Loh Fung Ting V Sarawak Electricity SupplyCorporation (Sesco)


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CIVIL APPEAL NO. Q-02(IM)-863-2009












[In the matters of High Court of Sabah and Sarawak at Kuching


Suit No. 22-160-2002]




Loh Fung Ting – Plaintiff




Sarawak Electricity Supply Corporation


(SESCO) – Defendant




Low Hop Bing, JCA Mohd Hishamudin Md Yunus, JCA Abdul Wahab Patail, JCA






[1] As the registered proprietor of a parcel of land described and known as Lot 247 section 18 Kuching Town Land District, the Plaintiff Loh Fung Ting (the Appellant) filed a claim for damages for trespass and nuisance and other declaratory and injunctive reliefs against the Defendant SARAWAK ELECTRICITY SUPPLY CORPORATION (SESCO) (the Respondent) in respect of a rectangular, fenced up plot of land measuring 634 sq. ft. where the Respondent had erected a substation. The Respondent counter-claimed for reliefs relating to its claim over the said plot upon which the substation was erected.


[2] The High Court dismissed the application by the Appellant and allowed the counter-claim by the Respondent.


[3] The Appellant appealed against the decision of the High Court. By a majority decision, this Court allowed the appeal as follows:


“We therefore allow this Appeal, set aside the order of the High Court and substitute it with an order allowing the




Plaintiff’s claim with mesne profit to be assessed by the High Court registrar. We dismiss the Defendant’s counterclaim with costs of RM15,000.00 here and in the Court below.


Deposit to be refunded to the Appellant (Plaintiff).”


[4] The following are the reasons for the dissent.


[5] The Appellant purchased the land on 15.7.1972. The


substation was already in existence at the time of purchase. Its existence was apparent also to the Appellant. The Appellant assumed it was outside the boundary to her land. Some 25 years later upon discovering that it was within the fenced up plot of 634 sq. ft. was within her land, took steps to require the Respondent to relocate the substation and give up possession of the plot.


[6] On the other hand, the Respondent had purchased from and paid the previous owner for the plot, and with the consent of the previous owner applied to the authorities to build a fence, entered upon the plot, erected the substation on and a fence around the plot.




The fence was kept locked. The subdivision and issuance of a separate title was however not completed.


[7] In plain terms, the Appellant was not being deprived of her land contrary to Article 13 of the Federal Constitution because:


(a) Since the previous owner had sold the plot to the Respondent, he had only the balance of his land to sell to the Appellant, and the Appellant acquires property subject to the rights of the Respondent: see Yonq Tong Yonq v Siew Soon Wah & Ors M9711 1 LNS 161 FC.


(b) The existence of the fenced up plot with substation thereon was evident to the Appellant.


(c) That the Appellant’s intention was to purchase only that land not including the fenced up plot with the substation is underlined by the fact that the Appellant assumed all along until the discovery 25 years later to the contrary, that the fenced up plot within which the substation stood, was outside the land she had purchased.




[8] The Respondent is entitled to have its rights to be protected by a subdivision of the Appellant’s Lot 247 section 18 Kuching Town Land District and the issue of a title to its plot.


[9] The contention that the Respondent had been a trespasser ever since the Appellant became the registered proprietor of the land, is inconsistent with the facts as she never thought until 25 years later that the plot within which stood the substation was within the boundary of the land she bought.


[10] Article 13 protects rights to property, but is not the basis to acquire property against the rights, albeit unregistered, of another. Contrary to the Appellant’s rights under Article 13 being breached, she is, in respect of the plot within which the substation stood, seeking to claim a windfall. On the facts, by its purchase and payment by the Respondent, facts supported by the previous owner allowing the Respondent to enter and erect the substation and fence, the Respondent had acquired a right to a registrable interest. That it is not registered does not invalidate the interest. It is the certificate of title that is no longer accurate or up-to-date and it can be corrected.




[11] Appreciating the precise facts, there is no error in the decision of the High Court as to warrant appellate intervention. There is no error, defect, or irregularity, whether in the decision or otherwise not affecting the merits or the jurisdiction of the Court.


[12] Accordingly, the appeal ought to be dismissed with costs.






Court of Appeal, Malaysia Putrajaya


Dated: 11th September 2014


Counsels/Solicitors –


For the Appellant: Mr. R.J. Noel


Messrs. R.J. Noel Advocates


For the Respondent: Mr. Sim Hui Chaang


Messrs Reddi & Co. Advocates



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