Dear Dato’

Re :EVICTION OF “KUIL ARULMIGU SRI MADUREI VEERAN” PREMISED ON LOT

51866, MUKIM KUALA LUMPUR, KUALA LUMPUR.
_____________________________________________________________________________________

We refer to the above matter.

Having studied the contents of the documents furnished and based on the said documents,
below is the opinion :

Facts:

Concisely, the subject land Tanah BAKTI lot 51866 at Jalan Abang Haji Openg, Taman Tun Dr
Ismail, Kuala Lumpur (hereinafter referred to as “the said Land”) was acquired by way of land
swap of Tanah BAKTI in Putrajaya in year 2006.

In July 2012, BAKTI was asked to pay assessment for the said Land despite being vacant (not
developed). Since there is a need to pay tax/assessment for the said Land, BAKTI decided to
develop the said Land

Pursuant to this, a Building Development Committee was established to develop the said Land
and necessary works (survey works) towards developing the said Land was initiated and done.
It was then discovered that a temple is built on the said Land.

Issue:

Our argument is that the said Temple- Kuil Arulmigu Sri Madurei Veeran and its worshippers
trespassed upon the said Land since BAKTI had never given permission for the erection of the
temple or to occupy or to continue occupying on the said Land.

The way forward:

1. The landowner can bring an action for trespass under the law of tort and sue for
damages1

2. Bring an action under summary proceedings for possession of land under the Rules of
Court and obtain an order for possession , which may then be served upon the squatters
and order them to move out;2 or

3. Enter the land to forcefully evict and demolish the squatter huts according to Emergency
(Clearance of Squatters) Regulations (‘ECSR’) 1969. This can only be done after the
appropriate notice is given to the squatter to warn him of the impending eviction/
demolition. 3

1
Bukit Lenang Development Sdn Bhd v Penduduk-Penduduk yang menduduki atas tanah HD(D) 151079 – HS(D) 151601,
Mukim Plentong, Daerah Johor Bahru [1996] 6 MLJ 25.
2
Order 89 of the Rules of Court 2012
3
Regulation 7, Emergency (Clearance of Squatters) Regulations 1969.
Squatters by definition are persons who occupy someone else’s property without holding a title
or a right, or without making payment of rent. They are simply people who have occupied land
or property without permission and in most instances without knowledge of the property
owners.

Property owners normally have a right of reclaiming vacant possession of their land by using a
writ of possession. However, procedurally, a law suit and the accompanying writ of possession
usually require the individuals unlawfully occupying the land to be named in the legal action.

This is not a problem when it comes to evicting tenants (since landlords will know the identity
of the tenants), but it becomes a problem when squatters are involved since the property owner
will usually not know the names of the squatters.

So how do we get back vacant possession of the said Land if there are no means of identifying
the people who are unlawfully occupying it? Thankfully the law recognizes the plights of land
owners in these circumstances and provides a method via summary proceedings.

Summary Proceedings

Order 89 of the Rules of Court 2012 provides for possession of land through summary
proceedings.

Order 89 reads:

1. Proceedings to be brought by originating summons (O. 89 r. 1)

Where a person claims possession of land which he alleges is occupied solely by a person or
persons (not being a tenant or tenants holding over after the termination of the tenancy) who
entered into or remained in occupation without his licence or consent or that of any predecessor
in title of his, the proceedings may be brought by originating summons in accordance with the
provisions of this Order.

2. Forms of originating summons (O. 89 r. 2)

(1) The originating summons shall be in Form 8A and an acknowledgement of service is not
required. An originating summons filed under this Order shall include the following note at the
end thereof:

"Note: Any person occupying the premises who is not named as a defendant by this originating
summons may apply to the Court personally or by solicitor to be joined as a defendant. If a
person occupying the premises does not attend personally or by solicitor at the time and place
abovementioned, such order will be made as the Court may think just and expedient.".

3. Affidavit in support (O. 89 r. 3)

(1) The plaintiff shall file in support of the originating summons an affidavit stating-

(a) his interest in the land;

(b) the circumstances in which the land has been occupied without licence or consent and in
which his claim to possession arises; and

(c) that he does not know the name of any person occupying the land who is not named in the
summons. [emphasis added]

(2) Where the plaintiff is unable, after taking reasonable steps, to identify every person
occupying the land for the purpose of making him a defendant, the plaintiff shall state in his
affidavit that he has taken reasonable steps (describing them) to identify the persons occupying
the land who are not named in the summons.

4. Service of originating summons (O. 89 r. 4)

(1) Where any person in occupation of the land is named in the originating summons, the
summons together with a copy of the affidavit in support shall be served on him-

(a) personally or in accordance with Order 10, rule 5;

(b) by leaving a copy of the summons and of the affidavit or sending them to him, at the
premises; or

(c) in such other manner as the Court may direct.

(2) The originating summons shall, in addition to being served on the named defendants, if any,
in accordance with paragraph (1) be served, unless the Court otherwise directs, by-

(a) affixing a copy of the summons and a copy of the affidavit to the main door or other
conspicuous part of the premises; and

(b) if practicable, inserting through the letter-box at the premises a copy of the summons and a
copy of the affidavit enclosed in a sealed envelope addressed to "the occupiers".

(3) Every copy of an originating summons for service under paragraph (1) or (2) shall be sealed
with the seal of the Court out of which the summons was issued.

5. Application by occupier to be made a party (O. 89 r. 5)

Without prejudice to Order 15, rules 6 and 10, any person not named as a defendant who is in
occupation of the land and wishes to be heard on the question whether an order for possession
should be made may apply at any stage of the proceedings to be joined as a defendant.

6. Order for possession (O. 89 r. 6)

(1) A final order shall not be made on the originating summons except by a Judge in person and
shall, except in case of urgency and by leave of the Court, not be made less than five clear days
after the date of service.

(2) An order for possession in proceedings under this Order shall be in Form 195.
(3) Nothing in this Order shall prevent the Court from ordering possession to be given on a
specified date, in the exercise of any power, which could have been exercised if possession had
been claimed in an action begun by writ.

7. Writ of possession (O. 89 r. 7)

Order 45, rule 3(2) shall not apply in relation to an order for possession under this Order but a
writ of possession to enforce such an order shall not be issued after the expiry of three months
from the date of the order without the leave of the Court.

8. Setting aside order (O. 89 r. 8)

The Court may, on such terms as he thinks just, set aside or vary any order made in proceedings
under this Order.

Thus, elements below need to be established by an applicant to justify the application under
O.89:-

i. interest in the land/premise;

ii. circumstances of how the land has come to be occupied by the squatters; and

iii. inability to identify the persons occupying the land and the reasonable steps taken to try
to identify those individuals

If all the above elements are established, then the Court will provide an order for vacant
possession and for the squatters to remove themselves from the said Land. Upon an order being
granted, the property owner (here BAKTI) can then enforce this through a writ of possession.

However, summary proceedings cannot be commenced against individuals who are “occupiers
with license or consent” or tenants holding over. This is because the summary proceedings are
only intended to evict individuals whose entry onto the land was illegal from the very
beginning. Under law, there is therefore a distinction between a person who enters the land
illegally, and a person who occupies land legally but thereafter stays on the land illegally.

In disputed cases, the burden of proof falls upon the alleged squatters or trespassers to show
that they had license or consent of the owner to occupy the land.

Individuals who are aggrieved by the summary proceedings may object by raising triable
issues. If there are real issues to be tried, the Court will not allow the summary proceedings. As
an example, in the Court of Appeal case of Tekad Urus Sdn Bhd v Penduduk-penduduk yang
Menduduki Kawasan yang dipanggil Desa Perwira, 4 the Court refused to allow the summary
proceedings since there was a triable issue of whether the alleged squatters’ entry on the land
was made lawful by acquiescence.

OUR POSITION AS FAR AS ORDER 89 IS CONCERN:

A. Indefeasibility
4
Tekad Urus Sdn v Penduduk-penduduk yang Menduduki Kawasan yang dipanggil Desa Perwira [2004] 2 CLJ 516
Principles of indefeasibility enunciated through section 340 (1) of the National Land Code 1965
and the Federal Court’s decision of Tan Ying Hong v. Tan Sian San & Ors.5, the principles of
indefeasibility is trite and determined that upon registration, the proprietor of the land shall be
deemed to have an indefeasible right over the said land unless revoked pursuant to the
subsequent provisions of section 340 of the National Land Code. As enunciated by Zaki Azmi
Chief Justice Malaysia and Arifin Zakaria CJ of Malaya as follows:

“Section 340(1) of the NLC confers an immediate indefeasible title or interest in

land upon registration ... “

Furthermore, the principle of indefeasibility has been applied in string of cases such as in the
case of Mohd Nasir Bin Moidu v. Lee Swee Kim6 and CIMB Bank Berhad v. Abdul Rafi A/L
Abdul Rajak & Ors7. As enunciated by Justice Vernon Ong:

“According to s 340(1) NLC, a title is registered is indefeasible in that it is free of

all adverse claims or encumbrances not noted on the register. In other words, the
registered title cannot be challenged by anyone ... the concept of indefeasibility has
been restated and clarified succinctly in the recent landmark case of Tan Ying Hong
v. Tan Sian San & Ors [2010] 2 CLJ 269 (FC) ... “

The Federal Court made it rather clear that the ‘Registrar is Everything’ and in the absence of
registration, one cannot claim to possess any rights or interest over the said land. 8

“… the fact that the register document of title was in the name of the appellant
was conclusive evidence that the title to the land was vested in the appellant;
…
under the Torrens System the register is everything and it would be wrong to
allow an investigation as to the right of the person to appear upon the register
when he holds the certificate of title…

Squatters may argue that they have been on the said Land for many years and therefore have
rights over the said Land- this would however tantamount to encroachment and trespass to
land thereby being squatter simpliciter.

B. Principles of Equity or Doctrine of Notice Does Not Apply

The mere fact that the temples is erected over the said land and have been dwelling therein does
not tantamount to an equitable right of a squatter over the land of the registered proprietor.
Such conduct of encroachment and squatter does not grant equitable rights to the squatters as
such are unrecognized by section 6 of the Civil Law Act.

It is proper at this juncture to refer to the case of Tetuan Tokoyaki Property Sdn. Bhd. v Sam
5
Tan Ying Hong v. Tan Sian San & Ors. [2010] 2 MLJ 1,
6
Mohd Nasir Bin Moidu v. Lee Swee Kim [2010] MLJU 1164
7
CIMB Bank Berhad v. Abdul Rafi A/L Abdul Rajak & Ors [2012] MLJU 804.
8
Teh Bee v K Maruthamuthu [1977] 2 MLJ 7
Kok Sang Tham Sow Seng & Ors, it was held:9

“…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. Merely erecting a building unlawfully on the plaintiffs' lot
and occupying is not sufficient to create any right or equity against the rightful
owner of the said lot who is protected by title...”  

Furthermore, if the argument of occupancy over the said Land was prior to the acquisition by
BAKTI, still ought not be a form of Notice to BAKTI as the “Doctrine of Notice” is not applicable
under the Torrens System- as clearly stated in the section 6 of the Civil Law Act and the case of
Holee Holdings (M) Sdn. Bhd. v Chai Him & Ors10.

“ … The equitable doctrine of notice was incompatible with the NLC 1965.
This was inevitable as the acceptance of such doctrine will rock the very
foundation of the NLC with its s 340 which provided indefeasibility of
title…”

The argument of adverse possession may also be raised by the temple.

C. What is Adverse Possession?

Adverse possession is a legal term commonly used to describe a person, also known as an
illegal squatter, who occupies a piece of land without the knowledge of the rightful landowner
and eventually acquire legal ownership of the land through their continuous use and
occupation of the land.

As such, anyone who have access to the said Land can literally  squat in the land, with or
without BAKTI’s knowledge, build an abode for himself, extensively renovate it, and claim that
the said Land or part of it now belongs to him after a fixed amount of years, if he is not chased
before his rights kicks in.

However, the provision of the law under section 341 of the National Land Code 1965 prohibits
and restricts any person claiming a right towards adverse possession.
In the case of Ng Swee Chiow v. Tan Siow Yoke & Ors11 in this case it was held that:

In the case of Suhimi Itam Shaari & Yang Lain v Angamal Rajoo& Yang
Lain [2008] 10 CLJ 573, the 1st defendant had claimed that he and his family
members had lived and worked in the estate since 1967 at the invitation of Ali
Am and that all the houses thereon had been built with the consent and
encouragement of the said Ali Am. The defendants claimed that there was
electricity and water supply to the houses and that they had stayed at the estate
for 40 years without any obstruction.

9
Tetuan Tokoyaki Property Sdn. Bhd. v Sam Kok Sang Tham Sow Seng & Ors [2001] 1 MLJ 585
10
Holee Holdings (M) Sdn. Bhd. v Chai Him & Ors [1997] 4MLJ 601
11
Ng Swee Chiow v. Tan Siow Yoke & Ors [2011] MLJU 579
 In allowing the plaintiffs vacant possession. His Lordship Balia Yusuf Wahi J
had this to say at page 577:

Defendan seterusnya telah cuba dengan lebih jauh lagi dengan

mengatakan beliau serta Iain-lain keluarganya telah diberikan kebenaran
dan persetujuan oleh Ali Am pada tahun 1988 untuk dibekalkan dengan
bekalan air dan bekalan eletrik semata-mata adalah tidak cukup untuk
membuktikan pemberian kebenaran atau persetujuan untuk menduduki
tanah tersebut."

And at page 580:

"Alasan defendan bahawa mereka telah hampir empat puluh tahun

tinggal di tanah tersebut tanpa sebarang gangguan atau diberi notis
untuk keluar sehinggalah baru-baru ini juga bukan merupakan alasan
atau pembelaan yang sah di sisi undang-undang.".

However, section 341 of the National Land Code reads:   

“Adverse possession of land for any length of time whatsoever shall not constitute a bar
to the bringing of any action for the recovery thereof by the proprietor or any person or
body entitled to an interest therein, and accordingly, the Limitation Act 1953, shall in no
circumstances operate to extinguish any title to, or interest in, land.”

By mere fact that said temple is erected and have been paying quit rent and assessment does not
grant a claim of adverse possession. Justice Abdul Wahab Patail in Jit Singh a/l Kishen Singh
v. Bakshi Singh a/l Kishen Singh & Anor12 precisely held that:

“ ... The indefeasibility of the registered proprietor's title is further buttressed

by s 341 which provides:

Adverse possession of land for any length of time whatsoever shall not
constitute a bar to the bringing of any action for the recovery thereof by
the proprietor or any person or body entitled to an interest therein, and
accordingly, the Limitation Act 1953, shall in no circumstances operate
to extinguish any title to, or interest in, land. ...”

Further, in Yayasan Pelajaran Bahagian Pertama Sarawak v. Lim Teck Hai & Ors 13, Justice
David Wong Dak Wah enunciated that:

Haidar J (as he then was) discussed the argument in detail and concluded that the
doctrine of adverse possession does not exist in the Land Code. This is what he said:

"... In my view, such a position is based on the notion of indefeasibility of

title ... an indefeasible title under the Land Code has its full force as a
title protected against all other adverse claims.
12
Jit Singh A/L Kishen Singh v. Bakshi Singh A/L Kishen Singh & Anor [2010] 7 MLJ 149
13
[2008] MLJU 761
 The exclusion of the application of the doctrine of adverse possession in
the Torrens system is based on the notion that such doctrine would
conflict with the fundamental principle of the Torrens system – the
indefeasible register…  Adverse possession was once another express
exception to indefeasibility of title under the early registration of Titles
legislation in the Federated Malay States prior to the former Land Code
(Cap 138). The former Land Code (Cap 138), however, altered the law
with the introduction of s 43. The corresponding provision in the
National Land Code 1965 is s 341….”

ROADBLOCKS WE MIGHT FACE/ARGUMENTS THAT MAY BE PUT FORTH BY THE

TEMPLE

Since the said Land is acquired by way of land swap what we need to determine first is that
whether the said temple was occupied with the licence and consent of their predecessors in title
and since it is a “temple” it is a different ball game all together.

At the very least we need to determine or ought to know that if such consent was not express it
could readily be implied. Why? He who comes for equity must be prepared to do equity and he
must come with clean hands. These are to prepare upfront before filing the said O 89 and to
avoid non-compliance with the rules.

Under customary Hindu Law it is well established that if a landowner sets apart land which he
owns for the establishment of a temple which the public use for worship over a long course of
time, a trust of that land will be deemed to have been expressly or impliedly created. The
temple deity is deemed to be a juridical entity. The temple guardian is also deemed to be the
trustee of the temple property and has a right to sue and be sued in that capacity. To call such
person committee members of an association could be a misnomer. Members of the public are
also regarded as having a legal right of access to the temple to worship there if they are of the
faith.

These propositions have received judicial recognition in several Privy council decisions which
have been commented upon with approval by Indian Courts which have applied them :
Pramatha Nath Mulliah v. Pradhyumna Kumar Mullich 14; Commissioner, H.R.E. Board Madras v.
Narasimham15, Mundancheri Koman v. Achutan Nair 16, Subramania Aiyer v. Pujari Lashmana
Govindar17, Narayanan v. Hindu Religious Endownments Board 18, and Bhupathi Nath Smritirtha v.
Ramlah Maitra19.

Customary Hindu law has been applied by Malaysian courts, where the circumstances so
warranted.

14
Pramatha Nath Mulliah v. Pradhyumna Kumar Mullich 52 Ind. App. 245 also [1925] AIR PC 139
15
Commissioner, H.R.E. Board Madras v. Narasimham [1939] AIR Madras 134
16
Mundancheri Koman v. Achutan Nair AIR PC 280
17
Subramania Aiyer v. Pujari Lashmana Govindar [1920] AIR Mad. 42
18
Narayanan v. Hindu Religious Endownments Board [1938] AIR Mad. 209
19
Bhupathi Nath Smritirtha v. Ramlah Maitra 37 ILR Calcutta 128, Damasara Jaya Sdn Bhd v. Penghuni-Penghuni Kuil
Muneswaran Alayam atau Kuil Muniandy Maha Kali Alayam
This line of thinking has been upheld by Y.A. Abdul Razak J. in Saman Pemula SP 31-3525-88
where Sungai Klang Dredging unsuccessfully sought to evict the persons in occupation of the
Sri Mahamariaman Temple on a piece of land in Puchong Village. There the temple was in
existence for a hundred years established by the owners of Castlefield Estate. In 1977 the
applicants bought the estate and tried unsuccessfully to evict the temple users in 1988. The
court held they had an equity which could not be terminated.
It is also prudent to check if the said temple is registered under the Societies Act 1966.

Thus, it would not be suitable relief under O 89 if consent is given impliedly (arguable-
indefensible title). In the case of Bohari bin Taib v. Pengarah Tanah Galian Selangor20 is
conclusive being a Supreme Court decision in which Y.A. Mohamed Azmi SCJ said at p. 346:

... In our opinion, for the purpose of the summary procedure, a 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, we hold that there are triable issues on the absence of
either licence or consent as alleged by the respondent. Evidence viva voce is
required not only on the alleged consent of the respondent to the appellants'
occupation rendering their entry lawful, but also on whether the approval of the
state authority to the alienation of the lands to the appellants and the other
occupiers had been given in 1980 under s. 42 of the National Land Code 1965. In
this case, we also find that the respondent has failed to comply with r. 3(b) of O.
89by its failure to disclose fully in its affidavit-in-support, the whole of relevant
circumstances how the lands came to be occupied by the appellants both before
and after the three- year period of the TOL, and why the approval of the State
Executive Council to the alienation of the lands to the farmers as contained in the
collector's letter of 25 October 1980, was neither exhibited nor implemented.

Thus, it is germane to note that O 89 will not be the correct procedure if there are triable issues
as to the existence of the equity claimed on behalf of the temple trustees (if any) and
worshippers to continue to enter and worship at this temple- this goes back to the fact if it is an
illegal society.

One final observation needs to be made is – if BAKTI is prepared to give them an alternative
site anywhere on their land - relocate. If this reluctance is based on its fear that they may be
transgressing the law because of some alleged illegality arising from the non-registration under
the Act it is to be hoped that the parties will review the position the Malaysian way in a search
for a rational solution.

Additionally, we may also face contention of that BAKTI is barred by laches and acquiescence.
If the temple stood on the Land for so many years and BAKTI only initiated the action to evict
the said temple now in 2019 (if the temple has been there for a very long period of time), even
though BAKTI is the new registered proprietor of the Land and only after taking possession of
the Land with actual or constructive knowledge of the temple situated thereon. In the trespass

20
Bohari bin Taib v. Pengarah Tanah Galian Selangor [1991] 1 MLJ 343
case of Alfred Templeton & Ors v. Low Yat Holdings Sdn Bhd & Anor 21, Edgar Joseph Jr. J
(later FCJ) held as follows:

"Laches is an equitable defence implying lapse of time and delay in prosecuting a claim.
A court of equity refuses its aid to a stale demand where the plaintiff has slept upon his
rights and acquiesced for a great length of time. He is then said to be barred by laches. In
determining whether there has been such delay as to amount to laches the court considers
whether there has been acquiescence on the plaintiff's part and any change of position
that has occurred on the part of the defendant. The doctrine of laches rests on the
consideration that it is unjust to give a plaintiff a remedy where he has by his conduct
done that which might fairly be regarded as equivalent to a waiver of it or where by his
conduct and neglect he has, though not waiving the remedy. put the other party in a
position in which it would not be reasonable to place him if the remedy were afterwards to
be asserted: 14 Halsbury's Laws of England (3 rd Ed) paras 1181, 1182. Laches has been
succinctly described as 'inaction with one's eyes open'.

Now, can lapse of time and delay, however gross, in a suit seeking final, as opposed to
interlocutory relief, of itself amount to the equitable defence of laches. It is clear that delay
in some circumstances can amount to evidence from which the inference can be drawn
that the plaintiff has released (or waived, there seems to be no difference) the claims which
he asserts: lapse of time always gives rise to a presumption that a stale suit is ill-founded
for a reasonable man is not likely to sleep on his claims if they are well-founded. Whether
it does or does not is a question of fact in each case.

The term 'acquiescence', like the term 'laches', is confusingly used in different senses.
Three should be referred to: (a) it can refer to the type of estoppel of which Ramsden v.
Dyson [1866] LR 1 HL 129 is an example. It is this meaning which Lord Cottenham LC
in Duke of Leeds v. Earl of Amherst 41 ER 886 said was the primary meaning of the
term. Poole J in Glasson v. Fuller [1922] SABL 148 thought likewise; (b) it can refer to
an element in one of the two kinds of laches, viz the action of a plaintiff over a long period
of time, with full knowledge of his rights, refraining from exercising his rights in
circumstances where it can properly be inferred that he has abandoned them. This is
waiver, affirmation, release. This is the sense in which Hanbury uses the term when he
says: 'The chief element in laches is acquiescence'; (c) finally, as is evident from the
question of Lord Wensleydale's speech in Archbold v. Scully [1861] 9 HCL 360; 11 ER
769 the term 'acquiescence' can be used as referable only to the second type of laches
considered in this chapter, i.e. the type of laches which involves prejudice to the defendant
or to third parties."

Recently in Borneo Wealth Sdn Bhd v. Ratna Seri Arif & Ors [2018] 5 CLJ 375, Ismail Brahim JC
aptly held as follows:

"The issue whether it has a case that is founded on the tort of public nuisance or trespass
would be a matter to be decided in a trial and determined based on the extrinsic
evidence."

Thus, OS under O 89 would fall if Defendants argues on triable issues

21
Alfred Templeton & Ors v. Low Yat Holdings Sdn Bhd & Anor [1989] 1 MLRH 144
Also see Article 11 and 8 of the Federal Constitution

TRESPASS

A cause of action premised on tort of trespass is different from nuisance in that it is a direct as
opposed to a consequential injury on the latter, and is actionable without proof of damage,
whereas damage must be proved in nuisance. See The Law of Tort Second Edition at page 1116

In order to be actionable as a trespass the injury must be direct, it is not trespass, but at most
nuisance to do an act which bares consequential results. See Todd Newhook v City of St
Jonh’s 2015 NLOC 0113C00322

As is stated in Clerk & Lindsell on Torts (118th Ed) at p 923, trespass to land consists of any
unjustifiable intrusion by one person upon the land in the possession of another

The true position is that a cause of action premised in trespass would only succeed if these
essential elements are established:

a. There is an entry and/or intrusion into the claimant’s legal property by the
Applicant (not proven); and

b. That the said entry and/or intrusion must be unlawful, unjustifiable, unwarranted
and/or without any legal right for the applicant to do so.

The essential elements under trespass is to show/prove “entering upon the land in the
possession of another”- the law is well settled.

Once a trespass to land or a deprivation of use of land had been established, the normal
measure of damages to be applied would be the actual proof of 'loss of rental' or a reasonable
estimation of such a 'rental return' that was directly attributable and flowing from a lawful use
of the land but denied by that wrongful action.22 

In Inverugie Investments v Hackett 23,the Privy Council opined (in an appeal from the
Bahamas Court of Appeal) that “although the plaintiff might not have suffered any actual loss by
being deprived of the use of property, he was still entitled to recover a reasonable rent for the wrongful use
of his property by the trespasser, and similarly, even if the trespasser might not have derived any actual
benefit from the use of the property, he was still obliged to pay a reasonable 'rent' for the benefit or use he
enjoyed based on what has been termed as the 'user principle”…

This case was referred to in Amm a/l Joy (suing as Chairman Committee Members of Wat
Boonyaram) v. Chuan Seng Sdn Bhd24 the appellant was sued for trespassing for constructing
a temple and several other building which encroached onto the respondent's land. At p.262-264
Mary Lim JCA had this to say,

22
Othman bin Ali & 290 Ors v. Bukit Lenang Development Sdn Bhd [2016] 3 MLJ 708
23
Inverugie Investments v Hackett [1995] 3 All ER 841
24
[2018] 5 MLJ 255
 "[18] What may be concluded from the Court of Appeal's decision in Othman bin
Ali is that while damages for trespass is awarded for loss, actual proof of loss is
still required. Generally, that would be in the form of rental as the unlawful
occupation has adversely affected the intention or ability to let or lease out the
land in question. If that were not available, then, damages would be based on 'a
reasonable estimation of such a 'rental return'. In either case, the loss must also
be directly attributable and flowing from the loss of a lawful use of the land but
for the unlawful occupation or trespass. This means the damages to be awarded
must not be too remote or speculative.

[21] Since trespass is actionable per se, once trespass has been proved, whether

the claimant can show he could have let out the property to another person, or
whether he would have used the property himself, is in fact, immaterial. The
claimant is entitled to damages for the trespass without bringing evidence of
such intentions. In the absence of anything special, it would be the 'ordinary
letting value of the property that would determine the amount of damages' as
held by Megaw LJ in Swordheath Properties Ltd v. Tabet and others [1979] 1 All ER
240.

[26] For the purposes of this appeal, suffice for us to say that the user principle
applies, that the appellant must pay damages for its improper use of the
respondent's land, or for the use which the appellant has enjoyed. In our
judgment, that would be the cost of use of the land.".

Also note s. 32 of the Limitation Act 1953 and cases of Khoo Lee Kheng lwn. Hau Seng Chai & Satu
Lagi [2017] 1 LNS 1987; Yong Nyee Fan & Sons Sdn Bhd v. Kim Guan & Co Sdn Bhd [1978] 1 LNS
244; and Damasara Jaya Sdn Bhd v. Penghuni-Penghuni Kuil Muneswaran Alayam atau Kuil
Muniandy Maha Kali Alayam [1994] 1 CLJ 164.