LAND LAW II

GLUP 3034
GROUP 13
Liew Choong Kin v Pengarah Jabatan Ketua Pengarah Tanah dan
Galian (Persekutuan) Wilayah Persekutuan Kuala Lumpur & Ors
[2018] 11 MLJ 339
(High Court of Malaya at Kuala Lumpur)

No. FULL NAME STUDENT ID

1. Syafinaz Binti Idrus 244653
2. Latifah Kaiyisah Binti Mohd Latib 248159

Lecturer: PROF. MADYA DR. NUARRUAL HILAL BIN

MD. DAHLAN
Date of Submission: 9th MAY 2019
 (A) FACTS OF THE CASE

The case in question concerns a piece of land at HS (M) 1317, No.PT 259, Hot Spring
New Village, Mukim Setapak, in Kuala Lumpur owned by the Plaintiff and his losses arising
out due to the construction of Lebuhraya Duta-Ulu Kelang or DUKE Highway. The defendant
beforehand acquired Federal gazette in 2005 for the purpose of such construction, which
specifies on “Declaration of Intended Acquisition” as per Section 8 of the Land Acquisition
Act 1960. Such declaration asseverated that ownership of such land cannot be traced. The
construction of the Highway was then completed in 2009 and the Highway runs across the
Land.

The plaintiff subsequently conducted an inquiry (“First Inquiry”) on 19th January 2007
in respect of the land, but no award of compensation was made as a result thereof. Accordingly,
the First Declaration would lapse after two years from the date of publication of the declaration
and ceased to have any effect to First Inquiry by the virtue of Section 8(4) of the Land
Acquisition Act 1960.

In 2013, the Plaintiff sent a letter to Ketua Pengarah Tanah dan Galian Wilayah
Persekutuan Kuala Lumpur (“D1”) where the Plaintiff sought compensation for the Land
either;

(i) by replacing the Land with the land of similar value in a different location such
Kampung Baru Salak Selatan or

(ii) Compensation based on the current market value or value agreed by a licensed
valuer.
The letter was responded by “D1” by publishing a second gazette declaration dated 1
December 2014, declaring that the land was required for the construction of the highway. On
25th May of 2015, a second land acquisition inquiry was then held on by “D1” by issuing an
offer of compensation in the amount of RM1, 116,000 to the plaintiff. The plaintiff accepted
the award without any protest and also he did not make any objection under Section 37 of the
Land Acquisition Act 1960.

However, on 18 December 2015, the plaintiff filed a writ of summons against the
defendants seeking damages for trespass of the land from the period 2005 until May 2015
instead of pursuing the statutory remedy available to him under the Act.
 B) ISSUE OF THE CASE

In the high court, plaintiff had dragged down an issue which is whether the plaintiff is
precluded from maintaining an action for trespass against the defendants after having accepted
the first defendant’s award of compensation without any objection?

C) THE CONTENTIONS ADVANCED BY THE PLAINTIFF

In the presentation of legal arguments made by the Plaintiff, the only concern is the
right to maintain an action for trespass for the prior entry into the acquired land and how
existing laws and cases are able to accommodate the positions so taken. This claim was
supported by the judgement of Syed Ahmad Helmy J in ASMTH Sdn Bhd & Anor v
Pentadbir Tanah Daerah Johor Bahru & Anor1,

“An entry into the plaintiff’s land before issuance of a notice under Section 8 of the Land
Acquisition Act 1960 will give the registered proprietor of the land a right to maintain an
action in trespass against trespasser.”

In other words, if the authority had no power of compulsory acquisition, but had simply
evicted the landowner from his property, he would have a right of action in trespass, and the
basis upon which damages would be assessed for a trespass which deprived him of his property
permanently provides the test for the assessment of compensation. It is critical to realise at this
juncture a stark difference between an imposition of guidelines on one's own private property
and one that is not. This was upheld in Rickets v Metropolitan Railway Co2, if the owner was
expelled from his property, he will be entitled for compensation for all the loss caused by the
expulsion.

1
[2007] 8 CLJ 445
2
[1865] 34 LJQB 257
 D) THE CONTENTIONS ADVANCED BY THE DEFENDANT

The third defendant of this instant case filed an application on Order 14A Rule 1 of the
Rules of Court 2012, which stipulates that plaintiff has no right of pursuing their claim of
trespass once compensation was received. This claim was supported by the case of Ng Chee
Keong & Ors v Lembaga Letrik Negara & Anor3, where the court held that as there is a
transfer of ownership on the subjected land procured by compulsory land acquisition by the
defendant who is a government agencies Lembaga Letrik Negara, the plaintiff’s claims mainly
depends on tort of trespass is not a sustainable cause of actions and trespass could be a
sustainable cause of actions.
The defendant also advanced a contention on the fact that the plaintiff seeking remedies
beyond the stipulated statutory remedies by the Land Acquisition Act 1960 then constituted to
filled a writ of summons, which stated that defendant had trespassed onto the land including
general damages, mesne damages and exemplary damages for the alleged trespass within the
ten years from 2005 to 2015. This claim was supported by the case of Tan Yoke Kwee & Ors
v Sistem Lingkaran Lebuhraya Sdn Bhd & Ors4 where the court held that the process of
compensation for land subject to an acquisition is under the Land Acquisition Act 1960 and it
is not the jurisdiction upon the court to ascertain the compensation outside the stipulated
provision provided by the existing specifics statutory. It is downright clear that plaintiff’s claim
by way of originating summons was erroneous and due to non-compliance with the procedures,
it would be a bit of tall order for him to succeed in his claim.

In conclusion, defendant contentions on the plaintiff cause of action on calling the

defendant in trespassing the land from 2005 to 2015 were sustainable action in court. This is
because, it is without merits when plaintiff who has a specific remedies provided such as Land
Acquisition Act 1960 seeks a writ summons of tortious act of trespass which at the time alleged
of trespass from 2005 to 2015 but plaintiff then had already accepted a compensation without
any contention of objection.

3
[1990] MLJU 7
4
[2009] MLJU 215
 E) OPINIONS AND JUDGEMENTS OF THE JUDGES ON THE ARGUMENT OF
THE PARTIES

In terms of the substance, the case seems, at first glance, to be a relatively simple one.
The hearing proceeded before the Judges where they have given careful attention to the issues
and released their judgment, dismissing the claims made by the plaintiff by precluding him
from maintaining an action for trespass against the defendants after having accepted the D1’s
award of compensation without any objection. The judges described their decisions on these
points by referring the case of Tan Yoke Kwee & Ors v Sistem Lingkaran Lebuhraya Sdn
Bhd & Ors5, where the court held that the grievance of the plaintiffs whose lands had been
compulsory acquired clearly relates to the amount of compensation that should be payable to
them if the procedure as prescribed under Sections 36, 37 and 38 of the Act have been followed.
However, their claim by way of originating summons was clearly misconceived. The court also
persuaded that the decision of Ng Chee Keong & Ors v. Lembaga Letrik Negara & Anor6is
correct that a cause of action based solely on trespass is not sustainable.

Therefore, it is downright crucial for the Judges to ensure the fairness of a trial, but
since the procedures in the Act were not followed by the plaintiff, the Court ruled in
Defendant’s favour. The stakes were indeed high for everyone concerned. Accordingly,
pursuant to the terms of the consent order dated 25 January 2018, the plaintiff’s action is hereby
struck off with costs of RM10,000 each for the first, second and third defendants subject to the
payment of the allocator fee. The costs are to be paid by the plaintiff to the each of the
defendants.

5
[2009] MLJU 215
6
[1991] 1 CLJ 567
 F) WHETHER THE JUDGEMENT AND THE OPINION OF THAT JUDGE
ON THE ARGUMENT OF THE PARTIES ACCEPTABLE TO YOU?

A judge does what is statutorily asked of him - to judge. He hears the matter, determines
it based on the existing law before him and finally arrives at a conclusion which we call a
judgment. Looking over the High Court decision, this seems to be a fact-specific ruling, not a
broad ruling and I agree with the decision allowing the plaintiff’s action is hereby struck off.
In view of this opinion, this decision by Faizah Jamaludin JC is in line with all the other cases
and the legal principles discussed herein. The judge referred the case of Ng Chee Keong &
Ors v. Lembaga Letrik Negara & Anor7 and ruled in the defendant’s favour. In so doing, the
judge rejected the plaintiff’s claims, since there had been non-compliance with the proper
procedure under Land Acquisition Act 1960 and a cause of action based solely on trespass is
not sustainable. As cited by Idrus Harun JCA in the judgment on Ng Chee Keong’s case,

“The case undoubtedly showed a foursquare position and was indeed in point with
the present appeal, and therefore a claim for trespass in the present action could not in any
away be sustainable.”

In a nutshell, I believe that procedures under Land Acquisition Act 1060 are meant to
be obeyed and the plaintiff who goes against it must face its consequences. However, the
judge’s decision may and may not be correct. Errors of law may be interspersed across the
judgment. An avenue of appeal is still made available for the grieving plaintiff that he has an
opportunity to have recourse to appeal against this unfavourable judgment through an appeal
procedure provided by the law.

7
[1991] 1 CLJ 567
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