1. ) Suhaini Bin Sa'ari 2. ) Suhaimi Bin Sa'ari 3. ) Suhaida Binti Sa'ari 4. ) Suhairi Bin Sa'ari 5. ) Suhaizi Bin Sa'ari 6. ) Umai Selamah Binti Mat Isa v 1. ) Pentadbir Tanah Daerah Langkawi 2. ) JURUTERA DAERAH JABATAN PENGALIRAN & SALIRAN DAERAH LANGKAWI 3. ) Kerajaan Negeri Kedah 4. ) Pengarah Jabatan Kerja Raya Negeri Kedah Darul Aman 5. ) Kerajaan Malaysia 6. ) TELEKOM MALAYSIA BERHAD

Case Significance

A clear application of the civil burden of proof under sections 101 and 102 of the Evidence Act 1950: a trespass claim against public authorities collapses where the claimant offers no evidence of the encroachment, and a fact-heavy dispute should be brought by writ, not originating summons.

This High Court decision at Alor Setar concerns a claim by co-owners of land in Langkawi for a declaration of trespass and damages against several public authorities and a telecommunications company, and it fails for want of evidence. The plaintiffs were co-proprietors of a parcel at Padang Gaong, Mukim Ulu Melaka, in the Langkawi district, lying next to State land at the foot of Gunung Raya. By an amended originating summons they sought declarations that the defendants — including the District Land Administrator, the district drainage engineer, the State Government of Kedah, the State Public Works Director, the Federal Government and Telekom Malaysia Berhad — had jointly and severally trespassed on their land, an order that the defendants pay damages to be assessed with interest, and an order that the defendants immediately cease the trespass and restore the land to its original state. The plaintiffs alleged that the defendants had built a concrete drain on their land when the adjacent State land was empty, encroaching on some 11,396 square feet, and that the fourth defendant, with the first defendant's approval, had built a road encroaching on the land to reach a telecommunications tower. Applying the settled principle, reflected in sections 101 and 102 of the Evidence Act 1950, that the burden of proof in a civil case rests on the plaintiff, the court found that the plaintiffs had produced not an iota of clear evidence that the defendants had trespassed by building the concrete drain on their land, so that their allegation was purely speculative. It held that the plaintiffs therefore had no valid and reasonable cause of action, and that the claim was baseless, frivolous, vexatious and an abuse of process. The court also observed that, given the many disputed facts, the plaintiffs ought to have proceeded by writ rather than originating summons so that witnesses could be called. It dismissed the amended originating summons, awarding costs of RM3,000 to the first to third defendants and RM3,000 to the fourth defendant.