FACTS OF THE CASE

The Plaintiff, bought two piece of land and was the lawful attorney for the
registered proprietor of the two piece of land in Kuala Lumpur, known as
Area 1 & Area 2. It was a business area which was just developing and
the plaintiff build a hotel. He developed a hotel in one land (Area 1) and a
parking lot on the other land (Area 2). While the Defendants land, was
located in between the Plaintiffs land. To enable free access, the two
areas for the convenience of the Plaintiff, the Plaintiff constructed a
stretch of road right across the Defendants land (the access road). The
Defendant barricaded the access road by erecting concrete bollards thus
obstructing access and thorough fare between the two areas (the access
road).- cause of action The plaintiffs case was that the construction of
the access road was in accordance with the plans approved by the
authorities.
The plaintiff wanted to remove the concrete bollards and to restrain the
defendant from obstructing the plaintiff from having free access and
thorough fare through the access road.
The Defendant claims that the construction of the access road across its
land constituted a trespass. Not only that, the defendant also restrain the
plaintiff from encroaching onto and/or using the access road and also to

ISSUES
Whether Plaintiff is entitled to remove the
concrete bollards?
Whether Plaintiff can apply to restrain the
Defendant from obstructing access and
thorough fare between the two areas ( the
access road)

PLAINTIFFS CASE
LOCUS
STANDI

Government of Malaysia v Lim Kit Siang (Abdul Hamid CJ):

Plaintiff must possess an interest in the issues raised in the proceedings
Where the private interest of plaintiff relies on the interest of public,
plaintiff has to get AG consent to create the relator relationship
O 53 ROC a party before commencing a civil action must prove that she
has adversely affected because of the act of another party
QSR Brands Bhd v Suruhanjaya Sekuriti & Anor
for an applicant to pass the adversely affected test, the applicant has to at
least show he has real and genuine interest in the subject matter.
BASED ON THE PRESENT CASE:
He was the lawful registered attorney for the registered proprietor of two
pieces of land
Plaintiff has constructed the access road through Defendants land (which
is in the middle) in accordance with the plans approved by the authorities.
Hence because of Defendants action on barricaded the access road by
erecting concrete bollards thus obstructing access and thorough fare

CAUSE OF
ACTION
The cause / set of circumstances which leads up to an action in court.
Leetang v Cooper
Cause of action is a factual situation, the existence which entitles one
person to obtain remedy from the court against another person
BASED ON THE PRESENT CASE
The cause of action accrued when Defendant barricaded the access road by
erecting concrete bollards thus obstructing access and thorough fare between
the two areas (the access road).

TIME
LIMITATION

As the subject matter of this suit is concerning land, thus according to

Section 9 of Limitation Act provided where an action is made in respect of
land and the recovery thereof, the period of limitation would be 12 years
However, based on this case there is no date/time stated thus assuming it is
still within limitation period, Plaintiff can take action.

LAW
APPLICABL
E
NATIONAL LAND CODE 1965
According to section 389(1) of NLC:
A land administrators right of way may be either:
(a)Private right of way; or
(b)Public right of way

WHAT IS
LAROW
LAND ADMINISTRATOR RIGHT OF WAY
Section 388 of NLC
It is a right of way created by the Land Administrator over
alienated land, to provide access from that land to a public
terminal.

KELAB RENANG PULAU PINANG V PENTADBIR TANAH DAERAH

TIMUR LAUT, PULAU PINANG & ANOR [2014] 6 MLJ 134

A private of way created for the benefit of the state

authority or the proprietor or occupier of any alienated land
is referred to as a private right of way s. 389(1)(a)
A private right of way created for the benefit of the
proprietor or occupier of alienated land shall authorize the
proprietor or occupier and persons acting with the express or
implied consent of the proprietor or occupier to pass and repass between the land and a public terminal s. 389(3)

What is public
terminal &
landlocked?

S. 387 defines public terminal as:

foreshore, or a river, railway station or public road
The word landlocked is interpreted as fully or almost enclosed by land.
It is settled law that where there was an alternative right of way, Land
Administrator should take that fact into consideration.

HOW TO APPLY
FOR LAROW?
Section 390(1) of NLC
The proprietor or occupier of any alienated country
land may apply to the Land Administrator in Form
28A for the creation of a private right of way
Section 390(2) of NLC
Upon receiving an application for a private right of
way shall either hold an enquiry or make
investigation
Section 390(3) of NLC
If on holding an enquiry or make investigation
satisfied that it is expedient for a private right of
way, the Land Administrator shall order creating the
right of way

In the present case, the plaintiff has acquired

approval from the land authorities on the plan of the
road.
This means, the Land Administrator has granted a
private right of way to the plaintiff for the construction
of the access road.
It is no longer an arguable issue as it is a settled law
that Land Administrator has the right to grant a private
right of way in the case where he finds it is expedient
to do so.
(Stated in Si Rusa Inn Sdn Bhd & Ors v The
Collector of Land Revenue, Port Dickson & Ors
[1987] 1 MLJ 147)
The Defendant has no right to restrain the Plaintiff
from using the road to access to the Plaintiffs land
(Area 1 & 2).
Therefore, the Plaintiff in his prayer:
i. for the Defendant to remove the concrete bollards;

REMEDY

1) The Plaintiff is entitled to apply for

prohibitory injunction towards the
Defendants by removing the
concrete bollards and restraining
Defendants from obstructing Plaintiff
in accessing the road freely
2) The Plaintiff may claim for general
damages for the lost he has suffered
in his business along the time that
Defendant barricaded the access
road

DEFENDANTS
CASE
ISSUES
Whether Plaintiff has done an act of
trespass on the defendants land?
Whether land administrator(authority) is
correct in granting privates right of way to
the Plaintiff?

WHAT
CONSTITUTES
TRESPASS TO
LAND?
1. Mental state of trespasser
There exists an intention to trespass
The act was done voluntarily
The interference is foreseeable as a
consequence of the trespassers act.
2. Interference
entering land in anothers possession
Remaining on anothers land
Entering or placing an object on
anothers land
Interference to airspace

LAROW ISSUE
LAROW is created by the Land Administrator over alienated land to
provide access between any land and a public terminal with or
without concurrence from the proprietor
In the case of Kelab Renang Pulau Pinang v. Pentadbir Tanah,
Daerah Timur Laut, Pulau Pinang&Anor , it differentiate the
meaning of private and public.
private right of way created for the benefit of the state authority or
the proprietor or the occupier of the alienated land.
private right of way created for the benefit of the public is referred
to as a public right of way.
From the situation given we can see that the intention of the
Plaintiff in constructing the hotel and the parking lot is for the
commercial purpose.
the access road built by the Plaintiff is for the public purposes and the
land administrator in this case is making wrong decision in
granting private right of way to the Plaintiff.

 The other issue is whether it is expedient to create a right of way.

Expedient means more than mere convenience or pleasure.
Case: Si Rusa Inn Sdn. Bhd. & Ors. v. The Collector Of Land
Revenue, Port Dickson & Ors
a Collector must be satisfied that access was not otherwise
reasonably available and that the word "reasonably" did not mean
"conveniently".
Respondent in this case wanted a shorter, or much shorter route to
the sea for swimming and allied activities.
In this case, the right of way does not granted because there is
another alternative route and there is no urgent necessity
Inconveniences factor is not the good reason to apply right of way.
When we look into the situation given, there is no urgent necessity for
the land administrator to grant right of way. Land administrator make
wrong decision in granting the right of way to the Plaintiff.

REMEDY
1. General damages
. Before damages could be awarded, two elements must be fulfilled;
trespass has actually occurred
. He has suffered some damage as a result of the trespass.
. However, it must be noted that trespass to land is actionable per se in the
sense that it does not require the prove of damage as long as an act of
trespass has been established.
Ong Ah Long v Dr S Underwood [1983] 2 MLJ 324
. General damages are simply compensation that will give the injured party
reparation for the wrongful act and for all the natural and direct
consequences of the wrongful act so far as money can compensate. It is a
kind of damages that the law presumes a person will incur as a consequence
of a tort.
. When the plaintiff encroached onto the defendants land, the affected
land was damaged due to the plaintiffs conduct in constructing a stretch
road across the defendants land. The land was badly affected that the
defendant would not be able to repair it immediately and even if the

2. Exemplary damages - It is awarded to deter someone from

repeating his act in future.
Although the plaintiff knew that the defendant did not give his consent
with his act in constructing a stretch road across the defendants land
and this was clearly expressed when the defendant barricaded the
access road by erecting concrete bollards, the plaintiff still wanted to
remove the concrete bollards and restrain the defendant from
obstructing the plaintiff from having free access across the defendants
road.
The plaintiffs conduct had resulted major profit since they used a
shorter road in connecting the parking lot and hotel instead of finding
another way without encroaching the defendants land
IOI Corporation Bhd v Gemencheh Granite Sdn Bhd [2015] 10 CLJ
332
The plaintiff was awarded the exemplary damages because although
the defendant knew about the trespass and a notice had been sent by
the plaintiff, the defendant deliberately and intentionally carried out the
trespass. An award for exemplary damages was justified as the
defendant felt that the gain from the deliberate trespass would outweigh
any compensation it might have to pay

 The third possible remedy that the defendant could

seek for is injunction. Injunction simply means an
order from the court preventing a repetition of the
defendants act or it may be an order to do something
positive. This is an additional remedy and may be
obtained in addition to general damages where
damages alone are not sufficient as a remedy.
In this case, the defendant can apply for an order of
injunction requiring the plaintiff to cease his act in
trespassing onto the defendants land. The application
for this injunction could be made interlocutory during
the commission of the act alleged and that the order
that will be issued later is served as a temporary
prohibition before the case is brought to the court. Its
function is to prevent the alleged trespass from
continuing until the case is decided.

CONCLUSION

Therefore, the defendant in his

prayer could claim for
General damages
Exemplary damages
Prohibitory injunction