1. ) HATIJAH BINTI IBRAHIM 2. ) DIYANA BINTI NORDIN 3. ) HALIMA BINTI IBRAHIM 4. ) SALASIAH BINTI IBRAHIM 5. ) MOHD SHAWAL BIN IBRAHIM v 1. ) Pentadbir Tanah Daerah Gombak 2. ) TANIA RAHMAWATI BINTI YUSOF 3. ) MD ZIN BIN HAMID PENTADBIR HARTA PUSAKA BAGI SHARIFAH BINTI IBRAHIM SI MATI 4. ) ABDUL KARIM BIN IBRAHIM 5. ) NORSAHIDA BINTI ZAINUDDIN

Case Significance

Illustrates conversion of an originating summons into a writ under Order 28 rule 8(1) where a land-acquisition compensation entitlement depends on disputed facts requiring oral evidence.

This High Court decision at Shah Alam concerns the conversion of an originating summons into a writ action where the dispute turns on contested questions of fact. The plaintiffs had brought an originating summons to obtain payment of compensation of RM430,500.60, representing 75% of RM574,000, that had been deposited into court under an earlier order in connection with a land acquisition under section 29(2) of the Land Acquisition Act 1960 concerning a lot in Mukim Setapak. The defendants included the Pentadbir Tanah Daerah Gombak (the Gombak District Land Administrator) and several other parties, among them the administrator of a deceased person's estate. Having read the affidavits and heard all parties, the court found that there were genuine factual disputes, in particular over who was entitled to the building on the land that operated a kindergarten business, which required the evidence of witnesses and could not properly be resolved on affidavit evidence alone. The court drew on the long-established principle, reflected in the authority it cited, that where it is known there will be a conflict of testimony and a necessity for oral evidence, proceedings should be commenced by writ rather than originating summons, and that a plaintiff who wrongly proceeds by originating summons in such circumstances may be deprived of additional costs. While accepting that the plaintiffs were entitled to bring their claim, the court held that the entitlement dispute was unsuitable for determination by affidavit. Exercising its discretion under Order 28 rule 8(1) of the Rules of Court 2012, it ordered the originating summons to continue as if begun by writ, directing the plaintiffs to file a fresh statement of claim within 14 days and allowing all defendants to file their respective pleadings within the prescribed time. The judgment is a useful example of the court converting an originating summons to a writ where the compensation entitlement depends on disputed facts.