Judgment

Siti Norma Yaakob JCA

(delivering the judgment of the court)

1. Summary proceedings under Order 14 of the Rules of the High Court 1980, ("the Rules") were successfully pursued by the plaintiff in the court below and judgment in the nature of two forms of injunction (one mandatory and the other prohibitive) as well as reliefs for damages to be assessed and costs to be taxed were ordered against the defendant. It was to appeal against these orders that the defendant is now cited as the appellant in this appeal before us.

2. The factual background of this appeal is in no way disputed. The respondent is a housing developer and between 1989 to 1993, it was developing their property, Lots 1997 to Lots 2021, Bandar Perai, Seberang Perai Tengah, Penang, held under Qualified Titles No HS(D) 1307 to HS(D) 1331, with the construction of a block of three-storey commercial building known as Taman Inderawasih, Phase 3 C1, consisting of 41 units of shop and office space and had sold subdivided parcels in the said building to various purchasers.

3. Pending the issuance of strata titles to the said purchasers, the respondent was responsible for the maintenance and management of the building. With that in mind, it had, on January 1, 1993, appointed a real estate agent, Messrs Jurunilai Bersekutu ("the property manager") to manage the common property of the said building but payment of their service charges were made by the owners of the individual parcels, pending the establishment of a management corporation under the Strata Titles Act 1985.

4. In early December, 1997, the property manager discovered that the appellant, a telecommunications company, had erected a cabin equipped with transmission lines to serve as a broadcasting station on a portion of the roof of the building and had restricted access to the roof by placing iron grills and a locked gate on the stairway leading to the roof, without the respondent's consent.

5. The appellant admitted this was so but they denied they were trespassers as they contend that they had the permission by way of a tenancy agreement with two brothers, purchasers of the three relevant parcels over which the structures were erected upon payment of a rental of RM2,300 per month to the said purchasers.

6. That being their stand the appellant refused to abide with the respondent's written demand contained in their solicitors' letter dated February 19, 1998, to remove the structures or to cease further acts of trespass on the respondent's property. This led to the respondent filing a writ action on March 26, 1998 seeking reliefs that have since been embodied in the judgment obtained in the Order 14 proceedings that we have stated earlier.

7. For completeness, we need to mention that the mandatory injunction directs the appellant to dismantle and remove all the structures and appurtenances that they had installed on the roof of the respondent's building within seven days of the date of the order. The restraining order prohibits the appellant from further acts of trespass into the respondent's property and the compensatory relief ordered to be assessed was the damages sustained by the respondent as a result of the presence of the illegal structures.

8. We also need to point out that before the Order 14 proceedings were commenced in the court below, the respondent had, following the filing of their writ action, applied for the same reliefs as sought in the Order 14 proceedings. However they managed to obtain an interim injunction compelling the appellant to remove the iron grills blocking the stairway to the roof, as the same Judge who heard the Order 14 proceedings, directed the matter of the removal of the structures on the roof be given an early date for trial. However just days before the trial date, the respondent filed the Order 14 proceedings and before us, two issues were raised by the appellant - one procedural and the other on a point of law based on the factual matrix of the case.

9. The procedural point raises the issue as to whether injunctive relief can be obtained by way of Order 14 proceedings. The appellant maintains that since there are specific provisions in Order 29 of the Rules governing the application and granting of injunctive relief, resort to Order 14 proceedings for the same relief is procedurally wrong.

10. For starters, we need to point out that the procedural point was never argued in the court below and on this omission alone, an appellate court is not bound to hear the appellant on their objection, unless due notice had been given and the respondent placed no strong objection to it being raised for the first time. In this instance the respondent raised no objection and under those circumstances we allowed the parties to make their respective submissions.

11. That same issue was raised in the case of Shell-Mex & BF Ltd v Manchester Garages [1971] 1 All ER 841, where the English Court of Appeal held that it was perfectly proper for a plaintiff to ask for an injunction in summary proceedings under Order 14 provided such an application was made to a Judge and not to the Master as the latter had no jurisdiction to issue any injunctive relief. That decision was followed by Zakaria J (as he then was) in Fabrique Ebel Societe Anonyme v Syarikat Perniagaan Tukang Jam City Port [1988] 1 MLJ 188, where he elaborated that as long as three conditions have been fulfilled, there is no restriction in law to prevent a plaintiff from proceeding to obtain injunctive relief in Order 14 proceedings before a Judge. Those three conditions have been identified to be -

    1. the defendant have entered appearance,

    2. the statement of claim has been served on the defendant and

    3. the application for summary judgment must be supported by affidavit.

12. On the facts of the appeal before us, all the above conditions have been fulfilled and the application was heard by Wan Adnan Ismail, J (as he then was).

13. Whilst we appreciate that the Order 29 of the Rules makes provisions for the application and granting of injunctions, it must be remembered that that Order relates only to the application and issuing of an interlocutory or interim injunction as opposed to one that is final in nature. This is clearly demonstrated by the fact that in the earlier proceedings for the same reliefs, the High Court had granted an interim injunction to the respondent directing the appellant to remove the iron grills but reserved the determination of the mandatory injunction to remove all the structures above the roof and at the stairway to be heard viva voce at an early date of trial.

14. Another example that shows Order 29 is only intended for the issue of an interlocutory or interim injunction is to be found in r 1(2B) of the same Order, where an interim injunction granted, ex parte, automatically lapses two weeks after it is granted unless renewed. Under these circumstances I say that the appellant's first objection fails for lack of merit.

15. I now come to the appellant's more substantial objection that the respondent has no locus standi to obtain the injunctions on the grounds -

    1. that since the respondent has pleaded trespass, that cause of action, can only be maintained by persons in possession and since the respondent is not a person in possession, of the building and common property it has no legal standing to prosecute the appellant. For the same reason indefeasibility of title does not confer a right to the respondent to institute proceedings in trespass.

    2. that it had instituted the present proceedings as the registered proprietors of the land on which strata titles had yet to be issued to purchasers of the parcels in the building and not on behalf of the purchasers, the actual persons in possession of the building.

    3. that the obligation on the part of the respondent to provide services in the maintenance and management of the common  property does not confer ownership of the common property to the respondent as it is not in possession of the common property.

16. It is not disputed that the structures were installed and erected on the common property of the building which the respondent says were not in the original plans that were approved by the authorities. The respondent fears that the presence of the illegal structures would stand in the way of the authorities issuing strata titles to the purchasers of the individual parcels. That fear was not without any basis as the Prai Municipal Council had issued a stop work notice dated April 30, 1998, addressed to one of the purchasers informing him that he had breached s 70 of the Street, Drainage and Building Act 1974, for installing the structures without the Council's written consent. In this respect, we consider this notice does not provide the determining factor as to the real issue at hand.

17. That issue is whether the respondent had possession of the common property as to entitle it to prefer a charge of trespass against the appellant. Trespass is essentially an injury to possessory right. A person in possession has certain rights under the law as against a trespasser. So held Abdul Aziz, J in the case of Mohamed v Kunji Mohidin [1966] 2 MLJ 24. See also the case of Senik v Hassan [1963] 29 MLJ 368.

18. The question to ask in this appeal is who had possessory rights of the common property of the building at the material time. Under the sale and purchase agreement dated January 29, 1992, the appellant maintains that the purchasers who purchased the three individual parcels, not only purchased such parcels but also the common property as well. As such any allegation that they are trespassers cannot come from the respondent as the latter had given up their possessory rights over the common property after the execution of the sale and purchase agreement.

19. This brings us to the question as to what was sold under the sale and purchase agreement. The preamble to the agreement states the property sold to be the three parcels with vacant possession and these have been identified as Parcel Nos D-G-1, D-1-1 and D-2-1located on the first, second and third floors of Block D of the building and delineated green in the site plan attached to the agreement. "Parcel" has been defined by Clause 31 of the agreement to mean

    one of the individual units comprised in the subdivided building which is to be held under separate strata title.

    No mention is made of the sale of any common property in the agreement although Clause 31 also defines "common property" to be

    so much of the land as is not comprised in any parcel, (including any accessory parcel) or any provisional block and the fixtures and fittings including lifts, refuse chutes, drains, sewers, pipes, wires, cables and ducts and all other facilities and installations used or capable of being used or enjoyed in common by all purchasers.

20. Reading the interpretations to be given to the property sold, it is clear that only three parcels or units of the shop lots or offices identified as D-G-1, D-1-1 and D-2-1 were sold, measuring 176.42, 228.07 and 247.12 sq meters respectively as particularised by the preamble to the agreement. Clearly the three parcels do not include any common property and as such it is incorrect for the appellant to say that the respondent had given up possession of the common property with the sale of the three parcels. Since the respondent continued to retain possessory rights over the common property of the building even after the execution of the sale and purchase agreements it is our considered opinion that it can legally maintain a charge of trespass against the appellant and for that very reason this appeal is dismissed with costs, the orders of the learned Judge are confirmed and the deposit be paid out to the respondent to account of their taxed costs.

Cases

Fabrique Ebel Societe Anonyme v Syarikat Perniagaan Tukang Jam City Port [1988] 1 MLJ 188; Mohamed v Kunji Mohidin [1966] 2 MLJ 24; Senik v Hassan [1963] 29 MLJ 368; Shell-Mex and BF Ltd v Manchester Garages [1971] All ER 841.

Legislations

Rules of the High Court 1980: Ord.14, Ord.29 r 1(2B)

Street, Drainage and Building Act 1974: s.70

Representations

J.A. Yeoh (Shearn Delamore & Co) for Appellant

Zarizana Abdul Aziz (K Ahmad & Yong) for Respondent

Notes:-

This decision is also reported at [2000] 3 AMR 3198