Roslee Bin Jaafar & 43 Lagi v AFTER IMAGE SDN BHD (DA-21NCvC-3-01/2025)

ROSLEE BIN JAAFAR

MOHD NAZRI BIN HAMZAH

ABDUL AZIZ BIN CHE TEH

AMIN BIN ZAINAL ABIDIN

MAHZAN BIN HAMZAH

HAFIZAL BIN ABDULLAH

NURHAZISAFRINA BINTI MOHAMMAD @ AB AZIZ

NURUL SHAFIQAH BINTI MOHAMMAD @ AB AZIZ

NURUL SHAKIRA BINTI MOHAMMAD @ AB AZIZ

ZULKIFLY BIN MOHAMMAD @ AB AZIZ

ROSNI BINTI MOHD YUNUS (ID. NO: 690303-03-5210) 01/03/2026 15:43:57

MOHD SUZLI BIN YA’ACOOB

WAN NURUL HUDA BINTI WAN AB KADIR

WAN MARINI BINTI WAN ABDUL KADIR

KAMAL AZIZI BIN ABD AZIZ (ID. NO: 641010-03-6323) (WAKIL DIRI BAGI SIMATI;

WAN SHARIFAH BINTI WAN AHMAD) NORAINI BINTI MUHAMMED

EZZAD ASHRAFF BIN ASHIM

FERUZA ASHRAFF BIN ASHIM

RAJA SHAHMUN BIN RAJA MAN

RAJA NA’INAH BINTI RAJA MAN

RAJA NABIHAH BINTI RAJA MAN @ NIK ABDUL RAHMAN

MOHD FADZIL BIN DAUD @ DAUD YATINEE

NORHAFIZATULAKMA BINTI KHAZANI

NORHAFIZATULAKMA BINTI KHAZANI (ID. NO: 721205-03-5160) (WAKIL DIRI BAGI SI MATI;

NORHAIZAN BINTI KHAZANI

NORHAIZAN BINTI KHAZANI (NO KP: 680326-03-5054) (WAKIL DIRI BAGI SI MATI;

NIK HASMAH BINTI NIK TALIB) ZULKIFLI BIN YAACOB

MUHAMMAD RIDZUAN BIN MUHAMMAD

SITI FATIMAH BINTI ABDULLAH

NORISAH BINTI HAMZAH

ROZMAN BIN IBRAHIM

NIK MOHD EZANI BIN NIK MOHD ZAWAWI

CHENG NGEOK MOI

KUIK KIM TICK

YEAP YEE BUN

CHENG EANG SEONG

QUEK ENG AW

KOH TIONG HUAT

KOH TICK HOCK

CIK MUSA BIN HUSIN

KHUSNI BIN YUNUS

MUHAMAD FAIZURI BIN ABDUL AZIZ

AZIZAH BINTI YAACOB (ID. NO: 470114-03-5268) (PENERIMA SURAT KUASA WAKIL NO DAFTAR MAHKAMAH TINGGI KOTA BHARU: DA-SKW(IR)-2092-07/2019

TANAH MERAH: PT44/2019) WAN MOHD ZULKIFFELI BIN WAN MAHMOOD (ID. NO: 720102-11-5737) … PLAINTIFFS

AFTER IMAGE SDN BHD

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KERAJAAN MALAYSIA … DEFENDANTS S/N 0XTsmcOou0aYRqQ/jYRzhg GROUND OF JUDGMENT (For Enclosure 21) Introduction.

The Enclosure 21 ("Encl.21") is the Second Defendant's Notice of Application to strike out the Plaintiffs’ Writ and Statement of Claim under Order 18 Rule 19 (1) (b) and/or (d) of the Rules of Court 2012. This Court has allowed the Second Defendant's application in this Encl. 21 and has struck out the Plaintiffs’ Writ and Statement of Claim. The Plaintiffs appealed to the Court of Appeal. Background.

The Plaintiffs are the land owners and/or business premises owners along Jalan Sultan Ismail Petra, Tanah Merah, Kelantan where a flyover was constructed.

This suit was brought by the Plaintiffs against the Second Defendant and 4 other defendants in relation to the construction of the said flyover which was alleged to have caused nuisance and disturbance to the Plaintiffs inter alia as follows: i) causing obstruction to the entrance to the Plaintiffs’ business premises; ii) causing dust and dirt to the Plaintiffs’ business premises; iii) the presence of heavy machines and equipment have caused disturbance, congestion, less parking space for the Plaintiffs’ customer as well as noise to the Plaintiffs’ business premises; S/N 0XTsmcOou0aYRqQ/jYRzhg iv) causing disturbance to the water reticulation and sewerage system to the Plaintiffs’ business premises; v) causing unhealthy environment for the Plaintiffs and their family; vi) causing cracks to the Plaintiffs’ business premises; and vii) causing encroachment into the Plaintiffs’ business premises.

The construction of the said flyover by the First Defendant had commenced on 20.08.2016 and had completed on 22.12.2020 according the Plaintiffs’ statement of claim.

The Second Defendant then applied to strike out the Plaintiffs’ writ and statement of claim on 2 main issues or grounds as follows:

that the Second Defendant has no role and has no involvement in approving, monitoring, supervising, controlling the construction of the said flyover; and

(ii) the Plaintiffs action had been barred by time limit pursuant to Public Authorities Protection Act 1948. Summary of the plaintiff’s submission.

The learned counsel for the Plaintiffs submits that the plaintiff has the required locus standi and cause of action to bring and maintain this suit for nuisance and trespassing against the Second Defendant being the Local Government for the District of Tanah Merah who had approved the said flyover project but failed to supervise or control the construction of the said flyover so as not to create nuisance and disturbance to the Plaintiffs.

It was also argued that the action against the Second Defendant was not solely in their capacity as Public Authority but on joint liability with the First Defendant. Therefore, the action was not time barred as alleged by the Second Defendant. Summary of Defendant's Submission.

The learned Second Defendant's counsel submits that the Second Defendant being the District Council for Tanah Merah, Kelantan carries the functions and duties as the Local Government pursuant to the Local Government Act 1976.

It was also submitted on behalf of the Second Defendant that the said flyover project was a Federal Government i.e the Fifth Defendant’s project which was approved and supervised by the Third and the Fourth Defendant. The said flyover project was approved by Kelantan Planning Committee pursuant to Section 20A Town and Country Planning Act 1976 where the Second Defendant has no involvement at all.

The learned counsel for the Second Defendant submits that the declarations sought against the Second Defendant in Paragraph 78(a) and (b) of the Plaintiffs’ statement of claim as follows: i) a declaration that the Second Defendant together with the other Defendants are liable for trespassing into part of the Plaintiffs’ premises; and S/N 0XTsmcOou0aYRqQ/jYRzhg ii) a declaration that the Second Defendant together with the other Defendants are liable for nuisance and disturbance to the Plaintiffs’ business.

According to the learned counsel for the Second Defendant, there is no fact pleaded by the Plaintiffs in their statement of claim to show that the Second Defendant had indeed trespassed into the Plaintiffs’ premises neither the fact that the Second Defendant had caused any nuisance and disturbance to the Plaintiffs’ business. Therefore, the Plaintiffs’ statement of claim does not disclose any reasonable cause of action against the Second Defendant.

Secondly, the Second Defendant’s learned counsel submits that based on Section 124 of the Local Government Act 1976, the Second Defendant is entitled to the protection under the provisions of the Public Authorities Protection Act 1948 and that the Plaintiffs’ claims against the Second Defendant is time barred under the provision of Section 2(a) of the Public Authorities Protection Act 1948. Analysis and Findings of the Court. Whether The Plaintiffs have a cause of action against the Second Defendant.

In the case of Government Of Malaysia v Lim Kit Siang; United Engineers (M) Bhd v Lim Kit Siang [1988] 2 MLJ 12, the Supreme Court stated as follows regarding the meaning of "cause of action": S/N 0XTsmcOou0aYRqQ/jYRzhg “What then is the meaning of “a cause of action”? “A cause of action” is a statement of facts alleging that a plaintiff’s right, either at law or by statute, has, in some way or another, been adversely affected or prejudiced by the act of a defendant in an action. Lord Diplock in Letang v Cooper [1965] 1 QB 232 at page 242 defined “a cause of action” to mean “a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person”. In my view the factual situation spoken of by Lord Diplock must consist of a statement alleging that, first, the respondent/plaintiff has a right either at law or by statute and that, secondly, such right has been affected or prejudiced by the appellant/defendant’s act.”

Based on the above definition of the cause of action, and the pleaded facts in the Plaintiffs’ statement of claim, this Court finds that there is no allegation that the Plaintiffs’ rights have been adversely affected or prejudiced by the act of the Second Defendant and there is no factual situation that entitled the Plaintiffs to obtain remedy from the Court against the Second Defendant.

This Court finds that the Second Defendant was not the party who approved the said flyover project nor the party who supervised the implementation or the construction or, in any manner, involved in the said project. Hence, the Plaintiffs have no cause of action against the Second Defendant. S/N 0XTsmcOou0aYRqQ/jYRzhg Time limitation and applicability of the provisions of Public Authority Protection Act 1948 to the Second Defendant.

This Court is agreeable with the submission of learned counsel for the Second Defendant that by virtue of Section 124 of the Local Government Act 1976, the Second Defendant is entitled to the protection under the provisions of the Public Authorities Protection Act 1948.

Section 124 of the Local Government Act 1976 provides as follows: “The Public Authorities Protection act 1948 [act 198], shall apply to any action, suit, prosecution or proceeding against any local authority or against any Councilor, officer, employee, servant or agent of any local authority in respect of any act neglect or default done or committed.”

It is then pertinent to refer to the provisions of Public Authorities Protection Act 1948 relied by the Second Defendant in their defence particularly to Section 2 (a) of the Act which provides as follows: “the suit, action, prosecution or proceeding shall not lie or be instituted unless it is commenced within thirty-six months next after the act, neglect or default complained of or, in the case of a continuous injury or damage, within thirty-six months next after the ceasing thereof;”

Paragraph 65 of the Plaintiffs’ statement of claim pleads as follows: “65. Projek Flyover tersebut telah dijalankan oleh Defendan Pertama bermula pada 20/08/2016 dan telah siap pada 22/12/2020 dimana tempoh asal yang perlu disiapkan adalah pada 19/08/2019.”

Based on the limitation period of 36 months, the plaintiffs’ cause of action would have expired on 21/12/2023 i.e. 3 years from the completion date of the said flyover project.

In this case, the Second Defendant had expressly pleaded the defence of limitation in paragraph 4 of their statement of defence as follows: “4. Defendan ke-2 juga menegaskan bahawa Plaintif-Plaintif dihalang oleh had masa untuk memfailkan tindakan ke atas Defendan ke-2 di bawah Akta Perlindungan Pihak

Section 38 of the Government Proceedings Act 1956 provides as follows: “Any written law relating to the limitation of time for bringing proceedings against public authorities may be relied upon by the government as a defence in any civil proceedings against the government.”

The defence of limitation is a complete defence accorded to the Second Defendant by the law. In the case of Alias Ismail v. Hairuddin Mohamad & Anor [1997] 4 CLJ 669 Abdul Malek Ahmad JCA (as he then was) said: “The court has no discretion to set aside a defence of limitation. In Riches v. Director of Public Prosecutions [1973] 1 WLR 1019, it was held that it was open to the defendant on an application to dismiss an action as being frivolous and vexatious or an abuse of the process of the court to show that the plaintiff's cause of action was statute barred and must inevitably fail for that reason.”

It is the finding of this Court that the Plaintiffs do not have a cause of action against the Second Defendant. If, however, the plaintiffs do have the cause of action against the Second Defendant, the action has been time-barred pursuant to section 2 (a) of the Public Authorities Protection Act 1948.

This Court is mindful that the power to strike out pleading summarily should not be exercised lightly but at the same time this Court also has the duty to ensure that only meritorious cases with a reasonable cause of action to be brought to a full trial in order to save valuable judicial time. Conclusion.

In this case, this Court has carefully examined and considered the details of the Plaintiffs’ claim as well as the applicable principles of law in the exercise of the Court's powers to strike out the Plaintiffs’ S/N 0XTsmcOou0aYRqQ/jYRzhg Writ and Statement of Claim. Upon such examination and consideration, this Court finds that the Plaintiffs has no cause of action against the Second Defendant and that the plaintiffs’ claim had been barred by the limitation law.

Therefore, this Court allows the Second Defendant’s application in Enclosure 21 and this Court strikes out the Plaintiffs’ Writ and Statement of Claim against the Second Defendant with Cost of RM8,000.00 payable by the Plaintiffs to the Second Defendant subject to the allocator fee. This Ground of Judgment is dated on 01.03.2026. ............................................... (MOHD ROSLI BIN YUSOFF) Judge High Court (2) Kota Bharu Kelantan. Plaintiffs’ Counsel: Nur Shafika binti Mustaffa Messrs Shaharuddin Hidayu & Marwaliz, No.5578-E Lot 347 Tingkat Satu, Wisma SHM, Seksyen 23, Taman Desa Telipot, 15050 Kota Bharu, Kelantan. S/N 0XTsmcOou0aYRqQ/jYRzhg 1st Defendant’s Counsel: Nurnajihah Binti Mat Rani, Messrs Rithauddeen & Aziz, Tingkat 6, Bangunan PKINK, Jalan Tengku Maharani, 15000 Kota Bharu, Kelantan. 2nd Defendant’s Counsel: Wan Nor Idayu Binti Wan Jusoh, Messrs Adli Aznam & Akram, 283, Taman Laksamana, Jalan Mahmood, 15200 Kota Bharu, Kelantan. 3rd & 5th Defendant’s Counsel: Nuur Zul Izzati Binti Zulkipli & Nurul Hanani Binti Ismail, Peguam Kanan Persekutuan Jabatan Peguam Negara, Bahagian Guaman, No. 45, Persiaran Perdana, Presint 4, 62100 Putrajaya. S/N 0XTsmcOou0aYRqQ/jYRzhg 4th Defendant’s Counsel: Aisyah Basirah Binti Mohd Nooruldeen, Penolong Penasihat Undang-Undang Negeri Kelantan, Pejabat Penasihat Undang-Undang Negeri Kelantan, Aras Bawah, Blok 5, Kompleks Kota Darulnaim, 15050 Kota Bharu, Kelantan.