Cheng Kang Huan V Perumahan Farlim

Cheng Hang Guan & 2 Ors. v.
Perumahan
Farlim (Penang) Sdn. Bhd. & 3 Ors.
Edgar Joseph Jr. SCJ
[1994] 1 CLJ
CHENG HANG GUAN & 2 ORS.
v.
PERUMAHAN FARLIM (PENANG) SDN.
BHD. & 3 ORS.
HIGH COURT, PENANG
TAN SRI DATUK EDGAR JOSEPH JR.. SCJ
[CIVIL SUIT NO. 311 OF 1982]
20 MARCH 1993
CONTRACT: Agency - Doctrine of holding out Ostensible or apparent authority - Onus rests on
person dealing with agent - Conduct must be
proved affirmatively; Damages - Exemplary damages - Categories and principles - Compensatory
award -Reflect gravity of wrongdoing - Method of
proving market value; Promissory estoppel - Promises and assurances to the plaintiffs - Plaintiffs
claim to alleged equity does not depend on the
availability of the remedy of specific performance;
Proprietary estoppel - Principles - Where a person
builds or improves land of another - Akin to
constructive trusts; Conditions on receipts - Onus
of proving conditions of receipts had contractual
force.
EVIDENCE: Admission by non-party Section 18(3) of Evidence Act 1950; Burden of
proof - Onus of proving conditions on receipts
had contractual force; Hearsay - Evidence of
promises or assurances - Admissible when proposed to establish by the evidence, not the truth
of the statement but the fact that it was made.
LAND LAW: Estoppel - Promises and assurances
to the plaintiffs - Substantial expenditure based
on the promises and assurances; Proprietary estoppel - Principles.
LANDLORD AND TENANT: Notice to quit - Factors determining sufficiency - Reasonable period
for notice.
PRACTICE AND PROCEDURE: Amendment of
pleadings - Time limit to file - Order 20 r. 9 RHC
1980 - Whether new cause of action was introduced by amendment to join the defendants after
issue of writ; Locus standi - Effect of non-joinder
of party - Order 15 r. 6(1) of RHC 1980.
TORT: Trespass to land - Mistake is no defence Damages.
The plaintiffs (P1, P2 and P3) claimed that they

were and are lawful and protected tenants and
were entitled in law and equity to possession of
portion of holding Nos. 3532 and 2497, Mukim
13, NED, Penang (the plot concerned) on
which were situated their two dwelling houses
19
Nos. 258K and 259H (the two dwelling houses)

and their vegetable farm (the farm). The registered proprietors of holding No. 3532 (Thean
Teik Estate) were and are the trustees of Khoo
Kongsi. The family of one Cheong, P2s grandfather, had converted what was once a swampy
jungle land into a productive farm. Upon
Cheongs death, P2 took charge of the farm. The
family members worked the farm. The house
No. 258K has been standing on the plot concerned before 1938 and house No. 259H was
built by Cheong in 1963 with the consent of Khoo
Kongsi and registered in the name of P2. In
1972, P1 and P2 were registered as tenants of
House No. 258K while after Cheongs death, P2
spent RM1,500 in providing a ceiling for House
No. 259H. Separate rent receipts were issued in
respect of the two dwelling houses, but no
conditions were printed on the rent receipts
issued to Cheong and P2 until late 1981. Sometime in 1972, the visiting trustee of Khoo Kongsi
had told P2 that it was not necessary to change
the tenancy of the vegetable plot to her name
and that she could continue planting vegetables
as long as she wished provided she paid rent.
Cheong had also told PW2 that an assurance
was given by Khoo Kongsi that as long as he
continued to pay ground rent he could stay and
cultivate the vegetable plot as long as he wanted.
Upon the death of a tenant of a vegetable plot,
his tenancy continued for the benefit of his
family and so long as his family members continued to pay the rent, they could continue
farming. After the assurance given by the visiting trustee, the plaintiffs invested RM12,000 in
installing a sprinkler system. The assurance
given to P2 is consistent with the practice of
Khoo Kongsi before the developers Farlim came
on to the scene in the late seventies. For more
than 50 years, neither Khoo Kongsi or anyone
else had interfered with the farming activities of
the plaintiffs family. Only after Khoo Kongsi
had entered into a joint-venture agreement was
there any interference with the plaintiffs possession of the plot concerned.
The plaintiffs claim against the defendants was
founded on trespass and nuisance allegedly
committed by the defendants and by their servants or agents. The reliefs prayed for by the
plaintiffs are aggravated and exemplary damages for trespass and nuisance with interest
thereon, a permanent injunction restraining
the defendants by themselves or their servants
and/or agents or otherwise howsoever from
20
Current Law Journal

January 1994
entering, trespassing and/or carrying out works

on the plot concerned on which are situated the
dwelling houses and the farm, and costs.
The defendants advanced various objections

based upon points of law and procedure, that
(i) The plaintiffs attempted to introduce a
new cause of action via the joinder of D3
and D4 after the issue of the writ;
(ii) The re-amendment of the statement of
claim by the plaintiffs to raise a claim for
trespass against D3 and D4 ought not to
have been allowed;
(iii) The requirements of O. 20 r. 9 of the Rules
of the High Court 1980 (RHC) with regard to the implementation of the order
granting leave to amend had not been
complied within the 14 day period stipulated therein;
(iv) The suit was bad for non-joinder and that
the plaintiffs have no title to the plot concerned and thus no locus standi;
(v) The remedy of self-help would be available
to D1 and D2 if the plaintiffs are held to be
trespassers in law,
(vi) The pleas of res judicata and issue estoppel
will bar the plaintiffs claim.
As to the issues embarking upon the consideration of merit, the following were raised:
(i) What was the area of the plot concerned of
which the plaintiffs had possession and
whether the plaintiffs were both in law and
in equity entitled to such possession of the
plot concerned, the dwelling houses and
the farm;
(ii) What notice to quit was necessary to determine the plaintiffs tenancies of the farm
and the two dwelling houses assuming
such tenancies were not coupled with
equity;
(iii) Whether the service of the notice to quit
was effective in law;
(iv) Whether the dwelling house No. 258K was
subject to the Control of Rent Act 1966;
(v) Whether the plaintiffs were protected in
their occupation of the plot concerned by
equity or equitable estoppel;
(vi) Does the availability of the alleged equity
depend on the availability of the remedy of
specific performance;
(vii) Whether the plaintiffs tenancies are binding on D1 and/or D3;
(viii)Whether the plaintiffs are entitled to rely
upon the plea of proprietary estoppel, and
the extent of the plaintiffs equity;
[1994] 1 CLJ
(ix) Whether the defendants committed trespass and nuisance; and

(x) The appropriate sum to award by way of
damages.
Held:
[1] It is obvious from the evidence before the
Court that the cause of action against the D3
and D4 arose from wrongful acts committed by
them before they were joined as defendants and
as such the plaintiffs were not introducing a
fresh cause of action against D1 and D2. It
would be neither right nor fair to entertain the
objection made by the defendants Counsel at a
very late stage of the application for joinder of
D3 and D4.
[2] (a) Leave to amend was properly given
based on the sequence of events with
regard to the application for re-amending the statement of claim to include
D3 and D4, coupled with the fact that
there was no objection by the defendants solicitors.
(b) The re-amended statement of claim
was filed in the registry of the Court
well within the time limited for doing
so and the plaintiffs could not have
done anything more. Order 20 r. 9 of
the RHC was not breached.
[3] (a) The term locus standi or standing in a
Court of law means entitlement to
judicial relief apart from questions of
the substantive merits and legal capacity of a plaintiff. The Court is bound
to proceed on the basis that everything
alleged in the statement of claim and
in the documents relied upon by the
plaintiffs is true and that the jurisdiction to uphold a plea of no locus standi
should only be exercised very carefully
in circumstances where there is no
possibility of doubt.
(b) The objection as to the non-joinder was
only taken at a very late stage and
O. 15 r. 6(1) of the RHC provides that
no cause or matter shall be defeated by
reason of non-joinder of any party.
[4] (a) There was locus standi as it could be
reasonably inferred from the evidence
that P2 was in the position of a constructive trustee of the farm for the
benefit of herself, the other plaintiffs
and PW1. Consequently, P2 alone could
[1994] 1 CLJ
Cheng Hang Guan & 2 Ors. v. Perumahan

maintain the suit to protect trust

property.
(b) The Statute of Frauds has no application to the gift of the vegetable plot
to the plaintiffs and PW1 which had
been perfected while Cheong was still
alive. This is not an action based on any
contract for the sale, or other disposition of land, or any interest in land.
[5] Only if the plaintiffs are held by the Court

to be trespassers in law then the remedy of selfhelp would be available to D1 and D3.
[6] The legal effect of the refusal of the interlocutory injunction was simply that, at the
interlocutory stage, based on the limited material then available, the plaintiffs were not entitled to the injunctive relief claim, and the
dissolution of the injunction does not mean that
the plaintiffs had no interest in the portion of the
plot concerned.
[7] A receipt is in law only evidence of the
payment of a sum of money and does not constitute a contract nor can it have the effect of an
estoppel. The true intention of the parties must
be established by evidence at the trial. Here
there is no evidence that the conditions appearing in the rent receipts whether in respect of
vegetable lands or the dwelling houses had been
introduced from the inception of the tenancies
nor is there anything to show that the plaintiffs
or their ancestors who had no knowledge of the
English language could be said to have accepted
the conditions. The onus of proving that the
conditions on the receipts had contractual force
was upon the defendants who were relying upon
that condition and not upon the plaintiffs to
prove the converse. No adverse inference may be
drawn against the plaintiffs for this omission
even assuming such old receipts were available.
The mere fact that the plaintiffs had themselves
used the receipts bearing the conditions aforesaid as evidence does not in any way debar them
from contending at the final hearing that those
conditions were invalid in law. The conditions
appearing in the rent receipts is devoid of legal
effect and must be disregarded in considering
the question of the sufficiency or otherwise of
the notice to quit.
[8] (a) The mode of payment of rent is not
necessarily a decisive factor although
it is an important factor in determining the question of the sufficiency of
21
the period of a notice to quit. Whereas

here, there was no written tenancy
agreement to construe the nature of
the tenancies and what notice to quit
was necessary to determine these tenancies, the Court had to take into
account not just the mode of payment
of the rent but also the conduct and
intention of the parties, the contemplated user of the subject matter of the
tenancies and other relevant circumstances of the case as a whole. The
Court has a discretion which has to be
exercised judicially and this calls for a
balancing exercise. The Court considered three months notice would be
reasonable for the determination of
the tenancies of the farm and the two
houses as this would afford the plaintiffs sufficient time within which to
harvest their crops and to yield vacant
possession of the plot concerned.
(b) Notices to quit are validly served if left
at the premises and when the notice to
quit was received by the occupants it
was received as agents for and on
behalf of the Official Administrator.
[9] The Court has no jurisdiction to make an
order for possession in respect of dwelling house
No. 258K because the defendants did not attempt to satisfy the requirement of s. 16(1) of
the Control of Rent Act 1966.
[10] (a) The Court is satisfied that promises or

assurances had been made by Khoo
Kongsi to Cheong that so long as he
continued to pay ground rent he could
stay and cultivate the vegetable land
as long as he wanted and relying on the
same he and his family had converted
what was once a swampy jungle land
into a productive farm. He also built
dwelling house No.258K and No. 259H
on the vegetable land with the consent
of Khoo Kongsi and had it registered in
the records of Khoo Kongsi in the name
of P2. Cheong would hardly have done
these acts which involved unusual exertion and considerable expense unless those promises and assurance had
in fact been made. The plaintiffs have
also incurred substantial expenditure
based on the promises and assurances.
The tenancies held by Cheong were not
22
Current Law Journal

January 1994
just for his benefit but also for the
benefit of his family and these tenancies could not have been mere monthly
tenancies. The trustees of Khoo Kongsi
must have been fully aware that
Cheong was the head of an extended
Chinese family and the farming activities carried on were for the benefit of
this extended family.
(b) It is well established that the evidence
of the promises and assurance made to
Cheong and P2 by the visiting trustee
is not hearsay and is admissible when
it is proposed to establish by evidence,
not the truth of the statement but the
fact that it was made. The same is
frequently relevant in considering the
mental state and conduct thereafter of
the witness.
(c) By virtue of s. 18(3) of the Evidence Act
1950 statements made by a non-party
to the suit are admissible.
(d) The doctrine of holding out sometimes called apparent or ostensible
authority, has been said to have been
based upon estoppel. Agency by estoppel arises where one person has so
acted by allowing the agent to hold
himself out as having authority as to
lead another to believe that he has
authorised a third person to act on his
behalf, and that other, in such belief,
enters into transactions with the third
persons within the scope of his ostensible authority. The onus rests on the
person dealing with the agent to establish real or ostensible authority. The
conduct said to amount to holding out
must be proved affirmatively. It is a
question of fact in a particular case
whether ostensible authority existed
for the particular act in respect of
which liability is sought to be imposed
upon the principal. On the evidence,
the plaintiffs have succeeded in proving on the balance of probabilities that
the visiting trustee was held out as
having power to deal with the tenants
on its behalf, including the power to
make the promises and assurances
aforesaid upon which the plaintiffs
had relied and incurred substantial
[1994] 1 CLJ
expenditure by installation of a sprinkler system.

[11] The doctrine of promissory estoppel provides a defence to an action on the original
contract for a defendant relying on a voluntary
variation. It does not provide a cause of action
for a plaintiff relying on a gratuitous promise.
Yet, its effect may be to enable a party to enforce
a cause of action which, without the estoppel,
would not exist. Here the plaintiffs and their
forbears have been in possession of the plot
concerned for decades and they have commenced
these proceedings to protect their rights to
remain in possession relying on equity or equitable estoppel. In the circumstances, the plaintiffs claim to the alleged equity does not depend
on the availability of the remedy of specific
performance.
[12] D3 became the registered lessee of Lot 2532
pursuant to clause 16 of the joint-venture agreement and D3s lease is held in trust for the
benefit of Khoo Kongsi and D3 for the purpose
of facilitating developments of the project. D3 is
for purposes of development, the alter ego of
Khoo Kongsi. Accordingly D3 would be in no
better position to resist the plaintiffs claim to be
entitled to be in possession in law and equity
than would Khoo Kongsi itself. As successors in
title with notice of the plaintiffs interest in the
plot concerned, D3 would have to take its lease
subject to that interest. The validity of contract
relating to land or any interest therein is explicitly declared in s. 206(3) of the National Land
Code 1965 (NLC). Therefore the Court was
unable to accede to the submissions of the
defendants Counsel that the protection of indefeasibility guaranteed under s. 304(1) of the
NLC enables D3 to take its lease free of the
plaintiffs interest in the plot concerned.
[13] (a) Proprietary estoppel is one of the exceptions to the general rule that a
person who spends money on improving the property of another has no right
to claim reimbursement or any proprietary interest in property. Unlike promissory estoppel, proprietary estoppel
when it operates is permanent in its
effect and it is also capable of operating
positively so as to give a cause of action.
The Court cannot agree with the defendants Counsels submission that to
establish proprietary estoppel, in cases
where a person builds on or improves
[1994] 1 CLJ

land of another, the landowner standing by without asserting his rights,

while this is going on, it is essential to
prove that such a person mistakenly
thought that the land was his own
when he did those acts, though the
Court accepted that in such a case,
equity will treat the true owners conduct as estopping him from subsequently asserting his title to the detriment of such person. This is so because
even if such a person builds or improves land of another knowing he was
doing so on land belonging to another,
there will still arise an equity in him if
the landowner led such person to expect to be allowed to stay there. It is not
essential that the representator must
have knowledge that his property is
being improved. The representators
conduct and the subsequent action and
the belief of the representee may
render it unconscionable for the
representator to insist on his strict
legal rights.
(b) The principles which apply to constructive trusts are closely akin to
those underlying the doctrine of proprietary estoppel. In both, the claimant must have acted to his detriment in
reliance of the belief that he would
obtain an interest and that equity acts
on the conscience of the legal owner to
prevent him from defeating the common intention. In cases such as this
one, proprietary estoppel is a form of
constructive trust.
[14] A person should be protected against interference for as long as he would be prejudiced
thereby if he made the expenditure or the improvement on anothers land. Having regard to
the fact that the plaintiffs and their ancestors
have been living on the plot concerned and
cultivating the farm and the substantial sums of
money which must have accrued to them and
their ancestors by way of profit thereby over a
period of several decades, and the further fact
that the plaintiffs have enjoyed rent-free occupation for the last decade or so, the Court
considered that the plaintiffs have had sufficient satisfaction for their labour and expenditure on the plot concerned or the prejudice
suffered by them has been fully satisfied and so
they are entitled to no relief.
23
[15] The Court is satisfied that on the photographic evidence, the plaintiffs have proved on
the balance of probability that,
(i) at all material times, the plaintiffs were
and are in lawful possession of the plot
concerned including the farm, the dwelling
houses and the structures erected thereon;
(ii) The defendants had by their servants or
agents committed acts of trespass and
nuisance on the plaintiffs land.
[16] (a) The general rule as to the measure of
damages is that sum of money which
will put the party who has been injured, or who has suffered, in the same
position as he would have been if he
had not sustained the wrong for which
he is now getting his compensation or
reparation. When a plaintiff claims
damages from a defendant he has to
show that the loss in respect of which
he claims damages was caused by the
defendants wrong and also that the
damages are not too remote to be recoverable. And the plaintiff must prove
their damage. Where precise evidence
is obtainable the Court naturally expects to have it, where it is not, the
Court must do the best it can. General
difficulty of proof does not dispense
with the necessity for proof.
(b) The normal way or method of proving
market value in the case of a resale of
goods in bulk would be to call the
customers or at the least, where the
parties agree to documentary evidence
to tender documents showing the existence of and a dealing with customers. The plaintiffs here did none of
these things nor did they produce any
income tax returns. A plaintiffs unsupported assertion that he would receive such and such a price for his
fruits or vegetables does not prove
market value much less that he had a
market. To accept the sufficiency of the
above will dispense with proof of quantum altogether.
[17] Three categories of cases where exemplary
damages could be awarded are,
(i) oppressive action by officers of the Crown;

(ii) cases where a defendant with a cynical
disregard for a plaintiffs rights has
24
Current Law Journal

January 1994
calculated that the money to be made out

of his wrongdoing will probably exceed the
damage at risk; and
(iii) where statute expressly authorised it.
In addition, there are three considerations
applicable to all cases of exemplary damages,
i.e.
(i) the plaintiff cannot recover such damages unless he is himself the victim of
such punishable behaviour;
(ii) it can be used both for and against
liberty; and
(iii) the financial means of the parties,
though irrelevant to compensatory
damages are relevant to exemplary
damages.
[18] Trespass is normally associated with intentional acts even though committed by mistake, for mistake is no defence. And having
regard to the particular circumstances of this
case, mistake is no answer to the claims for
exemplary damages.
[19] Awards of exemplary damages should be
moderate and the resources of the parties was
a relevant consideration. The quantum of the
compensatory award as well as the conduct of
the parties right down to the time of the judgment is the other factor which must be taken
into consideration. Any sum which the Court
awards by way of exemplary damages for these
acts of trespass must reflect the gravity of the
wrongdoing.
[Plaintiffs claims allowed with costs].

Cases referred to:
Chuan Chow Maritime SA Panama v. KSAS Bulk Sea
Transport The Times, 25 February 1984 (refd)
Cheng Hang Guan & Ors. v. Perumahan Farlim
(Penang) Sdn. Bhd. & Ors. [1988] 2 CLJ 35/[1988]
3 MLJ 90 (refd)
Drane v. Evangelou & Ors. [1978] 2 All ER 437; [1978]
1 WLR 499 (refd)
Hayes v. Bristol Plant Hire Ltd. & Ors. [1957] 1 All ER
685; [1957] 1 WLR 499 (foll)
Performing Right Society Ltd. v. London Theatre of
Varieties Ltd. [1924] AC 1 (refd)
Walter & Sullivan Ltd. v. J Murphy & Sons Ltd. [1955]
1 All ER 843; [1955] 2 QB 584; [1955] 2 WLR
919 (refd)
Kok Ek Chooi v. Cheah Soon Neoh & Anor. [1981] CLJ
179/[1982] 1 MLJ 219 (refd)
V.M. Peer Mohamed v. Great Eastern Life Assurance
Co. Ltd. [1982] 2 MLJ 298 (refd)
Strong v. Bird [1874] LR 18 Eq 315 (refd)
[1994] 1 CLJ
Leong San Tong Khoo Kongsi (Penang) Registered &

Ors. v. Poh Swee Siang [1987] 2 MLJ 611 (foll)
Cheng Hang Guan & Ors. v. Perumahan Farlim (Pg)
Sdn. Bhd. & Anor. [1983] 2 CLJ 84/[1983] 1 MLJ
348 (refd)
Government of Malaysia v. Dato Chong Kok Lim [1973]
2 MLJ 74 (dist)
Mohd Ismail v. Lim Sok Cheng [1988] 1 CLJ 335 (refd)
Lee v. Lancashire Yorkshire Railway Co. [1871] LR 6
Ch App 534 (foll)
Hockle v. London County Council [1910] 26 TLR
580 (foll)
Oliver v. Nautilus Steam Shipping Co. Ltd. [1903] 2 KB
639 (foll)
Loke Yung Hong v. Shanghai Furniture Co. & Anor.
[1948] MLJ 136 (refd)
Balwant Singh v. Tong Lam & Co. [1963] MLJ 33 (foll)
Lee Ah Low v. Cheong Lep Keen [1970] 1 MLJ 7 (dist)
Syed Mohd Alsagoff v. Max Behr [1883] 1 Kyshe
637 (refd)
Tay Boon Huat v. Kulsam Bee [1914] SSLR 51 (refd)
ALMM Muthukaruppan Chettiar v. Haji Ibrahim [1941]
MLJ 150 (refd)
Yong Tong Hong v. Siew Soon Wah & Ors. [1971] 2
MLJ 105 (refd)
Adler v. Blackman [1953] 1 QB 146; [1952] 2 TLR 809;
[1952] 2 All ER 945 (foll)
Doe d Martin v. Watts [1789] 7 TR 83 (refd)
Lim Kien Mok v. BH Kevan [1963] MLJ 284 (foll)
Teck Seng & Co. v. William Eu Keng Yuet [1980] 2 MLJ
115 (refd)
Lai Seng Fook v. Tang Kong Low [1978] 1 MLJ
158 (refd)
Mok Deng Chee v. Yap See Hoi [1981] CLJ 124/[1981]
2 MLJ 321 (not foll)
Muniandy & Anor v. Muhammad Abdul Kader & Ors.
[1989] 2 CLJ 577/[1989] 2 MLJ 416 (not foll)
Nair v. Chidambaram [1961] MLJ 264 (foll)
Subramaniam v. PP [1956] MLJ 220 (foll)
Rama Corpn. Ltd. v. Proved Tin and General Investments Ltd. [1952] 2 QB 147 (foll)
Freeman & Lockyer (a firm) v. Buckhurst Park Properties (Mangal) Ltd. [1964] 2 QB 480; [1964] 2 WLR
618; [1964] 1 All ER 630 (foll)
Re Henry Bentley & Co. and Yorkshire Breweries Ltd,
ex p Harrison [1893] 69 LT 204 (foll)
Council of the Shire of Ashford v. Dependable Motors
Pty Ltd. [1961] AC 336; [1960] 3 WLR 999; [1961] 1
All ER 96 (foll)
Pole v. Leask [1863] 33 LJ Ch 155 (foll)
Bailey & Whites Ltd v. House [1915] 31 TLR 583 (foll)
Brazier v. Camp [1894] 63 LJQB 257 (foll)
Crabb v. Arun District Council [1975] 3 All ER 865;
[1976] Ch 179; [1975] 3 WLR 847 (foll)
Karuppan Chetty v. Suan Thian [1916] 1 FMSLR
300 (foll)
Prudential Assurance Co. Ltd. v. London Residuary
Body & Ors. [1992] 3 WLR 279 (foll)
Zimbler v. Abrahms [1903] 1 KB 577 (refd)
Siew Soon Wah & Ors. v. Yong Tong Hong [1973] 1
MLJ 133; [1973] AC 836 (refd)
[1994] 1 CLJ

Central London Property Trust v. High Trees House

Ltd. [1947] KB 130; [1956] 1 All ER 256; [1947] LJR
77; 175 LT 333; 62 TLR 557 (refd)
Evenden v. Guildford City Association Football Club
Ltd. [1975] QB 917; [1975] 3 WLR 251; [1975] 3 All
ER 269 (refd)
Combe v. Combe [1951] 2 KB 215; [1951] 1 All ER 767;
[1951] 1 TLR 811 (foll)
Amalgamated Investment & Property Co. Ltd. v. Texas
Commerce International Bank Ltd. [1982] QB
84 (refd)
Ajayi v. RT Briscoe (Nigeria) Ltd [1964] 1 WLR 1326;
[1964] 3 All ER 556 (refd)
Durham Fancy Goods Ltd. v. Michael Jackson (Fancy
Goods) Ltd. [1968] 2 QB 839; [1968] 3 WLR 225;
[1968] 2 All ER 987 (refd)
Hughes v. Metropolitan Railway Co. [1877] 2 App. Cas
439, 448 (refd)
Errington v. Errington and Woods [1952] 1 KB 290;
[1952] 1 All ER 149 (refd)
Ashburn Anstalt v. Arnold [1988] 2 All ER 147; [1988]
Ch 1 (refd)
Lyus v. Prowsa Developments Ltd. [1982] 2 All ER 953;
[1982] 1 WLR 1044 (refd)
Goh Hooi Yin v. Lim Teong Ghee & Ors [1990] 2 CLJ
203/[1990] 3 MLJ 23 (refd)
Devi v. Francis [1969] 2 MLJ 169 (foll)
Ahmad Yar Khan v. Secretary of State for India in
Council [1901] LR 28 Ind App 211 (foll)
Denny v. Jensen [1977] 1 NZLR 635 (foll)
Ramsden v. Dyson [1866] LR 1 HL 129 (refd)
Brinnard v. Ewens [1987] Ch 2 EGLR 67; [1987]
19 HLR 415; [1987] 284 EG 1052 (refd)
Inwards v. Baker [1965] 2 QB 29; [1965] 2 WLR 212;
[1965] 1 All ER 446 (foll)
Tan Khien Toong & Ors. v. Hong Bee & Co. [1987] CLJ
17/[1987] 1 MLJ 387 (refd)
Lee Lum Soh v. Low Ngah [1973] 1 MLJ 97 (refd)
Imperial Bank of Canada v. Mary Victoria/AIR [1936]
PC 193 (refd)
Khew Ah Bah v. Hong Ah Mye [1971] 2 MLJ 88 (refd)
AG of Hong Kong v. Humphreys Estate (Queens Gardens) Ltd. [1987] AC 114; [1987] 2 WLR 343; [1987]
2 All ER 387 (foll)
Haslemere Estates Ltd. v. Baker [1982] 1 WLR 1109;
[1982] 3 All ER 525 (foll)
Dann v. Spurier [1802] 7 Ves 231 (foll)
Khew Ah Bah v. Hong Ah Mye [1971] 2 MLJ 86 (refd)
Taylor Fashions Ltd. v. Liverpool Victoria Trustees Co.
[1981] ER 897; [1981] QB 133; [1981] 2 WLR
576 (foll)
Shaw v. Applegate [1977] 1 WLR 970; [1978] 1 All ER
123 (refd)
Grant v. Edwards [1986] Ch 638; [1986] 3 WLR 114;
[1986] 2 All ER 426 (refd)
Gillies v. Keogh [1989] 21 NZLR 327 (refd)
Lloyds Bank Plc v. Rosset [1990] 2 WLR 867; [1991] 1
AC 107 (refd)
Maharaj v. Chand [1986] AC 898 (foll)
Re Basham (decd) [1986] 1 WLR 1498; [1987] 1 All ER
405 (foll)
25
Griffiths v. Williams [1977] 248 EG 947 (refd)

Jones (AE) v. Jones (FW) [1977] 1 WIR 438 (refd)
Dodsworth v. Dodsworth [1973] 228 EG 1115 (refd)
Plimmer v. Wellington Corporation [1884] 9 App Cas
699 (refd)
ER Ives Investment Ltd. v. High [1967] 2 QB 379; [1967]
2 WLR 789; [1967] 1 All ER 504 (refd)
Bank Negara Indonesia v. Philip Hoalim [1973] 2 MLJ
3 (refd)
Raffaele v. Raffaele [1962] WLR 238 (refd)
Neesom v. Clarkson [1845] 4 Hare 97 (refd)
AG v. Baliol College, Oxford [1774] 9 Mod 407 (foll)
Kalimuthu v. S. Kandiah [1976] 2 MLJ 217 (refd)
Ward v. Kirkland [1967] Ch 194; [1966] 1 WLR 601;
[1966] 1 All ER 609 (dist)
Livingstone v. Rawyards Coal Co. [1880] 5 App Cas
25 (foll)
Munnelly v. Calco [1978] IR 387 (refd)
Bonham-Carter v. Hyde Park Hotel Ltd. [1984] 64 TLR
177 (foll)
Biggin & Co. v. Permanite [1951] 1 KB 422; [1950] 2 All
ER 859 (foll)
Aerial Advertising Co. v. Batchelors Peas (Manchester)
[1938] 2 All ER 788 (foll)
Ashcroft v. Curtin [1971] 1 WLR 1731; [1971] 3 All ER
1208 (foll)
Rookes v. Barnard [1964] AC 1129; [1964] 2 WLR 269;
[1964] All ER 367 (foll)
Cassell & Co. Ltd. v. Broome [1972] 1 All ER 801; [1972]
AC 1027; [1972] 2 WLR 645 (refd)
Basely v. Clarkson 83 ER 565 (refd)
Praed v. Graham [1889] 24 QBD 53 (refd)
Legislation referred to:
Civil Law Act 1956, ss. 4(3), 11
Contracts Act 1950
Control of Rent Act 1966, s. 16(1)
Evidence Act 1950, ss. 17, 18(3)(a), (b), 90
Land Code
National Land Code, ss. 206(3), 221(3)(b), 340(1)
Rules of the High Court 1980, O. 15 r. 6(1), O. 20 r. 9,
O. 42 r. 12
Statute of Frauds 1677
Other sources referred to:
Equity after Fusion: Federal or Confederate,
Evershed MR [1948] 1 Journal of the Society of
Public Teachers of Law 171, 176
Equity Doctrines and Remedies, Meagher,
Gummow & Lehane, (3rd Edn.) [1992] @ p. 433
para 1728
Evidence, Cross (6th Edn.) [1985] p. 517
Odgers Principles of Pleading & Practice
(22nd Edn.) 162-163
Law of Evidence, Field (11th Edn.) [1990] vol. 2 p.
1245 29
The Supreme Court Practice 1991 Vol. 1 p. 363
For the plaintiffs - Mohideen Abdul Kader (Meenakshi
Raman with him); M/s. Meena, Thayalan &
Partners
For the defendants - R.R. Sethu (Rajasingam with
him); M/s. R.R. Sethu
Current Law Journal

January 1994
26
JUDGMENT
Edgar Joseph Jr. SCJ:

Broadly stated, in this suit the plaintiffs claimed
that at all material times, they were and are
lawful and protected tenants and that they are
entitled in law and equity to possession of that
portion of the land forming part of the holding
No. 3532, Mukim 13, NED, Penang, Lot 2497,
Mukim 13, NED, Penang, in area 121 ,619 sq. ft.
(or 2. 8 acres) delineated in the plan P16 (the
plot concerned) on which are situated their two
dwelling houses, bearing numbers 258 K and
259 H (the two dwelling houses) and their
vegetable farm (the farm").
In this judgment, unless the context otherwise

requires, I shall refer to the first , the second,
and the third plaintiffs as P1, P2" and P3,
respectively , and to the first, the second, the
third and the fourth defendants as D1, D2,
D3 and D4, respectively.
The essential facts said to underly the plaintiffs

case may be conveniently taken from the written submission of Counsel for the plaintiffs and
are as follows:
At all material times to this suit the registered

proprietors of holding No. 3532 (popularly known
as "Thean Teik Estate) were and are the trustees of Khoo Kongsi.
More particularly, the plaintiffs claim against
the defendants is founded on trespass and nuisance, allegedly committed by the first defendant Perumahan Farlim (Penang) Sdn. Bhd.
and by their servants or agents the second
defendant Sriwata Sdn.Bhd., as developers and
contractors, respectively on 18 June 1982 on a
portion of the plot concerned etched black on the
plan P14, and by the third defendant Perumahan
Farlim (Malaysia) Sdn. Bhd. and their servants
or agents the fourth defendant Thean Tatt
Construction Sdn. Bhd., as developers and contractors respectively, on 17 March 1988 on a
portion of the plot concerned etched orange on
the plan P14 and their unlawful occupation of
the portion etched black in P14.
The reliefs prayed for by the plaintiffs are for
aggravated and exemplary damages for trespass and nuisance, with interest thereon, a
permanent injunction restraining all the defendants whether by themselves or their servants
and/or agents or otherwise howsoever from
entering, trespassing and/or carrying out works
on the plot concerned on which are situated the
dwelling houses and the vegetable farm and
costs.
On the other hand, broadly stated, the defence
has raised objections based on points of procedure relating to amendments of pleadings, the
law as to locus standi and, so far as the merits
are concerned, the defence denies the averments aforesaid by the plaintiffs and counterclaims for possession, damages and mesne
profits.
[1994] 1 CLJ
1.11 The plaintiffs family has been staying on

the plot concerned since the time of P2s
great-grandfather, which would be in the
later part of the 19th Century or early
part of the 20th Century i.e. more than
100 years ago. P2s grandfather, Cheong
Au Pit, was 84 years of age at the time of
his death in 1969.
1.12 Cheong Au Pits family, by their own
efforts, had converted what was once a
swampy jungle into a productive farm.
They levelled the land and constructed
drains to drain away the water. They had
also built pig sties, chicken coops, wells
and other structures.
1.13 Cheong Au Pit, who managed the farm
during his lifetime, was the head of an
extended Chinese family, consisting of
his children, grandchildren, sons-in-law,
daughters-in-law and his adopted daughter Cheng Lye Hiang (PW1). After Cheong
Au Pits death, P2 took over the role of
Cheong Au Pit and managed the farm.
The family members worked on the farm
and the income was used to pay for their
expenses and the balance was shared
among the family members who worked
in the farm.
1.14 House No. 258-K, has been standing on
the plot concerned since before the birth
of P2 on 15th December 1938. In 1972,
after Cheong Au Pit's death, P1 and P2
were registered as tenants of this house in
place of Cheong Au Pit.
House No. 259-H was built by Cheong Au
Pit in 1963 with the consent of Khoo
Kongsi and registered in the name of P2.
After Cheong Au Pits death, P2 spent
RM1,500.00 in providing a ceiling for the
house.
[1994] 1 CLJ

1.15 Separate rent receipts were issued in

respect of the two dwelling houses and
the vegetable plot standing on the plot
concerned. No conditions were printed on
the rent receipts issued to Cheong Au Pit
and P2 until late 1981.
There is no record of any decision by the

Board of Trustees of Khoo Kongsi on the
alleged conditions of the tenancy of the
vegetable plot.
Conditions were endorsed on the receipts

for vegetable lands only after 1976 because Khoo Kongsi had, by then, entered
into a joint venture agreement to develop
a portion of Thean Teik Estate but on the
receipts issued to P2 the conditions were
indorsed only in 1981.
1.16 Some time in 1972, the visiting trustee of
Khoo Kongsi had told P2 that it was not
necessary to change the tenancy of the
vegetable plot to her name and that she
could continue planting vegetables as long
as she wished provided she paid the rent.
Cheong Au Pit had also told P2 that Khoo
Kongsi had assured him that so long as he
continued to pay ground rent he can stay
and cultivate the vegetable plot for as long
as he wanted.
Upon the death of a tenant of a vegetable
plot, his tenancy continued for the benefit
of his family. So long as his family members continued to pay the rent, they could
continue farming.
"Q. When a tenant of vegetable farm dies,

what does Khoo Kongsi do ?
A. The tenancy still continues for the
benefit of the family of the deceased.
Q. So long as they continue to pay rents,

they can continue farming ?
A. Yes.
Thus the assurance given to P2 is consistent
with the practice of Khoo Kongsi before the
developers Farlim came on the scene in the late

seventies. DW3's evidence also shows that the
tenancy was for the benefit of the family and not
just the person registered as tenant. The trustees of Khoo Kongsi must have been fully aware
of the social, cultural context in which their legal
relationship with Cheong Au Pit was based.
They must have known that Cheong Au Pit was
the head of an extended Chinese family and that
farming activities were by and for the benefit of
this extended family.
1.19 For more than 50 years, neither Khoo
Kongsi nor anyone else had interfered
with the farming activities of the plaintiffs family.
Only after Khoo Kongsi had entered into
a joint-venture agreement was there any
inteference with the plaintiffs possession
of the plot concerned.
1.17 After the assurance given by the visiting

trustee, the plaintiffs invested RM12,000
in installing a sprinkler system.
1.18 P2s testimony regarding the assurance
given to her by the visiting trustee in 1972
was corroborated by the testimony of a
trustee of Khoo Kongsi, Khoo Kah Seng
(DW3) who testified:
27
As for the facts said to underlie the defendants'

case these can, for the sake of brevity and
convenience, be dealt with when the substantive issues fall to be considered.
Before embarking upon a consideration of the
issues both of fact and law which arise upon the
merits, I must direct my attention to a number
of objections based upon points of law
and procedure advanced by Counsel for the
defendants.
What was the effect of the joinder of D3 and
D4 after issue of the writ ?
The point taken by Counsel for the defendants
was that a plaintiff cannot, by an amendment,
introduce a cause of action which arose after the
issue of the writ. [See Odgers Principles of
Pleading & Practice (22nd Edn.) 162-163]
.This was because any amendment relates back
to the date of writ and therefore any amendment
to include a subsequent cause of action cannot
relate back. [See The Supreme Court
Practice 1991 Vol. 1 p.363). The case of Chuan
Chow Maritime SA Panama v. K.S.A. S. Bulk
Sea Transport The Times 25 February 1984
noted [1983-84] 3 Litigation 214 was cited for
the proposition that any inclusion of the subsequent cause of action requires the consent of the
defendant, without such consent an amendment to include a subsequent cause of action be
allowed.
When the application for joinder by summons in
chambers (En. 62 ) was made by the plaintiffs,
28
Current Law Journal

January 1994
to add D3 and D4, on the ground that it was they

and not D1 and D2, who as developers and
contractors, were working on the plot concerned
at the material time, that is to say, on 18 March
88, Counsel for D1 and D2 did not object and an
order was made accordingly.
It was because of this that I had , at the outset

of the application to discharge the ex parte
interlocutory injunction restraining D1 and D2
their servants or agents as developers and contractors from entering the plot concerned, substituted D3 and D4 for D1 and D2, respectively,
in the order granting the interlocutory injunction though only after I had given Counsel on
both sides the opportunity of being heard on the
point. All that Counsel for the defendants then
said was The third and fourth defendants have
complied with the order, which I took to be an
unqualified admission that it was D3 and D4,
their servants or agents, who were working on
the plot concerned at the material time.
There is another matter I must refer to. Some

three days before I gave my judgment [reported
Cheng Hang Guan & Ors. v. Perumahan Farlim
(Pg) Sdn. Bhd. Ors. [1988] 3 MLJ 90] dismissing
the application for discharge of the interlocutory injunction, I had enquired from Counsel for
the defendants when was it that D3 and D4 had
replaced D1 and D2 as developers and contractors, respectively, as had been contended by
Counsel for the plaintiffs. Counsel for the defendants replied that they required the case to be
stood down to seek instructions. Upon resumption, the Court was informed by Mr.Yeoh, Counsel for the defendants, that:
the third defendants took over the rights and
liabilities of the first defendant with effect
from April 1982. The third defendants have
been registered lessees since August 1983.
The second and fourth defendants were appointed earth contractors and they remain so
up to today. The second defendants were appointed by the first defendants in December
1981. The fourth defendants were appointed
in April 1982.
Whereupon Counsel for the plaintiffs enquired

who was working on the plaintiffs plot at the
time of the alleged wrongful acts complained
about and which occurred on 18 March 1988". In
answer, Counsel for the defendants replied that
it was the third and fourth defendants who
were working there then."
Based upon the material aforesaid, it is obvious
that the cause of action against D3 and D4 arose
[1994] 1 CLJ
from the alleged wrongful acts committed by

them on 17 March 1988, that is to say, before
they were joined as defendants pursuant to the
order of court dated 21 March 1988 and so the
plaintiffs were not introducing a fresh cause of
action against D1 and D2. It is not surprising,
therefore, that when application had been
made to join D3 and D4 as defendants and the
consequential amendments made to the
amended statement of claim, Counsel for the
defendants raised no objection thereto.
But, if Counsel for the defendants is correct in
his contention, and objection had been taken in
limine, that is to say, on the hearing of the
application for leave to amend, as undoubtedly
it should have been, and the objection upheld,
the plaintiffs could have issued a fresh writ
citing D3 and D4 as defendants and then applied for consolidation of the two actions. This,
however, was not done but, instead, Counsel for
the defendants raised no objection to the application for leave to amend by joining D3 and D4
as co-defendants. The question therefore arises
whether assuming Counsel for the defendants
is correct in his contention that the joinder of D3
and D4 was legally impermissible, the objection
should be entertained at all, at this very late
stage, when perhaps, any cause of action the
plaintiffs might have against D3 and D4 would
be barred by limitation. Clearly, it would be
neither right nor fair to entertain the objection
now, and so I must rule that assuming there was
an irregularity in the order for the joinder of D3
and D4, the same had been waived by reason of
Counsel for the defendants having raised no
objection on the hearing of the application for
leave to amend.
The first preliminary objection is accordingly
overruled.
Was the order for re-amendment of the

summons in chambers dated 21 August
1991 valid?
The second preliminary objection taken by Counsel for the defendants was that the re-amendment of the statement of claim to raise the
alleged trespass on 21 August 1988 ought not to
have been allowed for the same reasons as had
been advanced in support of the first preliminary objection.
In reply, Counsel for the plaintiffs contended
that the conduct of the defendants right up to
the time of judgment was relevant to the
[1994] 1 CLJ

question whether exemplary damages ought to

be awarded and, in support the case of Drane v.
Evangelou & Ors. [1978] 2 AER 437 (where noncompliance with an injunction was taken into
account in awarding exemplary damages) was
cited.
I also note that the statement of claim as

amended, did distinguish between the conduct
of D1 and D2 on 18 June 1982, which it was said
constituted a trespass and resulted in loss to
plaintiffs, and the conduct of D3 and D4 on 17
March 1988, which it was said also constituted
a trespass and resulted in loss to the plaintiffs
My attention was also drawn to the following

time table of events:
1.4 The cause of action against D3 and D4
were included in the statement of claim
with the consent of the solicitors of all the
defendants. The sequence of events relating to this was as follows:
(a) On 21 March 1988, by a summons-inchambers dated the same day (Enclosure 62), the plaintiffs had applied to
(i) add D3 and D4 as parties and for
an order that ( ii) the plaintiffs be at
liberty to amend the writ and the
statement of claim to include D3 and
D4.
(b) There being no objection to the application by the solicitors for the defendants represented by their Counsel
Mr.Yeoh Jin Aik and Mr R.
Rajasingam, an order in terms of the
application was granted and the
matter proceeded as if the amendments had been effected.
(c) Pursuant to this order, the solicitors
for the plaintiffs then proceeded to
make amendments to the writ and
statement of claim on 25 March 1988.
This amended writ and statement of
claim, marked as Enclosure 73, was
reissued by the High Court Registry
but, only on 11 February 1989.
(d) The amended writ and statement
of claim was then served on the
Solicitors for the defendants on 13
February 1989.
(e) When the defendants Solicitors did
not file their defence, the Solicitors
for the plaintiffs by a letter dated 6
April 1989, asked them to file their
defence within 48 hours.
29
(f) By a letter dated 8 April 1989 the

defendants Solicitors replied that
they did not recall any application
having been made for the amendments in the terms set out in the
amended statement of claim.
(g) Consequently, the Solicitors for the
plaintiffs made an application by a
summons-in-chambers dated 26
May 1989 (Enclosure 76) for the
statement of claim to be amended
accordingly.
(h) The application was heard on 21 August 1989, and was not opposed by
the Solicitors for the defendants.
(i) Consequently, the amended writ and
statement of claim was issued out of
this Court on 23 August 1989 (Enclosure 78), and served on the defendants Solicitors on 30 August 1989
and the matter proceeded to trial.
In the circumstances, I consider that leave to
amend was quite properly given and so the
second objection is overruled.
If the order dated 21 August 1991 giving

the plaintiffs leave to re-amend the summons in chambers was valid, were the
requirements of Order 20 rule 9 with regard thereto complied with ?
It was further argued by way of alternative and
this was the third objection that the order
granting leave to amend by adding D3 and D4 as
defendants with consequential amendments to
the amended statement of claim (to raise the
alleged trespass by D3 and D4 on 21 August
1988) was granted on 21 August 1991 but the
requirements of O. 20 r. 9 for the implementation of the order had not been complied with
within the 14 day period stipulated therein,
with the result that the Order had lapsed and so
the re-amended defence and counterclaim issued by the Court on 23 August 1989 and served
upon the solicitors for the defendants on 30
August 1989 should be ignored.
In reply, Counsel for the plaintiffs had drawn

my attention to these facts:
Leave to re-amend the amended statement of

claim was granted by the Court on 21 August
1991 so as to allow the plaintiffs to raise the
allegation of trespass by D3 and D4 on 21
August 1988, and the re-amended statement of
claim had been filed in the Registry of this Court
30
Current Law Journal

January 1994
on 29 August 1991, - that is to say, well within

the time limited for doing so - the trial duly
proceeded on the basis that the amended statement of claim had been duly amended but the
Registry had yet to return the re-amended
statement of claim with the required endorsement of the Senior Assistant Registrar thereon.
The Solicitors for the plaintiffs did, however,
serve upon the Solicitors for the defendants an
unindorsed copy of the re-amended statement of
Claim on 29 August 1991. Clearly, the plaintiffs
could not have done anything more and such
lack of diligence as there was must be ascribed
to the registry and not the plaintiffs solicitors
and so I do not consider that there has been any
breach of O. 20, r. 9 of the Rules of High Court.
Accordingly, the alternative objection raised to

the joinder of D3 and D4 is also overruled.
The Locus Standi points
It was contended by counsel for the defendants
that upon the evidence led by plaintiffs, the suit
was bad for non-joinder; in that Cheng Lye
Hiang (PW1) ought to have been joined as a
plaintiff. In particular, it was contended that
since this was a joint claim for loss allegedly
caused to joint property in which it was said that
P1, P3 and PW1 had a vested interest, no award
could be made by the Court in respect of the
claim for losses sustained: as a result of the
events of 1988 without joining all three of them
as co-plaintiffs.
The term locus standi or standing in a court of
law means entitlement to judicial relief apart
from questions of the substantive merits and
the legal capacity of a plaintiff.
In considering the locus standi objection there
are two principles I have to keep in the forefront
of my mind. First, I am bound to proceed on the
basis that everything alleged in the statement of
claim and in the documents relied upon by the
plaintiffs is true. Secondly, the jurisdiction to
uphold a plea of no locus standi should only be
exercised very carefully in circumstances where
there is no possibility of doubt.
The authority which I should like to cite in
support of the two principles aforesaid is the
case of Hayes v. Bristol Plant Hire Ltd. & Ors.
[1957] 1 AER 685, an action by the director of a
company for a declaration that he had been
wrongfully excluded from the board, and where
a preliminary point had been taken that the
action was misconceived so that the court had no
[1994] 1 CLJ
jurisdiction to entertain it further. The following passages in the judgment of Wynn-Parry J.

would appear to be in point:
... I am bound to proceed on the basis that every
statement in the statement of claim and every
assertion in the documents referred to therein
are true ... (at p 686E).
Now again I pause to remind myself that I
am dealing with a preliminary point going to
jurisdiction. It is open to the court to stop an
action such as this in limine if, on a point being
properly taken, it thinks right to do so, and
generally speaking, if a point as to jurisdiction
is taken, it is the duty of a court to bring the
proceedings to as early an end as possible. At
the same time, it is quite clearly established
that it is a jurisdiction which should only be
used very carefully and in circumstances where
there is no possibility of doubt as to the lack
of jurisdiction (at p 688E-F).
It is with the above principles in mind that I ask

myself the question: Was the non-joinder of
PW1 as a co-plaintiff fatal to the plaintiffs
claim?
It is true that if several persons are joint owners
of any land or premises affected by trespass,
they should all, as a rule, be joined as coplaintiffs, in the action.
But, in the present case, no objection was taken
to the non- joinder of PW1 at the trial and it was
only at a very late stage that Counsel for the
defendants had in his final written submission
taken the point. O. 15, r. 6 (1) provides that
no cause or matter shall be defeated by reason
of the misjoinder or non-joinder of any party;
and the court may in any cause or matter
determine the issues and questions in dispute
so far as they affect the rights and interests of
the persons who are parties to the cause or
matter.
It is true to say, however, that this rule does not

alter the legal principles with regard to actions,
and it is still necessary to have before the court
the proper parties necessary for determining
the point at issue. [See e.g. Performing Right
Society Ltd.v. London Theatre of Varieties Ltd.
[1924] AC 1 Walter & Sullivan Ltd. v. J. Murphy
& Sons Ltd. [1955] 1 AER 843.
Now, according to the evidence adduced on
behalf of the plaintiffs, at all material times:
(a) after the death of Cheong Au Pit the plaintiffs and PW1 continued to live on the farm,
[1994] 1 CLJ

to cultivate vegetables and to rear livestock

thereon and to enjoy the income as
aforesaid.
(b) during the lifetime of Cheong Au Pit, the
plaintiffs and PW1 jointly worked on the
farm, the income derived therefrom being
divided amongst themselves.
If true, it could be reasonably inferred from the
evidence aforesaid, that P2 who had been
paying the rent and managing the farm for the
plaintiffs and PW1 was in the position of a
constructive trustee of the farm for the benefit
of herself, the other plaintiffs and of PW1.
Consequently, P2 alone could maintain the suit
to protect trust property and recover damages
and obtain other reliefs in respect of injury done
to trust property.
The submissions advanced by Counsel for the

defendants in support of this plea may conveniently be taken from his written submission
and are as follows:
6.1 It is not in dispute that:

(a) Cheong Au Pit died intestate in 1969;
(b) the tenancy of the vegetable farm was
not transferred to P1 and P2 unlike
the dwelling house 258K.
6. 2 It is however alleged that Cheong Au Pit,
just before he died, made a gift of the
vegetable farm to P1, P2, P3 and PW1
orally. The further & better particulars
alleges that the plot concerned was transferred ( see p. 31 of BP). P2 did not testify
to this fact. If a party does not testify to it
then ordinarily the court should ignore it.
It is for a party to allege and prove its
claim: secundum allegata ad probata.
6.3 It was PW1 who said so: see her evidence
on 20 August 1991 ( in the morning). She
was cross-examined: house 258K given to
P1 and P2 only but the vegetable plot was
given to 4 persons P1, P2, P3 and PW1.
Before his death no steps taken to effect
the gift (see her evidence on 24 August
1991 in the morning). There is nothing to
show that Khoo Kongsi were aware of the
death of Cheong Au Pit until September
1972 when a written request was made to

transfer dwelling house No. 258K (see
AB2 p.99).
6.4 We submit that the alleged gift is invalid
and ineffective BECAUSE
I would therefore dismiss this branch of the

locus standi objection.
Another branch of the Locus Standi objections
was that the plaintiffs have no title to the plot
concerned and so could not maintain this suit.
31
(a) it is a gift which involves the gift of an

interest in land and such requires
writing, as the law then stood in
Penang; the Statute of Frauds applied in Penang until the application
of the Contracts Act 1950 to Penang
on 1 June 1974;
See Arulanandom J's judgment that
Statute of Frauds applied in Penang;
Kok Ek Chooi v. Cheah Soon Neoh
[1982] 1 MLJ 219.
(b) even if the transaction were one of
assignment, the lack of writing renders the assignment invalid;
Section 4 (3) of the Civil Law Act 1956
requires writing; see also the position
that prevails in Singapore where an
assignment of a tenancy was held to
require a deed: VM Peer Mohamed v.
Great Eastern Life Assurance [1982]
2 MLJ 298 which was approved by
the Privy Council at [1985] 1 MLJ
329, 332 per Lord Templeman;
(c) Equity would not perfect an imperfect gift: the rule in Strong v Bird
[1969] LR 18 Eq 315 as to which see
Snell, Equity (29th Edn) pp 124-125
(1990); none of the conditions to make
an imperfect gift effective exist in this
case;
(d) the property would still remain in the
estate of Cheong Au Pit and in the
absence of letters of administration
the present plaintiffs would have no
standing to maintain any action; the
point was previously made in the
interlocutory proceedings before
Mustapha Hussein J in AB2 p 5B
(last sentence).
The submissions advanced by Counsel for the
plaintiffs in reply may also be conveniently
taken from his written submission and are as
follows:
1. Before he died Cheong Au Pit gave his

vegetable plot which included the assets on
Current Law Journal

January 1994
32
the plot and the tenancy coupled with

equity of the plot to P1, P2 , P3 and PW1.
Pursuant to this, the plaintiffs and PW1
worked the vegetable plot, used the income
to support themselves and their families,
and shared the remaining profit among
themselves. There was no condition against
sub-letting or assigning the tenancy of the
vegetable plots. The only requirement of
Khoo Kongsi appears to be that the assignee of a tenancy, if he wanted to have
himself registered as a tenant, had to appear before the Board and agree on the
terms. Cheong Au Pits gift of the vegetable
plot to the plaintiffs and PW1 had been
perfected by their possession and cultivation of the vegetable plot during Cheong Au
Pits lifetime and thereafter.
2. The Statute of Frauds has no application to
the gift of the vegetable plot to the plaintiffs
and PW1 which had been perfected while
Cheong Au Pit was still alive. This is not an
action based on any contract for the sale, or
other disposition of land, or any interest in
land. Failing to see this distinction would,
in the words of Arulanandom J. in Kok Ek
Chooi v. Cheah Soon Neoh (ibid), be"to
indulge in ostrichism.
In my view, provided always that the plaintiffs
are able to establish the essential facts relied
upon by Counsel on their behalf - and this is a
question I shall have to consider later - I agree
with Counsel as to the legal consequences which
flow from those facts and so I would overrule
this branch of the locus standi objection.
Res Judicata and Issue Estoppel

It was contended by Counsel for the defendants
that the plaintiffs claim to the portion of the plot
concerned etched black in P14 was barred by
reason of the judgment of Mustapha, J. reported
under the name of Cheng Hang Guan & Ors. v.
Perumahan Farlim (Pg) & Anor. [1983] 1 MLJ
348, at 349 col. 1 A, B.
The material facts so far as this part of the case

is concerned were these:
The plaintiffs had obtained an injunction to
restrain D1 and D2 from trespassing upon their
dwelling houses and vegetable plots. That injunction was later dissolved upon the application of the defendants therein (see the
judgment of Mustapha J.) and there was no
appeal from that decision.
Accordingly, it was contended that the dissolution of the injunction meant that the plaintiffs
had no interest in the portion of the plot concerned, etched black in P14, and so the plaintiffs claims to that portion were barred by res
judicata and issue estoppel. In support, the case
of Government of Malaysia v. Dato Chong Kok
Lim [1973] 2 MLJ 74 wherein the well known
proposition that a decision at one stage of the
proceedings is binding on the parties, not only in
subsequent proceedings between the same parties, but also at a later stage in the same
proceedings.
I regret I am unable to accede to this branch of
the submissions of Counsel for the defendants.
Self-Help
I accept the proposition, as indeed I am bound to,
by reason of the judgment of the Supreme Court
in Leong San Tong Khoo Kongsi v. Poh Swee
Siang, [1987] 2 MLJ 611 that if, but only if, the
plaintiffs are held by the Court to be trespassers
in law an issue which I shall have to consider
later in this judgment then the remedy of selfhelp would be available to D1 and D3.
[1994] 1 CLJ
In Cheng Hang Guan & Ors. v. Perumahan

Farlim (Pg) Sdn. Bhd. Ors. ( ibid) I had occasion
to consider the effect of the judgment of
Mustapha J. What I said at p. 93, Col 2, B-C was
this:
In my opinion, the order of Mustapha J.
refusing the plaintiffs the interlocutory injunction in so far as the vegetable plot was
concerned, on the ground that damages would
be an adequate remedy, was merely a prima
facie view and lacked the essential element
of finality since it is always open to the High
Court, at the final hearing, to review the
question involved and to arrive at an opposite
conclusion in the light of all the evidence, both
oral and documentary, should the circumstances so require; Accordingly, the legal effect
of the refusal of the interlocutory injunction
was simply, that at the interlocutory stage,
based on the limited material then available,
the plaintiffs were not entitled to the injunctive relief claimed.
I can think of no reason for departing from

anything I had then said and I would add, that
in any event, Mustapha J. did not decide that
the plaintiffs had no interest in the portion of
the plot concerned etched black in Exhibit P14.
Accordingly, I would overrule the pleas of res
judicata and issue estoppel.
[1994] 1 CLJ

Having disposed of the preliminary objections,

I must now embark upon a consideration of the
merits. The issues which arise as regards this
part of case, may be stated thuswise:
1. What was the area of the plot concerned
of which the plaintiffs had possession?
More particularly, whether, at all material times, the plaintiffs have been in
possession of the plot concerned comprised in Lot 2532, Mk. 13, DTL, Pulau
Pinang having an area of approximately
121,619 sq. ft. (or 2.8 acres) which is
shown and delineated in orange in the
Survey Plan, Exhibit P16?
3(a) Whether D1 and D2 had on 18 June 1982

committed trespass and created nuisance
on the portion of the plot concerned etched
black on Exhibit P14 ?
(b) Whether D3 and D4 had on 17 March
1988 committed trespass and created
nuisance on the portion, etched orange on
Exh. P14 and have been in unlawful occupation of the portion etched black on
Exhibit P14.
4(a) If the plaintiffs succeed in establishing
liability against D1 and D2 and D3 and
D4, then what is the appropriate sum to
award by way of damages?
(b) Whether the plaintiffs are entitled to
aggravated damages and/or exemplary
damages?
(c) Whether the plaintiffs are entitled to an
injunction?
(d) Whether the plaintiffs are entitled to any
other and if so what remedies?
As to Issue 1 - What was the area of the land
concerned in the possession the plaintiffs?
There was an acute conflict of evidence on this

question if the versions of the plaintiffs and the
defendants were compared.
The plaintiffs contention being that the area in
their possession was 2.8 acres or approximately
121,619 sq. ft., while the defendants version

was that the area was as little as 9000 sq. ft.
Broadly stated, the evidence relied upon by the
plaintiffs and the contentions advanced by their
Counsel were as follows:
2(a) Whether, at all material times, the plaintiffs were, both in law and in equity,
entitled to possession of the plot concerned including the houses, pig sties and
structures erected thereon?
(b) Were the Notices to Quit served upon the
plaintiffs valid in Law?
33
1. The evidence of P2 who, under cross-examination, stated that the area of her
vegetable plot was 2.8 acres.
2. The evidence of PW1 who stated that at the
time of Cheong Au Pits death in 1969, the
area in their possession was the area delineated in orange on Exhibit P16, that is,
approximately 2.8 acres.
3. Exhibit P16 is a survey plan prepared by a
qualified and competent surveyor on 10
September 1982 for use in the interlocutory proceedings in this case and although
9 years had elapsed since P16 was first
used as an exhibit in case the defendants
had not produced any plan drawn by their
surveyor contradicting or qualifying the
accuracy of Exhibit P16.
4. Khalid bin Abdul Aziz (PW9) had visited
the farm on 9 September 1982, carried out
the survey and produced Exh. P37A and
37B which show the measurements and
other particulars such as houses, pig sties,
vegetable farm, etc. These documents produced by a competent surveyor corroborate
P2 and PW1s evidence that the plaintiffs
have been in possession of nearly 2.8 acres
of land.
On the other hand, the evidence relied upon by
the defendants and the contentions of their
Counsel were as follows:
1. The plaintiffs admitted as a fact in the
proceedings before Mustapha Hussain J.
that the area let was 9, 000 sq. ft. and the
rental paid was 90 cents at 10 cents per 1,
000 sq. ft. per month. See AB2 p. 2C (Notes
of Proceedings on 21 July 1982). These
notes of proceedings (pp. 1 to 7 of AB2) were
admitted as to the truth of its contents in
this trial on 19 August 1991.
2. Independent (and unchallenged) evidence
of Khoo Peng Tee (the trustee) by his
affidavit pp. 64-68 of BA (1) and Khoo Gin
Pye by his affidavit (pp. 74 -77 of BA (1) as
to the policy of Khoo Kongsi to charge 10
cents per 1000 sq. ft. of vegetable land and
as Cheong Au Pit was paying 90 cents
for his vegetable plot the area let, with
34
Current Law Journal

January 1994
reference to the rent, is only 9,000 sq. ft.

(Neither was called as a witness at the
trial, the latter having died before the
hearing).
3. Further, the evidence shows that the vegetable plot let to Cheong Au Pit was the plot
adjoining house 258K. Since that area, as
claimed by the plaintiffs, exceeds 9,000 sq.
ft. it is clear that the area etched black in
P14 cannot be part of the land let to Cheong
Au Pit. Consequently, none of the plaintiffs
or the estate of Cheong Au Pit can lay any
claim to this area.
Counsel for the defendants attacked evidence
relied upon by the plaintiffs in these terms:
1. The admission of fact, before Mustapha
Hussain J, referred to in para 5.2 supra, is
binding on the plaintiffs and no attempt
had been made, at anytime, to withdraw or
correct this admission. It is therefore too
late to contend otherwise now.
a
(b)
c
(c)
(d)
2. An admission once made is binding on the

parties and their privies and the fact admitted need not be proved for the admission dispenses with the proof.
Note, s.17 of the Evidence Act 1950.
Field, Law of Evidence (11th Edn.,) (1990)

Vol. 2 page 1245 29 Admission of Adverse
Party it is the best piece of evidence".
Cross Evidence (6th Edn.) (1985) page
517 "Admissions (A partys statement...")
1 Ibid. 521 Vicarious Admissions) ("Admissions by those in privity ... ).
3. In accordance with this judicial admission
in open court that the plaintiffs were required, and they undertook, to produce a
surveyors plan showing the area of 9,000
sq. ft. of the vegetable land (See AB2 p. 2C).
4. The plaintiffs delivered Exhibit P16 to D1
and D2s solicitors in purported compliance with the undertaking, contrary to the
admission and undertaking P16 showed
the area to be 121,000 sq. ft.!
The defendants challenge the accuracy and
admissibility of P16 as follows:
(a) The plaintiffs placed great reliance on P16
and P14. The former came from PW8 and
PW9 whilst the latter came from PW2. The
common source of information as to
both is PW1. The veracity of the PW1,
(e)
g
(f)
h
(g)
[1994] 1 CLJ
including her own evidence on this, is very

much in doubt.
There is also a challenge to the manner in
which the measurements shown in P16
were taken. These measurements were, as
stated earlier, carried out to show the 9,
000 sq. ft was occupied. For this reason,
DW6s assistance was sought to verify the
actual area of 9,000 sq. ft. but DW6, for the
reasons set out in paragraph 7 of his Affidavit [pp. 69-73 BA (1)], was unable to
point out the area occupied. The lack of
compass points was admitted by PW8 who
also confirmed paragraph 7 [at p.71 of BA
(1)].
Despite the fact that BA( 1) pages 69-73
was filed well in advance, the plaintiffs
took no steps to verify the situation.
The plaintiffs only looked for PW8 in
September 1991 (in the middle of the trial).
The data in P16, as well as in D38 ( the field
diagram), were said to originate from the
field book. It was also based on the traverse done by Syarikat KT Wah. The accuracy of the latters traverse was not verified. All PW8 can say is that it is the
practice not to query the traverse of another surveyor. This may be professional
courtesy but it is certainly not a guarantee
of correctness. There is no supporting evidence. DW6s report (Exhibit D56 ) is otherwise .
PW8s own evidence states that without
the field book there is insufficient material
to justify the accuracy of the survey. Further in his own conclusion to P37 (the
report), he states that there are insufficient data to render the measurements
accurate. That conclusion was repudiated
by PW9, the field technician. He said there
were sufficient number of ocm points. if
that be so then it is not borne out.
There is another matter of importance:
that PW9 used a C.P. (i.e. certified plan),
which is not even mentioned in P37 - a
material omission. Further, the c.p. number is not referred to in the diagram (D38)
or even in P16. The omission is unusual.
The Field Book is missing. PW8 was never
told that his plan was being challenged
from the very inception, that is to say,
September 1982, some two weeks after the
alleged survey. Had PW8 been so told, the
field book, on which the data depends,
would have been preserved. The fault for
[1994] 1 CLJ

the loss or unavailability of the field book

must rest squarely with the plaintiffs.
(h) The plan contains no certification or authentication by PW8 except to bear his
signature. There are no contemporary
records of what the instructions were, what
information was provided to PW8 and his
staff. In the absence of these and the field
book the evidence of PW8 and PW9 as well
as the plan, exhibit P16, is highly suspect.
(a) P14 was drawn by PW2 in his office after a
visit to the site in March 1988, on the
instructions of the solicitors for the plaintiffs. He had no personal knowledge of the
contents. All the information therein were
provided by PW1, the source of whose
knowledge is yet to be proved by admissible
evidence.
(b) There is also a conflict in the evidence of
PW1 and PW2 as to the circumstances
under which and the place where and the
time when P14 was drawn. According to
PW1, P14 was drawn by PW2 independently and shown to her. P16 was made
available to PW1 without being told that
the accuracy of P16 has been chaIlenged.
(c) PW2 was unable to answer as to how and
when he observed the stream, which was
not in existence in March 1988. He was
forced to fallback on P16. Further he had no
other records of the contents in P14.
(d) PW2 had not visited the site before and he
was unable to say of his own personal
knowledge the extent of, or the kind of
cultivation on, and the items destroyed
either in 1982 or for that matter even in
1988.
It was also said that there appear to be several
inconsistent versions of the area as claimed by
the plaintiffs for example,
(a) an earlier map extracted by defendants
Surveyor Anthony Chai Wee Siong a director of D3 in charge of building work (DW6)
(see p. 5 of DAB defendants), on which he
and Ng Bock Tye (DW4) were cross-examined shows the area occupied to be far less
than shown in P16;
(b) the measurements done at the request of
the Tripartite Committee in the presence
of the representatives of the Residents
Association, assisted by PW1 (as admited
by her in cross-examination) show a lesser
area; see the plan D40 and the minutes of
35
the Tripartite Committee meeting D41 and

D42, the contents of which were proved by
DW2 and DW4; this measurement is far
less than the 100,000 sq. ft.;
(c) the measurements done in 1969 by Khoo
Kongsi show that the area was again less
than the area now claimed; the book of
measurements was tendered as ID D45; it
emanated from Khoo Kongsi; it was handed
to DW1; it was produced by DW1; being a
document of more than 20 years, its genuineness is presumed by s. 90 of the Evidence Act; the documents shouId now be
marked as D45;
It was submitted that when the measurements
were done in 1969 there was no reason for Khoo
Kongsi to misstate the true position and none
was suggested by the plaintiff; this went to show
how uncertain and unrealiable the plaintiffs
own case is on the question of the area let to
Cheong Au Pit.
Counsel for the defendants also contended for
the following conclusions on the law:
1. By occupying a larger area than was let the

said Cheong Au Pit was already a trespasser which trespass was continued by
the plaintiffs.
2. There is no question of waiver by Khoo
Kongsi as to the area occupied; the failure
to take action cannot amount to a grant of
the tenancy of the larger area occupied.
Khoo Peng Tee (the trustee) has explained
in his affidavit the reasons why action was
or could not be taken. There is no plea of any
waiver in the pleadings. The plaintiffs had
filed no reply to the defence of D1 which
squarely raised this issue.
3. The evidence of PW1 as to the area let to
Cheong Au Pit is wholly hearsay and inadmissible; she has no personal knowledge
whatever.
In reply, Counsel for the plaintiffs submitted as
follows:
1. The defendants have not produced any

evidence of the alleged policy of Khoo
Kongsi to charge 10 cent per 1,000 sq. ft.
of vegetable land. DW3, Secretary of Khoo
Kongsi, could not produce any records to
substantiate this claim although he had
looked at all the minutes of Khoo Kongsi
either by himself or with the assistance of
another person. All he could produce was
36
Current Law Journal

January 1994
a notice issued in 1941. He heard of this
policy from old trustees only in 1984
during Poh Swee Siangs case. He does
not know of even one farm in Thean Teik
Estate where rent is collected at the rate
of 10 cent per 1,000 sq. ft.
2. Exhibit D48, the minutes of Khoo Kongsi,

clearly shows that there was no such
policy. Each application for renting vegetable land was considered on its own
merits by the Board who then fixed the
rental and other terms of the tenancy.
Cheong Au Pits tenancy must have commenced well before 1938 and that could
explain the low rental paid by him.
2.13 If the area rented to Cheong Au Pit was

9,000 sq. ft., as alleged by the plaintiffs,
then Khoo Kongsi would have taken action against him for occupying 121,000 sq.
ft. but no such action was ever taken
although according to ID 45 (said to be
Khoo Kongsis Book of Survey, which has
not been proved) Cheong Au Pit was
alleged to be occupying 49, 000 sq. ft. in
1969. Until D1 came into the picture and
the alleged notices of termination were
issued, Khoo Kongsi had been accepting
rent from P2 for the area in the possession
of the plaintiffs. Khoo Kongsi would not
tolerate even the chopping of a branch of
a cempedak tree. Would they permit a
tenant to occupy an area 13 times the size
rented by him? The only reasonable inference from Khoo Kongsis conduct is that
Cheong Au Pit was in possession of 121,000
sq. ft. of land with their consent, paying a
rental of 90 cents.
As regards the contention of Counsel for
the defendants that the area occupied by
the plaintiffs is only 49,238 sq. ft. having
regard to the measurements taken by
David Tan Yok Seng (DW2), recorded in
D40, and not 2.8 acres as claimed by the
plaintiffs, Counsel for the plaintiff submitted as follows:
(a) D40 was drawn by David Tan, an employee of the defendants, who has no
training experience or competence in survey work. The area was calculated by
DW1, a highly interested party, in the
absence of the plaintiffs. DW1 also has no
training experience or competence in survey work. The plaintiffs as soon as they
came to know of the alleged results of the
[1994] 1 CLJ
survey, objected to the figures (Exhibit

D7), but D3 did not take any steps to get
an accurate survey done by a qualified
surveyor.
(b) The area in the possession of the plaintiffs has been hotly disputed since: July,
1982. Therefore, why is it that neither D1
nor D3, who are big developers, carried
out an independent survey so as to ascertain the area instead of asking DW6, a
qualified surveyor to draw squares and
rectangles on the survey plan prepared by
Datuk Ayob, Exhibit P16. They had an
opportunity to verify the truth of the
plaintiffs claim and the accuracy of Exhibit P16 but they chose not to take advantage of it. Why ? The only reasonable
inference is that they did not want their
own surveyor to confirm the claim of the
plaintiffs and the accuracy of Exhibit P16.
As regards the contention of Counsel for
the defendants that the plaintiffs admitted before Mustapha Hussain J that the
area let was only 9,000 sq. ft. and that the
rental was 10 cents per 1,000 sq. ft.,
Counsel for the plaintiffs submitted as
follows:
(a) The notes of Mustapha Hussain J are
brief and incomplete. In his submission
on 29 September 1982 (AB2 para 2 letter
F) the plaintiffs counsel, Mr. Tan relied
on the affidavit of P1 and P2 which clearly
state that they were occupying about 3
acres of land (BA1 p. 47 para 4). If he had
admitted that the area occupied by the
plaintiffs was only 9,000 sq. ft., why did
he submit otherwise at the hearing of his
application?
(b) the application for the injunction proceeded on the basis that there was a
dispute as to the area rented by the
plaintiffs and the defendants Counsel
submitted that Khoo Kongsi could not
have rented out the area claimed by the
plaintiffs because of the alleged policy of
Khoo Kongsi and the by-laws of the local
authority on this. Therefore, where is the
judicial admission of the plaintiffs as
submitted by the defendants Counsel?
( See BA1 p. 17 para 15, 16)
( BA1 p. 71 para 5, 13, 14, 15, 16)
(AB2 p. 4 letter F)
(AB2 p. 5 letter F)
[1994] 1 CLJ

(c) If there was such an admission, then why

did the defendants call witnesses to testify on the area in the possession of the
plaintiffs?
As regards the contention of Counsel for the
defendants that the area etched black on Exh.
P14 cannot be part of land let to Cheong Au Pit,
Counsel for the plaintiffs submitted that this
contention was open to the following criticisms:
(a) Exhibit D40 clearly shows the area etched
black on Exhibit P14 to be part of the
plaintiffs farm.
(b) David Tan (DW2 ) testified that the said
area was part of plaintiffs farm.
(c) If the said area was not part of plaintiffs
farm, then why negotiate (as claimed by
the defendants but denied by the plaintiffs)
with PW1 as agent of the plaintiffs.
After careful consideration, I uphold the submissions of Counsel for the plaintiffs because,
with respect, I did not consider that Counsel for
the defendants had any real answer to the reply
of Counsel for the plaintiffs, so far as this part
of the case is concerned.
It follows that I find as a fact that the area in the
possession of the plaintiffs was at all material
times to this suit 2.8 acres or approximately
121,619 sq. ft.
As to Issue 2 - What Notice to Quit was
necessary to determine to the plaintiffs
tenancies of the farm and the two dwelling
houses assuming such tenancies were not
coupled with an Equity?
(A) the period of the notice to quit was insufficient; and

(B) that Khoo Kah Seng (DW3) a trustee of
Khoo Kongsi had no authority to instruct
Khoo Kongsis Solicitors M/s. Shearn
Delemore & Co., to issue the notices to
quit.
As to (A), namely, the sufficiency or otherwise of
the Notice to Quit, the rival submissions of the
parties must now be considered.
The gist of the submissions of Counsel for the

defendants regarding this part of the case was
that the period of one months notice was sufficient to terminate the tenancy of both the farm
and the two dwelling houses because:
(1) the conditions appearing in the rent
receipts provided for one months notice and
a few of these receipts had been produced
by the plaintiffs themselves when applying for interlocutory injunctions before
Mustapha J;
(2) the surrounding circumstances, especially the fact that rent was paid by reference
to the month; and the general notice by the
trustees of Khoo Kongsi dated 1 March 1941
in Chinese with an English translation which
said this:
NOTICE
Notice is hereby given that owners of houses

built in Sin Kang Plantation not allowed to
charge, mortgage, transfer, buy, sell, exchange,
remove, and make repairs, alterations or additions to their houses, whether new or old,
without the previous consent of the Kongsi in
writing.
Should they be found to infringe any of the

above conditions, the Kongsi shall have the
right, after three months notice shall have
been given to the owners, to proceed with the
demolition of the said house at the expense of
the owners and no compensation, damage
claim whatsoever will be entertained or paid
by the Kongsi.
The Trustees,
Leong San long Khoo Kongsi
Khoo Kongsi gave one months notice to quit in

respect of both the dwelling houses and the farm
after the acts of alleged trespass on 18 June
1982.
The arguments advanced by Counsel for the
plaintiffs in respect of these notices to quit were
twofold:
37
Penang 1 March 1941,
showed the temporary nature of the tenancies

and some of these were produced at the trial of
Poh Swee Siang on 30 June 1982 which went to
confirm their genuiness and authenticity.
As to (1), the gist of the submissions of Counsel

for the plaintiffs was that "the conditions had
been introduced for the first time on receipts
issued to P2 on 31 October 1981, that is less than
a year before the tenancies were terminated and
decades after the plaintiffs and their ancestors
had been staying on the plot concerned, and so
had no contratual force.
It was also argued that the conditions were in

English, which the plaintiffs who were illiterate
38
Current Law Journal

January 1994
farmers did not understand and so it would be

wrong to infer that the plaintiffs had by conduct
accepted them as such. Accordingly, it was said
that there was no material upon which it could
be said that the plaintiffs had by their conduct
accepted the conditions in accordance with the
principles enunciated by Lim Beng Choon, J. in
Mohd. Ismail v. Lim Sok Cheng [1988] 1 CLJ
335.
Now, a receipt is, of course, in law, only evidence
of the payment of a sum of money; it does not
consitute a contract nor can it have the effect of
an estoppel. The true intention of the parties
must be established by evidence at the trial. It
is not difficult to cite an anthology of cases for
these principles. My choice is Lee v. Lancashire
Yorkshire Railway Co. [1871] LR 6 Ch App 534,
535 Hockle v. London County Council [1910] 26
TLR 580 and Oliver v. Nautilus Steam Shipping
Co. [1903] 2 KB 639, 648.
Having said that, I accept that the inclusion of
the inscription in the receipt stating that the
period of one months notice would be sufficient
to terminate the tenancy might, in certain circumstances, amount to a stipulation imposed by
a landlord upon his tenant; see for example,
Loke Yung Hong v. Shanghai Furniture Co. &
Anor. [1948] MLJ 136, CA at 140 where Pretheroe
Ag, CJ said this:
Now, what was the legal effect of including
those words in the receipt? I do not think that
they can be regarded as being a clause in the
contract to which the tenant agreed: rather I
think they were a stipulation imposed by the
landlord upon the tenant. it is true that neither
the word condition nor the word stipulation
appears, but this fact of itself, will not prevent
the prohibition from being a condition (Henniker
v. Watt). Evidence was given at the trial that
the appellant has those words printed on every
receipt he gives for rent or for any deposit made
by a prospective tenant: that this is the common practice of landlords in Kuala Lumpur
and finally, as I have already stated, that the
first respondents knew that the effect of the
words was to prohibit any assignment by
them. In my opinion, therefore, these words
define an event which was intended to end a
state of things which, but for its happening,
would have continued, and therefore they
constitute a condition.
First of all, it would be convenient: to reproduce

the conditions appearing on the reverse of the
rent receipts dated 31 October 1981 (pp. 9/12
AB1) in respect of the vegetable lands and the
dwelling houses.
[1994] 1 CLJ
In respect of the vegetable lands, the conditions

were as follows:
1. This lease is optional to both parties, i.e. the
Land-owners and vegetable gardeners
(serving as ground tenant) carrying one
monthss Notice from either side for its
termination.
2. Upon termination of lease, the vegetable gardeners hold the privilege to extend the lease
up to the time when the last cultivated crops
are harvested.
3. No party is bound to pay any claim/ compensation in kind for the termination of lease.
4. The vegetable gardeners will maintain the
land in vacant condition at all times and will
refrain making construction of any erections
altogether on the land.
5. If no cultivation of vegetables is made within
one months period and weeds are allowed to
grow in place, the land-owners hold the right
to cancel the lease forthwith without any
written warning to the vegetable gardeners.
In respect of the dwelling houses, the conditions

were as follows:
1. Rent collected is for site of house only.

2. No ex-gratia payment will be made when site
is required by our Kongsi.
3. Notice is hereby given that all owners of
houses, buildings, sheds etc erected in Sin
Kang Estate are not permitted to repair or
make alterations, extensions, enclosures,
transfer ownership, change attap roof, corrugated iron roof, asbestos roof, pigstys,
poultry pens, including the building of new
houses etc., unless prior permission in writing has been obtained from the Trustees of
the Khoo Kongsi.
Should any ground tenant be found to have
infringed any of the above conditions, the
Kongsi shall have the right to demolish any
building etc. at the expense of the owners and
no compensation or claims will be entertained by the Kongsi.
In the present case, however, apart from the

testimony of Khoo Kah Seng (DW3) a trustee of
Khoo Kongsi, there is no evidence that the
conditions appearing in the rent receipts whether
in respect of vegetable lands or the dwelling
houses had been introduced from the inception
of the tenancies nor is there anything to show
that the plaintiffs or their ancestors who had no
knowledge of the English language could be said
to have accepted the conditions. (See e.g.
Balwant Singh v. Tong Lam & Co. [1963] MLJ
33, per Rose, CJ at p 34 col 1 G)
Counsel for the defendants did point out that
this witness had testified that the receipts
[1994] 1 CLJ

produced in Court bearing the condition concerned formed part of receipts previously used,
omitted for a while by mistake and then reinstated. It was suggested that if DW3s testimony on this point were untrue, the plaintiffs
would have been expected to adduce evidence of
past receipts by way of rebuttal.
On the other hand, Counsel for the plaintiffs,
drew my attention to the fact that DW3 had
admitted under cross examination that the conditions on the receipt were endorsed thereon
only after 1976 but later qualified that by saying
that the conditions were not new and had been
endorsed on earlier receipts but that when
challenged to produce duplicates or counterfoils
of receipts issued prior to 31 October 1981 to P2
with the conditions endorsed thereon to support
his assertion, was unable to produce even a
single one. Upon then being reminded about his
testimony in Poh Swee Siangs case, DW3 finally admitted that the conditions were indorsed
on receipts only after 1976. And, in the case of
the plaintiffs, DW3 admitted that the conditions had been endorsed on the receipts issued
to them only since 31 October 1981 (See AB1
p. 9).
It was emphasised that although the defendants had produced the old Khoo Kongsi Notice
dated 1 March 1941 (DAB p. 26) they had
studiously refrained from producing even a
single duplicate or counterfoil of receipt bearing
the condition issued to the plaintiffs before 31
October 1981. Similarly, it was emphasised
that although the defendant had produced documents (Ex D11 and 12) containing condition
relating to tenancies of houses, they had not
produced even a single document (whether Board
minutes or notices) where the alleged conditions
of tenancy of vegetable lands were recorded.
Even if Counsel for the defendants evaluation of
DW3s testimony were accepted, it is not at all
clear as to what DW3s source of knowledge was
as to when the conditions appearing in the
receipts were first introduced; it was not at all
clear whether he had personal knowledge of
these matters or even whether these alleged
events occurred while he was a trustee. It looks
very much as though his testimony regarding
these alleged events was derived from information provided to him by others in which case it
would be worthless as evidence being purely
hearsay. Certainly, if what he said were true, I
would have expected the defendants to have
adduced in evidence counterfoils or duplicates
39
of earlier receipts by way of corroboration. Khoo

Kongsi was an association with many members
and I would have expected it to have kept such
records. It is true that neither did the plaintiffs
produce rent receipts issued by Khoo Kongsi
prior to 1981 but, it must be recognised, that in
contrast to Khoo Kongsi they are illiterate farmers who might not have appreciated the importance of keeping old receipts.
But, more importantly, the onus of proving that
the conditions on the receipt had contractual
force was upon the defendants who were relying
upon that condition and not upon the plaintiffs
to prove converse. No adverse inference may
therefore be drawn against the plaintiffs for this
omission even assuming, for the sake of argument, such old receipts were available.
I must also add that the mere fact that on the
hearing of their application for an interlocutory
injunction before Mustapha Hussein J. the plaintiffs had themselves used the rent receipts
bearing the conditions aforesaid, as evidence
does not in any way debar them from contending
at the final hearing that those conditions are
invalid in law. The plaintiffs never relied upon
the conditions on the rent receipts and, indeed,
during the interlocutory proceedings, the plaintiffs contention was that their tenancies were
coupled with an equity while the defendants
contention was that the plaintiffs tenancy was
a mere monthly tenancy which had been determined by one months notice to quit, and that
thereafter they continued in occupation as
trespassers.
Before this Court, the parties have persisted in
those contentions. I therefore fail to see how it
could be said that whereas at the interlocutory
stage the plaintiffs had accepted the validity of
the alleged conditions they had, at the final
hearing, changed their tune. The plaintiffs have
been consistent in the legal position they have
taken both at the interlocutory stage and at the
final hearing. I regret, therefore, that I cannot
agree with the submission of Counsel for the
defendants regarding this part of the case.
In the circumstances, I find that the conditions
appearing in the rent receipts is devoid of legal
effect and must therefore be disregarded in
considering the question of the sufficiency or
otherwise of the notice to quit.
As to (2), the gist of the submission of Counsel
for the defendants was that any tenancy which
40
Current Law Journal

January 1994
is void for want of registration would only take

effect as a monthly tenancy where, as here, rent
is paid by reference to the month. In support the
Federal Court decision in Lee Ah Low v Cheong
Lep Keen [1970] 1 MLJ 7 (Ali, FJ, Suffian FJ,
Ong CJ) (dissenting) was cited. He also relied on
the minutes of Khoo Kongsi (P48, p. 5) which
indicated that even tenancies of Khoo clansmen
were terminable on one months notice as well
as the testimony of a trustee of Khoo Kongsi,
Khoo Kah Seng (DW3), that land could be
repossessed by Khoo Kongsi at any time.
On the other hand, the gist of the submission of
Counsel for the plaintiffs was that although rent
had been paid on a monthly basis, it did necessarily follow that the tenancies could be determined by a months notice. In order to determine
the appropriate period of the notice to quit - and
this was a question of fact - regard had to be had
to the surrounding circumstances of each case
and not just the mode of payment of rent. In
support, the cases of Syed Mohd Alsagoff v.
Max Behr [1883] 1 Kyshe 637, Tay Boon Huat
v. Kulsam Bee [1914] SSLR 51; A.L.M.
Muthukaruppan Chettiar v. Haji Ibrahim [1941]
1 MLJ 124 were cited.
In Syed Mohd. Alsagoff v. Max Behr, the Court
held
Whether a tenant, who holds for a term of
years, and after the expiration of the lease
continues to do so, paying rent for his holding,
is a tenant from year to year otherwise, is a
question of fact to be gathered from the
circumstances; but ought to be such a tenant
(sic) as is and fair between the parties. The
leaning of authorities is, however, in favour of
the presumption of the tenancy being from
year to year; and the reason for this founded
mainly on common sense and justice. Neither
the practice in his Colony to let from month to
month, nor the fact that by the former lease
rent is reserved not by the year, but by the
month, rebuts the presumption.
In Tay Boon Huat v. Kulsam Bee, the Court held

that four months notice would be reasonable for
the determination of the tenancy of a market
garden. The tenant had been in occupation of the
land for about three years and was paying rent
on a monthly basis.
reasonable in all the circumstances and the

same principle should be applied here.
Counsel for the plaintiffs contended that having

regard to the above authorities and the circumstances of the case, 1 years notice would be
reasonable to determine the tenancies. Counsel
suggested that no distinction should be made
between the period required for determining
the tenancies of the dwelling houses and the
tenancies of the farm because, on the facts, the
two tenancies were interlinked and for a common purpose, that is for the livelihood of Cheong
Au Pit and his family.
I note that the majority judgment in Lee Ah Low
v. Cheong Lip Kien (supra) was considerably
watered down by the Federal Court in Yong
Tong Hon. v. Siew Soon Wah & Ors. [1971] 2
MLJ 105 (Ong CJ, Suffian and Gill FJJ). At
p. 107 col 1 C to E Ong CJ speaking for the
Federal Court, said this:
Every case must, of course, be decided according to its peculiar facts. The distinction
must be drawn between cases where the tenant can resist his landlords claim on equitable
grounds and others where he has no such
grounds. An example is Lee Ah Low v . Cheong
Lip Kien, a recent decision of this court. There
the tenant was given a tenancy for 80 years
during which period the landlord agreed not
to increase the rent unless the assessment
rate was raised by the Municipality and the
tenant was at liberty to use the premises for
carrying on any type of business. The monthly
rent was RM100 and the tenant was given a
months notice to quit. No equity had been
created in his favour, as in Inwards v. Baker, by
his going into possession. Accordingly the sole
question to be determined was whether the
premises were held under a yearIy or monthly
tenancy by reason of the lease being void for
non-registration. That case was not as fully
argued as it might have been, nor were the
cases cited which have been brought now to
our attention and carefully distinguished.
The ratio decidendi, therefore, should not, in
my view, be regarded as a binding precedent
for all cases where premises are let for a term
of years at a monthly rent under a lease void
for non-registration.
It will be recalled Suffian FJ (as he then was)

was a party to the decision in both Lee Ah Low
and Yong Tong Hong and must therefore be
taken to have concurred in the watering down of
the majority judgment in Lee Ah Low.
In A. L. M.M. Muthukaruppan Chettiar v. Haji

Ibrahim, Mc Elwaine CJ said this at p. 126:
The principle of the English law in such cases
as monthly tenancies is that apart from
agreement as to notice, the notice must be
[1994] 1 CLJ
In Adler v. Blackman [1953] 1 QB 146 two

principles emerge; namely, first, as pointed out
[1994] 1 CLJ

by Sommerville at p. 148, the presumption as to

the nature of the tenancy on holding over is a
rebuttable presumption; secondly, as pointed
out by Jenkins LJ at p. 152:
what one is seeking here is the intention to be
imputed to the parties from the fact that the
tenant has remained in occupation with the
consent of the landlord and has paid rent,
after the expiration of the term of the original letting. As I have said, I think at highest
in favour of the tenant the implication here,
so far as it is based simply on those bare facts
is equivocal owing to the absence of any
reservation of rent expressed as an annual
sum. It follows, in my view, that other evidence
may be resorted to for the purpose of ascertaining what their true intention was.
Clearly, while the mode of payment of rent is an

important factor in determining the question of
the sufficiency of the period of a notice to quit it
is not necessarily a decisive factor; other
evidence (if available) must therefore also be
thrown into the scales and weighed.
To return to the case of Lee Ah Low, it appears
to me that that case is distinguishable from the
present case on the ground that there, unlike
here, the crucial issue revolved around a question of construction of a written tenancy agreement. As Ali, FJ who delivered the majority
judgment of the Federal Court pointed out at
p. 11 col 1 et seq:
The answer to the first ground of appeal is
that so far as the main question before the trial
court was concerned with the validity or otherwise of the notice to quit it was clearly a
question of law which fell to be decided in
accordance with established legal principles
acceptable to the courts in this country. The
manner of payment of rent has always been the
basis of consideration in the formulation of the
principle stated in the English cases, which
undoubtedly led the Judge to come to the
conclusion as he did in this case. If the trial
court had any discretion in the matter there
might be ground for saying that the factors
referred to by the appellant would be relevant
for consideration. But this is not a case where
the court has to exercise a discretionary power
but to construe the effect of the relevant term
of the written agreement.
It follows that in the present case there being no

written tenancy agreement to construe in considering the question what was the nature of the
tenancies of the farm and the two dwelling
houses which the plaintiffs held of Khoo Kongsi
41
and, more particularly, what notice to quit was

necessary to determine those tenancies, assuming such tenancies were not coupled with an
equity, I had to take into account not just the
mode of payment of the rent but also other
material factors, for example the conduct and
intention of the parties, the contemplated user
of the subject matter of the tenancies and other
relevant circumstances of the case as a whole. In
other words, I have a discretion which, of course,
has to be exercised judicially.
According to Counsel for the plaintiffs the material circumstances which I have to take into
consideration are these and here I would quote
from his written submission: at p. 31 para 3.13
to p. 32: para 1.
(a) Cheong Au Pit and his family members are
pioneer settlers who, through their own
industry and initiative, have transformed
a swampy jungle into a productive vegetable farm. Three generations have lived
and worked the plot for their subsistence.
This fact alone leads to the inevitable inference that the intention of the parties was
that Cheong Au Pits tenancy was not a
monthly tenancy. If it was a monthly tenancy it is highly unlikely that Cheong Au
Pit would have invested so much labour
and money in developing the land and
building his home there.
Cheong Au Pits position cannot be compared with vegetable farmers who cultivate vegetable on the land of another with
licence for a period of years. To Cheong Au
Pit and his family, the farm has been their
home and their source of livelihood for
generations. Compare Alsagoffs case, where
a tenant holding over after the expiry of the
lease for a mere term of years was held to
be a tenant from year to year.
(b) Cheong Au Pit or the plaintiffs did not
breach any of the regulations of Khoo
Kongsi.
(c) Khoo Kongsi practice was to allow the
family of deceased tenants to continue
farming on condition they paid rent.
(d) There was no condition for determination
of both the house and vegetable tenancy by
a month's notice . The unilateral introduction by Khoo Kongsi only after 1976 clearly
shows that the tenancy of the plaintiffs
were not monthly tenancy.
42
Current Law Journal

January 1994
According to Counsel for the defendants, apart

from the fact that rent was paid by reference to
the month - and this was a matter of prime
importance - the minutes of Khoo Kongsi (P48
p. 5 ) indicated that even the tenancies of Khoo
clansmen could be determined by one months
notice and there was also the testimony of a
trustee of Khoo Kongsi, Khoo Kah Seng (DW3)
that land could be repossessed by Khoo Kongsi
at any time.
There is, in my view, neither law nor custom
which assists me in deciding what is a sufficient
notice for the determination of the tenancies of
the farm and the dwelling houses. So I must, in
the exercise of my discretion, decide what is a
reasonable notice regard being had to the particular circumstances of this case. This calls for
a balancing exercise. In Doe d. Martin v. Watts
[1789] 7 TR 83 Lord Kenyon said that:
it would be extremely unjust that a tenant
who occupies land should after he has sown
it, be turned out of possession by an ejectment
without any notice:
And it was in order to avoid so unjust a
measure that so long ago as the time of the
Year Books it was held that a general
occupation was an occupation from year to
year, and that the tenant could not be
turned out of possession without reasonable notice.
Adopting that approach to the circumstances of

the present case, I do not consider that one
months notice would be either right or just as
constituting reasonable notice, whether in respect of the vegetable land (the farm) or the
dwelling houses. In this context, I agree with the
submission of Counsel for the plaintiffs that
there is no distinction in principle between the
vegetable land (the farm) and the dwelling
houses in so far as the period of the notice to quit
is concerned because the two tenancies were
interlinked and had a commom purpose, namely,
the livelihood of Cheong Au Pit and his family.
Having said that however, I am not prepared to
go all the way with Counsel for the plaintiffs
that the appropriate period of the notice to quit
in this case should be one year. I say so because,
as was rightly pointed out by Earnshaw J. in Tay
Boon Huat v. Kulsam ( ibid) at p. 54 paras 6 and
7, whilst in England there is for most crops only
one period of growth, that is to say, during the
spring and the summer, in this part of the world
we have a perpetual summer and, so far as
[1994] 1 CLJ
market gardens are concerned, it is possible

that many vegetables and some fruits can be
grown more than once a year, if not all the year
round. Even if the tenancies were regarded as
tenancies from year to year, six months notice
would be sufficient to terminate a tenancy of
that sort. Upon the evidence, however, I do not
consider that I can infer a tenancy from year to
year.
It will be recalled that the general notice by
Khoo Kongsi dated 1 March 1941, (reproduced
above) provides for the giving of three months
notice in the event of a breach of the conditions
specified therein by the owners of houses. Even
if there were evidence that such a notice had
been duly sent and received by owners of the
houses concerned (and there was no such evidence), I fail to see how this assists the defendants bearing in mind that Cheong Au Pit and
his ancestors had been in occupation of the plot
concerned long before that. In any event, the
stipulation of 3 months notice does not assist
the defendants.
I might as well interpolate to add, that I have not
overlooked the submission of Counsel for the
defendants based on the minutes P48 p. 5. These
minutes purport to confirm events at a meeting
of the Khoo Kongsis board held on 18 April 1950
and show that it was the policy of Khoo Kongsi
to treat tenancies of farmland as transferable
subject to the intending transferee appearing
before the Kongsi to confirm the rental payable.
Ex D9 - a translation of excerpts from the
Minutes of Board Meetings of Khoo Kongsi
(1959) - appears to reinforce that view.
It is true that the minutes P48 p. 5 indicate that
the tenancies of Khoo clansmen were terminable on one months notice but these minutes
relate to a meeting held on 18 April 1950, and
would therefore be evidence of the general practice of Khoo Kongsi at that time only. In other
words, it could not have the effect of taking away
rights acquired by Cheong Au Pit long before
such date.
I had visited the locus in quo accompanied by
Counsel on both sides and bearing in mind the
purpose of the lettings in this case and having
given the fullest consideration to the submissions advanced by Counsel, I consider that three
months notice would be reasonable for the determination of the tenancies of the farm and the
two houses as this would afford the plaintiffs
[1994] 1 CLJ

sufficient time within which to harvest their

crops and to yield vacant possession of the plot
concerned. In this respect, I see no reason to
distinguish between the farm and the houses for
the reasons stated.
It follows, therefore, that the notices to quit of
one months duration issued by the Solicitors for
Khoo Kongsi hereinbefore referred to, were not
valid and therefore ineffective in law to determine the tenancies o f the vegetable land (the
farm) and the two dwelling houses.
On this ground alone, the plaintiffs are entitled
to remain in possession of the two dwelling
houses and the vegetable land (the farm) and so
D3s counterclaim for possession thereof must
be dismissed with costs.
(1) DW3 had himself testified that it was the

Board of Khoo Kongsi who had the authority to decide to grant or to terminate
tenancies and that when this happened a
record would be made of it in the form of a
minute in the appropriate Minute Book.
(2) The evidence disclosed that the Board had
not made a decision to terminate the tenancies of the plaintiff but that DW3 had, off
his own bat, so to speak, instructed solicitors to issue the notices to quit to the
plaintiffs in respect of the dwelling houses
and the vegetable land (the farm).
(3) There was no provision in the joint venture
agreement (ABl pp. 31-48) empowering
DW. 3 to terminate the tenancies of tenants of Khoo Kongsi.
The submissions of Counsel for the plaintiffs
regarding this part of the case are attractive, but
it overlooks the cogent fact that assuming for
the sake of argument that DW3 had exceeded
his authority as alleged, there is ample evidence
that, Khoo Kongsi had ratified the act of DW3 in
instructing Solicitors to issue the notice to quit.
This branch of Counsel for the plaintiffs objections therefore fails.
Was service of the notice to quit effective

in law?
It was anticipated by Counsel for the defendants
that a separate objection might be taken by
Counsel for the plaintiffs that the notice to quit
dated 20 July 1982 having been addressed to the
deceased Cheong Au Pit was for that reason
invalid. In the event, however, Counsel for the
plaintiff did not take the point.
However, as the point might be taken as a new
point should there be an appeal from my decision. I think I should deal with it.
As to (B) - Was DW3 authorised to instruct

solicitors to issue notice to quit?
The gist of the submission of Counsel for the
plaintiff was that DW3 in instructing the Solicitors of Khoo Kongsi to issue the notice to quit
had exceeded his authority and that therefore
the notices to quit were invalid. In support,
my attention was drawn to the following
matters:
43
There is no dispute that the notices to quit had

been received by the children of Cheong Au Pit
who were in occupation of the farm and there is
authority for saying that notices to quit are
validly served if left at the premises. [See Lim
Kien Mok v. Beavan [1963] 29 MLJ 284. When,
therefore, the notice to quit was received by the
occupants it was received as agents for and on
behalf of the Official Administrator. [See Teck
Seng v. William Eu Keng Yuet [1980] 2 MLJ
115; Lai Seng Fook v. Tang Kong Low [1978] 1
MLJ 138].
In any event, I agree with the submission of
Counsel for the defendants that any defect with
regard to the notice to quit dated 20 July 1982
was repaired by the second notice to quit dated
28 August 1982 which was addressed to P1 and
P2 as the representatives of the Estate of
Cheong Au Pit.
Was dwelling house No. 258K subject to
the Control of Rent Act 1966?
It was contended by Counsel for the plaintiffs
that as the dwelling house 258K had been
completed by Cheong Au Pit prior to 31
January 1948, it was subject to the Control of
Rent Act 1966.
But can a ground tenant be a protected tenant
having regard to Mok Deng Chee v. Yap See
Hooi [1981] 2 MLJ 321,323 1 and Muniandy v.
Muhammad Abdul Kadir [1989] 2 MLJ 416,
417 E-F.
I agree with Counsel for plaintiff that the passages relied on by Counsel for the defenants in
the above mentioned cases, are obiter dicta and
contrary to the ratio decidendi of Ong J. (as he
then was) in Nair v. Chidambaram [1961] 27
MLJ 264, which was not cited to or by the Court
in Mok Deng Chee and Muniandy.
44
Current Law Journal

January 1994
The defendants did not attempt to satisfy the

requirements of s. 16(1) of the Control of Rent
Act 1966, and so, this Court has no jurisdiction
to make an order for possession in respect of
dwelling house No. 258K.
In any event, therefore, the defendants claim
for possession of the dwelling house 258K must,
on this ground alone, be dismissed.
As to Issue 3 - Did there arise in the plaintiffs favour an equity or equitable estoppel protecting their occupation of the plot
concerned?
If I am wrong in the view I take regarding issue
2, the next question I have to consider is whether
the plaintiffs occupation of the plot concerned is
protected by an equity or equitable estoppel?
It will be recalled that the case for the plaintiffs
regarding this issue had already been outlined
earlier on in this judgment; any repetition would
be tedious and unnecessary. So, without further
ado, I shall proceed to make certain essential
findings pertinent to this part of the case.
I am satisfied, upon the evidence before me, that
the alleged promises or assurances had been
made by Khoo Kongsi first, to Cheong Au Pit,
these promises or assurance being that so long
as he continued to pay ground rent he could stay
and cultivate the vegetable land as long as he
wanted, that Cheong Au Pit told his daughter P2
of the same and, relying on the same he and his
family had converted what was once a swampy
jungle land into a productive farm. He also built
dwelling house No. 258K on the vegetable land
and this I accept was in existence even before 15
December 1938 - that being the date of birth of
P2. In addition, in 1963, Cheong Au Pit also built
dwelling house 258H on the vegetable land with
the consent of Khoo Kongsi and had it registered
in the records of Khoo Kongsi in the name of P2.
In my opinion, Cheong Au Pit would hardly have
done these acts which involved unusual exertion and considerable expense unless those promises and assurances had in fact been made.
Similarly, I accept the testimony of P2 that after
the death of Cheong Au Pit in 1963, she spent
RM1, 500 in providing for dwelling house 259H.
I also accept the testimony of P2 that sometime
in 1972, the visiting trustee of Khoo Kongsi had
told P2 that it was not necessary to change the
tenancy of the vegetable land into her name and
that she could continue planting vegetables as
[1994] 1 CLJ
long as she wished provided she paid rent and

that relying upon this assurance, the plaintiffs
had invested money in installing a sprinkler
system. In my opinion, the plaintiffs would
hardly have incurred such substantial expenditure unless the visiting trustee had given the
promise or assurance. Certainly, they would not
have done so if they thought that all they had
was a monthly tenancy terminable on just one
months notice.
Quite apart from the conduct of Cheong Au Pit
and the plaintiffs following the promises and
assurances given by Khoo Kongsi to which I
have just adverted, there was also other evidence which was wholly consistent with these
promises or assurances having been made. I
refer to the testimony of Khoo Kah Seng (DW3)
a trustee of Khoo Kongsi who when asked what
Khoo Kongsi would do when a tenant of vegetable land dies, replied The tenancy will continue for the benefit of the family. And when
the matter was probed further, and he was
asked:
Q. So long as they continued to pay rents, they
can continue farming?
he replied:
A. Yes.
Having regard to the evidence of Khoo Kah Seng

himself, regarding the practice of Khoo Kongsi
when a tenant of vegetable land died, there is
thus no escape from the conclusion that the
tenancies held by Cheong Au Pit of Khoo Kongsi
was not just for his benefit but also for the
benefit of his family, and that these tenancies
could not have been mere monthly tenancies.
I therefore have no hesitation in agreeing with
the submission of Counsel for the plaintiffs that
the trustees of Khoo Kongsi must have been
fully aware of the social cultural context upon
which their legal relationship with Cheong Au
Pit was based. In other words, they must have
known that Cheong Au Pit was the head of an
extended Chinese family and the farming activities carried on were for the benefit of this
extended family.
In arriving at my conclusion regarding this part
of the case I have given the fullest consideration
to the careful submissions of Counsel for the
defendants but I regret I am unable to accede to
them for reasons I shall now state.
First of all, it was submitted by Counsel for

the defendants that the evidence of P2 of
[1994] 1 CLJ

statements made to her by Cheong Au Pit

regarding the promises or assurances made by
Khoo Kongsi, was hearsay and inadmissible.
Similarly, it was contended that evidence of P2
regarding the promises or assurances made to
her by the visiting trustee suffered from the
same defect.
I regret I cannot agree. It is well established that
such evidence is not hearsay and is admissible
when it is proposed to establish by the evidence,
not the truth of the statement but the fact that
it was made. [Subramaniam v. PP] [1956] MLJ
220.
As the Privy Council pointed out in

Subramaniams case, the fact that a statement
was made, quite apart from its truth, is frequently relevant in considering the mental state
and conduct thereafter of the witness.
In the present case, the plaintiffs case was that
it was because Cheong Au Pit believed the
promises or assurances (whether genuine or
not) by Khoo Kongsi, that he was induced to
engage in his farming and construction activities. And, similarly, it was because P2 believed
the promises or assurances (whether genuine or
not) of the visiting trustee that she and the other
plaintiffs were induced to continue with the
farming activities and to expend a substantial
sum of money in the installation of a sprinkler
system. Therefore, evidence of the promises or
assurances concerned had been adduced not to
prove that these promises or assurances were
true in the sense that Khoo Kongsi intended to
keep those promises or to live up to those
assurances, but for the purpose of showing that
it was by reason of those promises or assurances
that Cheong Au Pit and the plaintiffs had been
induced to act in the manner aforesaid to their
detriment.
Secondly, it was submitted by Counsel for the
defendants that the evidence of P2 as to the
promises or assurances by an unidentified person said to be the visiting trustee or supervisor
of Khoo Kongsi in 1972, was in any event
inadmissible because Khoo Kongsi was not a
party to these proceedings.
I think that this submission overlooks s. 18 (3)

(a) and (b) of the Evidence Act (Revised -1974)
which reads as follows:
Section 18(3) Statements made by:
(a) persons who have any proprietary or pecuniary interest in the subject-matter of
45
the proceeding, and who make the statement in their character of persons so interested; or
(b) persons from whom the parties to the suit
have derived the interest in the subjectmatter of the suit,
are admissions if they are made during the
continuance of the interest of the persons making the statements.
The facts relevant to this part of the case show

clearly that the developer D3 had become the
registered lessee of Lot 2523 where on the plot
concerned is situated. That lease was executed
by the Trustees of Khoo Kongsi as registered
proprietors in favour of D3, pursuant to clause
16 of the joint venture agreement (AB1 p. 40) to
which they were parties, for the purpose of
proceeding with the development on the said lot.
By the joint venture agreement D3 had undertaken to complete the entire scheme within 8
years from the date of approval of the building
plans whilst the trustees of Khoo Kongsi had
also undertaken to execute a 99 year lease in
favour of purchasers of plots of land with buildings thereon in the housing scheme upon issue
of separate titles thereto.
In these circumstances, it was unmistakbly
clear that D3s lease is held in trust and for the
benefit of Khoo Kongsi and itself for the purpose
of proceeding with the development.
It follows that D3 derive their interest in the
subject matter of the suit from the trustees of
Khoo Kongsi and so statements made by visiting trustees or supervisors of Khoo Kongsi
which are admissions during the continuance of
that interest are admissible under s. 18(3)(a)
and (b) even though technically the trustees of
Khoo Kongsi are not parties to this suit.
I further find that in all probability that the
person who made the promises or assurances
was in fact the visiting trustee and supervisor of
Khoo Kongsi. There is no reason to suppose that
that person did not hold the office he purported
to hold for who else would be making such
promises or assurances. And, it is significant
that the defendants did not call whoever it was
who held the office of visiting trustee at the
material time to contradict the testimony of P2
and PW1.
Thirdly, it was submitted that promises or
assurances made by a visiting trustee would not
be binding on Khoo Kongsi because according to
the affidavit evidence of a trustee, Khoo Peng
46
Current Law Journal

January 1994
Tee (pp 64 - 68 BA (1)) and DW3, he had no power

to make the same.
In answer to this submission, Counsel for the
plaintiffs relied on the doctrine of apparent
(sometimes called ostensible) authority under
which, a principal may be bound by the acts of
an agent which he has not authorised and has
even forbidden.
In particular, he pointed out that Khoo Kongsi

had held out the visiting trustee as having
power to deal with their tenants on their behalf
It will be recalled that both P2 and PW1 had
testified that they had made a request to the
visiting trustee for the transfer of the tenancy of
dwelling house 258K and the vegeable land to
P1 and P2 and that as a result, on his next visit,
he had brought a letter for P1 and P2 to sign; this
was done, and later that dwelling house was
registered in the name of P1 and P2.
The doctrine of holding out, sometimes called
apparent or ostensible authority, has been said
to be based upon estoppel. [See Rama Corp. Ltd.
v Proved Tin and General Investments Ltd.
[1952] 2 QB 147, 149, 150. Freeman v. Lockyer
(a firm) Buckhurst Park Properties (Mangal)
Ltd [1964] 2 QB 480 at 498, 502-506. Agency by
estoppel arises where one person has so acted and this he may do by allowing the agent to hold
himself out as having authority [see e.g. Re
Henry Bentley & Co and Yorkshire Breweries
Ltd ex parte Harrison [1893] 69 LT 204 CA;
Ashfordhire Council v. Depen Motors Ltd. [1961]
AC 336 - as to lead another to believe that he has
authorised a third person to act on his behalf,
and that other, in such belief, enters into transactions with the third persons within the scope
of his ostensible authority. The onus rests on the
person dealing with the agent to establish real
or ostensible authority (Pole v. Leask [1863] LJ
Ch 155). The conduct said to amount to holding
out must be proved affirmatively. (Bailey &
Whites Ltd v. House [1915] 31 TLR 583). It is a
question of fact in a particular case whether
ostensible authority existed for the particular
act in respect of which liability is sought to be
imposed upon the principal. (Brazier v. Camp
[1894] 63 LJ QB 257 CA).
In Crabb v. Arun [1975] 3 AER 865, at p. 875,
Lord Scarman dealt with the approach of equity
when the question of the authority of an agent
to bind his principal arises for consideration.
What he said was this:
Nor do I think it necessary in a case such as
this to enquire minutely into the law of
[1994] 1 CLJ
agency. These defendants could, of course,

only act through agents, but, as I have already made clear, from the very nature of the
case, there would be no question of grant, no
question of legally enforceable contract. We
are in the realm of equity; and within that
realm we find that equity, to its eternal credit,
has developed an immensely flexible, yet perfectly clear, doctrine: see ER Ives Investments
Ltd v. High per Danckwerts LJ. The approach
of equity, when there is a question of agency
in a field such as this, must I think be a very
simple one. It will merely be that, within reasonable limits, those to whom a defendant
entrusts the conduct of negotiations must be
treated as having the authority, which, within
the course of the negotiations, they purport to
exercise it.
Applying the principles enunciated in the above

authorities I am satisfied, having regard to the
evidence, that the plantiffs have succeeded in
proving on the balance of probabilities that the
visiting trustee was held out as having power to
deal with the tenants on its behalf, including the
power to make the promises and assurances
aforesaid upon which the plaintiffs had relied
and incurred substantial expenditure by the
installation of a sprinkler system on the farm.
They would hardly have done so if they were
liable to be turned out by a mere one month
notice to quit.
Fourthly, I should like to consider the submission of Counsel for the defendants that the
alleged promises or assurances relied upon by
the plaintiffs that they could continue and stay
on the plot concerned as long as they like or
forever so long as they paid rent even, if true,
would invalidate the tenancy because as he puts
it:
A tenancy like all contracts requires certainy
of terms. The term alleged by the plaintiffs
renders the duration of the tenancy uncertain and therefore invalid. [Karuppan Chetty
v. Suan Thian [1916] 1 FMSLR 300 CA and
Prudential Assurance Co. Ltd. v. London
Residuary Body Ors. [1992] 3 WLR 279.
This branch of Counsels submission is directly

related to another branch of his submissions
which raises the question whether the availability of the alleged equity depends upon the
availabillty of the remedy of specific performance and, so, for the sake clarity and convenience, I propose to deal with it under that
sub-heading which follows immediately hereunder.
[1994] 1 CLJ

Does the availability of the alleged equity

depend on the availability of the remedy of
specific performance?
Yes said Counsel for the defendants and he
relied on the following passage in the judgment
of H. T. Ong CJ in Yong Tong Hong v. Siew
Soon Wah & Ors. (ibid) at 107 col 1 F:
In the instant case the landlords claim to

re-possession is met by a counterclaim for
specific performance. As Vaughan Williams
LJ said in Zimbler v. Abrahams [1903] 1 KB
577:
If the defendant is entitled to specific
performance, it follows he is not liable to
be ejected.
Similarly, he pointed out that when Yong Tong

Hongs [1973] 1 MLJ 133 case went on appeal to
the Privy Council, Viscount Dilhorne posed the
question:
Is the respondent (the tenant) entitled to
specific performance of that agreement? [1973]
1 MLJ 133, at 135 col 2 para I last sentence.
Counsel rounded off this part of his submissions

stressing that here the plaintiffs were not entitled to specific performance, presumably because the oral agreement relied upon by them
following the promises or assurances aforesaid,
was bad for uncertainty, and moreover that the
plaintiffs had not even counterclaimed for specific performance.
In their excellent work on Equity Doctrines
and Remedies, 3rd Edn. [1992] at p. 433 para
1728 Meagher, Gummow and Lehane, have an
interesting commentary on the case of Siew
Soon Wah v. Yong Tong Hong (ibid). What they
say is this:
As the law stands, even within the rubric
of estoppel, there is scope for considerable
confusion.
The Privy Council decision in Siew Soon Wah
v. Yong Tong Hong is a striking example.
There the father of the plaintiffs alledgedly
agreed to let certain premises to the defendant in consideration not only of rent but also
of a lump sum payment. The reversion was
then transferred to the plaintiffs (whether for
value and with notice does not appear clearly
from the report on appeal or below [1971] 2
MLJ p. 105 at 108) and they sought to eject
the defendant; he counter-claimed for specific
performance. The first issue was to determine
whether there was any lease and whether
it had properly been determined. The Privy
47
Council, in finding for the defendant, held (a)

the arrangement was not so vague and uncertain as to be void for uncertainty; (b) although
there was no registrable instrument as required by the relevant legislation, the defendant had a counterclaim for specific performance which was a good answer to the claim
of the plaintiffs: Zimbler v. Abrahams (ibid).
That would appear quite sufficient to dispose of
the case. But, Viscount Dilhorne for the Privy
Council then went on [1973] AC at 845) to cite
Inwards v. Baker ( ibid), and to restate his
conclusion as that there rose in the
(defendants) favour an equity or equitable
estoppel protecting his occupation ... because
the defendant had paid the lump sum and
rent thereafter in accordance with his alleged lease. This holding, as appears from the
above, was unnecessary for the conclusion,
and productive of confusion. For it has always
been assumed that performance of contractual obligations cannot amount to self-detrimental conduct induced by the other party
and thus raising an estoppel against him.
The truth of the matter is that estoppel would
have been relevant in this case only if their
lordship had held the arrangement void at
law for uncertainty so that there was no
agreement of which specific performance
might be decreed. Granted there was such
agreement, to add estoppel as a ground for
decision is to supply a third wheel to the
chariot.
It is difficult to find fault with the learned

authors comments and I would respectfully
concur in their view that the Privy Council
having found that the arrangement relied on by
the tenant was not so vague and uncertain as to
be void for uncertainty and although there was
no registrable instrument for purposes of the
National Land Code or its predecessor the Land
Code (Cap 138) the tenant had conterclaimed
and so this was a sufficient answer to the
landlords claim for possession. Obviously, these
findings were all that was required for the
decision in favour of the tenant. Therefore, in
going further and adding estoppel as a further
ground for the decision their Lordships, and in
the Court below the Federal Court, were really
supplying "a third wheel to the chariot". This
would appear to have been unnecessary and so
whatever was said on estoppel would be obiter.
Be that as it may, Counsel for plaintiffs has
pointed out that unlike Siew Soon Wahs case
where the Court was asked to consider the
validity of an agreement which was not registrable under the National Land Code, in the
48
Current Law Journal

January 1994
present case, the court is not being asked to

consider the validity of any agreement but the
validity of a promise made by the visiting trustee
of Khoo Kongsi which led to detrimental reliance on it by the plaintiffs. In other words, it was
said that the defendants had failed to distinguish between the principles governing promissory estoppel and the law of landlord and
tenant.
With these submissions of Counsel for the plaintiff I agree.

The argument that the principle of promissory
estoppel enunciated in Central London Property
Trust v. High Trees House Ltd. [1947] KB 130
should be confined to cases where the parties
are contractually bound to one another, recieved
short shrift in Evenden v. Guildford Football
Club [1975] I QB 917.In that case, a groundsman
was employed at the football ground at Guildford.
For some years he was employed by the Supporters Club. Then he was transferred to the
Football Club itself. The Football Club promised
him that he would not suffer by the transfer. The
question for decision was whether that promise
was binding so as to entitle him to redundancy
pay for the whole period? It was held that it was
binding. Lord Denning said this:
... Promissory estoppel ... applies whenever a
representation is made whether of fact or law,
present or future, which is intended to be
binding, intended to induce a person to act
upon it and he does act upon it. That is the
case here. Mr. Evenden entered into his employment with the Football Club on the faith
of the representation that he would not be
prejudiced and that his employment should
be regarded as a continuous employment.
Acting upon it, he has lost any rights against
the Supporters Club. The Football Club cannot
be allowed to go back on it. His employment is
to be treated as continuous for the whole 19
years. He is entitled to the full redundancy
payment of 459.
I recognise, however, that the doctrine of promissory estoppel provides a defence to an action
on the original contract for a defendant relying
on a voluntary variation. It does not provide a
cause of action for a plaintiff relying on a gratuitous promise, [Combe v. Combe [1951] 2 KB
215.
Yet, its effect may be to enable a party to enforce
a cause of action which, without the estoppel
would not exist [see Amalgamated Investment
& Property Co. Ltd. v. Texas Commerce Bank
[1994] 1 CLJ
[1982] QB 84 at 105 in CA ibid at 131, 132]; for

example, by giving rise to a binding obligation
where none existed before (ibid at p. 107).
However, a promissory estoppel is not permanent in its effect. The case of Ajayi v. R.T.
Briscoe (Nigeria) Ltd. [1964] 1 WLR 1326 at
1330 shows that a promissor may resile from his
position upon giving the promisee notice - not
necessarily formal notice - thus affording latter
a reasonable opportunity of resuming his previous position; and only if that is impossible does
the promise become final and irrevocable. (See
Ajayi v. R.T. Briscoe ibid at 1330). Donaldson,
J. (as he then was) applied the principle of
promissory estoppel in Durham Fancy Goods
Ltd. v. Michael Jackson (Fancy Goods) Ltd
[1968] 2 QB 839; he said at 847:
Lord Cairns in his enunciation of the principle [in Hughes v. Metropolitan Railway Co.
[1877] 2 App. Cas. 439, 448] assumed a preexisting contractual relationship between
the parties, but this does not seem to me
essential provided that there is a pre-existing
legal relationship which could in certain
circumstances give rise to liabilities and
penalties.
Evershed MR in an article entitled "Equity after

Fusion: Federal or Confederate, [1948] I Journal of the Society of Public Teachers of Law,
171,176 observed of the High Trees case that
It would appear to have established a right
to the extent, but only to the extent, of a right
to a specific remedy; namely, the remedy of an
injunction to prevent the other party recalling
his promise.
In the present case, D3 has counterclaimed for

possession of the plot concerned to which the
plaintiffs have replied alleging that their possession is protected by an equity or equitable
estoppel and they have also prayed for an injunction restraining the defendants from carrying out work thereon.
The present case is really one where the plaintiffs and their forbears have been in possession
of the plot concerned for decades and they have
commenced these proceedings to protect their
rights to remain in possession relying on equity
or equitable estoppel. If they succeed in their
plea, then what the Court will have to consider
is the extent of the equity and how best to satisfy
it.
In the circumstances, the answer to the question posed above regarding this part of the case
[1994] 1 CLJ

is that the plaintiffs claim to the alleged equity

does not depend on the availability of the remedy of specific performance.
Were the plaintiffs tenancies binding on

D1 and/or D3?
It was submitted by Counsel for the defendants
that the tenancies were not binding upon D1
and/or D3 on three separate grounds: namely,
(1) neither D1 nor D3 took over the tenancies;

(2) there was no attornment either by the
demand or the acceptance of the rent from
the plaintiffs; and
(3) the concept of privity of estate does not
apply in this country by reason of s. 6 of
the Civil Law Act 1956, as privity of estate
is part of land tenure.
It was argued that the rule in Errington v.

Errington & Woods [1952] 1 KB 290, 299 that
"neither the licensor nor anyone who claims
through him can disregard the contract except
a purchaser for value without notice" had since
been repudiated in England in Ashburn Ansalt
v. Arnold [1988] 2 AER 159.
Similarly, it was pointed out that Lyus v. Prowsa
Developments Ltd.[1982] 2 AER 953 was disapproved.
It was further argued that in the case of D3, a
further consideration was its position as
registered lessee under the lease dated 10
August 1983 (AB2). It was emphasised that the
protection as indefeasibility applied also to registered lessees unders s. 340(1) of the National
Land Code and that the plaintiffs had not brought
themselves within any of the exceptions to the
indefeasibility rule such as fraud within the
meaning of the authorities discussed by me in
the case of Goh Hooi Hin v. Lim Teong Ghee &
Ors. [1990] 3 MLJ 23 at 32;. in particular, the
folowing passage in my judgment in that case
was cited:
... there is no fraud on the part of the registered proprietor in merely acquiring title
with notice of an existing unregistered interest or in taking a transfer with knowledge
that its registration will defeat such an
interest. (at p 32).
It was next submitted that although fraud had

not been alleged in the pleadings, P2 had in her
affidavit dated 7 June 1990 [BA (1) pp 161-173]
filed in opposition to D3s summons to vary the
injunction made allegations of fraud and dishonesty, but that these allegations, even if true,
49
did not constitute fraud in the sense sufficient to

upset the title of a registered proprietor. More
particularly, the allegations were these:
(f) The 3rd defendant and the Khoo Kongsi are
partners in a joint venture agreement and
it would be fraudulent, dishonest and reprehensible on the part of the 3rd defendant to
attempt to use the principle of indefeasible
interests under the National Land Code to
defeat the vested rights of the plaintiffs.
(g) Hence by reason of the aforesaid, at all
material times, when the 3rd defendant embarked on their joint-venture housing development, they had full knowledge of the
plaintiffs' legal and equitable rights to the
said land and cannot therefore pray in aid
the doctrine of the bona fide purchases for
value without notice (p. 165 of BA (1)).
Futhermore, my attention was drawn to the

plaintiffs' defence to D3's counterclaim and, in
particular, that it had not alleged fraud but had
by para 4 thereof instead alleged that D3 was
not a bona fide purchaser for value without
notice. This, it was said, fell far short of the
requirements for upsetting the title of a registered proprietor and this would include a registered lessee like D3.
In order to determine whether the submissions
of Counsel for the defendants regarding this
part of the case are tenable, it is necessary to
keep in the forefront of our minds the background facts as to how the defendants in this
case came into the picture. These facts, as to
which there is no dispute, may for convenience,
be taken in substance, from the written submissions of Counsel for the plaintiffs and are as
follows:
In was pursuant to clause 16 of the Joint Venture Agreement (AB1, p.40) that D3 became the
registered lessee of Lot 2532 on 24 August 1983,
whereon the plot concerned is located. The
object of this exercise, according to a director of
D3 in charge of the building work on the scheme,
Ng Bock Tye (DW4), was to facilitate the development works thereon. This was understandable since Khoo Kongsi was contractually bound
to execute a 99 year lease in favour of purchasers
of plots of land whereon dwelling houses were to
be erected and similarly, D3 was by clause 12,
also contractually bound to complete the entire
building scheme within 8 years from date of
approval of thereof.
In these circumstances, the irresistible inference is that D3s lease is held in trust for the
50
Current Law Journal

January 1994
benefit of Khoo Kongsi and D3 for the purpose

of facilitating development of the project
By the same token, it may be said, that D3 is for
purposes of the development, the alter ego of
Khoo Kongsi. It follows that D3 would be in no
better position to resist the plaintiffs claim to be
entitled to be in possession in law and equity
than would Khoo Kongsi itself.
On a further ground also the plaintiffs equity
would bind D1 and D3. D1 and D3 are admittedly sister companies of the Farlim Group,
directly concerned in the development of the
Thean Teik Estate, the property of Khoo Kongsi
and it is not insignificant, that a trustee of Khoo
Kongsi, Khoo Kah Seng (DW3) is a director of
both D1 and D3. Since the institution of this suit
in 1982, and the plaintiffs application for interlocutory injunctive relief, D1 and D3 have had
notice of the plaintiffs interest as this received
considerable treatment in the pleadings and the
affidavits. As successors in title with notice of
the plaintiffs interest in the plot concerned, D3
would have to take its lease subject to that
interest. (See Mok Deng Chee v. Yap See Hoi &
Ors. (ibid); Devi v. Francis [1969] 2 MLJ 169.
The validity of contracts relating to land or any
interest therein is explicitly declared in
s. 206(3) of the National land Code. [Per H.T.
Ong CJ in Yong Tong Hong v. Siew Soon Wah &
Ors. (ibid) at 108 col 1G]. The position would be
a fortiori having regard to my finding that D3
held the registered lease as alter ego of Khoo
Kongsi.
I regret, therefore, that I am unable to accede to
the interesting submissions of Counsel for
the defendants that the protection of indefeasibility guaranteed under s. 340(1) of the
National Land Code enables D3 to take its lease
free of the plantiffs' interest in the plot
concerned.
Proprietary Estoppel
This brings me to a consideration of the submission advanced on behalf of the plaintiffs that
they are entitled to rely upon the plea of proprietary estoppel.
Proprietary estoppel is one of the exceptions to
the general rule that a person who spends
money on improving the property of another has
no right to claim reimbursement or any proprietary interest in property [See eg. Ahmad Yar
Khan v. Secretary of State for India in Council]
[1901] LR 28 Ind. App. 211. Unlike promissory
[1994] 1 CLJ
estoppel, proprietary estoppel when it operates

is permanent in its effect and it is also capable
of operating positively so as to give a cause of
action. [See Denny v. Jensen [1977] 1 NZLR
635].
In Ramsden v. Dyson [1866] 1 LR 129 estoppel
by representation was considered in relation to
cases in which a person builds on the land of
another, the landowner standing by without
asserting his rights. In his dissenting judgment,
which is still considered the locus classicus on
the subject, Lord Kingsdown said this:
If a man, under a verbal agreement with a
landlord for a certain interest in land, or, what
amounts to the same thing, under an expectation created or encouraged by the landlord
that he shall have a certain interest, takes
possession of such land with the consent of
the landlord, and upon the faith of such promise or expectation, with the knowledge of the
landlord and without objection by him, lays
out money upon the land, the court of equity
will compel the landlord to give effect to such
promise or expectation.
It was argued by Counsel for the defendants on

the authority of Brinnand v. Ewens [1987] Ch.
2 EGLR 67 that for this sort of estoppel, four
conditions have to be met:
(1) the claimant must have incurred expenditure or otherwise acted to his
detriment;
(2 ) the claimants must have acted in the
belief that they either owned or would
obtain a sufficient interest in the property to justify the expenditure;
(3) the claimants belief must have been
encouraged by the landlord; and
(4) there must be no bar to the equity such
as the contravention of any statute.
It will be recalled that the plaintiffs claim to a
proprietary estoppel is based on the expenditure of money by Cheong Au Pit on Khoo Kongsis
land in the expectation or belief encouraged by
Khoo Kongsi that they could stay on the land
and carry out their farming activities as long as
they wished provided that they paid the rent.
Having regard to the facts relied upon by the
plaintiff upon which they based their claim to
proprietary estoppel, Counsel for the defendants contended that such a claim was untenable because, to quote his written submission:
there is no basis for a proprietary estoppel or

equity since
[1994] 1 CLJ

(a) the plaintiffs had made no mistake as to

the title of the land; the deceased was a
ground tenant and the plaintiffs were
aware of the ownership of the land in
Khoo Kongsi: a mistake by the representee
(known to the owner) and acquiescence
in that mistake by the owner are essential; these are lacking in the present
case; the promise must be supported by
independent consideration apart from the
obligation to pay rent; there is no evidence in this case of any such independent
consideration, the decisive factor in the
other cases in which the doctrine had
been applied (usually by the payment of
premium or teamoney");
See Tan Khien Toong & Ors. v. Hoong Bee

& Co [1987] 1 MLJ 387 (SC); Siew Soon
Wah v. Yong Siew Tong (ibid) (PC) affg
[1971] 2 MLJ 105 (FC); Lee Lum Soh v.
Low Ngah[1973] 1 MLJ 97.
In Siew Soon Wah, supra Viscount
Dilhorne adverted to this fact, with reference to the payment of the sum of
RM8,000 in that case:
In this case the respondent occupied the
ground floor since February 1958 and paid
rent therefor. In February 1958 he paid
the sum of RM8,000 to his landlord. He
cannot have done that for a tenancy of
short duration. It must have been paid in
consideration of the tenancy described in
the agreement of June 1964 (Ibid. 135
Right C-D).
(b) The allegation of estoppel is not founded
on what the deceased did but on what the
plaintiffs did after the death of Cheong Au
Pit; there must be reliance and detriment
based on an inducement or encouragement by Khoo Kongsi:
I regret I cannot agree with the submission of

Counsel for the defendants that to establish
proprietary estoppel, in cases where a person
builds on or improves land of another, the
landowner standing by without asserting his
rights while this is going on, it is essential to
prove that such a person mistakenly thought
that the land was his own when he did those
acts, though I accept that in such a case, equity
will treat the true owners conduct as estopping
him from subsequently asserting his title to the

detriment of such person. I say so because even
if such a person builds or improves land of
another knowing he was doing so on land belonging to another, there will still arise an
equity in him if the landowner led such person
to expect to be allowed to stay there. The case
usually cited for this proposition is Inwards v.
Baker ( ibid) at pp. 36-37 where a father owned
land and invited his son to build a bungalow on
it. This was done partly at the sons expense, and
the son lived in the bungalow. When the father
died the title to the land passed, under a will
made before the land was bought or the bungalow built, to the fathers mistress and other
children.
The Court of Appeal held that the son had a right
to remain. Lord Denning MR, speaking for the
Court said:
Imperial Bank of Canada v. Mary Victoria

AIR [1936] PC 193.
As to encouragement and expenditure see
Siew Soon Wah v. Yong Siew Tong ibid at
134I to 135A left and Khew Ah Bah v. Hong
Ah Mye [1971] 2 MLJ 88; Mok Deng Cbee
v. Yap See Hoi (ibid).
51
... if the owner of land requests another, or

indeed allows another to expend money on the
land under an expectation created or encouraged by the landlord that he will be able to
remain there, that raises an equity in the
licensee such as to entitle him to stay. He has
a licence coupled with an equity. ...even
though there is no binding contract to grant
any particular interest to the licensee
nevertheless the court can look at the circumstances and see whether there is an equity arising out of the expenditure of
money. All that is necessary is that the licensee should, at the request or with the encouragement of the landlord, have spent the
money in the expectation of being allowed to
stay there. If so, the court will not allow that
expectation to be defeated where it would be
inequitable to do so ... I think that any purchaser who took with notice would clearly be
bound by the equity.
Inwards v. Baker was a case of active encouragement since the father there had persuaded his
son to build the bungalow on the fathers land
but an equity will also arise where the landowner merely encourages the builders belief
passively, as where the mortgagee stood silently
by while a purchaser in ignorance of the mortgage built on the land. [See Attorney-General of
Hong Kong v. Phreys Estate (Queens Gardens)
Ltd [1987] AC 114; Haslemere Estates Ltd v.
Baker [1982] 1 WLR 1109, at 1119 The circumstances of looking on is in many cases as strong
as using terms of encouragement. [Per Lord
Eldon in Dann v. Spurier [1802] 7 Ves. 231, at
236].
Current Law Journal

January 1994
52
I note that in both Mok Deng Chee v . Yap See Hoi

& Ors. (ibid) Salleh Abas FJ (as he then was)
speaking for the Federal Court, and Choor
Singh, J in the Singapore case of Khew Ah Bah
v. Hong Ah Mye (ibid) applied the principle in
Inwards v. Baker (ibid) although in neither case
was there any question of mistake. And, in Siew
Soon Wah v. Yong Tong Hong (ibid) Viscount
Dilhorne quoted with approval the following
passage in the judgment of Lord Denning in
Inwards v. Baker, All that is necessary is that
the licensee should, at the request or with the
encouragement of the landlord, have spent the
money in the expectation of having been allowed
to stay there.
Nor, for that matter am I persuaded by Counsel
for the defendants that an independent consideration; for example, the payment of tea money
over and above the rent is an essential requirement for the operation of the doctrine of proprietary estoppel. The case to which I should like
to refer here is Crabb v. Arun District Council
ibid at p. 179 where Lord Denning speaking for
the Court of Appeal said this:
... Short of a binding contract, if he makes a
promise that he will not insist on his strict
legal rights - then even though that promise may be unenforceable in point of
law for want of consideration or want of
writing and, if he makes the promise knowing or intending that the other will act on it,
and he does act on it, then again a court of
equity will not allow him to go back on that
promise. Short of an actual promise, if by his
words or conduct, so behave as to lead another
to believe that he will not insist on his strict
legal rights knowing or intending that the
other will act on that - belief and he does so
act, that again will raise an equity in favour
of the other and it is for a court of equity to
say in what way they may be satisfied. The
cases show that this equity does not depend on
agreement but on words or conduct ...
Furthermore, the more recent cases indicate,

in my judgment, that the application of the
Ramsden v. Dyson principle (whether you call
it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really
immaterial) requires a very much broader approach which is directed to ascertaining
whether, in particular individual circumstances, it would be unconscionable for a
party to be permitted to deny that which,
knowingly or unknowingly, he has allowed or
encouraged another to assume to his detriment rather than to inquiring whether the
circumstances can be fitted within the confines
of some preconceived formula serving as a
universal yardstick for every form of unconscionable behaviour.
In this context, the case of Shaw v. Applegate

[1977] 1 WLR 970 at 970 or 977, 978 merits
reading.
Proprietary Estoppel compared with Constructive Trust

I might as well add that the principles of estoppel have on various occasions been compounded
with those governing constructive trusts. [See
e.g. Grant v. Edwards [1986] Ch D 638 at 657,
Gillies v. Keogh [1989] 21 NZLR 327 at 330;
Lloyds Bank plc v. Rosset [1991] 1 AC 107 at
132].
Indeed, the princples which apply to constructive trusts are closely akin to those underlying
the doctrine of proprietary estoppel. In both, the
claimant must have acted to his detriment in
reliance on the belief that he would obtain an
interest. [See Grant v. Edwards (ibid), Lloyds
Bank v. Rosset [1990] 2 WLR 867 at 877]. In
both, equity acts on the conscience of the legal
owner to prevent him from defeating the common intention. [See Grant v. Edwards at- 656;
Maharaj v. Chand [1986] AC 898 at 907, 908; Re
Basham [1986] 1498 at 1504].
I therefore hold that in some cases - and the
plaintiffs case is such a case - proprietary
estoppel is a form of constructive trust. [See Re
Bashan (decd) [1987] 1 AER 405 at 410].
(Emphasis supplied).
Similarly, I am not persuaded that to raise an
equity, it is essential that the representator
must have knowledge that his property is being
improved. The representators conduct and the
subsequent action and belief of the representee
may render it unconscionable for the
representator to insist on his strict legal rights.
I am supported in this by the following passage
in the judgment of Oliver J. in Taylor Fashions
Ltd. v. Liverpool Victoria Trustees Co. [1981] 1
AER 897.
[1994] 1 CLJ
This is yet another ground for not acceding to

the submission of Counsel for the defendants
regarding this part of the case.
What is the extent of the equity which
arises in favour of the plaintiffs?
Having found that the plaintiffs occupation of

the plot concerned is protected by an equity the
[1994] 1 CLJ

next question for decision is what is the extent

of that equity? The cases of Griffiths v. Williams
[1977] 248 EG 947, 949 and Jones (A.E.) v. Jones
(F.W) [1977] 1 WLR 438 at 443, indicate that the
extent of the equity is to have made good, so far
as may fairly be done between the parties, the
expectations of A which O has encouraged. The
maximum extent of the equity being As expectation or belief. (See Dodsworth v. Dodsworth
[1973] 228. EG 1115 at 1115, 1117.
In the present case, the interests of third party
purchasers must be taken into account. As
Denning MR put it in Crabb v. Arun DC (ibid)
at p 189, in its search for the minimum equity
to do justice to A and shaping it to the facts of
the case, equity is displayed at its most flexible. Or, as the Privy Council put it in Plimer v.
Wellington Corporation [1884] 9 App Cas 699
53
In other cases, the Court may give relief to the

person who has incurred the expenditure on
anothers land by giving him an equitable lien on
the property for his expenditure [see Raffaele v.
Raffaele [1962] WAR 238 discussed by E.E.
Allan [1963] 79 LQR 238] or for the value of
his improvements [See Neesom v. Clarkson
[1845] 4 Hare 97], in which event he will be
treated as a mortgagee in possession. (See
Neesom v. Clarkson (ibid)].
However, the Court has been known to make an
order for possession against the person who has
made the improvements conditional upon the
landowner repaying the cost of those improvements. [Dodsworth v. Dodworth (ibid)].
How is the equity to be satisfied or, in other

words, what are the remedies available?
On the other hand, if the evidence shows that

the prejudice suffered by the person who made
the improvements, has been fully satisfied or, in
other words, that he already has sufficient
satisfaction for his expenditure, he will obtain
no further relief. (See Att. Gen v. Balliol College
Oxford [1774] 9 mod 407 at 412 (expenditure by
lessees).
The reports show a wide variety solutions

reached in cases in which a person has expended money on the property of another.
In the present case, on the extent of the equity,

Counsel for the plaintiffs refocussed the attention of this Court on the following:
... the court must look at the circumstances in

each case to decide in what way the equity can
be satisfied.
In Inwards v. Baker (supra) it will be recalled

that the Court of Appeal held that despite the
legal title being in the plaintiffs, the son had an
equity to remain in the bungalow as long as he
desired to use it as his home. Dankwerts LJ
observed "equity protects him so that an injustice may not be perpetrated". In ER Ives Investment Ltd v. High [1967] 2 QB 379 the Court held
that Mr. High and his successors had an equity
which could only be satisfied by allowing him to
have a right of access over the yard, so long as
the block of flats had its foundations on his
land. Accordingly, the plaintiffs were refused
an injunction to restrain the defendant from
exercising a right of way across the formers
land.
In Siew Soon Wah & Ors. v. Yong Tong Hong
(ibid) the Privy Council held that there was an
equity or an equitable estoppel protecting the
defendant in his occupation for 30 years.
In Bank Negara Indonesia v Hoalim [1973] 2
MLJ 3, we see the Privy Council holding that
notwithstanding the fact that the defendant
had no protection under the Rent Act, he had an
equity to remain so long as he continued to
practise his profession.
During his life time, and just before his death,

Cheong Au Pit had given house No. 258K to P1
and P2 and the vegetable land to the plaintiffs
and PW1. Thus, Cheong Au Pits equity in house
258K devolved upon P1 and P2 and his equity in
the vegetable land upon the plaintiffs and PW1.
Subsequently, in 1972, Khoo Kongsi had represented to P2 that she could stay on the plot
concerned and continue farming as long as she
wished provided she paid rent. It was said that
this representation amounted to a tenancy for
as long as the law would permit.
This last point has no doubt been inspired by the
judgment of H.T. Ong, CJ, speaking for the
Federal Court, in Yong Tong Hong v. Siew Soon
Wah ibid at p. 58 where, a question arose as to
what effect should be given to a clause in a
tenancy agreement - not a proper instrument for
registration as a lease under the National Land
Code - the clause being the tenancy shall be
permanent or, in the words which fell to be
decided by the trial Judge, for so long as the
tenant wished to occupy no distinction being
drawn between these words and the clause
concerned, Ong, CJ then concluded (at p. 108 col
1 para F, G) that no strain would be imposed
54
Current Law Journal

January 1994
upon the powers of the Court to to give effect to

tbe expressed intention of the parties by holding
that the agreement was one for the grant of as
long a lease as the law allows which by s.
221(3)(b) of the National Land Code, in the case
of a lease of part only of alienated land was, 30
years. His judgment was affirmed by the Privy
Council on identical grounds.
Counsel therefore suggested that the appropriate remedies for the plaintiffs were these:
Since the plaintiffs are occupying the plot concerned and this comprises only a portion of the
land, the extent of their equity is a lease for 30
years commencing in 1972 when the representation was made by the visiting trustee of Khoo
Kongsi. Accordingly, an injunction should be
granted to restrain the defendants from trespassing on the plot concerned.
Alternatively, if the Court is of the view that
D3s counterclaim for possession should be allowed and that the plaintiffs must yield vacant
possession of the plot concerned to D3, then this
should be made subject to the payment of compensation to the plaintiffs on the basis of their
entitlement to a 30 year lease. This award being
quite separate and apart from what may be
awarded to the plaintiffs for damages for trespass and nuisance.
On the other hand, Counsel for the defendants
contended that if contrary to his primary submission, the Court holds that D3 is bound to
satisfy the plaintiffs alleged equity, then having regard to the facts, the plaintiffs were not
entitled to make any claim because the Court
would have to take into consideration the length
of the plaintiffs occupation of the plot concerned,
the rate of rental; the period in respect of which
rents were not collected; no rents having been
collected since the expiry of the notice to quit
dated 30 June 1982 in respect of the two dwelling houses and since 20 July 1982 in respect of
the vegetable land and, finally, the fact that the
entire families of the plaintiffs and their ancestors have been living on the plot concerned for
decades.
On the question of the quantum of compensation to be awarded, my attention was directed by
Counsel to the following passage in the judgment of the Federal Court in Kalimuthu v.
Kandiah [1976] 2 MLJ 217, 221-222 which he
considered most apposite:
Assuming that the defendant is entitled to
compensation, what should be the amount of
[1994] 1 CLJ
such compensation? The defendant stated in

evidence that on moving into the house he
had it renovated and did minor repairs to it
which cost him RM6,000. He produced no
other evidence to support this assertion. The
plaintiff's evidence was that when she first
saw the house it had zinc roof and plank
walls and that apart form minor repairs the
structure remained the same. The defendant
has lived in the house since 1962. Since 1965,
that is for more than 11 years now, he has not
paid any ground rent or assessment. This works
out to a total of more than RM3,500. I do not
think the house itself together with minor
repairs would have cost the defendant or his
father anything more than that. I believe the
ends of justice will be met if he is not required
to pay arrears of ground rent and assesment
and not awarded any compensation, but I
think he must be given a bit of time to give
up vacant possession.
Counsel pointed out that the plaintiff had not

adduced any evidence or, for that mater, even
alleged what the cost of construction of the two
dwelling houses was when they were erected.
He suggested that the relevant date for assessing damages under this head would be not the
present date but the date of construction. He
added that if the present date were adopted as
the relevant date for the assessment of damages, then there was an acute conflict of evidence as to the value of the dwelling houses and,
furthermore, there was no evidence that the
plaintiffs could not reuse the materials after the
dwelling houses are dismantled.
In my view, generally speaking, a solution which
says that the person making the expenditure or
the improvement on another' s land is to have
everything or nothing may rightly be described
neither right nor fair and would also be clumsy
and unsuitable. The correct approach should
therefore be to protect that person against interference for long as he would be prejudiced
thereby. The reports contain many examples
where such an approach was adopted and I need
no more than refer to a few.
In Inwards v. Baker, (supra), for instance, the
son was protected in his occupation and could
remain in the bungalow "as long as he desired to
use it as his home", despite the legal title being
in the plaintiffs. In Ward v. Kirkland [1967] Ch
194, Ungoed - Thomas J granted an injunction
to restrain interference with the exercise of a
right of way in preference to granting an
easement and in ER Ives Investment Ltd. v.
High (supra) a right of way exercised in
circumstances giving rise to an estoppel, was
[1994] 1 CLJ

held not to be an easement at law or in equity but

enforceable, without registration, against a
purchaser with notice.
In the present case, having regard to its history,
not forgetting the acrimony generated by the
dispute and which still persists in plenty I do not
consider that the negative protection illustrated
by the cases cited in the preceding paragraph
would be appropriate; a final solution of the
parties rights according to the justice of the case
would be needed.
More particularly, having regard to the fact that
the plaintiffs and their ancestors have been
living on the plot concerned and cultivating the
vegetable land for the planting of vegetables and
fruit trees on which they had also reared pigs
and poultry for commercial purposes and the
substantial sums of money which must have
accrued to them and their ancestors by way of
profit thereby over a period of several decades,
and the further fact that the plaintiffs have
enjoyed rent - free occupation for the last decade
or so, I consider that the plaintiffs have had
sufficient satisfaction for their labour and
expenditure on the plot concerned or, in other
words, the prejudice suffered by them has been
fully satisfied, and so, they are entitled to no
relief. [See Att-Gen v. Balliol College, Oxford
(ibid) per Lord Hardwicke].
This means that if, but only if, I am wrong in my

conclusion regarding issue 2, which it will be
recalled raised the question: "What notice to
quit was necessary to determine the plaintiffs
tenancies of the farm and the dwelling houses,
assuming such tenancies were not coupled with
an equity?, so that the notices to quit, each of
one months duration, given by the Solicitors of
Khoo Kongsi, were contrary to my primary
view, sufficient to determine the tenancies of
the two dwelling houses, and the farm, then the
plaintiffs and all those claiming possession or in
occupation under or through them must quit,
vacate and yield vacant possession of the plot
concerned, dwelling house 259H and the farm
(but not dwelling house 258R which I have held
is subject to the Control of Rent Act 1966 ), to D3
without the payment of any compensation by D3
and I consider that a reasonable period for them
to do so would be three months and I so order.
For the avoidance of doubt, I hasten to add that

the question of the plaintiffs entitlement to
compensatory and exemplary damages for trespass are separate issues which are dealt with
later in this judgment.
55
However, D3 is not entitled to claim any damages whether general or special from the plaintiffs in respect of their occupation of the plot
concerned because their occupation having been
protected by an equity or equitable estoppel
they can in no way be regarded trespassers.
Moreover, D3s claims for liquidated damages
for late delivery of houses sold to third parties
and for increased costs were all losses, which
were self-induced. It follows, that prayer (b) and
(c) of D3s counterclaim are dismissed.
Again, for the avoidance of doubt, I hasten to
add, that in the event of there being no appeal
to the Supreme Court from my judgment then
this part of my judgment all of which relates to
issue 3 and concerns the questions of equity or
equitable estoppel, the extent of the equity and
how it should be satisfied, concluding with the
possession order made against the plaintiffs in
favour of D3 (except for dwelling house 258K
which I have held is subject to the Control of
Rent Act 1966), is really an alternative judgment: and will not arise for consideration and,
indeed, must be disregarded altogether, having
regard to my conclusion on issue 2 which relates
to the question of the sufficiency of the notice to
quit, which I had determined in favour of the
plaintiffs.
It follows that this part of my judgment which
relates to issue 3, will only operate and require
consideration in the event of an appeal to the
Supreme Court by the defendants, and I am
found to be wrong regarding issue 2 and, in so far
as dwelling house 258K is concerned, I am also
wrong that it is subject to the Control of Rent
Act 1966.
Issue 4 - Trespass and Nuisance
I have already decided the issue herein as to the

area of the plot concerned, being issue 1, in
favour of the plaintiffs. Similarly, I have already
found in favour of the plaintiffs as regards the
locus standi objections; namely, the title of the
plaintiffs to maintain the present suit including
the claim for damages for alleged trespass arising out of the acts of D1 and D2 on 18 June 1982
and D3 and D4 on 17 March 1988.
Did PW1 consent to D1 taking possesion of
area etched black in P14 and levelling in
consideration of the payment of RM1,000?
I must next consider the question whether
Cheng Lye Hiang (PW1) had agreed to accept
RM1,000 to allow D1 to take possession and
56
Current Law Journal

January 1994
level the area etched black in P14 whereon were

vegetable beds planted by the plaintiffs.
It was the case for the defendants that PW1 had
in fact so agreed. The only witness called by the
defendants in this regard was the testimony of
the Development Officer of D1 and D3 Goh
Huay Guan (DW1). He testified that he had, on
18 June 1988, negotiated with Cheng Lye Hiang
(PW1) who, it will be recalled, is the sister-inlaw of P1 and P2, and that as a result, PW1 had
agreed to accept RM1,000 to allow D1 to take
possession and level the area etched black in
P14. There was also an affidavit by the predecessor of DW1 a certain Chern Eng Hock (not
called-at the trial) generally alleging such a
settlement.
At this point, I might as well interpose to make
my finding regarding the accuracy of P14 which
purports to show the extent of the damage
caused by the alleged trespass by D3 and D4 on
17 March 1988.
that P14 was virtually worthless as evidence as
its author Lim Yee Juan (PW2) a research
officer of the Consumers Association of Penang,
had been to the site only once and that was on
the date of the alleged second trespass, to wit, 17
March 1988, that P14 was prepared by him
based on information provided by PW1 whose
source of knowledge was itself questionable.
I regret I find this attack on the reliability of P14
unacceptable. I accept the testimony of PW1 as
to the circumstances under which he prepared
P14 and that it reflects what he saw at the
vegetable land on the morning of 17 March 1988
when bulldozers of D3 and D4 were engaged in
levelling work thereon. In other words, I believe
him when he says that he saw the demolition of
some structures and the levelling of the plaintiffs vegetable land and that he had taken
photographs of these events. It was but natural
for him to be assisted by PW1 who was on the
site at the time in the preparation of a rough
sketch of the structures and the vegetable land.
It follows, therefore, and I so find - that P14
accurately reflects the extent of the damage
caused by the bulldozers of D3 and D4 on 18
March 1988.
I must now return to consider the question
whether, in fact, PW1 had agreed to accept
RM1,000 to allow D1 to take possession and
[1994] 1 CLJ
level the area etched black in P14, as alleged by

the Development Officer of D1 Goh Huay Guan
(DW1) and his predecessor Chern Eng Hock in
his affidavit.
Counsel for the plaintiffs has painstakingly set
forth particulars of the inherent improbabilities and infirmities in the testimony of DW1, as
well as the inconsistencies which appear upon a
comparison being made between the testimony
of this witness and the affidavit of Chern Eng
Hock at pp. 62 and 63 of his written submissions. I have given careful consideration to these
criticisms not forgetting what had been alleged
by counsel for the defendants in this regard.
It would be tedious and unnecessary for me to
recapitulate these rival contentions and I need
no more than say that I would uphold the
contentions of Counsel for the plaintiffs and
adopt, as my own, his reasons therefor.
I therefore find as a fact that PW1 never agreed

to accept RM1,000 or any other sum, as consideration for allowing D1 to take possession and
level the area etched black in P14 whereon were
the vegetable beds planted by the plaintiffs and
so I find that the testimony of the Development
Officer, Goh Huay Guan (DW1) and the affidavit of Cheng Lye Hiang on this point are
unacceptable.
Did D3 and/or D4 by their servants or
agents cause the damage on plaintiffs vegetable land on 21 August 1988?
I must next consider Goh Huay Guans denial

that on 21 August 1988 neither D3 nor D4 had
levelled the plaintiffs vegetable land or destroyed the plaintiffs vegetable beds thereon
and his claim that D3 and D4 had instead been
working on one Khoo Bak Chuns land on that
day.
Counsel for the plaintiffs has castigated this
part of Goh Huay Guans testimony as a blatant
lie for reasons he has set forth at paras 1 and 2,
p. 65 of his written submission.
After considering these criticisms levelled

against Goh Huay Guans testimony, again not
forgetting the submissions of Counsel for the
defendants, I agree with Counsel for the plaintiffs that the testimony of this witness has left
too many questions unanswered (enumerated
at para 2, p. 65 of plaintiffs written submission)
and the answers to the questions are supplied
by the comment that most probably, DW3s
[1994] 1 CLJ

testimony here is really an afterthought to

justify violation of the interlocutory injunction
granted by this Court in favour of the plaintiffs
to preserve the status quo pending the final
determination of this suit, and I so find.
I therefore have no hesitation in finding as a fact
that it was the servants or agents of D3 and D4
who on 21 August 1988, had levelled the plaintiffs vegetable land and destroyed their vegetable beds thereon.
The conflicting photographic evidence

My attention was also drawn to the conflicting
photographic evidence adduced by both sides
which I should like now to touch on briefly.
According to the testimony of the development
officer of D1 and D3 Goh Huay Guan (DW1), as
at 18 June 1982 there were only five beds with
vegetables growing on the plaintiffs vegetable
land and he produced the photograph D22 in
support. But, D22 evidently shows only a portion of the plaintiffs farm and so is misleading.
On the other hand, the photographs produced
by the plaintiffs, namely, DB(P), 2(a), 2(b), 2(c),
3(a), 3(b), 3(c) which I find as a fact were taken
by the sister-in-law of P1 and P2 Cheng Lye
Hiang (PW1) and do show the whole of the
vegetable lands on the plaintiffs farm just before the trepass on 18 June 1982, present a very
different aspect. I was reminded by Counsel for
the plaintiffs that these photographs had in
fact been exhibited to the affidavit of P1 and P2
filed on 21 June 1982 during interlocutory proceed ings and yet neither D1 nor D2 had at that
time disputed their authenticity or accuracy nor
did they then produce D22 by way of contradiction. These are considerations which by themselves certainly give rise to a supicion regarding
the testimony of DW1 and went further to
undermine his credibility. That suspicion has
been confirmed at the end of the day when I had
to assess his credibility and reliability.
Looking back, so far as this part of the case is
concerned, I am amply satisfied that the plaintiffs have proved on the balance of probability
that
(1) At all material time to this suit, the plaintiffs were and are in lawful possession of
the plot concerned being the portion etched
yellow in Ex P16 and having an area of
approximately 121,000 sq. ft. (or 2.8 acres)
and including the farm, the two dwelling
houses and the structures erected thereon.
57
(2) On 18 June 1982, both D1 and D2 had by

their servants or agents committed acts of
trespass and nuisance, on the portion of the
plot concerned being the area etched black
in Ex P14.
(3) On 17 March 1988, D3 and D4 had by their
servants or agents committed acts of trespass and created a nuisance on the portion
of the plot concerned, being the area etched
orange in Ex P14 and have been in unlawful
occupation of the portion of the plot concerned being the area etched black in P14.
(4) On 21 August 1988, both D3 and D4 had by
their servants or agents committed further
acts of trespass and nuisance on the plot
concerned by levelling the plaintiffs vegetable land and destroying the vegetable
beds thereon.
The quantum of compensatory damages
Now, those being my findings of fact on the

issue of liability and they are findings in favour
of the plaintiffs in respect of both trespass and
nuisance, I must now address the question of
the quantum of damages.
The general rule as to the measure of damages,
a rule equally applicable to tort as to contract,
was defined by Lord Blackburn in Livingstone
v. Rawyards Coal Co. [1980] 5 App Cas 25 at 39
in these terms:
that sum of money which will put the party
who has been injured, or who has suffered, in
the same position as he would have been if he
had not sustained the wrong for which he is
now getting his compensation or reparation.
In Munnelly v. Calcom [1978] IR 387 Henchy J.

said at p. 399
the particular measure of damages allowed

should be objectively chosen by the court as
being that of the particular case, to put the
plaintiff fairly and reasonably in the position in
which he was before the damage occurred, so
far as pecuniary awards can do so.
Before I proceed to assess the quantum of damages I would remind myself of certain other well
established principles which I should keep in
the forefront of my mind in considering this part
of the case.
Firstly, when a plaintiff claims damages from a
defendant he has to show that the loss in respect
of which he claims damages was caused by the
defendants wrong and also that the damages
are not too remote to be recoverable.
Current Law Journal

January 1994
58
Secondly, I would refer to what Lord Goddard

said in Bohham-Carter v. Hyde Park Hotel Ltd
[1984] 64 TLR 177 at 178:
Plaintiffs must understand that if they bring
actions for damages it for them to prove their
damage; it is not enough to write down the
particulars, and, so to speak, throw them at
the head of the Court, saying: This is what I
have lost; I ask you to give me these damages. They have to prove it.
Thirdly, on the quality of evidence expected of a

plaintiff, it is necessary to remember what
Devlin J. (as he then was) said in Biggin Co. v.
Permanite [1951] 1 KB 422 at 438, namely, that
where precise evidence is obtainable the court
naturally expects to have it, where it is not, the
court must do the best it can. Nevertheless, it
remains true to say that that generally difficulty
of proof does not dispense with the necessity for
proof. [See Aerial Advertising Co. v. Batchelors
Peas [1938] 2 AER 788 at p. 796 per Atkinson J]
The case of Ashcroft v. Curtin [1971] 1 WLR
1713 illustrates this point for there the plaintiff
claiming for diminution of profits of his one-man
business failed in his claim despite the evidence
pointing to a decrease in the companys profitability due to the injury, the records relied on
being too rudimentary and the accounts too
unreliable to quantify the loss.
Claim for compensatory damages arising

from trespass on 18 June 1982
I must now consider the plaintiffs claims arising out of the trespass committed by D1 and D2
on 18 June 1982. The sister-in-law of P1 and P2
Cheng Lye Hiang (PW1) has testified on the loss
suffered by the plaintiffs as a consequence of
this trespass as follows:
1. Loss of vegetable and
fruit trees
2. Loss of water piping
system and motor pump
3. Loss of income for area
etched black in Exhibit
P14 at the rate of
RM1,500 per month
from July 1982 to
February 1988
... RM 4,900
...
RM 3,500
h
... RM102,000
As to item (1), Counsel for the defendants has

submitted that there is no evidence of the
vegetable and fruit trees grown on the main
vegetable plot.
[1994] 1 CLJ
But this submission overlooks the defendants

own photographic evidence, being D26, which
indicates a thriving farm. There is also the
testimony of the sister-in-law of P1 and P2
Cheng Lye Hiang (PW1) on this point which I
accept in preference to that of the development
officer of D1 and D3 Goh Huay Guan (DW1) who
testified that there were only a few rows of
planted vegetables whilst the rest was empty.
The impression made upon me by DW1 was that
he was not a witness of truth.
In my view, so far as this branch of the plaintiffs
claims is concerned, the court should not expect
precise evidence and it must do the best it can.
I do not consider this claim in any way unreasonable or excessive and I therefore hold that the
plaintiffs are clearly entitled to the sum of
RM4,900 in respect of the loss of the vegetables
and fruits trees caused by D1 and D2s trespass
on 18 June 1982.
As to item (2), the plaintiffs have claimed
RM3,500 for the loss of the water piping
system and motor pump. It is true that no
receipt was produced in support but the plaintiffs had no cause to keep a receipt of this
sort. On the evidence, I do not consider this
claim in any way excessive, and so I hold the
plaintiffs are also clearly entitled to the sum of
RM3,500.
As to item (3), being the plaintiffs claim for loss
of income derived from the farm in respect
of the area etched black in P14 at the rate of
RM1,500 p.m. from July 1982 to February 1988
amounting to RM102,000.
The evidence relied upon by the plaintiffs to
prove this branch of their claims came from
Cheng Lye Hiang (PW1) who, it was said, had
been working on the farm since she was ten
years of age. I accept that she was and I also
accept that by reason thereof it could be reasonably presumed that she was familiar with the
farming practices and the prices of vegetables,
pigs, chicken and the fruits concerned.
She testified under cross examination that her
estimate of the loss of income was based on rate
provided by the Thean Teik Residents
Assocation.
It was contended by Counsel for the plaintiffs
that her testimony was supported by that of an
Agronomist attached to the University Science
Malaysia, Dr. Kam Suan Peng (PW3) who was
[1994] 1 CLJ

called as an expert witness to prove the extent

of the loss of their income.
There can be no room for a shadow of doubt that
PW3 was an Agronomist of high repute and
integrity. I accept that her whole purpose in
testifying was to assist the court in doing justice
in this case.
customers. Nor, for that matter, did they

produce any income tax returns but I do not
place undue stress on this point because persons
in the position of the plaintiffs may prefer not to
do so even though their earnings may attract
income tax.
In other words, what I am saying is that a

plaintiffs unsupported assertion that he would
receive such and such a price for his fruits or
vegetables does not prove market value much
less that he had a market. It must be proved
aliunde - that is to say, in order to prove that a
plaintiff would have got such and such a price for
the fruits or vegetables, the natural thing to do
would be to call the man who would have paid
the price.
But, having said that it is necessary to probe the

basis of her conclusions regarding the plaintiffs
claim for loss of income from the farm.
It was clear that Dr. Kams testimony was based
upon data obtained from her own study of 12
farms in Thean Teik Estate, not including the
plaintiffs farm, but similar to it. She had also
considered a study of Thean Teik farms made by
the Penang Development Corporation and found
that the results of her own study corresponded
with those of the Penang Development Corporation study which she admitted was more comprehensive than her own.
Having said that, it must be recognised that in
making their claims for damages for loss of
income the plaintiffs were making three assumptions or impliedly relying on three propositions; namely:
(a) that they had a market for the fruits and
vegetables concerned;
(b) that this market had been properly proved;
and
(c) that this market value of the fruits and
vegetables concerned was the proper
basis for an award of damages under this
head.
In my view, propositions or assumptions (a) and

(b) were mistaken because they were never
proved.
The normal way of method of proving market
value in the case of a resale of goods in bulk
would be to call the customers or at the least,
where the parties agree to documentary evidence to tender documents showing the existence of and a dealing with customers. In the case
of a (say wholesale) distribution to several customers, a plaintiff would be expected to adduce
in evidence books or documents showing that he
had a business in the course of which he might
reasonably have distributed these goods and the
price he would have obtained. The plaintiffs in
this case did none of these things; they produced
no business books or accounts or documents
showing the existence of and a dealing with
59
To say that it would be sufficient for a plaintiff

to prove market value and that he had a market
by merely just saying that I could have sold my
fruits and vegetables at such and such a price,
would, at least in a case where a substantial
claim is being made, as in the present case,
dispense with proof of quantum altogether.
That being so, I do not consider that the expert
testimony of Dr. Kam can redeem the weakness
in the proof offered by the plaintiffs of the
alleged loss of income, since her testimony,
which is really theoretical, cannot serve as a
substitute for the proof required to establish
that there was a market for the fruits and
vegetables and that the plaintiffs had a market
along the lines I have indicated.
It follows, therefore, that while I am satisfied
that the plaintiffs have demonstrated the fact of
damages in regard to their claim for loss of
income, I do not consider that they have adduced sufficient evidence as to its amount.
That, however, does conclude the issue, because
the defendants had themselves adduced evidence of the results of a socioeconomic survey
conducted by the District Office of the North
East District, Penang, on behalf of the TriPartite Committee, whose members were representatives of the State Government of Penang, the Developers and the Thean Teik Estate
Residents Association, contained in the report
Ex D53, which Counsel for the defendants
himself urged could not be ignored as it came
from an independent source (see para 23. 7 p. 50
of his written submission). I would treat this as
an admission on the part of the defendants
that the plaintiffs monthly family income from
Current Law Journal

January 1994
60
the farm at all material times to this suit is

correctly reflected therein and was as follows:
P1 RM450 p.m.
P2 RM450 p.m
PW1 RM420 p.m
PW1's Children: Cheng Choon Leng RM280 p.m.
Cheng Choo Hok RM430 p.m.
In the absence of sufficient evidence adduced by

the plaintiffs as to the extent of the loss of their
income by reason of what the defendants did, I
consider that I am entitled to rely on D53, put in
by the defendants, which Counsel for the defendants had urged could not be ignored, and which
I would treat as a document, the contents of
which are admitted by the defendants at least
impliedly if not expressly.
I do not consider that the plaintiffs are entitled
to sue for the recovery of loss of income suffered
by PW1 or her children. Nor, for that matter,
would PW1 or her children be entitled to any
such award as they are not parties to this suit.
The plaintiffs claims so far as this part of the
case is concerned must be confined to loss of
income suffered by P1 and P2 only, they being
the surviving plaintiffs.
Accordingly, I would award in favour of P1 and
P2 and against D1 and D2, in respect of loss of
income for area etched black in P14, for the
period from July 1982 to February 1988: at the
rate of RM900 p.m., the sum of RM60,300 to be
apportioned between P1 and P2 having regard
to their respective incomes aforesaid.
Claims for compensatory damages arising

from trespass on 17 March 1988
I next turn to consider the plaintiffs claims
arising out of the trespass committed by D3 and
D4, by their servants or agents on 17 March
1988.
PW1 had also testified on the loss suffered as a

consequence of this trespass as follows:
1. Loss of vegetables
... RM 3,000.00
2. Loss of fruit trees
... RM 18,000.00
3. Loss of pig sties, chicken

coops, well, utensils and
structures
... RM 40,050.00
As to item (1), being the claim for loss of

vegetables amounting to RM3,000, the Court,
should not, I think, expect precise evidence and
it must do the best it can. I do not consider this
claim in any way unreasonable or excessive and
I therefore hold that the plaintiffs are clearly
entitled to this sum of RM3,000.
As to item (2), being the claim for loss of fruit
trees amounting to RM18,000, for the same
reasons I have given for allowing the claim in
respect of item (1), I would also hold that the
plaintiffs are clearly entitled to this sum of
RM18,000.
As to item (3), being the claim for loss of pig
sties, chicken coops, well, utensils and
structures, amounting to RM40,050, here again
I do not think the Court should expect precise
evidence and it must therefore do the best it can.
that the chicken coops, pig sties, and the other
structures were in a ruinous state and should
not therefore be compensated. In support of the
contention that the structures were in a ruinous
state my attention was directed to certain photographs taken in 1990 by representatives of
the defendants (see DAB p/6 photos at pp. 7A,
7B and 15A; AB2 pp. 96N and 96-0 D25A, D25C
and D25D, which depict abandoned pig sties
and DAB photos at pp. 8A, 8B and AB2 pp. 95
L. 96 M and 96-0 which depict three dilapidated
and abandoned chicken coops).
On the other hand, it was contended by Counsel
for the plaintiffs that the plaintiffs had discontinued their livestock rearing sometime in 1985
as a direct consequence of the defendants acts
of trespass, and so, it was but natural for the
structures concerned to have become dilapidated due to disuse. With this submission I
agree.
It is necessary to examine the conflicting evidence adduced by the parties regarding this
particular claim.
4. Loss of sprinkler system ... RM 12,000.00

5. Loss of farm income at the
rate of RM5,100 per month
from April 1988 and still
continuing (44 x RM5,100) RM224,400.00
[1994] 1 CLJ
For the plaintiffs there was the testimony of

PW1 as to the value of the items concerned meaning their present value. Her testimony on
this point was, to some extent, supported by the
testimony of a contractor cum carpenter Song
Ah Bah (PW4).
It was pointed out by Counsel for the plaintiffs
that this witness had as much as 30 years
experience in the construction field, in particular, in building houses, chicken coops, pig sties,
[1994] 1 CLJ

that he had visited the plaintiffs farm and had

personal knowledge of the structures and building thereon. His estimates were based on what
he considered were current costs of material
and labour.
Song Ah Bah had estimated the current cost of
construction of the three chicken coops to be
RM12 p.s.f. PW1 had testified that one of the
chicken coops was 8 ft x 16 ft, so the cost of
reconstruction of this one at that rate would be
RM1,536 whilst the other two were, she said
each 8 ft x 12 ft, so that the cost of reconstruction
of these two would be RM2,304. So the aggregate cost of construction of these two chicken
coops would be: RM3,800.
Song Ah Bah had also estimated the current cost
of construction of the two pig sties at RM12 p.s.f.
PW1 had testified that each pig stie was 25ft x
75 ft. So, at this rate, the aggregate cost of
construction of these two pig sties would be
RM22,500.
Song Ah Bah had further estimated the current
cost of construction of the storehouse shown in
photographs 6(a) in DAB, with a cement floor,
zinc walls and zinc roof at RM10 p.s.f. whilst the
cost of construction of the other storehouse
shown in potograph 6 (b) in DAB with the
asbestos roof but with no walls and just an earth
floor would be RM7 p.s.f.
4.4 I was shown photographs, identified by the

defendants solicitors as DAB photos pp.
8B, and AB2 p. 95K which depict, what
appear to be, a storehouse. In my professional opinion the cost of erecting a similar
storehouse with an earthen floor would be
RM5.00 per sq.ft.
4.5 I was shown photographs, identified by the
defendants solicitors as DAB photos pp.
8A, 8B and AB2 pp. 95L, 96M and 96-0,
which depict three dilapidated and
abandoned chicken coops. In my professional opinion the cost of building a
similar chicken coop would not exceed
RM4.50 per sq. ft.
I must now choose between the conflicting expert opinion evidence adduced by the parties
regarding this part of the case.
PW1 had testified that the first mentioned

storehouse was 12 ft x 8 ft, so that the cost of
construction at that rate would be RM960, (10
x 12 x 8) whilst the other storehouse was, she
said, 15 ft x 24 ft, so that the cost of construction
of this one would be RM2,520 (7 x 15 x 24)
For the defendants, there was the testimony of

a Chartered Quantity Surveyor Saw Soon Kooi
(DW5) who gave his own opinion as to the
replacement costs of the structures and buildings concerned. He tendered his report Ex. D54
(paras 4.3 and 4.4 and 4.5) which said this:
4.3 I was shown photographs of a pigsty, identified by the defendants solicitors to me as

DAB photos pp. 7A, 7B and 15A; AB2 pp.
96N and 96-0 and D25A, D25C and D25D.
These photographs depict an abandoned
pigsty. In my professional opinion the cost
of building a new pigsty shown in these
photagraphs with its floor, troughs and
partitions being made of concrete and the
roof made of asbestos sheet would cost
about RM6.50 per sq. ft.
61
It is true that in terms of qualifications, there is

obviously no comparison to be made between
Song Ah Bah and Saw Soon Kooi. The former is
a small time contractor cum carpenter in the
position of a mere petty trader who has made no
special study of the subject he was testifying
about, whilst the latter is a Quantity Surveyor,
and therefore in the position of a professional
man. But, must I, on account of that alone, look
askance, at the testimony of Song Ah Bah. I
think not.
It must be recognised that the valuations being
made here by these two witnessess concern the
replacement costs of chicken coops, pig sties,
and store houses. In this field, Song Ah Bah
claimed, without challenge, that he had some 30
years experience whilst Saw Soon Kooi made no
claim to having any experience relevant thereto.
With respect, it does appear to me, therefore,
that there is substance in Counsel for the plaintiffs criticism of Saw Soon Koois opinion as
being impressionistic.
Having seen them both testify, I prefer the

testimony of Song Ah Bah to that of Saw Soon
Kooi regarding this part of the case. However, I
am not prepared to go all the way and accept the
testimony of Song Ah Bah in toto, as I think, that
some allowance must be made for errors in
estimated costs which estimates were, after
all, only rough estimates. I would therefore
reduce his estimated costs by 1/3 allow for
contingencies.
As to item ( 3), therefore, I would hold that the

plaintiffs are clearly entitled to the sum of
62
Current Law Journal

January 1994
RM26,700 (RM40 ,050 x 2) and I award that

3
sum according1y.
As to item (4), being the claim for the loss of the
sprinkler system amounting to RM12,000,
this was based on the unsupported testimony of
PW1 who claimed that her sprinkler was imported from Italy. The person who installed the
sprinkler system was not called to testify.
Counsel for the defendants quite correctly drew
my attention to the fact that under cross examination PW1 had admitted that it was P2 who
paid for the installation of the sprinkler system
but P2 had earlier testified that she did not
know anything about this.
I do not, therefore, consider that the plaintiffs
claim under this head has been properly substantiated. In my view, on the evidence, I do not
think that the plaintiffs would be entitled to any
sum in excess of RM6,000 as replacement costs
of the sprinkler system, and I award that sum
accordingly.
As to item (5) being the plaintiffs claim for loss
of farm income (including loss of income for
the area etched black in P14 at the rate of
RM5,100 p.m. from April 1988 and still continuing, amounted to RM224,400 (RM5,100 x
44), my observations regarding the infirmities
in the plaintiffs claim for loss of income arising
out of the trespass committed by D1 and D2 on
18 June 1982, would apply equally to it but
mutatis mutandis.
Similarly, my observations regarding the value
and worth of Ex D 53, being the report containing the results of the Socio-Economic Survey
conducted by the District Office of the North
East District, Penang, on behalf of the Tripartite Committee, whose members were representatives of the State Government of Penang, the
Developers of Thean Teik estate, and the Thean
Teik Estate Residents Association, would also
apply equally to this part of the plaintiffs claims
but, mutatis mutandis.
I also consider that the period of 44 months loss
of income claimed in respect of past loss of farm
income is a fair period, to adopt in assessing
damages under this head.
Accordingly, I would award in favour of P1 and
P2, and against D3 and D4, in respect of loss of
farm income (including loss of income for the
area etched black in P14) for the period of 44
[1994] 1 CLJ
months with effect from April 1988, that being

the specific period claimed, at the rate of RM900
p.m., the sum of RM39,600 to be apportioned
between P1 and P2 having regard to their
respective incomes aforesaid.
I have not overlooked the plaintiffs claim for
loss of future profits under this head. But,
having carefully considered it, I do not consider
that the plaintiffs have substantiated it sufficiently, or at all. Upon the evidence, I do not
consider that it has been proved that the plaintiffs would have continued their farming activities indefinitely had D3 and D4 not committed
the act of trespass complained of.
Claim for exemplary damages
I next turn to consider the plaintiffs claim for
exemplary damages.
In a famous passage in his judgment in Rooks v.

Barnard [1964] AC 1129 Lord Devlin, with the
unanimous approval of all his brethren reviewed the law and laid down that exemplary
damages could only be awarded in three categories of cases, namely, oppressive action by officers of the Crown; secondly, cases where a
defendant with a cynical disregard for a plaintiffs
rights has calculated that the money to be made
out of his wrongdoing will probably exceed the
damages at risk, and thirdly, where statute
expressly authorised it.
In addition Lord Devlin went further and spelt
out three considerations applicable to all cases
of exemplary damages:
first, that the plaintiff cannot recover such
damages unless he is himself the victim of
such punishable behaviour. Secondly, exemplary damages can be used both for and
against liberty, and are a punishment without the safeguard of the criminal law, so that
the weapon must be used with restraint, and
the house might have to place some arbitrary
limit on such awards despite the respect due
to assessment of damages by juries. Thirdly,
the financial means of the parties, though
irrelevant to compensatory damages are relevant to exemplary damages.
The fact that exemplary and compensatory
damages must thus be presented differently
to the jury, Lord Devlin also indicated, did not
necessarily mean that the jury must make
two separate awards. It should, however, be
directed that exemplary damages should only
come into play if it regards the amount which
it has fixed for compensation as inadequate
[1994] 1 CLJ

in the circumstances to punish and deter the

defendant and mark its disapproval for his
conduct.
In Cassel & Co. v. Broome [1972] 1 AER 801

Lord Morris explained the ambit of the expression calculated to make a profit used by Lord
Devlin in Rookes v. Barnard. This is how he put
it at p.843:
There may be exemplary damages if a defendant has formed and be guided by the view
that, though he may have to pay some damages or compensation because of what he
intends to do, yet he will in some way gain (for
the category is not confined to money making
in the strict sense) or may make money out
of it, to an extent which he hopes and expects
will be worth his while. I do not think that
the word calculated was used to denote some
precise balancing process. The situation contemplated is where someone faces up to the
possibility of having to pay damages for doing
something which may be held to have been
wrong but where nevertheless he deliberately
carries out his plan because he thinks that it
will work out satisfactorily for him.
The particular facts upon which Counsel for the

plaintiffs relied as justifying an award of exemplary damages may conveniently be taken from
his written submission were these:
1. In 1982, D1 and D3 required the portion
etched black in P14 for their development but
took no steps to obtain possession by lawful
means. The tenancies had not been determined and the plaintiffs' equity satisfied. No
legal proceedings were commenced to recover possession, although one month before
the trespass P1 and P2 by their solicitors had
warned D1 not to enter the portion. They
took the law into their own hands and
levelled the portion.
2. The earthwork carried by D1 and D3 was
illegal since therewas no approved
earthworks plan. (See evidence of DW4 under cross-examination). There was no approved plans then for the construction of
the sewage treatment plan and the LLN
Substation. The object of the exercise was to
harass and intimidate the farmers including the plaintiffs into settling with D1 on
D1s terms.
3. Instead of admitting, and being sorry, for
their unlawful act, the defendants have fabricated the incredible story that PW1 consented to their levelling the said portion.
4. Because the plaintiffs instituted legal proceedings against D1 and D2, D1 induced
Khoo Kongsi to issue notices purportedly
terminating the tenancies.
63
5. In 1988, although there was a case pending in

court in which the issue was whether the
plaintiffs possession of the portion of land
occupied by their farm and houses were protected by equity and law, D3 and D4, with
impunity and without any regard for the
pending case and without waiting for a judical
decision on the rights of the plaintiffs with
regard to the said portion, entered the plaintiffs farm by force and demolished the
chicken coops, pig sties and structures and
levelled the vegetable farm.
6. In breach of the injunction dated 7 April 1988,
D3 and D4 have committed the following
unlawful acts:
(i) On 21 August 1988, they levelled a part
of the vegetable farm subject to the injunction. The defendants disputed this
and contended that on that day they
were working on Khoo Bak Chun's farm.
PW1 testified that the defendants were
working on her farm. She produced
photographs in support of her story.
Why did the defendants not call Khoo
Bak Chun to testify to their story. An
adverse inference should be drawn
against the defendants for failing to call
Khoo Bak Chun.
(ii) DW4 admitted that D3 and D4 constructed an LLN substation and sewage
plant on the portion etched black in P14
after 7 April 1988, that is, the date of
the injunction order.
(iii) D3 and D4 have destroyed the drainage
system of the farm and raised the
ground level of the adjoining land
causing the flooding of the farm.
(iv) In breach of the injunction D3 and D4
have been extrating water from the pond
in the farm.
(v) D3 and D4 caused dangerous objects to
drop on the roof of House No. 259-H
during their building operations.
In summing up this part of his claim, Counsel

for the plaintiffs said this:
It is clear from the above that D3 and D4 were
using harrassing tactics, including the destruction of the plaintiffs' source of livelihood, to recover possession of the portion of
land in the plaintiffs' possession. They did not
institute any legal proceedings against the
plaintiffs to recover possession of the land.
Although the plaintiffs commenced legal proceedings against D1 and D2 in 1982, D3 filed a
counterclaim for possession only in 1990, that
is eight years later. If there is to be any respect
for the law, the court should show its unqualified disapproval of the defendants' arrogant display of power and influence and contemptuous disregard for the law by the award
of exemplary damages.
64
Current Law Journal

January 1994
The following comment by Lord Denning in

Drane v. Evangelou & Ors (ibid) would equally
apply to this case.
As this case unfolded before us, the circumstances in which these young people were
forced out of the house, the in-laws being
pushed in, the landlord ... not complying with
the injunction ... it did seem to be a case in
which, in Lord Devlin's words, it was necessary
to teach the landlord a lesson'.
In reply, Counsel for the defendants submitted

that the plaintiffs were not entitled to examplary
damages because:
(a) D1 and D3 were entitled to develop; the land
under the agreements with the consent of
Khoo Kongsi;
(b) The plaintiffs cannot claim to be fee simple
owners of the lands and after the expiry of
the notices to quit they were trespassers.
(c) D1 and D3 carried out the demolition works
in the honest belief that they were entitled
to do; D1 in the belief that it had the consent
of PW 1 and D3 after the failure of the
negotiations, and in the belief that it was
entitled to following the decision of
Mustapha Hussain J. dissolving the injunction and the decision of the Supreme Court
in Poh Swee Siang's case that the remedy of
self-help was available in this country.
As to (b), I have already given my reasons for

finding that after expiry of the notices to quit the
plaintiffs continued to be in lawful occupation
of the vegetable lands and the two dwelling
houses, and I need say nothing more about this
point.
As to (c), Counsel for the defendants has argued
that the plaintiffs are not entitled to claim
exemplary damages on three separate grounds;
namely:
(1) that D1 and D3 were entitled under the
joint venture agreement with the trustees
of Khoo Kongsi to develop the lands there
in described including the plot concerned;

(2) that upon expiry of the notices to quit, the
plaintiffs continued in occupation of the
vegetable land and the two dwelling houses
Nos. 258K and 259H as trespassers and
that having regard to the decision of
Mustapha J dissolving the injunction
hereinbefore mentioned, and the decision
of the Supreme Court in Poh Siew Siang's
(ibid) case, D1 and D3 were entitled to
invoke the common law remedy of self-help
by using reasonable force to eject the plaintiffs; and
(3) that in any event, D1 and D3 had carried
out the demolition works with the consent
of PW1
I regret I cannot accede to any of these submissions for they fail to take into account or give
proper weight to the following facts:
It would be more convenient if I now considered

the submissions of Counsel for the defendants.
As to (a), I do not consider that the fact that D1
and D3 were entitled to develop the land under
the joint venture agreement with Khoo Kongsi,
would also provide them with a license to act in
disregard of the plaintiffs' rights in the plot
concerned. I have already made my finding as to
why I consider that the D1 and D3 had committed the acts of trespass concerned and so I need
say nothing more about this point.
[1994] 1 CLJ
In the present suit the primary issues were:

What was the area of the land of which the
plaintiffs were in possession? Whether their
tenancy thereof and their tenancies of the two
dwelling houses thereon, had been duly determined by the notices to quit served upon them,
assuming the plaintiffs' occupation were not
protected by an equity or equitable estoppel
and, alternatively, if it were not so protected? In
the case of dwelling house 258K, a further issue
was: Whether the plaintiffs were entitled to
invoke the protection of the Control of Rent Act
1966?
For the defendants', it was contended that the
tenancies of the vegetable lands and the two
dwelling houses were mere monthly tenancies,
which, upon termination by notice to quit, rendered the plaintiffs' continued occupation
thereof, unlawful and that they were therefore
mere trespassers.
But with indecent haste, and without waiting
for the determination of the issues aforesaid by
the Court, D3 and D4, entered the plaintiffs'
vegetable land by force of arms, levelling it and
in the process, demolishing the chicken coops,
pig sties, storehouses and other structures
thereon.
Not content with these acts of wanton destruction, D3 and D4 went further and violated an
injunction of this Court granted on 17 April 1988
in the following way:
(a) On 21 August 1988, they levelled a part of

the plaintiffs' vegetable land and then
[1994] 1 CLJ
(b)
(c)
(d)
(e)

claimed that they were working not on the

plot concerned but Khoo Bak Chun's land.
However, Khoo Bak Chun was not called to
testify and I hjave already found having
regard to the testimony of PW1 - which I
believe - supported by the photographs she
produced, that D3 and D4 were, at the
material time, indeed working on the plaintiffs' vegetable land.
It was freely admitted by DW4 that D3 and
D4 had constructed an LLN substation and
sewage plant on the area etched black in
P14 subsequent to the date of the injunction dated 7 April 1988.
D3 and D4 had also, subsequent to the
grant of the injunction, destroyed the drainage system on the plaintiffs' vegetable land
and raised the ground level of the adjoining
land, thereby causing the vegatable land to
become flooded.
D3 and D4 had also, subsequent to the
grant of the injunction, extracted water
from the pond situated in the plaintiffs'
vegetable land.
D3 and D4 had finally, in the course of their
construction work on neighbouring land,
caused objects to drop upon the roof of
dwelling house 259H, causing damage, distress and anxiety to occupants.
I have already found upon the facts that there is

no truth in the allegation that D3 and D4 had
carried out the demolition works with the consent of the plaintiffs' sister-in-law Cheng Lye
Hiang (PW1).
Trespass is normally associated with intentional acts even through committed by mistake;
for mistake is no defence. [See Basely v. Clarkson
83 ER 565]. It follows, therefore, that the story
of D1 and D3 that they carried out the demolition works concerned in the honest belief that
they were entitled to do so (even if true, and this
I cannot accept) is no defence. Their mistaken
view of the law, in particular, the effect of the
decision of Mustapha J. in dissolving the injunction and the decision of the Supreme Court in
Poh Siew Siang's case as to the availability of
self-help is therefore no defence to an action for
trespass. It is also in my view, no answer to the
claims for exemplary damages having regard to
the particular circumstances of this case.
I would go further and find, on the facts, that the
probabilities are that the defendants, who at all
material times were represented by solicitors,
65
must have known that their rights to develop

the lands under the joint venture agreement
entered into with the trustees of Khoo Kongsi
could provide them with no defence to an action
in trespass by occupiers threof in the event of
their notices to quit being held in a court of law
to be ineffective to terminate the tenancies of
those occupiers. If therefore, the defendants
chose to take the risk in case the issue of validity
of the notices to quit should be answered against
them, they have only themselves to blame.
Turning to the submissions of Counsel for the
plaintiffs on the question of exemplary damages, I have recapitulated these submissions
and it is my considered view that there is
substance in them.
The evidence amply justifies the conclusions
both of fact and law for which he is contending
and I accordingly uphold them.
Assessment of the quantum of exemplary

damages
The next question which requires consideration
is what is the appropriate sum to award the
plaintiffs by way of exemplary damages.
In Rookes v Bernard, Lord Devlin expressed the

view that awards of exemplary damages should
be moderate and that the resources of the parties was a relevant consideration. It follows
from this that a modest award would make no
impact on a defendant who is well-off, while
conversely, even a modest award could work a
great hardship on a defendant of modest means.
The other factor which must be taken into

consideration is the quantum of the compensatory award (per Lord Devlin in Rookes case at p.
1128) as well as the conduct of the parties right
down to the time of the judgment. See Praed v.
Graham [1889] 24 QBD 53.
In the circumstances, in so far as the claims

arising from the trespass on 18 June 1982 are
concerned, I would award in favour of the plaintiffs against D1 and D2 the sum of RM20,000 by
way of exemplary damages, which would be
little more than 25% of the compensatory damages amounting to RM68,700 I had awarded
them in respect of the losses suffered by them
arising from that trespass.
Turning to the claim for exemplary damages
arising from the acts of trespass on 17 March
1988, committed by D3 and D4, it is self-evident
66
Current Law Journal

January 1994
that these acts were considerably more serious

than those attributable to D1 and D2, bearing in
mind the damage caused which has been highlighted in the submissions of Counsel for the
plaintiffs. Moreover, it must also be self-evident
that D3's and D4's conduct has been more
reprehensible than that of D1 and D2, bearing
in mind the violations of the injunction granted
by this Court. I am satisfied, for the reason
stated, that these violations were deliberate
and in utter disregard of the plaintiffs' rights
and the authority of this Court.
It follows that any sum which this court awards
by way of exemplary damages for these acts of
trespass must reflect the gravity of that wrongdoing. In the circumstances, I would award in
favour of the plaintiffs and against D3 and D4
the sum of RM40,000 by way of exemplary
damages in respect of the acts of trespass committed on 17 March 1988 and on 21 August 1988.
DATO LOW NAM HUI

v.
VU SIEW CHIN (F)
I would add that in making the two awards of

exemplary damages I have kept in the forefront
of my mind the principles and the considerations enunciated by Lord Devlin in Rookes v.
Barnard, to which I have referred.
I further award in favour of the plaintiffs interest at the rate of 6% p.a. on all compensatory
damages awarded for the period from the date
of service of the writ until the date of judgment
under s. 11 of the Civil Law Act 1956, and
thereafter, at the rate of 8% p.a. until satisfaction under 0. 42 r. 12 of the Rules of the High
Court 1980.
[1994] 1 CLJ
Finally, I award in favour of the plaintiffs the

costs of the action to be taxed by the Senior
Assistant Registrar in default of agreement
between the parties.
HIGH COURT, JOHOR BAHRU

DATO ALAUDDIN BIN DATO MOHD.
SHERIFF J.
[DIVORCE PETITION NO. 47-139-1986]
24 OCTOBER 1993
FAMILY LAW: Respondents application for ancillary relief - Petitioners application to strike
out - Whether respondents application complied
with the provisions of r. 56 of the Divorce and
Matrimonial Proceedings Rules 1980 - Whether
respondents application defective - Whether respondents application devoid of merits.
The petitioner filed his petition for dissolution of

his marriage in December 1986. The respondent
did not file any answer to the petition or to the
amended petition. The petitioner was granted a
decree nisi on 12 January 1988 which was made
absolute on 11 April 1988. The respondent and
her Counsel was present at the hearing of the
petition but did not make any application for
ancillary relief under r. 56(1) of the Divorce and
Matrimonial Proceedings Rules 1980 (the Rules).
In September 1992 the respondent made an
application for ancillary relief and the petitioner applied to strike out the respondents
application on the grounds that the respondent
had failed to obtain leave of Court under r. 56 of
the Rules before making the application and the
petitioner therefore contended that the
respondents application was defective. The
petitioner further contended that the
respondents application was not made bona
fide and was devoid of merits.
g
Reported by Mohamed Aslam bin
Mohamed Mydin
Held:
[1] Rule 56 of the Rules makes it mandatory
that an application for ancillary relief must be
made in the petition or answer. In the event that
no such application is made either in the petition or answer then leave of Court is required
under r. 56(2)(a) of the Rules. As the respondent
had failed to obtain leave, the respondents
application was defective and was therefore not
properly brought before the Court.
[2] In any event the respondens own substantial assets and financial resources are more
than adequate to attend to all her reasonable
needs. She has no justification or need for the

Cheng Kang Huan V Perumahan Farlim

Uploaded by

Copyright:

Available Formats

Cheng Kang Huan V Perumahan Farlim

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Cheng Kang Huan V Perumahan Farlim

Uploaded by

Copyright:

Available Formats

Cheng Hang Guan & 2 Ors. v.

CHENG HANG GUAN & 2 ORS.

TORT: Trespass to land - Mistake is no defence Damages.

The plaintiffs (P1, P2 and P3) claimed that they

Nos. 258K and 259H (the two dwelling houses)

Current Law Journal

entering, trespassing and/or carrying out works

The defendants advanced various objections

(ix) Whether the defendants committed trespass and nuisance; and

Cheng Hang Guan & 2 Ors. v. Perumahan

maintain the suit to protect trust

[5] Only if the plaintiffs are held by the Court

the period of a notice to quit. Whereas

[10] (a) The Court is satisfied that promises or

Current Law Journal

expenditure by installation of a sprinkler system.

Cheng Hang Guan & 2 Ors. v. Perumahan

land of another, the landowner standing by without asserting his rights,

(i) oppressive action by officers of the Crown;

Current Law Journal

calculated that the money to be made out

[Plaintiffs claims allowed with costs].

Leong San Tong Khoo Kongsi (Penang) Registered &

Cheng Hang Guan & 2 Ors. v. Perumahan

Central London Property Trust v. High Trees House

Griffiths v. Williams [1977] 248 EG 947 (refd)

Current Law Journal

Edgar Joseph Jr. SCJ:

In this judgment, unless the context otherwise

The essential facts said to underly the plaintiffs

At all material times to this suit the registered

1.11 The plaintiffs family has been staying on

Cheng Hang Guan & 2 Ors. v. Perumahan

1.15 Separate rent receipts were issued in

There is no record of any decision by the

Conditions were endorsed on the receipts

"Q. When a tenant of vegetable farm dies,

Q. So long as they continue to pay rents,

developers Farlim came on the scene in the late

1.17 After the assurance given by the visiting

As for the facts said to underlie the defendants'

Current Law Journal

to add D3 and D4, on the ground that it was they

It was because of this that I had , at the outset

There is another matter I must refer to. Some

Whereupon Counsel for the plaintiffs enquired

from the alleged wrongful acts committed by

Was the order for re-amendment of the

Cheng Hang Guan & 2 Ors. v. Perumahan

question whether exemplary damages ought to

I also note that the statement of claim as

My attention was also drawn to the following

(f) By a letter dated 8 April 1989 the

If the order dated 21 August 1991 giving

In reply, Counsel for the plaintiffs had drawn

Leave to re-amend the amended statement of

Current Law Journal

on 29 August 1991, - that is to say, well within