TEMPORARY OCCUPATION LICENCE (TOL)

MOHAMED V KUNJI MOHIDIN [1966] 2 MLJ 24: [1967] 1 mlj 96 fc

PRESENTED BY NURUL ATILIA MAT DERIS ONG POH HONG SAMUEL KIE CHANG EE

Facts of the case

The respondent was a holder of a temporary occupation licence of a small plot on a piece of land for a house site. There were already some fruit tress on the land including 73 coconut trees. In respect of the those trees, the respondent had also obtained a licence to pluck coconuts from 34

In 1964, a temporary occupation licence was issued in respect of the same piece of land to the appellant for the purpose only of rearing poultry. The appellant then cut down some of those coconut trees and the respondent claimed $2000 as damages for the losses suffered by him.
In Session Court, judgment for the plaintiff (respondent) of a sum

On appeal to High Court, Abdul Aziz J held that the App was liable to the Resp for damages in trespass and damages were awarded for the loss of all trees so destroyed by the appellant. His Lordship was of the view that the Resp had a valid licence to pluck the coconuts from 34 trees while the App had only a licence conferred on him no right at all over the fruit trees. The App appealed to the Federal Court against the award of damages in the High Court in the sum of $2000 to the

ISSUES (HIGH COURT)

Several grounds of appeal were urged by the appellant/defendant: 1) The action was not maintainable as the plaintiff/respondent only owned a temporary occupation licence. 2) There was no evidence that the 34 coconut trees cut down by the defendant/appellant were in fact the coconut trees in respect of which the plaintiff had a licence to pluck the

JUDGMENT (HIGH COURT)

Trespass is essentially an injury to possessory right. (Law of Tort: Trespass to Land) Case referred: 1. Julaika Bivi v Mydin -the holder of a TOL can maintain for an ejectment against trespasser. 2. Senik v Hassan & Anor Hasburys Laws of England: -Pf must have been in possession at the time of trespass

The Pfs right to possession can be proved on the 4 grounds. 1. Possession of valid licence to occupy the area for the purpose of dwelling. 2. Valid licence to pluck the coconuts from 34 trees. 3. Had been plucking fruit from all the coconut trees and other trees for a number of years previous to that 4. Df had only a licence which conferred him no right at all over the fruit trees.
-Immaterial whether Pf was in lawful possession, trespass is established. -No dispute on the facts of trespass, damages and quantum -Appeal was dismissed.

Federal Court Appeal

The Respondent (Pf) was not the owner of the tree, the trees were not planted by him. He was only a TOL license holder for the particular land, in which one of the conditions adhered to the licensing is that planting of permanent crops are forbidden. Thus: Respondent is not entitled for damages for LOSS OF TREES.

But,

The respondent can claim for damages for LOSS OF INCOME resulting from the act of defendant cutting down the trees.
Rule 40 (iii) of the Land Rules 1930 under the heading of Temporary Occupation of State Land: every such license shall expire not later than the 31st day of December of the year in respect of which it is issued.

Calculation of Damages
Defendant cut the trees down on 23rd Aug 1964, therefore R can claim for loss of income for the period of 23rd Aug to 31st Dec 1964. R earned RM 20 per month, Total = RM 86 Thus, Court held that the amount of damages shall be reduced to RM 86 from the previous RM 2000 awarded.

Conclusion
Both R and A are holder of TOL holder But A committed trespass when he cut down the trees without the license R is entitled to claim for loss of income, not loss of property

- Less reference to NLC 1965 - Distinguish the right of an owner and that of a TOL license holder