Pertubuhan Pergerakan Kebajikan Masyarakat Kuala Lumpur v Datuk Bandar Kuala Lumpur (WA-21NCvC-59-09/2019)

1.1.1 P took up a piece of government land from DBKL on a monthly rental basis for a monthly rental of RM3,200.00 on 09.09.2016, which was terminated by notice on 29.04.2019. 30 1.1.2 On 26.06.2019, P was served a written notice from the Pejabat Tanah Dan Galian Persekutuan Kuala Lumpur (PTGKL) to evacuate and to demolish several illegal cabins and other structures erected on the said land by the P.

1.1.3 On 13.09.2019, P filed this Suit against DBKL for damages, 35 interest and costs, grounded on an alleged breach of contract.

1.1.4 DBKL has filed a counterclaim against the P for delivery of vacant possession of the said land, double rental and damages. 40 02/06/2023 10:05:42

1.2 On 30.03.2023, after considering the facts, all evidence adduced at the trial, and the parties' respective arguments, I dismissed this Suit and the said counterclaim with no order regarding costs.

1.3 Aggrieved, the P appealed my decision, and the following are my 45 reasons: [2] At the outset, it is pertinent to be mindful of the legal position that:

2.1 The P in the present Suit is a registered unincorporated society 50 (07.10.2014) with 22 registered members (8 are committee members) at the time (pp 1-9. Common Bundles B) - [CB(B)]. In law, it is not capable of having a legal personality that could sue or be sued in its name, unlike a company incorporated under the Companies Act 2016.

2.2 The Federal Court in Lim Lip Eng v Ong Ka Chuan [2022] 4 MLJ 454, FC, observed that: a registered society is not a legal entity which could sue or be sued in its own name. This is clearly stated under sub-s. 9(c) of Act 335 that a society 60 may sue or be sued in the name of such one of its members as shall be declared to the Registrar and registered by him as the public officer of the society for that purpose, and, if no such person is registered, it shall be competent for any person having a claim or demand against the society to sue the society in the name of any office-bearer of the society.

2.3 The legislative construct of a registered society under the Societies Act 1966 in the present form that:

2.3.1 When a registered society intends to initiate a Court action against any other party, it must do so using the name of a 70 member registered with the Registrar of Societies as the public officer of that society.

2.3.2 Section 9(c) of the Societies Act 1966 only envisaged the situation of a public officer suing or being sued on behalf of 75 WA-21NCvC-59-09/2019 3 the society. It does not state that the office bearers are entitled to bring an action on behalf of the society. As such, if an office bearer wants to bring an action, then this office bearer must be registered as a public officer to authorise this person to bring an action.

2.3.3 If the society is to be sued, a suit can be brought against the named public officer and if none is so named, then s. 9(c) of the Societies Act 1966 allows the plaintiff to file an action against any office bearer of the society.

2.3.4 This position is unlike a registered cooperative under the Cooperative Societies Act 1993. Section 9 of that Act allows a cooperative society to institute and defend a legal suit and other legal proceedings in its name.

2.3.5 The FC in Lim Lip Eng v Ong Ka Chuan illuminated the difference with the position in Singapore where it said: [38] We understand that in the Singapore Court of Appeal, the decision of Chen Cheng & Anor v Central Christian Church 95 and another appeal [1996] 1 SLR 313 observed that an unincorporated association registered under its Societies Act (Ch 311) has a sufficient personality to sue and be sued for defamation. That is because s 35(b) of its Societies Act provides that every such society may sue or be sued in the name in which 100 it is registered. In clear contrast, our s 9(c) of Act 335 provides for that right through the members or office-bearers of the society.

2.3.6 The FC also distinguished it from the Companies Act 2016: [35] Unlike incorporated bodies or companies, which have separate 105 legal identities from their shareholders and their directors, the respondent, a society does not. This is evident when we compare s 20 of the Companies Act 2016 (Act 777) with s 9(c) of the Societies Act (Act 335): 20 A company incorporated under this Act is a corporate body 110 and shall

have a legal personality separate from that of its members; and

continue in existence until it is removed from the register 9 The following provisions shall apply to registered societies 115

the movable property of a society, ...;

the immovable property of a society ...;

a society may sue or be sued in the name of such one of its members as shall be declared to the Registrar and WA-21NCvC-59-09/2019 4 registered by him as the public officer of the society for 120 that purpose, and if no such person is registered, it shall be competent for any person having a claim or demand against the society to sue the society in the name of any office-bearer of the society. 125 2.4 Evidently, this Suit failed to comply with the provision of section 9(c) of the Societies Act 1966. This incompliance is not merely a technical irregularity but a fundamental legal defect that cannot be cured under O.1A and O.2 RC 2012. Without a legal foundation, this Suit has no leg to stand on. For this reason alone, this Suit must be 130 dismissed. See also: Mohd Latiff v Tengku Abdullah & Ors [1995] 2 MLJ 1; Lee Thye (as President and office bearer of the Selangor Yan Keng Benevolent Dramatic Association) v Tan Sri Ngan Ching Wen (as President and office bearer of the Selangor Chinese 135 Assembly Hall) [ 1999] 6 MLJ 390.

5 However, for completeness, I will proceed with the assessment of the evidence, which I find as follows: 140 BRIEF FACTS [3] The facts discerned from the Notes of Evidence (NOE), cause papers, the bundle of documents and arguments of the parties are surmised as follows:

1 The P intended to erect several units of fully assembled cabins measuring 15 feet x 25 feet each for business activities (sub-letting) and one for P management office on government land.

3.2 In that regard, the P had: 150 3.2.1 On several occasions, applied to let government land for this purpose but was on several occasions declined by DBKL in its rentis/reserve area (pp.14-30 CB(B)). 155

3.2.2 TNB issued 2 Stop Orders dated 20.01.2016 and 28.03.2016 (pp.10 & 21, CB(B)) against the P for encroachment into rentis/reserve area for parking of a heavy vehicle, dumping and earthworks (levelling) within the rentis area that could endanger high voltage power transmission line without 160 any approval from TNB.

3.3 The P committed this offence under the Electricity Supply Act 1994 even before DBKL granted any tenancy agreement. 165 3.4 On 23.05.2016, DBKL applied to the Pengarah Tanah Galian Kuala Lumpur (PTGKL) for a Temporary Occupation License (TOL) of a piece of government land located at Jalan Usahawan 6, Mukim Setapak, Kuala Lumpur (the said land), for a car park (p.31, CB(B)): 170 3.4.1 On 21.06.2016, pending the approval for TOL, DBKL applied for authorisation from PTGKL to have early access to the said land, which was to be let to the P monthly for use as a car park. DBKL will surrender possession once the TOL is obtained (p.33, CB(B)).

3.4.2 On 08.08.2016, PTGKL approved the application for early access to the said land (p.35, CB(B)).

3.4.3 On 10.08.2016, the P applied to DBKL to lease/rent the said land running along TNB's rentis/reserve located at Jalan 180 Usahawan 6, Mukim Setapak Kuala Lumpur, for ten years (p.36, CB(B)).

3.4.4 6 days later, on 16.08.2016, The P issued a purported sketch of a proposed layout plan of the said land that he admitted 185 he crafted for the said land (not a technical drawing) to DBKL (p.37, CB(B)).

3.5 Slightly less than a month later, on 09.09.2016, DBKL, via its Jabatan Penilaian dan Pengurusan Harta, issued a letter of offer 190 WA-21NCvC-59-09/2019 6 (the LO, p.38, CB(B)) to let out the said government land located at Jalan management office. Among the terms offered in the said LO were:

DBKL agreed to let the said property to P after DBKL had applied for a Temporary Occupation License (TOL) to the 195 PTGKL. However, the early access authorization was obtained from PTGKL on 09.08.2016. Pending the approval of the TOL, the rental for the said property will be on a monthly basis.

The property location will be at Jalan Usahawan 6, Setapak, Kuala Lumpur, with an approximate area of 10,608 square feet;

The rental commencement date was 01.10.2016;

Rental rate of RM 3,200.00 per month (including GST) by the 7th of each month;

The use of the said property is for nagement office Kedai berstruktur Kabin 205 and/or directions from DBKL from time to time;

The location's planning and layout plan must be submitted within two weeks to Jabatan Perancangan Bandaraya for approval. Any infringement can cause the termination of tenancy.

The P must obtain the required license from the Jabatan Perlesenan dan Pembangunan Penjaja and comply with all conditions thereto.

There shall be no sub-letting of any part of the said property to third parties which can bring about the termination of this 215 tenancy.

If DBKL requires the said property for whatever purpose, a of termination will be issued, and vacant possession shall be delivered with no compensation from 220

The P was required to pay RM 13,098.00 in the form of a banker's cheque in the name of the Mayor of Kuala Lumpur, which includes the following payments: -

Advance Rental (3 months rental) RM 9,600.00

(ii) First month's rental (Oct 2016) plus GST 6% RM 3,392.00 225

(iii)Costs of Documentation RM 106.00 Total RM 13,098.00 WA-21NCvC-59-09/2019 7

3.6 The P accepted the terms/conditions of the LO (pp.47-49, CB(B)).

3.7 Approximately 17 days later, on 26.09.2016, P applied in writing to 230 DBKL for approval to carry out cabin structural works at the site for business activities (p.43, CB(B)) without placing a formal application with supporting documents with the Jabatan Perancangan Bandaraya, DBKL: 235 3.7.1 On 14.10.2016, DBKL notified the P in writing that his application must be submitted to Jabatan Perancangan Bandaraya with the required layout and building plan for approval. 240 3.7.2 The P failed to comply (p.51 & 65-71, CB(B)). In defiance, the P proceeded with the erection of cabin structures illegally and earthworks sans approval from DBKL.

3.8 On 07.03.2017, TNB: 245 3.8.1 Issued a Stop Order of (Notis Memberhentikan Aktiviti Bahaya didalam/bersebelahan/berdekatan laluan kabel bawah tanah/rizab penghantaran voltan tinggi) at the said property. 250 3.8.2 The activities were (1) without the approval of TNB, (2) s, (3) s,

business activities, workshop and storage, and (6) shop activities encroaching 40m into 255

3.8.3 Section 37(12) Electricity Supply Act 1990 (Act 447) was cited (p.50, CB(B)).

3.8.4 Considering these facts, I take cognisance of the legal 260 position when dealing with land activities impacting the rentis/reserve of TNB along the high voltage transmission line.

3.8.5 is that no work can be carried 265 out or structures erected in its rentis/reserve area without its WA-21NCvC-59-09/2019 8 permission to mitigate arc sparks that could impact or destabilise the National Grid System.

3.8.6 Arc sparks occurring not only cause loss of property but the 270 loss of life as well, hence the need for safety clearance in its rentis/reserve area running under the high voltage transmission tower.

3.8.7 The Electricity Supply Act 1990 (Act 447) and the Electricity 275 Regulations 1994 provides: Sub-section 37 (12) (a) and (b):

No person shall, without the lawful authority of the supply authority or the licensee, as the case may be, undertake any work or engage in any activity in the vicinity of any electrical installation 280 or part thereof as may be prescribed, in a manner likely to interfere with any electrical installation or to cause danger to any person or property.

Any person who contravenes this section commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand 285 ringgit or to imprisonment for a term not exceeding two years or both. Sub regulation 43(i): The clearance between a line conductor and a building or structure, other than a substation, shall be maintained at not less than 4.57 290 Sub regulation 43(j): No person shall, without the lawful authority of the owner, management, licensee or supply authority of the installation, as the case may be, undertake any work or engage in any activity within 4.57 295 The minimum clearances from the ground for supply lines shall be as shown in Table 2; [Wayleave for Electricity Supply Lines: Your Rights and Safety, www.st.gov.my] 300

3.9 Approximately 2 months later, on 25.05.2017, DBKL issued a notice to cease all illegal/unapproved activities encroaching on rentis/reserve area. P was given until 01.06.2017 to demolish and remove the illegal structures on the said property but was ignored 305 (pp. 51-55, CB(B)):

3.9.1 On 12.03.2018, DBKL notified the P that it could not secure the TOL approval for the said property for a long tenure (p.60, CB(B)).

3.9.2 On 07.05.2018, TNB wrote to the P (copied to DBKL & PTGKL) reserve by heavy vehicle to level the said land, citing s.37

(12)(a) Electricity Supply Act (p.61-64, CB(B)):

TNB sued the P in the High Court of Kuala Lumpur (WA- 22NCVC-526-08/2019) for the encroachment seeking, amongst other injunctive relief for the illegal encroachment and an order for delivery of vacant possession of the reserve area (pp.72-77, CB(B)).

On 23.04.2019, a judgment in default of defence was recorded (pp.83-84, CB(B)).

3.10 Subsequently, DBKL: 325 3.10.1 On 30.11.2018, issued a Notice of Default (p.78, CB(B)) on the P arrears in monthly rental amounting to RM56,648 (18 months). The P was given 14 days to remedy the default, failing which the tenancy would be terminated with the ensuing legal recourse. 330 is that the bank had dishonored post-dated cheques issued by the P (pp.57-58, CB(B)).

3.10.2 On 11.12.2018, DBKL issued a Notice to Remedy Default (pp.79-82, CB(B)) for carrying out unauthorized activities 335 encroaching into TNB reserve, comprising the unapproved structural works in default of submitting the required planning and layout plan to Jabatan Perancangan Bandaraya for approval. This constitutes a fundamental infringement of the terms of the tenancy agreement in the LO (09.09.2016).

3.10.3 Slightly short of 3 years from the LO (09.09.2016), on 29.04.2019, DBKL issued and served a notice of termination of the purported tenancy and for the P to vacate the said property (pp.85-86, CB(B)). 345

3.11 About 2 months later, on 26.06.2019, PTGKL served a notice of evacuation from the said land and demolition of the illegal structures built by the P on the said property (pp.139-145, CB(B)).

3.12 During the trial, the following witnesses gave evidence in Court: 350

Hussen Bin Zulkarai (SP1): The Chairman of the plaintiff For DBKL:

Muhammad Syahir bin Idrus (SD1) Penolong Pengarah, Jabatan dan Penilian dan Pengurusan Harta DBKL 355

Mior Mohd Faizal bin Sharudin (SD2) Penolong Pengarah Kanan, Jabatan dan Penilian dan Pengurusan Harta DBKL SUBMISSIONS OF THE PLAINTIFF [4] The P argued that: 360 4.1 DBKL is not entitled to terminate the tenancy of the said property since it did not have the TOL when making the offer to let the said property to the P.

4.2 PTGKL's office knew about the rental.

4.3 SD1, the Penolong Pengarah, Jabatan dan Penilian dan 365 Pengurusan Harta DBKL, in his evidence, agreed:

4.3.1 The LO referred to land, not under the power line.

4.3.2 TOL was made on 23.05.2016 and obtained authorization from PTGKL for an early entry on 09.08.2016 for parking only. 370 4.3.3 The LO allowed for the construction of the cabin structure subject to bylaws.

4.3.4 The P made monthly rental payments (RM3,200.00) during the rental period excluding a deposit payment of RM13,098.00. 375 4.3.5 The SD1 did not visit the said land to stop the construction work though he knew that approval had not been obtained. In the circumstances, the P, argued that DBKL ought to be WA-21NCvC-59-09/2019 11 estopped from denying that DBKL had intentionally allowed the construction without approval. 380 4.3.6 SD1 also acknowledged that approval from PTGKL for the TOL had not been obtained.

4.4. The P also argued that DBKL:

4.4.1 Should not have issued the LO when it could not enter the 385 tenancy.

4.4.2 The P commenced construction and incurred substantial expenses due to believing that DBKL could enter into the tenancy.

4.4.3 DBKL had misrepresented or fraudulently caused P to 390 believe that DBKL had authority over the said land when it had not yet obtained

4.4.4 In support, the P cited s.17 of the Contracts Act 1950 and Swiss Planner Sdn Bhd v Plush Dollar (M) Sdn Bhd & Anor [2022] 10 MLJ 207 in referring and following the dicta 395 of Robert Goff LJ in Armagas Ltd v Mundogas (The Ocean Frost) [1985] 1 Lloyd's Rep 1 at p 57 where he stated: Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently 400 of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not, and where there is a conflict of evidence, such as there was in the present case, reference to the objective facts and 405 documents, to the witnesses' motives, and the overall probabilities, can be of very great assistance to a judge in ascertaining the truth. I have been driven to the conclusion that the judge did not pay sufficient regard to these matters in making his findings of fact in the present case.

4.4.5 The principle of misrepresentation is stated in s.18 of the Contracts Act 1950, meaning a false statement made by the party who thinks his statement is true. DBKL had, in fact, given incorrect information to the P in issuing the LO. IN 415 support, the P cited ALW Car Workshop Sdn Bhd v AXA Affin General Insurance Bhd [2019] 4 MLJ 561, FC held: [45] On this point, we agree with the Court of Appeal in its findings, as stated in para 33 of its judgment, that: WA-21NCvC-59-09/2019 12 Whether any particular claim is tainted with fraudulent intent is a 420 question of fact inferred from the surrounding circumstances. Making a false statement in the belief that it is true constitutes misrepresentation. However, making a false statement with the knowledge that it is false or not believing it to be true and the intention to deceive amounts to fraudulent misrepresentation. The 425 test of fraudulent misrepresentation, as enunciated by the Privy Council in Baron Akerheilm v Rolf De Marc [1959] AC 789 PC, is as follows: The question was not whether the defendant in any given case honestly believed the representation to be true in a sense 430 assigned to it by the Court on an objective consideration of its truth or falsity, but whether he honestly believed the representation to be true in the sense which he understood it albeit erroneously when it was made. 435 [5] The P further argued that, with DBKL entitlement to the tenancy is impaired, it consequently has no authority to collect rental from the said land.

5.1 SD2 in his evidence acknowledge that: 440 5.1.1 The land is subject to approval for TOL from PTGKL.

5.1.2 He was instructed to create an account to charge rentals for the land.

5.2 SP1, in his evidence, said that when he received the offer to let the said land from DBKL, he assumed that DBKL had authority over the 445 said land. He believes in the representation given by DBKL and subsequently paid the deposit as required in the LO:

5.2.1 There was no formal objection from DBKL to stop P from commencing construction of the cabins.

5.2.2 SP1 claimed that there was verbal approval from Encik Syahir (SD1) dan Puan Maizun of Jabatan Penilaian Dan Pengurusan Harta DBKL at the site to commence construction given but nothing in writing.

5.2.3 SP1 agreed that he has no evidence to establish that verbal approval was given.

5.2.4 He asserts .08.2016 was 460 merely a sketch of the proposed layout that P submitted to DBKL in his application to let the said land from DBKL.

5.3 The P claims that DBKL must compensate the P for losses in constructing the cabins on the said land. The damages are set out 465 in paragraph 13 of the SoC, citing Sum Kum v Devaki Nair & Anor [1964] 1 MLJ 74, Thomson LP: "I would, however, add one observation of a general nature. This is by no means the first appeal this Court and its predecessor have had to deal with in which somewhat insufficient attention has been given at the trial to the question 470 of giving adequate evidence on the question of quantum of damages. It is for counsel in such cases to devote a little more attention to that aspect of the matter in future. As Lord Goddard said in the case of Bonham-Carter v Hyde Park Hotel Ltd (1948) 64 TLR 177 178:- Plaintiffs must understand that if they bring actions for damages it is for them 475 to prove their damage; it is not enough to write down the particulars and, so to speak, throw them at the head of the Court, saying: 'This is what I have Jost; I ask you to give me these damages'. They have to prove it. "

5.4 SP1 claimed he faced trauma due to the misrepresentation of DBKL. 480 He had to meet all the sub-tenants who had taken plots in the said land that he had demarcated after they received eviction notices from PTGKL (bearing in mind that the LO prohibit sub-letting). He suffered depression and mental anguish when DBKL terminated the tenancy. With the cessation of this business, SP1 landed into 485 financial difficulties. Citing Baltic Shipping Co v Dillon (1993) 176 CLR 344, HC, it was held by the High Court that she was entitled to recover damages for her disappointment and the distress caused to her. In breach of contract, the travel Company fails to provide for the holiday for which Plaintiff has paid, and damages are awarded for 490 mental distress, inconvenience, upset, disappointment and frustration.

5.5 argued that s.9(c) Society Act says: 9 The following provisions shall apply to registered societies 495

the movable property of a society, ...;

the immovable property of a society ...;

a society may sue or be sued in the name of such one of its members as shall be declared to the Registrar and registered by him as the public officer of the society for that purpose, and if no 500 such person is registered, it shall be competent for any person having a claim or demand against the society to sue the society in the name of any office-bearer of the society. It was submitted that the word used is may and not shall; therefore, 505 it is not mandatory. Nevertheless, the learned counsel sought an oral amendment (O.92 r.4 RC 2012) of the cause paper to enter the name of Hussen bin Zulkarai (SP1), which was denied as it was not simply about inserting a name. It involved certain amendments to the respective pleadings as well. The proceedings have closed. 510 In the circumstances, the P pray for Order in terms of its SoC. SUBMISSIONS OF THE DEFENDANT/DBKL [6] I have gathered from the evidence and DBKL arguments that: 515 6.1 The pleaded case of P is unfounded, that it suffered losses occasioned by the allegedly wrongful actions of DBKL concerning the tenancy of the said land. The P simply failed to discharge its burden to prove its case against DBKL:

6.1.1 There is no cogent evidence before the Court that DBKL 520 made untruthful representation to the P concerning the permission from PTGKL to let the said land to the P, and neither is there any issue concerning TOL. It is nothing unusual as DBKL is a local authority working with other governmental departments.

6.1.2 What is apparent is the clear breach or infringement of the terms of the LO by the P from the outset:

It is a trite practice that DBKL will occasionally apply to the PTGKL for land (including TOL) in the Federal 530 Territory that falls within the jurisdiction of the PTGKL. This is never an issue.

The LO expressly and explicitly set out the tenancy terms that DBKL is legally competent to offer. Otherwise, PTGKL 535 application for early access to the said land. This is merely a government inter-departmental dealing over Federal Land. DBKL is a statutorily constituted local authority for the city of Kuala Lumpur.

It is irrefutable that the P from the date of the LO 540 (09.09.2016) until the date P was served with a notice (26.06.2019) to evacuate and vacate by PTGKL, was in possession of the said land and unlawfully benefitted from its unsanctioned business activities for approximately 3 years at the safety protest of TNB.

There is a clear admission of SP1 in his evidence that he had sub-let the said land that he had demarcated into cabins to third parties. The LO is specific that no sub-letting is allowed, which can cause a termination of the said tenancy.

There is no written and formal approval as required for the construction works of the cabins since the P defaulted in submitting the needed planning and layout plans for approval, repeatedly asked for by DBKL. The cabin structures erected are, in the circumstances, by 555 law, unlawful structures.

The P had defaulted on its obligation to pay the monthly rental for approximately 18 months. DBKL asserts in its counterclaim that the P-issued post-dated cheques to address part of the arrears had been dishonoured.

Its construction activities on the cabins and land levelling work at the site with heavy machinery had encroached into TNB rentis/reserve for its high voltage transmission line, posing a safety hazard and endangering the installations of TNB. 565

TNB had secured a judgment in default of defence against the P with injunctive relief prohibiting the P from carrying out any activities within the rentis/reserve area. An order to deliver vacant possession had also been secured.

The P appears to be a repeat offender from the number of Stop Work Orders issued by TNB.

It is evident that the P did not come to Court with clean hands. 575 6.2 In the LO (09.09.2016) for the said land to P, the parties covenant with each other that:

6.2.1 DBKL had made it clear that it agreed to let the said land after it had applied for a Temporary Occupation License (TOL) to the PTGKL. However, the early entry permission 580 was obtained on 09.08.2016 for car park purposes. Pending the approval of the TOL, the rental for the said property will be on a monthly basis. This is made clear. The issue of misrepresentation does not arise. 585 6.2.2 Rental rate of RM 3,200.00 per month (including GST) by the 7th of each month.

6.2.3 The use of the said land is for the P Management Office and Kedai berstruktur Kabin 590 and/or directions from DBKL from time to time.

6.2.4 The location's planning and layout plan must be submitted within two weeks to Jabatan Perancangan Bandaraya. Any infringement can bring about the termination of tenancy.

6.2.5 The P was to obtain the required license from the Jabatan Perlesenan dan Pembangunan Penjaja and comply with all conditions imposed before any business activities are allowed. 600

6.2.6 There shall be no sub-letting of any part of the said property to third parties which can bring about the termination of this tenancy.

6.2.7 If DBKL requires the said property for whatever purpose, a 605 possession shall be delivered with no compensation from

6.2.8 From the above covenants, it is evident that the P does not 610 have a free hand to do as it pleases with the said land.

6.3 The P accepted the terms and conditions (pp.47-49, CB (B)) on 21.10.16 (acceptance form) and is bound to the four corners of the LO. Extrinsic evidence inconsistent with the express terms and 615 conditions cannot impair or vary the written instrument. That written instrument must be referred to for its full effect between the parties.

6.4 It has been established at the trial where SP1 acknowledged:

6.4.1 That the P construction works had been carried out before 620 15.08.2016, prior to the LO dated 09.09.2016. SP1 agreed that the construction works offer. He also agreed that the construction works were unsanctioned by DBKL. 625 6.4.2 It can also be argued that the construction works on the said land were made even before the P acceptance form (21.10.2016) of the LO.

6.4.3 SD1 denied the allegation by SP1 that verbal approval had 630 been granted to commence construction work on the cabins on the said land. 635

6.5 Non-compliance with s.70 of the Street, Drainage and Building Act 1974;

No person shall erect a building without the prior written consent of the local authority.

Any person who intends to erect a building shall cause to be submitted by the principal person submitting or the person submitting

to the local authority such plan and determination as may be required by any bylaws made under this Act; and

to the relevant statutory authority such plan and determination as may 645 be required by any other written law..."

6.6 Section 3 of the same Act interprets buildings as follows:- " building" includes any houses, huts, sheds or enclosures, whether used for human habitation or otherwise, as well as any walls, fences, rigs, 650 staging, fence doors, poles, pillars, most, frames, jerky boards, surf halls, dams, piers, welcome walls, jetties, landing stages or bridges, or any construction, pillar or foundation connected with the foregoing;..."

6.7 The P, in his evidence, failed to show that any approval for the 655 construction works made on the said land had been obtained:

6.7.1 SP1, in his evidence, admitted that the sketch of the proposed layout was done by him and was submitted to DBKL (16.08.2016) before the LO was issued. It is not a 660 technical drawing as required.

6.7.2 This does not comply with the terms of the LO that the planning and layout plan must be submitted to the Jabatan Perancangan Bandaraya for approval. It was never 665 submitted though reminders were issued.

6.7.3 SP1 agreed that he did not submit the layout plan to Jabatan Perancangan Bandaraya. 670 6.7.4 for the work on the said land.

6.7.5 DBKL asserted that P has no legal basis for claiming any losses from the construction cost he had incurred for the 675 illegal structures.

6.8 In his evidence, SP1 also acknowledged that P has never applied for and/or obtained a business license for any activity on the said land from the Jabatan Perlesenan dan Pembangunan Penjaja. 680 Despite that, he agreed that he had sub-let the cabins on the land to third parties. Even though the LO is explicit that there will be no sub-letting.

6.9 SP1 further agreed that based on the LO, approval for early access 685 into the land was obtained by DBKL. However, the TOL application has yet to be approved. In the circumstances, SP1 agreed that there could be no issue of misrepresentation by DBKL. The terms of the LO are clear and fully understood by SP1. Hence, the issue of misrepresentation under s.18 Contracts Act 1950 does not arise. 690 Section 18 CA says:

the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;

any breach of duty which, without an intent to deceive, gives an advantage to the person committing it, or anyone claiming under him, by misleading another to his prejudice, or to the prejudice of anyone claiming under him; and

causing, however innocently, a party to an agreement to make a mistake 700 as to the substance of the thing which is the subject of the Agreement. Section 19 CA says:

When consent to an agreement is caused by coercion, fraud, or misrepresentation, the Agreement is a contract voidable at the option of 705 the party whose consent was so caused.

A party to a contract, whose consent was caused by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed and that he shall be put in the position in which he would have been if the representations made had been true. 710 Exception If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless, is not voidable WA-21NCvC-59-09/2019 20 if the party whose consent was so caused had the means of discovering the truth with ordinary diligence.

6.10 In the foregoing circumstances, the issue of misrepresentation does not arise. The P must be estopped from claiming that DBKL had misled the P. Such unfounded allegations premised on conjecture cannot hold in light of the evidence.

6.11 DBKL had taken steps to arrest the wrongful conduct of the P:

6.11.1 On 25.05.2017, DBKL issued a notice to cease all rentis/reserve area. P was instructed to demolish the illegal 725 structures on the said property by 01.06.2017 (pp. 51-55,

6.11.2 On 12.03.2018, DBKL informed P that it could not secure the TOL approval for the said property for a long tenure (p.60, 730

6.11.3 On 30.11.2018, issued a Notice of Default (p.78, CB(B)) against the P arrears in monthly rental amounting to RM56,648.00 (18 months). The P was given 14 days to 735 remedy the default, failing which the tenancy would be in its counterclaim is that the bank had dishonored post-dated cheques issued by the P (pp.57-58, CB(B)). 740 6.11.4 On 11.12.2018, DBKL issued a Notice to Remedy Default (pp.79-82, CB(B)) for carrying out unauthorized activities encroaching into the TNB reserve, comprising the unapproved structural works in default of submitting the required planning and layout plan to Jabatan Perancangan 745 Bandaraya for approval. This constitutes a fundamental infringement of the terms of the tenancy agreement in the LO (09.09.2016).

6.11.5 On 29.04.2019, DBKL issued and served a notice of 750 termination of the purported tenancy (09.09.2016) and for the P to vacate the said property (pp.85-86, CB(B)).

6.11.6 On 26.06.2019, PTGKL served notices of evacuation from the said land and demolition of the cabin structures built by 755 the P on the said property to the P and all his sub-tenants (pp.139-145, CB(B)).

6.12 In the circumstances, the P failed to discharge his burden for this Suit. It is obvious that the , is unsustainable and should be 760 dismissed with costs. [7] DBKL's counterclaim:

7.1 There is evidence from SD2 that P failed to settle the outstanding rental payments amounting to approximately RM 66,248.00, 765 including GST and the amount excluding double monthly rental arrears calculated since 29.04.2019. These arrears are based on a statement of account submitted to the Court indicating that P is still in debt and has yet to pay. 770 7.2 DBKL pray for Order in terms of its counterclaim. THE LAW [8] A contract breaker must pay damages to the innocent party. In Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 775 1 CLJ 269, FC: A contract breaker must pay damages to the innocent party. However, if he has made any payment under a contract (not being a true deposit for the purchase of movable or immovable property), the contract breaker is entitled to have that payment set off against the damages he has to pay. However, he cannot seek 780 to recover any benefit he may have conferred upon the innocent party where he is guilty of breach of contract. Were it otherwise, a contract breaker would be in a position to take advantage of his own wrong. This is against the principle and the policy of the law. WA-21NCvC-59-09/2019 22 [9] Ex turpi causa non oritur actio 785 Is a legal doctrine which states that a plaintiff cannot pursue legal relief and damages if it arises in connection with their wrongful act. - In Lee Nyan Hon v. Metro Charm [2009] 6 CLJ 626; [2009] 6 MLJ 1, CA, it was held that:

The evidence had established that the plaintiff was in breach of the express covenants contained in cll. 5.5 and 5.9 of the agreement. Being the party in breach of the law due to its failure to obtain the building approval for the construction of the building structures and the procurement of the licences to carry out the 795 entertainment business in the building the plaintiff was precluded from enlisting the assistance of the court. In other words, the turpi causa non oriter actio. An action does not arise from a base cause. Therefore, the plaintiff being the guilty party could not be 800 permitted to take advantage of its own breach of the express covenants contained in cll. 5.5 and 5.9 of the agreement to which it had voluntarily subscribed. [67] In evaluating the available evidence, the plaintiff as the tenant 805 was in clear breach of the terms of the tenancy agreement. The plaintiff had breached the express covenants of the tenancy agreement with impunity, and this Court will not lend its assistance to the plaintiff. It is quite apparent that the plaintiff is relying on its illegal acts in not procuring the building plan and the license to 810 operate the entertainment outlet in the building to advance its claim against the defendant. I have no hesitation in striking out the plaintiff's claim based on the ex turpi causa non-oritur actio principle. it is a principle that is applicable to all causes of action including claims in tort." 815 - In SSN Medical Products Sdn Bhd v. Chin Hin Helmet Sdn Bhd [2021] 7 CLJ 61 where the CA referred to the above case: Lee Nyan Hon & Brothers Sdn Bhd v. Metro 820 Charm Sdn Bhd [2009] 6 CLJ 626 where the court held with regard and well recognised legal maxim is founded in good sense. No court WA-21NCvC-59-09/2019 23 will enforce an illegal contract or transaction which is illegal, and the illegality is duly brought to the notice of the court, and the person 825 [10] He who comes to equity must come with clean hands : This maxim is founded on good faith and good conscience. It provides that whenever a party seeks to obtain some equitable remedy but has violated 830 conscience and good faith, the doors of courts of equity will be shut against him. It not only disapproves of illegal conduct but will also deny relief for bad conduct. As a matter of public policy, it should be discouraged. The bad conduct must be part of the transaction that is the subject of the lawsuit. 835 [11] General Rule on Extrinsic Evidence: Section 91 of the Evidence Act 1950 states: When the terms of a contract or a grant or of any other disposition of property have been reduced by or by consent of the parties to the form of a document, and in all 840 cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of the contract, grant, or other disposition of property or of the matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. 845 Section 92 of the Evidence Act 1950 states: When the terms of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to section 91, no evidence of any oral agreement or statement shall be 850 admitted as between the parties to any such instrument or their personal representatives in interest for the purpose of contradicting, varying, adding to, or subtracting from its terms: Provided that

any fact may be proved which would invalidate any document or which 855 would entitle any person to any decree or Order relating thereto, such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, the fact that it is wrongly dated, want or failure of consideration, or mistake of fact or law;

the existence of any separate oral agreement, as to any matter on which 860 a document is silent and which is not inconsistent with its terms, may be proved, and in considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document;

the existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract, grant 865 or disposition of property may be proved;

the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant, or disposition of property may be proved except in cases in which the contract, grant or disposition of property is by law required to be in writing or has been registered according to the law in 870 force for the time being as to the registration of documents;

any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description may be proved if the annexing of any such incident would not be repugnant to or inconsistent with the express terms of the contract; and 875

any fact may be proved, which shows how the language of a document is related to existing facts. The relationship between sections 91 and 92 of the Evidence Act 1950 was addressed in Datuk Tan Leng Teck v Sarjana Sdn Bhd & Ors 880 [1997] 4 MLJ 329, HC that (briefly):

The best evidence about the contents of a document is the document itself, and it is the production of the document that is required by section 91 in proof of its contents.

The rule enunciated by section 91 can be considered an exclusive 885 rule in as much as it excludes the admission of oral evidence for proving the contents of the document, except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act 1950.

Section 92 applies to cases where the terms of contracts, grants or 890 other dispositions of property have been proved by the production of the relevant documents themselves under section 91.

After the document has been produced to prove its terms under Section 91, the provisions of Section 92 come into operation to exclude evidence of any oral agreement or statement for the 895 purpose of contradicting, varying, adding to or subtracting from its terms.

Sections 91 and 92, in effect, supplement each other.

Section 91 would be frustrated without the aid of Section 92, and Section 92 would be inoperative without the assistance of Section 900 91.

Since section 92 excludes the admission of oral evidence to contradict, vary, add to or subtract from the terms of the document proved adequately under section 91, it may be said that it makes the proof of the document conclusive of its contents. Like section 905 91, section 92 also can be said to be based on the best evidence rule. WA-21NCvC-59-09/2019 25 FINDINGS [12] I have carefully examined the cause papers, facts, evidence in this Suit and the submissions of parties, I find as follows: 910 12.1 As stated earlier, I find the present Suit is impaired by its non-compliance with the statutory requirement in s.9(c) Societies Act (Act 335). The P, a registered society, is not clothed with legal personality to be able to sue or be sued in its name: Lim Lip Eng v Ong Ka Chuan [2022] 4 MLJ 454, FC; Lee Thye 915 (as President and office bearer of the Selangor Yan Keng Benevolent Dramatic Association) v Tan Sri Ngan Ching Wen (as President and office bearer of the Selangor Chinese Assembly Hall) [ 1999] 6 MLJ 390. 920 12.2 It must sue or be sued in the name of its public officer or one of the office bearers. This legal defect cannot be cured under O.1A and O.2 RC 2012, and in the circumstances of having no legs to stand on, this Suit must be dismissed as a matter of course. 925 [13] That said, I will also address the parties' arguments vis-a-vis the facts established and for completeness, I also find that:

13.1 There is no compelling evidence of any purported misrepresentation of facts on the part of DBKL as alleged by the P. There is no 930 compelling evidence save for adverse conjectures angled to support the story. The Court only acts upon the proven facts before it, and not speculations nor unfounded position. All pertinent facts on the tenancy and the said land were sufficiently disclosed in the LO, as acknowledged by SP1: Datuk Tan Leng Teck v Sarjana Sdn 935 Bhd & Ors [1997] 4 MLJ 329, HC correctly held that the best evidence about the contents of a document is the document itself, WA-21NCvC-59-09/2019 26 and it is the production of the document that is required by section 91 Evidence Act (EA) in proof of its contents. After the document has been produced to prove its terms under Section 91 EA 1950, 940 the provisions of Section 92 EA 1950 come into operation to exclude evidence of any oral agreement or statement for the purpose of contradicting, varying, adding to or subtracting from its terms. Sections 91 and 92, in effect, supplement each other. Like section 91, section 92 also can be said to be based on the best evidence 945 rule.

13.2 From the evidence before me, I am persuaded that the P had committed the following infringements of the terms of the LO: 950

There is no denying that the P was in possession of the said land for slightly less than 3 years, from the said LO (09.09.2016) to the date PTGKL issued the eviction notice on 26.06.2019. During these 3 years, the P carried out its unsanctioned business activities (including sub-letting), disregarding the 955 terms of the LO or the bylaws. (paragraphs 2 & 3, LO, p.38,

In his evidence, SP1 acknowledged that P never applied for and/or obtained a business license for any activity on the said 960 land from the Department of Licensing and Hawker Development of DBKL. This is a requirement under the LO before any business activities on the said land are undertaken. (paragraph 6(v) LO, p.38, CB(B)). 965

In breach of the terms of the LO, the P sub-let the cabins that he had unlawfully constructed (without approval from the WA-21NCvC-59-09/2019 27 relevant authority). It is rendered as unlawful structures subject to removal. (paragraph 6(vii) LO p.38, CB(B)). 970

No formal approval, as required by the bylaws, was secured for constructing the cabins on the said land when the P defaulted in submitting the technical planning and layout plans for approval by Jabatan Perancangan Bandaraya, DBKL. Even after repeated requests, the P failed to submit to the relevant 975 department in charge. SP1 admitted to this in his evidence. The structures erected are, in the circumstances, unlawful in breach of the Street, Drainage and Building Act 1974. (paragraph 6(iii) LO, p.38, CB(B)). 980

The P defaulted approximately for 18 months to meet the agreed monthly rental for the said land. On 30.11.2018, DBKL issued a Notice of Default (p.78, CB(B)) on the P arrears in monthly rental amounting to RM56,648.00 (18 months at the time). The P was given 14 days to remedy the default, failing 985 which the tenancy would be terminated with the ensuing legal had dishonored post-dated cheques issued by the P (pp.57-58, and paragraphs 6(ii) & (vi) LO, p.38, CB(B)). 990

The P construction activities in erecting the cabins and land levelling work at the site with heavy machinery had encroached into TNB rentis/reserve for its high voltage transmission line, posing a safety hazard and endangering the installations of TNB, causing TNB to sue in the HC KL and securing a JID of 995 defence against the P who as the facts revealed is a repeat WA-21NCvC-59-09/2019 28 offender.. It can be seen that DBKL attempted to arrest the wrongful conduct of the P but to no avail as can be seen:

On 25.05.2017, DBKL issued a notice to cease all 1000 area. P was instructed to demolish the illegal structures on the said property by 01.06.2017 (pp. 51-55, CB(B)), but that was ignored.

(ii) On 11.12.2018, DBKL issued a Notice to Remedy Default (pp.79- 82, CB(B)) for carrying out unauthorized activities into the TNB 1005 reserve, comprising the unapproved structural works in default of submitting the required planning and layout plan to Jabatan Perancangan Bandaraya for approval. This constitutes a fundamental infringement of the terms of the tenancy agreement in the LO (9.9.2016). The P again ignored this. 1010 These defaults by the P to comply with the directions of DBKL are sufficient grounds for DBKL to terminate the tenancy (paragraph 6(i) LO, p.38, CB(B)). 1015

It is my observation from the facts and evidence, that the P had committed several fundamental breaches of the terms of the LO throughout the period, as can be seen in the foregoing:

Paragraph 13.2(a): Conducting unsanctioned business activities 1020 (including sub-letting);

(ii) Paragraph 13.2(b): Operating with no business license;

(iii) Paragraph 13.2(c): Erecting unlawful structures on the land;

(iv) Paragraph 13.2(d): Failed to secure approvals for cabins structure; 1025

Paragraph 13.2(e): Defaulted on rental payment for 18 months; and

(vi) Paragraph 13.2(f): Non-These are fundamental breaches of the P that is sufficient 1030 for DBKL to terminate the tenancy. WA-21NCvC-59-09/2019 29

On 29.04.2019, DBKL issued and served a notice of termination of the purported tenancy (09.09.2016) and for 1035 the P to vacate the said property. Though it is within the rights of DBKL to elect any one or all of the breaches in the foregoing paragraphs 13.2 (a)-(f), DBKL instead elected to terminate for not being able to secure the TOL from PTGKL. 1040 On 26.06.2019, PTGKL served notices of evacuation from the said land and demolition of the illegal cabin structures erected by the P on government land. The notices were served on the P and all his sub-tenants (pp.139-145, CB(B)). -letting 1045 business model on government land.

13.3 In light of the foregoing defaults, it is evident that the P did not come to Court with clean hands in seeking relief. It is trite that he who seeks equity must come with clean hands, failure to do so then the 1050 doors of courts of equity will be shut.

13.4 Grounded on the LO, P seek damages against DBKL. The Federal Court in Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 CLJ 269, FC, Gopal Sri Ram FCJ observed that a contract 1055 breaker must pay damages to the innocent party, and he cannot seek to recover benefit upon the innocent party where he is in breach of contract. Otherwise, a contract breaker would be in a position to take advantage of his own wrong. This is against the principle and the policy of the law. 1060

13.5 The P, as a contract breaker, cannot, in law, set up his default as a foundation to seek remedies against DBKL, as that would be against WA-21NCvC-59-09/2019 30 the policy of the law. Ex turpi causa non oritur actio, from a dishonourable cause, an action does not arise and person should 1065 not be allowed to profit from his wrongdoing. [14] In considering the foregoing:

14.1 I take cognisance at the trial that the P unsanctioned construction and earthworks on government land had been carried out before 1070 15.08.2016, i.e., prior to the LO dated 09.09.2016. It can also be argued that the construction works on the said land were made even on 21.10.2016 for the LO:

SP1 agreed that the construction works were carried out without 1075 and were unsanctioned by DBKL, and

SD1 denied the allegation by SP1 that verbal approval had been granted to commence construction work on the cabins on the said land. 1080 14.2 In light of the facts and materials before the Court, I am unpersuaded is suit:

The issue of DBKL not having the TOL of the land when issuing the LO is not tenable. I find no legal or factual impairment on the LO, assertions unsustainable. Para 2 of the 1085 LO clarifies the position of the said land (p.38, CB(B)) sufficiently. This dealing is with no objection from PTGKL, who had even approved early access.

Though the LO in para 3 (p.38, CB(B)) allows the erection of 1090 the P management office and cabin structures, it is subject to the prior approval of the planning department of DBKL in compliance with available bylaws. It is irrefutable that the WA-21NCvC-59-09/2019 31 required approval was not sought for and obtained by the P, rendering its arguments that it was allowed to set up the 1095 structures and cabins on the said land untenable. In the context of the law, approval is formal approval from the authorities, not an assumed alleged approval from individuals by implications. Compliance with the Street, Drainage and Building Act 1974 must be met. 1100

The inconsistent with the evidence before the Court. The P defaulted for approximately 18 months to meet the agreed monthly rental for the said land. Notice of Default can be seen 1105 on p.78, CB(B). Dishonored post-dated cheques issued by the P can be seen on pp.57-58, CB(B).

The P claimed to have suffered substantial losses and expenses in the construction of the cabins on the said land 1110 occasioned by being misled into believing that DBKL had the authority to enter into the tenancy for the said land. It is my observation that the alleged losses are (1) unproven by any plausible evidence rendering it to be merely a bare averment, and (2) any expenses it incurs are due to its disobedience to 1115 the specific terms and conditions of the LO, by embarking on unsanctioned work and activities on the said land as set out in the foregoing paragraphs. This, indeed, cannot be attributed to 1120

The P claim for mental anguish and depression for having to meet all the sub-tenants who had taken plots in the said land that he had demarcated after they received eviction notices WA-21NCvC-59-09/2019 32 from PTGKL is misplaced. The terms of the LO prohibit sub-letting, and the P did just that. Now premised on that breach, he 1125 seeks to be compensated. It is simply not tenable.

By and large put forward, the claim is unsustainable. In the circumstances, it is apparent that the scale of evidence tilted in for dismissing this Suit. 1130 CONCLUSION [15] In light of the foregoing, after considering the facts, the evidence adduced at the trial, and the parties' respective written and oral submissions, in particular the legal position of the plaintiff: 1135 15.1 I dismissed th Suit for incompliance with statutory requirements under s.9(c) of the Societies Act 1966. Further, I also find that on the balance of probabilities, the plaintiff has failed to prove its case and is accordingly dismissed with no order for costs.

15.2 By the same token, I dismissed the counterclaim by DBKL for want 1140 of evidence and incompliance with s.9(c) of the Societies Act 1966 against the plaintiff with no order for costs. Dated 02.06.2023. 1145 (HAYATUL AKMAL ABDUL AZIZ) JUDGE 1150 HIGH COURT OF MALAYA KUALA LUMPUR 1155 WA-21NCvC-59-09/2019 33 Counsels: Datuk Ahmad Zahril, together with Ms Nurfadhilah Zahari Messrs. A.M Zaharil & Co. 1160 Counsels for the plaintiff Mr Mohd Hisham bin Md Nen together with Mr Harris Salleh Hamzah Messrs. Harris Salleh & Co. Counsel for the defendant 1165