TEH CHAI PENG v FIESTA UNTUNG SDN BHD

Case Significance

Illustrates when the summary procedure under Order 89 of the Rules of Court 2012 is available to recover vacant possession from a trespasser, and that a purported lease lacking dates, terms, witnesses and proof of rent, contradicted by the occupier's own director, raises no bona fide triable issue capable of defeating it.

This High Court decision at Temerloh concerns the summary recovery of vacant possession of land under Order 89 of the Rules of Court 2012. The plaintiff, the registered proprietor of two parcels of land with a factory building at Raub, Pahang, commenced proceedings by originating summons alleging that the defendant, a company engaged in the durian and fruit trade, had entered and remained on the lands without licence or consent and was a trespasser "pure and simple". The plaintiff relied on the land titles, a sale and purchase agreement, a police report denying the authenticity of an alleged lease, and a letter from one of the defendant's directors confirming that no tenancy agreement had ever been approved or entered into. The defendant asserted that it occupied under a valid lease and that the authenticity and enforceability of the lease raised triable issues unsuitable for the summary procedure. The court allowed the plaintiff's application. It held that the plaintiff had established a proprietary right to possession and satisfied the requirements of Order 89, which is confined to clear cases of trespass: the ownership was undisputed and the affidavit evidence showed occupation without licence or consent. It held that the defendant had failed to raise any bona fide triable issue. The alleged lease was riddled with material deficiencies, no date, no commencement or expiry terms, no witnesses, disputed signatures and no proof of any rental payment, and, decisively, a letter from a director and fifty-per-cent shareholder of the defendant confirmed that no tenancy had been entered into and that any purported agreement might involve forgery, corroborating the plaintiff's denial. The court held this was not a case requiring viva voce evidence, allowed the application and awarded costs of RM5,000. The judgment is a useful illustration of when the summary Order 89 procedure is available to recover possession from a trespasser and of what will and will not amount to a bona fide triable issue.