Court awards RM60,000.00 for breach of contract, nuisance and trespass over native land

KOTA KINABALU: A government pensioner had successfully brought claims for breach of contract, nuisance and trespass against a prominent local business man in Kinarut, Papar.

The Plaintiff -- Halimah Osman -- who was represented by Counsel Mohd Azhier Farhan bin Arisin had initiated legal action in the Sessions Court at Kota Kinabalu for recovery possession of a land and damages for breach of tenancy agreement, nuisance and trespass against Frederick Chin Chit Vun and was awarded damages by the Sessions Court amounting to RM 60,000.00 plus statutory interest of 5% per annum.

The dispute between the Plaintiff and the Defendant aroused when the Defendant erected buildings and structures other than for car wash business on a land belong to the Plaintiff. The Defendant claimed the land was not belong to the Plaintiff but Majlis Daerah Papar. 

In the written decision by Sessions Court Judge Tuan Indra Haji Ayub, the court made a finding of fact that the grant title is a conclusive proof that the Plaintiff is the registered and beneficial owner of a piece of land and she has every rights, interests and benefits vested by the law to deal with the said land.

The court orders the Defendant to quit and deliver the vacant possession of the said land to the Plaintiff by removing all built structures therein and pay the outstanding rent amounting to RM 832.25 and double rent calculated from the date of expiry notice to quit until such date vacant possession of the land is delivered to the Plaintiff. The Court further orders the Defendant to pay costs of RM 14,075.00 plus interest of 4% per annum to the Plaintiff.

During the trial, the Plaintiff had called a total of 3 witnesses and the Defendant -- represented by Senior Counsel Datuk Norbert Chin -- called 3 witnesses including Papar Disctrict Council Executive Officer Kusnadi Manuwar and Patricia Felix of Papar Land Survey Department. 

The findings of fact by the Sessions Court Judge Tuan Indra Haji Ayub are as follows:

1.  That the Plaintiff had proven on the balance of probabilities its case against the Defendant. The Plaintiff’s version are inherently probable than the Defendant’s version.
2. The Court accepted the evidence of the Plaintiffs’ witnesses. They are credible witnesses.

3. The grant title NT023224820 is a conclusive proof that the Plaintiff is the registered and beneficial owner of the said land she has every rights, interests and benefits vested by the law to deal with the said land.

4. There exists a Tenancy Agreement between the Plaintiff and the Defendant for the Defendant to occupy the said land (NT 023224820) and the Tenancy Agreement is a valid agreement. Both Parties had agreed the tenancy was for a period of 10 years from 01.10.20 RM 600.00 per month.

5. The grant title stated in the Tenancy Agreement was Native Title 023224053 instead of NT 023224820. I am satisfied that there was no element of misrepresentation as it was a bilateral genuine mistake . I agree that the Defendant knew the exact location of the said land he intends to occupy from the outset.

6. The Defendant has breached clause 8 of the Tenancy Agreement when he erected One (1) residential house, Fences along the perimeter and One (1) kennel to house the Defendant’s dogs on the said land.

7. The Defendant admited that he constructed these structures/buildings. The Defendant by erecting buildings and structures other than for the purpose of car wash business , is a clear breach of clause 8 of the Tenancy Agreement.

8. The Plaintiff is lawfully entitled to terminate the Tenancy Agreement and repossess the said land as a result of the breach of clause 8 of the Tenancy Agreement.

9. The Plaintiff is entitled by law to rescind the Agreement on the ground that the tenant has failed to comply with the term of the agreement.

10. The Plaintiff’s Notice of Termination of Tenancy Agreement and Delivery of Vacant Possession is valid, lawful and binding to the Defendant.

11. The Defendant admitted that upon the service of Notice of Termination of Tenancy Agreement and Delivery of Vacant Possession, he is still occupying the said land. The Defendant continuous occupation of the said land is unlawful and an act of trespass.

12. As regards to the contention by the Defendant that :

    -       the Tenancy Agreement is null and void ab initio because the Plaintiff is not entitled and prohibited by the Special Terms in the NT023224820 to sublease the said land,

    -       that there was no permission by the Director of Land and Surveys to sublease NT023224820 to the Defendant ,

    These contentions are not maintainable as it were never pleaded by the Defendant

13. The Defendant had failed to prove on the balance of probabilities its counter claim against the Plaintiff.