The High Court granted the plaintiff’s application for a summary judgment in an action for trespass and awarded damages even though plaintiff has sustained no actual loss.
Facts of the Case
Plaintiffs claimed that the defendants had trespassed their land (“Lot 76”) and fenced up the area, built a bungalow, a factory and planted durian tress on their land. The defendants were the owners of Lot 78.
Plaintiff then brought an action against the defendants for damages and costs. They had also made an application for a summary judgment to be entered against the defendants.
Issues of the Case
Whether the plaintiff is entitled to the summary judgment?
Whether the plaintiff is entitled to any damages?
Judgment of the Case
Under Order 14 of the Rules of the High Court 1980 [Currently under Order 14 of the Rules of Court 2021], the plaintiff is entitled to apply for a summary judgment where the facts warrant it or where the case is virtually uncontested or uncontestable or where the issues are clear. Summary Judgment was intended to put an end to sham defences concocted for the sole purpose of delay and, consequently, causing great loss to the plaintiffs who were endeavouring to enforce their rights under the law.
The defendants in their defence stated that their Architect had put up the plans for construction of the buildings and the Architect had identified the land to be at Lot 76. The plans were then submitted to the Majlis Perbandaran Taiping for approvals. Defendants stated that the plans were approved and certificates for occupation were issued but it was not exhibited in their affidavit in reply.
The plaintiff on the other hand rebutted the defence and state that it was the Pelukis Pelan Bangunan Berdaftar that drew the building plans. A letter from the Pelukis Pelan Bangunan Berdaftar dated 20 April 1993 addressed to the plaintiff was exhibited. The letter shows that the plaintiff did not employed a qualified surveyor to survey the land before constructing the bungalow and the factory, the first defendant who identified Lot 76 to the Pelukis Pelan Bangunan Berdaftar and that the buidings on Lot 76 were without valid certificates of occupation.
Another letter from the Majlis Perbandaran Taiping dated 13 February 1993 addressed to the plaintiff also denied approving the plan for Lot 76 but rather the approval was meant for Lot 78. Majlis Perbandaran Taiping in another letter dated 22 December 1992 informed the defendant that the certificates for occupation had been cancelled as there was no buildings erected on Lot 78 as proposed. A notice of demolition of buildings on Lot 76 was also sent to the defendants. Thus, the defendants’ statement and defence were untrue.
The defendants then argued that the word ‘trespass’ was never used in their statement of claim and that the plaintiff was converting the pleadings from one nature to that of another or from one cause of action to that of another. The plaintiff rebutted this argument and pointed out that the issue of trespass had been brought up in an earlier judgment which the word trespass was mentioned and an injunction to restrain the defendants from entering their land was granted to the them.
The High Court then referred to Robert Addie & Sons (Collieries) Ltd. v. Dumbreck [1929] AC 358, 371 which described a trespasser as one “who goes on the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to.” The High Court state that this would clearly describe the defendants.
The High Court held that from the pleadings and affidavits filed, the defendants did not have a fair or reasonable probability of a real or bona fide defence. Hence, the plaintiff is entitled to the summary judgment with costs.
The plaintiff sought for general and special damages which includes a list of special damages amounting to RM331,317.40. The Court held that the plaintiff is entitled to recover damages even though he has sustained no actual loss. In Ooi York Choo v Lim Song Foundry [1963] 29 MLJ 87 and Janaki v Cheok Chuan Seng [1973] 2 MLJ 96, the plaintiff was awarded exemplary damages where the defendant had trespassed the plaintiff’s land.
However, the damages must be specifically proved by the plaintiff (following Zainal Abidin bin Sulaiman & 26 Ors V Hoya Holdings Sdn Bhd [1993] 2 AMR 31). Therefore, the Court ordered the damages to be assessed by the Senior Assistant Registrar.
Principle of the Case
In an action for trespass on land, the plaintiff is entitled to recover exemplary damages from the trespasser even though he has sustained no actual loss.