Aiashah Binti Ismail v Superintendent of Lands and Surveys Kuching Division (Q-01(NCVC)(W)-161-05/2017)

HANAPI BIN SALLEH ... APPELLANTS

STATE GOVERNMENT OF SARAWAK ... RESPONDENTS [In the matter of High Court of Sabah and Sarawak at Kuching Civil No. KCH-21NCvC-19/10-2015

Aiashah Binti Ismail

Hanapi Bin Salleh ... Plaintiffs and

Superintendent of Lands And Surveys Kuching Division

State Government Of Sarawak ... Defendants] CORAM: HAMID SULTAN BIN ABU BACKER, JCA ABANG ISKANDAR BIN ABANG HASHIM, JCA BADARIAH BINTI SAHAMID, JCA JUDGMENT OF THE COURT Brief facts of the case [1] Aiashah binti Ismail ("the $ 1^{\mathrm{st}} $ Plaintiff") and Hanapi bin Salleh ("the $ 2^{\mathrm{nd}} $ Plaintiff") brought this action on their own behalves as well as on behalf of the other children of the late Mohd Salleh bin Matali ("the deceased") and their respective family members who are the rightful claimants and/or beneficiaries of Native Customary Rights ("NCR") land known as Lot. 4811, Section 64, Kuching Town Land District with a total acreage of about 8.57 acres more or less ("the NCR land"). [2] The Superintendent of Lands and Surveys Kuching Division and the State Government of Sarawak had been named as Defendants in this case ("the Defendants"). [3] The Plaintiffs' pleaded case was that the deceased, who was the $ 2 ^{n d} $ Plaintiff's father, had cultivated and occupied the said NCR land since 1926 until he passed away in 1952. After his death, his wife with their four children, including the $ 2 ^{n d} $ Plaintiff moved to Kampung Mendu but they continued to cultivate and worked the said NCR land especially tapping the rubber trees and harvesting the fruit trees that were planted on the said NCR land. [4] Sometime in 1973, the said NCR land was gazetted by the Defendants as state land under Settlement Order G. N. 204 (Serial No 4) as published on 18 January 1973 at the Sarawak Government Gazette Part V ("the Settlement Order"). According to the Plaintiffs, that was done without their knowledge and/or consent. The Plaintiffs contended that there was no attempt to give notice and/or to inform them of such gazetting. The Plaintiffs claimed that by farming or cultivating the NCR land, they had never abandoned their NCR over the NCR land and have created and/or acquired and/or inherited their rights, interest and title over the NCR land by virtue of and under the principle of common law, which is applicable to the natives of Sarawak. Without first extinguishing NCR over the same land, as provided for under the provisions of the Sarawak Land Code (Cap.81) 1958 and/or its predecessors, the said gazette is therefore null and void and of no legal effect. [5] Therefore, in this suit, the Plaintiffs claimed for: a. A declaration order that the Plaintiffs had created and/or acquired and/or inherited Native Title and/or NCR over the NCR land; b. A declaration that this native title and/or rights preclude the Defendants from impairing and/or abridging the Plaintiffs' said native title and/or NCR; c. A Declaration that the acts of the Defendants in changing the status of the said NCR land to state land and/or any other status without first extinguishing NCR is null and void; d. A Declaration that the Defendants had acted in breach of their fiduciary duty to the Plaintiffs and therefore the said gazetting of the said NCR land as state land is null and void; e. Compensation and/or general damages to be assessed by the Registrar; f. Exemplary Damages, g. Costs of this action; and h. Any further orders or reliefs, deemed fit and proper by the court. [6] The Defendants in their Statement of Defence contended that the Plaintiffs' claimed NCR land did not fall within Lot 4811 Section 64 Kuching Town Land District. Further, and in the alternative, the Defendants averred that the Plaintiffs had not, inter alia, created the NCR over the claimed NCR land. Further in the alternatively, the NCR land had been surrendered, abandoned and/or relinquished by the Plaintiffs, their ancestors and/or forefathers. The Defendants also averred that when gazetting Section 64 Kuching Town Land District as State Land vide the Settlement Order, the Defendants had given sufficient notice to the owner of the lands vide a copy of the Settlement Order being put up at Kuching District Office and TK Sharkawi's house at Kampung Tabuan. However, the Plaintiffs or their predecessors had never come forward to claim the NCR land. According to the Defendants, the investigations and survey work, carried out by the Defendants showed that the NCR land was never a Malay Communal Reserve Land. Instead, the claimed NCR land and the nearby lands were occupied by Chinese Squatters. Findings of the learned High Court Judge [7] The main issue raised before the High Court has been whether the Plaintiffs have created and/or acquired NCR over the NCR land. At the end of a full trial, the learned Judicial Commissioner ("the learned JC") found that the answer to the above question was in the negative. The learned JC held further that even if the Plaintiffs had created NCR over the claimed land, they had nevertheless abandoned those rights. Therefore, the Plaintiffs' claim was dismissed, thus this appeal to the Court of Appeal before us. The Appeal [8] We heard this appeal on 11 April 2018 but we reserved the decision as we needed some time to consider the submissions placed before us by learned counsel for both litigants. We also indicated to both learned counsel that they would be duly informed once our decision was ready to be delivered. This now is our decision and the reasons for having so decided. [9] Before us, the primary issue has been basically the same as was raised by the Plaintiffs in the High Court. The Plaintiffs had complained that the learned JC had erred in law and in fact, in finding that the Plaintiffs had failed to prove that they had created and/or acquired NCR over the claimed NCR Land, on the balance of probabilities. In fact, the learned JC had gone on to find that, in the event that the Plaintiffs had created NCR over the said land, they had actually lost that right in that they had by their conduct, abandoned the NCR over the said land. [10] Looking at the submissions of the learned counsel for the Plaintiffs, as indicated therein, he was focused on the issue pertaining to the finding of facts made by the learned JC. Indeed, he had begun his written submissions by declaring that: "The crux of this appeal turns on the factual findings and assessment of the evidence of the learned JC." He then cited the decision of the Court of Appeal in the case of Abu Bakar bin Pangis & Ors v Tung Cheong Sawmill Sdn Bhd & Ors [2014] 5 MLJ 384 to help illustrate how a court should go about in coming to a finding of fact in various given factual permutations, when deciding whether a party to a civil suit has discharged his legal standard of proof on the balance of probabilities. [11] This action brought by the Plaintiffs was basically for a Court declaration that a certain piece of land known as Lot 4811 was actually NCR land belonging to the $ 2 ^{n d} $ Plaintiff [since deceased]. It was allegedly inherited by him from his late father who had purportedly worked on the said NCR land, even as far back as in the 1920s. It was the evidence of the Plaintiffs, especially PW2, Puan Panny bte Salleh ("Panny"), that they had continued to cultivate the said NCR land until 1980s when they ceased to stay on the claimed NCR land and had only moved out from there to stay at Kampung Mendu which was about 30 minutes' walk from the claimed NCR land. Panny had also said that her brother had also worked on the said NCR land. [12] On the other hand, the learned counsel for the State Attorney-General's Office submitted before us what was essentially placed before the learned JC and concluded by saying the learned JC had not erred coming to the decision that he did, thereby not necessitating any appellate intervention. [13] In a contested civil suit, like this case before us, the trial Judge is inevitably faced with two versions of events, one contradicting the other in material particulars. The task of the trial Judge is therefore to assess the evidence as adduced before him and decide which of the two versions presented by the respective parties' evidence as adduced before him, is more probable of the two. In assessing the admitted evidence, he has to assess the inherent credibility of the evidence and in so doing he would have to consider the credibility of the witnesses who gives the evidence before him. It is trite that the trial Judge is the person best placed to make these findings of facts, as he has the audio-visual advantage of observing the demeanour of the witnesses who have testified before him in Court. Unless there is a gross misfinding of facts committed by the trial Judge, the appellate Court must give due deference to his reasonable findings, although the appellate Court may be of the view that a different conclusion from that, as found by the trial Judge on the facts, ought to have been concluded from the evidence adduced. The applicable law is that the trial Judge must be plainly wrong before his decision can be upset or disturbed or set aside by the appeal Court. The Law [14] The law on the creation of NCR over land is contained in the Land Code of Sarawak and the other relevant Orders. Essentially, a claimant will have to lead evidence that the land over which he is staking his claims for NCR rights, was first cleared by his forefathers before 1954, when the claimed land was still virgin jungle. Once that was established he has to show that he was in continuous occupation of the said land ever since. Otherwise, he will be deemed to have abandoned or surrendered his NCR right over the claimed land. [15] In dealing with this issue, it is pertinent to lay out the law relating to creation of NCR over lands in Sarawak. The creation of NCR relates to the clearing of a portion of the virgin jungle for farming or cultivation had been reflected or recognized by Statutes and Orders of Proclamations made by the Rajah. These legislative documents were referred to by the Federal Court in Director of Forest, Sarawak & Anor v. TR Sandah Ak Tabau & Ors [2017] 2 MLJ 218. [16] The relevant provisions concerned with the methods of creating native customary right land are provided in section 5(2) of the Land Code (Sarawak Cap.81), which provides that: "The methods by which native customary rights may be created are-

(a) the felling of virgin jungle and the occupation of the land thereby cleared;

(b) the planting of land with fruit trees;

(c) the occupation or cultivation of land;

(d) the use of land for a burial ground or shrine;

(e) the use of land of any class for rights of way; or

(f) any other lawful method Provided that-

(i) until a document of title has been issued in respect thereof-

(a) no rent shall be charged by the Government on the land which shall continue to be State land; and

(b) any native lawfully in occupation thereof shall be deemed to hold by licence from the Government and his rights over the land may, upon the date of coming into force of this paragraph, be inherited, acquired or purchased by or transferred or sold or disposed of to or dealt with another native; and

(a) Superintendent of Land & Surveys, Bintulu v Nor anak Nyawai & Ors [2005] 3 CLJ 555;

(b) Superintendent of Land & Surveys Miri Division & Anor v Madeli bin Salleh (suing as Administrator of the Estate of the deceased, Salleh bin Kilong) [2008] 2 MLJ 677;

(c) Bisi ak Jinggot @ Hilarion Bisi ak Jenggut v Superintendent of Land & Survey, Kuching Division & Ors [2013] 6 CLJ 805 [18] The trite law is that all land belongs to the State, unless and until it is alienated. This is stipulated in Section 12 of the Land Code whereby it is stipulated that all State lands in Sarawak are vested to the Government. [19] In the case of Native Customary Land with no title, natives, having legitimate customary rights to land in accordance with the law, only occupy the land as licensee of the Government (see Section 5(2) and 44 of the Land Code). [20] Section 5(3) of the Sarawak Land Code provides that: "whenever any dispute shall arise as to whether any native customary rights exist or subsists over any State Land, it shall be presumed until the contrary is proved, that such State Land is free of and not encumbered by any such rights." [21] It is therefore fair to state that whether a native has NCR over such land would depend on whether he could prove via admissible evidence that he or his forefathers had fulfilled certain requirements under the laws prevailing at the time which NCR to the land were said to have been created. [22] Like all civil claims, the burden is on the party claiming a relief to prove his claim which is in line with sections 101, 103, 105 and 106 of the Evidence Act 1950 depending on the circumstances of each case. As regards, NCR claims, in the case of SOP Plantation (Suai) Sdn Bhd v Ading Ak Layang & Ors [2004] 4 MLJ 180 at 189 the court there had held that: "the burden is on the defendants to prove the existence of the native customary rights and if the court finds, on the affidavits' evidence, that the evidence is unsatisfactory and unconvincing, the court may reject the evidence. To prove their claim of native customary rights, the defendants must do so by cogent evidences. Bare assertion would not be sufficient." [See also the case of Ranggong ak Jenau & Ors v BLD Resources Sdn Bhd & Ors and another appeal [2017] 5 MLJ 700.] [23] As such, the state of the law on the creation of NCR over land in Sarawak is rather settled. Like all other claimants of NCR over lands in Sarawak, the burden to show by cogent evidence lies on the Plaintiffs in this case. The standard of proof incumbent on the Plaintiffs to be discharged is on the balance of probabilities. Our deliberation and findings [24] In light of the evidence and the appeal records before us, we are of the view that in the circumstances, we cannot place any blame on the learned JC for concluding the way he did, in coming to the findings of facts that were adverse against the Plaintiffs. [25] In a civil suit, the Plaintiff wins, not because the Defendant's case is weak. The Plaintiff wins because he has succeeded in proving his claim against the Defendant on the balance of probabilities. He is held to his incumbent standard of proof to discharge throughout the case. Such is the case that, at the end of the Plaintiff's case, the Defendant has the option of not leading evidence to establish his case, but instead he can go on to submit that the Plaintiff's claim ought to be dismissed as the Plaintiff's evidence is so weak that it does not merit a reply from the Defendant in terms of leading evidence to rebut the Plaintiff's case. [26] But here, both parties had led evidence. The learned JC having weighed the evidence had come to the conclusion that the Plaintiffs had failed to prove their case on their claim for the NCR land on the balance of probabilities against the Defendants in order for them to succeed in getting the various reliefs that they were claiming for. The learned JC had also found that, even on the assumption that they had NCR over the said land, they had abandoned the same as they had failed to prove that they had continuous occupation over the said NCR land for reasons as set out by him. [27] It would be opportune, in this regard, to dwell a little on what a standard of proof on a balance of probabilities would entail, in law, in terms of leading evidence. In the English family law case of In re H (Minors) [1996] AC 563 at 586, Lord Nicholls explained what that standard is and that it is a flexible test: "The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his underage stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established." [28] As to what is the difference between succeeding and failing on the balance of probabilities standard, one needs only to refer to the decision of Denning J [as he then was] in the case Miller v Minister of Pensions [1947] 2 All ER 372 where he had said, like so: "If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged, but if the probabilities are equal it is not." [29] Coming back to our own shores, the Federal Court in the case of Sinnaiyah & Sons Sdn Bhd v. Damai Setia Sdn Bhd [2015] 7 CLJ 584 had settled it once and for all that the standard of proof applicable in all civil cases, including NCR claims such as this present appeal before us, is one that is proof on the balance of probabilities. [30] Now, going straight to the grounds of judgment of the learned JC, we noted that he had identified the questions which parties had advanced before him to be determined. He was of the view that his determination of the question of whether the Plaintiffs had proven their NCR over the claimed NCR land would be key terms of determining how the case would proceed, moving forward. At the end of the whole exercise, the learned JC came to the conclusion that the Plaintiffs had failed to prove their claims against the Defendants and he had then dismissed the Plaintiffs' claim with costs of RM5000 subject to allocator fees. That decision had aggrieved the Plaintiffs, hence this appeal before us. [31] As had been alluded to earlier, the gravamen of the Plaintiffs complaint had been that the learned JC had made erroneous findings of facts resulting in the adverse decision against them. [32] From the written submissions of the Plaintiffs, the learned JC had erred in respect of two main findings. The first error it was identified to us was concerned with the finding on creation of NCR land whereas the second error had related to the finding on D-Book issue by the learned JC. It was the submission by the learned counsel for the Plaintiffs that the findings made by the learned JC were against the weight of evidence, in particular in respect of the evidence of SP2 and against the established legal principle on admissibility of documentary evidence. [33] The issue on the misappreciation of the evidence by the learned JC was allegedly concerned with his finding that there was insufficient evidence led by the Plaintiffs in order to successfully establish their claim for the NCR land. This would mean that even on the entirety of the whole evidence of the Plaintiffs, they had fallen short of proving their case on the required applicable standard of proof on the balance of probabilities. [34] The second complaint by the Plaintiffs had related to the wrongful admission of the D-Book as documentary evidence for the Defendants. [35] There was also a submission advanced before us during oral hearing of the arguments that in the circumstances of this case, if this Court was of the view that the learned JC was correct in his finding that the Plaintiffs had failed to prove their claim for the entire claimed NCR land of about eight acres, it was still open for this Court to allow the Plaintiffs' claim to the reduced acreage of some two acres of the said NCR land, based almost entirely on the evidence of SP2 which came to light during her cross-examination by learned counsel for the Defendants. Now, reverting to the issue pertaining to the appreciation of the evidence by the learned JC, we had perused the record of appeal, in particular, notes of proceedings of the trial of this case at the High Court. The Plaintiffs had called three witnesses. PW1 was the village headman, PW2, Puan Panny, and PW3, the $ ^{1st} $ Plaintiff named in this action. It was the Plaintiffs' case that the deceased was the person who had cut down the virgin jungle and that he had begun cultivating the subject NCR land since 1926 with planting fruit trees and growing paddy, which activities were continued after the deceased had passed on, by the $ ^{2nd} $ Plaintiff, until the 1980s. It was said that the cultivation activities on the subject NCR land ceased in the 1980s due to the rapid development taking place in the surrounding area, according to PW3's evidence in the trial proceedings. The $ ^{2nd} $ Plaintiff, who was alleged to have worked on the claimed NCR land had also passed on, before the commencement of the trial of this case in the High Court. [37] In the assessment of the witnesses by the learned JC, among these three witnesses, namely Sharkawi, Puan Panny and $ ^{1 \mathrm{st}} $ Plaintiff, he had identified PW2 as the most material witness to lead material evidence pertaining to the Plaintiffs' claim on the NCR land. His view was based on the fact that she had said that she had stayed on the subject NCR land together with her family, including the purported and alleged trailblazer, the deceased, who was her father. Lest we forget, the $ 2^{\mathrm{nd}} $ Plaintiff had since passed on, before the trial of this case even began. That factual circumstance had elevated the added significance of her evidence, in the context of this case. It was her evidence at the trial Court that she had stayed on the subject NCR land until 1952 when the deceased died and that was when the whole family had moved out from the subject NCR land to live at another village, namely Kampong Simpang Tiga, some 30 minutes walk away from where the subject NCR land was located. [38] As such, the PW2's evidence, as it pertained to prove the creation of NCR land, had been noted by the learned JC. He had listed the PW2's evidence as follows, in paragraphs 10-13 of his Grounds of Judgement, like so: [10] As regards the creation of NCR over the said land, PW2 gave evidence that her late father had cultivated and planted fruit trees and paddy on the said land since 1926. She also testified that the said land was located at Sungai Tabuan, Chawan Road. PW2 testified that she is the eldest of four siblings. [11] In her evidence, PW2 testified that even though they moved out from the said land in 1952, the family still visited the land regularly to cultivate and look after the land. She stated that her brother, the late Hanafi would visit the land and continued cultivating the land until the 1980"s. She further testified that in the 1980"s, the late Hanafi had also stopped cultivating the land as by then rapid development had taken place around the area of the said land. She however maintained that the late Hanafi had continued to regularly unkept the land there. [12] In her testimony, she had identified an identity card [marked as P1] as the identity card of her late father, which was issued during the British Colonial days. [13] In this case, it is also to be noted that at the time PW2 appeared in this case as a witness, she was already around 78 years old having been born in 1938. It is undisputed that due to her old age, PW2 had difficulty remembering some of the matters that were referred to her in the examination-in-chief and also during the cross examination. The notes of evidence would reflect this. Based on the cross-examination of PW2, two important pieces of evidence emerged. One, PW2 testified that said land where the plaintiffs were claiming their NCR was less than two acres which according to her, her late father had cultivated the land since 1926. It is also to be noted that in the re-examination of PW 2, she was not re-examined on the point that the said NCR was less than two acres. [39] The learned counsel for the Plaintiffs had also faulted the learned JC's finding on the size of the subject NCR land which according to PW2 was about two acres only. [40] Having regard to the evidence before the learned JC on this issue of the size of the subject NCR land, we are of the view that the learned JC was justified in his view as there was no reexamination of PW2 on this issue by the Plaintiffs' learned counsel, which in legal terms means that the Plaintiffs were happy to accept such evidence to be the truth on the size of the subject NCR land. We noted that there was no re-examination by learned counsel for the Plaintiffs on PW2, pertaining to this apparently damaging evidence coming from a material witness on the size of the claimed NCR land. [41] On this matter on the size of the NCR land, in his written submissions, at paragraph 7 therein, the learned counsel for the Plaintiffs stated: "Since PW2 had an absence of presence on the NCR land, the 2 acres was not a sign of uncertainty but rather PW's memory of the land was when the land was only 2 acres in size. Since the $ 2^{\mathrm{nd}} $ Appellant had continued to cultivate the land, the size of the land would naturally grow bigger in size till. However, this happened without PW2's presence thus would explain why in PW2's mind the NCR land was only less than 2 acres." [42] With respect, we find such a submission by learned counsel for the Plaintiffs to be highly speculative and devoid of support in term of actual evidence and was crafted, solely to provide an explanation on the size of the NCR land, on behalf of the PW2. As can be recalled, PW2's evidence on that matter of size was couched with the phrase "According to the elders, the land was more than 1 acre." During cross-examination, PW2 agreed that the area of the claimed land was not more than two acres. Two points can be deduced from this evidence. First, if it was intended to be the truth of what she had asserted as told to her by the elders, it is caught by the rule against hearsay, as expounded in the Privy Council case of Subramaniam v PP [1956] W.L.R 965. The elders would need to be called but they were not called in this case. Secondly, there was no re-examination on a point material to the Plaintiffs' case, namely the size of the claimed land to be NCR. As there existed two conflicting evidence by way of assertions on the actual size of the claimed land, there is therefore a doubt on the size of the said land. Such evidence, coming from the Plaintiffs' own witness, may even throw doubt as to the identity of the said land. On the applicable standard of proof, such evidential situation can hardly suffice to discharge the attendant burden that the law placed on the Plaintiffs' shoulders. [43] In the presence of a clear contradiction in the evidence coming from the Plaintiffs' own witnesses, for which there was no apparent attempt at reconciliation coming from the Plaintiffs' side, it does not come as a surprise to us that the learned JC had no other choice but to arrive at such a finding as he did. There ought to have been a re-examination of the matter on the size on SP2 by the Plaintiffs' learned counsel. An apparent gap that exists could not be conveniently filled up by way of submissions from the Bar table by learned counsel, which appeared to us to be an attempt at offering plausible explanations, pertaining to the size of the claimed NCR land by the Plaintiffs. Any explanation regarding the size of the claimed NCR land, if one was indeed available, ought to have come from PW2 herself, but which unfortunately did not happen in this case. In fact, the failure to re-examine PW2 on the part of the learned counsel for the Plaintiffs on the size of the claimed land was further exacerbated by the apparent nature of the evidence of PW2 on the size of the claimed land which was clearly hearsay. [44] As such, in our view, the quality of the evidence emanating from the PW2, taken in totality with the other evidence from the Plaintiffs' other witnesses did not justify him to arrive at any other conclusion that may be favourable to the Plaintiffs' cause. [45] A panel of this Court, in the case of Superintendant of Lands and Survey Department, Sibu Division and Anor v Usang ak Labit & Ors and another Appeal [2014] 3 MLJ 519 ("Usang ak Labit case") had laid down the methodology to be followed in approaching a claim for NCR land. The bench in the Usang ak Labit [supra] there had said: [10] It is best, therefore, in NCR cases to approach such a claim broadly in the following steps: (a) Identification of the area alleged encroachment into the land over which NCR area land ('NCR land) is claimed; (ii) The reasons are: (a) If the area alleged encroachment is not or cannot be identified, there is nothing to be considered as possible encroachment." [46] In this case, the learned JC made the following finding on the effect of misidentification of the claimed NCR land in paragraph 46 of his Grounds of Judgement, as follows: "[46] After having heard the evidence of the witnesses and analysing the evidence that have been adduced I take the view that the misidentification of the area edged in red in the map marked as M was not fatal to the Plaintiffs" claim. In the trial, the Plaintiffs" have clearly maintained that they are pursuing the claim that Lot 4811 is their NCR land. From the evidence I agree that the evidence that had been adduced by the Defendant that the area edged in red comprises mostly of several lots in section 64 of Kuching Town District. Only a small portion of Lot 4811 as testified by DW2 was in the area edged in red. Based on the evidence, the misidentification in my view was most likely due to the mistake of PW3 who had wrongly identify the location to his counsel who subsequently drew the area edged in red. I accept the evidence of DW4 that he did not point out that area edged in red as Lot 4811 as he was experience and knowledgeable in reading map as he is a "pelukis pelan" by profession. The mistake, I believe was made by PW3. The other reason I should not dismiss the Plaintiffs" claim on account of their failure to identify the exact location is that part of Lot 4811 was also in the area edged in red, albeit just a small portion of it." [47] With due respect, we are not able to accept that conclusion. At the outset, we noted that the line on the Map edged in red and marked as 'M' was admitted by PW3 to have been drawn by her counsel, as can be seen in question no.147 during her crossexamination at page 169 of Record of Appeal, Volume 2A (Part B). There was no explanation as to how the red line could be drawn as such on the Map, when there was no evidence of any survey having been done by the Plaintiffs in order to be able to draw such a line as demarcating the area that was claimed by the Plaintiffs to be their NCR land. We are of the view that not much probative value ought to be assigned to the Plaintiffs' map edged with a line in red, as opposed to the map which the Defendants had produced and adduced in Court, which was a result of a proper survey done by the Defendants' witnesses in their capacity as officers of the Lands and Surveys Department of Sarawak, in Kuching. We are of the view that the failure of the Plaintiffs to properly and sufficiently identify their claimed NCR land was fatal to their claim against the Defendants. In the circumstances, we cannot agree with the finding of the learned JC in that regard. Be that as it may, nevertheless, this finding by us would not adversely impact on the overall decision of the learned JC which was that the Plaintiffs had failed to prove their NCR claim over the said NCR land in question. [48] The fact that it befalls on the shoulders of the Plaintiff to prove its NCR land's claim can be seen in the decision of Jusy ak Mesin & Ors v Pembinaan BLT Sdn Bhd & Ors [2013] 9 MLJ 543 where the court there held as follows: [6] In deciding the immediate issue, it must not be overlooked upon which party lays the burden of proof. Quite clearly it is incumbent upon the Plaintiffs to prove their case, including showing the exact location of the parcel of land over which they claim to have exercised native rights." [49] With those considerations in mind, having perused the Record of Appeal before us, it had become clear to us that the learned JC had directed himself correctly on the applicable legal principles and he had then correctly made findings of facts based on a proper application of those principles, on the available evidence that was adduced before him. [50] Even taken in totality, the evidence of the witnesses of the Plaintiffs taken together could not surmount the threshold in order to discharge the applicable standard of proof incumbent on the Plaintiffs, on the balance of probabilities. [51] On the second issue, which had pertained to the D-Book as evidence for the Defendants, the learned counsel for the Plaintiffs had complained that as the maker of the D-Book was not called a as a witness to tender the said document, then whatever was adduced in relation to that D-Book was nothing more than hearsay. We noted that the D-Book was placed in Part C documents, meaning that it was a non-agreed document between the parties. But it was in the record of appeal of this case that the same document, commonly referred to as the D-Book was admitted through DWS3 En. Bakeri bin Samsudin during trial. The same record also evinced that there was no objection to such admission of the D-Book as evidence. [52] In his witness statement at pages 109 to 113 ROA Vol. 2A (Part B) at page 112 therein, he was asked in Q15, as follows: "Is there any investigation and survey done on Lot 4811 Section 64 Kuching Town Land District during the settlement exercise?" DWS3 answered in the affirmative. When he was asked to explain his answer, DWS3 had testified, like so: "I refer you to Tab 62 of the Defendant's Bundle of Documents, this is the field book of survey, D-Book 5854. This book contains the investigation result or survey carried out at Lot 4811 Section 64 Kuching Town Land District in the year 1973." He later described the D-Book as a book which records the field survey conducted by the land surveyor in respect of a particular land that is [sic] authorised to be surveyed. [see answer to Q16 at page 113]. DWS3 was later required to produce that same D-Book in the course of his testimony given on behalf of the Defendants. It was in his evidence that he had access to and custody of the D-Book of which he had brought the original with him. He had also confirmed in Court that the document at Tab 10 DB3 and the document at Tab 62 DB1 were the same." [These can be seen at pages 215-216 of the same ROA.] [53] In that regard, at page 216 of the same ROA shows the following: "Miss Beatrice: Pray to mark Tab 10 DB3 marked as exhibit. Mr. Joshua: No objection. [Emphasis in bold by us] Court: Tab 10 DB3 converted to D1." [54] The learned counsel went on to cross-examine DWS3 on the D1 which is the D-Book, extensively. At the end of the trial, the learned JC had concluded that based on the D-Book, the Defendants had established that the claimed NCR land was at the time of the survey that was done in 1973 occupied by some Chinese persons who operated workshops on the said land. The Chinese persons were identified by their names in the D-Book. There was no indicia of the Plaintiffs' alleged cultivation, such as paddy field that was recorded in the D-Book. It was alleged by the Plaintiffs' witnesses that paddy was planted, among others, on the said claimed NCR land. There was therefore no evidence of continuous occupation by the Plaintiffs on the said land. Before us, the learned counsel submitted that the learned JC was too quick to assign reliance on the D-Book [D1] and its contents. In his written submissions, he had referred us to the then apex Court case of KPM Khidmat Sdn Bhd v Tey Kim Suie [1994] 2 MLJ 627 ("KPM Khidmat Sdn Bhd case"). We had occasion to refer to that case. We noted that it was a case on private document relating to a company's balance sheet. In our present appeal, we are dealing with a document of a different nature to the document obtaining in the KPM Khidmat Sdn Bhd case [supra] which had related to the balance sheet. [55] It must be noted that our instant appeal is concerned with D1 [the D-Book] a public document, being a document prepared by a public officer in the course of the performance and discharge of his public duty as a surveyor or settlement officer, with the Lands and Surveys Department of the Sarawak Government. We had sight of D1 and indeed it was a document evidencing the result of a survey on Lot 4811 that was conducted during a settlement exercise by the said Department in 1973. It was a detailed record as could be readily seen upon due perusal of D1. [56] Being a public document, D1 attracts a different kind of consideration in terms of how it is to be treated as a piece of evidence. That having been said, we have no quarrel with the principles as laid down in the Supreme Court case of KPM Khidmat Sdn Bhd (supra) as cited to us by learned counsel for the Plaintiffs. In this appeal before us, the D-Book was admitted as Defence exhibit D1, without any objections raised by the Plaintiffs' learned counsel, as evidenced by the record of appeal that had been alluded to by us, prior. As such the question of admissibility was a non-starter. What remained to be determined would be the weight to be given or attached to the D-Book as to its contents. In paragraph 15 of his written submissions, the learned counsel for the Plaintiffs stated, like so: "This is the reason why the maker of the D-Book, the surveying officer or the settlement officer ought to have been called to be able to explain the contents and thus prove the veracity of the documents. In the absence of the maker of the document, the learned JC ought to have been slow in adopting his own assumptions of the contents and what it meant. It is submitted that the Respondents did not properly lay the foundation for Exhibit D1 and the contents of Exhibit D1 is submitted to be unsatisfactorily proven. Further, no explanation was given as to why the maker of the document was not made available or if the maker had passed away." [57] Suffice for us to state here that such contention as contained in paragraph 15 of the written submissions of the learned counsel of the Plaintiffs would be relevant and indeed would serve the Plaintiffs' cause better, if the documents in question are not public documents. But D1 is public document. In that regard, a different set of consideration applies. [58] Section 74 of the Evidence Act 1950 defines what a public document is. It states as follows: "74 Public documents The following documents are public documents:

(a) documents forming the acts or records of the acts of-

(i) the sovereign authority;

(b) public records kept in Malaysia of private documents." [59] In the context of this appeal before us, the D-Book falls within the 'records of acts of (iii) public officers ...' as it is a record of acts done pursuant to a settlement exercise undertaken by the officers of the Lands and Surveys Department, Sarawak. Indeed learned counsel for the Plaintiffs had no objection to its admission as an exhibit for the defence. In other words, the Plaintiffs' challenge was aimed at the probative value to be attached to this piece of evidence by the trial Court. That challenge was done by way of cross-examination on the D1. [60] In the case of Kumar Digambar Singh v Ahmed Sayeed Khan AIR 1914 pg 11 the Privy Council had ruled that a public document is prima facie proof of its contents but may be rebutted by other evidence. In a book entitled Documentary Evidence in Australia at page 67 the learned author RA Brown explained the jurisprudence pertaining to a public document, in the following words: "As a general principle, a public document produced from proper custody, or a certified copy thereof, is evidence of its contents (see Wilton & Co v Phillips [1903] 19 TLR 390). There is no need to provide other verification as to the accuracy of the documents' contents, although they can be impeached by other evidence (see Irish Society v Bishop of Derry [1846] 12 Cl & F 641; 6 ER 1561). In keeping with the usual approach to documentary evidence, the fact that a public document can readily be admitted in evidence should have little bearing on the weight that may ultimately be attached to the material it contains by the court. In Wilton & Co v Phillips [1903] 19 TLR 390, Phillimore J rather bluntly stated: "A public document coming from the proper place or a certified copy of it is sufficient proof of every particular stated in it." [61] The question therefore has become, "Has the contents of D1, the D-Book been 'rebutted by other evidence', which may be advanced by the adverse party in this case?" We have perused through the records of appeal in this case, and in particular, the evidence of the witnesses for the Plaintiffs and we are of the considered view that there is nothing contained in those evidence that could rebut the contents of D1. The settlement exercise that was subsequently gazetted was done in 1973. According to the witnesses for the Plaintiffs, the claimed NCR land was worked on until the 1980s. If that factual circumstance was correct, it would be reasonable to surmise that surely the settlement officers would have met with the Plaintiffs working on the claimed NCR land and noted their presence on the said land. But there was no mention of the Plaintiffs being present on the Land. It was also stated by the Plaintiffs' witness that they planted paddy on the land. Again, there was no alluding to that fact in the D-Book. Instead, the Settlement Officer observed and recorded in the D-Book, the presence of workshops and a few Chinese on the land, otherwise known as Lot 4811. Indeed, even PW3 herself testified that she saw thick forest on the claimed land. She was then, according to her evidence, 13 years old. Even PW2 had agreed during her cross-examination, that the claimed land was jungle in 1960s. She had also agreed that there were houses belonging to Chinese persons on the said land and that the houses did not belong to her family. In her reexamination, when asked by learned counsel for the Plaintiffs on the discrepancies in her answers, PW2 had said that her brother [the late Hanapi] did not inform him anything, and that she had only found out about the evidence in Court during the proceedings. [see, page 160 ROA Vol. 2A [Part B]] With respect, it would be stretching it too far to conclude that the evidence of the Plaintiffs had successfully rebutted the contents of D1, the D-Book. [62] Premised on the above, we are, with respect, unable to accede to the contention by the learned counsel for the Plaintiffs pertaining to the issue surrounding the D-Book. [63] We noted too, that in the course of his written submissions, learned counsel for the Plaintiffs rued the fact that the $ 2^{\mathrm{nd}} $ Plaintiff had passed on before the trial had commenced, otherwise his prospective evidence could have enhanced the Plaintiffs' claim towards discharging their burden of proof. Indeed that was a lost opportunity, but that ought not to be allowed to lower or compromise the standard of proof that was legally incumbent upon the Plaintiffs' shoulders to discharge in order to succeed in obtaining Judgement in their favour. The Court must be satisfied that there is sufficient evidence of credible quality up to the required standard of proof before it is justified to allow a Plaintiff's civil claim. Anything short of the required standard does not warrant a favourable verdict in favour of the Plaintiff. [64] On the totality of evidence and the applicable legal principles in play, we find that the Plaintiffs had failed to establish the NCR over the said Land, otherwise known as Lot 4811. [65] They had failed to establish by clear evidence the exact locality, size and the state of the subject NCR land through the evidence of their witnesses. We agree with the learned JC that taken at the highest, the evidence so adduced by the Plaintiffs had failed to clear the required threshold of proof on the balance of probabilities. Although the standard of proof that needed to be discharged in a civil litigation is the lower of the two standards of proof known in law, that ipso facto does not necessarily mean that threshold is easily discharged. There must be credible evidence led by the Plaintiffs that can withstand the crucible of cross-examination by the adverse party. Mere conjectures and possibilities are never valid or useful as substitutes for evidence. Regardless of what the Judge may entertain in his mind as to what the decision ought to be, his thought-process in coming to the final decision must be addressed at the available admissible evidence that has been adduced within the four walls of his courtroom. Anything beyond that would be extraneous to the case and must not be judicially taken into account in coming to his decision. [66] The gaps left in the chain of proof on the Plaintiffs' side had not helped in establishing a more probable case for the Plaintiffs on the balance, when compared to that of the Defendants'. The learned JC was correct in finding, as he did, that there was insufficient evidence coming from the Plaintiffs' side to justify a Judgement to be entered in their favour in this case. It goes, both in terms of quantity as well as the quality of the evidence adduced. In the circumstances, we cannot say that the learned JC had been plainly wrong in coming to his conclusion at the end of the trial of this case before him. [67] The evidence led by the Plaintiffs' witnesses has been shown to be incoherent, and as such, it would be impossible to find, on the balance of probabilities what the size of the claimed NCR land actually was. Was it two acres as opposed to eight acres as claimed by the Plaintiffs? That being said, we are mindful of the submission by learned counsel for the Plaintiffs before us that at the very least, the Plaintiffs ought to be entitled to the two acres of the claimed NCR land based on the evidence of PW2. In light of the fact that the issue of the size of the claimed NCR land is a crucial part of the subject of this litigation, we find that it could not be severed, in the sense that the size must be proved on the balance of probabilities. In view of the state of the Plaintiffs' witness's evidence, with respect, we are unable to accede to the Plaintiffs' learned counsel's urging that the Plaintiffs be awarded two acres of NCR land, on account of the PW2's evidence. As alluded to by us earlier, the evidence of the PW2 herself was less than satisfactory to found a premise upon which a favourable conclusion may be made in favour of the Plaintiffs in that regard. Also, the evidence of PW2 itself was premised upon hearsay, which she had heard from 'the elders.' In fact her evidence had created uncertainty in respect of the actual size of the claimed NCR land claimed by the Plaintiffs. In other words, her evidence had not surmounted the threshold of proof required of a plaintiff in order that a judgment may be entered in his favour. The Statement of claim was never amended to reflect that such was a prayer that the Plaintiffs would be seeking. Neither was it pleaded as an alternative prayer, in the first place. We are therefore, unable to accede to such a submission by learned counsel for the Plaintiffs. [68] On that ground alone, this appeal ought to be dismissed. However, the learned JC had considered one step further and took into account the averment by the Defendants in that, even though the Plaintiffs may have succeeded in establishing their NCR rights over the said land (which the Defendants had denied) the Plaintiffs had abandoned those rights by their conduct. His conclusion on this issue can be seen in paragraph 55 of his Grounds of Judgement, like so: "As regards what is meant by occupation of the said land, it is clear from decided authorities that even though there is no requirement for the Plaintiffs to prove their physical presence on the said land to prove occupation, they must nevertheless prove that they still cultivate the land and exercise some form of controls over the said land. (see the case of Madeli bin Salleh v Superintendent of Lands and Surveys, Miri Division [2005] 5 MLJ 305." In this case, the Plaintiffs said that the $ 2^{\mathrm{nd}} $ Plaintiff had continued to work on and cultivated the said land until 1980s, but yet in 1973 when the settlement exercise was carried out by the Defendants, the land was occupied by Chinese who had workshops on the land. The D-Book had shown the names of the Chinese persons on the land at the material time. The Plaintiffs' names were not shown in the D-Book. There was nothing in the evidence led by the Plaintiffs to counter this independent public documentary evidence [the D1- the D-Book] which are officially documented and kept as part of the survey report by the relevant department of the Sarawak State Government. As such, the learned JC was of the view that even if the Plaintiffs had proven NCR over the land, such right had been abandoned because of the existence of the Chinese and their workshops on the said land, which also showed that the Plaintiffs had no effective control over the said land, granted that there need not be physical control over the claimed land. [69] On the available evidence before him, we could not say that the learned JC was plainly wrong on that issue of abandonment. The Plaintiffs' evidence could not fulfil the requirements inherent in the definition of continuous control over the NCR land, even within the wider meaning assigned to such term in the case of Madeli bin Salleh v Superintendent of Lands and Surveys, Miri Division [supra]. [70] In the upshot, we could not see how we ought to invoke our appellate powers to disturb the decision of the learned JC. We would refer to the observation by Lord Pearce in the case of Onnasis & anor v Vergottis [1968] 2 Lloyds Rep 403, on the proper invocation of appellate powers of the Court of Appeal of England. At page 430 the learned Law lord had this to say: "The function of a Court of Appeal is to set aside a Judgement that should not be allowed to stand because it occasions a miscarriage of justice. That wrong or miscarriage of justice may consist of a Judgement in favour of the wrong party. It may also consist of a failure in the judicial process to which both parties are entitled as of right, namely, the weighing of their respective cases and contentions. Such failure may constitute a wrong or miscarriage of justice even though it may appear that the appellant may in the end fail to secure a Judgement in his favour. But the fact that the right party seems to have succeeded in the court below will naturally make a Court of Appeal extremely reluctant to interfere, and it would only do so in the rarest cases. Such matters are questions of degree." [71] It is therefore inevitable that an appellate court, such as this Court, will only interfere with the trial court's decision if it has been convinced by the appellant appearing before it, that the impugned decision has been one that is plainly wrong, such that no reasonable tribunal could have arrived at the impugned decision as did the trial court. That 'plainly wrong test' is attributable, at least in the context of applicable local jurisprudence, to the decision in the apex Court case of Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97. [72] Applying the above test to the evidence and circumstances before us pertaining to this appeal, we saw no occasion why we should interfere with the learned JC's decision and findings. Suffice to say that the learned JC's decision could not be described, after due analysis by us, as one that was plainly wrong, such that our appellate intervention was necessary in order to avoid an injustice being occasioned to the Plaintiffs. It appears to us that the right party seemed to have succeeded in the court below and that the decision of the learned JC has not been one that was plainly wrong. [73] We are satisfied that the learned JC was correct when he dismissed the Plaintiffs' claims based on the following grounds, namely: [1] The Plaintiffs have failed to sufficiently prove the necessary evidence of the location of the said NCR land as evidenced in the misidentification of the area claim; [2] The Plaintiffs were not able to clearly identify the size of the said land; and [3] Even if there was a legitimate claim over an area of less than two acres, the Plaintiffs have abandoned the NCR prior to the settlement exercise. [74] In light of our concurrent finding with the learned JC that the Plaintiffs had failed to establish that they had created NCR over the claimed land in question, it must follow that they were not entitled to all the reliefs that were prayed for against the Defendants in this action. Conclusion [75] Premised on the above, were of the considered view that there is no merit in this appeal that would warrant us to invoke our appellate power to disturb the decision of the learned JC. We saw no appealable errors in the Grounds of Judgement of the learned JC. We therefore affirm his decision and dismiss this appeal with no orders as to costs. [76] We order that the deposit be refunded to the Plaintiffs, being the Appellants in this appeal. Dated: 17 October 2018. Sgd. ABANG ISKANDAR BIN ABANG HASHIM Judge Court of Appeal, Malaysia Parties appearing: For the Appellant: Mr. Baru Bian (Mr. Joshua Baru with him); Messrs. Baru Bian Advocates. For the Respondent: Mr. Mcwillyn Jiok (Miss Beatrice Minda anak Winston Bale with him); State Legal Officer, Sarawak State Attorney-General's Chambers. Cases referred to:

Abu Bakar bin Pangis & Ors v Tung Cheong Sawmill Sdn Bhd & Ors [2014] 5 MLJ 384.

Bisi ak Jinggot @ Hilarion Bisi ak Jenggut v Superintendent of Land & Survey, Kuching Division & Ors [2013] 6 CLJ 805

Director of Forest, Sarawak & Anor v. TR Sandah Ak Tabau & Ors [2017] 2 MLJ 218.

In re H (Minors) [1996] AC 563 at 586.

Jusy ak Mesin & Ors v Pembinaan BLT Sdn Bhd & Ors [2013] 9 MLJ 543.

Kogilamah a/p Malayan v Aieyapan a/l Tulukanam [2016] 6 MLJ 663.

KPM Khidmat Sdn Bhd v Tey Kim Suie [1994] 2 MLJ 627.

Kumar Digambar Singh v Ahmed Sayeed Khan AIR 1914.

Miller v Minister of Pensions [1947] 2 All ER 372.

Onnasis & anor v Vergottis [1968] 2 Lloyds Rep 403.

Ranggong ak Jenau & Ors v BLD Resources Sdn Bhd & Ors and another appeal [2017] 5 MLJ 700.

Sinnaiyah & Sons Sdn Bhd v. Damai Setia Sdn Bhd [2015] 7 CLJ 584.

SOP Plantation (Suai) Sdn Bhd v Ading Ak Layang & Ors [2004] 4 MLJ 180.

Subramaniam v PP [1956] W.L.R 965.

Superintendent of Land & Surveys, Bintulu v Nor anak Nyawai & Ors [2005] 3 CLJ 555.

Superintendent of Lands and Survey Department, Sibu Division and Anor v Usang ak Labit & Ors and another Appeal [2014] 3 MLJ 519.

Superintendent of Land & Surveys, Miri Division & Anor v Madeli bin Salleh (suing as Administrator of the Estate of the deceased, Salleh bin Kilong) [2008] 2 MLJ 677. Note: This copy of the Court's Grounds of Judgment is subject to formal revision.