Tokoyaji Property Sdn Bhd

- vs -

Sam

Judgment

VT Singham, JC

PLAINTIFFS' CLAIM FOR SUMMARY POSSESSION UNDER

ORDER 89 OF THE RULES OF THE HIGH COURT 1980

1. By an originating summons dated March 30, 2000 (Encl 3), the plaintiffs applied under Order 89 of the Rules of the High Court 1980 for an order to recover the land known as HS(D) L & M 12195 PT 12613 in the Mukim Assam Kumbang, District of Larut & Matang, Negeri Perak ("the said lot") against the first and second defendants and occupiers of the said lot and being occupied by the first and second defendants and the other occupiers. The grounds of the plaintiffs' application is supported by an affidavit affirmed on March 20, 2000 by Mr. Toh Chin Hin, a director of the plaintiff company. By the affidavit-in-support of the application (Encl 2 dated March 23, 2000), the plaintiffs inter alia, have stated as follows:-

   1. the plaintiffs are the registered owners of the said lot and exhibited a copy of title to the said lot which was marked as Exh 'TP 1'.

   2. that the defendants and all the other occupiers of the said lot have at all material times been living on the said lot without licence, permission and/or agreement from the plaintiffs and exhibited a copy of the plan of the location of the said lot which is occupied by the defendants which was marked as Exh 'TP 2'.

   3. that the first defendant is living on premises known as No: KB 14E and the second defendant is living on premises No: KB 23A and referred to the plan of the location and the plaintiffs do not know the other occupiers of the premises on the said lot.

   4. that the defendants are in fact not tenants or tenants holding over and have entered into the said lot and continued to live without consent or agreement of the plaintiffs without consent or agreement from any of the previous owners of the said lot.

   5. the plaintiffs have on several occasions claimed from the defendants and/or each and every occupier of the said lot to vacate the said lot and to return possession to the plaintiffs which claim was done through the plaintiffs' solicitors who issued a notice of claim dated 3.12.99 against the defendants but the defendants have failed, refused and/or breached to comply with the said notice and a copy of the said notice was attached and marked as Exh 'TP 3'.

   6. as the registered owner of the said lot, the plaintiffs are not prevented from making this application.

2. In the circumstances, the plaintiffs prayer in the originating summons is for the plaintiffs to be granted possession of the said lot occupied by the defendants and/or other persons who are occupying without permission or agreement and costs. In the meantime, it is important to mention at this stage that on June 26, 2000, the plaintiffs had obtained judgment against the second and third defendants by default as they were absent.

3. The first defendant's affidavit-in-reply dated June 26, 2000 (Encl 17) said:

   1. the first defendant on the other hand, by an affidavit affirmed on June 26, 2000 has inter alia, denied the allegations of the plaintiffs as contained in their affidavit dated March 20, 2000 and that he has no knowledge that the plaintiffs are the registered owners of the said lot.

   2. that he has applied for a housing lot on the government land in which his house has been constructed since 1976 and that he was directed to complete the form only in 1989 and attached a copy of the said application form from the Land Office Taiping and a copy of the receipt for submitting the said application.

   3. that he has been paying assessment for his house to Majlis Perbandaran Taiping since 1984 and attached copies of the receipts for the said payment which was marked as Exh S-2.

   4. despite several requests the Land Office has todate failed and/or refused to issue the title to his house.

   5. he was surprised when he was informed that the plaintiffs have been given title to his said land pursuant to a title which was issued in 1999.

   6. that the Land Office did not negotiate with him to obtain his land in accordance with the standard procedures.

   7. he believes that he has the right on the said lot as the owner or in equity and he need not obtain the consent of the plaintiffs to continue to live on the said lot.

   8. that he has been given to understand the plaintiffs have also obtained other land in his kampung and that many of the directors of other development companies who have been given other pieces of land in the area of his kampung are members of the same family.

   9. that he has been given to understand by his solicitor which he believes and in the circumstances the procedure under Order 89 of the Rules of the High Court 1980 has been misused.

   The contents of the said application and the application form was attached and marked as Exh S-1[a]

4. Submissions of plaintiffs' counsel

   1. plaintiffs' application is under Order 89 of the Rules of the High Court 1980 by way of summary procedure to obtain possession of the said lot.

   2. the plaintiffs are the registered owners of the said lot and referred to the exhibit of the title to the said lot which is registered in the name of the plaintiffs.

   3. there is no denial that the first defendant is living on the said lot and referred to the affidavit-in-reply of the first defendant Encl 17.

   4. prior to possession by the plaintiffs, the said land belonged to Perak State Government.

   5. the defendants did not obtain permission or consent from the plaintiffs.

   6. the plaintiffs' claim against the first defendant is in respect of the said lot and referred to Exh TP 2, the plan of the location of the said lot and also referred to Exh TP 3, the notice of demand dated December 3, 1999 which was issued by the plaintiffs' solicitors to the defendants.

   7. there is no relationship whatsoever between the plaintiffs and the defendants.

   8. the first defendant is living on the said lot without the consent of the plaintiffs.

   9. the first defendant is a trespasser simpliciter. He did not obtain consent from the previous owners of the said lot, the Perak State Government. He also referred to s 340(1) of the National Land Code.

   10. he referred to paragraph 10 of the first defendant's affidavit-in-reply Encl 17 wherein the first defendant has stated that he has the right on the said lot as the owner or in equity and that he need not obtain the consent of the plaintiffs to continue to live on the said lot to which he submitted that the first defendant has no right to live on the said lot.

   11. he referred to paragraph 6 of the first defendant's affidavit-in-reply wherein the first defendant has stated that he has paid assessment to Majlis Perbandaran Taiping since 1984 for his said house. On this contention by the first defendant, the plaintiffs' counsel submitted that the said lot and house is within the jurisdiction of the Majlis Perbandaran Taiping, the Local Authority and referred to ss 127 and 163(1) of the Local Government Act 1976 which reads as follows:-

       127	Power to impose rates
       	The local authority may, with the approval of the State Authority, from time to time as is deemed necessary, impose either separately or as a consolidated rate, the annual rate or rates within a local authority area for the purposes of this Act or for other purposes which it is the duty of the local authority to perform under any other written law.
       163	Provision for rating buildings on state or reserved land
       	(1)	In the case of buildings situated on State land or on land reserved for a public purpose and not occupied by the Federal or State Governments the local authority, with the approval of the State Authority, may impose the rates referred to in section 127 upon the annual value or [improved value] of all or any of such buildings, and the occupiers of such buildings shall be liable to pay the said rates.
       	(2)	The provisions of this Part shall apply to any rate imposed under sub section (1) except that in the application thereof references to a 'holding' shall be deemed to be references to a 'building', and references to the 'owner' of a holding shall be deemed to be references to the 'occupier' of a building.

   12. the provisions of ss 127 and 163(1) of the Local Government Act 1976 does not mean that consent has been given to the first defendant to live on the said lot. He submitted that the Local Authority is entitled to impose charges for houses built whether legally or illegally within their jurisdiction.

   13. he referred to the case of Bohari Taib v Pengarah Tanah & Galian Selangor [1991] 1 MLJ 343 and submitted that the facts in Bohari could be distinguished when compared to the facts as stated by the first defendant. The plaintiffs' counsel submitted that in Bohari the initial entry was valid and that this is a distinguishing factor to the facts in this case in which there is no evidence of any legal entry to the said lot.

   14. the first defendant did not state in his affidavit-in-reply that he has obtained the permission of the State Authority.

   15. the plaintiffs' counsel also referred to the case of Shaheen Abu Bakar v Perbadanan Kemajuan Negeri Selangor [1998] 3 AMR 3061 and distinguished the facts to the first defendant's case. In Shaheen, the plaintiffs' counsel submitted there was encouragement by the State Authority but in the plaintiffs' case there is no evidence of any encouragement by the plaintiffs, the State Authority or the predecessors in title.

   16. pursuant to the affidavit-in-reply of the first defendant Encl 17, there is no evidence or averment to state that the first defendant was encouraged or had obtained the consent of the State Authority to occupy the said lot in order for the first defendant to claim any right on the said lot.

   17. the plaintiffs' counsel referred to the case of Esso Malaysia Bhd v Hills Agency (M) Sdn Bhd [1994] 2 AMR 3525 at p 3528.

   18. in the circumstances, the procedure under Order 89 of the Rules of the High Court 1980 was correct and is in order and that there is no issue for trial.

   In the circumstances, the plaintiffs' counsel submitted that there was no issue to go for trial as the first defendant is a trespasser and the plaintiffs should be given possession as prayed in the originating summons (Encl 3).

5. Counsel for the first defendant on the other hand submitted as follows:

   1. there are triable issues to proceed for hearing.

   2. he referred to paragraph 3 of the first defendant's affidavit-in-reply Encl 17 which is basically a denial and lack of knowledge to paragraphs 1, 2, 3 and 4 of the plaintiffs' affidavit-in-support of the originating summons.

   3. that the first defendant has obtained the consent of the State Government through Majlis Perbandaran Taiping and that he has applied for a lot on the State land on which the first defendant's house has been constructed since 1976 and that the first defendant was directed to complete the application form only in 1989. He contended that the payment for assessment has been paid for 17 years since 1983 till first half of 2000.

   4. the premises belonging to the first defendant has been provided with all facilities i.e. supply of water and electricity and litter bins. He relied on the case of Bohari and Shaheen to support his arguments.

   5. the issue is whether the first defendant has obtained the consent from the State Authority and if that is so, the first defendant is not a trespasser and that whether the proceedings could be brought under Order 89 of the Rules of the High Court 1980.

   6. from the facts, in this case, and the cases he has relied on, Order 89 is not the proper mode of proceedings as there are triable issues and that the plaintiffs' summons should be dismissed with costs.

6. Reply-submissions by the plaintiffs' counsel:

   1. he referred toss 127 and 163(1) of the Local Government Act 1976 and that the Local Government is only to fix boundary for assessment.

   2. there is no permission given even impliedly by the State Authority or the first owner of the said lot.

   ISSUE

7. The main issue to be determined is whether, on the facts in this case, summary possession under Order 89 of the Rules of the High Court 1980 suitable against the first defendant.

   FINDINGS BY THIS COURT

8. As contended by the plaintiffs' counsel, this court is in agreement that the facts in Bohari and Shaheen are distinguishable and the principle enunciated in those two cases which supported the occupier's claim in those cases does not apply to the facts in this case. In Bohari, there was in fact a letter dated October 25, 1980 from the Collector of Land Revenue, Sabak Bernam which states that the State Executive Council had on September 4, 1980 approved the alienation of the land occupied and carrying out farming to the appellants and other selected settlors which by implication means that there was continued consent implied or expressed by the State Authority even after the TOL had expired.

9. In Bohari, His Lordship Mohamed Azmi SCJ in delivering the judgment of the Supreme Court said:-

   In our opinion, for the purpose of the summary procedure, distinction should be made between squatters simpliciter who have no rights whatsoever, and occupiers with licence or consent, and as well as tenants and licensees holding over. It may be impossible to establish the existence of any triable issue in the case of bare squatters, but the position of tenants and licensees holding over, or persons occupying with implied or expressed consent of the owner may be different.

   On the facts in Bohari, the Supreme Court held that there were triable issues on the absence of either licence or consent as alleged by the respondent.

10. In Shaheen, Zakaria Yatim FCJ who delivered the judgment of the Federal Court said: at p 3079

    Similarly in the present case, if the initial entry of the settlers on the said land was unlawful, they had committed an offence under s 425(1) of the National Land Code. They could also be evicted under Order 89 for being squatters simpliciter. From the evidence, the State Government knew of their presence on the said land from December 1981. No action was taken to charge them under the National Land Code for illegally occupying the said land. No proceeding was taken to evict them under Order 89. From January 1988 the Menteri Besar knew about the settlers. He approved the renovation of their surau. He knew that the settlers were provided with water supply, roads and a community hall. As stated earlier, when the land was given to PKNS, it knew about the settlers. In our opinion, there is an arguable case that the settlers occupied the said land with acquiescence of the State Authority.

11. In Salim Ismail v Lebbey Sdn Bhd (No 2) [1997] 2 AMR 1115 at p 1121, His Lordship Dato' Ahmad Fairuz JCA (as His Lordship then was and now FCJ) referred to the Supreme Court Practice 1991, Vol 1 at p 1576 which inter alia, states as follows:-

    On the other hand, like the default and summary procedures under Order 13 and Order 14, this order would normally apply only in virtually uncontested cases or in clear cases where there is no issue or question to try, i.e. where there is no reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to wrongful occupation of the land without licence or consent and without any right, title or interest thereto. Where the existence of a serious dispute is apparent to a plaintiff he should not use this procedure. If he does, the action may be struck out (Henderson v Low [1984] 17 HLR 237, CA.)

12. Whereas in the case before the court, there is no such letter of approval from the State Authority in respect of the said lot apart from just a bare application from the first defendant which he claims was submitted to the State Authority in 1989. This court is of the view that merely submitting or applying to the State Authority for a piece of land or for the lot which the first defendant is occupying does not either impliedly or expressly grant a licence, consent or permission from the State Authority for the first defendant to live or continue to live on the said lot.

13. The allegation in paragraph 5 of the first defendant's affidavit-in-reply does not state whether the first defendant was advised by the State Authority or any representative of the State Authority for him to submit the application form for the said lot and that in the meantime he could continue to occupy the said lot pending a reply from the State Authority. The first defendant did not even state who had in fact instructed him in 1989 to submit the said application form.

14. This court is of the view that the fact that the first defendant had submitted the application form to the State Authority for the said lot would show that he has not obtained the permission or consent of the State Authority for him to live or occupy the said lot. It would also show that he has entered into the said lot and continued to occupy as an illegal squatter notwithstanding that he has constructed the house as claimed by him and that he has paid assessment to the Majlis Perbandaran Taiping.

15. It is the view of this court that an illegal squatter has no protection in law or in equity to enable him to claim a right to live or continue to live or occupy the said lot which the plaintiffs as the registered owners are entitled and have every right to evict the first defendant by summary procedure. In fact it is the view of this court that merely erecting a building unlawfully on the plaintiffs' lot and occupying it is not sufficient to create any right or equity against the rightful owner of the said lot who is protected by title.

16. Therefore, the fact that the first defendant has applied to the said authority for the said lot does not ipso facto give him the right to live or to continue to live on the said lot unless he could show that it was in fact given to him either expressly or impliedly the permission or consent or agreement of the plaintiffs or the plaintiffs' predecessor in title or the State Authority for him to live or continue to live on the said lot. As the first defendant has failed to show this consent or permission, the plaintiffs are entitled to summary eviction against the first defendant and there is in fact no issue for trial. The first defendant has also no protection in equity because of s 48 of the National Land Code 1965 which reads as follows:-

    48	No adverse possession against the State
    	No title to State land shall be acquired by possession, unlawful occupation or occupation under any licence for any period whatsoever.

17. The first defendant's second contention that he has paid assessment for his house to Majlis Perbandaran Taiping since 1984 and supported by receipts also does not give the first defendant the permission or right to live on the said lot which belongs to the plaintiffs. In fact, the whole of the first defendant's affidavit-in-reply expressly shows that his grievance is with the State Authority for not approving his application for the said lot and that his complaint is no doubt against the Land Office and that impliedly there is some discrimination in the way the said lot was approved to other owners. It is clear that the crux of the first defendant's claim which can be derived from his affidavit is that he has some grievance against the State Authority for approving land unfairly to several individuals and that his complaint or grievance has nothing to do whatsoever against the plaintiffs' claim. It is the view of this court therefore that the first defendant should direct his grievance to the State Authority and not to use that complaint with a view to deprive the plaintiffs from obtaining summary eviction against him.

18. By his affidavit-in-reply, the first defendant has in fact impliedly admitted that he has not obtained the permission of the plaintiffs to live or occupy the said lot as stated in paragraph 10 of his affidavit-in-reply wherein he has stated that he need not obtain the permission of the plaintiffs to live on the said lot as he believes that he has a right to the said lot as the owner or in equity. The first defendant has not stated the legal basis for him to claim his right on the said lot and the legal basis how he is deemed to be the owner of the said lot either in law or in equity. The first defendant has also not stated in his affidavit-in-reply the basis of his initial entry to the said lot and whether he has obtained the consent or permission or agreement of the plaintiffs' predecessor in title or the State Authority except to state that his house was constructed since 1976 and that he has completed an application form in 1989 to apply for the said lot. There is no acknowledgement or response in writing from the State Authority to his application except for a copy of the receipt for RM10 which was attached to his said application.

19. In Lembaga Kemajuan Negeri Pahang v D Chandran vide Temerloh High Court Originating Summons No 24-101-2000 (unreported), there was at least a written reply from the State Authority that the defendant's application in that case has been given attention and will be raised for decision by the State Executive Council which by implication gives the impression that the defendant could continue to occupy the land in question which in fact is an arguable point to oppose summary eviction but in the plaintiffs' case before this court, the first defendant has not shown any such reply from the State Authority except for his bare application form which certainly is not a criteria or a ground to oppose summary eviction by the plaintiffs who are the registered owners of the said lot.

20. As for the contention by the first defendant's counsel that the supply of water and electricity and litter bins has been provided, this court with regret is not able to accept that submission as a ground for him to continue to live on the plaintiffs' lot because

    • firstly, by providing the said services or amenities does not necessarily mean that the State Authority has impliedly given the first defendant permission to live or continue to live on the said lot,

    • secondly, there is no averment since when this services or amenities were provided to the house in which the first defendant lives or continues to live and

    • thirdly, these facts even if they were true were not stated or raised in the affidavit-in-reply of the first defendant.

    It is the view of this court that a statement which is made by the first defendant's counsel from the Bar table and not pleaded in the affidavit is not acceptable as evidence on behalf of the first defendant. This court is of the view that a statement of fact which is used or relied as a ground to support to prove or disprove or to oppose an application for summary possession or any other application before the court must necessarily be expressed in the affidavit and not raised by way of a statement from the Bar table by counsel for one of the parties or litigant. In Minister of Labour, Malaysia v Chan Meng Yuen [1992] 2 MLJ 337 at 342, His Lordship Harun Hashim SCJ in delivering the judgment of the Supreme Court said in response to the submission of Senior Federal Counsel for the Minister of Labour, Malaysia:-

    ... it was suggested by the learned Senior Federal Counsel who appeared for the Minister that the policy decision was that as there is an alternative remedy available to the respondent to seek relief in the civil court the Minister has acted reasonably. That may be so but the Minister has not said so and we cannot accept a statement from the Bar as being the reason the Minister had in arriving at his decision. We can only look at the facts as stated in the affidavits before this court.

21. ln Ng Hee Thoong v Public Bank Bhd [1995] 1 AMR 622 at p 630 His Lordship Gopal Sri Ram JCA in delivering the judgment of the Court of Appeal said:-

    The only reference to the delay point is to be found in the address of counsel for the respondent in the court below and the explanation is in reality that of counsel and not of his client under oath. It is a principle fundamental to our system of adversarial litigation that evidence upon a matter must be given on oath. The practice of counsel giving evidence from the Bar, as was done in this case, is deprecated. To act as the learned Judicial Commissioner did in this case, is to ignore the very basic tenets of the law of evidence that is applied by our courts. Here was a positive assertion on oath by the appellants that there had been inordinate delay. The proper way in which that was to be met was by way of an affidavit in answer, explaining the delay. Once this is done, then it is up to the judicial arbiter to accept or reject the explanation proffered. But to ride roughshod over such an important point, as was done here, does little to advance the course of justice according to the law.

22. In Menah Sulong v Lim Soo [1983] 1 CLJ 26, His Lordship HT Ong (CJ) in delivering the judgment of the Federal Court said:-

    I think it is necessary in this case to emphasise once again that the courts should give their decisions in strict accordance with the pleadings.

23. In the circumstances, this court is not obliged to consider or take into account the statement by the counsel for the first defendant from the Bar table in reference to the supply of electricity and water to the first defendant's house in order to decide whether there is an issue to be tried as

    • firstly, that statement is not affidavit evidence and

    • secondly, that statement alone or taken as a whole does not even impliedly grant the first defendant permission to continue to live on the said Jot.

    This court finds that the first defendant is an illegal squatter or trespasser on the said lot which belongs to the plaintiffs. In two consolidated appeals in Government of Negeri Sembilan v Yap Chong Lan & Lesco Development Corporation Sdn Bhd v Yap Chong Lan [1984] 2 MLJ 123, the claim of the respondents to an equitable right to remain on their respective lots to which they have been re-settled was disallowed by the Federal Court. In those cases despite evidence to support the occupiers claim which was agreed between the parties that the Collector of Land Revenue had granted permission to the occupiers to build houses on their lots and were able to obtain water supply on the Collector's recommendation, the Federal Court reversed the decision of the High Court which at the first instance held that the claimants had acquired an equitable right to remain on their respective lots.

24. As for the contention by the plaintiffs' counsel that mere payment of assessment for the first defendant's house does not impliedly give him the consent or permission to live on the said lot because ss 127 and 163(1) of the Local Government Act 1976 empowers the Local Authority to impose charges, this court agrees that the charges of assessment is imposed by the Local Authority because there is a building constructed within the jurisdiction of the Local Authority and in this case, the Majlis Perbandaran Taiping and that fact alone being payment of assessment does not grant the first defendant permission or consent to continue to live on the said lot. The Local Authority is not duty bound to inquire whether the occupier / occupiers of the building on the said lot is the registered owner, the tenant or the licensee or the tenant holding over. As so long as the building is occupied, the Local Authority being the Majlis Perbandaran is entitled to collect payment for assessment under the Local Government Act 1976.

25. In order to oppose this summary procedure, this court is of the view that the first defendant ought to have at least adduced evidence and or produced a letter from the State Authority or the plaintiffs' predecessor in title to show that the first defendant's initial entry and his continued occupation of the said lot was with the consent, permission or agreement of the State Authority or the plaintiffs' predecessor in title. As the first defendant had failed to show or prove any of the above requirements, the plaintiffs are entitled to summary eviction. In fact there is no evidence or even any contention by the first defendant that he was encouraged by any particular person/s or any relevant authority to live in the said lot and / or to build a house and to continue to live on the said lot. This is a clear case of the first defendant deliberately going into another's land, putting up a building and living there unlawfully and that he does not even come under the class or category of persons whose entry was lawful at the inception but has subsequently ceased to be so.

26. Based on the first defendant's affidavit-in-reply, this court is of the view that there is no serious dispute or arguable issues which is apparent to the plaintiffs and which prevents the plaintiffs from using this summary procedure. This court is not unmindful of the principle which does not allow the courts to resolve conflicts of evidence on affidavit. In Eng Mee Yong v V Letchwnanan [1979] 2 MLJ 212 at 217 their Lordships in the Privy Council said that:-

    Although in the normal way it is not appropriate for a Judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be. In making such order on the application as he "may think just" the Judge is vested with a discretion which he must exercise judicially. It is for him to determine in the first instance whether statements contained in affidavits that are relied upon as raising a conflict of evidence upon a relevant fact have sufficient prima facie plausibility to merit further investigation as to their truth. Since this is a matter upon which the opinions of individual judges may reasonably differ, an appellate court ought not to interfere with the Judge's exercise of his discretion under s 327 of the National Land Code unless the way in which he exercised it is shown to have been manifestly wrong.

27. This principle was subsequently applied in Syed Ibrahim Syed Abdul Rahman v Liew Su Chin [1984] 1 MLJ 160 at 163 wherein His Lordship Lee Hun Hoe CJ (Borneo) in delivering the judgment of the Federal Court said:-

    It is of course quite right to say that it is undesirable to resolve disputes on affidavit evidence. Yet judges are expected in applying the test to be critical of the affidavit evidence which must on the face be at least plausible.

28. In Norimah Mohamed v Bukit Lenang Development Sdn Bhd [2000] 3 AMR 2662, His Lordship Gopal Sri Ram JCA said summary procedure under Order 89 is not applicable to a case in which arguable issues have been raised.

29. However, this court is of the view that in the plaintiffs' case before this court, there is no conflict of evidence on affidavit except that the First defendant's affidavit seemed to disclose that he has a grievance against the State Authority which requires no investigation for the purpose of this summary eviction.

30. Unless there are disclosed facts in the first defendant's affidavit-in-reply which calls for investigation or could only be decided on hearing oral evidence, this court cannot just deny the plaintiffs' claim for summary eviction. In this case, as this court has already stated herein before, the first defendant's grievance or claim is entirely against the State Authority and not against the plaintiffs and nothing whatsoever has been raised in his affidavit to call for further investigation so as to prevent the summary procedure for eviction. This court is of the view that if the courts were to lean too much in favour of people who enter illegally into land belonging to others and thereafter allege or attempt to claim interest in equity with the view to oppose the application for summary eviction, it will not only frustrate registered owners' claim for summary eviction against illegal squatters but may result in registered owners resorting to self help remedies which no doubt will have other consequences and is not encouraged as it might lead to cause breach of the peace.

31. This court is also of the view that there was no need for an affidavit-in-reply by the plaintiffs to the first defendant's affidavit-in-reply as there was nothing for the plaintiffs to rebut because the first defendant has not raised any issues against the plaintiffs to warrant a reply. In Teoh Yook Huwah v Menteri Hal Ehwal Dalam Negeri [1993] 1 AMR 279, His Lordship Edgar Joseph Jr SCJ in delivering the judgment of the Supreme Court said:-

    The allegation of assault by the appellant's sister, without anything more, was hearsay as it was wholly unsupported by any evidence. Therefore, there was no need for an affidavit of denial to be filed by the prosecution as there was nothing to rebut and the concession by the prosecution that the assault was common ground was erroneous, and not binding on the court.

32. The facts in Esso Malaysia Bhd, the case referred to by the plaintiffs' counsel has no relevance to the facts in this case before the court. The facts briefly in Esso Malaysia Bhd, one of the issues was whether a tenancy or licence was created and whether there was a proper determination of the licence if a licence was created. Also, that the plaintiffs had admitted that the defendants had entered into occupation of the lands with their licence or consent but that licence or consent had already been withdrawn or terminated and that the defendants had no right to continue to remain on the lands. Nevertheless, the court in that case still granted an order to the plaintiffs to recover the lands under Order 89 of the Rules of the High Court 1980.

33. In the first defendant's case, there is no issue of law or fact to be tried, there is no reasonable doubt as to the claim of the plaintiffs to recover possession of the lot and there is no serious dispute raised by the first defendant between himself and the plaintiffs. Further, there is no dispute that the first defendant had not obtained the permission of the plaintiffs and therefore this court finds that the plaintiffs are entitled to use this procedure under Order 89 of the Rules of the High Court 1980.

34. In the circumstances, and for the reasons stated above, this court is of the view that there are no bona fide triable issues on the facts in this case which have to proceed for trial.

35. Therefore, the originating summons for summary eviction by the plaintiffs under Order 89 of the Rules of the High Court 1980 and pursuant to Encl 3 is allowed with costs.

Cases

Eng Mee Yong v V Letchumanan [1979] MLJ 212; Government of Negeri Sembilan v Yap Chong Lan and Lesco Development Corporation Sdn Bhd v Yap Chong Lan [1984] 2 MLJ 123; Menah Sulong v Lim Soo [1983] 1 CLJ 26; Minister of Labour, Malaysia v Chan Meng Yuen [1992] 2 MLJ 337; Ng Hee Thoong v Public Bank Bhd [1995] 1 AMR 622; Syed lbrahim Syed Abdul Rahman v Liew Su Chin [1984]1 MLJ 160; Teoh Yook Huwah v Menteri Hal Ehwal Dalam Negeri [1993] 1 AMR 279; Bohari Taib v Pengarah Tanah & Galian Selangor [1991] 1 MLJ 343; Esso Malaysia Bhd v Hills Agency (M) Sdn Bhd [1994] 2 AMR 3525; Lembaga Kemajuan Negeri Pahang v D Chandran Temerloh High Court Originating Summons No 24-101-2000 (unreported); Norimah Mohamed v Bukit Lenang Development Sdn Bhd [2000] 3 AMR 2662; Salin lsmail v Lebbey Sdn Bhd (No2) [1997] 2 AMR 1115; Shaheen Abu Bakar v Perbadanan Kemajuan Negeri Selangor [1998] 3 AMR 3061

Local Government Act 1976: s.127, s.163(1)

National Land Code 1965: s.48, s.340(1)

Rules of the High Court 1980: Ord.89

Authors and other references

Supreme Court Practice 1991, Vol 1

Shah Rizal Alias, Faisal Mohd Hanafiah (Faizal Azian & Co) for Plaintiffs

P Awtar Singh Saini (AS Saini & Assoc) for First Defendant

This decision is also reported at [2001] 2 AMR 1492