Judgment

HB Low J

1. This is an inter partes hearing of the plaintiff's application in Encl.(4) in which the plaintiff had on October 31, 2000 sought and obtained an ex parte injunction in the following terms:

   1. That the first and the second defendants and other trespassers who enter, occupy and use the land held under temporary occupation licence No 424 ("the TOL"), in the mukim of Telok Panglima Garang Dengkil, in the district of Kuala Langat ("the land") be restrained from entering, occupying and using the land; and from continuing with the defendants' jetty and cargo activities;

   2. That the first and the second defendants be restrained from trespassing on the land; and

   3. That the first and the second defendants be restrained from interfering with the plaintiff's quiet enjoyment of the land.

   This ex parte injunction was given subject to the plaintiff's undertaking as to damages.

2. The plaintiff did not proceed against the first defendant as the writ, statement of claim and the order for the ex parte injunction were served on the second defendant only. Hence, the plaintiff and the second defendant are the only parties to this inter partes hearing, in which the plaintiff sought the aforesaid terms of the interlocutory injunction against the second defendant. 

   II. TEMPORARY OCCUPATION LICENCE

3. The plaintiff was the TOL holder of the land at the time of the hearing and obtaining of the ex parte injunction, and presently still is the TOL holder as the TOL remains valid until December 31, 2003. The affidavit of the plaintiff avers that the second defendant is the trespasser on the land by building a jetty, commencing other works and keeping machinery for cargo activities ("the said activities"). Hence, the plaintiff has made a report to the police since the plaintiff intended to fence up the land to prevent such trespass. However, the second defendant has demolished the fence and continued with the trespass by carrying on the said activities.

   III. COUNSEL'S SUBMISSIONS AND DECISION OF COURT

   (1) Duties of judge

4. In referring to the celebrated case of American Cyanamid Co v Ethicon Ltd [1975] AC 396, HL, our Court of Appeal in Keet Gerald Francis Noel John v Mohd Noor Abdullah [1995] 1 AMR 373; [1995] 1 MLJ 193 through the judgment of Gopal Sri Ram JCA explained the duties of a judge hearing an application for interlocutory injunction as follows:

   1. Ask himself whether the totality of the facts presented before him disclosed a bona fide serious issue to be tried. He must refrain from making any determination on the merits of the claim or any defence to it and identify with precision the issues raised and decide whether they are serious enough to merit a trial. If he finds that no serious question is disclosed, the relief should be refused. If, however, he finds that there are serious questions to be tried, he should move on to the next step of his inquiry;

   2. Having found that an issue has been disclosed that requires further investigation, he must consider where the justice of the case lies. He must take into account all relevant matters, including the practical realities of the case before him and weigh the harm the injunction would produce by its grant, against the harm that would result from its refusal; and

   3. The judge must have in the forefront of his mind that the remedy that he is asked to administer is discretionary, intended to produce a just result for the period between the date of the application and the trial proper and to maintain the status quo. It is a judicial discretion capable of correction on appeal. A judge should briefly set out in his judgment the several factors that weighed in his mind when arriving at his conclusion.

   a. Bona fide serious issue to be tried

5. In opposing the plaintiff's application for an inter partes interlocutory injunction in Encl.(4), Mr. CK Tan, learned counsel for the second defendant, submitted that the second defendant and its agents and servants (collectively referred to as the "second defendant") were not trespassers as the disputed portion of the land did not form part of the plaintiff's TOL.

6. Mr. YH Beh, learned counsel for the plaintiff, contended that the second defendant was a trespasser.

7. Having considered the respective pleadings, affidavits and submissions, I am of the view that there is a serious issue to be tried i.e. as to the status of the second defendant in relation to the land. Hence, the issue whether the second defendant is a trespasser or otherwise is a bona fide serious issue to merit a trial and requires further investigation.

8. It is at this juncture pertinent to observe that the second defendant's learned counsel has also submitted that the injunction is mandatory in nature. I shall consider this submission later in my judgment.

9. For the moment, I shall proceed to the next step of my inquiry.

   b. Justice of the case

10. In resisting the plaintiff's application, the second defendant's learned counsel did not and indeed could not dispute that the plaintiff was, at the time of applying and obtaining the ex pane injunction, the TOL holder of the land.

11. The second defendant's learned counsel argued, however, that the plaintiff had fabricated the site plan of the TOL for the sole purpose of deceiving this court.

12. The response of the plaintiff's learned counsel is that the TOL has been duly issued by the relevant land office and has not been fabricated.

13. Upon a proper perusal of the affidavits filed by the parties herein, in particular the TOL in Form 4A, and the survey plan attached thereto, there is no doubt in my mind that on the face thereof, they have been issued by the relevant land authority and that the TOL continues to be valid until December 31, 2003.

14. The allegation of fabrication cannot be resolved by reference to affidavits only.

15. The parties have to resolve that at the trial.

16. In my view, if the second defendant was indeed aggrieved by the decision of the relevant land authority by reason of the alleged fabrication, the second defendant should have availed itself of the remedy of appeal under s 418 of the National Land Code 1965 which provides as follows:

    418.

    Appeals to the Court (1) Any person or body aggrieved by any decision under this Act of the [State Director], the Registrar or any [Land Administrator] may, at any time within the period of three months beginning with the date on which it was communicated to him, appeal therefrom to the Court (2) Any such appeal shall be made in accordance with the provisions of any written law for the time being in force relating to civil procedure; and the Court shall make such order thereof as it considers just. (3) In this section 'decision' includes any act, omission, refusal, direction or order.

17. Under s 5 of the National Land Code, a TOL means a TOL issued under Chapter 2 of Part Four thereof and the holder i.e. the plaintiff is entitled to occupy the land pursuant to the said licence. Hence the plaintiff's rights would include the right to restrain the occupation of the land by trespassers.

18. In my view, the justice of the case clearly lies in the grant of the inter partes interlocutory injunction.

    c. Discretion to produce just result

19. The discretion is a judicial discretion which must be exercised according to established judicial principles, having regard to all the facts and circumstances of the case.

20. The second defendant's learned counsel was referring to another TOL i.e. TOL 462 said to be granted to the first defendant. As alluded to above, the plaintiff has never proceeded with this application or action against the first defendant.

21. On my part, it is clear that the first defendant's TOL 462 is not the subject matter of the plaintiff's application in Encl.(4) or for that matter the entire action herein. Any submission in respect of the first defendant and TOL 462 is not even remotely relevant to this application before me.

    (2) Mandatory injunction

22. Learned counsel for the second defendant pointed out that the ex parte injunction was a mandatory injunction which would never be granted before trial save in exceptional and extremely rare cases.

23. In response, it was argued for the plaintiff that the plaintiff has established a strong prima facie case for the grant of a mandatory injunction.

24. For completeness, it seems necessary for me to consider and give my decision in relation to these submissions.

25. In my view, it is settled law that an interlocutory mandatory injunction would not be granted before trial save in exceptional and extremely rare cases: Sivaperuman v Heah Seok Yeong Realty Sdn Bhd [1979] 1 MLJ 150, FC, applying Wah Loong (Jelapang) Tin Mine Sdn Bhd v Chia Ngen Yiok [1975] 2 MLJ 109, HC. 

26. The plaintiff has to establish a strong prima facie case against the second defendant: Malaysia Invertec Sdn Bhd v Chan Man Hong [1999] 5 CLJ 521, HC; and Shamsudin Shaik Jamaludin v Kenwood Electronics Technologies (M) Sdn Bhd [1999] 3 AMR 3754; [1999] 8 CLJ 544, HC.

27. So far as the grant of a mandatory interlocutory injunction is concerned, the decision of Abdul Malik Ishak J in MBf Property Services Sdn Bhd v Madihill Development Sdn Bhd (No 2) [1998] 4 CLJ 136 has a direct bearing in relation to the instant case. The facts of that case reveal the specific finding of fact by the learned judge that the plaintiff has, inter alia, committed trespass on the defendant's land, and that there was continuing trespass which remained unabated as a result of which the defendant sought, inter alia, a mandatory injunction that the plaintiff do reinstate the defendant's land to its original condition.

    The learned judge held, at p 157 a-b, and g-h, inter alia, that:

    A mandatory injunction is based on a final determination of the rights of the parties and is to permanently prevent the infringement of those rights and obviate the necessity of bringing actions after actions in respect of such infringements. Mandatory injunctions have more serious consequences on the parties than interlocutory injunctions. A party in complying with a mandatory injunction is required to take positive steps and may in the process expend money and effort. A mandatory injunction should not be granted to protect a right having only a limited duration; in such a case the injunction should be limited to the period of the plaintiff's interest in the subject matter of the action.

    (see Held (6) of the CLJ headnotes).

28. I am in entire agreement with the aforesaid excerpts from the well-researched judgment of the learned judge and hereby apply them to the facts of the case herein.

29. It is my specific finding that the plaintiff has in his affidavits in support established a strong prima facie case to the effect that the defendant is a trespasser on the land and that, taking into consideration the contemporary document i.e. the TOL, with all the particulars therein and effective until December 31, 2003, the plaintiff has in relation to Encl.(4) made out a strong prima facie case of the plaintiff's rights to the occupation of the land, to the exclusion of the second defendant as a trespasser.

    IV. CONCLUSION

30. On the foregoing grounds, subject to the plaintiff's aforesaid undertaking as to damages, I allow the plaintiff's application in Encl.(4) and grant an order in terms thereof which order shall subsist, until December 31, 2003, and shall only continue thereafter in the event of the renewal of the TOL by the relevant land authority. Costs to the plaintiff.

Cases

American Cyanamid Co v Ethicon Ltd [1975] AC 396, HL; Keet Gerald Francis Noel John v Mohd Noor Abdullah [1995] 1 AMR 373;

[1995] 1 MLJ 193, CA; Malaysian Invertec Sdn Bhd v Chan Mun Hong [1999] 5 CLJ 521, HC; MBf Property Services Sdn Bhd v Madihill Development Sdn Bhd (No 2) [1998] 4 CLJ 136; Shamsudin Shaik Jamaludin v Kenwood Electronics Technologies (M) Sdn Bhd [1999] 3 AMR 3754; [1999] 8 CLJ 544, HC; Sivaperuman v Heah Seok Yeong Realty Sdn Bhd [1979] 1 MLJ 150, FC; Wah Loong (Jelapang) Tin Mine Sdn Bhd v Chia Ngen Yiok [1975] 2 MLJ 109, HC

National Land Code 1965: s.5, s.418, Form 4A

Representations

YH Beh (Beh & Associates) for plaintiff

CK Tan (CK Tan & Co) for second defendant

Notes:-

This decision is also reported at [2003] 4 AMR 46