mohamed v kunji mohidin (tol)

8/13/2019 Mohamed v Kunji Mohidin (Tol)

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TEMPORARY OCCUPATION LICENCE

(TOL)MOHAMED V KUNJI MOHIDIN [1966] 2 MLJ 24:

[1967] 1 mlj 96 fc

PRESENTED BYNURUL ATILIA MAT DERIS

ONG POH HONG

SAMUEL KIE CHANG EE


2/11

Facts of the case

Therespondent was a holder of atemporary occupation licence of asmall plot on a piece of land for a

house site.There were already some fruit tresson the land including 73 coconut

trees.In respect of the those trees, therespondent had also obtained a

licence to pluck coconuts from 34


3/11

In 1964, a temporary occupationlicence was issued in respect of the

same piece of land to the appellantfor the purpose only of rearingpoultry.

The appellant then cut down someof those coconut trees and therespondent claimed $2000as

damages for the losses suffered byhim.

In Session Court, judgment for thelaintiff res ondent of a sum


4/11

On appeal to High Court, Abdul Aziz Jheld that the App was liable to the Respfor damages in trespass and damageswere awarded for the loss of all trees sodestroyed by the appellant.

His Lordship was of the view that theResp had a valid licence to pluck thecoconuts from 34 trees while the Apphad only a licence conferred on him no

right at all over the fruit trees.

The App appealed to the Federal Courtagainst the award of damages in the

High Court in the sum of $2000 to the


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ISSUES (HIGH COURT)

Several grounds of appeal wereurged by the appellant/defendant:

1) The action was not maintainable asthe plaintiff/respondent only owned a

temporary occupation licence.

2) There was no evidence that the 34coconut trees cut down by the

defendant/appellant were in fact thecoconut trees in respect of which the

plaintiff had a licence to pluck the


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7/11

The Pfsright to possession can be provedon the 4 grounds.

1. Possession of valid licence to occupy the areafor 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 yearsprevious to that

4. Df had only a licence which conferred him noright 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-A eal was dismissed.


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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 theparticular land, in which one of the conditions

adhered to the licensing is that planting of

permanent crops are forbidden.

Thus: Respondent is not entitled fordamages for LOSS OF TREES.


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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 31

st

day of December of the yearin res ect of which it is issued.


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Calculation of Damages

Defendant cut the trees down on 23rdAug 1964, therefore R can claimfor loss of income for the period of 23rdAug to 31stDec 1964.

R earned RM 20 per month,

Total = RM 86

Thus, Court held that the amount of damages shall be reduced to RM86 from the previous RM 2000 awarded.


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Conclusion

Both R and A are holder of TOL holder

But A committed trespass when he cut down thetrees without the license

R is entitled to claim for loss of income, not loss

of property- Less reference to NLC

1965

- Distinguish the right ofan owner and that of a

TOL license holder

mohamed v kunji mohidin (tol)

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