[2018] 1 LNS 1433 Legal Network Series

IN THE HIGH COURT OF MALAYA

AT GEORGETOWN PENANG

[CIVIL APPEAL NO. PA-12ANCVC-7-04/2018]

BETWEEN

PENGHUNI-PENGHUNI/ORANG-ORANG YANG DIKETAHUI

MENDUDUKI DI ATAS TANAH YANG DIKENALI SEBAGAI
LOT 10020 PAJAKAN MUKIM, NO. HAKMILIK 1, MUKIM 17,
DAERAH TIMUR LAUT, PULAU PINANG (DAHULUNYA
DIKENALI SEBAGAI PT15, HS(M) 25, MUKIM 17, DAERAH
TIMUR LAUT, PULAU PINANG) … APPELLANT

AND

TENAGA NASIONAL BERHAD … RESPONDENT

IN THE GEORGETOWN SESSIONS COURT

STATE OF PENANG

CIVIL SUIT NO. PA-A52-NCVC-67-04/2017

BETWEEN

TENAGA NASIONAL BERHAD … PLAINTIFF

AND

1. SH SAHUL HAMID BIN MS HAMEED SULTAN

2. SANTERAN A/L ARUMUGAM

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3. PENGHUNI-PENGHUNI/ORANG-ORANG YANG
DIKETAHUI MENDUDUKI DI ATAS TANAH YANG
DIKENALI SEBAGAI LOT 10020 PAJAKAN MUKIM, No.
HAKMILIK 1, MUKIM 17, DAERAH TIMUR LAUT,
PULAU PINANG (DAHULUNYA DIKENALI SEBAGAI
PT15, HS(M) 25, MUKIM 17, DAERAH TIMUR LAUT,
PULAU PINANG) … DEFENDANTS

GROUNDS OF DECISION

Introduction

[1] This is an appeal against the summary judgment entered by the

Sessions Court in respect of trespass and re-possession of land.

[2] The Appellant is the Persatuan Penganut Dewa Sri Muniswarar

Batu Ferringhi which is a registered society pursuant to the
Societies Act 1966. The Appellant responded as the third
defendant in Georgetown Sessions Court Suit no. PA-
A52NCVC-67-04/2017 (“Suit”) filed by the Respondent.

[3] The Respondent is a licensee licensed pursuant to the Electricity

Supply Act 1990 and the plaintiff in the Suit.

Salient Facts

[4] The Respondent is the registered proprietor of the land

described as Lot 10020, Pajakan Mukim, No. Hakmilik 1,
Mukim 17, Daerah Timur Laut, Pulau Pinang (“Land”).

[5] The Appellant has managed and administered the affairs of the
Dewa Sri Muniswarar temple shrine (“Shrine”) which is situated
on the Land approximately for the past 70 years on the Land

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which was previously owned by the Perbadanan Bekalan Air

Pulau Pinang (“PBAPP”). The Shrine was built by the workers
of the PBAPP.

[6] The Respondent had appointed a licensed land surveyor Jurukur

Mahktar to carry out a survey on the Land which confirmed the
existence of the Shrine on the Land.

[7] Since the Respondent had never given permission to the

Appellant for the erection of the Shrine on the Land or occupy
the Shrine, the Respondent deemed that the Appellant has
trespassed upon the Land. Accordingly the Respondent issued
and served its notice of eviction upon the Appellant and its
solicitors.

[8] By reason of the Appellant’s refusal to surrender vacant

possession to the Respondent, hence the Respondent initiated
the Suit against the Appellant and two other occupiers of an
eatery and a store on the Land respectively.

[9] On 17 August 2017, the Respondent filed the summary judgment

application against all three defendants. The affidavits that were
filed between the Respondent and the Appellant were the
Respondent’s affidavit in support affirmed by Shanmugalingam
a/l Theisingham on 17 August 2017, Appellant’s affidavit in
reply affirmed by Supermaniam a/l Ayaho affirmed on 10
October 2017, Respondent’s affidavit in reply affirmed by
Shanmugalingam a/l Theisingham on 14 November 2017 and
Appellant’s second affidavit in reply affirmed by Supermaniam
a/l Ayaho affirmed on 27 December 2017.

[10] The learned Sessions Court Judge on 21 March 2018 entered

summary judgment in favour of the Respondent against the
Appellant in the following terms:

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“(a) Milikan kosong ke atas tanah yang dikenali sebagai

Lot 10020 Pajakan Mukim, No. Hakmilik 1, Mukim 17,
Daerah Timur Laut, Pulau Pinang (dahulunya dikenali
sebagai PT15, HS (M) 25, Mukim 17, Daerah Timur Laut,
Pulau Pinang);

(b) Defendan Pertama dan Defendan Ketiga harus

menyerahkan milikan kosong ke atas tanah yang dikenali
sebagai Lot 10020 Pajakan Mukim, No. Hakmilik 1, Mukim
17, Daerah Timur Laut, Pulau Pinang (dahulunya dikenali
sebagai PT15, HS (M) 25, Mukim 17, Daerah Timur Laut,
Pulau Pinang) dalam masa 7 hari dari tarikh
Penghakiman;

(c) Gantirugi untuk ditaksirkan; dan

(d) Faedah atas gantirugi yang ditaksirkan.

Dan akhirnya diperintahkan bahawa Defendan Pertama

dan Defendan Ketiga hendaklah membayar sejumlah
RM1,500.00 masing-masing kepada pihak Plaintif.”

[11] The Appellant was dissatisfied with the decision of the Sessions
Court and has hence on 4 April 2018 filed its appeal to the High
Court.

[12] The appeal came before me on 16 July 2018 and 27 August

2018. After having read the written submissions filed by the
parties and heard oral arguments of counsel, I allowed the
appeal with no order as to costs on 29 August 2018.

[13] I now provide the grounds of my decision.

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Contentions and Findings

[14] The Respondent contended that that is a clear cut case of

trespass with no defence thereto because the Appellant had
illegally without permission and/or consent whether verbal
consent or written consent of the Respondent built the Shrine on
part of the Land and occupied the same as confirmed by the land
surveyor appointed by the Respondent. The Respondent relied
on the cases of Valiant Plus Sdn Bhd v. Persatuan Pengikut
Dewa Ching Lim Shi [2018] 1 LNS 4, Isah Ekram & Ors v.
Hadizah Ramli [2014] 10 CLJ 354 and Indratana Elgiriye &
Anor v. Jothi Rengasamy & Anor [2010] 1 LNS 100.

[15] On the other side, the Appellant contended that there are triable
issues that merit a trial to wit, the right of the Appellant to
occupy the Land since the Shrine has been existence on the Land
and constantly used as a place of worship by Hindu devotees for
many years. Accordingly, the Respondent is barred by the
doctrine of laches and acquiescence as well as s. 32 of the
Limitation Act 1953. The Appellant relied on the cases of Khoo
Lee Kheng lwn Hau Seng Chai & Satu Lagi [2017] MLRHU 16,
Yong Nyee Fan & Sons Sdn Bhd v. Kim Guan & Co Sdn Bhd
[1978] 1 MLRA 381 and Damasara Jaya Sdn Bhd v. Penghuni-
Penghuni Kuil Muneswaran Alayam atau Kuil Muniandy Maha
Kali Alayam [1994] 1 CLJ 164.

[16] The governing provision in this appeal is set out in Order 55

rule 5 of the Rules of Court 2012 (“ROC”) which reads:

“5. Notice of Appeal against any decision other than a

decision made after trial (O. 55 r. 5)

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(1) An appeal from any decision other than a decision

made after trial by the Subordinate Court shall lie to a
Judge in Chambers of the High Court.

(2) The appeal under this rule shall be brought by filing a

notice of appeal in Form 111A in the Registry of the
relevant Subordinate Court, with a copy extended to the
Registry of the High Court within fourteen days from the
date on which the decision was pronounced and serving a
duplicate copy of the notice on every other party to the
proceedings.

(3) Within one month after the filing of the notice of

appeal under this rule, the appellant shall file the record
of appeal in the High Court, and the record shall contain
copies of-

(a) the application for the decision;

(b) all pleadings filed;

(c) all affidavits filed in support of or in opposition to the

application; and

(d) the order or draft order of the decision appealed from:

Provided that the record of appeal shall not include the

notes of evidence, the grounds of judgment or any
memorandum of appeal.”

This is a re-hearing as in Order 55 rule 2 of the ROC and is trite

that it is not a review but a re-hearing afresh.

[17] The law on summary judgment pursuant to Order 14 of the Rules

of Court 2012 is trite. In the Supreme Court case of Bank

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Negara Malaysia v. Mohd Ismail Ali Johor & Ors [1992] 1 CLJ
627 Mohd Azmi SCJ held as follows:

“Under an O. 14 application, the duty of a Judge does not

end as soon as a fact is asserted by one party, and denied
or disputed by the other on affidavit. Where such
assertion, denial or dispute is equivocal, or lacking in
precision or is inconsistent with undisputed contemporary
documents or other statements by the same deponent or is
inherently improbable in itself, then the Judge has a duty
to reject such assertion or denial, thereby rendering the
issue as not triable. In our opinion, unless this principle is
adhered to, a Judge is in no position to exercise his
discretion judicially under an O. 14 application. Thus,
apart from identifying the issues of fact or law, the Court
must go one step further and determine whether they are
triable. This principle is sometimes expressed by the
statement that a complete defence need not be shown. The
defence set up need only show that there is a triable issue.

Where the issue raised is solely a question of law without

reference to any facts or where the facts are clear and
undisputed, the Court should exercise its duty under O. 14
if the legal point is understood and the Court is satisfied
that it is unarguable, the Court is not prevented from
granting a summary judgment, merely because the
“question of law is at first blush of some complexity and
therefore takes a little longer to understand.”

That notwithstanding, Ong CJ (Malaya) held as follows in the

earlier Federal court case of Kim Seng Hotel and Coffee Shop v.
Chuah Teong Buan [1971] 1 MLJ 233:

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“When the issue is thus stated, I think it is reasonably

clear that there is a bona fide triable issue to be
determined, not merely by the perusal of evidence on
affidavits, but also requiring assessment of the credibility
of witnesses to be seen and heard by the trial judge in
open court... Facts are so infinite in their variety that, in
my view, precedents can be of little or no real assistance
in this case...”

Gill FJ further held as follows:

“In the present case, the defendant in his affidavit in

opposing the plaintiff’s application for summary judgment
has raised issues which can only be determined by viva
voce evidence at the trial of the action, and he has set up a
defence of which it cannot possibly be said in unequivocal
terms that it is not prima facie sustainable.”

[18] I have perused the affidavits filed by the parties as well as the
case authorities presented by them. In a tort of trespass case, the
plaintiff must prove that the defendant has both physically and
unlawfully occupied the premises. Although the Respondent
here has satisfactorily established that the Shrine is indeed
physically situated on the Land, I am however neither satisfied
nor convinced it is plain and obvious that the Shrine stood there
illegally besides also that the Appellant does not have the
continuing right to manage and administer the affairs of the
Shrine there. In the prevailing circumstances, the status of the
Appellant can be a squatter, a bare licensee or even a licensee
couple with equity. I noted that in Damasara Jaya Sdn Bhd v.
Penghuni-Penghuni Kuil Muneswaran Alayam atau Kuil
Muniandy Maha Kali Alayam (supra), Mahadev Shankar J (later
JCA) held as follows:

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“Under customary Hindu law it is well established that if

a landowner sets apart land which he owns for the
establishment of a temple which the public use for worship
over a long course of time, a trust of that land will be
deemed to have been expressly or impliedly created. The
temple deity is deemed to be a juridical entity. The temple
guardian is also deemed to be the trustee of the temple
property and has a legal right to sue and be sued in that
capacity. To call such persons committee members of an
association could be a misnomer. Members of the public
are also regarded as having a legal right of access to the
temple to worship there if they are of the faith.

These propositions have received judicial recognition in

several Privy council decisions which have been
commented upon with approval by Indian Courts which
have applied them. I need only to refer to Pramatha Nath
Mulliah v. Pradhyumna Kumar Mullich 52 Ind. App. 245,
also [1925] AIR PC 139; Commissioner, H.R.E. Board
Madras v. Narasimham [1939] AIR Madras 134,
Mundancheri Koman v. Achutan Nair AIR PC 280,
Subramania Aiyer v. Pujari Lashmana Govindar [1920]
AIR Mad. 42, Narayanan v. Hindu Religious Endownments
Board [1938] AIR Mad. 209, and Bhupathi Nath Smritirtha
v. Ramlah Maitra 37 ILR Calcutta 128.

Customary Hindu law has been applied by Malaysian

courts, where the circumstances so warranted. Factual
evidence has been presented to this court that the owners
of Effingham Estate had dedicated the site of the said
temple for Hindu religious worship, and that since 1915
the public had so used it without let or hindrance till
January 1992 when this application was filed - There is a

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case to be argued that the public have a right so to use the

access to the said temple and the temple itself.

This line of thinking has been upheld by Y.A. Abdul Razak

J. in Saman Pemula SP 31-3525-88 where Sungai Klang
Dredging unsuccessfully sought to evict the persons in
occupation of the Sri Mahamariaman Temple on a piece of
land in Puchong Village. There the temple was in existence
for a hundred years established by the owners of
Castlefield Estate. In 1977 the applicants bought the estate
and tried unsuccessfully to evict the temple users in 1988.
The court held they had an equity which could not be
terminated.”

[19] Additionally, the Appellant contended that the Respondent is

barred by laches and acquiescence. This is prima facie neither
frivolous nor incredulous since the Shrine stood on the Land for
so many years and the Respondent only initiated the action to
evict the Appellant in 2017 even though the Respondent became
the new registered proprietor of the Land on 14 January 2015
after having taken over possession of the Land from PBAPP
with actual or constructive knowledge of the Shrine situated
thereon. In the trespass case of Alfred Templeton & Ors v. Low
Yat Holdings Sdn Bhd & Anor [1989] 1 MLRH 144, Edgar
Joseph Jr. J (later FCJ) held as follows:

“Laches is an equitable defence implying lapse of time and

delay in prosecuting a claim. A court of equity refuses its
aid to a stale demand where the plaintiff has slept upon his
rights and acquiesced for a great length of time. He is then
said to be barred by laches. In determining whether there
has been such delay as to amount to laches the court
considers whether there has been acquiescence on the

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plaintiff’s part and any change of position that has

occurred on the part of the defendant. The doctrine of
laches rests on the consideration that it is unjust to give a
plaintiff a remedy where he has by his conduct done that
which might fairly be regarded as equivalent to a waiver
of it or where by his conduct and neglect he has, though
not waiving the remedy. put the other party in a position in
which it would not be reasonable to place him if the
remedy were afterwards to be asserted: 14 Halsbury’s
Laws of England (3 rd Ed) paras 1181, 1182. Laches has
been succinctly described as ‘inaction with one’s eyes
open’.

Now, can lapse of time and delay, however gross, in a suit

seeking final, as opposed to interlocutory relief, of itself
amount to the equitable defence of laches. It is clear that
delay in some circumstances can amount to evidence from
which the inference can be drawn that the plaintiff has
released (or waived, there seems to be no difference) the
claims which he asserts: lapse of time always gives rise to
a presumption that a stale suit is ill-founded for a
reasonable man is not likely to sleep on his claims if they
are well-founded. Whether it does or does not is a question
of fact in each case.

...

The term ‘acquiescence’, like the term ‘laches’, is

confusingly used in different senses. Three should be
referred to: (a) it can refer to the type of estoppel of which
Ramsden v. Dyson [1866] LR 1 HL 129 is an example. It is
this meaning which Lord Cottenham LC in Duke of Leeds
v. Earl of Amherst 41 ER 886 said was the primary

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meaning of the term. Poole J in Glasson v. Fuller [1922]

SABL 148 thought likewise; (b) it can refer to an element
in one of the two kinds of laches, viz the action of a
plaintiff over a long period of time, with full knowledge of
his rights, refraining from exercising his rights in
circumstances where it can properly be inferred that he
has abandoned them. This is waiver, affirmation, release.
This is the sense in which Hanbury uses the term when he
says: ‘The chief element in laches is acquiescence’; (c)
finally, as is evident from the question of Lord
Wensleydale’s speech in Archbold v. Scully [1861] 9 HCL
360; 11 ER 769 the term ‘acquiescence’ can be used as
referable only to the second type of laches considered in
this chapter, i.e. the type of laches which involves
prejudice to the defendant or to third parties.”

[20] These are to me plainly mixed factual and legal issues that can
only be properly determined vide viva voce evidence in a trial. I
observed that in the cases of trespass of Valiant Plus Sdn Bhd v.
Persatuan Pengikut Dewa Ching Lim Shi (supra) and Indratana
Elgiriye & Anor v. Jothi Rengasamy & Anor (supra) relied upon
by the Respondent were both determined after trial. This is
likewise in Alfred Templeton & Ors v. Low Yat Holdings Sdn
Bhd & Anor (supra) too. Thus recently in Borneo Wealth Sdn
Bhd v. Ratna Seri Arif & Ors [2017] 6 MLRH 89, Ismail Brahim
JC aptly held as follows:

“The issue whether it has a case that is founded on the tort

of public nuisance or trespass would be a matter to be
decided in a trial and determined based on the extrinsic
evidence.”

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[21] In the premises, I am of the opinion and hold that there are
triable issues here that warrant a trial to determine them.

Conclusion

[22] It is for the foregoing reasons that I allowed the appeal as so

ordered.

Dated: 14 SEPTEMBER 2018

(LIM CHONG FONG)

Judge
High Court Georgetown Penang

COUNSEL

For the appellant - V Amareson; Amareson & Meera

For the respondent - Ong Wee En; Lim Huck Aik & Co

Case(s) referred to:

Valiant Plus Sdn Bhd v. Persatuan Pengikut Dewa Ching Lim Shi
[2018] 1 LNS 4

Isah Ekram & Ors v. Hadizah Ramli [2014] 10 CLJ 354

Indratana Elgiriye & Anor v. Jothi Rengasamy & Anor [2010] 1 LNS
100

Khoo Lee Kheng lwn. Hau Seng Chai & Satu Lagi [2017] MLRHU 16

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Yong Nyee Fan & Sons Sdn Bhd v. Kim Guan & Co Sdn Bhd [1978] 1
MLRA 381

Damasara Jaya Sdn Bhd v. Penghuni-Penghuni Kuil Muneswaran

Alayam atau Kuil Muniandy Maha Kali Alayam [1994] 1 CLJ 164

Bank Negara Malaysia v. Mohd Ismail Ali Johor & Ors [1992] 1 CLJ
627

Kim Seng Hotel and Coffee Shop v. Chuah Teong Buan [1971] 1 MLJ
233

Alfred Templeton & Ors v. Low Yat Holdings Sdn Bhd & Anor [1989]
1 MLRH 144

Borneo Wealth Sdn Bhd v. Ratna Seri Arif & Ors [2017] 6 MLRH 89

Legislation referred to:

Limitation Act 1953, s. 32

Rules of Court 2012, O. 14, O. 55 rr. 2, 5

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