Qingcui Development Sdn Bhd v Sabah Electricity Sdn Bhd, 28-01-2009

• Judge: (DATO’ ABDUL RAHMAN SEBLI)
• Judgment Date: 28 January 2009
• Court: High Court (Malaysia)
• Record Number: K22-161 0F 2008

MALAYSIA

IN THE HIGH COURT IN SABAH AND SARAWAK

AT KOTA KINABALU

SUIT NO. K22-161 0F 2008

BETWEEN

QINGCUI DEVELOPMENT SDN BHD .. 1^ST PLAINTIFF

LEON SIEW YIN .. 2^ND PLAINTIFF

AND

SABAH ELECTRICITY SDN BHD .. 1^ST DEFENDANT

ASSISTANT COLLECTOR OF

LAND REVENUE, KOTA KINABALU .. 2^ND DEFENDANT

GROUNDS OF DECISION

The 1^st and 2^nd plaintiffs are the registered and beneficial owners respectively of two pieces of land under titles No.CL015492458 (“the CL Land”) and No.NT013049806 (“the NT Land”). On 29.6.2007 they were given approval by Dewan Bandaraya Kota Kinabalu to carry out a residential development project on the said lands. The project comprises 71 units of terrace houses, 14 units of semi-detached houses and 13 units of detached houses. The 1^st plaintiff has been offered bridging loan facilities in the sum of RM8.8 million by Public Bank Berhad for the project and is expecting a profit of RM15.5 million. However sometime in October 2007 the 1^st plaintiff was informed by an officer of the 1^st defendant that the 1^st defendant intended to build high tension towers on the NT Land. Preliminary works on the lands commenced after the Earth Planning Approval was given by DBKK to the 1^st plaintiff on 13.11.2007. The transmission lines would cut across the NT Land. The plaintiffs and their solicitors raised their objections to this plan but to no avail. They were only given assurances by the 1^st defendant that their objections would be looked into.

The 1^st defendant proceeded with the project on the basis that they had obtained wayleave from the 2^nd defendant to enter the NT Land for the purpose of carrying out works for the project. However the notice of wayleave was never effected on the plaintiffs. The plaintiffs’ fear is that if the 1^st defendant were to proceed with the erection of the high tension towers over the NT Land, the whole of the housing project will not become feasible as no purchaser would want to buy a house next to high tension towers. Unless restrained by the court the 1^st defendant will continue to enter the NT Land and commence work to erect pylons for their electricity transmission lines and construct the high tension towers on the land. Hence this application by the plaintiffs for the following reliefs:

1. An injunction to restrain the 1^st defendant and/or its servants or agents from entering the NT Land for the purpose of erecting pylons for their electricity transmission lines and/or high tension towers pending the disposal of the action.

2. An injunction to restrain the 1^st defendant and/or by its servants or agents or otherwise from continuing and/or performing any work for the purpose of erecting pylons for their electricity transmission lines and/or high tension towers on the NT Land pending the final disposal of the action.

In resisting the plaintiffs’ application the 1^st defendant asserts, amongst others, that the 1^st and 2^nd plaintiffs have no locus standi to institute the present suit and to apply for the injunction on the following grounds:

As against the 1^st plaintiff:

1. The 1^st plaintiff is neither the registered owner nor the beneficial owner of the NT Land.

2. As at the date of the filing of the suit and injunction application the CL Land has not been amalgamated with the NT Land.

3. The Development Plan is subject to the conversion, subdivision and amalgamation of the CL and NT Lands.

As against the 2^nd plaintiff:

1. There is no evidence that she is the beneficial owner of the NT Land as the purchase price of the land had not been paid in full to the registered owner and vendor, one Wong Mui Eng timeously.

It was submitted that on the materials before the court the 1^st and 2^nd plaintiffs fail to establish that they qualify as persons entitled to any legal character or to any right to any property at the time the suit was filed. The question is whether the court, in dealing with the plaintiffs’ application for injunction, may properly make a final determination on the issue of locus standi at this stage. In this connection the recent decision of the Court of Appeal in Chong Sui Jin & Ors v Jeramas Sdn Bhd & Anor [2008] 4 MLJ 701 is relevant. The issue in that case is strikingly similar to the issue in the present case. In that case the High Court had dismissed the appellant’s application for injunction on the ground that the appellant had no locus standi. In allowing the appellant’s appeal, the Court of Appeal had this to say:

“In the instant case, the issue of locus standi was raised in the plaintiffs’ application for interlocutory injunction and there was no application by the defendants to have the suits struck out on the ground that the plaintiffs have no locus standi. As such the function of the High Court in the instant case at that stage was to determine only whether there was a serious question on locus standi. The learned Judicial Commissioner did not do that but instead she made a final determination on the issue of locus standi. In our view the learned Judicial Commissioner had erred when she did not follow the guidelines stated by this court in Keet Gerald Francis Noel John’s case. It is also our view that from the submissions made by the parties on the issue of locus standi the High Court should have held that there was a serious issue raised on locus standi and the High Court should then move to the next step of its enquiry in accordance with the guidelines set out in Keet Gerald Francis Noel John’s case.”

Having regard to the facts and the submissions of both sides in the instant case clearly there is a serious question to be tried on the issue of locus standi. The 1^st plaintiff is the registered owner of the CL Land whilst the 2^nd plaintiff has an arguable case that she has become the legal and beneficial owner of the NT Land. In paragraph 6 of the plaintiffs’ Affidavit in Reply affirmed by Chan Koh Poh on 1.12.2008 the plaintiffs aver that the balance of the purchase price of the NT Land has been paid in full to Wong Mui Eng, the registered owner and vendor. Such being the position it will not be proper for this court to make any final determination on the issue of locus standi at this stage, let alone to dismiss the plaintiffs’ application for want of standing. The 1^st defendant’s submission on the issue is therefore devoid of merit.

The Court of Appeal in Chong Sui Jin laid down the following guidelines for a judge to follow in hearing an application for an interlocutory injunction:

1. he must ask himself whether the totality of the facts presented before him discloses a bona fide serious issue to be tried. He must when considering this question, bear in mind that the pleadings and evidence are incomplete at that stage. Above all, he must refrain from making any determination on the merits of the claim or any defence to it. It is sufficient if he identifies with precision the issues raised on the joinder and decides whether these are serious enough to merit trial. If he finds, upon a consideration of all the relevant material before him, including submissions of counsel, that no serious question is disclosed, that is an end of the matter and the relief...