[2020] 1 LNS 401 Legal Network Series

IN THE HIGH COURT OF MALAYA AT SHAH ALAM

IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA
[CIVIL APPEAL NO: BA-12B-195-12/2017]

BETWEEN

1. CHAI YON LEN

2. GUARDIAN OF CHINESE TEMPLE

(In Lot 168, Jalan Indah 14,
Kampung Selayang Indah 68100
Batu Caves, Selangor) … APPELLANTS

AND

1. KAMARUL JAMAN MYDIN

(NRIC NO: 490823-07-5519)

2. MOHAMAD AZAM MOHAMAD ISA

(NRIC NO: 750524-14-5187) … RESPONDENTS

JUDGMENT

(appeal to High Court against Sessions Court’s decision after trial)

A. Background

[1] I will refer to the parties in this case as they are in the Sessions
Court (SC).

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[2] The first defendant (1 st Defendant) occupies Lot 168, Jalan

Indah 14, Kampung Selayang Indah, 68100 Batu Caves,
Selangor (1 st Defendant’s Premises).

[3] The 1 st Defendant’s Premises was used as a Chinese temple and

a place for spiritual healing by a religious society named
“Pertubuhan Penganut Dewa Yu Feng Zhi Fu Cai Bo Xing Jun ”
(Religious Society).

[4] The first plaintiff (1 st Plaintiff) is the registered proprietor of

Lot 167, Jalan Indah 14, Kampung Selayang Indah, 68100 Batu
Caves, Selangor (1 st Plaintiff’s Premises) while the second
plaintiff (2 nd Plaintiff) is a tenant of Lot 171, Jalan Indah 14,
Kampung Selayang Indah, 68100 Batu Caves, Selangor (2 nd
Plaintiff’s Premises).

[5] The 1 st and 2 nd Plaintiffs (collectively referred to as the

“Plaintiffs”) are the neighbours of the 1 st Defendant.

B. Proceedings in SC

[6] The Plaintiffs have filed this suit in SC (This Suit) against the
1 st Defendant and the second defendant (2 nd Defendant). The 2 nd
Defendant has been described in the Plaintiffs’ Statement of
Claim (SOC) as the “Guardian of Chinese Temple” (Penjaga
Tokong Cina).

[7] The SOC has pleaded that a tort of private nuisance has been
committed against the Plaintiffs by the 1 s t and 2 n d
Defendants (collectively referred to as the “Defendants ”)
when the Defendants have used the 1 s t Defendant’s Premises
as a place of worship and to heal those who are terminally ill
(Healing Activities ).

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[8] The Defendants resisted This Suit on the following grounds:

(1) the Defendants have a fundamental right to practise their

religion as enshrined in Article 11(1) of the Federal
Constitution (FC); and

(2) the Defendants have not committed a tort of private

nuisance in the 1 st Defendant’s Premises against the
Plaintiffs because -

(a) after the filing of This Suit, the Defendants have

stopped using the 1 st Defendant’s Premises as a
temple and Healing Activities (Impugned
Activities);

(b) except for the Plaintiffs, the other neighbours of the

1 st Defendant have not complained or filed any suit
which has alleged the Defendants have committed a
tort of private nuisance on the 1 st Defendant’s
Premises;

(c) the Impugned Activities had not caused any physical

loss or damage to the Plaintiffs and their premises
(Plaintiffs’ Premises);

(d) before the filing of This Suit, the Impugned

Activities were only conducted on certain days on the
1 st Defendant’s Premises. Consequently, even if it
was assumed that the Impugned Activities had caused
some loss or damage to the Plaintiffs, there was no
“continuous” loss or damage to the Plaintiffs;

(e) there has been an inordinate delay in the filing of

This Suit by the Plaintiffs. As such, the Plaintiffs
are not entitled to the equitable remedies of

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mandatory and restraining injunctions against the

Defendants ; and

(f) as the local authority responsible in this case,

“Majlis Perbandaran Selayang” (MPS), has already
demolished the zinc hoarders and furnace (used for
the purpose of worship) in the 1 st Defendant’s
Premises (MPS’s Demolition), there is no necessity
for the court to order a mandatory injunction to
demolish the same.

[9] After a trial, the learned Sessions Court Judge (SCJ) allowed
This Suit and decided as follows, among others (SC’s Decision):

(1) a declaration is granted that the Defendants have

unlawfully used the 1 st Defendant’s Premises as a temple
(Declaration);

(2) an injunction is granted to restrain the Defendants from

using the 1 st Defendant’s Premises as a temple;

(3) an order for the Defendants to demolish a large censer (a

place for joss sticks to burn) in the 1 st Defendant’s
Premises; and

(4) costs in a sum of RM30,000.00 shall be paid by the

Defendants to the Plaintiffs.

C. This appeal

[10] The Defendants have appealed to this court against SC’s

Decision (This Appeal).

[11] When This Appeal was first heard by me, I posed a question to
all learned counsel (Court’s Question). The Court’s Question is

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whether the 2 nd Defendant is a legal entity against whom This

Suit can be filed. I then gave all learned counsel a right to file
supplemental written submission regarding the Court’s
Question. The parties were also given a right to submit orally on
the Court’s Question. I have taken this course of action because
all the parties in This Appeal have a right under the second rule
of natural justice to be heard before this court decides on the
Court’s Question which has not been raised by the parties -
please see Tan Kang Hai v. Slimming Sanctuary Sdn Bhd [2016]
5 MLRH 651, at [11(2)].

D. Issues

[12] In addition to the Court’s Question, This Appeal raises the

following issues:

(1) whether the Defendants’ constitutional right to profess and

practise their religion under Article 11(1) FC has been
contravened in this case;

(2) is the Religious Society’s constitutional right to administer

property under Article 11(3)(c) FC subject to the tort of
private nuisance?;

(3) whether the Impugned Activities constitute a tort of

private nuisance. In this regard -

(a) should This Appeal be allowed on the ground that the

neighbours of the 1 st Defendant (other than the
Plaintiffs) had not complained regarding the
Impugned Activities?;

(b) whether the 1 st Defendant’s cessation of the

Impugned Activities is a defence against This Suit?;

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(c) does a single act of interference with the Plaintiffs’

enjoyment of the Plaintiffs’ Premises amount to a
tort of private nuisance?; and

(d) are the Plaintiffs required to prove actual physical

damage or loss to the Plaintiff’s Premises due to the
Impugned Activities?; and

(4) if the 1 st Defendant has committed a tort of private

nuisance in this case, whether the court should exercise its
discretion under ss. 50, 51(2), 52(3)(b), (c), (d) and 53 of
the Specific Relief Act 1950 (SRA) to refuse a perpetual
prohibitory injunction and perpetual mandatory injunction
against the 1 st Defendant due to the following reasons -

(a) the Plaintiffs’ inordinate delay in the filing of This

Suit; and/or

(b) MPS’s Demolition has already been carried out.

E. Can This Suit be filed against 2 nd Defendant?

[13] The Religious Society has been registered under Societies Act
1966 (SA). Section 9(c) SA provides as follows:

“Provisions applicable to registered societies

9. The following provisions shall apply to registered

societies -

(c) a society may sue or be sued in the name of such

one of its members as shall be declared to the
Registrar and registered by him as the public officer

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of the society for that purpose, and, if no such

person is registered, it shall be competent for any
person having a claim or demand against the society
to sue the society in the name of any office -bearer
of the society; …”

(emphasis added).

[14] I have decided as follows in Ramachandran A/L Meyappan &

Ors v. Chellapan A/L K. Kalimuthu & Ors [2019] 12 MLJ 488,
[2019] 7 CLJ 788, [2019] 2 MLRH 634 (Seafield Temple Case),
at [37]:

“[37] The filing of This Suit by the Plaintiffs did not

comply with s. 9(c) SA. I am of the view that s. 9(c) SA is
a mandatory provision because the legislature has
employed the use of the mandatory term “shall” in the
opening sentence of s. 9 SA. If s. 9(c) SA is not
mandatory, this will open the floodgates of litigation to
any member of any registered society to sue on behalf of
the registered society on any matter regarding the
registered society. Such an interpretation is also contrary
to good governance on the part of registered societies,
namely any action to be filed by a registered society
should be instituted in the name of the public officer
declared to the ROS and is registered with the ROS for the
purpose regarding suits under s. 9(c) SA (presumably after
the registered society’s office-bearers have duly
considered such a proposed suit). As This Suit has
breached s. 9(c) SA, on this ground, the 3 Applications
should be allowed with costs.”

(emphasis added).

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No appeal to the Court of Appeal has been lodged against the

above decision in Seafield Temple Case.

[15] As the Religious Society has been registered under SA, the
Plaintiffs should have complied with the mandatory provision in
s. 9(c) SA. More importantly, the Plaintiffs did not cite the
Religious Society as a co-defendant in This Suit. The 2 nd
Defendant is not a legal entity which can be sued in court. Nor
can any judgment or order of the court be enforced against the
2 nd Defendant. I cite the following judgment in Darul Fikir v.
Dewan Bahasa Dan Pustaka [2018] 5 AMR 392, [2018] 10 MLJ
693, [2018] 5 MLRH 524, [2019] 1 CLJ 103, at [8(1)]:

“[8] I am of the view that there is no bona fide and

serious question to be tried in This Action as regards
[Dewan Bahasa Pustaka]. On this ground alone, Enc. 3 is
dismissed with costs. This decision is premised on the
following reasons:

(1) based on [Dewan Bahasa Pustaka Act 1959’s

(DBPA)] long title, ss. 3(1), (2), 6(1), 7(1), (2) and
26 DBPA, Parliament has clearly intended for the
“Board of Control” (Board) of [Dewan Bahasa Dan
Pustaka (DBP)] to be the statutory entity for the
purpose of all legal proceedings. Accordingly, by
reason of DBPA, the Board (not DBP) should have
been sued by the Plaintiff in This Action . In fact,
under s. 7(1) DBPA, the Contract should have
entered into by the Board (not DBP); …”

(emphasis added).

There is no appeal to the Court of Appeal in Darul Fikir.

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[16] Premised on the reasons explained in the above paragraph 15,

This Suit cannot be commenced against the 2 nd Defendant. Nor
can This Appeal be filed by the 2 nd Defendant. Accordingly,
SC’s Decision against the 2 nd Defendant is set aside and This
Appeal by the 2 n d Defendant be dismissed. I will discuss later in
this judgment regarding the question of costs of the trial in SC
and This Appeal respect of the 2 nd Defendant.

F. Whether Defendants’ constitutional rights under Article

11(1) FC have been violated

[17] I reproduce below the relevant part of Article 11 FC:

“Freedom of religion

11(1) Every person has the right to profess and practise

his religion and, subject to Clause (4), to propagate it .

(2) No person shall be compelled to pay any tax the

proceeds of which are specially allocated in whole or in
part for the purposes of a religion other than his own.

(3) Every religious group has the right -

(a) to manage its own religious affairs;

(b) to establish and maintain institutions for religious or

charitable purposes; and

(c) to acquire and own property and hold and

administer it in accordance with law.

(4) State law and in respect of the Federal Territories of

Kuala Lumpur, Labuan and Putrajaya, federal law
may control or restrict the propagation of any

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religious doctrine or belief among persons professing

the religion of Islam.

(5) This Article does not authorize any act contrary to

any general law relating to public order, public
health or morality.”

(emphasis added).

[18] The Defendants are guaranteed under Article 11(1) FC of their

fundamental liberties to “profess and practise” their religion.
This Suit does not affect in any manner the Defendants’
fundamental right of religion pursuant to Article 11(1) FC. This
Suit merely concerns the main issue of whether the Impugned
Activities constitute a tort of private nuisance against the
Plaintiffs.

G. Has Religious Society’s constitutional rights under Article

11(3)(c) FC been infringed?

[19] Firstly, the Religious Society does not own the 1 st Defendant’s
Premises. Nor is the Religious Society a tenant or occupant of
the 1 st Defendant’s Premises. As such, the Religious Society has
no right over the 1 st Defendant’s Premises, let alone a
constitutional right to administer the 1 st Defendant’s Premises
under Article 11(3)(c) FC. This Suit therefore does not affect in
any manner the Religious Society’s constitutional rights
pursuant to Article 11(3)(c) FC.

[20] Even if it is assumed that the Religious Society owns or

occupies the 1 st Defendant’s Premises, by virtue of Article
11(3)(c) FC, the Religious Society must “own … hold and
administer” the 1 st Defendant’s Premises “in accordance with

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law”. The word “law” in article 11(3)(c) FC has been defined in

article 160(2) FC as follows:

“ “law” includes written law, the common law in so far as

it is in operation in the Federation or any part thereof ,
and any custom or usage having the force of law in the
Federation or any part thereof; ”

(emphasis added).

I am of the view that the term “law” in Article 11(3)(c) FC

includes the “common law” regarding the tort of private
nuisance. In other words, the Religious Body must own, hold
and administer the 1 st Defendant’s Premises in a manner which
will not to cause a tort of private nuisance to the neighbours of
the 1 st Defendant’s Premises.

H. Whether Impugned Activities constituted a tort of private

nuisance

H(1). Elements of tort of private nuisance

[21] Regarding the three elements of a tort of private nuisance (3

Elements), I rely on the Court of Appeal’s judgment delivered
by Abdul Malik Ishak JCA in Projek Lebuh Raya Utara-Selatan
Sdn Bhd v. Kim Seng Enterprise (Kedah) Sdn Bhd [2013] 5 MLJ
360, at [124]-[128] (PLUS Case), as follows:

“[124] Private nuisance concerns the unreasonable

interference with another’s use or enjoyment of land. In
determining what is reasonable, the court will balance
each party’s right to use the land as they wish .

[125] The elements of the tort of private nuisance are :

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(a) indirect interference with the enjoyment of the

land;

(b) that such an interference was unreasonable ; and

(c) that the interference had caused damage to the

claimant.

[126] In regard to the element of interference, it is the

duty of the claimant to prove that the defendant has
caused an interference with the claimant’s use or
enjoyment of the land. The interference must be as a
result of a continuing state of affairs rather than a one -
off incident. Examples of physical invasion of the
claimant’s land are found in Davey v. Harrow Corporation
[1958] 1 QB 60 (CA), where the roots of a neighbour’s
tree spread into the claimant’s land, or in Sedleigh -
Denfield v. O’Callaghan and others [1940] AC 880 (HL),
where water flooded onto the land as a result of what the
neighbour had done, or in Christie v. Davey [1893] 1 Ch
316 where nuisance was caused by a noise, or in Wheeler
and another v. JJ Saunders Ltd and others [1996] Ch 19;
[1995] 2 All ER 697 (CA), where the smell caused the
nuisance.

[127] In regard to the element of unreasonableness, the

claimant’s enjoyment of his land constitutes nuisance if
it can be considered unreasonable. An interference which
goes beyond the normal bounds of acceptable behaviour
will be unreasonable (Southwark London Borough Council
v. Mills And Others [1999] 2 WLR 409 (CA)).

[128] In regard to the element of damage, it envisages a

situation where the interference must have caused

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damage to the claimant like the case of The Directors, etc

of the St Helen’s Smelting Company v. William Tipping
[1865] 11 HLC 642 where the fumes from the copper -
smelting works seriously damaged the trees and shrubs
that grew on the claimant’s land.”

(emphasis added).

H(2). Whether SC had made plain error of fact

[22] It is not disputed by the parties in This Appeal that an appellate

court should not intervene regarding a trial court’s findings of
fact, especially findings regarding credibility of witnesses,
unless there is a “plain error of fact” by the trial court which
has caused an injustice and which warrants appellate
intervention - please see the judgment of Steve Shim CJ (Sabah
& Sarawak) in the Federal Court case of Gan Yook Chin & Anor
v. Lee Ing Chin & Ors [2004] 4 CLJ 309, at 317-321.

[23] Whether the 3 Elements have been proven in This Suit are
findings of fact within the purview of learned SCJ. I have
perused the notes of evidence as well as the detailed written
submission of the Plaintiffs and Defendants filed in This
Appeal. I am not able to find any “plain error of fact” made
by SC regarding the 3 Elements. In fact, the learned SCJ has
made the following unassailable findings of fact in respect of
the 3 Elements:

(1) the Impugned Activities had interfered directly and

indirectly with the Plaintiffs’ enjoyment of the Plaintiffs’
Premises (Interference) as follows -

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(a) when the Impugned Activities were held, there was

traffic congestion in the area of the Plaintiffs’
Premises (Traffic Congestion);

(b) on the days the Impugned Activities were held -

(i) cars of the members of the Religious Society,

worshippers and those who sought healing were
parked in a haphazard manner; and

(ii) there was a lack of parking lots for the

residents in the vicinity of the Plaintiffs’
Premises

(Parking Problems); and

(c) the Impugned Activities emitted a lot of smoke (due

to the burning of joss sticks and incense at the 1 st
Defendant’s Premises) (Smoke) and caused a lot of
noise which disturbed the quiet enjoyment of the
Plaintiffs’ Premises (Noise).

There is an express condition (Express Condition)

imposed by the State Authority in the Register Document
of Title regarding the land upon which the 1 st Defendant’s
Premises is situated (1 st Defendant’s Land). The Express
Condition provides that the 1 st Defendant’s Land can only
be used for residence. By reason of the Express Condition,
the 1 st Defendant’s Land cannot be used for the Impugned
Activities or for any activity other than for residential
purpose only. It is to be noted that a breach of the Express
Condition has adverse consequences as explained in Moo
Hon Yee v. S Abdul Rahman Bin PAK Shaik Abdul Kader
[2019] 2 AMR 399, at [14] as follows -

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“[14] The Express Condition is conclusive under

s. 89(b) [National Land Code (NLC)]. I am of the
view that when the defendant operates a grocery
shop on the Land, this breaches the Express
Condition under s. 109(2)(b) NLC (defendant’s
breach). The defendant’s breach has the following
adverse consequences for both the plaintiff and
defendant:

(1) both the plaintiff and defendant are liable to a

fine by the LA under s. 127(1A)(a) and (b)
NLC; or

(2) the Land is liable to be forfeited to the State

Authority pursuant to s. 127(1)(a) and (b)
NLC.”

(emphasis added);

(2) the Interference was unreasonable because the Traffic

Congestion, Parking Problems, Smoke and Noise
(Disturbance) had exceeded the “normal bounds of
acceptable behaviour” which could be tolerated by a
reasonable resident in the area of the 1 st Defendant’s
Premises; and

(3) the Interference had caused damage to the Plaintiffs in the

form of the Disturbance. I should add that when it is
commonly known that a certain residential property is near
a place of worship which causes the Disturbance, there
may be a general reduction in the market value of the
residential properties in the vicinity of the place of
worship (Market Value Reduction).

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H(3). Whether tort of private nuisance required a suit by all

neighbours of 1 st Defendant

[24] The Defendants’ learned counsel has submitted that This Appeal
should be allowed because there are many neighbours of the 1 st
Defendant (other than the Plaintiffs) who have not complained
regarding the Impugned Activities.

[25] I am not able to accept the above submission because the tort of
private nuisance does not require all the occupants of land which
are affected by the tort to sue the tortfeasor. If I have accepted
the above contention, the tort of private nuisance will lose its
efficacy as an effective remedy for those who own and occupy
land.

H(4). Whether 1 st Defendant can rely on cessation of Impugned

Activities as a defence

[26] The Defendants’ learned counsel has contended that in view of

the 1 st Defendant’s cessation of the Impugned Activities
(Cessation), the learned SCJ should have dismissed This Suit.

[27] I am of the view that once a plaintiff has proven against a

defendant the 3 Elements on a balance of probabilities at a trial,
the plaintiff has established a tort of private nuisance against the
defendant. Cessation is not a defence to exclude the 1 st
Defendant’s liability for a tort of private nuisance but only
provides a mitigation in respect of the remedies which may be
awarded to the Plaintiffs against the 1 st Defendant.

[28] In this case, the learned SCJ has not awarded any compensatory
damages for the tort of private nuisance which has been
committed at the 1 st Defendant’s Premises. It is therefore clear

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that SC has duly considered Cessation as a valid mitigation in

this case.

H(5). Can a single interference with plaintiff’s enjoyment of

plaintiff’s land amount to tort of private nuisance?

[29] The Defendants’ learned counsel invited this court to allow This
Appeal on the ground that the Impugned Activities only took
place on certain days and there was no “continuous”
Interference.

[30] In PLUS Case, at [126], the Court of Appeal expressed the view
that the “interference must be as a result of a continuing state of
affairs rather than a one-off incident”. This dictum is purely
obiter because in PLUS Case, neither the High Court nor the
Court of Appeal has decided on the question of private nuisance.
It is trite law that an obiter dictum or obiter dicta of any court
does not constitute a binding precedent.

[31] My research has revealed that in the United Kingdom (UK), a

single act of interference with a plaintiff’s use and/or enjoyment
of the plaintiff’s land may prove the first element of a tort of
private nuisance (1 st Element). I refer to the following judgment
by David Steel J in UK’s High Court in Colour Quest Ltd v.
Total Downstream UK plc [2009] 2 Lloyd’s Rep 1, at [421]:

“[421] Taken as a whole, these authorities do not

support [defendant company’s] submission. The position
is that on appropriate facts there can be liability in
private nuisance for a single or isolated escape as
opposed to a state of affairs where there is both
unreasonable or negligent user of land and foreseeability

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of escape. (See Clerk & Lindsell on Torts 19 th Ed para

20-16). …”

(emphasis added).

[32] I accept the above development of the tort of private nuisance in

UK as stated in Colour Quest - a single act of interference by a
defendant with a plaintiff’s use and/or enjoyment of the
plaintiff’s land may be sufficient to prove the 1 st Element.
Whether a defendant’s single act of interference with a
plaintiff’s use and/or enjoyment of the plaintiff’s land amounts
to proof of the 1 st Element, is a question of fact and degree.
Having said that, if there is only a single act of interference by a
defendant with a plaintiff’s use and/or enjoyment of the
plaintiff’s land, this may reduce considerably the remedies
available to the plaintiff as compared to a case of repeated or
continuous acts of private nuisance by the defendant.

[33] This case does not concern a single act of Interference. In the 1 st
Defendant’s witness statement, the 1 st Defendant testified that
the Impugned Activities took place from 2013 until 12.2.2017
(Period). In other words, the Interference had been committed
on certain days in a week throughout the Period.

H(6). Whether Plaintiffs are required to prove actual physical

damage to Plaintiffs’ Premises

[34] According to the Defendants’ learned counsel, the Interference

did not cause any actual physical damage or loss to the
Plaintiffs’ Premises. Hence, This Appeal should be allowed on
this ground alone.

[35] Firstly, the Plaintiffs’ claim in This Suit is based on an

Interference with the Plaintiffs’ enjoyment of the Plaintiffs’

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Premises. I refer to a judgment of Lord Neuberger P in UK’s

Supreme Court in Coventy v. Lawrence [2014] 2 All ER 672, at
[1], as follows:

“[1] This appeal raises a number of points in connection

with the law of private nuisance, a common law tort .
While the law also recognises public nuisance, a common
law offence, this appeal is only concerned with private
nuisance, so all references hereafter to nuisance are to
private nuisance. It should also be mentioned at the
outset that the type of nuisance alleged in this case is
nuisance in the sense of personal discomfort, in
particular nuisance by noise, as opposed to actual injury
to the claimant’s property (such as discharge of noxious
material or removal of support).”

(emphasis added).

[36] As This Suit concerns the Plaintiffs’ enjoyment of the Plaintiffs’

Premises, the Plaintiffs are not required to prove actual damage
or loss to the Plaintiffs’ Premises. The third element of a tort of
private nuisance (the Interference must have caused damage to a
plaintiff) (3 rd Element) can be satisfied if there is “non-
physical” damage such as the Disturbance. In addition to the
Disturbance, the Plaintiffs have also suffered Market Value
Reduction as an indirect consequence of the Interference in this
case.

I. Whether court can grant injunctive relief in this case

I(1). Court’s discretionary power to grant perpetual injunctions

[37] Sections 50, 51(2), 52(3)(b), (c), (d) and 53 SRA state as
follows:

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“s. 50. Preventive relief how granted.

Preventive relief is granted at the discretion of the court

by injunction, temporary or perpetual.

51(2) A perpetual injunction can only be granted by the

decree made at the hearing and upon the merits of the
suit; 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 the plaintiff .

s. 52. Perpetual injunctions when granted.

(3) When the defendant invades or threatens to invade

the plaintiff’s right to, or enjoyment of, property, the
court may grant a perpetual injunction in the following
cases, namely:

(b) where there exists no standard for ascertaining the

actual damage caused, or likely to be caused, by the
invasion;

(c) where the invasion is such that pecuniary

compensation would not afford adequate relief;

(d) where it is probable that pecuniary compensation

cannot be got for the invasion; and …

Section 53. Mandatory injunctions.

When, to prevent the breach of an obligation, it is

necessary to compel the performance of certa in acts

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which the court is capable of enforcing, the court may in

its discretion grant an injunction to prevent the breach
complained of, and also to compel performance of the
requisite acts.”

(emphasis added).

[38] It is not disputed that upon the proof of the 3 Elements, the
learned SCJ has the following discretionary power to -

(1) grant a perpetual prohibitory injunction under ss. 50,

51(2), 52(3)(b), (c) and/or (d) SRA to restrain the 1 st
Defendant from carrying out any of the Impugned
Activities on the 1 st Defendant’s Premises (Perpetual
Prohibitory Injunction). The Perpetual Prohibitory
Injunction is granted by SC because -

(a) there exists no standard for ascertaining the actual

Disturbance which has been caused by the
Interference within the meaning of s. 52(3)(b) SRA;

(b) as provided in s. 52(3)(c) SRA, the Interference in

this case is such that pecuniary compensation would
not afford adequate relief to the Plaintiffs; and/or

(c) it is probable that pecuniary compensation cannot be

got for the Interference as stated in s. 52(3)(d) SRA;
and

(2) order a perpetual mandatory injunction under s. 53 SRA to

compel the 1 st Defendant to demolish the large censer in
the 1 st Defendant’s Premises (Perpetual Mandatory
Injunction).

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I(2). Should court refuse injunctive relief due to Plaintiffs’

inordinate delay in filing This Suit?

[39] The Defendants’ learned counsel has alleged that the Plaintiffs
have been guilty of inordinate delay in the commencement of
This Suit. Hence, the learned SCJ should have declined to
exercise her discretion to order a Perpetual Prohibitory
Injunction and Perpetual Mandatory Injunction (Injunctions) in
this case.

[40] Firstly, there was no delay, let alone inordinate delay, in the
institution of This Suit by the Plaintiffs. This was because, as
admitted by the 1 st Defendant, the Impugned Activities
continued on the date of the filing of This Suit.

[41] Alternatively, even if was assumed that there was delay in the
commencement of This Suit by the Plaintiffs, the Plaintiffs had
the following two reasonable explanations for any delay in the
filing of This Suit:

(1) the Plaintiffs had complained to MPS [Plaintiffs’

Complaints (MPS)] and were waiting for MPS to take
action against the 1 s t Defendant. In fact, MPS’s
Demolition was carried out pursuant to the Plaintiffs’
Complaints (MPS); and

(2) This Suit concerned sensitive matters regarding the

religious belief of the 1 s t Defendant and members of the
Religious Society. It was neither wise nor prudent for the
Plaintiffs to file This Suit in haste. On the contrary, the
Plaintiffs had exercised patience and tolerance in
attempting to resolve amicably this case before
instituting This Suit.

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I(3). Whether court should have refused Injunctions in light of

MPS’s Demolition

[42] Lastly, the Defendants’ learned counsel invited this court to set
aside the Injunctions in This Appeal because MPS’s Demolition
had already been carried out. According to the Defendants’
learned counsel, there was no necessity for SC to have granted
the Injunctions in this case.

[43] I am not able to accede to the above submission because the fact
that MPS’s Demolition has been carried out, does not mean that
the 1 st Defendant or subsequent owner or occupier of the 1 st
Defendant’s Premises cannot recommence the Impugned
Activities in the future. The grant of Injunctions in this case is
necessary to ensure that there is a final resolution of this
dispute.

I(4). Should there be appellate intervention regarding SC’s

exercise of discretion in granting Injunctions?

[44] It is not disputed that an appellate court should be slow to set

aside the lower court’s exercise of discretion - please refer to
the Federal Court’s judgment delivered by Alauddin Mohd.
Sheriff FCJ (as he then was) in Chase Perdana Bhd v. Pekeliling
Triangle Sdn Bhd & Anor [2008] 1 CLJ 313, at [49].

[45] I am mindful that I am sitting in an appellate jurisdiction over

the exercise of the learned SCJ’s discretion in granting the
Injunctions. I am of the view that in granting the Injunctions,
the learned SCJ had not exercised her discretion on a wrong
principle of law. Nor had SC taken into account an irrelevant
matter in ordering the Injunctions. In the circumstances, there is

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no ground for appellate intervention regarding the learned SCJ’s

exercise of discretion in granting the Injunctions.

J. Costs

[46] As explained in the above paragraphs 15 and 16, there is no

basis for the Plaintiffs to have filed This Suit against the 2 nd
Defendant. Accordingly, costs of RM30,000.00 awarded by SC
(against both the Defendants) for the trial is reduced to
RM20,000.00 (as against the 1 st Defendant only).

[47] The 1 st Defendant shall pay the costs of This Appeal to the
Plaintiffs because I have rejected all the contentions of the 1 st
Defendant in This Appeal. Hence, SC’s Decision against the 1 st
Defendant is affirmed.

K. Court’s decision

[48] In brief -

(1) the 2 nd Defendant is not a legal entity which can be sued

by the Plaintiffs in This Suit;

(2) This Suit (based on a tort of private nuisance) does not

affect in any manner the constitutional right of the 1 st
Defendant and members of the Religious Society to profess
and practise their religion as guaranteed under Article
11(1) FC;

(3) if it is assumed that the Religious Society owns the 1 st

Defendant’s Premises, the Religious Society must “own …
hold and administer” the 1 st Defendant’s Premises

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pursuant to Article 11(3)(c) FC so as not to cause a tort of

private nuisance to the Plaintiffs;

(4) there is no appellate intervention regarding SC’s Decision

against the 1 st Defendant because the learned SCJ has not
made any “plain error of fact” regarding the 3 Elements of
a tort of private nuisance;

(5) the 1 st Defendant could not rely on the following defences

against a tort of private nuisance -

(a) all the neighbours of the 1 st Defendant (other than

the Plaintiffs) did not complain regarding the
Impugned Activities;

(b) Cessation of the Impugned Activities could not

negative the 1 st Defendant’s liability but could only
constitute a mitigation for the 1 st Defendant in this
case;

(c) a single act of Interference with the Plaintiffs’

enjoyment of the Plaintiffs’ Premises could prove the
1 st Element of a tort of private nuisance. In this case,
there was more than a single act of Interference
which took place thoughout the Period; and

(d) the Plaintiffs are not required to prove actual

physical damage or loss to the Plaintiff’s Premises
due to the Impugned Activities. The 3 rd Element of a
tort of private nuisance is satisfied in this case in the
form of the Disturbance and Market Value Reduction
which have been suffered by the Plaintiffs; and

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(6) the learned SCJ had correctly exercised her discretion

under ss. 50, 51(2), 52(3)(b), (c), (d) and 53 SRA to award
the Injunctions in this case because -

(a) the Plaintiffs were not guilty of any inordinate delay

in the institution of This Suit and even if they were,
they had two reasonable explanations for any delay
in the filing of This Suit; and

(b) the fact that MPS’s Demolition has been carried out,
does not mean that the 1 st Defendant or subsequent
owner or occupier of the 1 st Defendant’s Premises
cannot recommence the Impugned Activities in the
future.

[49] Premised on the above evidence and reasons, the following order
is made in This Appeal:

(1) the 2 nd Defendant’s appeal is dismissed without costs;

(2) SC’s decision is affirmed except that -

(a) SC’s Decision against the 2 nd Defendant is set aside;

(b) the Declaration and Injunctions are only granted

against the 1 st Defendant; and

(c) costs of RM30,000.00 awarded by SC is reduced to

RM20,000.00 (against the 1 st Defendant only); and

(3) costs of This Appeal in a sum of RM8,000.00 shall be paid

by the 1 st Defendant to the Plaintiffs.

[50] It is hoped that residential premises are not unlawfully used by

their owners and occupants in a manner which constitutes a tort
of private nuisance to their neighbours.

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DATED: 6 MAY 2020

(WONG KIAN KHEONG)

Judge
High Court of Malaya
Shah Alam, Selangor Darul Ehsan

COUNSEL:

For the appellants - Azhar Harun, Abdul Halim Abdul Karim & Chiew
Choon Man; M/s William Leong & Co

For the respondents - Zarina Begum Kamarul Jaman & Anis Bazilah
Abdul Ghani; M/s Lim Soh Wah & Zarina

Case(s) referred to:

Tan Kang Hai v. Slimming Sanctuary Sdn Bhd [2016] 5 MLRH 651

Ramachandran A/L Meyappan & Ors v. Chellapan A/L K. Kalimuthu

& Ors [2019] 12 MLJ 488

[2019] 7 CLJ 788, [2019] 2 MLRH 634

Darul Fikir v. Dewan Bahasa Dan Pustaka [2018] 5 AMR 392, [2018]
10 MLJ 693, [2018] 5 MLRH 524, [2019] 1 CLJ 103

Projek Lebuh Raya Utara-Selatan Sdn Bhd v. Kim Seng Enterprise

(Kedah) Sdn Bhd [2013] 5 MLJ 360

Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309

Colour Quest Ltd v. Total Downstream UK plc [2009] 2 Lloyd's Rep 1

Coventy v. Lawrence [2014] 2 All ER 672

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Chase Perdana Bhd v. Pekeliling Triangle Sdn Bhd & Anor [2008] 1
CLJ 313

Legislation referred to:

Societies Act 1966, s. 9(c)

Federal Constitution, Art. 11(1), (3)(c), 160(2)

Specific Relief Act 1950, ss. 50, 51(2), 52(3)(b), (c), ( d), 53

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