Erecting a structure without proper jurisdiction or approval amounts to trespass, leading to liability for resulting damages.

[18] In this appeal, it was the appellants' contention that the High Court fell into error by deciding the matter independent of pleadings, in the absence of evidence, independent of evidence actually led and independent of submissions actually made which required appellate intervention. It was submitted that the High Court failed to appreciate the fact that the unipole advertisement structure was rightfully erected by the appellants at the approved location by KKRM and MBSA ie at KM 6.5, FT 190, Jalan Bukit Kemuning. This appeal centered on the finding of facts by the learned trial judge.

[19] It is settled law that the burden of proof rests throughout the trial on the party who asserts that the facts exist (s 101 of the Evidence Act 1950 ). Where a party on whom the burden of proof lay had discharged that burden, then the evidential burden shifted to the other party. But if the party on whom the burden of proof lay failed to discharge it, the other party need not call any evidence: Hong Yik Trading v. Liziz Plantation Sdn Bhd , .

[20] It was not in dispute that under s 85A of the Road Transport Act 1987 ( RTA ), KKRM had the jurisdiction to approve the construction of the unipole structure. Under s 22 of the Town And Country Planning Act 1976 , MBSA had jurisdiction to approve the construction of the unipole structure at the approved location. It was also not in dispute that the appellants were merely acting in compliance with the approvals granted by KKRM and MBSA in constructing the unipole structure and did not receive any notice under s 84 to remove the structure. The question is, was the unipole advertising structure erected at the correct location?

[21] In Lampiran 'A' to the letter of offer dated 9 November 2011 (exh P2), the 1st appellant obtained an offer from KKRM to erect three unipole advertising structures on federal road reserve, including the unipole in this case measuring 60' x 40' at KM 6.5, FT 190 Jalan Bukit Kemuning, Seksyen 33, from Kampung Baru-Hicom to Klang, Selangor. By the letter dated 12 April 2012 (exh P3), the 1st appellant obtained approval to erect the unipole advertising structure with "Lokasi Struktur Paparan: Seksyen 33/KM 6.5, FT190, Jalan Bukit Kemuning, Dari Kampung Baru Hicom Ke Klang, (Berdekatan KM 6.5 lebuh raya Kesas)". Both letters were signed by PW2. The words inside the brackets that it was near to KM 6.5 Kesas Highway should serve as a guide or warning as to its exact location where to erect the structure.

[22] Reading the above words inside the inverted comas, the location of the unipole structure to be erected was at KM 6.5 Jalan Bukit Kemuning and not at KM 6.5 Kesas Highway. The two locations were near to each other, by a difference of about 30 metres, as shown in a land survey plan (Plan No. JAM/ SEL/2356/B3 at p 138 of Common Core Bundle of Documents [CCBD]) and in a photograph (p 398 CCBD), showing Kesas Highway running parallel to Jalan Bukit Kemuning with a road reserve in between. In his witness statement, SP2 testified that in approving the location of the structure at KM 6.5, FT 190, Jalan Bukit Kemuning, Shah Alam, he did not know that it was within the reserve land or right of way of Kesas Sdn Bhd.

[23] PW1, the Managing Director of the Appellants, in Q&A4 of his witness statement, said that sometime in September 2013, the 1st plaintiff has caused his Billboard structure together with the visual of Bandar Rimbayu (the said Visual) to be erected on the said location. In cross-examination, he said in applying for the location for the Billboard, "we will spot a location where to build ... we will try to find out what are the landmark which is nearby the Billboard. And we will use this as the first initial reference. Subsequ