Lumpur appointed under section 3 of the Federal Capital Act 1960.

I also refer to the definition of building, building plans, nuisance, local authority and structure elements pursuant to section 3 of Act 133, which supports the facts of the alleged illegal structure as pleaded by the plaintiff. The relevant definitions are as follows - "building" includes any house, hut, shed or roofed enclosure, whether used for the purpose of a human habitation or otherwise, and also any wall, fence, platform, staging, gate, post, pillar, paling, frame, hoarding, slip, dock, wharf, pier, jetty, landing-stage or bridge, or any structure support or foundation connected to the foregoing. "building plans" means plans that include site plans, key plans, floor plans, sections and elevations as set out specifically in any by-laws made under this Act. "nuisance" means any act, omission or thing occasioning or likely to occasion injury, annoyance, offence, harm, danger or damage to the sense of sight, smell or hearing, or which is or is likely to be injurious or dangerous to health or property. "local authority" means any city council, municipal council, town council, town board, local council, rural board or similar local authority established by written law and in relation to the Federal Territory means the Commissioner of the City of Kuala Lumpur appointed under section 3 of the Federal Capital Act 1960 [Act 190]. "structure elements" means those parts or elements of a building which resist forces and moments and includes foundations, beams, columns, shear cores, slabs, roof trusses, staircases, load bearing walls and all other elements designed to resist forces and moments but excludes doors, windows and non-load bearing walls.

Therefore, MBPJ is clearly a local authority within the scope of Act

Section 70(1) of Act 133 strictly prohibits the erection or alteration of any building without first obtaining the written permission of the local authority. The Act empowers local government authorities to issue stop-work orders, demolish illegal structures, and initiate prosecutions or civil actions against offenders.

Based on the above provisions, the local authority possesses the statutory power to inspect works, issue stop-work orders, demand the demolition of unauthorised structures, and prosecute offenders. It serves as the gatekeeper of all building-related approvals and enforcement. The local authority, including MBPJ, is authorised to act in the public interest, particularly concerning safety compliance and urban control within its administrative functions and subject to legal limits.

Under section 70 of Act 133, no person is allowed to erect any building without the approval of the local authority. The relevant provision of section 70 is stated below – …

This provision grants the local authority exclusive discretion to approve or refuse building or renovation plans and to impose conditions or request amendments prior to approval.

Furthermore, the local authority possesses the authority under subsection 70(4) of Act 133 to issue directives concerning the following particulars –

(c)the levels at which the foundation and lowest floor are to be laid; [37] In subsection 70(6), it is stated that if amended plans are not resubmitted within the specified period, or any extended period, they shall not be reconsidered and shall be deemed to have been withdrawn. However, the applicant may submit new plans and specifications. [38] Meanwhile subsection 70(7) of Act 133 provides that - Where a building is directed to be set forward to a regular line of street, it shall be a sufficient compliance with such direction if a wall or fence of such materials and dimensions as may be approved by the local authority is erected at a distance from the line sufficient to provide any arcade or footway which may be required under this Act. [39] The Act 133 also establishes a mechanism for the local authority to take action if anyone begins the construction of a building without approval, as outlined in subsection 70(11) as follows – [40] Subsection 70(16) of Act 133 defines what constitutes the erection of a building, which includes the following -

(ii) new or partly new or increased superstructure or roof on existing walls or existing foundations; … [41] Additionally, the local authority, including MBPJ, has been granted the power by Act 133 to modify or waive any by-laws, as outlined in section 74 as follows - Section 74 Modification or waiver of by-laws [42] Section 133 of Act 133 provides for by-laws as follows - Section 133 By-laws The State Authority shall have the power to make by-laws for or in respect of every purpose which is deemed by him necessary for carrying out the provisions of this Act, and for prescribing any matter which is authorised or required under this Act to be prescribed, and in particular and without prejudice to the generality of the foregoing for in respect of all or any of the matters specified hereunder-

(xi) the closing, fencing, lighting and repair of any works, hole or place likely to be a danger to the public;

(xii) the construction, alteration and demolition of buildings and the methods and materials to be used in connection therewith; (xii a) the submission of plans, specification, calculations, particulars, documents and reports relating to erection of building, principal submitting persons and submitting persons and their duties and responsibilities, and the form and the nature or qualification of such plans, calculations, particulars, documents and reports; (xii b) the manner and procedure for making an application for the approval for plans and specification for the erection of building; (xii c) the planning, design and erection of building including - (xii d) the provision of embankments and retaining walls; xxii) to require the owner or occupier of premises, or any other person having a duty under this Act or any by-law made, thereunder, to execute any work or perform any act necessary in the opinion of the local authority to secure compliance with such Act or by-laws and in default of compliance with such requirement on the part of such owner or occupier or other person, to authorise the local authority to execute such work or perform such act itself and to recover the expenses and costs incurred by it in or about the execution of such work or the performance of any such act, from such owner, occupier or other person, as the case may be; [43] In light of the related provisions mentioned above, the local authority is deemed to possess significant discretion and responsibilities under section 70 of the Act 133. This section grants the local authority extensive regulatory and enforcement powers concerning the control, approval, and enforcement of building works, including renovations. [44] Furthermore, compensation damages and costs are dealt with under Act 133, specifically in section 101. Section 101 Compensation damages and costs to be determined by court Magistrate's Court under this section, and the provisions of the Criminal Procedure Code shall mutatis mutandis apply to all such appeals. [45] Having considered the nature and purpose of Act 133, I believe this Court should evaluate the plaintiff’s claim in a manner that aligns with the intent of Act 133. [46] The preamble of Act 133 in its original wording is as follows –

the building;

the foundation of the building; and

the surroundings on which the erection of building is in progress. … 13) Where-

the cessation of the erection of building-

has been ordered under subsection (6), paragraph (7)(a) or subsection (9), as the case may be; or

(ii) has been secured under subsection (10);

the directions given under subsection (8) have been complied with; or

any remedial work has been executed or measure has been taken under subsection (11), the local authority may allow the resumption of the erection of building subject to compliance with such directions and conditions as it may specify. [73] Having considered the facts of this case and the relevant laws, I believe that in instances where legal proceedings involve factual or legal questions concerning the powers or actions of a local authority—such as determining whether approval was granted or whether enforcement was conducted appropriately—the discretionary power to permit any amendment to the plan falls within the scope of the local government's authority. [74] Therefore, it is essential for the local government to be included as a party in the litigation. [75] Furthermore, I believe that this Court should refrain from interpreting, critiquing, or suggesting legal obligations or shortcomings related to the local government in its absence, as such actions could contravene the principles of procedural fairness and natural justice. [76] In reaching this conclusion, I am guided by the principle established in the landmark case of Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor Dengan Tanggungan (supra), where the Federal Court acknowledged that the actions of local authorities are subject to judicial review but should be adequately contested with the named local authority as the respondent. The Federal Court also decided as follows – It is axiomatic that local authorities are creatures of statute and their qualities and powers can only be derived by reference to what is express or implicit in the statutes under which they function (See, e.g. Lord Wilberforce in Bromley L.B.C. v. G.L.C.[1983] 1 AC 768, 813). We also recognise that the statutory scheme of the Local Government Act confers upon Local Authorities a distinct political function, to which the Courts, by application of ordinary principles of statutory construction should give effect. [77] In Government of Malaysia v Lim Kit Siang [1988] 1 CLJ Rep 63, the Federal Court cautioned against making judicial pronouncements that negatively affect a non-party. [78] I contend that the relief sought by the plaintiff in paragraph 16(a) of the Statement of Claim, although indirectly, amounts to a request for the Court to disregard or deny the role and function of the local authority in enforcing laws related to construction carried out without the necessary permit. [79] In my considered view, the relief sought by the plaintiff in paragraph 16(a) seems to undermine the lawful authority granted to the local government under existing and enforceable statutory provisions. [80] To prevent injustice, this Court exercises its inherent powers under Order 92 rule 4 of the Rules of Court and refers to the case of Permodalan MBF Sdn Bhd v. Tan Sri Datuk Seri Hamzah bin Abu Samah & Ors [1988] 1 CLJ Rep 244; [1988] 1 MLJ 178, where the Supreme Court decided on the inherent jurisdiction of the court as follows - Has the court any jurisdiction to exercise its inherent powers in the instant case? Order 92 rule 4 R.H.C. provides:

For the removal of doubts it is hereby declared that nothing in these rules shall be deemed to limit or affect the inherent powers of the court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the court." We read this to mean that the rules cannot interfere with the exercise of the inherent powers by the court so long as it deems it necessary to prevent any injustice or any abuse of its own process. It follows that where the rules contain provisions making available sufficient remedies, the court will not invoke its inherent powers. [81] This Court exercises its inherent power to prevent injustice and abuse of the court’s process by disallowing the demolition of the building renovated by the defendant until the MBPJ evaluates the complaint based on an expert’s assessment and discharges its powers conferred under the law. [82] This Court refrains from interfering with the discretionary power conferred by Parliament to local government. Any parties dissatisfied with the local government's decision may challenge it through judicial review. [83] Based on the findings above, I conclude that subparagraphs (i), (ii),

(iii) and (v) of Issued to be tried, including the claim for general damages due to the diminution of market value, are premature and should be addressed once the local authorities exercise their powers under the law. Issue 3: Whether the defendant and/or the defendant’s contractor has trespassed and entered the plaintiff’s property when carrying out the renovation and/or the construction works. [84] The plaintiff seeks relief for special damages due to trespass. [85] The plaintiff alleged that the defendant and/or his contractor trespassed onto the plaintiff’s property by climbing over the fence originally built on the retaining wall to install scaffolding for their workers and construction materials without the plaintiff's permission. [86] The defendant did not deny this allegation; instead, he provided testimony during cross-examination as follows – S: Bilakah scaffolding tanggalkan? SD1: On the spot masa dia complaint hari yang sama. Hari yang sama, bila dia complaint dengan Tropicana, on the spot saya clear and saya tak masuk lagi dalam tu. Cuma saya ada tempat yang 1 kaki itu, daripada 1 kaki itu saya buat.. … S: ms 227, ya. Siapakah orang ini? SD1: Pekerja saya S: Pekerja kamu. Setuju ke pekerja kamu itu berdiri di atas awning plaintif. SD1: Setuju S: Setuju. Muka surat 228. Setuju ke scaffolding itu didirikan di atas awning plaintif dalma kawasan rumah plaintif. SD1: Setuju S: Adakah pernah kamu beritahu plaintif ‘bolehkah pekerja saya masuk untuk buat kerja?’ SD1: Tidak. Ini… [87] The defendant is bound by his admission as provided under Section 21 of the Evidence Act 1950. Section 21 of the Evidence Act 1950 states that - Admissions are relevant and may be proved as against the person who makes them or his representative in interest: but they cannot be proved by or on behalf of the person who makes them or by his representative in interest except in the following cases:.. [88] Parties agreed that the issue of trespass is limited to the trespass committed by the defendant’s workers on the plaintiff’s awning. [89] The law regarding trespass is clear. The principles of trespass established in the case of Terra Damansara Sdn Bhd v Nandex Development Sdn Bhd [2006] 6 MLJ 24 are adhered to. [90] Given the defendant's admission, I accept the plaintiff’s claim of trespass in accordance with section 18(1) of the Evidence Act 1950. Consequently, I am satisfied that the plaintiff has met his burden under subsection 101(1) of the Evidence Act 1950. Damaged awning [91] The plaintiff disagreed with the assertion made by the defendant’s counsel that the awning is merely dirty and that there is no damage issue with the awning. [92] According to paragraph 13 (b) of the Statement of Claim, it was pleaded as follows: – kerosakan awning yang dipasang di tanah plaintif. [93] The effects included discolouration and stains on the awning. However, the plaintiff could not present this Court with a photograph of the alleged dirty condition of the awning, nor of its state prior to the encroachment. [94] Given the evidence presented during the trial, I believe that the defendant ought to address the plaintiff’s claim regarding the damaged awning. However, I refuse to award special damages as the plaintiff did not provide sufficient proof for them. F. CONCLUSION [95] After reviewing the pleadings and documents, and having heard the witnesses' testimony as well as the submissions from both the plaintiff's and defendant's counsel, on the balance of probabilities, I allowed part of the plaintiff’s claim as follows – a) General damages for trespass amounting to RM50,000.00; b) The defendant is ordered to repair the damaged awning at the rear section of Unit No. 47 Jalan PJU 3/12F, Tropicana Indah Resort Homes, 47410 Petaling Jaya, within one month from the date of the sealed order served on the defendant; c) Interest at the rate of 5% per annum on RM50,000.00, calculated from the date of the Writ Summon until the date of full settlement; and d) Each party shall bear its own costs. [96] I further ordered that the remaining relief sought in paragraph 16 of the Statement of Claim be dismissed. Dated: 2 June 2025. Signed ........................................................... HAZIZAH KASSIM Judicial Commisioner High Court of Malaya At Shah Alam (NCvC 10)

For the Plaintiff : Caryn Shua Messrs Richard Tee & Chin (Federal Territory of Kuala Lumpur)

For the Defendant : Datuk Adnan Seman @ Abdullah Messrs Adnan Sharida & Associates (Bandar Baru Bangi, Selangor)