[2018] 1 LNS 4 Legal Network Series

IN THE HIGH COURT OF MALAYA AT SHAH ALAM

IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA
[CIVIL SUIT NO: BA-22NCVC-502-09/2016]

BETWEEN

VALIANT PLUS SDN BHD ... PLAINTIFF

AND

PERSATUAN PENGIKUT DEWA

CHING LIM SHI ... DEFENDANT

LAND LAW: Vacant possession - Claim by registered proprietor -

Existence of temple on land before land was purchased - Defendant
alleged existence of oral promise to allocate land where temple is located
- Plaintiff were prepared to allocate land but not where temple is located
- Whether there was expressed or implied consent for temple to remain on
current site - Whether defendant was squatter - Whether defendant has
equitable right to remain on land

[Plaintiff’s claim allowed with costs.]

Case(s) referred to:

Aik Ming (M) Sdn Bhd & Ors v. Chang Ching Chuen & Ors & Another
Case [1995] 3 CLJ 639 CA (refd)

Alfred Templeton & Ors v. Low Yat Holdings Sdn Bhd & Anor [1989] 2
MLJ 202 (refd)

Bohari Taib & Ors v. Pengarah Tanah & Galian Selangor [1991] 1 CLJ

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Rep 48 SC (refd)

Bukit Lenang Development Sdn Bhd v. Penduduk-penduduk yang

menduduki atas tanah HD(D) 151079 - HS(D)151601, Mukim Plentong,
Daerah Johor Bahru [1999] 8 CLJ 54 HC (refd)

Gimstern Corp (M) Sdn Bhd & Anor v. Global Insurance Co Sdn Bhd
[1987] CLJ Rep 102 SC (refd)

Masri Ahmad v. Neoh Tong Hock & Anor [2014] 1 LNS 1929 CA (refd)

Poh Siew Chang v. American International Assurance Co Ltd [2006] 6

MLJ 57 (refd)

Sidek Hj Muhamad & Ors v. The Government of the State of Perak & Ors
[1982] CLJ Rep 321 FC (refd)

STU v. The Comptroller of Income Tax [1962] 1 LNS 179 HC (refd)

Tan Wee Choon v. Ong Peck Seng & Anor [1985] CLJ Rep 798 HC (refd)

Yong Nyee Fan & Sons Sdn Bhd v. Kim Guan & Co Sdn Bhd [1978] 1
LNS 244 FC (refd)

Legislation referred to:

National Land Code 1965, ss. 48, 341, 425

INTRODUCTION

[1] The Plaintiff is a developer company incorporated in Malaysia and

the proprietor of land known as Lot 83949 and Lot 83950 located at
Pandamaran, Klang, Selangor. The Defendant is an association known as
Persatuan Pengikut Dewa Ching Lim Shi which manages a temple erected
on Lot 83950.

Enclosure 1

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[2] The Plaintiff seeks to obtain vacant possession of Lot 83949 and
Lot 83950 (“the land”) and commenced by way of an Originating
Summons BA- 24-483-05/2016. Having heard the application learned
Judicial Commissioner converted this application to writ on 4.8.2016.
Hence, the present suit.

Background facts

[3] The land was previously owned by Melati Ehsan Consolidated Sdn
Bhd (“MECSB”) and was purchased by the Plaintiff on 2.9.2010. The
temple has been in existence for about 50 years and claiming to have
about 5000 devotees. In June 2015 the Plaintiff’s application to develop
the land to build 269 units of affordable homes under Rumah Selangorku
Type B, C and D was approved by the Selangor State Executive Council
(“EXCO”) on condition inter alia, that the Plaintiff was to obtain the
Development Order and the approval of the Building Plan within 60 days
from the date of approval of the EXCO. The approval was conveyed vide
a letter dated 12.6.2015 issued by the Lembaga Perumahan dan Hartanah
Selangor (Exhibit P1 Bundle A pp.72-75).

[4] However, no development could be carried out since the Defendant

refused to vacate. The Plaintiff had on two occasions through its solicitor
wrote to the Defendant on 26.8.2015 and 16.10.2015 offered another
piece of land and compensation but was turned down.

Plaintiff’s case

[5] PW1 is the director of the Plaintiff and testified that the Plaintiff
purchased the land on 2.9.2010 from MECSB and intended to develop the
same. He added that owing to the refusal of the Defendant to move out
the Plaintiff could not carry out the development. Attempts to persuade
the Defendant to surrender vacant possession failed and vide a letter
dated 26.8.2015 the Defendant was requested to leave and was offered to
be relocated (Bundle A pp.55-56). There was no response to this letter.

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[6] Another letter dated 10.10.2015 was issued by the Plaintiff’s

solicitor and an offer was made for a larger land area of 43560 sf and a
sum of RM50,000.00 as compensation compared to 24,000 sf and further
6698 sf for parking space and green area in the earlier offer (Bundle A
pp.58-59). This was rejected by the Defendant vide a letter dated
10.12.2015 (Bundle A p.18) as the plot was next to a sewage plant.

[7] PW1 further testified that there was a meeting held to resolve this
matter and it was chaired by the State Executive Council (EXCO)
member on 15.3.2016 where the Defendant requested for a piece of land
at another location but the Plaintiff refused. He denied that he promised
to allocate one acre of land where the temple is located and let the temple
remained in situ.

[8] PW2 is a civil engineer employed by the Plaintiff. He testified that

the sewage plant should not be an issue as the proposed development was
also within the same area as the land offered to the Defendant. He added
that the temple only occupied an area amounting to 6,000 sf and the
Plaintiff had offered a one acre land instead but was rejected.

Defendant’s case

[9] The Defendant called two former chairmen of the temple to give
evidence. Apparently they have no details with them. DW1 testified that
the Defendant rejected the Plaintiff’s offer because the land was next to
the sewage plant and a community hall. There will be congestion if the
temple was to be built there. Referring to the meeting held, he said that
the Plaintiff was supposed to come up with another offer but that did not
happen. And he alleged that PW1 had promised the owner of MECSB to
give the Defendant an acre of land where the temple is located.

[10] DW2 testified that he knew about the Plaintiff’s one acre offer and
that all the squatters had moved out. He did not know about the
RM50,000.00 offered by the Plaintiff.

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[11] Both DW1 and DW2 admitted that the Defendant never applied for
the land where the temple is constructed to be alienated to the Defendant.
It is also the Defendant’s case that the temple is on Lot 83950 and will
not be affected by the proposed development which is on Lot 83949.

Submissions

[12] The learned counsel for the Plaintiff submitted as follows:

12.1 As the registered proprietor the Plaintiff is entitled ex debito

justitiae to an order of vacant possession.

12.2 The burden is on the Defendant to prove that it has acquired a

legal or equitable right to occupy the site on which the temple
is erected.

12.3 The fact that the temple has been in existence for about 50
years does not give the Defendant the licence to occupy the
site. At most the Defendant is a mere gratuitous licensee.

12.4 The Defendant is a squatter simpliciter.

[13] The learned counsel for the Defendant submitted as follows:

13.1 The Plaintiff by way of an oral agreement promised to

allocate a one acre land where the temple is located.

13.2 The Defendant is not a squatter simpliciter having in

existence for 50 years.

13.3 The State Government has directed the Plaintiff to provide a

new site for the temple during the meeting held on 15.3.2016.

13.4 The Plaintiff has diverted from its original intention to build
low cost housing.

13.5 The land offered to the Defendant was not suitable for a

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temple as it was next to a sewage plant.

Analysis and decision

[14] The following facts are not disputed-

14.1 The Plaintiff is the legal proprietor of the land and has legal
interest over the same.

14.2 The temple has been in existence before the land was
purchased by the Plaintiff.

14.3 The Plaintiff did offer a land of 43560 sf which is equivalent

to one acre for the relocation of the temple.

[15] As regards the promise or oral agreement allegedly made by PW1, I

did not have the benefit of looking at any document or hearing the owner
of MECSB confirming the so-called oral agreement. Nevertheless, there
was no dispute that two offers were made and this was even noted in the
minutes of the meeting on 15.3.2016. There was no reference to the
alleged oral agreement in the said minutes too. The meeting that was
chaired by the EXCO member was at the behest of the Menteri Besar. At
the end of the meeting it was decided as follows (Bundle A pp.15-17):

“4. KEPUTUSAN MESYUARAT

4.1 YB Dato Pengerusi memutuskan pihak pemaju untuk

menimbangkan semula tawaran kepada pihak tokong iaitu
seluas 1 ekar dan tidak berhampiran dengan tapak STP. Pihak
pemaju diminta mengemukakan secara rasmi kepada pihak
Pejabat YB Dato Pengerusi dan UPEN untuk perbincangan
lanjut bersama pihak tokong.”.

[16] Clearly, whatever advice or suggestion given by the chairman

should and could not be considered as a directive from the State
Government.

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[17] The learned counsel for the Defendant relied on s. 59 of the

Evidence Act that a fact may be proved by oral evidence and cited the
case of Poh Siew Chang v. American International Assurance Co Ltd
[2006] 6 MLJ 57. Abdul Malik Ishak J (as he then was) referred to a
passage in STU v. The Comptroller of Income Tax [1962] MLJ 220 at
p.221 where Tan Ah Tah J said,

“In this case certain explanations given by the appellant to the

officers of the Income Tax Department were rejected on the ground
that there was no documentary evidence to support them. No doubt
documentary evidence can in many cases be very cogent and
convincing. The lack of it however, should not invariably be a
reason for rejecting an explanation. Not every transaction is
accompanied or supported by documentary evidence. Much depends
on the facts and circumstances of the case, but if the person who is
giving the explanation appears to be worthy of credit does not
reveal any inconsistency and there is nothing improbable in the
explanation, it can, in my view, be accepted.”.

[18] I have no issue with this position but I cannot see how this can be
applied in the current action. PW1 was never cross-examined on this fact.
In other words, it was not put to PW1 that he made this oral agreement.
In Aik Ming (M) Sdn Bhd & Ors v. Chang Ching Chuen & Ors & Anor
Appeal [1995] 2 MLJ 770 at p.794, Gopal Sri Ram JCA (as he then was)
stated as follows:

“It is essential that a party’s case be expressly put to his opponent’s

material witnesses when they are under cross-examination. A
failure in this respect may be treated as an abandonment of the
pleaded case and if a party, in the absence of valid reasons, refrains
from doing so, then he may be barred from raising it in argument. It
is quite wrong to think that this rule is confined to the trial of
criminal causes. It applies with equal force in the trial of civil
causes as well.”.

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[19] The circumstances too did not seem to support the allegation. As I
had mentioned earlier the Plaintiff did not dispute that they were
prepared to allocate one acre of land but not where the temple is located.
Therefore, it is my considered view that there was no such oral
agreement.

[20] The Plaintiff is the legal proprietor of the said land and I have no
reason to disbelieve that there was no expressed or implied consent for
the temple to remain on the current site. The fact that the temple has been
there for 50 years does not mean it is a legal structure and it has the right
to remain. To my mind, the Defendant has committed trespass. In Tan
Wee Choon v. Ong Peck Seng [1986] 1 MLJ 322 at 323, Wan Yahya J (as
he then was) had this to say,

“Trespass to land unlike criminal trespass is completed once a

person wrongfully, albeit peaceably, intrudes into the land in the
possession of another, even where no damage is done. Trespass to
land covers all unlawful entry and includes taking possession,
pulling down or destroying anything permanently fixed to the land.
The following passage on what constitutes trespass to land is found
in Halsbury’s Laws of England (3rd ed.), Vol. 38 at page 739:

“Every unlawful entry by one person on land in the

possession of another is a trespass for which an action lies,
although no actual damage is done. A person trespasses upon
land if he wrongfully sets foot on, or rides or drives over, it,
or takes possession of it, or expels the person in possession,
or pulls down or destroys anything permanently fixed to it, or
wrongfully takes minerals from it, or places or fixes anything
on it or in it, or, it seems, if he erects or suffers to continue
on his own land anything which invades the airspace of
another, or if he discharges water from another’s land, or
sends filth or any injurious substance which has been
collected by him on his own land on to another’s land.”

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[21] In Bohari bin Taib & Ors v. Pengarah Tanah Galian Selangor
[1991] 1 MLJ 343 the Federal Court held that squatters simpliciter have
no rights whatsoever. This was similarly held in Sidek bin Haji Muhamad
& 461 Ors v. Government of the State of Perak & Ors [1982] 1 MLJ 313;
Bukit Lenang Development Sdn Bhd v. Penduduk-penduduk yang
menduduki atas tanah HD(D) 151079 - HS(D)151601, Mukim Plentong,
Daerah Johor Bahru [1999] 6 MLJ 25 and sections 48, 425 and 341 of
the National Land Code 1965. In other words, adverse possession is not
recognised.

[22] However, it is the Defendant’s pleaded defence that the Plaintiff

purchased the land in 2010 but it took the Plaintiff five years to initiate
the action against the Defendant. This would indicate that there was
acquiescence and laches on the part of the Plaintiff and the previous
owner. No authority was cited in the written submission to support this
contention. In Masri Ahmad v. Neoh Tong Hock & Anor [2014] 1 LNS
1929 the Court of Appeal held that at paragraph 24 as follows:

“Section 341 of the NLC provides that adverse possession, no

matter how long, does not confer title to the land. Therefore, the
registered proprietor or person entitled to the land, may at any time,
take action to evict the stranger or squatter in adverse possession.
Consequently, section 341 of the Code, read together with section
9(2) of Act 254, in effect provided that there shall no limitation
period to bar the current registered proprietor from taking action.”.

Therefore, such defence is not available to the Defendant.

[23] If I am wrong in finding that the Defendant is a squatter, to my

mind, the burden lies on the Defendant to show whether it has any
equitable right to remain. There is no evidence that when the temple was
built the Defendant was given a Temporary Occupational Licence
(“TOL”) and I do not think DW1’s evidence when he said-

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“Pada dahulunya tanah ini adalah tanah TOL, kemudiannya ianya

telah pun dibeli oleh sebuah syarikat. Lepas itu kami ada meminta
daripada pihak syarikat tersebut, namun demikian syarikat tersebut
telah pun menjual hartanah tersebut kepada syarikat yang lain.”.

is sufficient to prove such fact to bring this case within Bohari (supra).
On the contrary the Plaintiff has shown that the land belonged to the
State Government until it was alienated to TPPT Sdn Bhd with a 99-year
lease. No evidence of any TOL was issued.

[24] In Alfred Templeton & Ors v. Low Yat Holdings Sdn Bhd & Anor
[1989] 2 MLJ 202 at p.221 Edgar Joseph Jr J (as he then was) held,

“A search for authorities shows that equity does not even have to
depend on agreement, for words or conduct can suffice to raise an
equity.”.

I found none on the part of the Plaintiff to entitle the Defendant to any
equitable right.

[25] It was further contended by the learned counsel for the Defendant
that the Defendant should be entitled to compensation owing to money
expended and labour in the development of the temple. The Defendant, in
this respect, has not produced any supporting documents to that effect
and no evidence was led to show at which point of time any kind of work
being carried out. The Defendant has not satisfied the test laid down in
Yong Nyee Fan & Sons Sdn Bhd v. Kim Guan & Co Sdn Bhd [1979] 1
MLJ 182. Hashim Yeop A Sani J (as he then was) at p.189 stated as
follows:

“To set out the general principles first, it is an established rule of

equity that a plaintiff in equity is bound to prosecute his claim
without undue delay. A court of equity would refuse its aid to stale
demands, i.e. where the plaintiff has slept upon his right and
acquiesced for a great length of time. For “laches” literally means

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negligent inactivity. He is then said to be barred by his laches.

(Halsbury’s 3 rd Ed. Vol. 14, p. 641). In determining whether there
has been such delay as to amount to laches the main points to be
considered are acquiescence on the part of the plaintiff and
secondly whether any change of position has occurred on the
defendant’s part. Of course acquiescence depends on “knowledge,
capacity and freedom.” It is not necessary however that the plaintiff
should have known the exact relief to which he was entitled. As
regards the change in the defendant’s position regard must be had
whether the defendant has lost the evidence necessary for meeting
the claim, for a court of equity will not allow a dormant claim to be
set up when the means of resisting it have perished.”.

As such I am not able to consider this submission in the Defendant’s

favour.

[26] The Defendant attempted to show that the Plaintiff has diverted
from its intended project for the poor i.e. from low costs to affordable
homes. I do not see any relevancy in this issue and further it is not
pleaded. In Gimstern Corporation (M) Sdn Bhd & Anor v. Global
Insurance Co Sdn Bhd [1987] 1 MLJ 302 at 303 Wan Hamzah SCJ stated
as follows:

“These issues brought up at the trial had not been pleaded in the
Statement of Defence, and this was a contravention of Order 18
Rule 8 of the Rules of the High Court, and therefore the contentions
should not have been entertained (Attorney-General v. Lord Mayor
etc of City of Sheffield (1912) 106 LT 367).”.

[27] In the circumstances, the Plaintiff’s claim is allowed with costs.

(ABD MAJID DATO’ HAJI TUN HAMZAH)

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Judicial Commissioner
High Court Malaya
Shah Alam

Dated: 2 JANUARY 2018

Counsel:

For the appellant - Mohd Razdzlan Jalaludin; M/s Abu Bakar & Yong
Advocates & Solicitors
No. 337, Level 3,
Block 5 Laman Seri Business Park No. 7
Persiaran Sukan
Seksyen 13
40100 Shah Alam
SELANGOR
Tel : 03 - 5518 4505
Faks : 03 - 5512 4505

M/s Shahrizat Rashid & Lee

Advocates & Solicitors
Suite 307-D, 3 rd Floor
Jalan TKS 1, Taman Kajang Sentral
43000 Kajang
SELANGOR
Tel : 03 - 2710 5555
Faks : 03 - 2710 3105

For the respondent - Vasudevan Appu & Rajasuriam; M/s Vasudevan A &
Co
Advocates & Solicitors
Suite 107-3D, Tingkat 3
Jalan TKS 1
Taman Kajang Sentral

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43000 Kajang SELANGOR

Tel : 03 - 8739 0005
Faks : 03 - 8739 5655

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