QUESTION
(i)
Injunction is regarded as an additional remedy and may be obtained in
addition to general damages where damages alone is not an appropriate or
sufficient remedy. Discuss.
(ii)
Discuss the role of injunction in cases of trespass to land. Support
your answer with decided cases.
My Answer:
1.0 INTRODUCTION
This law assignment
examines on remedies available in tort. Although there are two main remedies in
tort which are damages and injunctions, the focus of this paper will be on the
general application of injunction as a remedy used by courts in cases of torts
law. The issue to be discovered is on whether, and to what extent, injunction is regarded as an additional remedy
for general damages. Besides that, there also would be a further discussion about
the role of injunction in cases of trespass to land.
First
and foremost, it is very important of getting to know the meaning of the term
‘remedies’ before discussing in detail on damages and injunction. Therefore,
remedies actually meant as a cure and as a redress for a wrong. There are different remedies are available to
give right to different wrongs suffered by a plaintiff, which these remedies
may be used alone or together with other remedies. Basically, remedies
functions to redress a wrong inflicted to plaintiff by granting the
compensation, specific relief to compel performance and to
prevent wrongful acts and restitution. There are two classifications of
remedies which have been classified under two main heads, namely judicial
remedies and extra-judicial remedies. The principal of judicial remedies are
those for which the injured party must go to a court of justice in the forms to
apply the damages or the injunction or specific restitution of property. Whereas the extra- judicial remedies
is where the parties may take action in the presence of the tort where those available
without the parties coming to the court which
would otherwise be unlawful, but it is limited in the circumstances of
false imprisonment, assault, to expel any trespasser and abatement of
the nuisance.
Damages are one of the
legal remedy. It defines as something that you had been suffered and the court
will grants you an award for these damages. In order to claim for damages,
plaintiff must prove that a tort has occurred and suffered damage. Usually, the
claimant is seeking compensation for personal injuries or damage to property,
which arise out of accidents. Plaintiff needs to prove loss and damage for
recover the damages. He does not have to consider the amount of his loss but it
is sufficient to prove its existence. However, it has a limitation for the
damages to be award, such as pure economic loss in negligence. There are different types of damages that can be
awarded in tort and it is applies
as general and special damages, contemptuous damages, nominal damages,
exemplary damages and aggravated damages.
Injunction
is an order by the court enjoining a person to do or continues to do an act
or restraining the commission of some wrongful omission. The injunction is
an additional remedy where it may be obtain if the damages alone is not
sufficient remedy and normally applied or been use in torts of nuisance. There
are several classifications of injunctions which are perpetual and
interlocutory injunction, mandatory and prohibitive injunction and quia timet injunction.
There are injunctions which granted either before trial or the end of the
trial. In short, Injunction
may be sought or granted in respect of the trespass, nuisance, infringement
of copyright, or any publication of a defamatory matter. Almost certainly
an injunction is applicable for every tort except assault and battery, false
imprisonment and malicious prosecution.
2.0 QUESTION 1: Injunction is
regarded as an additional remedy and may be obtained in addition to general damages where damages alone
is not an appropriate or sufficient remedy. Discuss.
2.1 Damages and Types
of Injunction
In the law of torts, there are three types of
remedies provided that can be sought through from the court which is the
damages, injunction and specific restitution. The purpose of having these
remedies is to give adequate compensation to the party that suffered loss by
the one who committed the tortuous act.
Damages can be divided into several types which are
General and Special Damages, Contemptuous Damages, Nominal Damages, Exemplary
Damages and the last one is Aggravated Damages. In General and Special Damages,
general damages mean the amount of loss that cannot be counted such as pain and
suffering, the loss of future earnings, defamation and et cetera. Meanwhile,
Special Damages referred to a loss that can be counted at the trial such as
medical bill and this kind of damages must be specifically pleaded and strictly
proved. On the other hand, Contemptuous Damages means remedies that will be
awarded by the court when the court feels that the plaintiff does not have a
good claim. It would be common when the court feels that morally, the plaintiff
deserved what happened to him such as libel, assault and false imprisonment.
Apart from that, Nominal Damages is the type of remedies that will be awarded
when the plaintiff proves that the defendant has committed a tort, even though
the plaintiff had not suffered any loss which is also considered as in the case
of actionable per se such as trespass to land. It is a type of damages that
usually, but not necessarily involve a small sum of money. Meanwhile, Exemplary
Damages are a type of damages that will be awarded to deter defendant from
repeating his act in the future. Therefore, its function is not compensatory,
but as punishment and deterrent to the defendant. Last but not least is
Aggravated Damages that are said to be compensatory in nature since
contemptuous, nominal and exemplary are not compensatory in nature. Aggravated
damages may be rewarded when the plaintiff has suffered injury or loss other
than pecuniary loss such as smear on his reputation, feeling of shame, pain and
so forth. In other words, it may be awarded for malicious falsehood and also
may be awarded in addition to general damages.
However, there will be some cases where compensation
only would not be enough to be taken as remedies for plaintiff. Therefore, the
court has provided Injunction as one of Remedies under General Damages to be
sought by plaintiff against defendant. Injunction is an additional remedy which
supplements the general damages awarded by the court, when the compensation
alone is inadequate to the victim. It is a legal remedy that is provided by the
court where a party is required to perform or to refrain itself from doing
something. In another word, injunction is an order from the court to do or to
prohibit someone from doing something. The right to grant an injunction is on
the court and one is not to claim for an injunction as his right which means it
is under discretion for the court to decide whether someone should be granted
an injunction or not. Consequently, the failure to stick to this order from the
court is amounting to a contempt of court and therefore liable to be punish or
either by fine or even imprisonment.
In addition, the court may grant an injunction at
different times, be it at the pre occurrence of the tort, or the time the tort
took place or at the end of the trial of the case. These injunctions are known
as the quia timet injunction, interlocutory injunction and perpetual
injunction, respectively. However, in order for the court to award injunction,
there are a few elements that need to be recognized. A court shall not grant an
injunction when the monetary compensation alone is sufficient, or when the
damage suffered by the plaintiff is temporary and not serious, or damage happen
was consented by the plaintiff, or any of the circumstances under section 54
of the Specific Relief Acts 1950 occurred. Under the said provision, it has
been stated that;
An injunction cannot be
granted;
(a)
To
stay a judicial proceeding pending at the institution of the suit in which the
injunction is sought, unless such a restraint is necessary to prevent a
multiplicity of proceedings;
(b)
To
stay proceedings in a court not subordinate to that from which the injunction
is sought;
(c)
To
restrain persons from applying to any legislative body;
(d)
To
interfere with the public duties of any department of any Government in
Malaysia, or with the sovereign acts of a foreign Government;
(e)
To
stay proceedings in any criminal matter;
(f)
To
prevent the breach of a contract the performance of which would not be
specifically enforced;
(g)
To
prevent, on the ground of nuisance, an act of which it is not reasonably clear
that it will be a nuisance;
(h)
To
prevent a continuing breach in which the applicant has acquiesced;
(i)
When
equally efficacious relief can certainly be obtained by any other usual mode of
proceeding, except in case of breach of trust;
(j)
When
the conduct of the applicant or his agents has been such as to disentitle him
to the assistance of the court; or
(k)
Where
the applicant has no personal interest in the matter.
However, it is pertinent to note that the public
interest is always a good consideration to put aside a claim of injunction.
This can be seen in the case of Tenaga Nasional Berhad v Dolomite Industrial
Park Sdn Bhd[1] where
the appellant had trespass the respondent’s land by having the land erected
with a pylon. If the mandatory injunction awarded, the electricity supplies
throughout the peninsular will be distracted. The court had therefore not
granted the injunction to the appellant because it is against the benefit of
the public.
Injunction is separated into two types namely the
prohibitory and the mandatory injunction. The prohibitory injunction refrain an
action from being carried out and this kind of prohibition usually granted when
nuisance and repeated trespass occurred. However, the court normally will not
grant such remedy if the interference is nominal or trivial. On the other hand,
the mandatory injunction requires a person to do a positive act. In granting
the mandatory injunction, the court will look into the case, if there is a
strong possibility that a grave damage will result from the absence of such
injunction. If so, the court shall proceed to the next question of whether the
remedy that will be given is sufficient for the damage. If it is, then the
court will not grant the injunction.
The two requirements for the injunction are derived
from the case of Morris v Redland Bricks Ltd[2].
In this case, the defendant had used their land to quarry clay and caused the
plaintiff’s land to subside. The court held that the plaintiff deserved a
mandatory injunction to restore the support to the plaintiff’s land. The
process to restore support will cost about 35,000 pounds while the actual price
of the land is only 12,000 pounds. The defendant appealed. It was allowed and
the injunction withdrawn.
In making such decision, the defendant did a
reasonable action but it also turn out to be a wrong action. Therefore, it had
escaped one of the conditions that are needed to grant mandatory injunction
which is the defendant have behaved wantonly or unreasonably. Another point is
that, a defendant should be directed on what he is supposed to do to perform
the injunction. Otherwise, the court shall not grant such injunction to the
plaintiff. The cost that the defendant will bear in order to carry out the
injunction is not a concern of the court when the damage is inadequate or if
the defendant acts for his own benefit or without due care. However, if the
defendant had acted the way he should be but later on commits mistake, the
court will consider the expenses to correct the situation.
2.2 The Grant of
Injunction at Different Times
An injunction may be granted at
different times for different circumstances known as QuiaTimet Injunction,
Perpetual Injunction, and Interlocutory Injunction. The court will grant any of
those by depending on the circumstances of the case.
QuiaTimet
Injunction is a type of injunction which is granted before the tort occurs
on the condition that the plaintiff can prove that he will suffer substantial
damage if the tort occurs. Hence, the condition for its grant is a certainty
that the tort will occur, which is considered as imminent and that the
plaintiff is likely to incur substantial damage. This type of injunction will
be granted in a case of tort which is not actionable per se. In the case of Associated
Newspapers Group plc v Insert Media Ltd[3], plaintiff claiming defendant's acts harmful
and unfair and it would be just and convenient to grant injunction. In this
case, the defendant wished to contract with retail newsagents for the
insertion of advertising leaflets into the plaintiffs' newspapers. The
plaintiffs objected on the ground that the insertion of advertisements over
which they had no control could damage their goodwill and would diminish the
advertising potential of their newspapers. Thus, brought action against
Defendant and asking the court for Quia Timet Injunction to stop the act of
Defendant to prevent substantial damage in the future. It was held that the
unfairness on the part of Defendant was not enough to grant injunction, thus
dismissed.
On the other hand, Perpetual Injunction is an injunction
which is usually, but not necessarily granted at the end of trial after the
hearing of the action. Section 50 of the
Specific Relief Act 1950[4]
stated that preventive relief is granted at the discretion of the court by
injunction, temporary or perpetual. Meanwhile Section 51(2)of the same
Act further stated that a perpetual injunction can only be granted by the
decree made at the hearing and upon the merits and the defendant is thereby
perpetually enjoined from the assertion of a right, or from the commission of
an act, which would be contrary to the rights of plaintiff. In addition, the
Specific Relief Act has listed down circumstances under which a perpetual
injunction may be granted as stated under Section
52(3) of the same Act. Under the said provision, when the defendant invades
the plaintiff’s right of property, the court may grant a perpetual injunction
in few cases which are where the defendant is a trustee of the property for
plaintiff, where there exists no standard for ascertaining the actual damage
caused by the invasion, where the invasion is such that pecuniary compensation
would not afford adequate relief, where it is probable that pecuniary
compensation cannot be got for the invasion and where the injunction is
necessary to prevent a multiplicity of judicial proceedings.
The third injunction is Interlocutory Injunction or also known
as Temporary Injunction is a temporary measure before case being brought to
court. It will be granted after or during the commission of the act alleged to
be a tort and its function is to prevent the alleged tort from continuing. Section
51(1) of Specific Relief Act 1950 stated that temporary injunctions are
such as to continue until a specified time, or until the further order of the
court. They may be granted at any period of a suit and are regulated by the law
relating to civil procedure. In addition, under this injunction, it must also
be a serious one to be granted immediately and the balance of convenience and
justice of the case in so ordering the injunction is in the plaintiff’s favour.
However, it must be noted that the plaintiff must agree to pay damages if,
after the trial, the injunction is retracted.
Apart from that, an interlocutory
may also be awarded to prevent a person from making any defamatory statements
before the matter is tried if the publication of the matter is imminent and the
circumstances sufficiently urgent so as to justify the prompt interference of
the court. In the case of Datuk Syed Kechik bin Syed Mohamed v
DatukYehPao Tzu &Ors[5],
the plaintiff applied for interlocutory orders to restrain the defendants from
further writing, printing or circulating or otherwise publishing libels on the
plaintiff by caricatures contained in issues of the newspaper owned by the
defendants or any similar words or caricatures defamatory of the plaintiff in
his offices or otherwise until the trial of this action. It was held
that the balance of convenience in this case lay in favor of granting the
interlocutory relief sought by the plaintiff.
Apart from that, an interlocutory injunction is also
commonly awarded in cases of trespass to land and airspace by encroachment.
Besides, it will only be granted in exceptional and extremely rare
circumstances where the grant of damages will not be adequate remedy and there
is clear necessity for affording immediate protection to the plaintiff’s alleged
right or interest. Other factors which are taken into account are whether the
plaintiff will be in fact suffer irreparable injury and most importantly,
whether he has made out strong prima facie case showing a strong probability of
the existence of the legal right on which he sues and a right to the final
relief claimed. This kind of injunction will never be granted before trial save
in exceptional and extremely rare circumstances of a case. This can be referred
to the case of Azman Bin Mohd Yussof v Vasaga Sdn Bhd[6]. In
this case, the plaintiff applied for injunction to stop defendant from
continuing his disco and pub business named 'Vasaga Exclusive Dance Club &
KTV'. The pub was not far from plaintiff’s house and the music can be heard
loudly until late night and it not just gave inconvenience, but also disturbing
plaintiff. The plaintiff further said that he could be hardly fall asleep at
night because of the noise. However, the defendant denied the alleged fact that
the music from his pub disturbing plaintiff because the music was always in
control and never disturbed anyone. It was held that, the court granted
interlocutory injunction because monetary compensation only would not be enough
for plaintiff since it would kept interfering the plaintiff’s comfort and
enjoyment of his land.
Apart from that, there are also few classifications of
injunction in relation to the stage at which they are granted which are final
injunction, interim injunction, an injunction with and without notice. For the final injunction, this is a stage where
an injunction can be granted at the end of a full trial and hearing in the
matter. On the other hand, an interim
injunction is a stage where the injunctions may be granted before the end
of a full trial and hearing and even before proceedings have properly
commenced. In order for an interim injunction to be granted, the court must
find that the balance of convenience is satisfied such as it would
harm the claimant more if without the injunction than it would harm the defendant
to grant it. Meanwhile, an injunction
without notice exists in extreme emergencies. The claimant may apply for a
short temporary injunction which is lasting for a few days without informing
the other side. A full hearing will be held before the injunction ends, so the
court may hear the arguments. On the other hand, an injunction with notice is a stage where the claimant must give the
other side a notice of an application being made to obtain an injunction and
both parties will be heard at the hearing[7].
In the nutshell, there are two types of injunction
namely mandatory and prohibitory injunction and this fall under General
Damages. Besides, an injunction will only be granted at the discretion of the
court the court in an opinion that compensation alone would not be enough to be
given to the plaintiff. There are also different circumstances for the court to
grant an injunction which are called Quia Timet Injunction, Perpetual
Injunction and Interlocutory Injunction. However, in order to be granted an
injunction, a claimant must satisfy the maxims of equity which stated that ‘he
who seeks equity must come to court with clean hands’, ‘equity does
nothing in vain’ and ‘delay defeats equity’. An
injunction is also considered as extraordinary remedy that courts utilize in
special cases where preservation of the status quo or taking some specific
action is required in order to prevent possible injustice[8].
3.0 QUESTION 2: Discuss the role of injunction in cases of trespass to land. Support
your answer with decided cases.
Trespass to land comes under
the law of
Tort.
Basically, the law of tort concerns itself with providing remedies to people
who find themselves hurt or harmed by the conduct of other people.
Trespass to land can be defined as the unreasonable interference with another’s
possession of land[9]. In
other words, it is ‘a direct and unjustified interference with the possession
of land… whether or not the entrant knows that he is trespassing’[10]. It emphasizes on a direct invasion of plaintiff’s
possession which is actionable. Thus, once the invasion has been proved, it is
for the defendant to justify his actions.
Article 13(1) of the Federal
Constitution provides that no
persons shall be deprived of property save in accordance with law. In
parallel to that, Section 44(1)(2) of the National Land Code also states
that, a person has the right to the exclusive use and enjoyment of so much
of the column of airspace above the surface of land and so much of the land
below that the surface as is reasonably necessary to the lawful use and
enjoyment of the said land. Thus, it is proven that the tort of trespassing
land protects the interest in the exclusive possession of the land. However,
any involuntary actions are not actionable as there has to be an intention to
interfere with the right of possession. Trespass to land does not require proof
of damage for it to be actionable. So, the defendant cannot claim that he
entered the land reasonably or with due care. Trespassing has two elements: An actual interference with the right
of exclusive possession and intent or negligence. As for the intent element,
technically the person must intend to be on the land that they are on. But,
this does not mean the person must know that they are trespassing.
Anyone who has an actual and
exclusive possession of land can bring action for trespass as a
plaintiff. Therefore, a person does not necessarily have to own land to
bring a trespassing claim but he just needs to have the legal
right to exclude others. The plaintiff in an action for trespass to land
may seek damages or an injunction or both. Where the trespass is trivial,
damages will be nominal and an injunction may be refused.[11]
Meanwhile, if the trespass consists of some use of land without causing any
damage, the damage will be measured by the value of the defendant’s use. For
instance, the letting value of the land.
However, there will be some cases where compensation
only would not be enough to be taken as remedies for plaintiff. Injunction is a
discretionary remedy derived from the equitable jurisdiction of the courts[12] .
It is an additional remedy which supplements the general damages awarded by the
court, when the compensation alone is inadequate to the victim. Furthermore,
injunction is a legal remedy that is given by the court to order a person to
perform or to refrain itself from doing something.
With regards to
trespass to land, injunction occupies such an important role in the law of
torts. Section 54 of the Specific
Relief Acts 1950 provides some circumstances whereby a court shall not
grant an injunction. For example, when the monetary compensation alone is
sufficient, or when the damage suffered by the plaintiff is temporary and not
serious, or damage happen was consented by the plaintiff, or any other circumstances
stated under the Act. In addition, the court may grant an injunction at
different times, be it at the pre occurrence of the tort, or the time the tort
took place or at the end of the trial of the case. These injunctions are known
as the quia timet injunction, interlocutory injunction and perpetual
injunction, respectively.
The first role
of injunction in cases trespass to land is to order a party to stop doing an
activity that he intends to do. It is also known as a prohibitory injunction. This
is the most common role of injunction in cases of trespass to land. Therefore,
we can retrieve a lot of cases with regards to this. This is mainly due to the
fact that a person’s who has the exclusive right of possession on his land want
to stop any intrusion of interference of the land from others. Firstly, it can
be referred from the case of Voon Yun Kim v. Sabah Electricity Sdn. Bhd.[13]
In this case, the
plaintiff was a co-owner of an undivided piece of land in Tuaran, holding 16/17
undivided shares. The plaintiff had conducted a search at the Tuaran District
Land Office and obtained confirmation from the Assistant Collector of Land
Revenue ('ACLR') that the land was free from encumbrances before making the
said acquisitions. Between November 2002 and April 2004, the defendant's
contractor, HP Power Transmission Sdn Bhd had entered into the plaintiff's
property, relying on an approval letter from the ACLR dated 5 April 2000, to
conduct works related to the erection of electric pylons and the laying of
power lines on the said land. The plaintiff contended that the defendant's acts
and/or omissions were wrongful and in breach of statutory duties and
obligations under the Electricity Supply Act 1990 ('the Act'), in that the
defendant had failed to remove the pylons and extra high voltage power lines
across the said land, making a significant and sizeable portion of the land
unsuitable for development or any other usage.
The court held that,
that the plaintiff has proved her case against the defendant and that the
defendant had failed to rebut the plaintiff's claim or to show that defendant
had a valid permission to enter the plaintiff's land in accordance with the
Electricity Supply Act 1990 to perform the work as they did. The learned judge,
agreed that a permanent injunction in the circumstances where the pylons and
transmission lines were erected and granted interest at 5% per annum on the
damages of RM30,000. In this case, the clear picture of
trespass to land happened when there was a direct intrusion into the plaintiff
land. We therefore agree with the judgment of the court to grant final order of
the court or known as permanent injunction. This is because the pylons and transmission lines cannot
be pulled down or dismantled as that would disrupt electricity supply to the
public.
Besides that, other
instance is the case of BBC Estate VII Sdn. Bhd. v. Sengok Sabang & Another[14]
which the plaintiff claimed for injunction to restrain the defendants and all
other persons from occupying or entering
the land. In this case, The Plaintiff is the registered proprietor of
that parcel of Land described as Lot 22 Block 34 Kemena Land District. In 2004,
the Plaintiff started to develop the Land into plantation and the Defendants
frequently entered, encroached, re-entered upon, passed and re-passed over the
Land to disturb the Plaintiff while the later still planting the oil palm
seedlings there. The Plaintiff had commenced an action in 2005 against 30
defendants and other unknown persons who included the two Defendants for
trespasses and unlawful possession of the Land. 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.
It was held that the
court granted an injunction to the both defendant 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. On our view, the acts from the defendant are an
obvious wrong of trespass to land. They frequently entered, encroached,
re-entered upon, passed and re-passed over the Land to disturb the Plaintiff.
As the consequence, the acts would be harmful to the planting of the oil palm
seedlings.
Another example is the
case of Sabrina Sobri v. Perkanas Sdn Bhd[15]
which the court highlights on the perpetual injunction. In this case, plaintiff
is the registered owner of Lot 651 Mukim Bukit Pinang Daerah Kota Setar Kedah
(Lot 651). Defendant is the developer of a housing project known as Taman
Pinang Merah on land adjoining Lot 651. The defendant had built drains on her
land which caused water and waste to be discharged onto it. Plaintiff seeks an
injunction, damages for trespass and to make good Lot 651 as a result of the
water and waste discharged. Defendant denies the trespass and says the
discharge arose because of the low lying nature of Lot 651 and that the damage
was also due to the fact of 2 other housing development projects in the
vicinity and a nearby village and school. The court held that once a party has
established his legal right and of the fact of its violation, he is entitled to
the perpetual injunction. The English Court of Appeal in Patel and others
v. WH Smith (Eziot) Ltd and another [1987] 2 All ER 569 has held that
"the principle that a landowner whose title was not an issue was prima
facie entitled to an injunction to restrain a trespass whether or not the
trespass harmed him. Defendant sought to
limit the claim to damages for trespass to RM10,450.00 on the basis that the
State had agreed to acquire the land over which the drains were built as right
of way.
Besides that, injunction in trespass is also vital
to obtain an order from the court to order a person’s to do a positive act as
in the case of Terra Damansara Sdn. Bhd. v. Nandex Development Sdn. Bhd.[16]
In this case, the plaintiff is the registered and beneficial owner of Lot
55482, Geran 50059 in the Mukim and District of Kuala Lumpur on which the
plaintiff is undertaking the development of a residential project. The
defendant is the owner of plots of land adjoining the plaintiff's land and the
defendant is similarly undertaking the development of service apartments on the
defendant's land. The defendant admits that in carrying out its development,
the defendant had caused to be inserted ground anchors into the plaintiff's
land without consent from the plaintiff thereby constituting an act of trespass
and despite numerous requests by the plaintiff, the defendant has to date failed
and/or refused to remove the ground anchors. The learned judge held that, the
defendant's conduct leaves much to be desired. While recognising that the
plaintiff is the registered owner of Lot 55482, the defendant seeks to assert
as a matter of right that the ground anchors should remain. The defendant must
be advised that any entry beneath the surface of the plaintiff's land, at
whatever depth, constitutes an actionable trespass. The court should direct
that there should be a mandatory injunction that this sign be removed
forthwith. Thus, from this case the act of trespassing can be observed when the
defendant undertook the development of service apartments on the defendant's
land. We agree with Abdul Malik Ishak J. He stated that bearing in mind that both
parties have in pursuance of what they claimed to be their business interests
attempted to bring commercial pressure to bear one upon the other. Therefore, this
is a proper case in which mandatory injunction being applied.
On the other hand, there are also cases of trespass
to land which the claim for injunction is being dismissed by the court. This is
usually happened when the plaintiffs have failed to prove their claim on a
balance of probability. For instance is the case of Chin Lih Lih &
Ors v. Sunrise Alliance Sdn Bhd & Anor[17].
On 12 July 2004, the 1st defendant bought a piece of land from PesonaPermai,
the developer of Hartamas Heights. This was the piece of land that shared the
common boundary with Hartamas Heights and on which the Solaris II project was
later commenced. Following the purchase of the land, the 1st defendant applied
for permission to develop a commercial property. At the same time, they also
applied to DBKL to change the zoning of the land from residential to
commercial. By letter dated 23 December 2004, DBKL informed the 1st defendant
that the application for change of zoning was not required as the area had
already been zoned for commercial use since 1985. By the same letter of 23
December 2004, DBKL issued a development order to the 1st defendant.
Subsequently, the development order was amended a couple of times and the
latest development order was issued on 23 November 2007. The 1st defendant's
contractors began work at site in late 2005. Meanwhile, as the construction was
going on, the plaintiffs realized that the project was going to be a massive
one. There was congestion along the access road. An elevated ramp built along
the boundary with the plaintiffs' properties caused distress to them, in
particular, noise and dust pollution. The plaintiffs and the 1st defendant
tried to negotiate for solutions but to no avail. The plaintiffs also
discovered that the 1st defendant had driven soil nails into the Hartamas
Heights' land to secure the slope.
The court held that it was not disputed that soil
nails were driven beyond the boundary of the 1st defendant's land and into the
Hartamas Heights property. A Geotechnical Engineer, testified that he was
engaged by the 1st defendant's contractors to assist the Civil & Structural
Consultant Engineer in respect of the geotechnical engineering works. He
clarified that although 5400 soil nails had been driven at the site to
stabilize the excavation, only 80 soil nails had been temporarily driven beyond
the boundary of the 1st defendant's property. He further explained that the
said 80 soil nails had to be temporarily driven beyond the boundary as tests
conducted revealed that certain soil nails at the boundary were not strong
enough and there was a danger of the slope failing and collapsing. The 80 soil
nails were temporarily lengthened from 12 meters to 15 meters. These soil nails
were all removed by 12 December 2006 when the slope had stabilized. Thus, the
learned judge constrained to hold that the plaintiffs have failed to prove
their claim on a balance of probability. All the plaintiffs' claim including
claim for injuction is therefore dismissed with costs. After hearing the
parties, costs are assessed at RM30,000.00 to the 1st defendant.
All in all, the law of tort provides remedies to people who find themselves
hurt or harmed by the conduct of other people. Trespass to land is a direct
invasion of plaintiff’s possession which is actionable. Therefore, anyone who
has an actual and exclusive possession of land can bring action
for trespass against the defendant. The court provides remedies on this
matter. Thus, the plaintiff in an action for trespass to land may seek damages
or an injunction or both. For the purpose of fulfilling the requirements of
this law assignment, we have gone through on the role and significant of
injunction in some cases of trespass to land.
4.0
COMMENTS
Firstly, injunction as an additional remedy is an
order by the court which has the effect of either prohibiting the defendant
from repeating or continuing his act or it may be an order requesting the
defendant to do something positive. By virtue of injunction, the plaintiff
cannot claim for an injunction as his right. Besides that, injunction is
usually not granted in situations where monetary compensation is adequate or
where the plaintiff only suffers a slight damage or where the injury to the
plaintiff is temporary or where the plaintiff himself consents or allows his
right to be encroached upon or if the circumstances provided for under section
54
of the Specific Relief Act 1950 exists.
Injunction under the law of tort in Malaysia is explained in detail in
this assignment. In this part we included injunction in Common Law for the
reader to get a well understanding on this topic. First of all, injunctions in the Common Law tend to come in two main
forms which are permanent and preliminary injunctions. The permanent injunctions
are given after trial and different federal and state courts sometimes have
slightly different requirements for obtaining a permanent injunction. There are
typical requirements include that without an injunction the plaintiff would suffer
"irreparable injury" for which there is "no adequate remedy at
law", that the balance of hardships does strongly cut against giving an
injunction and that the injunction would not disserve the public interest.
Furthermore, the balance of hardships inquiry is also sometimes called
the "undue hardship defense."
On the other hand, the preliminary injunctions
are given before trial because they are given at an early stage. Before the
court has heard the evidence and made a decision in the case, they are more
rarely given. The requirements for a preliminary injunction tend to be the same
as for a permanent injunction, plus the additional requirement that the party
asking for the injunction is likely to succeed on the merits.
A special kind of injunction before trial is
called a "temporary restraining order." These can be given without
notice and a hearing and they tend to be given only for a short period of time
before a court can hold a hearing and decide whether to issue a preliminary
injunction. Temporary restraining orders are often but not exclusively given to
prevent domestic violence, stalking, sexual assault, or harassment.
For both temporary restraining orders and
preliminary injunctions, the goal is usually to preserve the status quo so the
court is able to decide the case.
Thus, although some of the factors relating to an
injunction are different for every country but it still same that the
injunction is set as a prevention step to be taken into account by the
defendant from repeating his act and requesting him to do something positive.
This is because injunction is mainly to protect the public interest. Therefore,
we came up to the common findings on injunction that is injunction is one the
circumstances where the liability of the defendant is extinguished and it is
briefly outlined throughout our assignment. However, it is very important to
note that every principles that laid down under the injunction depends on the
cases arise and circumstances.
5.0 CONCLUSION
As
for conclusion, a remedy in tort is given in order to seek compensation and to
allow a plaintiff to seek a legal right. It can be classified into two
principles, which are extra judicial remedies and judicial remedies. In
addition, judicial remedies may be classified into several types, which are
damages, injunction and specific restitution of property. All these liabilities
can be extinguished by the act of parties or by the operation of law. These remedies
are only applied as a remedy for a certain tortious liability.
On
the ground of injunction, it can be separated into
two types namely the prohibitory and the mandatory injunction. Therefore, injunction can be
classified as an
additional remedy to general damages where damages itself is not an appropriate
or sufficient remedy. However, there are two requirements for the injunction as
derived in the case of Morris v Redland and injunctions can
be also granted at different times as Quia timet injunction, Perpetual
injunction, Interlocutory injunction and a few
classifications such as final injunction, interim injunction which has been explained briefly in contents
above.
On the other hand,
injunctions also play important roles in cases trespass to land. By virtue of
this ground, it can be concluded that the role of injunction in cases trespass
to land requires a party to stop doing an activity
that he intends to do (prohibitory injunction) and obtains an order from the
court to order a person’s to do a positive act as in the case of Terra
Damansara Sdn. Bhd. v. Nandex Development Sdn. Bhd. Additionally, the
claim for injunction is being dismissed by the court in some cases trespass to
land whereby, the plaintiffs have failed to prove their claim on a balance of
probability.
In short, injunctions are normally granted for the
torts of nuisance and repeated or continuing trespass to land and in special
circumstances to prevent the publication of a defamatory matter.
6.0 References
Cheong
May Fong. (2007). Civil Remedies in Malaysia. Malaysia: Sweet &
Maxwell Asia.
Finch, E., & Fafinski, S. (2011). 3rd
Edition Tort Law. England: Pearson Education Limited.
Injunction. Legal Information Institute.
Jones, M.A. (1986). Textbook on Torts. Great Britain: Financial Training Publications Limited.
Norchaya Talib. (2010). Law of Torts in Malaysia-3rd
Edition.
Selangor: Sweet & Maxwell Asia.
Remedies: Injunction. (2013, May 5). Bits of Law. Retrieved on 6th
November 2014 from http://www.bitsoflaw.org/tort/negligence/study-note/degree/remedies-injunctions
R.L Anand & L.S.Sastri`s. (1990). Law of Torts.
5th Ed. India: The Law Book Company (P).
Rogers, W.V.H. (2002). Winfield and
Jolowicz on Tort. 16th Ed. London: Sweet & Maxwell.
[1] (20000) 1 AMR 1187, CA
[2] (1970) AC 652
[3] [1988] 2 All ER 420
[4] Act 137
[5] [1977] 1 MLJ 56
[6] [2001] 2 AMR 2040
[7]According to Remedies: Injunction (2013, May 5).Bits of Law. Retrieved on 6th November 2014 from http://www.bitsoflaw.org/tort/negligence/study-note/degree/remedies-injunctions
[8]According to Injunction. Legal
Information Institute. Retrieved on 6th November 2014 from http://www.law.cornell.edu/wex/injunction
[9] Norchaya Talib. 2010.Law of Torts in Malaysia . 3rd Ed. Selangor:
Sweet & Maxwell Asia, p. 29
[10] Rogers, W.V.H. (2002). Winfield and Jolowicz on Tort. 16th
Ed. London: Sweet & Maxwell, p.487.
[11] Armstrong v Sheppard & Short Ltd [1959] 2 QB 384
[12] P v Liverpool Post plc [1991] 2 AC 370
[13] [2006] 8 CLJ 657
[14][2012] 1 LNS 21
[15][2011] 1 LNS 513
[16][2006] 8 CLJ 657
well written
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