Hajemi Bin Din v Elite Agriculture Sdn. Bhd. (C-02(NCvC)(A)-505-03/2021)

HAJEMI BIN DIN (NRIC No.: 740609-06-5511)

Penghuni-penghuni lain yang menduduki di atas tanah H.S. (D) 9781 No. PT 9492 Mukim Bera, Daerah Bera Negeri Pahang … APPELLANTS AND ELITE AGRICULTURE SDN. BHD. ... RESPONDENT (Company No.: 866408-P) [In The High Court Of Malaya In Temerloh In The State Of Pahang Darul Makmur Originating Summons No.: CB24NCvC-140-10/2020 In the matter of H.S.(D) 9781 No. PT 9492 Mukim Bera, Daerah Bera Negeri Pahang And 29/04/2022 11:54:54 C-02(NCvC)(A)-505-03/2021 Kand. 39 S/N eGUstnZPekZeM0tiy3Y1g 2 of 44 In the matter of Order 89 Rule 1 of the Rules of Court 2012 And In the matter of Order 45 Rule 3 of the Rules of Court 2012 Between Elite Agriculture Sdn. Bhd. ... Plaintiff (Company No.: 866408-P) And

Hajemi Bin Din (NRIC No.: 740609-06-5511)

Penghuni-penghuni lain yang menduduki Di atas tanah H.S. (D) 9781 No. PT 9492 Mukim Bera, Daerah Bera Negeri Pahang … Defendants] CORAM: LEE SWEE SENG, JCA HADHARIAH SYED ISMAIL, JCA SUPANG LIAN, JCA S/N eGUstnZPekZeM0tiy3Y1g 3 of 44 JUDGMENT OF THE COURT [1] The main question for decision in this appeal is whether a person who is a registered lessee of a piece of land may proceed to obtain a vacant possession order under the summary procedure in O 89 Rules of Court 2012 (“ROC 2012”) against the occupiers of the land who claimed to be aborigines of the Semelai tribe and who asserted that they have been occupying the land for six generations and thus have customary rights over the land. [2] Related to that issue is whether the principle of indefeasibility of title is nevertheless subject to claims of customary rights or tenure over the land. [3] The plaintiff in the High Court below is the registered lessee for 99 years of a lease over the land held under H.S.(D) 9781 No. PT 9492, Mukim Bera, Pahang (“the land”) which it had obtained from the registered proprietor of the freehold title to the land, one Sri Jengka Sdn Bhd. The land is about 903 acres. [4] The registered proprietor had obtained the title to the land after a successful application via its letter dated 12.3.2013 to the Pejabat Daerah dan Tanah Bera. The registered proprietor had in turn leased it to the plaintiff for the purpose of clearing the land for oil palm cultivation. [5] It was not disputed that around June and July 2013 the plaintiff’s representative tried to enter the land but was prevented by the defendants. The first defendant is the headman of the community and the second defendant had been named as occupiers on the land. The plaintiff S/N eGUstnZPekZeM0tiy3Y1g 4 of 44 alleged that the defendants had refused to deliver vacant possession of the land to the plaintiff. At the High Court [6] The defendants in their affidavit to oppose the summary procedure invoked by the plaintiff under O 89 ROC 2012 had averred that the land is part of the customary land of the Semelai people and some transcript of a phone conversation between the then Chief Minister of Pahang, Dato’ Sri Diraja Haji Adnan bin Haji Yaakob with the first defendant was produced where an acknowledgment was made that a huge part of the land is customary land. [7] The High Court held that the National Land Code (“NLC”) provides for registered interest and title to land which would be indefeasible against the whole world unless there are vitiating circumstances proved like fraud, forgery, void and insufficient instrument or that the alienation or transfer was invalid or unlawful. [8] The High Court then went on to observe at paragraph [8] of its Judgment that the law with respect to squatters or illegal occupiers is clear in that they do not have any right to occupy the land and the cases of Sidek bin Haji Mohamad & 461 Ors v Government of the State of Perak & Ors [1982] 1 MLJ 313 and Tetuan Tokoyaki Property Sdn Bhd v Sam Kok Sang & Ors [2001] 4 CLJ 97 were cited as authority for the said proposition of law. A passage was also quoted from the case of Tradewinds Corridor Sdn Bhd lwn Azmi Awang Kecik & Yang Lain [2015] 1 LNS 486 to the effect that the plaintiff who is the registered lessee has his interest protected under s. 340(3) of the NLC and that trumps the S/N eGUstnZPekZeM0tiy3Y1g 5 of 44 rights and interests of the defendant whose interest was not registered against the title. [9] The learned High Court Judge was of the view that the defendants merely asserted that the land is customary land without any documentary evidence substantiating that assertion. He further noted that there was no location plan of the land to show specifically the size of the land claimed to be customary land and as such is a bare allegation. There was also no letter from the State Authority to confirm that the land is part of customary land. [10] The Learned High Court Judge also observed that the defendants did not provide any evidence that they are the aborigines of the Semelai tribe and that the first defendant have been appointed by the Jabatan Kamajuan Orang Asli Malaysia (“JAKOA”) as the Tok Batin (village head). He also noted that the transcript of the conversation with the previous Chief Minister of Pahang was on 6.8.2015 and until the date of filing of the Originating Summons (“OS”) in October 2020, which is some 5 years later, the State Authority/State Government had not returned the alleged customary land to the native people. [11] The Learned High Court Judge was of the view that up to the stage of the filing of the OS, it is clear that the plaintiff is the registered lessee of the land and quoted the dicta of the Court in Lee Toon Hian v Kok Siew Tong & Ors [2019] 1 LNS 64 as support for the fact that these occupiers are trespassers or squatters as follows: “….nor the Perak State Authority had ever given any licence, consent or permission to the Defendants to occupy the said land. It is therefore this S/N eGUstnZPekZeM0tiy3Y1g 6 of 44 Court’s finding that the Defendants are trespassers or squatters on the Plaintiff’s land.” [12] The High Court was of the view that the defendants having occupied the land without any license or consent of the State Authority/State Government, the said occupation was a trespass on the land in violation of the plaintiff’s indefeasible lease interest in the land under s. 340 of the NLC. [13] The Learned High Court Judge then confidently concluded that there was no triable issues that the defendants had raised which merit a trial and so a vacant possession order was granted summarily on 16.2.2021 to the plaintiff under O 89 r 1 ROC 2012 together with costs of RM10,000,00 subject to allocator. Before the Court of Appeal [14] The defendants, being aggrieved by the decision of the High Court, had appealed to this Court principally on the following grounds:

(a) That the summary procedure under O 89 ROC 2012 is not meant for cases where the occupiers have been in occupation of the land even before the title is issued to the registered proprietor;

(b) The NLC recognises the right of the aboriginal people to occupy land held under customary rights or tenure and all registered interest and title are subject to such rights, if proved; and S/N eGUstnZPekZeM0tiy3Y1g 7 of 44

(c) That where there is a dispute on whether the land is subject to customary rights or tenure as asserted by the defendants as in this case, the action cannot be by way of an OS under the summary procedure and instead a writ action has to be commenced. [15] The parties shall be referred to as they were in the High Court as plaintiff and defendants. Whether the defendants have discharged their burden of proof that they have an arguable case that they are not trespassers ab initio such that the summary procedure under O 89 ROC 2012 shall not be invoked [16] O 89 r 1 ROC 2012 is clear in its purport in that it is only suitable to be invoked in cases of trespassers ab initio and not in a case where the occupiers have been in possession of the land either with the agreement, license or consent of the previous owner of the land. Here there was no previous registered owner of the land but that when title was issued to the first registered proprietor in 2013, the registered proprietor had subsequently allowed the plaintiff to enter the land for the purpose of clearing it for oil palm cultivation vide a letter dated 14.6.2013. When in June and July 2013 the plaintiff tried to enter upon the land, they were prevented by the defendants from doing so and so the plaintiff lodged a police report. [17] The registered proprietor subsequently leased the land to the plaintiff whose lease interest was duly registered against the title on S/N eGUstnZPekZeM0tiy3Y1g 8 of 44 2.3.2015. It was a leasehold interest of 99 years from 25.9.2014 to 24.9.2113 as reflected in the title. [18] The plaintiff’s subsequent attempts to enter the land was also met with opposition and according to the plaintiff, its people were chased away and threatened by the defendants. The plaintiff averred that the defendants had barricaded up the entry to the land. Further attempts to enter the land were made but each time it was met with opposition from the defendants and further police reports were lodged by the plaintiff. [19] The plaintiff verily believed that the defendants are trespassers bent on denying the plaintiff its legal rights as registered lessee of the land. The plaintiff further averred that the land had been trespassed upon by the defendants and that they have usurped the plaintiff’s right to the land. The plaintiff believed that the land had been exploited by the defendants for profit and that the defendants do not stay there. [20] The plaintiff further averred that the defendants are not the aboriginal people (Orang Asli) and that they do not forage for food or hunt in the land. According to the plaintiff, these occupiers have instead conspired to “sell” the land to other businessmen for them to plant their oil palm trees on the land and that they are in cahoots with unknown “buyer” of the land. [21] The defendants on the other hand, through an affidavit affirmed by the first defendant averred as follows:

(a) He is the Tok Batin or Village Head of the Orang Asli in Kampung Orang Asli Lubuk Perah and that the defendants S/N eGUstnZPekZeM0tiy3Y1g 9 of 44 occupiers in the OS are the original people of the Semelai tribe from the Proto Malay in Peninsular Malaysia;

(b) He said that the defendants and their forebears were born and bred, grew up and lived as an Orang Asli in the land of about 5472 acres in Kampung Lubuk Perah, Bera Selatan Satu, Pahang Darul Makmur and its surrounding areas (customary land) for 6 generations which is more than 100 years;

(c) He averred that they have a common law right on their customary land to move freely on the land and to forage for food without any interference from third parties;

(d) He had been appointed by the JAKOA as the Tok Batin and there has been acknowledgment of their occupation of the land by the regular visits of officials from the Ministry of Health and by the JAKOA;

(e) He said that the defendants have communal customary rights over the land which had been recognised by the State Government, the State Director of Land and Mines and by Sri Jengka Sdn Bhd before the title was issued;

(f) He referred to a tele-conversation on 6.8.2015 with the then Chief Minister that only 200 acres of the customary title to the land would be used by Sri Jengka Sdn Bhd and the rest would be officially recognised as communal customary land S/N eGUstnZPekZeM0tiy3Y1g 10 of 44 and a copy of the transcript of the tele-conversation was produced;

(g) He also averred that the plaintiff should have joined the State Director of Land and Mines and the State Government as parties so that the issues that have arisen can be resolved fully and finally; and

(h) He also alleged that there had been a wrongful issuance of the title to Sri Jengka Sdn Bhd as the land is held under customary title and that the plaintiff had trespassed onto their land. [22] In Salim bin Ismail & lain-lain lwn Lebbey Sdn Bhd (No 2) [1997] MLJ 4 at page 6 it was held that: “The summary procedure under O 89 is governed by the same principle as those under O 14 of the Rules of the High Court 1980. To entitle a defendant to a trial, all he needs to do is to show that there is a triable issue of law or fact. It is only in clear cases of trespass that a summary order can be made under O 89.” (emphasis added) [23] The plaintiff had denied that the defendants belong to the Semelai tribe of Orang Asli recognised under the Aboriginal Peoples Act 1954 (the 1954 Act) and that they have “community title by custom” by operation of common law over the land. In the light of the denial, this issue as to the defendants’ tribal identity would have to be proved in a trial and cannot be resolved by affidavit evidence alone. If the defendants are of the Semelai tribe, then the Court of Appeal in Ketua Pengarah Jabatan Hal Ehwal Ehwal Orang Asli & Anor v Mohamad bin Nohing (Batin Kampung S/N eGUstnZPekZeM0tiy3Y1g 11 of 44 Bukit Rok) & Ors and another appeal [2015] 6 MLJ 527, in the judgment of Justice Vernon Ong JCA (now FCJ), had agreed with the High Court finding of fact that the Semelai people are an identifiable native aborigine group who have existed in the Bera region for a very considerable period of time as follows: “[45] According to renowned Malaysian historian Hj Buyong Adil in his Sejarah Pahang published by Dewan Bahasa dan Pustaka in 1984, the ancestors of today’s Orang Asli groups lived in Pahang since the Middle Stone Age period. According to the expert report of Dr Collin G Nicholas, the presence and occupation of the Semelai people in the Bera Drainage Area, ranging from the mouth of the Bera River at Kuala Bera, along the whole stretch of the Bera River and into Tasek Bera is acknowledged in documentary materials from various sources. There were also several earliest available maps in the area which show or indicate the presence and occupation of the Semelai people in the Bera Drainage Area.” [24] Even before the filing of the OS by the plaintiff on 8.10.2020, the solicitors for the defendants had written to Sri Jengka Sdn Bhd on 31.7.2015 to inform them that the defendants are of the Semelai tribe and that they have been in occupation of the land for at least 6 generations and that the continued occupation of the land gives the defendants a community title by custom and further that the defendants have acquired rights over the land. [25] There was another letter sent by the solicitors for the defendants dated 9.3.2016 to the plaintiff reiterating the contents of the previous letter of 31.7.2015 that was issued to the registered proprietor of the land. S/N eGUstnZPekZeM0tiy3Y1g 12 of 44 [26] The plaintiff by a letter dated 18.3.2016 quickly denied the contents of the letter of the defendants’ solicitors of 9.3.2016. In the light of the assertions and denials, there is no way in which this dispute over identity and prior occupation can be resolved other than through a trial begun by a writ action and not a summary procedure via an OS. [27] The conflict in affidavit evidence is not on the face of it implausible and it leaves serious questions to be tried and clearly such a conflict is not suitable for disposal on affidavit evidence. [28] O 28 r 8(1) of the ROC 2012 itself provides that: “(1) Where, in the case of a cause or matter begun by originating summons, it appears to the Court at any stage of the proceedings that the proceedings should for any reasons be continued as if the cause or matter had been begun by writ, it may order the proceedings to continue as if the cause or matter had been begun by writ…”. (emphasis added) [29] Whilst that is a discretion that the Court may exercise, it is neither neat nor elegant to convert the 2 affidavits filed by the plaintiff and the affidavit in opposition filed by the defendants into pleadings and to give consequential directions for case management. Moreover, this is a case where the plaintiff may want to bring in the State Director of Land and Mines and the State Government for having issued the title without due compensation being paid to the defendants if indeed it is true that the defendants had been in occupation of the land for some 6 generations before the land was alienated to the registered proprietor. S/N eGUstnZPekZeM0tiy3Y1g 13 of 44 [30] Even if the plaintiff is not so minded to join the State Director of Land and Mines and the State Government, the defendants may want to do so if they can show that they had been wrongfully deprived of their land by the State Director of Land and Mines and the State issuing a title in the name of the registered proprietor who then leased it to the plaintiff, all without any compensation to the defendants. [31] O. 15 r 3(1) ROC 2012 provides that where a defendant to an action who makes a counterclaim against the plaintiff alleges that any other person (whether or not a party to the action) is liable to him along with the plaintiff in respect of the subject matter of the counterclaim, or claims against such other person any relief relating to or connected with the original subject matter of the action, then, subject to rule 5(2), he may join that other person as a party against whom the counterclaim is made. [32] If indeed the defendants have customary rights over the land, then it would appear that the title to the land had been wrongly and unlawfully issued to the registered proprietor and surely the defendants are entitled to prosecute their claim for being unlawfully deprived of the land without proper compensation from the State. [33] Such a counterclaim by the defendant is not possible in an OS action and indeed not appropriate in any event as there would be disputes on law and facts that would have to be thrashed out in a writ action where the proper discovery application may be made against the parties and where witnesses are called and cross-examined. [34] In the light of the conflict in affidavit evidence, the summary procedure for evicting occupiers of the land cannot be invoked. The S/N eGUstnZPekZeM0tiy3Y1g 14 of 44 following are matters, by no means exhaustive, that can only be resolved at a trial begun by a writ action where discovery applications may be made and witnesses called and cross-examined:

(a) Evidence on whether the defendants are Semelai and how long the defendants and their forebears have been on their land with respect to recognition by the authorities including the appointment of Tok Batin in the past and present and tomb stones as well as places of cultural, spiritual and religious significance and the like;

(b) Whether the defendants enjoy customary rights or tenure over the land and have customary community title to the land;

(c) Whether the land is an aboriginal area or an aboriginal inhabited place in that they have been staying in and tending to and harvesting their orchards and harvesting the forest produce or foraging for food and hunting there without any break in continuity for some 6 generations;

(d) Whether archival and expert evidence is available on the socio-economic aspects of the Orang Asli community of the Semelai and whether there are cultural distinctives of the Semelai on the land;

(e) Whether there are aerial photographs that could shed some light on the activities on the land in the past years before the title was issued; and S/N eGUstnZPekZeM0tiy3Y1g 15 of 44

(f) Whether the exercise of issuing the title to the land was properly undertaken vis-a-vis the presence or absence of the defendants on the land and surveys that may have been taken. [35] Evidently this is not a clear case of trespass and that the defendants have shown that there are triable issues of law and fact. [36] We are of the opinion that the conflict in affidavit evidence can only be resolved at the trial begun by a writ action and not via a summary procedure under O 89 ROC 2012. With respect, the learned High Court Judge erred in law and in fact when he concluded that there were no issues worthy of a trial and that the summary procedure under O 89 ROC 2012 was rightly engaged for the purpose of an eviction order by the plaintiff as a registered lessee against the defendants, whom the learned Judge found, are in illegal occupation of the land. [37] As O 89 ROC 2012 is a special summary procedure for obtaining an eviction order, once it is found that the summary procedure is inappropriate as we do so find here, the proper order is not to convert the OS into a writ, unless some hardship would befall the plaintiff in a case for example, where limitation has set in, but to dismiss it with liberty to the plaintiff to file a writ action. [38] It would be an anomaly to have a writ action with an intitulement referring to O 89 ROC 2012 when such a procedure is by way of an originating summons. A writ under O 89 ROC 2012 would be a strange creature indeed — a bundle of contradictions! S/N eGUstnZPekZeM0tiy3Y1g 16 of 44 [39] It is instructive to refer to the Supreme Court case of Bohari Talib & Ors v Pengarah Tanah & Galian Selangor [1991] 1 CLJ (Rep) 48 where the respondent claimed under O 89 of the Rules of the High Court 1980 (“RHC 1980”) for the recovery of possession of some lands. The provisions of O 89 in both the ROC 2012 and the RHC 1980 are identical. The subject lands had been occupied by the appellants and their forefathers and that between 1971 and 1976, the appellants alleged that they had applied to the state authority for titles to the said lands. On 4.9.1980 the Selangor State Executive Council approved the alienation of the lands to the appellants. For the first three years, temporary occupation licences (TOL) were issued after which separate titles were to be issued. [40] After the expiry of the TOL period in 1984, the appellants argued that they had acquired a legal right or expectation to be issued with land titles. However, the respondent then thought it fit to hand the lands over to the Federal Land Consolidation and Rehabilitation Authority (FELCRA), a statutory body whose main function was to rehabilitate abandoned agricultural land. The respondent sued the appellants to recover possession of the lands under the summary procedure under O 89 of the then ROC 1980. [41] The Supreme Court opined at p. 52 as follows: “In our view, the appellants in this particular case have sufficiently shown by affidavit evidence that they have an arguable case in that they and some, if not all the other farmers have occupied the land for three years under licence and thereafter have remained in occupation with the continued consent of the State Government by virtue of the 1980 alienation already approved prior to the TOLs. The learned State Legal Adviser, Encik Hishamuddin for the respondent, pointed out that TOLs and therefore consent S/N eGUstnZPekZeM0tiy3Y1g 17 of 44 were given only up to 1983. After that no TOL was issued to indicate absence of consent. In our view, the alleged continued consent of the State Government to their occupation notwithstanding the expiry of the TOLs, is one of the serious issues to be tried. The case for the appellants is that they were already in occupation with consent prior to 1981 and the grant of the TOLs from 1981 to 1983 is merely part of the chain of events supporting the existence of an approval of alienation of the lands to them by the state authority under s. 42 of the National Land Code, and pending issue of titles under s. 77(2) they are entitled to remain on the land not as squatters but as of right. The approval of state authority as exhibited by the appellants, would appear to have been made on 4 September 1980, according to the letter of the Collector of Sabak Bernam dated 25 October. The opening paragraph of the letter at p. 95 of appeal record reads: Merujuk kepada perkara tersebut di atas, dimaklumkan bahawa permohonan tuan/puan ke atas tanah di rancangan tersebut di atas telah diluluskan oleh Majlis Mesyuarat Kerajaan Negeri pada 4 September 1980. We are therefore of the opinion that there are issues to be tried in this case which are not suitable to be decided by affidavit evidence. We accordingly agree that this case should not be dealt with summarily under O. 89. Counsel for the appellants has rightly referred to the position of licensees holding over as distinct from squatters in the following judgment of Lawton J in McPhail v. Persons Names Unknown [1973] 3 AER 393 at 401: It follows, in my judgment, that squatters were never able to enlist the aid of the Court of Chancery to resist a writ of possession and they cannot now. The position of tenants and licensees holding over may be different. I have not thought it necessary to consider the jurisdiction of the Court to stay execution in such cases.” (emphasis added) S/N eGUstnZPekZeM0tiy3Y1g 18 of 44 [42] The Supreme Court therefore allowed the appeal with costs and set aside the order of the High Court with liberty to the respondent to proceed afresh with the claim for possession by writ. [43] In Chiu Wing Wa @ Chew Weng Wah & 3 Ors. v. Ong Beng Cheng [1994] 1 CLJ 313, the respondent was the successful bidder of the properties at a public auction conducted under the NLC and he had terminated the monthly tenancies by separate notices to quit on all the four appellants, and demanded delivery of vacant possession. When the appellants failed to comply with the said notices, the plaintiff filed an application by originating summons for vacant possession, which was granted by the High Court. On appeal, the Supreme Court allowed the appeal and set aside the order of the High Court and observed at p. that: “It should be noted that O. 89 has its origin in O. 113 of the English Rules, and the principle behind McPhail v. Persons, Names Unknown [1973] 3 AER 393 is clearly to limit the operation of the summary procedure of 1989 to trespassers pure and simple, whether known or unknown. In our view, the summary procedure should not be allowed to apply where the entry to the land in the first instance is lawful, for in such a situation, there must necessarily be triable issues on the facts and the law for determination by evidence viva voce. In this connection we approve the judgment of Wan Adnan J. in Hotel Ambassador (M) Sdn. Bhd. v. Seapower (M) Sdn. Bhd. [1991] 1 MLJ 221 as discussed by Edgar Joseph Jr. J. (as he then was) at p. 224, and upheld by the Supreme Court in (1991) 1 MLJ 404.” (emphasis added) [44] The question, at the first level at least, is not whether the plaintiff as a registered lessee is entitled to vacant possession of the land but whether the summary procedure under O 89 ROC 2012 is available based S/N eGUstnZPekZeM0tiy3Y1g 19 of 44 on the given facts. In Farek Urep & Ors v. Ehsan Bina Sdn Bhd & Anor [2017] 3 CLJ 420 the Court of Appeal observed as follows: “[9] It is our view that the appellants had demonstrated an arguable case that they could occupy the said lands with the acquiescence of the predecessors in title of the respondents and raised several triable issues which were not apt to be dealt with under O. 89 of the Rules of Court [45] We would similarly say that the defendants had demonstrated an arguable case that they could occupy the land where they and their forebears had been living in and whether or not they have a customary community title to the land or have any customary right or tenure over the land is not apt nor appropriate to be decided summarily. [46] In yet another case decided by the Court of Appeal in Lee Wee Choong & Anor v Teh Ching Yan & Anor [2018] 1 LNS 1997, it was observed that: “….there are real issues or questions that require trial and that the present summary procedure under O. 89 is grossly unsuitable on the present facts. As with other summary procedures, the orders sought can only be properly granted where it is plain and obvious that there are no triable issues. That is not the case here.” [47] We would say quite confidently that based on the facts as they present themselves here, the eviction order sought can only be properly granted where it is plain and obvious that there are no triable issues. The fact that there are multiple issues of fact and law would become more obvious as we explore further the ramifications of the assertions of the S/N eGUstnZPekZeM0tiy3Y1g 20 of 44 parties in the light of the relevant statutes in the 1954 Act, the Land Acquisition Act 1960 and the NLC vis-a-vis the issue of customary rights or tenure to the land. Whether the State may issue a title to allow a person to be a registered proprietor over land occupied by a community of aborigines without prior compensation [48] If it is indeed true that the defendants are aboriginal people of the Semelai tribe and that they have been in continuous occupation of the land to which a title has now been issued to the registered proprietor who had in turn leased it to the plaintiff under a registered leased under the NLC, where then do the defendants stand? [49] In a matter where everyone affected is before the Court, the rights and liabilities of the various parties may be resolved fully and finally. The plaintiff may have to bring in not just the Director of Lands and Mines but also the State Government as well as the registered proprietor from whom the plaintiff had obtained a registered lease of 99 years. [50] Even if the plaintiff is not minded to, it behoves the defendants to so bring these parties as defendants in a cross action or counterclaim as referred to earlier, on an abundance of caution. [51] The present state of our law with respect to aboriginal land or land inhabited by the aborigines under the 1954 Act is that they cannot be deprived of the land without proper compensation. The Court of Appeal in Yebet bt Saman & Ors (sued on behalf of himself and 76 other people of Semaq Beri as listed in Appendix A) v Foong Kwai Long & S/N eGUstnZPekZeM0tiy3Y1g 21 of 44 Ors [2015] 2 MLJ 498 had reaffirmed the above proposition of law first propounded by the Court of Appeal case of Kerajaan Negeri Johor & Anor v Adong bin Kuwau & Ors [1998] 2 MLJ 158. [52] In Adong bin Kuwau’s case (supra) the Court of Appeal had placed the rights of the aboriginal peoples under common law to live on (as in settlement) and off (as in harvesting forest produce and foraging for food) the land (whether it be aboriginal land or land inhabited by them) to be complementary to their rights under the 1954 Act. The Court of Appeal at p 162-163 quoted the High Court’s judgment reported in [1997] 1 MLJ 418 at p 430: “My view is that, and I get support from the decision of Calder s case ( Calder v A-G of British Columbia (1973) 34 DLR (3d) 145) and Mabo s case ( Mabo & Ors v State of Queensland & Anor (1986) 64 ALR 1), the aboriginal peoples rights over the land include the right to move freely about their land, without any form of disturbance or interference and also to live from the produce of the land itself, but not to the land itself in the modern sense that the aborigines can convey, lease out, rent out the land or any produce therein since they have been in continuous and unbroken occupation and/or enjoyment of the rights of the land from time immemorial. I believe this is a common law right which the natives have and which the Canadian and Australian courts have described as native titles and particularly the judgment of Judson J in Calder s case at p 156 where His Lordship said the rights and which rights include the right to live on their land as their forefathers had lived and that right has not been lawfully extinguished. I would agree with this ratio and rule that in Malaysia the aborigines common law rights include, inter alia, the right to live on their land as their forefathers had lived and this would mean that even the future generations of the aboriginal people would be entitled to this right of their forefathers.” S/N eGUstnZPekZeM0tiy3Y1g 22 of 44 [53] Again the Court of Appeal at p 163 quoting the High Court’s judgment at p 430-431: “These people live from the hunting of animals in the jungle and the collection of jungle produce. Those are the only source of their livelihood and income. Can these rights be taken away by the government without compensation? At a glance this could be done, but upon looking further and deeper, it is my opinion that compensation ought to be made. This can be discerned from s 11 of the Act, guarantees adequate compensation for land, bearing rubber or fruit trees claimed by the aboriginal people that is alienated. It is clear to me that the land on which those trees are planted is either a reserve land for the aboriginal people or an area where they had a right to access, which is a jungle reserve. In the first case, there is no problem because it is their reserved land. In the second case, it is clear that the land belongs to the state but they were planted by the aborigines. As such, adequate compensation must be made for these trees but not for the land. In the present case, I am of the view that adequate compensation for the loss of livelihood and hunting ground ought to be made when the land where the plaintiffs normally went to look for food and produce was acquired by the government. The compensation is not for the land but for what is above the land over which the plaintiffs have a right. The Act does not limit the aborigines rights therein. In order to determine the extent of aboriginal peoples full rights under law, their rights under common law and statute has to be looked at conjunctively, for both these rights are complementary, and the Act does not extinguish the rights enjoyed by the aboriginal people under common law.” [54] In Kerajaan Negeri Selangor & Ors v Sagong Tasi & Ors [2005] 6 MLJ 289 the Court of Appeal took the issue of compensation a notch further and declared that the aborigines of West Malaysia are entitled to compensation under the Land Acquisition Act 1960 if they have been deprived of their land. The Court of Appeal observed as follows: S/N eGUstnZPekZeM0tiy3Y1g 23 of 44 “[44] Now, it is all very well to say that the first [Selangor State Government] and/or fourth defendants [Government of Malaysia] must pay adequate compensation. But how does the court work out adequate compensation? As I said, the judge thought that it should be done on the basis of the 1960 Act. He was entirely correct of course because the 1960 Act by definition applies to the plaintiffs ’case. For s. 2 of the 1960 Act defines land as follows: ‘land ’means alienated land within the meaning of the State land law, land occupied under customary right and land occupied in expectation of title; (emphasis added.) [45] There it is then. The plaintiffs were occupying their land under customary right recognised by the 1954 Act. So when they were compulsorily deprived of their land, they were entitled to payment of compensation in accordance with the principles laid down by our courts in cases decided under the 1960 Act. [46] The learned judge when dealing with this aspect of the case said: The expression ‘land occupied under customary right ’is not defined. Hence, in construing its meaning, I adopt a purposive approach and hold that it should be given a wider interpretation so as to achieve the object of the LAA (the 1960 Act), that is to say, to ensure adequate compensation be paid for the land acquired. [47] I find no misdirection on this point by the learned judge. Indeed, as may be seen, his approach accords entirely with the view I have taken of the matter. The learned judge by adopting a liberal interpretation was merely giving full effect to art. 8(5)(c) of the Federal Constitution which sanctions positive discrimination in favour of the aborigines….” (emphasis added) [55] As stated, to be deprived of the land, in either a case where the State acquires it or the State alienates it to someone else, would be S/N eGUstnZPekZeM0tiy3Y1g 24 of 44 unlawful without proper compensation for that would be to deprive the aborigines of their livelihood under Article 5(1) read with Article 13 of the Federal Constitution. [56] Article 5(1) reads: “5. Liberty of the person No person shall be deprived of his life or personal liberty save in accordance with law.” [57] Article 13 states: “13 Rights to property

(i) that the plaintiffs ’customary communal title attached itself to the first defendant’s radical title; and S/N eGUstnZPekZeM0tiy3Y1g 30 of 44

(b) any law for the time being in force relating to customary tenure; …….. and, in the absence of express provision to the contrary, if any provision of this Act is inconsistent with any provision of any such law, the latter provision shall prevail, and the former provision shall, to the extent of the inconsistency, be void.“ (emphasis added) [73] In other words, unless there is a carved out exception, any provisions of the NLC and that would include s.340 on indefeasibility, S/N eGUstnZPekZeM0tiy3Y1g 33 of 44 which is inconsistent with the relevant provisions of the 1954 Act as highlighted below, may be void to the extent of its inconsistency. It is a case of the 1954 Act trumping and triumphing over the NLC where the latter provisions is inconsistent with the former. [74] Granted there is nothing preventing the State from acquiring any land, be it private land or even an aboriginal area or reserve or land that should have been gazetted as such under the State’s fiduciary duty to protect the rights and interest of the aborigines who are the First Peoples of the Country, such compulsory acquisition must be for a public purpose and with adequate compensation as stated in the Land Acquisition Act 1960 and Article 13(2) of the Federal Constitution where adequate compensation must be paid. [75] After all the definition of “land” under the Land Acquisition Act 1960 reads: ““land” means alienated land within the meaning of the State land law, land occupied under customary right and land occupied in expectation of title;” (emphasis added) [76] The relevant provisions of the 1954 Act are ss. 6, 7, 8 and 9. Section 6 deals with “aboriginal areas” which are lands occupied by the aborigines but not yet declared as an aboriginal reserve under s.7. It reads as follows: “(1) The State Authority may, by notification in the Gazette, declare any area predominantly or exclusively inhabited by aborigines, which has not been declared an aboriginal reserve under section 7, to be an aboriginal area and may declare the area to be divided into one or more aboriginal cantons: S/N eGUstnZPekZeM0tiy3Y1g 34 of 44 Provided that where there is more than one aboriginal ethnic group there shall be as many cantons as there are aboriginal ethnic groups.

(i) no land shall be declared a Malay Reservation under any written law relating to Malay Reservations;

(i) when it appears unlikely that the aborigines will remain permanently in that place it shall not be declared an aboriginal reserve but shall form part of an aboriginal area; and

(i) no land shall be declared a Malay Reservation under any written law relating to Malay Reservations;

(v) no temporary occupation of any land shall be permitted under any written law relating to land.

(a) to: (i) any individual aborigine;

(b) free of rent or subject to such rents as may be imposed in the grant; and

(c) subject to such conditions as may be imposed by the grant, and shall be deemed not to confer on any person any better title than that of a tenant at will.

(a) in any case of fraud or misrepresentation to which the person or body, or any agent of the person or body, was a party or privy; or

(b) where registration was obtained by forgery, or by means of an insufficient or void instrument; or S/N eGUstnZPekZeM0tiy3Y1g 40 of 44

(c) where the title or interest was unlawfully acquired by the person or body in the purported exercise of any power or authority conferred by any written law.

(a) it shall be liable to be set aside in the hands of any person or body to whom it may subsequently be transferred; and

(b) any interest subsequently granted thereout shall be liable to be set aside in the hands of any person or body in whom it is for the time being vested: Provided that nothing in this sub-section shall affect any title or interest acquired by any purchaser in good faith and for valuable consideration, or by any person or body claiming through or under such a purchaser.

(a) the exercise in respect of any land or interest of any power of forfeiture or sale conferred by this Act or any other written law for the time being in force, or any power of avoidance conferred by any such law; or

(b) the determination of any title or interest by operation of law.” (emphasis added) [89] The concept of indefeasibility was explained by the Federal Court in Tan Ying Hong v Tan Sian San & Ors [2010] 2 MLJ 1 as follows: “[19] Section 340 of the NLC introduced into our land law the concept of indefeasibility of title. This is central to the system of registration of title under the Torrens system. Raja Azlan Shah (as His Royal Highness then was) in PTJV Denson (M) Sdn Bhd v. Roxy (M) Sdn Bhd [1980] 1 LNS 55 observed that 'the concept of indefeasibility of title is so deeply embedded in our land S/N eGUstnZPekZeM0tiy3Y1g 41 of 44 law that it seems almost trite to restate it.' Indefeasibility is defined by the Privy Council in Frazer v. Walker [1967] AC 569 at p 580 to mean: The expression not used in the Act itself, is a convenient description of the immunity from attack by adverse claim to the land or interest in respect of which he is registered, which a registered proprietor enjoys. This conception is central in the system of registration. It does not involve that the registered proprietor is protected against any claim whatsoever; as will be seen later, there are provisions by which the entry on which he relies may be cancelled or corrected, or he may be exposed to claims in personam. These are matters not to be overlooked when a total description of his rights is required. But as registered proprietor, and while he remains such, no adverse claim (except as specifically admitted) may be brought against him. [20] Indefeasibility can be immediate or deferred. The distinction between the two is well explained in para 404 of The National Land Code, A Commentary (Vol 2) by Judith Sihombing which reads: There are two types of indefeasibility; immediate and deferred. The factor which distinguishes the two is the common law effect given to the instrument even after registration; in addition; in a regime of deferred indefeasibility, the role of registered volunteer might be more relevant than under an immediate indefeasibility system. If, after the registration has occurred, the system then ignores the substance, form and probity of the instrument used to support the registration, the system is likely that of immediate indefeasibility. Thus, registration has cured any defect in the instrument being registered. If the instrument, despite registration, still has the power to affect the registered interest or estate, the system will probably be that of deferred indefeasibility. [21] In short, immediate indefeasibility means that the immediate registered title or interest of the proprietor or transferee immediately to the vitiating circumstances will be conferred statutory protection despite the S/N eGUstnZPekZeM0tiy3Y1g 42 of 44 existence of any vitiating circumstances. In the case of deferred indefeasibility, the indefeasibility only comes to be attached to the title or interest upon a subsequent transfer. Thus, the difference between immediate and deferred indefeasibility hinges on the effect of registration vis a vis the title or interest.” (emphasis added) [90] Whether or not this is a case falling within the vitiating circumstance of a title acquired unlawfully by the current registered proprietor is a matter of mixed finding of fact and law that can best be done at the trial in a writ action where there can be proper discovery of minutes of inquiry by the Director of Land and Mines and State Executive Council Meetings. [91] Even if the plaintiff were to say that they are subsequent purchaser in good faith and for valuable consideration, that cannot be accepted at face value and has to be proved as there is a dispute as to whether the plaintiff knew that the aborigines in the Semelai tribe were already in occupation of the land. Section 5 NLC defines “purchaser” to cover “lessee” as well for it reads: ““purchaser” means a person or body who in good faith and for valuable consideration acquires title to, or any interest in land.” (emphasis added) [92] What we can conclude so far is that there are far more questions raised than we can possibly answer in an action under O 89 ROC 2012 which is summary in nature and where, as it is, there are conflicts in affidavit evidence from both parties. It would be an abuse of the Court’s process to use O 89 ROC 2012 summary procedure for ostensibly a matter where the aborigines living on the land may be permanently deprived of their land without any compensation at all. The fact that the defendants had not earlier applied for the OS to be struck out does not S/N eGUstnZPekZeM0tiy3Y1g 43 of 44 bar the defendants from arguing that the OS should, for the reasons already set out, be dismissed. [93] In the recent Federal Court case of Busing Jali & Ors v. Kerajaan Negeri Sarawak & Anor And Other Appeals [2022] 3 CLJ 1, the Federal Court sent back for the High Court to make finding of fact after a trial where witnesses may be called and cross-examined as to whether there was Native Customary Rights (“NCR”) created or existed on the alienated land which entitled the appellants to compensation (Case C) with respect to the natives claims against the third parties who are the Superintendent of Lands and Surveys, Miri Division and the State Government of Sarawak as third parties. See paragraphs [167] to [168] of the judgment. [94] Even where the plaintiff, at the High Court, as registered proprietor of the lease title in question, had succeeded in getting an eviction order, it was via a writ action where they had proceeded under O 14A for the ROC 2012 and where the High Court had held that based on the affidavit evidence, the disputed area was a primary forest in 1947 and 1963 with no proof of cultivation or settlement. See paragraphs [17] to [19] of the judgment of the Federal Court. [95] The instant case is not one where the Court just wants to satisfy its curiosity by peeping behind the curtain of registration of title to find out the antecedents before alienation of the land to the registered proprietor. It is a case where, for compelling reasons, we must not summarily grant an order for eviction of the defendants as occupiers when prima facie it appears that the people of the Semelai tribe would be permanently deprived of their land without any compensation, not to mention adequate compensation. S/N eGUstnZPekZeM0tiy3Y1g 44 of 44 Pronouncement [96] We had therefore allowed the appeal of the appellants/defendants and set aside the order of the High Court and dismissed the OS, with liberty given to the respondent/plaintiff to file a writ action if so minded. [97] We awarded costs of RM20,000.00 to the appellant here and below subject to allocator. Dated: 22 April 2022. Sgd. LEE SWEE SENG Judge Court of Appeal Malaysia For the Appellant: Selva Balan Sinnan Elaine Gan Messrs Azman Joseph & Associates For the Respondent: Abu Bakr Mohamed Saifudin Messrs Ram Reza & Muhammad Date of Decision: 7 September 2021. S/N eGUstnZPekZeM0tiy3Y1g