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v.
SENGOK SABANG & ANOTHER CASE
High Court Sabah and Sarawak, Bintulu
John Ko Wai Seng JC
[Suit No: 22-34-2007 (BTU), 22-35-2007 (BTU)]
6 January 2012
Tort: Trespass to land - Encroachment - Defendants taking and harvesting fresh oil
palm fruits from plaintiff s land - Whether proven - Plaintiff registered proprietor in
possession of land at time of trespass - Defendants claiming native customary rights
over land - Whether valid defence - Whether plaintiff entitled to reliefs of injunction
and damages
These were two actions of the plaintiff which arose after the respective
defendants ie, DW1 and DW2 started taking or harvesting fresh oil palm fruits
(FFB) from the plaintiff s land situated in the Kemena Land District (the
land). The plaintiff prayed for the following reliefs against the defendants, inter
alia: (i) for an injunction to restrain the defendants from entering any part of
the land and from stealing, taking or harvesting any FFB; (ii) general damages,
exemplary damages and special damages for trespass, stealing or wrongful
harvesting of FFB from the land; and (iii) interests and costs. On the other
hand, the defendants filed a defence and counterclaim denying trespass and
asserted their alleged Native Customary Rights (NCR) over the land.
Held (allowing the plaintiff s claim with costs; dismissing the defendants
counterclaim with costs):
(1) The defendants witnesses did not advance any credible evidence to support
their NCR claim over the land. The defendants not only failed to establish the
creation of NCR by their evidence, res judicata had also set in by virtue of the
earlier orders of the court against the defendants claim for NCR over the land.
In consequence, the counterclaim against the plaintiff to set up NCR over the
land was dismissed. (paras 20-21)
(2) There was no dispute that the plaintiff was the registered proprietor in
possession of the land at the time of the trespass. It was trite that an aggrieved
owner of the land upon which trespass was committed was entitled to
damages and perpetual injunction against anyone trespassing into the land,
notwithstanding that the source of the trespass had already been in existence
and whether he knew or had notice of it. On a balance of probability, the
plaintiff had adduced sufficient evidence to prove that the defendants had
trespassed onto its land for the purpose of illegally harvesting FFB from the
land. Further, with the dismissal of the defendants counterclaim, the plaintiff
had also established its case of trespass on its land against the defendants.
(paras 29, 31 & 37)

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Case(s) referred to:

Awang Osen Bin Awang Mat v. Norhazlena Bte Abdurani & Ors [2004] 4 MLJ 238
Chen Yue Kiew v. Angkasamas Sdn Bhd [2003] 3 CLJ 781 CA (refd)
Cheng Hang Guan & Ors v. Perumahan Farlim (Penang) Sdn Bhd & Ors [1993] 3 MLJ
352 (refd)
Karuppannan Chellapan v. Batakrishnen Subban [1994] 4 CLJ 479 FC (refd)
MBF Property Services Sdn Bhd v. Madihill Development Sdn Bhd (No 2) [1998] 4
CLJ 136 (refd)
Ng Yee Fong & Anor v. Ew Talalla [1986] 1 MLJ 25 (refd)
Segar Restu (M) Sdn Bhd v. Wong Kai Chuan & Anor [1994] 4 CLJ 757 (refd)
Subramaniam a/l NS Dhurai v. Sandrakasan A/L Retnasamy & Ors [2005] 3 CLJ
539 (refd)
Superintendent Of Lands & Surveys, Bintulu v. Nor Anak Nyawai & Ors and Another
Appeal [2005] 3 CLJ 555 (refd)
Legislation referred to:
Evidence Act 1950, s 114(g)
Federal Constitution, Art 13(1)
Sarawak Land Code Cap 81, s 15(1)
Counsel:
For the plaintiff : Henry Ling; M/s Ling & Wong
For the defendant: Sam Laya; M/s Sam & Co
JUDGMENT
John Ko Wai Seng JC:
I. Suit
A. Plaintiffs Action
[1] These two actions of the plaintiff arose after the respective defendants who
are DW1 and DW2 both from Rumah Sengok, Sungai Binyo, Pandan, Ulu
Bintulu started taking or harvesting fresh oil palm fruits or Fresh Fruit Bunches
(FFB) from the plaintiff s land described as Lot 22 Block 34 Kemena Land
District (the Land).
[2] It was agreed for the cases of DW1 in Suit No: 22-34-2007 (BTU) and
DW2s Suit No: 22-35-2007 (BTU) to be heard together and the court was
to rely on the evidence taken from DW1s Suit No: 22-34-2007 (BTU) as the
reference point to decide both cases.

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[3] The plaintiff prays for the following reliefs against DW1 and DW2:
(i) An injunction to restrain the defendant whether by himself, his
agents or servants or otherwise whosoever from entering any part
of the land and from stealing, taking or harvesting any fresh oil
palm fruits or Fresh Fruit Bunches (FFB) from the land;
(ii) General damages for trespass.
(iii) Special damages for the fresh oil palm fruits or FFB stolen or
harvested from the land;
(iv) Exemplary damages in respect of for trespass and stealing or
wrongful harvesting of fresh oil palm fruits or FFB from the land;
(v) Interest on damages at 4% per annum on such damages from the
date of the writ till the date of full payment against the defendant;
(vi) Costs to be taxed unless agreed.
B. Defendants Defence And Counterclaim
[4] DW1 and DW2 respectively filed a defence and counterclaim (Encl 26)
and further filed amended defence and counterclaim (Encl 50 and 53) denying
trespasses and asserted their alleged Native Customary Rights (NCR) over the
land.
[5] The amended counterclaim was for the following remedies and relief:
(i) a declaration that the defendant and/or the residents of the
long houses (named as Rumah Banyang, Rumah Tumpa,
Rumah Nyipa and Rumah Dungat and/or Rumah Madel) have
customary rights in or over the said land or Lot 22 Kemena Land
District or parts thereof;
(ii) alternatively, a declaration that the defendant and the residents of
the aforesaid longhouses are in lawful occupation or possession
of the said land or Lot 22 Kemena Land District or parts thereof;
(iii) a declaration that the issuance of the said provisional lease over
the said land or Lot 22 Kemena Land District was/is null and
void ab initio for violation of s 15(1) of the Sarawak Land Code
Cap 81 or art 13(1) of the Federal Constitution;
(iv) alternatively, the said provisional lease was issued subject to the
native customary rights of the defendant and the residents of the
aforesaid longhouses in or over the said land or Lot 22 Kemena
Land District or parts thereof;

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(v) a declaration that the plaintiff or its agents or servants was/is

wrongfully trespassing on the defendants said land in Lot 22
Kemena Land District;
(vi) a decree of perpetual injunction against the plaintiff, the plaintiff s
servants and/or agents or otherwise whosoever from impairing
or abridging the defendants NCR;
(vii) a decree of perpetual injunction against the plaintiff, the
plaintiff s servants and/or agents or otherwise whosoever from
further trespassing on the said land;
(viii) further and/or in the alternative general damages to be assessed
(ix) Costs;
(x) such other reliefs this honourable court deems fit.
C. Plaintiffs Defence To Amended Counterclaim
[6] The plaintiff denied and disputed the alleged Native Customary Rights
(NCR) of the defendants and maintains that the plaintiff is the registered
proprietor of the land and hence its legal and rightful owner.
[7] The plaintiff claims that it has obtained the earlier order dated 28 August
2008 against the defendants in the Originating Summons No: 24-67-2005
(BTU) wherein DW1 is the 2nd defendant therein and DW2 is the 23rd
defendant therein. DW1 is the Headman of Rumah Sengok and together with
DW2 are residents of Rumah Sengok, Sungai Binyo, Pandan, Ulu Bintulu,
and have no right to make a false claim or counterclaim and have no right or
interest whatsoever over the land against the plaintiff.
[8] The plaintiff averred that the amended counterclaim is tainted with
illegality and contrary to public policy in the sense that the defendants have
committed criminal offences on the land and the issues in dispute stated in the
amended counterclaim between the parties have been finally adjudicated in the
Originating Summons No: 24-67-2005 (BTU).
II. Facts Of The Case
[9] At the trial, the plaintiff had 5 witnesses and 4 of them used witness
statements (exh P1, P2, P3 and P4). The defendants (DW1 and DW2) had 4
witnesses and 3 of them including the defendants used witness statements (exh
D1, D2 and D3). From these witnesses the following facts emerged:
1. The plaintiff is the registered proprietor of that parcel of land
described as Lot 22 Block 34 Kemena Land District or the Land
(exh PB(1), pp 1-2 of PB).
2. In 2004, the plaintiff started to develop the land into plantation
and the defendants (DW1 and DW2) frequently entered,

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encroached, re-entered upon, passed and re-passed over the land

to disturb the plaintiff while the later was still planting the oil
palm seedlings there.
3. The plaintiff had commenced an action in 2005 applying for
various orders in Originating Summons No: 24-67-2005 (BTU)
against 30 defendants and other unknown persons who included
the two defendants as the 2nd (DW1) and 23rd (DW2) defendants
therein for trespasses and unlawful possession of the land.
4. By 2007, the oil palm trees had started bearing fruits for harvests
but the two defendants in these actions were caught stealing
Fresh Fruits Bunches (FFB) from the plaintiff.
5. The plaintiff finally obtained court orders in Originating
Summons No: 24-67-2005 (BTU) (exh PB(25) and PB(26) at PB
pp 33-40 and pp 41-47) against many defendants named therein.
The earlier order made on 28 August 2008 (exh PB(25) at PB pp
33-40) ordered the defendants inter alia as follows:
a) that the plaintiff as a registered owner of the land do forthwith
recover and take exclusive possession of the land from the
defendants and all other persons in unlawful occupation of
the land or any part thereof.
b) that the defendants and all other persons who trespass or in
occupation of the land or any part thereof be evicted and
vacated forthwith.
c) that injunction to restrain the defendants and all other
persons whether by themselves or their servants or agents or
otherwise from occupying or entering and re-entering upon,
remaining, erecting and occupying structures, and carrying
out any activity on the land or any part thereof.
[10] Despite this earlier court order dated 28 August 2008 (exh PB(25)) the
defendants continued to trespass onto the plaintiff s land and harvested the
FFB. The plaintiff had lodged numerous police reports complaining the
defendants acts of trespass and illegal harvests from the period 16 May 2006
to 7 March 2008. (See exh PB(3), PB(4), PB(5), PB(6), PB(7), PB(8), PB(10),
PB(12), PB(19) and PB(20), pp [5-10]; [15], [19], [26], [27] of PB).
II. Issues
A. Land Title
[11] The plaintiff was and still is at the material time in possession of the land.
It is the registered proprietor of the land which has also been recognised by the
court order dated 28 August 2008 (exh PB(25) at pp 33-40 of PB).

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[12] In Subramaniam a/l Ns Dhurai v. Sandrakasan a/l Retnasamy & Ors [2005]
3 CLJ 539, the Court of Appeal at p 548 g held by Gopal Sri Ram JCA, as he
then was:
The title of a registered proprietor is indefeasible and good against the whole
world.

[13] The land law in Sarawak is based on the Torrens system of registered title.
It follows that the plaintiff will get the title immediately by registration. In
Awang Osen Bin Awang Mat v. Norhazlena Bte Abdurani & Ors [2004] 4 MLJ 238,
Abdul Aziz Abdul Rahim JC, (as he then was) had held at para 24:
The law therefore is well settled; that the registration conferred on
the registered proprietor an indefeasibility of title. Insofar as it relates
to the Sarawak Land Code it is manifested in s 132. Though the
indefeasibility of title may be challenged on the ground of fraud, such
ground cannot be used to defeat a title acquired by a registered bona
fide purchaser and for value. This is my view and is plain from the
reading of s 134(2) which states as follows:
Nothing in this code shall be construed as to place in doubt the title of
any person who is a purchaser in good faith and for value of any interest,
and who is registered as the proprietor of such interest, on the ground that
the registered proprietor through or under whom he claim was registered
as proprietor through fraud or error, whether such fraud or error consisted
in a misdescription of the land or otherwise.

[14] In Ng Yee Fong & Anor v. Ew Talalla [1986] 1 MLJ 25, Mohamed Azmi SCJ
in the then Supreme Court at pp 25-26 said:
As a matter of law, it cannot be disputed that a proprietor who establishes a
proprietary right is ex debito justitiae entitled to an injunction unless it can be
said against him that he has raised such an equity that it is no longer open to
him to assert his legal or proprietary title. Further as stated at p 30 in Kerr on
Injunctions (6th edition):
After the establishment of his legal right and of the fact of its violation,
a plaintiff is in general entitled as of course to a perpetual injunction to
prevent the recurrence of the wrong unless there be something special in
the circumstances of the case, such as laches or where the interference
with the plaintiff s right is trivial.

There is no issue here for the defendants to challenge the plaintiff s registration
as proprietor of the land. The plaintiff has a cause of action against any party
that trespassed on their land.
B. Native Customary Rights: Res Judicata
[15] Next, learned counsel for the defendants submit that the defendants as
set out in paras 2 to 4 of their respective amended defence and counterclaim

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(encl 70: Bundle of Pleadings) are claiming Native Customary Rights (NCR)
over the land for themselves and the longhouses named.
[16] Learned counsel for the plaintiff submitted that this is not really an issue
at all as the defendants had failed to adduce any evidence to challenge the
plaintiffs title to the land or establish such NCR over the land. In any event
the court had granted earlier orders in Originating Summons No: 24-67-2005
(BTU) against the defendants and the other longhouses named: See exh PB(25)
and PB(26) at PB pp 33-40 and 41-47.
[17] Learned counsel for the plaintiff contended that the evidence from DW1
and DW2 clearly admitted that they came from Sebauh District of Rumah
Sengok, Sungai Binyo, Pandan, 97000 Bintulu, Sarawak, which is out of the
area in Bintulu District where the land is located; and that they could not in any
way be in occupation or continuous and unbroken occupation or enjoyment of
any state land to create NCR over the land or any part thereof prior to 1st
January 1958: See Superintendent of Lands & Surveys, Bintulu v. Nor Anak Nyawai
& Ors and Another Appeal [2005] 3 CLJ 555. With the earlier orders of the court
exh PB(25) and PB(26), res judicata has set in and they cannot reopen the issue
in this later case.
[18] The court agrees with the submission of learned counsel for the plaintiff
that it is plain and obvious that the defendants have no defence by setting
up NCR rights against the two actions against them by the plaintiff s as the
registered owner.
[19] The defendants, DW1 was born after 1958 and DW1 was only four years
old at the material time, too young for him to be able personally by his own
right to establish any NCR over the land.
[20] In the courts view DW3 and DW4, the defendants two witnesses did not
advance any credible evidence to support their NCR claim over the land. The
noticeable lack of support and absence of witnesses from the residents of the
long houses of Rumah Banyang, Rumah Tumpa, Rumah Nyipa and Rumah
Dungat and/or Rumah Madel (the said longhouses) is telling on the credibility
of the defendants claim for NCR over the land. There is ground here also
for the court to invoke adverse inference under s 114(g) of the Evidence Act
1950 by the failure to call such witnesses from the said longhouses, they being
purported beneficiaries of their counterclaim on their behalf for NCR over the
land. The defendants have not only failed to establish the creation of NCR
rights by their evidence, res judicata has also set in by virtue of the earlier orders
of the court, (exh PB(25) and PB(26)) against their claim for NCR rights over
the land.
[21] In consequence, the counterclaim against the plaintiff to set up NCR over
the land is also dismissed with costs to the plaintiff.

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C. Trespass
Plaintiffs Case
[22] The plaintiff had adduced the following evidence of the acts of trespass
and taking of the FFB by the defendants which does not appear to be seriously
challenged as to their veracity by the defendants as follows:
1) PW1 (Executive director of the plaintiff): (Exh P1)
PW1 adduced the evidence of the facts which were not challenged
or disputed.
a) In 2007, the defendants who were sued with others in
Originating Summons No: 24-67-2005 (BTU) started
harvesting the FFB from the land and hence the instant two
actions were filed against the two defendants who were caught
and identified.
b) The defendants repeatedly trespassed or entered into the land
and harvested and removed unquantifiable amount of FFB
from the land from 16 June 2006 to 7 March 2008. This is
evidenced by the police reports tendered as (see exh PB(3),
PB(4), PB(5), PB(6), PB(7), PB(8), PB(10), PB(12), PB(19) and
PB(20) at PB pp [5-10]; [15], [19], [26], [27]).
c) The defendants were given numerous warnings about their
illegal harvest of FFB from the land of the plaintiff but of
no avail. They still entered into the land and stole FFB from
the plaintiff. They refused and neglected to stop entering into
the land or to stop the illegal harvest of FFB. The defendants
vehicles bearing registration numbers QME 5369 (DW1) and
QSB 1996 (connected to DW2) and were identified as the
mean of transport of the people into and for wrongfully taking
the FFB from the plaintiff (exhPB (16) and PB (14)).
2) PW2 (Estate Site Supervisor): (Exh P2)
PW2 knew the defendants personally who came very far away
from the land, which is outside the Bintulu District.
PW2 had in a few occasions seen the defendants using their
vehicles to carry away FFB which were stolen from the plaintiff.
He had taken photographs showing the defendants and a few other
people illegally harvesting FFB from the land: see 11 copies of
photographs taken by him marked as exh PB(9)(1-11) at PB
pp (11) to (14).

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3) PW3 (Assistant Estate Manager Site): (Exh P3)

PW3 had testified seeing and encountering many problems
of trespass and illegal harvest of FFB from the land. In many
occasions, he saw defendant (DW1) using Toyota Hilux Double
Cab Pick-Up bearing registration number QME 5369 and the other
defendant (DW2) using Toyota LN65 Pick-Up bearing registration
number QSB 1996 to steal and carry FFB from the land. He
witnessed the illegal harvest of FFB by the defendants and hence
lodged various police reports at exh PB(7), PB(8), PB(12), PB(19)
and PB(20) at PB pp [9], [10], [19], [26] and [27].
4) PW4 (Senior Field Conductor): (Exh P3)
PW4 testified that he knew the defendants personally and had
seen the defendants illegal harvest of the plaintiff s FFB using
their vehicles QME 5369 and QSB 1996.
5) PW5 (Plaintiffs Managing Director)
PW5 testified orally on the authenticity and contents of exh
PB(21), PB(22), PB(23) and PB(24) at PB pp 29-32 which were
submitted to the police.
He also testified that he received the returns of FFB from the
police which were seised from the defendants. The total weight
of stolen FFB as shown at exh PB(21) and PB(24) (at PB pp 28
and 32) is 11,190.00 kilograms or 11.19 metric tons which were
then sold to a milling company. The price list at exh PB(22) at
p 29 of PB, works out the FFB price showing the price of Oil
Extraction Rate (OER) and Kernel Extraction Rate (KER) at
that time, March 2008. The price for FFB at that time was sold at
RM880.30 per metric ton.
2. Defendants Case
[23] The defendants contend that the plaintiff s evidence is inconclusive
because no criminal charge of theft under the Penal Code by the police was
framed against the defendants for the alleged theft. The plaintiff did not have
proof of such allegations beyond reasonable doubt.
[24] The defendants said that after the earlier court orders, none of them have
entered the land after the trial.
[25] Learned counsel for the defendants submitted that plaintiff s evidence
alleging stealing of the plaintiff s oil palm fruits by the defendants should not
be accepted as there is no proof of such allegations. The plaintiff also did
not call persons from the purported buyer from the defendants as witnesses to
confirm that the price of FFB at the material time was indeed RM880.30 per
metric ton.

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3. Courts Findings: Trespass And Illegal Harvesting

[26] The law on trespass is actionable per se without any proof of special damage
and irrespective whether a trespasser knows or not that he had committed
trespass. Trespass is an injury to a possessory right of the registered proprietor
of land and what is on it.
[27] The court finds that the witnesses produced by the plaintiff were more
credible and further with the supporting evidences of the police reports (exh
PB(3), PB(4), PB(5), PB(6), PB(7), PB(8), PB(10), PB(12), PB(19) and PB(20),
pp [5-10]; [15], [19], [26], [27] of PB). All these evidences are adequate support
of the trespass on the land and the illegal harvesting by the defendants of FFB
from the land. PW5 had testified that the police had seised from the defendants
FFB weighing a total weight of 11.19 metric tons as shown at exh PB(21) and
PB(24) pp [28] and [31-32].
[28] The court finds that the evidence of bare denial by the defendants is
unconvincing and that they are not reliable witnesses before the court. The
defendants had not been able to show cogently to the court the origins of
the 11.19 metric tons of FFB seised by the police from them and released to
PW5. The obvious conclusion that the court is led to drawn from the plaintiff s
evidence is that the defendants have illegally harvested the FFB from the land
from their act of trespass. The court would also conclude that it is not a defence
in a civil case for trespass onto the land or for illegally harvesting FFB from the
land merely by reason that there has been no criminal charge lodged against
defendants for theft of the FFB.
[29] There is no dispute that the plaintiff is the registered proprietor in
possession of the land (exh PB(25) and PB(26)) at the time of the trespass. It is
trite law that an aggrieved owner of the land upon which trespass is committed
is entitled to damages and perpetual injunction against anyone trespassing into
the land notwithstanding that the source of the trespass had already been in
existence and whether or not he knew or had notice of it.
[30] In Segar Restu (M) Sdn Bhd v. Wong Kai Chuan & Anor [1994] 4 CLJ 757,
Abdul Malik Ishak J, (as he then was), at pp 759h-760d stated:
Who is a trespasser? In law, a trespasser is one who wrongfully enters on
land in the possession of another, and has neither right nor permission to be
on the land. Lord Dunedin in Robert Addie & Sons (Collieries) Ltd v. Dumbreck
[1929] AC 358 at p 371 aptly described a trespasser as one who goes on the
land without invitation of any sort and whose presence is either unknown
to the proprietor or, if known, is practically objected to. That would be a
fitting description of the defendants.

See also Karuppannan Chellapan v. Batakrishnen Subban [1994] 4 CLJ 479 FC;
Chen Yue Kiew v. Angkasamas Sdn Bhd [2003] 3 CLJ 781 CA.

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[31] The court finds on a balance of probability that the plaintiff had adduced
sufficient evidences to prove that the defendants had trespassed onto their land
for the purpose of illegally harvesting FFB from the land.
[32] In respect of the right to an injunction, in Chen Yue Kiew v. Angkasamas Sdn
Bhd [2003] 3 CLJ 781. Arifin Zakaria JCA (as he then was) at pp 787i-789b
held:
... In the present case the claim by the respondent is premised on trespass
simpliciter by the appellant on the respondents land or the air-space above it
and that alone in our view is sufficient ground for the respondent to maintain
an action for trespass against the appellant. For support we would refer to the
decision of the Federal Court in Ng Yee Fong & Anor v. EW Talalla [1986] 1
MLJ 25, where Mohamed Azmi SCJ in delivering the judgment of the court
stated thus:
As a matter of law, it cannot be disputed that a proprietor who establishes
a proprietary right is ex debito justitiae entitled to an injunction unless
it can be said against him that he has raised such an equity that it is no
longer open to him to assert his legal or proprietary title. Further as
stated at p 30 in Kerr on Injunction (6th edition).
After the establishment of his legal right and of the fact of its
violation, a plaintiff is in general entitled as of course to a perpetual
injunction to prevent the recurrence of the wrong unless there can
be something special in the circumstances of the case, such as laches
or where the interference with the plaintiffs right is trivial.
The onus is therefore on the appellants to establish that there is something
special in the circumstances of the present case why the learned trial judge
ought not to have granted the injunction in favour of the respondent.

[33] Learned counsel for the defendants had submitted that the plaintiff having
been granted an injunction in Originating Summons No: 24-67-2005 (BTU) on
28 August 2008 (exh PB(25) and PB(26)) against the defendants, the plaintiff
should not be allowed to be granted another Court Injunction order.
[34] Learned counsel for the plaintiff had submitted that the complaints of
trespass stated in the pleadings are different acts or trespasses from those stated
in Originating Summons No: 24-67-2005 (BTU). A cause of action accrues
every time where there is a trespass.
[35] The court agrees with the submission of the learned counsel for the
plaintiff because according to the case of MBF Property Services Sdn Bhd v.
Madihill Development Sdn Bhd (No 2) [1998] 4 CLJ 136, Abdul Malik Ishak J.,
(as he then was), at p 150d-e had stated:
The plaintiff knew that they had trespassed and in law every continuance
of a trespass is a fresh trespass and in respect of which a new cause of action
arises from day to day so long as the trespass continues and persists. This is in
fact actually happening in the present case. Up to this very day, the trespass by
the plaintiff is continuing and it will remain unabated.

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[36] Further the court will also consider when reading the earlier injuncting
orders (exh PB(25) and PB(26)) and the present orders prayed for that they
do materially differ in that there is now reference to injuncting the activity of
harvesting of FFB which was not clearly spelt out in the earlier orders.
[37] The court finds that with the dismissal of the defendants counterclaim
with costs, the plaintiff has also established its case of trespass of its land
against the defendants and would allow its claim for the injunction and trespass
with costs.
D. Assessment of Damages
[38] The court notes that the plaintiff claims for special damages, general
damages and exemplary damages in both suits.
1. Special damages
The paintiff has recovered a total of 11,190.00 kilograms of
FFB (See pp 28 and 30) or 11.19 metric tons from the defendants
which was the product of trespass on the land and the illegal
harvesting by the plaintiff in violation of the legal rights of the
plaintiff as the registered proprietor of the land.

By way of mitigation, the stolen FFB were sold by the plaintiff

to a milling company. The price list at exh PB(22) is for March
2008 and the price sold was RM880.30 per metric ton of FFB.
Therefore the total value of stolen FFB recovered from the
defendant is RM9,850.55. Though the plaintiff alleges that they
had still suffered special damages by the handling of the FFB in
the course of their seisure and recovery, they abandoned their
special damage claim.

2. General damages

The court in considering the extent and manner of the trespass

by the defendants with his people and vehicles onto the land to
illegally harvest FFB as given by the plaintiff s evidence and
would assess damages for trespass for each known trespass.
Based on the 10 police reports which shows 10 separate entries,
the court would assess general damages in the global sum of
RM30,000.00. Each defendant shall pay RM15,000.00 as
general damages for trespass.

3. Exemplary damages

In the light of the manner of the conduct of the defence and

counterclaim of the defendants and the evidence of their manner
of entry on the land during the pendency of the other court case
which then resulted in the earlier order against the defendants,

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which order appears to be ignored by the defendants, the court

agrees with the submission of the learned counsel for the plaintiff
that from the evidence adduced by the plaintiff s witnesses they
have made out a case for awarding exemplary damages against
the defendants. Deliberate self-help and disobedience of a court
order should be abhorred and discouraged when there is relief
available from the relevant authorities and the court.
[39] In Cheng Hang Guan & Ors v. Perumahan Farlim (Penang) Sdn Bhd & Ors
[1993] 3 MLJ 352, it was held by Edgar Joseph Jr. SCJ, sitting as High Court
Judge at pp 427-428:
Trespass is normally associated with intentional acts even though 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 Swee
Siangs case [1986] 1 MLJ 536 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. (at pp 426-427) I am satisfied, for the reason stated, that these
violations were deliberate and in utter disregard of the plaintiff s 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.

[40] Further in Segar Restu (M) Sdn Bhd v. Wong Kai Chuan & Anor [1994] 3 MLJ
530, Abdul Malik Ishak J (as he then was) at p 536 added:
The plaintiff in trespass is entitled even though he has sustained no actual
loss, to recover damages. Thus, where the defendants used the plaintiff s land
as a means of access to his accretion land owned under a licence without the
plaintiff s permission, exemplary damages was awarded to the plaintiff (Ooi
York Choo v. Lim Song Foundry [1963] MLJ 87 and Janaki & Anor v. Cheok Chuan
Seng & Ors [1973] 2 MLJ 96). The plaintiff should not throw these figures at
the court and pray for an order in terms. They must specifically prove them
(Zainal Abidin bin Sulaiman & Ors v. Hoya Holdings Sdn Bhd [1993] 2 AMR 31).

[41] The court would assess the exemplary damages in the following manner:
(1) The total value of the recovered FFB is RM9,850.55.
(2) Assuming this is divided in 2 that will give a value of RM 4,925.00
(3) Multiplying this value of RM4,925.00 x 10 will give a sum of
RM49,250.00. The multiplier of 10 is commonly used in criminal
proceedings by statute on the value of the subject matter or fruit
of the criminal activity to arrive at the sum of a mandatory fine.
The court of course notes that this is not a criminal proceeding or

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to assess a fine but nonetheless finds this multiplier appropriate to

be used in the present case as a guide to form the basis to assess
exemplary damages for trespass upon the land whose primary
objective is to actually harvest its fruits illegally to wrongfully
deprive the plaintiff of them.
(4) Dividing this RM49,250.00 by 2 will give the sum of RM 24,625.00
The court will award to the plaintiff exemplary damages for
trespass for the purpose of illegal or wrongful harvest in the sum
of RM24,625.00 against each defendant.
IV. Conclusion
[42] The court will give judgment for the plaintiff and order as follows:
A. Against the defendant, SENGOK ANAK SABANG in Suit No:
22-34- 2007 (BTU):
1. An injunction to restrain the defendant whether by himself, his
agents or servants or otherwise whosoever from entering any
part of Lot 22 Block 34 Kemena Land District (the Land) and
from illegally taking or harvesting any fresh oil palm fruits or
Fresh Fruit Bunches (FFB) from the land;
2. General damages against the defendant for trespass and illegally
or wrongful harvesting of the FFB from the land in the sum of
RM15,000.000;
3. Exemplary damages against the defendant for trespass for the
purpose of illegally or wrongful harvesting of the FFB from the
land in the sum of RM24,625.000;
4. Interest on damages at 4% per annum on such damages from the
date of the writ till the date of full payment;
5. The defendants counterclaim is dismissed; and
6. Costs for claim and counterclaim to be taxed unless agreed.
B. Against the defendant, JIMMY ANAK SABANG in Suit No:
22-35- 2007 (BTU):
1. An injunction to restrain the defendant whether by himself, his
agents or servants or otherwise whosoever from entering any
part of Lot 22 Block 34 Kemena Land District (the Land) and
from illegally taking or harvesting any fresh oil palm fruits or
Fresh Fruit Bunches (FFB) from the land;

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2. General damages against the defendant for trespass and illegally

or wrongful harvesting of the FFB from the land in the sum of
RM15,000,000;
3. Exemplary damages against the defendant for trespass for the
purpose of illegally or wrongful of the FFB from the land in the
sum of RM24,625.000;
4. Interest on damages at 4% per annum on such damages from the
date of the writ till the date of full payment;
5. The defendants counterclaim is dismissed; and
6. Costs for claim and counterclaim to be taxed unless agreed.

415