Agrobest (M) Sdn. Bhd v Rosli A/L Jendut (C-02(NCvC)(W)-1255-08/2023)

AGROBEST (M) SDN. BHD. (No. Syarikat: 170917-U)

MUDZAFAR BIN ABU SAMAH (No. K/P: 670820-06-5751)

KHONG CHUNG CHONG (No. K/P: 610521-08-5491) ... APPELLANTS

ROSLI A/L JENDUT (No. K/P: 740121-06-5411)

ATAN BIN BARO (No. K/P: 610308-06-5053)

MELAH BINTI HAMID (No. K/P: 531106-06-5324)

AWANG BIN BAKO (No. K/P: 600608-06-5195)

ESAH A/P WIR (No. K/P: 740214-06-5234)

KASIM BIN AWANG (No. K/P: 540104-06-5165)

MAJIB BIN KASIM (No. K/P: 740103-06-5397) ... RESPONDENTS [In the High Court of Malaya at Kuantan In the State of Pahang Darul Makmur, Malaysia Civil Suit No.: CA-22NCVC-46-08/2018

Rosli A/L Jendut (No. K/P: 740121-06-5411)

Atan Bin Baro (No. K/P: 610308-06-5053)

Melah Binti Hamid (No. K/P: 531106-06-5324)

Awang Bin Bako (No. K/P: 600608-06-5195)

Esah A/P Wir (No. K/P: 740214-06-5234)

Kasim Bin Awang (No. K/P: 540104-06-5165)

Majib Bin Kasim (No. K/P: 740103-06-5397) ... Plaintiffs and

Agrobest (M) Sdn. Bhd. (No. Syarikat: 170917-U)

Mudzafar Bin Abu Samah (No. K/P: 670820-06-5751)

Khong Chung Chong (No. K/P: 610521-08-5491) ... Defendants] CORAM: MARIANA BINTI HAJI YAHYA, JCA HASHIM BIN HAMZAH, JCA AHMAD KAMAL BIN MD. SHAHID, JCA JUDGMENT

This appeal was fixed before us on 22 October 2024. Having heard the appeal, examined the appeal records and considered the submissions by the parties, we decided to allow the Appellants' appeal. We delivered the decision together with a Broad Grounds of Decision on the very same day.

Rosli bin Jendut and six (6) others (the Respondents) who were dissatisfied with our decision had filed a leave application to appeal to the Federal Court, which was allowed on 26 June 2025.

By then, the learned Chairlady of this panel, Justice Mariana binti Haji Yahya, had since retired. Therefore, this full Grounds of Judgment is prepared in her absence, as an elaboration to the Broad Grounds of Decision we prepared earlier. My learned brother, Justice Hashim bin Hamzah has had the opportunity to peruse this Grounds of Judgment (GOJ) and has expressed his agreement to make it the Judgment of this Court.

The Respondents are the Orang Asli or natives of Peninsular Malaysia, residing in the state of Pahang Darul Makmur.

Agrobest (M) Sdn Bhd (the 1 $ ^{1 s t} $ Appellant) is a company registered under the Companies Act 1965, which is mainly involved in the prawn farming business. The 1 $ ^{1 s t} $ Appellant is a wholly own subsidiary of ABSF International Group (M) Sdn. Bhd (ABSF).

Mudzafar bin Abu Samah (the $ 2 ^{n d} $ Appellant) was the Public Relations Officer of the $ 1^{s t} $ Appellant. As of the date of the appeal, the $ 2 ^{n d} $ Appellant has ceased to be under the employment of the $ 1^{s t} $ Appellant.

Khong Chung Chong (the 3rd Appellant) was a backhoe contractor engaged by the $ 1^{\mathrm{st}} $ Appellant to carry out the excavation work on a burial site, where the alleged trespass occurred in this case.

In the year of 2017, Pahang State Secretariat Corporation (Perbadanan Setiausaha Kerajaan Negeri Pahang) (PSK) entered into a leasing agreement with ABSF for 30 years to develop, inter alia, for the pond farming of sea shrimps (the proposed development) at 700 acres of land held under the titles of Lot HS (D) 4558 PT 9280 and HS (D) 4559 PT 9209, Mukim Bebar, Daerah Pekan (the subject Land). The $ ^{1st} $ Appellant was appointed to implement and carry out the proposed development.

The Respondents contended that they had earlier resided at Kampung Orang Asli Batu 20 (Kampung Batu 20), which is situated within the subject Land. In Kampung Batu 20, there is a burial site, in use for generations, which holds the remains of the Respondents' deceased family members and relatives (the burial site).

It is not disputed that the Respondents had subsequently moved out of Kampung Batu 20 since 1999, upon instruction of the Department of Indigenous People Development (JAKOA) at Pekan District. The Respondents were told to move out of Kampung Batu 20 to a new settlement, as the area was earmarked for development. The Respondents subsequently settled in an area in Kampung Landai, Pahang.

Upon the said relocation, the Respondents contended that they would visit the burial site at least once a year to carry out remembrance rituals for their ancestors. The Respondents would also visit the burial sites when they have any premonitions in their dreams.

It was the Appellants' contention that at all material times, upon discovery of the abandoned burial site at Kampung Batu 20, the Appellants had been taking steps and made efforts to communicate and/or discuss with the natives and the relevant authorities to relocate the graves.

In this regard, the Appellants had approached the assistance of the Batin of Kampung Landai, Tok Batin Rahim (Tok Batin Rahim). Tok Batin Rahim had approached Atan Bin Baro (the 2 $ ^{nd} $ Respondent) and conveyed the intention of the $ 1^{st} $ Appellant to relocate the burial site to a designated burial site. However, there was no response from the said Respondents.

Given the Respondents' lack of response and the confirmation from Tok Batin Rahim, the Appellants were left with no alternative but to take the necessary steps to relocate the burial sites, in view that the said area was necessary for the development of the shrimp farming ponds.

On 31 December 2017, after notifying all the relevant authorities of the $ 1^{\mathrm{st}} $ Appellant's intention to relocate the burial site, the $ 1^{\mathrm{st}} $ Appellant had engaged the $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Appellants to commence the excavation of the burial site, in the presence of Tok Batin Rahim and one En. Mat Tenggang to ensure that the proper exhumation ritual is followed.

The excavation was carried out at approximately 10.00 am on 31 December 2017. However, at or around noon, the works were halted as the $ 2^{\mathrm{nd}} $ Appellant had shown up and subsequently complained about the removal of the burial sites.

On 20 February 2019, the Respondents filed a suit, on behalf of themselves and their relatives, against the Appellants in Kuantan High Court seeking, inter alia, special damages amounting to RM79,362.00, general damages and aggravated damages amounting to RM1,000,000.00 for the alleged trespass, encroachment, and/or destruction of graves with unnamed tombstones in the burial site in the subject Land.

On 11 July 2023, the learned High Court Judge (HCJ) decided that the Respondents' claim against the Appellants for the trespass and/or destruction of the graves in the burial site had been proven and ordered general damages of RM20,000.00 to each Respondent. However, the claims for aggravated damages, exemplary damages and emotional distress were dismissed. Findings of the learned HCJ

In allowing the Respondents' claim, the learned HCJ, among others, found: i. The $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Appellants knew the existence of the burial site and had engaged the $ 3^{\mathrm{rd}} $ Appellant to carry out excavation works at the burial site. ii. The manner in which the $ 3^{\mathrm{rd}} $ Appellant used the backhoe clearly showed a lack of respect for the customs of the indigenous people, as the burial site was roughly disturbed without considering their traditions and customs. iii. This was the mistake made by the Appellants in the process of relocating the indigenous burial site from Kampung Batu 20 to Kampung Landai. iv. This act, carried out by the $ 3^{rd} $ Appellant under the instructions of the $ 1^{st} $ and $ 2^{nd} $ Appellants, constituted a "kacau ganggu" against the burial site at Kampung Batu 20. v. Therefore, the Respondents' claim against the Appellants for the destruction of the burial site at Kampung Batu 20 had been proven and substantiated. vi. Tok Batin Rahim, who was present in Court, was not representing the Respondents, and the Respondents had not given any consent to Tok Batin Rahim. Therefore, the Respondents were never informed that the burial site at Kampung Batu 20 would be relocated to Kampung Landai, nor did they agree to such relocation. vii. However, the amount claimed by the Respondents was not supported by any documentation, particularly in respect of the claim for Special Damages.

As a conclusion, the learned HCJ awarded a sum of RM20,000.00 to each Respondent as General Damages for the loss suffered due to the damage caused by the Appellants to the burial site, with costs of RM20,000.00 to be paid by the Appellants to the Respondents. The claims for aggravated damages, exemplary damages, and emotional distress were thereby dismissed.

Dissatisfied, the Appellants thereafter appealed against the decision to the Court of Appeal (COA).

The Respondents had also filed a Notice of Cross Appeal, vide Enclosure 11 (Encl.11), which we will deal with later in this GOJ.

Based on the written submission filed by the Appellants, the Appellants had raised several issues. However, during the hearing of this Appeal before us, the Appellants had summarised the issues into two (2) main issues, namely: i. Locus standi issue; and ii. Trespass issue. Locus standi issue

On this locus standi issue, the Appellants submitted that the learned HCJ had failed to give any consideration to the issue of locus standi in his Lordship's GOJ, as the Respondents had brought the claim based on the standing that they are the descendants of the deceased buried at the burial site.

The Appellants submitted that there is no real nexus between the Respondents and the deceased as they are not the immediate family of the deceased. Neither the Respondents is the representative of the families of the deceased nor the executors or administrators of the deceased's estate. Not being the executors or the Administrators of the estate of the deceased, the Respondents cannot maintain an action to recover for the losses of the estate.

The Appellants further submitted that the claim cannot be sustained as the suit was not filed as a representative action. In short, the suit was filed in the personal capacity of the Respondents, but the claim was made on behalf of all persons who would have been affected by the alleged removal of the burial sites. The claim, as juxtaposed in the Statement of Claim (SOC), was patently wrong, and the Respondents therefore had no locus standi to commence and/or to make any claims on behalf of the other family members.

The Respondents submitted that this issue was never brought up during the High Court proceedings. Therefore, in the interest of justice, this issue should not now be raised here. Even if the issue was raised in the High Court, the Respondents denied that they do not have locus or sufficient nexus with the deceased. The Respondents are the closest surviving members of the deceased buried at the burial site at Kampung Batu 20.

The Respondents further submitted that they have adduced death certificates and their evidences that their loved ones were buried at the cemetery. It is illogical for the Respondents, in a matter as sensitive as the deaths of their loved ones, that they would tell untruths in court. On top of that, the Respondents' witnesses had attended court and showed through photos, pictures of the grave stones of their relatives that were buried at the cemetery. The Respondents also adduced in court photos of the personal belongings of the deceased buried with their loved ones. Our findings on the locus standi issue

Contrary to what had been submitted by the Respondents, we find that this issue of nexus and locus standi had been raised by both parties in their respective pleadings.

This can be gleaned from the Respondents' Amended SOC in Paragraph 9, when it stated as follows: - "9. Plaintif-plaintif membawa tindakan ini bagi pihak mereka dan juga bagi pihak saudara mara termasuk saudara mara mereka yang merupakan Orang Asli dari kaum suku Plaintif-plaintif"

In reply to Paragraph 9 of the Amended SOC, the Appellants had stated in Paragraph 2 of their Amended Statement of Defence (SOD) as follows: - "2. Perenggan 9 Pernyatuan Tuntutan adalah dipertikaikan dan Plantif-plaintif diletakkan beban pembuktian yang kukuh terhadapnya. Plaintif-plaintif tidak mempunyai kapasiti undang-undang atau tidak layak membawa tindakan bagi saudara-mara mereka".

The Respondents in Reply to Paragraph 2 of the Appellants' Amended SOD had stated in Paragraph 1 of the Respondents' Reply to the Appellants' Amended SOD as follows: - "1. Defendan-defendan (sic) merujuk kepada perenggan 2 Penyataan Pindaan Pembelaan Defendan-defendan (selepas ini dirujuk sebagai "Pembelaan Defendan") dan ingin menyatakan bahawa Plaintif-plaintif merupakan ketua keluarga masing-masing dan merupakan wakil yang merupakan penyumbang utama kepada kos pembinaan dan penyelenggaraan kubur-kubur lama sebelum ia telah di rosakkan oleh pihak Defendan. Plaintif-plaintif selaku ketua keluarga juga merupakan penyumbang utama untuk baik pulih kerosakkan kubur-kubur tersebut termasuk upacara adat yang perlu di lakukan sesuai dengan kepercayaan suku asli."

Based on the above, we are of the opinion that the Respondents were not taken by surprise and, in fact, were aware of the issue of nexus and locus standi raised by the Appellants at the High Court. Therefore, we see no reason why the issue of nexus and locus standi cannot be raised before us during this appeal.

Further, we are of the view that the issue of locus standi, being a legal issue, should not be put aside even though it was not raised in the court below, as contended by the Respondents. On this note, we refer to the COA case of Lai Wooi Giap V. Rosli Zakaria & Anor [2020] 7 CLJ 477; [2020] AMEJ 0406; [2020] 4 MLRA 375, which we quote: [63] No doubt, an Appellate Court has a discretion to consider an issue, albeit raised for the first time, if it is in the interest of justice to do so and provided it causes no prejudice or disadvantage to the other side and provided the issue does not require further evidence."

To support the proposition, the COA panel in that case also referred to the cases of Subramanyah A/L AJ Karuppiah V. Bank Negara Malaysia [2011] 3 MLJ 454; [2012] 1 MELR 16; [2011] 3 AMR 60; [2011] 2 CLJ 178 (COA) and S Mariappan v. The Government of Malaysia [1983] 1 MLRA 195; [1983] 2 MLJ 340; (FC), which we will not elaborate further here.

By virtue of the above authorities, we found that, even if this issue was not raised in the court below as claimed by the Respondents, the Appellants had raised this issue first in list, in their Memorandum of Appeal. We also found that, apart from being a legal issue, this issue requires no further evidence, as what transpired in the Notes of Evidence can shed light for us to determine the outcome of the issue at hand. The Respondents, on the other hand, were also given the opportunity to submit on this issue. Therefore, we were of the view that there is no miscarriage of justice if we allow this issue to be considered at this level.

With that ruling, on merit, we found that the suit was filed in the personal capacity of the Respondents, but the claim was made for all the persons who would have been affected by the alleged removal of the burial site. We agreed with the Appellant's Counsel's submission that the suit should be filed as a representative action. The Rules of Court applied to all litigants. The fact that the Respondents are Orang Asli does not mean that they can be precluded from complying with the provisions of the rules and law.

We find that the learned HCJ had erred in fact and law when his Lordship failed to consider whether the Respondents have successfully proved they had locus standi to commence this action against the Appellants and whether the Respondents have established their status as descendants of those buried in the burial site of Kampung Batu 20 at the subject Land.

The alleged relationships between the Respondents and the deceased in the burial site at Kampung Batu 20 are as follows: - No.Respondents' NameDeceased's NameRelationship1.$1^{st}$ Respondent Rosli a/l JendutNun Binti TigaMother2.$1^{st}$ Respondent Rosli a/l JendutMinah a/p JendutSister3.$2^{nd}$ Respondent Atan Bin BaroSiah Binti JamboMother4.$2^{nd}$ Respondent Atan Bin BaroGemai Binti LanGrandmother

5.$3^{rd}$ Respondent Melah Binti HamidYoh Binti JusohGrandmother6.$4^{th}$ Respondent Awang Bin BakoAbu a/l AwangSon7.$4^{th}$ Respondent Awang Bin BakoSaripah a/p AwangDaughter8.$5^{th}$ Respondent Esah a/p WirEsah Binti SamGrandmother9.$6^{th}$ Respondent Kasim Bin AwangMahadi Bin KasimSon10.$7^{th}$ Respondent Majib Bin KasimHasai bin AmanUncle

In the instant case, the Respondents claimed to be family members of those buried in the 10 graves located at the burial site in Kampung Batu 20, which consisted of unnamed tombstones.

Having perused the evidence, we find that the Respondents failed to produce sufficient evidence to prove that they are the descendants of the deceased buried at the burial site.

The Respondents were unable to produce any death certificate or other evidence to substantiate their relationship and the deceased's existence.

This can be gleaned from the Notes of Evidence (NOE) when the Respondents said as follows: - i. $ 1^{\mathrm{st}} $ Respondent: No death certificate or any other documents to prove the existence and status of the deceased Minah binti Jendut (alleged sister) or the relationship with both Deceased. (See: $ 1^{\mathrm{st}} $ Respondent's Witness Statement at RR Jilid 2(2)- Encl. 6, page 235, Answer 7) ii. $ 2^{n d} $ Respondent: No death certificates or any other documents to prove the existence and status of both Deceased (alleged mother and alleged grandmother) or the relationships with both Deceased. (See: $ 2^{n d} $ Respondent's cross-examination at RR Jilid 2(1)- Encl. 5, page 205 line 11 to page 206 line 17) iii. Melah Binti Hamid $ (3^{rd} $ Respondent): No death certificates or any other documents to prove the existence and status of the Deceased (alleged grandmother) or the relationship with the Deceased; (See: $ 3^{rd} $ Respondent's cross-examination at RR Jilid 2(2)- Encl. 6, page 350 line 13 to line 14) iv. Awang Bin Bako ( $ 4^{\mathrm{th}} $ Respondent): No death certificates or any other documents to prove the existence or the status of both Deceased (alleged son and daughter) or the relationship with both Deceased. (See: $ 4^{\mathrm{th}} $ Respondent's witness, Roslan A/L Awang's crossexamination at RR Jilid 2(2)-Encl. 6, page 323 line 13 to page 324) v. Esah a/p Wir ( $ 5^{\mathrm{th}} $ Respondent): No death certificates or any other documents to prove the existence and status of Deceased (alleged grandmother) and the relationship with the Deceased. The $ 5^{\mathrm{th}} $ Respondent was not even born when the Deceased passed away. It was also admitted by the $ 5^{\mathrm{th}} $ Respondent that he only knew the location of his alleged grandmother's grave when the Appellants excavated it. (See: $ 5^{\mathrm{th}} $ Respondent's cross-examination at RR Jilid 2(3)- Encl. 7, page 419 line 1 to page 422 line 27) vi. Kasim Bin Awang ( $ 6^{th} $ Respondent): While there was a birth certificate tendered by the $ 6^{th} $ Respondent no death certificate or any other documents to prove the existence and status of Deceased (alleged son); (See: $ 6^{\mathrm{th}} $ Respondent's cross-examination at RR Jilid 2(4)- Encl. 6, page 376 line 8 to page 377 line 14) vii. Majib Bin Kasim ( $ 7^{\mathrm{th}} $ Respondent): No death certificate or any other documents to prove the existence and status of the Deceased (alleged uncle) or the relationship with the Deceased. The $ 7^{\mathrm{th}} $ Respondent also admitted that he was still young to remember the passing of his alleged uncle. It was also further admitted by the $ 7^{\mathrm{th}} $ Respondent that the $ 1^{\mathrm{st}} $ Respondent had instructed him to file this suit; (See: $ 7^{\mathrm{th}} $ Respondent's cross-examination at RR Jilid 2(3)- Encl. 7, page 404 line 8 to page 405 line 14 & page 406 line 25 to line 28)

Given the above, it is clear that it is only the Respondents' bare averments that show the Respondents are the descendants of the deceased buried at the burial site.

We are of the considered view that the mere fact that the Respondents claim that they were descendants of the deceased cannot be taken as proved unless there is other corroborative evidence to prove the Respondents' assertion.

More importantly, the Respondents had admitted during their testimony that all the related tombstones were unnamed. Therefore, without any proof of identity of the tombstones, any person could assert that the tombstones on the burial site belonged to their relatives or family members.

Further, having perused the pictures of tombstones tendered by the Respondents would show that all of the tombstones in the pictures were unnamed. (See: Pictures of the tombstones at RR Jilid 2(4)-Encl. 8, pages 638 to 645 and RR Jilid 2(5), page 724)

We are of the view that, in the absence of proof of the identity of the tombstones, the Respondents have failed to prove that they were the descendants of the deceased buried at the burial site.

Clearly, based on the evidence presented before the court, the Respondents have failed to produce any documentary evidence to substantiate their lineage to the deceased who were allegedly buried at the burial site. These are material facts which are important to the Respondents' claim.

In Jauhir bin Sadikon v Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 1 MLRA 448; [1996] 3 MLJ 627; [1996] 4 CLJ 1; [1996] 3 AMR 2984, the COA held that a failure to prove material facts and/or allegations is fatal to the claim.

We also find that the Respondents have failed to prove they are the immediate family of the deceased. The Respondents are not the executors or the administrators of the deceased estate and therefore cannot maintain an action to recover for the losses of the estate.

We are of the view, in so far as the claim of special damages is concerned, it being the restitution of the cost to make good of the initial graves, such claim ought and should have only been taken out by the Executors and/or Administrators of the deceased estate.

Based on the above, we are of the view that the Respondents' claim cannot be sustained as the suit was not filed as a representative action. In essence, the suit was filed in the personal capacity of the Respondents, but a claim was made for all the persons who would have been affected by the alleged removal of the burial sites. Therefore, the Respondents' claim is patently wrong, and the Respondents had no locus standi to commence and/or to make any claims on or behalf of the other family members.

Despite it being challenged by the Appellants, the learned HCJ did not address the issue of the nexus and the locus standi of the Respondents. In light of the above, the learned HCJ had erred in fact by failing to consider the issue of the locus standi of the Respondents in this action.

Had the learned HCJ kept the legal principles at the forefront of his judicial analysis, then it is very likely that he might have come to a different conclusion. Trespass issue

On the trespass issue, the Appellants submitted that the learned HCJ had erred in fact and law by deciding there was a duty owed by the Appellants to the Respondents and/or that trespass had been committed by the Appellants at the burial site, where the Respondents had the legal right to possess the land.

It was undisputed that the Appellants did pay and obtain the approval from PSK to possess and develop the subject Land lawfully, and the Respondents had never once applied to the Court to reclaim the ownership of the subject Land or at least, the burial site under native customary rights.

The Respondents had also admitted they were instructed by JAKOA to vacate Kampung Batu 20 since the 1990s to make way for development. Therefore, as the Respondents had resettled in Kampung Landai, the Respondents had clearly surrendered the possession of the burial sites and were no longer in actual possession of the burial site, and what more, the subject Land.

In gist, the Respondents submitted that: - a) It is not necessary to be the registered proprietor of the land for a cause of action in trespass for damage to a cemetery. Thus, the Appellants should be estopped from denying the rights of the Respondents by their actions. b) Pursuant to section 297 of the Penal Code, it is a crime or an offence for anyone who desecrates a cemetery. Section 97 of the Local Government Act 1976 also states that it is an offence for any corpse that has been buried to be dug up again without a court order. What the Appellants had done is an offence in law. c) The Respondents have a system of settlement that allows anyone who has rights to lands or things to protect such rights. It is a tort or a civil wrong for anyone who interferes or disturbs the rights of others towards property or possession, and this claim can be taken or actionable without proof of loss by the claimant. d) The Respondents i.e. Aborigines, are not 'squatters' wherein an action under Order 89 of the Rules of Court 2012 (ROC) can be taken. e) The registered owner of the lands can be taken action against in trespass when the lands were obtained illegally. Our findings on trespass issue

In 2017, the subject Land was under PSK, which had entered a listing agreement with ABSF to develop the proposed development. The Respondents in 1999 moved out of the subject Land to Kampung Landai, thus no longer have any possession or control of the subject Land. Looking at the status of the subject Land and the Appellants, it is very clear that they are not trespassers as claimed by the Respondents.

We find that the learned HCJ erred in law and fact when he found that the Appellants had committed a trespass on the subject Land. In light of the fact that the Appellants were not trespassers, the Appellants have no duty of care to the Respondents that would render them liable for the destruction of the Respondents' ancestral graves.

In coming to his decision, we find that the learned HCJ had failed to consider that: - a) The subject Land belonged to PSK; b) The Respondents had moved out of the subject Land on or about 1999 under the instructions of JAKOA and therefore no longer in occupation of the subject Land; c) Save and except that the Respondents claim that they would visit the burial site on certain occasions, they no longer reside at the subject Land and therefore are no longer in possession of the burial site; d) The possession of the subject Land was surrendered to the $ 1^{\mathrm{st}} $ Appellant when PSK leased it for the proposed development of the subject Land; e) The Appellants had taken all reasonable steps and efforts to communicate with the native community and relevant authorities to relocate the burial site; and f) Despite the Appellants' effort to give notice, the Respondents' non-response and upon confirmation from Tok Batin, the Appellants were left with no alternatives but to initiate the relocation of the burial site.

The Respondents had pleaded in their Amended SOC that the Appellants had trespassed into the burial site and caused the damages to their family's graves.

The Federal Court in the case of Tenaga Nasional Berhad v Bukit Lenang Development Sdn Bhd [2019] 1 MLRA 255; [2019] 1 CLJ 42; [2019] 1 MLJ 1; defined trespass to land as the unlawful direct and immediate interference with the possession of the land which is in the possession of another person or which another person is entitled to possession of it.

Through the speaking judgment of Mohd Zawawi Salleh FCJ (as he then was), it was held that: - "[21] Before we dwell on the issue raised by learned counsel for the appellant, it would be useful to briefly state the law on trespass. Halsburys Laws of England 4th edn Vol 45 gives a definition of trespass under the head of "Wrongs to Property" at para 1384 at p 63: "Unlawful Entry. Every unlawful entry by one person on land in the possession of another is a trespass for which an action lies, even though no actual damage is done. A person trespasses upon land if he wrongfully sets foot on it, rides or drives over it or takes possession of it, or expels the person in possession, or pulls down or destroys anything permanently fixed to it, or wrongfully takes minerals from it, or places or fixes anything on it or in it, or if he erects or suffers to continue on his own land anything which invades the airspace of another, or if he discharges water upon another land, or sends filth or any injurious substance which has been collected by him on his own onto anothers land." [22] In Punca Klasik Sdn Bhd v. Liza James & Ors [1996] 2 MLRH 776; [1996] 3 CLJ 932, Abdul Malik Ishak J (as he then was) explained the cause of action grounded on trespass: "In Liew Yu Fatt v. Teck Guan & Co Ltd [1965] 1 MLRH 550; [1966] 1 MLJ 87, McGilligan J said - "Trespass is, basically, an unlawful entry by one person on, or an unlawful interference by one person with, land in the possession of another". In Wong See Kui v. Hong Hin Tin Mining Company [1969] 1 MLRH 302; [1969] 2 MLJ 234, Raja Azlan Shah J (as His Majesty then was) said - "Trespass consists in the intentional intrusion of anothers land. It is committed not only by intrusion in person but also by propelling objects on to another's land". In Segar Restu (M) Sdn Bhd v. Wong Kai Chuan & Anor [1994] 2 MLRH 883; [1994] 3 MLJ 530; [1994] 4 CLJ 757; [1993] 3 AMR 1079, I have said something about the meaning of trespass which was subsequently quoted with approval in Punca Klasik Sdn Bhd v. All Persons In Occupation Of The Wooden House Erected On A Portion Of Land Held Under Grand No 26977 For Lot 4271 In The Township Of Johor Bahru, Johor & Another Case [1995] 1 MLRH 231; [1996] 5 MLJ 92 and this was to this effect: "Reading the pleadings, one would be able to detect the element of trespass. Who is a trespasser? In law, a trespasser is one who wrongfully enters on land in the possession of another and has neither right nor permission to be on the land. Lord Dunedin in Robert Addie & Sons (Collieries) Ltd v. Dumbreck [1929] AC 358 at p 371 aptly described a trespasser as one who goes on the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected. That would be a fitting description of the defendants." [23] Put simply, trespass onto land is the unlawful direct and immediate interference with the possession of land which is in the possession of another person, or which another person is entitled to possession of. A Latin maxim is frequently employed to define the extent of land: "cui us est solum, elus est usque ad coelum et ad inferos" - he who owns the land, owns it all the way to the heavens and to hell. This principle is often referred to in its abbreviated form as ad coelum principle. In modern law, this principle is still accepted in limited form, and rights are divided into space rights and subsurface rights below." (Emphasis added)

Based on the above, we are of the view that possession of land is necessary to support an action for trespass. (See: Senik v Hassan & Anor [1963] 1 MLRH 91; [1963] 1 MLJ 368b; Cahaya Utama Industries Sdn Bhd v Kong Kam Peng [2007] 8 MLJ 528; [2007] 1 MLRH 497; [2007] 10 CLJ 79)

In the instant case, we find that the Respondents had admitted they were instructed by JAKOA to vacate Kampung Batu 20 since 1990s to make way for development. Therefore, as the Respondents had resettled in Kampung Landai, the Respondents had surrendered the possession of the burial sites and were no longer in actual possession. The evidence led during the trial shows that, save and except for the visitation on the burial site, the Respondents had not shown they had exclusive possession of the burial site and therefore cannot be deemed to be the occupant of the said subject Land.

Despite being aware of and acting upon JAKOA's instruction, they elected not to relocate the burial site situated on the subject Land for a period exceeding 18 years. The Appellants cannot be held responsible now for relocation of the graves when it was the Respondents' own failure to do so over a significant period of time.

The Respondents asserted that the Appellants had committed trespass on their burial site. However, from the evidence produced before the court, we find that the Appellants did pay and obtain the approval from PSK to possess and develop the subject Land lawfully, and the Respondents had never once applied to the Court to reclaim the ownership of the subject Land or at least, the burial site under native customary rights.

Therefore, it is clear that the Respondents did not possess the burial site; therefore, their claim of trespass must necessarily fail. In essence, the $ 1^{\mathrm{st}} $ Appellant had actual possession of the burial site as it had been leased by PSK and not the Respondents. Duty of care

Based on our findings that the Appellants were not trespassers, consequently, the Appellants owed no duty of care to the Respondents that would render them liable for the destruction of the Respondents' ancestral graves.

We are of the view that the Appellants do not owe any duty of care to the Respondents based on the following reasons: - a) The $ 1^{\mathrm{st}} $ Appellant did not enter into any lease agreement or other agreement with the Respondents, thus there is no contractual relationship between the $ 1^{\mathrm{st}} $ Appellant and the Respondents to premise a duty of care; b) The $ 1^{\mathrm{st}} $ Appellant had paid a good consideration to PSK to possess the subject Land legally; c) The Respondents failed to claim or apply the ownership of the burial site at Kampung Batu 20; and d) The Respondents are not the land owner of the subject Land and have no longer in occupation since the 1990s when the Respondents relocated from Kampung Batu 20 to Kampung Landai.

The facts in the present case clearly shows that there is no proximity of relationship between the Appellants and the Respondents that can give rise to a duty of care between Appellants and the Respondents. It would not be fair, just and reasonable to impose such a duty of care for a responsibility which they had not assumed when they paid for 700 acres of the subject Land. The facts showed that the issue of the abandoned burial sites was not the Appellant's contemplation when the land was leased by PSK to the $ ^{1 \mathrm{st}} $ Appellant.

In fact, we find that from the moment that the Appellants discovered that there was a burial site at the subject Land, the Appellants had never stopped making efforts to communicate and discuss with the relevant authorities and the native community for the relocation of the burial site.

Hence, we are of the view that it is plainly wrong for the learned HCJ to find that the Appellants had been negligent in failing to take the necessary steps prior to the removal of the burial sites. The alleged destruction of the graves at the burial site

The learned HCJ had made a finding of fact that there were six (6) graves with tombstones, which were located at the burial site. However, we find that only one (1) of the graves was excavated or exhumed by the backhoe to check for the remains or bones of the deceased. However, when there were no bones or remains found, the excavation was then halted. The rest of the five (5) graves were left as it is.

This can be gleaned from the evidence of the $ 3^{rd} $ Appellant and corroborated by Tok Batin Rahim's testimony. (See: $ 3^{rd} $ Appellant's cross-examination at RR Jilid 2(3) - Encl. 7, at pages 544-545)

The fact that only one (1) grave was dug is further supported by the photographs taken at the burial site after 31 December 2017, which clearly indicated that most of the graves had not been disturbed or excavated. (See: Photos of the burial site at RR Jilid 2 (5) - Encl. 9, at pages 724-729)

Further, there was a photo which showed that the grave was not covered by foliage and/or dead leaves. Thus, it can be concluded that only one (1) grave was exhumed and another five (5) were not disturbed. (See: Photos of the burial site at RR Jilid 2(5)- Encl. 9, at page 729)

However, the learned HCJ was erred to conclude that the Respondents are entitled to their claim based on the finding that all of the graves have been destroyed instead of only one (1) of the graves was excavated.

As for damages, we were of the view that since the learned HCJ had dismissed the claim for emotional damages, we saw no reason for the learned HCJ to award general damages of RM20,000.00 to each of the Respondent. However, the learned HCJ had dismissed the Respondents' claim on special damages. As such, we were of the considered view that the award of general damages cannot be a substitute for the special damages claim.

As mentioned earlier, the Respondents had filed a Notice of Cross Appeal vide Encl. 11. The Respondents complained that the learned HCJ had failed to award other damages for: i. The restoration of the burial site at Kampung Batu 20, supported by a receipt dated 9 March 2018 for expenses incurred in constructing and completing the boundary wall; ii. The expense for coffin containers, tombstones, lime for graves, and burial shrouds, which was supported by a receipt dated 27 April 2018; iii. Other expenses, such as costs for the feast ceremony and fuel expenses, which were supported by receipts; iv. General and exemplary damages for the negligent and/or wrongful act whereby the Appellants wrongfully and intentionally demolished the burial site.

The Appellants raised a preliminary objection (PO) against the Respondents' Notice of Cross Appeal on the ground that the Notice of Cross Appeal was not seeking to vary the decision of the HCJ but is appealing against the said decision, which is not within the ambit of Rule 8 of the Rules of the Court of Appeal 1994 (RCOA). The Notice of Cross Appeal does not relate to and is disconnected from the grounds of the appeal of the Appellants in their Memorandum of Appeal. It was submitted that the Respondents should have filed their own separate Notice of Appeal against the dismissal of the prayers sought and not to appeal by way of a Notice of Cross Appeal.

The Respondents were of the stance that since the Appellants' Notice of Appeal is against the entirety of the HCJ's decision, then, by virtue of Rule 8 of the RCOA, the Notice of Cross Appeal is sufficient. Our findings on the Notice of Cross Appeal

The nature of the cross appeal has been explained lucidly in Mahsudan Kamar & Ors v Bank Islam Malaysia Berhad [2023] CLJU 1709, [2023] 6 MLRA 144; where the COA explained that: [46] In essence, the basis for the PO was that in law Notices of Appeal ['NOAs'] and cross-appeal filed under Rules of Court of Appeal, 1994 ['RCA 1994'] are distinct from each other. A notice of cross-appeal does not provide for an issue not decided in the Respondent's favour unrelated to the main appeal to be re-heard...” (Emphasis added)

As such, a Notice of Cross Appeal must relate to "the decision" which is being appealed against.

In the Federal Court cases of Kabushiki Kaisha Ngu v. Leisure Farm Corporation Sdn Bhd & Ors [2016] 6 MLRA 373; [2016] 5 MLJ 557; [2016] 5 AMR 693; [2016] 8 CLJ 149 and Douglas Ding Jangan & Ors v. Kerajaan Negeri Sarawak & Ors [2021] 7 CLJ 653; [2021] 5 MLRA 259; [2021] 4 MLJ 946, the Federal Court held that if a party wished to attack a substantive finding of the court below, that party had to file a proper Notice of Appeal and the appeal on a point which did not affect the original appellant should not be by way of a cross appeal.

Perusing the Notice of Appeal, we found that in this appeal, the decision which is being appealed against is on the issue of liability and the award of general damages of RM20,000.00. While the Notice of Cross Appeal by the Respondents contained the issues of the special damages, the adequacy of the general damages, and the exemplary damages which were dismissed by the High Court.

Therefore, we were of the view that the Respondents' Notice of Cross Appeal was not in compliance with Rule 8 of the RCOA. The Respondents should file a separate Notice of Appeal to appeal against the said decision of the learned HCJ. As the Respondents' Notice of Cross Appeal is incompetent, we allowed the PO and therefore, the Notice of Cross Appeal was struck out. On that score, there is no necessity for us to deliberate on the merit of the Cross Appeal.

Based on the reasons above, we found that the learned HCJ was plainly wrong in his decision to allow the Respondents' claim. We therefore unanimously allowed the Appellants' appeal and dismissed the Respondents' Cross Appeal. The High Court's decision dated 11 July 2023 was therefore set aside with costs.

As for costs, we award costs of RM20,000.00 here and below to the Appellants, subject to allocator. Dated: 04 September 2025 AHMAD KAMAL BIN MD. SHAHID JUDGE COURT OF APPEAL Counsel appearing: For the Appellants (Defendants): Mr. Henry Ngok Heng Hui (together with Miss Vernise Ng Si Hui) [Messrs Loh Ivan & Lee Hui] For the Respondents (Plaintiffs): Mr. Hon Kai Ping (together with Miss Sakinah Binti Rosidi) [Messrs H Y Lee & Hee]