TENAGA NASIONAL BHD v BUKIT LENANG DEVELOPMENT SDN BHD [2019] 1 MLJ

Federal Court (Putrajaya)

Trespass to land – Licensee’s obligation to supply electricity to squatters – Stay of execution

2.    On 15 May 1996, the Respondent bought the land for a development project. However, the project was postponed due to the presence of the illegal occupiers (hereinafter referred to as “the squatters”).

3.    The Appellant was a licensee. The Appellant supplied electricity and installed conduits on the said land without the Respondent’s consent, acting in response to the squatters’ demands.

4.    In 2000, the Respondent sued the squatters in a separate legal action for illegal occupation over a long period in the case of Bukit Lenang Development Sdn Bhd v Penduduk-penduduk yang menduduki atas tanah HS(D)151079—HS(D)151601, Mukim Plentong, Daerah Johor Bahru [1999] 6 MLJ 25; [1999] 8 CLJ 54) (hereinafter referred to as “the squatter judgement”).

5.    In November 2003, the Respondent’s solicitor issued a letter demanding that the Appellant cease the electricity supply to the said land and remove all structures erected on the said land.

6.    In April 2003, the High Court (“HC”) held that the squatters must surrender the vacant possession of the said land to the Appellant.

7.    In April 2004, the Respondent’s solicitor resent a letter of demand to the Appellant enclosing the judgment relating to the squatters. However, no further action was taken by the Appellant. Consequently, the Respondent filed a claim for trespass against the Appellant and other parties.

8.    While the trial of the trespass claim was still ongoing, the squatters’ appeal against the squatter judgment was dismissed by both the Court of Appeal (“COA”) and, thereafter, the Federal Court (“FC”).

9.    Since the judgment squatter was executed in December 2008, the Appellant had fulfilled the Respondent’s demand of ceasing the electricity supply to the said land.

10.    In July 2011, the Respondent filed this trespass claim against the Appellant at the HC, and the Appellant was found liable for trespass from the date the Appellant was alerted of the squatter judgment until the removal of the electricity supply infrastructure.

11.    Dissatisfied, the Appellant appealed to the COA, but the appeal was dismissed.

12.     The Appellant appealed to the FC.

2.    Whether an action in trespass is maintainable in law when the period of the alleged trespass is for the same period when a stay order of the High Court was in force in respect of the subject land?

(a) The FC quoted the definition of trespass from Halsbury’s Laws of England (4^th Ed) Vol 45 as follows-

‘Unlawful Entry. Every unlawful entry by one person on land in the possession of another is a trespass for which an action lies, even though no actual damage is done. A person trespasses upon land if he wrongfully sets foot on it, … or fixes anything on it or in it, or if he erects or…’                  [Emphasis added]                                                                                                                                                                                                                         

(b) The FC disagreed with the literal reading of subsection 24(1) of the Electricity Supply Act 1990 (“ESA”) as submitted by the Appellant’s counsel as it infringed Article 13 of the Federal Constitution. The FC referred to the following authorities –

(i)    In the case of Datuk Seri Khalid bin Abu Bakar & Ors v N Indra a/p P Nallathamby (the administrator of the estate and dependent of Kugan a/l Ananthan, deceased) and another appeal [2015] 1 MLJ 353; [2014] 9 CLJ 15, it was held as as follows-

‘In interpreting any statute, it is our considered view that the courts must always be vigilant to any interpretation which may dilute the importance of any constitutional rights of citizens of this country…’        [Emphasis added]                                                                                                                                                                                       

(ii)   In the case of Samsul Haque Mollick v Cesc Ltd and Ors AIR 206 Calcutta 73, the Calcutta High Court (Indian Court), in interpreting ‘occupier’ under the Electricity Act 2003, held as follows-

‘In my view, the trade licence does not make the petitioner an occupier or a lawful occupant of any part of the premises. In my opinion, the expression ‘occupier’ mentioned in s 43 of the Electricity Act 2003, shall not include an unauthorized occupant of a premises, within the class of persons denoted by it. A person who forces himself into any part of a premises owned by someone else cannot be treated as an occupier of such premises for the purpose of s 43 of the Electricity Act 2003. For being treated as such he must show that at some point of time in the past he was put into the occupation in question by the owner of the premises.’      [Emphasis added]                                                                                                                                               

(c)  Based on these authorities, among others, the FC agreed that the word ‘occupier’ in subsection 24(1) of the ESA 1990 must exclude the unlawful occupiers, including the Appellant, who was the licensee that had encroached on the said land without the consent of the owner. Consequently, the Appellant was held liable for trespassing on the said land.

2.    Whether an action for trespass is valid considering the period of alleged trespass coincided with the period of the HC stay order on the said land in favour of the squatters.

(a) In addressing this issue, the FC aligns the definition of ‘stay of execution’ with the interpretation made by the previous courts –

(i)    The FC referred to Re Overseas Aviation Engineering (GB) Ltd [1962] 3 All ER 12 at p 16; [1963] Ch 24 at p 39 in defining the terms of ‘stay of execution’ that have been contended by the Appellant as follows-

   ‘Execution’ means, quite simply, the process for enforcing or giving effect to the judgment of the court: and it is ‘completed’ when the judgment creditor gets the money or other thing awarded to him by the judgment.’       

(b) However, the FC reemphasised the gist of the HC and COA’s decision, where the courts held that the stay of execution applied only to the occupants and did not change their status as squatters. As such, they had no authority to permit Appellant’s actions on the said land. Appellant’s continued supply of electricity during this period was without a lawful basis and amounted to potential trespass.

(c)  Hence, the FC reaffirmed the decision made by the COA and the HC, considering three crucial facts regarding the ‘stay order’, as follows-

‘(a) ‘the stay order’ was an order to stay only the execution of the squatter judgment. It was not a stay or suspension of the squatter judgment itself;

(b) the Appellant was not a party to the ‘stay order’. It was obtained by the squatters against whom the squatter judgment was issued; and

(c) the stay order did not provide for the continued supply of electricity to the squatters.’

 

(d) As such, the stay of execution was held to apply only to the squatters remaining on the said land due to their pending appeal. It did not change the fact that the squatters were illegal occupiers.

2.    The licensee should require the applicants to make an application with supporting documents to prove their entitlement to occupation of the premises in question before taking further actions.

3.    The ‘stay of execution’ merely suspends the enforcement of a judgment or order. It does not nullify or affect any other rights the prevailing party may possess. Moreover, it also does not alter the legal position as previously determined by the Court.