Rahim Bin Omar 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

Reinforces, in a companion Langkawi land case, that a trespass claim against public authorities and a utility company cannot succeed on speculation: the plaintiff bears the burden of proof under sections 101 and 102 of the Evidence Act 1950, and contested facts must be tried by writ.

This High Court decision at Alor Setar is a companion to a related Langkawi land dispute and concerns a single proprietor's claim of trespass against several public authorities and a telecommunications company, which likewise fails for want of evidence. The plaintiff was the registered proprietor of a leasehold parcel at Padang Gaong, Mukim Ulu Melaka, in the Langkawi district, next to State land at the foot of Gunung Raya. By an amended originating summons the plaintiff sought a declaration that the defendants — 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 the land, an order for damages to be assessed with interest, and an order that they cease the trespass and restore the land to its original condition. The plaintiff alleged that the second defendant had built a concrete drain on the land when the adjacent State land was empty, encroaching on some 9,374 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 sections 101 and 102 of the Evidence Act 1950, under which the burden of proof in a civil claim lies on the plaintiff, the court found that the plaintiff had produced not an iota of clear evidence that the defendants had trespassed by building the concrete drain on the land, so the allegation of trespass was merely speculative. It held that the plaintiff had no valid and reasonable cause of action and that the claim was baseless, frivolous, vexatious and an abuse of process. The court further observed that, given the many disputed facts and issues, the plaintiff ought to have commenced the action 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.