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TRESPASS TO PERSON BSS 411

MARDIAH HAYATI BINTI ABU BAKAR LAW FACULTY UiTM SHAH ALAM

LEARNING OUTCOME
Able to understand the elements of assault, battery and false imprisonment Able to appreciate the defences for assault, battery and false imprisonment

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

TRESPASS TO PERSON
Direct invasion of a protected interest was actionable under trespass The tortfeasor (e.g thief, burglar) could be sued by the writ of trespass. Law protect the citizens interest in bodily safety, security from attack, liberty of movement and possession of property. Protection was provided if the invasion resulted directly from a positive act

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

TRESPASS TO PERSON
1) ASSAULT
2) BATTERY 3) FALSE

IMPRISONMENT

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

ASSAULT
-

Definition An intentional and direct act of the defendant which causes the plaintiff reasonable apprehension of the immediate infliction of a force onto his person. (Collins v Wilcock [1984] 3 All ER 374) Act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery. (Salmond and Heuston)
UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

ELEMENTS OF ASSAULT
1.

2.

3.

4.

Intention of the Defendant to do harm/act onto the plaintiff; Effect on the Plaintiffs mind/ reasonable fear of harm; Capability of the Defendant to carry out the threat; Bodily movement of the Defendant; interception of blow.
UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

INTENTION OF THE DEFENDANT TO DO HARM


-

Mental state of the Defendant The Defendant must have the intention to do his act. Tuberville v Savage [1669] 86 E.R 684, the D told the P, if it were not assizetime, I would not take such language from you.
UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

Held : These words negatived the element of intention on the Defendants part to injure the Plaintiff and therefore assault was not established.

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EFFECT ON THE PLAINTIFFS MIND/REASONABLE FEAR OF HARM


The plaintiff must feel reasonable apprehension that a force will be inflicted upon him. Objective test : would a reasonable man, faced with the same situation that the Plaintiff was in, feel apprehensive that a force would be committed upon him?

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

Only when the answer is yes will this element be fulfilled. Force means some form of violent contact that would put a reasonable man to be in reasonable fear of attack. In R v St George [1840] 9 C & P 626, it was held that pointing an unloaded gun at a person constituted as assault.

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(c) Capability of the Defendant to Carry out the Threat


The requirement is measured through the eyes of the reasonable plaintiff. The test is objective: would a reasonable man, who is the plaintiffs position, feel reasonable fear that there is a threat of immediate force upon himself? In other words, would the reasonable man believe that the defendant will realise his threat? This requirement will be fulfilled when the answer is yes.
UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

In Stephen v Myers [1830] 4 C & P 349, the defendant threatened to hit the plaintiff and he advanced with clenched fist upon the plaintiff. He was stopped by a third party just before he could reach the plaintiff. The court held that assault was established as there was capability to carry out his threat, if he was not stopped by the third party a mere few seconds before he hit the plaintiff.

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

(d) Bodily Movement of the Defendant/ Interception of Blow

Even though assault involves no contact it is often said that some bodily movement is necessary. Bodily movement means a positive act in the circumstances, indicating that the defendant will carry out his threat. So bodily movement per se would not be adequate, the movement must be such that it correspond with the probable infliction of unwanted force onto the plaintiff.
UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

There must be bodily movement to indicate the threat would be carried out. In Read v Coker (1853) 13 C.B. 850, the plaintiff was a paper-stainer in financial difficulties and in arrears with his rent. The defendant purchased his equipment and paid the rent under an agreement which secured to the plaintiff a weekly allowance. One day, the defendant told the plaintiff to leave the premises but he refused. The defendant collected some of his workmen who clustered around the plaintiff, tucking off their sleeves and threatened to break his neck if he did not leave. The plaintiff left and brought an action of trespass for assault. Held: the facts clearly showed the defendant was guilty of assault. There was a threat of violence exhibiting an intention to assault and there was also present an ability to carry the threat into execution.
UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

Passive inaction or mere words are insufficient. The plaintiff must apprehend imminent physical contact. Words add colour to an act and words however can also nullify an assault.

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

BATTERY

Defined as the intentional and direct application of force to another person without the persons consent. Battery is committed by intentionally bringing about a harmful or offensive contact with the person of another. Purpose of the action is to afford protection to the individual not only against bodily harm but also against any interference with his person which is offensive to a reasonable sense of honour and dignity.
UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

Elements of battery are: (a) the intention of the defendant to apply force/hostile intent (b) the act was under the defendants control and contact or application of force occurs (c) without plaintiffs consent

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

(a) Intention of the Defendant to Apply Force/ Hostile intent


Touching a person without consent has traditionally been regarded as sufficient battery even though without actual physical harm. Case: Cole v Turner (1704) 87 E.R. 907, per Holt C.J.

The

least touching of a person in anger is a battery

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

The defendant must have applied the force with intention. Case: Scott v Shepherd [1773] 2 Wm Bl 892

Here,

a lighted squib was thrown by the defendant into an open market area. A picked it up and threw it upon B, who then picked it up and threw it away. The squib hit the plaintiff whereupon it burst into flames. Court held: the defendant was liable for the tort of trespass to person although his initial gesture did not directly affect the plaintiff. According to the court A and B reacted for their own safety, and so they did not have the required intention to commit the act.
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(b) The Act was under the Defendants Control


The defendants act must be done voluntarily. Case: Gibbons v pepper [1695] 2 Salk 637

The

defendant was riding a horse when someone hit the horse from behind., causing the horse to bolt. The horse collided with the plaintiff, and in an action against the defendant, the court found the defendant not liable as the incident of the horse bolting and colliding with the plaintiff was outside his control.
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Contact or Application of Force Occurs


In battery there must be intentional touching or hostile contact. There will be no battery if there is no contact or application of force on the plaintiffs body or clothing. Generally any physical contact with the body of the plaintiff or his clothing would be sufficient to constitute force but it has been held that throwing water on the plaintiff might not necessarily be battery. This case has been interpreted to mean that contact with things attached to the person will only amount to a battery if there is a transmission of force to the body of the plaintiff.
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Case: Collins v Wilcock (1984) 3 All ER 374


A

woman police officer suspecting that a woman was soliciting contrary to the Street Offences Act 1959, the police officer tried to question her but the woman walked away. The police officer took her arm in order to restrain her. The woman scratched the officers arm. The woman was arrested and charged with assaulting an officer in the execution of her duty and was convicted. On appeal by case stated, appeal was allowed, on the ground that the officer had gone beyond the scope of her duty in detaining the woman in circumstances short of arresting her. The officer has committed battery.
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(c) Without Plaintiffs Consent


One cannot touch another person without his consent or without lawful justification. However, there are touching where it is presumed implied consent exists, such as tapping a persons shoulder in order to get his attention, or touching that occurs while queuing to go on a bus.

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Case: Nash v Sheen [1953] CLY 3726


The

plaintiff went to a hairdressing salon where the defendant used a tone-rinse without first obtaining the plaintiffs consent. The plaintiff unfortunately developed some skin complications due to an adverse reaction to the tone-rinse. Court held: the consent given by the plaintiff did not include the tone-rinse and its consequences. Battery was established.

Case: Tiong Pik Hiong v Wong Siew Gieu [1964] MLJ 181
The

defendant was found liable in battery for scratching the plaintiffs face and hitting the latter, due to her jealousy of the plaintiffs friendship with her husband.
UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

FALSE IMPRISONMENT
In Termes de la Lay, false imprisonment is defined as the restriction of a persons freedom of movement. The person so restrained is imprisoned so long as he cannot move to another place in accordance with his wishes.

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

Elements of false imprisonment are: (a) intention of the defendant but knowledge of plaintiff is not essential (b) the restrain must be a direct consequences of the defendants act (c) the restrain must be complete

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

(a) Intention of the Defendant

There need be no actual imprisonment. It is enough if the person is deprived of his liberty however short. He may be unlawfully arrest, or is unlawfully prevented from leaving the place in which he is. The defendant must have committed the restraint intentionally. The defendant must intend to do an act which directly results in the confinement of the plaintiff.
UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

In W Elphinstone v Lee Leng San [1938] MLJ 130, it was held that false imprisonment cannot be established through negligence. Intention of the doer is a prerequisite.

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

Only the person who directly causes the confinement may be successfully sued for false imprisonment. He may be liable either because he himself confined or imprisoned the plaintiff of that he had instigated another person to confine or imprison the plaintiff.

(b) The Restrain Must Be a Direct Consequences of the Defendants Act

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

Case: Harnett v Bond [1925] AC 669

the plaintiff live in asylum run by D2. the plaintiff was given a months leave but D2 was given the discretion to call the plaintiff back if he felt that the plaintiff could not look after himself during that one month. On his second day out, the plaintiff went to an office to pay a visit to some people. D1 who was there, was of the opinion that the plaintiff was acting strangely. He called D2, who asked D1 to make sure that the plaintiff stayed there, as D2 would send a car round to fetch the plaintiff. The car arrived some three hours later and the plaintiff was brought back to the asylum. D2 found the plaintiff to be insane and did not let him out. For 9 years thereafter, the plaintiff was sent from one institution to another. He was finally proven sane and released. The jury was of the opinion that the plaintiff was sane 9 years previously at the time of committal to the institution. The Court of Appeal found the D1 liable for false imprisonment during the 3 hours restrain, and D2 for the 9 years restrain.

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

(c) The Restrain Must Be Complete

There is no false imprisonment if a reasonable escape route is available to the plaintiff. The available means of escape must be reasonable without the risk of injury or serious inconvenience. A person locked by the defendant in a room from which the only possibility of escape is by dangerous climbing down a drain-pipe, is considered to be falsely imprisoned.
UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

Case: Wright v Wilson [1699] 1 Ld Raym 739


No

false imprisonment arose when the plaintiff could have escaped from his confinement, although it meant he would have trespassed on anothers land in order to regain his liberty.

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Knowledge of Restraint

The plaintiff does not need to know that he has been restrained in order to succeed in his action. Case: Meering v Graham White Aviation Ltd (1919) 122 LT 44

The plaintiff was being questioned at the defendants factory in connection with certain thefts from the defendant company. He did not know of the presence of 2 works police outside the room, who would have prevented his leaving if necessary. The plaintiff succeeded in an action of false imprisonment against the defendant.
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DEFENCES

(i) Self-defence

It is lawful for a person to use a reasonable degree of force for the protection of himself or any person against any unlawful use of force. The relationship of the parties to be protected may be relevant to the reasonableness of force used e.g. to protect his wife and children against terrorist. In Chaplain of Grays Inns Case (1400) YB 2 Hen. IV, fo. 8, pl. 40, held that person on whom an assault is threatened or committed is not bound to adopt an attitude of passive defence. One should not wait to be punched by the attacker.
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(ii) Consent

Consent must be genuine, not obtained by force or threat. Case: Hegarty v Shine (1878) 14 Cox CC 145

The plaintiff cohabited with the defendant for 2 years and contracted venereal disease from him. She claimed he had been assaulting her since her consent was vitiated by his failure to disclose his ailment, which he was perfectly well aware. The trial judges was of the view that as a general rule, when the person consented to the act, there was no assault; but if the consent was by fraud of the party committed the act, the fraud vitiated the consent, and the act became in view of the law an assault. Therefore, if the defendant knowing that he had venereal disease and fraudulently concealed from the plaintiff his condition, and induced her, and communicated to her such venereal disease, he had committed assault. the defendant appealed, and the Court of Appeal ordered a new trial.
UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

(iii) Sports
Those who participated in sport consent to reasonable conduct within the rules of the game. However, actions for assault and battery have succeeded when the game has involved considerable hostility and deliberate punches. In Pallante v Stadiums (No 1) (1976) VR 331, it was held that the boxers agree to violent bodily typical of the sport, but not to deliberate foul play.

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(iv) Legal Authority

For purposes of enforcement of criminal law, police and private citizens have the right to make arrests and thereby interfere with the rights of others. It is preferable to obtain a warrant of arrest, but at time there is a need for speedier action of prevention. The powers to arrest and restraint by legal authorities is provided under Article 5 of the FC. Power of arrest by private citizen and penghulu are provided in the Criminal Procedure Code.

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The police can arrest on grounds of reasonable suspicion even though no offence had in fact been committed. Suspicion can take into account matters which could not be given in evidence at all. For example, previous convictions or for mere interrogation. Case: Mohmood v Government of Malaysia and Anor (1974) 1 MLJ 103

Held:

in effecting an arrest arising from reasonable suspicions the police may first shots at a suspect if the latter tries to escape from the scene of crime.

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

TRESPASS TO LAND

Trespass to land may be defined as the unreasonable interference with another possession of land. The tort may be committed only against a person who had possession of the land on which the acts complained of are committed. The tort of trespass to land is actionable per se without any proof of damage. Therefore, a plaintiff in trespass is entitled even though he has sustained no actual loss, to recover damages.
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The interest that is protected under this tort is that of ensuring that a person who has possession of land would be free from any physical interference in respect of that possession. The interest is jealousy guarded; thus the English saying A mans home is his castle. This saying is partly true in Malaysia insofar as the man has a valid legal interest over the land on which his castle stands.

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

Section 44(1)(a) of the National Land Code 1965 (NLC) provides that:
A

person has the right to the exclusive use and enjoyment of so much of the column of airspace above the surface of the land and so much of the land below the surface as is reasonably necessary to the lawful use and enjoyment of the said land.

Elements of trespass to land: (a) Intention of the defendant (b) Interference

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

(a) Intention of the Defendant

The defendant must intend to do the act alleged as trespass. For example, voluntarily entering land that is in the possession of another. This intention may be the intention to trespass, or although there is no intention to trespass, there must be a voluntary act in entering land that is in the possession of another. It is not necessary to prove that the defendant knew that he was trespassing. The court will also reject any argument by the defendant that he did not know he had no right in law to be on that piece of land.
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Case: Basely v Clarkson [1682] 3 Lev 37

The defendant accidently mowed the plaintiffs grass whilst he was mowing his own grass. The court held the defendant liable as the act of mowing the grass was a voluntary act, and therefore done with intention. An act done under a mistake is not necessarily an involuntarily act. A mistaken action may be a voluntary action and therefore intentional.

Case: Conway v George Wimpey & Co Ltd [1951] 2 QB 266

The court stated that a deliberate entry onto the land is sufficient. It is irrelevant that the defendant does not know that he is entering the plaintiffs land, or that he believes the entry is authorised, or that he honestly and reasonably believes that the land is his.

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(b) Interference

Interference must be a direct act. Case: Gregory v Piper (1829) 9 B&C 591

Rubbish which was placed near the plaintiffs land, rolled onto the plaintiffs land upon drying. The defendant was held liable for trespass as it was a probable and foreseeable result of the defendants act.

Interference can be in the form of entry, continuous remaining on the land after being asked to leave, placing an object on the plaintiff land and/or interference with the airspace of the land.
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Case: Tan Wee Choon v Ong Peck Seng & Anor (1986) 1 MLJ 322

The defendants had always used a path on the plaintiffs land as access to their house. When the plaintiff bought the land, he fenced the area and the defendants could not use the path. The defendant removed the fence. They were sued for trespass and contended that they had used it for 40 years.

Court held: trespass to land is actionable per se and did not require proof of damage. Section 41 of the Specific Relief Act 1950 provides that any persons entitled to any property may obtain a declaration against any person denying or interested to deny, his title or his right, to his property. The defendants action of pulling down the fence and continuing use of the passage by driving their vehicles up and down the plaintiffs land amounted to a denial of the plaintiffs indivisible right over his property.
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Case: Tay Tua Kiat v Pritam Singh (1987_ 1 MLJ 276


The

defendant built a wall that encroached onto the plaintiffs land, the court held that there was continuing trespass as long as the wall was not demolished.

Types of trespass to land: (a) entering upon land in the possession of another; (b) continuous trespass or remaining upon such land; or (c) placing or projecting any object upon it.

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(a) Entering Upon Land in the Possession of Another


The commonest form of trespass consists of personal entry by the defendant or some other person or animal; through his procurement into land or buildings occupied by the plaintiff. The slightest crossing of the boundary is sufficient for example put ones hand through the window or sit on the fence.

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

To be actionable as trespass the defendants conduct must have consisted of a voluntary and affirmative act. If A has a seizure and falls or is pushed against his will by B onto the plaintiffs land, A is not liable but B is. Cutting down a tree so that it falls on the neighbouring land is trespass. Trespass may be committed not only by entry in person but by propelling an object or a third person onto the plaintiffs land.

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Case: Smith v Stone (1647) 82 ER 533


The

defendant was carried by force or violence onto the land of plaintiff. The court held trespass was committed by the persons who carried the defendant upon the land.

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(b) Continuous Trespass or Remaining Upon Such Land


If a structure or other object is placed on anothers land, the initial invasion is wrong and failure to remove it is a continuing trespass so long as the object remains. Subsequent purchaser of the land may sue and a purchaser of the offending may be liable for actions de diem in diem.

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Case: Cheah Kim Tong v Taro Kaur (1989) 3 MLJ 252


defendant was holder of TOL issued by Land Office for Lots 777and 779, in the Mukim of Bidor. D was the owner of a house built of wood and cement but encroached Lot 781. Lot 781 was subsequently alienated to P by the state authority and become registered proprietors in 1980. P negotiated with D for removal of the part of the house that encroached Ps land. When negotiations failed, P sued D for trespass. D raised the defence of estoppel, acquiescence and laches on part of P.

The

The

court allowed Ps applications. Ps action was not time barred. As the trespass was a continuing one, a fresh cause of action arises from day to day.
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(c) Placing or Projecting any Object Upon It

In general he who own or possesses the surface of the land owns or possesses all the underlying strata. Any entry beneath the surface at whatever depth is an actionable trespass. The owner of land may cut and remove an authorised telegraphed or electric wire which stretched through the air above his land, whether he can show he suffer harm or inconvenience from it or not as in Wandsworth Board of Works v United Telephoned Co (1884) 13 QB p.904.
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Types of Possession

Possession generally denotes physical control or occupation of the land. If a person only uses the premises for a particular purpose, or that he is the land owner but does not stay on the land, he does not have possession. An owner does not have the right to claim if he has rent out his land since his tenant had possession of that land. Locking up premises to which a tenant has exclusive possession amounts to a trespass by the landlord.
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The plaintiff must have exclusive possession of the land in order to maintain an action in trespass. (i) Possession in fact and jus tertii

Possession in fact exists when the plaintiff has a right to use the land as well as the ability to exclude others. Case: Senik v Hassan & Anor (1963) 29 MLJ 365

The defendant planted rubber on state land in Kedah without permission to cultivate the land and without having any title over the land. The defendant then let the plaintiff into possession of the land, as consideration for a favour done by the plaintiff for him. 18 months later, the defendant gives notice to the plaintiff to vacate and disposes of the land before the expiration of notice. The plaintiff sued the defendant for trespass. Court held: trespass is an injury to possessory right. Since the defendant could not show that he has a better right to possession he was held to have trespassed the plaintiff land.
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(ii) Co-ownership

In Ong Hoo Hong v Kong Yin Weng (1965) 2 MLJ 97 it was held that one co-owner of land can only bring an action of trespass against the other if he has been actually ousted or dispossessed of the land. Each co-owner is entitled to possession of the whole land, so that if one turns the other off the land or part of it, it is a trespass. In this case the plaintiff, who owned 24/80th undivided share in a piece of land claimed that the defendant, who owned 56/80th undivided share in the same piece of land was in unlawful occupation and was therefore trespassing on his share of the land. The court denied the plaintiffs claim as on the evidence the defendant did not prevent or exclude the plaintiff from entering the said land or any part thereof.

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(iii) Possession under Temporary Occupation Licence (TOL)

In Julaika Bini v Mydin (1961) 27 MLJ 310, there are 2 TOLs over a house on a piece of land. The first licence which allowed the defendant to stay on the land was revoked. The second licence also allowed the plaintiff to stay on the land. When the plaintiff moved onto the land the defendant was still in occupation of the land. The plaintiff claimed that the defendant had trespassed. The court held the plaintiff had a right to claim against the defendant since the first licence had been revoked. A holder of a TOL may maintain an action for ejectment in tort against a trespasser.
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DEFENCES

The defences available in an action for trespass to land are:


(a) Justification by law (b) Acquiescence/ License

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(a) Justification by law


A local authority may be authorised to carry out works under a statute which give rise to liability in trespass to land. The local authority however may escape liability on the ground that it was carrying out its function under the relevant provision of the Statute.

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Case: Azizah bt Zainal Abidin & Ors v Dato Bandar Kuala Lumpur (1999) 2 AMR 1779
The

local authority undertook works to channel a river which ran along and inside the boundary of the land belonging to the plaintiffs. The works was to avoid floods along the river. As a result of the work the river was widened. The plaintiff claimed damages for trespass to land by the defendant. The court held that defendant entry onto the plaintiff land was lawful by virtue of section 53(1) of the Street, Drainage and Building Act 1974 as they were carrying out their statutory duty of maintaining, repairing or improving any watercourses under their control.
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(c) Acquiescence/ License


Acquiescence means agreement or consent. To raise this defence successfully the defendant must show that the plaintiff had knowledge of the state of affairs on the land and had agreed or consented to such state of affairs.

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REMEDY
Re-entry / self-help The person entitled to possession can enter or re-enter the premises and may use necessary force. Action for recovery of land Land recovery Mesne Profit- The recovery of injury that the Plaintif has suffered through having been out of possession of his land.

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THE END