Rosli A/L Jendut v Agrobest (M) Sdn. Bhd (02(f)-33-07/2025(C))

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

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

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

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

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

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

MAJIB BIN KASIM (No. K/P: 740103-06-5397) … PERAYU-PERAYU

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

MUDZAFAR BIN ABU SAMAH 08/07/2026 08:16:17 02(f)-33-07/2025(C)

KHONG CHUNG CHONG … RESPONDEN-RESPONDEN (Dalam Perkara Rayuan Sivil No. C-02(NCVC)(W)-1255-08/2023 Dalam Mahkamah Rayuan Malaysia di Putrajaya (Bidang Kuasa Rayuan)

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

2.

KHONG CHUNG CHONG ...PERAYU-PERAYU

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

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

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

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

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

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

MAJIB BIN KASIM (No. K/P: 740103-06-5397) ...RESPONDEN-RESPONDEN) (Dalam Perkara Mengenai Mahkamah Tinggi Malaya di Kuantan

Rosli a/l Jedut (No. K/P: 740121-06-5411)

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

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

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

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

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

Majib bin Kasim (No. K/P: 740103-06-5397) …Plantif-Plaintif

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

Mudzafar bin Abu Samah

Khong Chung Chong ...Defendan-Defendan) CORAM: NORDIN BIN HASSAN, FCJ VAZEER ALAM BIN MYDIN MEERA, FCJ LEE SWEE SENG, FCJ

The appellants are the aboriginal peoples or Orang Asli (“OA”) under the Aboriginal Peoples Act 1954 (“APA”) and they and their ancestors had stayed at Kampung Orang Asli Batu 20 (“KOA Batu 20”) in Pahang Darul Makmur for as long as they can remember. It is admitted that there was an OA community on the subject land and as proof of this evidence was given by the appellants’ evidence of the tombstones and grave sites of their forebears on the subject land at KOA Batu 20 Cemetery.

They were directed by the Jabatan Kemajuan Orang Asli (“JKOA”) to vacate KOA Batu 20 as there was to be development over the subject land. No compensation was paid to them and the evidence adduced is that they would return yearly to perform remembrance rituals and customary ceremonies at the tombstones and graves of their forebears or such time when they have premonitions.

They were soon to discover that around 2017 the Pahang State Secretary Incorporated had entered into a 30-year lease with ABSF International Group (M) Sdn Bhd (“ABSF”) for the development of a large-scale prawn farming project over the 700 acres of land. The subject land was held under 2 titles namely Lot HS(D) 4558 PT 9208 and HS(D) 4559 PT 9209 Mukim Bebar, Daerah Pekan, Pahang registered in the name of the Pahang State Secretary Incorporated on 1.6.2011. (“the land”).

The appellants as plaintiffs and their forebears had lived on the land where they had hunted and gathered food as well as fished. The first respondent (“R1”) is a wholly-owned subsidiary of ABSF. R1 upon discovery of the tombstones and graves of the plaintiffs had negotiated with them for a settlement but nothing was finalised. One day when the appellants happened to make their journey to the graves on the land, they saw that bulldozers and other implements had been used to remove the tombstones, the graves and related paraphernalia with everything being razed to the ground.

To the appellants what they saw was nothing less than the destruction and desecration of what was considered sacred in their spiritual beliefs and culture. They felt aggrieved and angered at the wanton and extreme conduct of R1, who through the second respondent (“R2”), its public relations manager and the third respondent (“R3’’) the contractor engaged for the job, in destroying and desecrating their sacred sites in their ancestral graves at KOA Batu 20 Cemetery on the land. They brought an action for damages for trespass on their own behalf and on behalf of relatives of the deceased persons of the same tribe.

The appellants as plaintiffs succeeded in the High Court after giving evidence on their connection to the land and the family tree showing their relationship to their forebears buried there and identifying the tombstones. The High Court also gave due weight to evidence of oral narratives and traditions passed down to the plaintiffs through the generations. In the absence of evidence to the contrary from the defendants below and the plaintiffs’ evidence being not rebutted, the High Court found that the plaintiffs had a common law right in an action for trespass against the defendants.

The High Court also awarded general damages of RM20,000 to each of the plaintiffs. It did not award special, exemplary or aggravated damages. It ordered costs of RM20,000.00 to be paid to the plaintiffs.

Against that decision the defendants appealed to the Court of Appeal against the whole of the decision that they were dissatisfied with and the plaintiffs cross-appealed. The Court of Appeal agreed with the defendants and allowed their appeal and reversed the decision of the High Court. The Court of Appeal held that the plaintiffs in the High Court below had no locus to sue as it has not been shown that they are personal representatives of the estate of the various deceased persons whose tombs they have come to pay homage and offer prayers and sacrifices.

The Court of Appeal further held that the party having possession of the subject land was the first defendant who had been given a long lease of the subject land to cultivate shrimps and prawns as part of the aquaculture business to be developed by the first defendant. The plaintiffs were not in lawful possession of the land and thus could not bring an action in trespass against the defendants who were in lawful possession of the subject land.

Dissatisfied with the Court of Appeal’s decision, the plaintiffs as appellants before us, had obtained leave to appeal to the Federal Court.

There were altogether 14 Questions of Law for which the Federal Court granted leave and they may be neatly categorised and dealt with under the following heads below.

Questions 1 and 2 relate to the Notice of Cross-Appeal filed by the appellant as respondent in the Court of Appeal. The question was whether it was procedurally proper for the respondent in the Court of Appeal to have filed a Notice of Cross-Appeal instead of a Notice of Appeal when they wanted to appeal against the High Court’s decision not to grant them the special and exemplary damages prayed for but only general damages. The respondents here as appellants in the Court of Appeal had filed a Notice of Appeal against the whole of the High Court’s decision and not a part of it. The Court of Appeal had struck out the respondents’ cross-appeal on the basis that it was unconnected to the main appeal.

The Questions 1 and 2 read as follows:

Where the Respondents (Appellants in the Court of Appeal) had appealed to the Court of Appeal against the whole or entire decision of the High Court, should the Appellants (Respondents in the Court of Appeal) file a Notice of Appeal pursuant to Rule 5 of the Rules of the Court of Appeal 1994 or file a Notice of Cross-Appeal pursuant to Rule 8 of the Rules of the Court of Appeal 1994, for the purposes of varying the relief or remedy ordered by the High Court?"

Where the Respondents (Appellants in the Court of Appeal) had appealed against the whole or entire decision of the High Court, whether the Appellants (Respondent in the Court of Appeal) may by a Notice of Cross Appeal, pursuant to Rule 8 of the Rules of the Court of Appeal 1994, vary any part of the decision of the High Court which is the subject of the Respondents' appeal including the relief or remedy ordered by the High Court?"

Questions 3, 4 and 5 may be conveniently categorised as Questions relating to the Locus Standi of the Appellants. They concern the question as to whether members of the OA community possess the requisite locus to maintain an action in trespass for the desecration of their ancestral burial grounds on their customary lands.

Questions 3, 4 and 5 read as follows:

Whether the locus standi of the Appellants, who are aboriginal peoples / Orang Asli, in a claim in trespass for the desecration or destruction or demolition of an aboriginal / Orang Asli burial or grave or cemetery site situated in their customary / native title lands is to be based on their collective or community interest in the customary lands?"

Whether the locus standi of the Appellants who are the aboriginal peoples/Orang Asli in a claim in trespass for the desecration or destruction or demolition of an aboriginal / Orang Asli burial or grave or cemetery site situated in their customary / native title lands is conditional on a relationship or nexus between the aboriginal persons/Orang Asli and the deceased aboriginal persons/Orang Asli (i.e. that they were descendants of the deceased?"

Whether the locus standi of the Appellants, who are aboriginal peoples / Orang Asli, in a claim in trespass for the desecration or destruction or demolition of aboriginal / Orang Asli burial or grave or cemetery site situated in their customary / native title lands would cover all affected or damaged grave or tombstones, named or unnamed on the site?

Question 6 deals with the issue of Admissibility and Evidential Value of Oral History with respect to oral histories in proving native customary rights’ claims under s 32(1)(d) and (e) of the Evidence Act 1950 as follows:

Whether a claim by the Appellants, who are aboriginal peoples/Orang Asli, in trespass for the desecration or destruction or demolition of aboriginal/Orang Asli burial or grave or cemetery site situated in their customary/native title lands may be supported by evidence of oral history, subject to ss. 32(1)(d) and (e) of the Evidence Act 1950?

Questions 7, 8, 9 and 10 relate to the issue of the Extinguishment of Customary Rights. They addressed the issue as to whether the Appellants' customary and proprietary rights over their ancestral burial grounds were lawfully extinguished following their relocation and the State's subsequent alienation of the lands to third parties. The questions read as follows:

Whether the rights of the Appellants, who are aboriginal peoples/Orang Asli, in the aboriginal/ Orang Asli burial or grave or cemetery site situated in their customary lands, were extinguished despite their continued and consistent maintenance of their traditional or customary connection to the lands by visiting the burial or grave or cemetery site to perform their rituals, after their relocation by the State Authorities?

Whether the rights of the Appellants, who are aboriginal peoples/Orang Asli, in the aboriginal/ Orang Asli burial or grave or cemetery site situated in their customary lands were extinguished by the State Authority granting a lease over the lands without the prior and informed consent of the aboriginal peoples/ Orang Asli and without regard to the rights of the aboriginal peoples/Orang Asli in their customary lands?"

Whether the rights of the Appellants, who are aboriginal peoples/Orang Asli, in the aboriginal/ Orang Asli burial or grave or cemetery site situated in their customary/native title lands were extinguished by the deprivation of their possession or occupation of the lands and their subsequent relocation by the State Authorities, without any monetary compensation under the Land Acquisition Act 1960?

If the answer to Question 9 is in the affirmative, whether the Appellants are entitled to monetary compensation under the Land Acquisition Act 1960 for the extinguishment of their rights in the aboriginal/ Orang Asli burial or grave or cemetery site situated in their customary lands?

Questions 11, 12, 13 and 14 concern whether the respondents owe a duty of care to the appellants in the handling, removal or relocation of the ancestral graves, and if so, the scope and standard of that duty. The questions read as follows;

Whether the Respondents owed a duty of care to the aboriginal peoples/ Orang Asli to respect their customs or rituals in the removal of the ancestral graves situated in the aboriginal/Orang Asli burial or grave or cemetery site situated in their customary lands?"

Whether the Respondents owed a duty of care to the Appellants, who are aboriginal peoples/Orang Asli, to respect their customs or rituals in the removal or relocation of the ancestral graves situated in the aboriginal/Orang Asli burial or grave or cemetery site situated in their customary lands?"

Whether there was a breach of the duty of care owed to the Appellants, who are aboriginal peoples/Orang Asli, by the Respondents when they desecrated or destroyed or demolished the ancestral graves situated in the aboriginal/Orang Asli burial or grave or cemetery site situated in their customary/native title lands?"

Whether the Respondents are liable in damages, (special, general and exemplary) for breaching the duty of care owed to the Appellants, who are aboriginal peoples / Orang Asli by desecrating or destroying or demolishing the ancestral graves situated in the aboriginal / Orang Asli burial or grave or cemetery site situated in their customary lands? Whether the Notice of Cross-Appeal was procedurally correct in the circumstances of the case where the appellants below had filed a Notice of Appeal against the whole of the decision of the High Court and not merely against the part of the decision of the High Court that they are dissatisfied with

At the outset it must be stated that a Notice of Cross-Appeal has limited utility and scope, deriving its life from there being in the first place a Notice of Appeal that had been filed. In Pengerusi Suruhanjaya Pilihanraya Malaysia v See Chee How & Anor [2015] MLJU 1831 the Court of Appeal explained that: “[77] …… a cross-appeal is only meant for variation of “the decision” appealed against and not for variation, reversal or setting aside of any other decision of the High Court unrelated to the appeal filed by the appellant.” (emphasis added)

The relevant rules are Rule 5(1),(4) and 8(1) of the Rules of the Court of Appeal 1994 (“RCA 1994”) as follows: “Rule 5. Appeal to be by re-hearing on notice

Appeals to the court shall be by way of re-hearing and shall be brought by giving notice of appeal. ... … Rule 8 Notice of cross-appeal

It shall not be necessary for a respondent to give notice of appeal, but if a respondent intends, upon the hearing of the appeal, to contend that the decision of the High court should be varied, he may, at any time after entry of the appeal and not more than ten days after the service on him of the record of appeal, give notice of cross-appeal specifying the grounds thereof, to the appellant and, any other party who may be affected by such notice, and shall file within the like period a copy of such notice, accompanied by copies thereof for the use of each of the Judges of the court.”(emphasis added) 15 21. It is true that the High Court had dismissed the plaintiffs’ claim for special and exemplary damages but instead had granted the plaintiffs’ claim of general damages for trespass of RM20,000 for each of the plaintiffs. That being the case the defendants below should have filed a Notice of Appeal against part of the decision of the High Court in a finding of liability against the defendants and in its granting an award of general damages against the defendants.

However, the defendants, being dissatisfied with the decision of the learned High Court judge given on 11.7.2023, had filed a Notice of Appeal against the whole of the said decision. See the Notice of Appeal dated 8.8.2023 at ACB, Tab 2 p.18. That can be interpreted to mean that the defendants were generally speaking appealing against both liability and quantum for it would be quite incongruent and indeed illogical for the defendants to be appealing against the dismissal by the High Court of the plaintiffs’ claim for special and exemplary damages.

We can appreciate that here the plaintiffs were lured into filing a Notice of Cross-Appeal as the entire of the High Court’s judgment was appealed against by the defendants. The plaintiffs were constrained to file under Rule 8 of the RCA 1994 a Notice of Cross-Appeal.

We hear the plaintiff’s argument that as the entire judgment was already before the Court of Appeal, it would be proper and logical for the plaintiff to file a Notice of Cross-Appeal instead of a Notice of Appeal as the former is only confined to that part of the defendants’ appeal that the plaintiffs’ are desirous of varying. In a very real sense the Federal Court case of Kabushiki Kaisha Ngu v Leisure Farm Corp Sdn Bhd & Ors [2016] 5 MLJ 552, the locus classicus on the scope and validity of a Notice of Cross-Appeal can be distinguished.

In Kabushiki’s case (supra) the plaintiff there had appealed against the High Court's order to grant damages instead of a prayer for specific performance even though it had held that the sale and purchase agreement of a golf course land was a valid agreement between the first and second defendants and that the third defendant was not a bona fide purchaser. The plaintiff was aggrieved by the decision of an award of damages and they appealed on ground that they should be entitled to specific performance. The first defendant filed a cross-appeal by which it intended to reverse the entire decision of the High Court.

Therein lay the error of the first defendant because a Notice of Cross-Appeal is limited to challenging that which the appellant/plaintiff is dissatisfied with i.e. the award of damages and that if the first defendant wanted to argue against the finding of a breach of the concluded contract and to assert that there was no contract to begin with, then the proper course would be for it to file a Notice of Appeal since these are matters unrelated to the Notice of Appeal on the point that specific performance should have been granted and not merely damages awarded.

The Court of Appeal agreed with the plaintiff and ruled that the cross-appeal should have been restricted to vary that part of the order that was being appealed by the plaintiff and should not be permitted to seek to reverse any other aspects of the decision of the High Court. The first defendant obtained leave to appeal to the Federal Court and the Federal Court held as follows: "[23] We are of the view that under r 8 of the RCA 1994 the first defendant cannot set aside the substantive finding of facts made by the High Court by way of notice of cross-appeal. The first defendant may only set aside the substantive findings of the High Court by way of filing a notice of appeal under r 5 of the RCA 1994. Only an appeal by way of a notice of appeal constitutes a re-hearing. Rule 8 of the RCA 1994 does not state that a notice of cross-appeal ‘... shall be by way of re-hearing’. Rule 8 of the RCA 1994 only provides that a respondent could only contend that the decision of the High Court should be varied if the respondent files the notice of cross-appeal within ten days after the service of the record of appeal. … [36] It would appear that none of the parties in this case appealed against the entire decision of the High Court. The first defendant had failed to appeal against the finding of the High Court that the HK MOU was a binding contract. The High Court’s decision that there was a valid and binding agreement concluded between the plaintiff and the first defendant is adverse against the first defendant. It was thus incumbent on the first defendant to file a separate notice of appeal if it wanted the aforesaid decision to be reversed or set aside, rather than by filing a notice of cross-appeal. The operative words of ‘to contend ’and ‘decision of the High Court should be varied ’under r 8(1) of the RCA 1994 clearly limits the contentions under a notice of cross-appeal to effectively vary a decision, not set aside a judgment or order. It is incumbent on the first defendant to independently file a notice of appeal under r 5 of the RCA 1994 to rehear the issues that were not decided in the first defendant’s favour. A notice of cross-appeal does not provide for a complaint to be re-heard. The first defendant is at liberty to file an independent appeal under s 67(1) of the CJA 1964.” (emphasis added)

The Federal Court in Douglas Ding Jangan & Ors v Kerajaan Negeri Sarawak & Ors [2021] 4 MLJ 946 had reaffirmed the principle set out in Kabushiki Kaisha Ngu (supra) as follows: “[33] Juxtaposed with the facts of the present case, the High Court's finding that the appellants have acquired and/or created communal NCR over the cleared areas, which formed the basis for its decision to allow para 25 (i) of the statement of claim, was a finding that was wholly averse to the first to fifth respondents. It was therefore incumbent on the first to fifth respondents to file separate notices of appeal if they wanted the decision to be reversed or set aside. The decision cannot be reversed or set aside by way of cross-appeal under r 8 of the RCA. It can only be done by way of a substantive appeal under r 5.” (emphasis added)

Both Kabushiki (supra) and Douglas Ding (supra) were cases where the appellant had appealed rightly against that part of the High Court’s decision that they were dissatisfied with and so the Notice of Cross-Appeal, true to its nature and scope, must be confined only to that part of the decision of the High Court that the respondent in the Court of Appeal is dissatisfied with.

30.

Learned counsel for the appellants before us referred to Euroland & Development Sdn Bhd v Supreme Code Land Sdn Bhd [2024] 4 MLJ 732, where the High Court had allowed the plaintiff’s claim and awarded damages in lieu of specific performance. The defendant appealed against the entire decision while the plaintiff cross-appealed to vary the damages awarded seeking a higher sum since specific performance was not granted. The Court of Appeal dismissed the main appeal and allowed the cross-appeal.

Even where special and exemplary damages are concerned, since the defendants as appellants in the Court of Appeal had appealed against the whole and not part of the decision of the High Court, it must mean that the defendants are appealing generally against both liability and quantum and so we see no good reason why the plaintiffs as respondents in the Court of Appeal cannot be heard on a species of damages claim to which they said they are entitled to more though it may be in the nature of special and exemplary damages. A close look at the Notice of Cross-Appeal revealed that the plaintiffs were appealing in para (i) to (iii) matters relating to special damages and in para (iv) the quantum of general damages and the entitlement to exemplary damages.

In Pentadbir Tanah Johor Bahru v Tanah Sutera Development Sdn Bhd [2023] 4 MLJ 567, the Court of Appeal highlighted that a cross-appeal is essentially "an appeal on precisely the same point that the appellant is appealing on except that an opposite result is argued by the respondent instead." Therefore, the plaintiff must ensure their Notice of Cross-Appeal is strictly framed as an attempt to vary the defendant's appealed decision. It said: “[69] It hardly lies in the mouth of the respondent to say that the grounds of appeal are too vague and general as it had no problem filing its notice of cross-appeal. A cross-appeal is after all, an appeal on precisely the same point that the appellant is appealing on except that an opposite result is argued by the respondent instead. [70] The feigning of ignorance would not find favour with the court. In Tan Kim Beng & Ors v Datuk Yen Ying Pang @ Kenneth Yen Yin Pin & Ors [2013] 4 MLJ 437 the Court of Appeal dismissed, pursuant to r 1A (1) of the RCA which is titled ‘1A. Court or judge shall have regard to justice’, an identical objection raised since the respondent there never averred that it had problem understanding the grounds of appeal…”

The rules of natural justice would not behove us to exact more from the plaintiffs in their Notice of Cross-Appeal dated 24.10.2023 when the defendants had appealed against the whole of the decision of the High Court by its Notice of Appeal dated 8.8.2023. There was also considerable delay in raising a preliminary objection on the legality of the Notice of Cross-Appeal only on 22.10.2024 when the appeal was heard by the Court of Appeal if indeed it had caused them prejudice.

If we may draw an analogy from personal injury claims in running-down cases in tort, it is quite common for a defendant when appealing, to appeal the whole of the judgment of the trial court as in appealing against both liability and quantum and in filing a Notice of Cross-Appeal by the plaintiff, it is generally understood that the whole of the quantum award is being challenged as being inadequate by the plaintiff.

Thus, in Sumarni v Yow Bing Kwong & Anor [2008] 3 CLJ 489, the Court of Appeal noted that filing a cross-appeal within seven days of the Defendant's initial appeal on liability operates effectively as an independent appeal, allowing the appellate court to rehear both together, ultimately serving as a time and cost-saving exercise: [30] As for the preliminary objection raised by the defendants that this appeal by the plaintiff should have been filed and heard separately, and not as was done here, filed as a cross appeal and heard simultaneously with the defendants' appeal on liability, I find no flaw arising from the action taken by the plaintiff to file a cross appeal. As was explained by learned counsel for the plaintiff, the defendants had earlier filed an appeal against the finding of liability by the learned sessions judge, even before the plaintiff could file her appeal on the quantum awarded. Under that situation the plaintiff may rightly act under O. 55 r. 3 of the Rules of High Court 1980 and file a cross appeal within seven days, which was duly done. In essence a cross appeal although tagged to the defendants' initial appeal operates as an independent appeal and the appellate court may rehear both the appeals together. In fact to file a cross appeal under O. 55 r. 3, Rules of High Court as was done by the plaintiff here was quite regular and ultimately be a time and cost saving exercise. The objection taken by the defendants on this matter is thus without merit and should be dismissed.”

Section 69 of the Courts of Judicature Act 1964 (“CJA’) gives broad powers and discretion to the Court of Appeal to hear all parties that are already before the Court so as to enable it to do substantive justice with respect to the appeals of the parties before it as set out in s. 69(5). For context the whole s. 69 is set out below:

“Hearing of appeals

Appeals to the Court of Appeal shall be by way of re-hearing, and in relation to such appeals the Court of Appeal shall have all the powers and duties, as to amendment or otherwise, of the High Court, together with full discretionary power to receive further evidence by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner.

The further evidence may be given without leave on interlocutory applications, or in any case as to matter which have occurred after the date of the decision from which the appeal is brought.

Upon appeals from a judgment, after trial or hearing of any cause or matter upon the merits, the further evidence, save as to matters subsequent as aforesaid, shall be admitted on special grounds only, and not without leave of the Court of Appeal.

The Court of Appeal may draw inferences of fact, and give any judgment, and make any order which ought to have been given or made, and make such further or other orders as the case requires.

The powers aforesaid may be exercised notwithstanding that the notice of appeal relates only to part of the decision, and the powers may also be exercised in favour of all or any of the respondents or parties although the respondents or parties have not appealed from or complained of the decision.” (emphasis added)

I had occasion in Mashudan bin Kamar & Ors v Bank Islam Malaysia Bhd [2023] CLJU 1709 to observe with respect to focusing on the substantive justice of the appeal and not being fixated or fastidious about infractions of the rules that do not cause serious prejudice to the objector as follows: "[74] The focus of the Rules of Courts are generally to facilitate and not to frustrate proceedings; its thrust and tenor is not to trip or trap the unwary. It is mercifully forgiving where the infraction of the Rules are not such as to cause serious prejudice to the other party raising objection which cannot be compensated by costs. The important thing is that no one should have been misled by the actions taken. Rules of Courts are after all hand-maidens and not a jealous mistress. [75] No one reading the following Rules in the RCA 1994 can escape its gracious and generous disposition designed as it is for the Courts to do substantive justice to the parties before it and to prevent injustice or abuse of its process by being fixated to or fastidious about it…” (emphasis added)

We refer to Rules 1A, 102-105 which are reproduced below: “Rule 1A – Court or Judge shall have regard to justice In administering these Rules, the Court or a Judge shall have regard to the interest of justice and not only to the technical non-compliance with these Rules. Rule 102. Non-compliance with Rules not to render proceedings void. Non-compliance with any of these rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the court or a Judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the court or Judge shall think fit. Rule 103. Application to set aside for irregularity when allowed. No application to set aside any proceedings for irregularity shall be allowed unless made within reasonable time, nor if the party applying has taken any fresh step after knowledge of the irregularity. Rule 104. Objections of irregularity. When an application is made to set aside proceedings for irregularity, the several objections intended to be insisted upon shall be stated in the summons or notice of motion. Rule 105. Inherent powers of the Court. For the avoidance of doubt, it is declared that nothing in these rules shall be deemed to limit or affect the inherent powers of the court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the court.” (emphasis added)

The Notice of Cross-Appeal ought not in the circumstances of the case be struck out and it would be disproportionate to the minor infraction contributed in part by the defendants/appellants below in appealing against the whole of the decision of the High Court. There is no serious prejudice to the defendants in their appeal to the Court of Appeal as they would have every opportunity to argue, in the Court of Appeal and before us, as to why special damages and exemplary damages were rightly dismissed by the High Court.

As it will always be a matter of discretion whether or not to allow a Notice of Cross-Appeal to be argued where it does not cause prejudice to the objector, and as will be seen later in this judgment that at the end of the day nothing turns on the issue of special and exemplary damages, we see no need to answer the Questions of Law 1) and 2) posed. Suffice for us to say by word of advice that when in doubt as to whether to file a Notice of Appeal or a Notice of Cross-Appeal, the safer route to follow would be to file a Notice of Appeal and to state clearly exactly what part of the trial judge’s decision or findings the appeal is brought. This is particularly so when the Notice of Appeal filed by the other side first is neither here nor there as in it cannot be an appeal against the whole of the decision of the trial court as certain decisions were in its favour. Whether the appellants had proved on a balance of probabilities their connection to the deceased persons’ tombstones and grave sites

The Court of Appeal found no connection between the appellants and the tombstones as there was no corroboration in the absence of death certificates and names written on the tombstones. Whilst not all death certificates were produced, there were at least 2 that were produced i.e. that of the first appellant (SP2) who produced the death certificate of his late mother, Nun binti Tiga, who was one of the 2 deceased related to him and buried at the site. The other person’s tombstone was identified as that of the first appellant’s sister Minah a/p Jendut. See Enclosure 10, ROA Jilid 4 p.861.

The fourth appellant’s witness, Roslan a/l Awang (SP3) also tendered the death certificate of his sibling, Abu a/l Awang, who was one of the 2 deceased persons related to the fourth appellant and buried at the site. One was the son of the fourth appellant and the other his daughter. See Enclosure 10, ROA Jilid 4, p. 797.

The second appellant’s mother who died in 1971 and aunty who died in 1982 and their respective graves were identified and so was the third appellant’s aunty’s grave. The fifth, sixth and seventh appellants also had their aunty, son and uncle’s graves identified respectively. See para 19 of the Amended Statement of Claim. The defendants merely denied para 19 of the Amended Statement of Claim without proffering any evidence to the contrary.

Where relevant birth certificates of the parties and their progeny had been produced, the Court cannot ignore such evidence. Based on no less than 20 contemporaneous police reports lodged upon the appellants and their relations seeing the tombstones and grave sites of their next-of-kin desecrated and destroyed, we do not think that the appellants’ claim of what they saw were spurious or a mere speculation. After all it is an offence to lodge a false police report.

The first respondent did not at any material time dispute the presence of the cemetery of the indigenous people on the subject land in KOA Batu 20 and indeed was aware of the marked-out location of these cemeteries on the sketch plan in Enclosure 10 at page 802. It was more a case of their impatience in commencing work of developing the area into the biggest aquaculture park in Asia as they stated in their apology letter dated 25.3.2018 to the appellants that they had commenced the clearing works including clearing away the cemeteries and tombstones. See Enclosure 10 page 787.

The Court of Appeal should take cognisance of the fact that the OA are from a less educated socio-economic background where they may not see the need to make a police report on a death in the family and to surrender the identification card of the deceased (if they have one to begin with) and to obtain the relevant permit to bury their dead as would be the requirement of city folk that live within a local government area where burial and cremation is regulated under Part IX of the Local Government Act 1976.

The Court may take judicial notice of the fact that many OA settlements such as KOA Batu 20 may not have official registration of births and deaths due to their remote location and limited accessibility to registration offices. This coupled with low literacy rates and an inability to understand and appreciate the law, all combined to result in incomplete documentation that one would look for to show connection with the deceased such as death certificates and much less a letter of administration.

The OA may not have any earthly assets that would require a transfer to their beneficiaries or for that matter a bank account. They lived off the land, harvesting whatever is grown and the hunting of animals for food, living from hand to mouth. Theirs is a system of oral traditions handed down from one generation to another and in the absence of evidence to the contrary, the Court cannot exact strict requirements of documentary evidence when most are illiterate and cannot read and write.

Whilst we would expect a tombstone, properly called to bear the name of the deceased with the date of birth and death and an epithet, that of the OA may not have any such adornment. The appellants were able to bring coloured photos to identify each tombstone and its corresponding progeny. See Enclosure 10, ROA Jilid 4, pp. 803-810. Photos of the excavated and broken tombstones were also produced and the third respondent who was in charge of the excavation said that six graves were exhumed and that he dug until 1 meter in width for 1 hour.

We agree with the submission of learned counsel for the appellants that their witnesses were able to identify personal items such as clothing, plates and bowls used during burial rites (kenduri arwah), all buried together with their deceased relatives, serving to confirm the identity of the graves. See Enclosure 11, ROA Jilid 4, p.811.

Our Evidence Act 1950 is versatile and robust enough to accommodate oral tradition and to allow for its admission as evidence under s 32(1)(d) and (e) for so long as the conditions stated are met. Section 32(1)(d) and (e) read as follows: “Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant

(1) Statements, written or verbal, of relevant facts made by a person who is dead or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases: …

when the statement gives the opinion of any such person as to the existence of any public right or custom or matter of public or general interest, of the existence of which if it existed he would have been likely to be aware, and when the statement was made before any controversy as to the right, custom or matter had arisen;

when the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised;…”(emphasis added)

Even if we have to interpret the provisions of s 32(1)(d) and

of the Evidence Act 1950 more generously, we are comfortable to do so bearing in mind that even the equality guarantee before the law and the equal protection of the law in Article 8(1) of the Federal Constitution provides for an exception in Article 8(5)(c) as follows: “(c) any provision for the protection, well-being or advancement of the aboriginal peoples of the Malay Peninsula (including the reservation of land) or the reservation to aborigines of a reasonable proportion of suitable positions in the public service;” (emphasis added)

This same issue had been raised before in Sagong bin Tasi v Kerajaan Negeri Selangor [2002] 2 MLJ 591 at pp 623- 624 (“Sagong Tasi HC”) and the Court approached the issue as follows: “In the final analysis, it is my considered view that, in principle, oral histories of the aboriginal societies relating to their practices, customs and traditions and on their relationship with land should be admitted subject to the confines of the EA, in particular s 32

and (e), that is to say: (i) they must be of public or general nature or of public or general interest; (ii) the statement must be made by a competent person, ie one who 'would have been likely to be aware' of the existence of the right customs or matter; and (iii) the statement must be made before the controversy as to the right, customs or matter had arisen.”(emphasis added)

The oral tradition here relating to the appellants’ practices, customs and traditions, their annual and periodic visits to the cemeteries and the ceremonies performed there showing their continuing relationship with the land is admissible and more so when there is no evidence in rebuttal. It would be quite far-fetched to suggest that the appellants had been to the wrong grave sites or that their dead were not buried there when the tombstones could each be identified together with the grave paraphernalia of the deceased persons’ clothes and crockeries.

The evidence of the appellants, taken as a whole, are not inherently incredible and in the absence of evidence to the contrary from the respondents coupled with a failure to challenge these evidence on cross-examination, the High Court was perfectly positioned to hold that the appellants had proved their connection to the tombstones and the grave sites. The trial judge had the audio-visual advantage of observing the demeanour of these OA witnesses and an appellate court should be slow in disturbing the finding of fact of the trial court unless the finding was plainly wrong or that the evidence had not been properly appreciated.

We find that the High Court had properly assessed the oral evidence of the appellants in concluding that they had proved their family connection to the tombstones and grave sites that were destroyed and desecrated by the respondents. Whether the appellants had the locus, capacity and right to bring an action in trespass for the destruction and desecration of their ancestral graves in their customary native title land

As for the finding of the Court of Appeal that the appellants had no locus to bring this claim as they have not shown that they are personal representatives of the deceased persons whose graves they have a connection to and interest in, we must hasten to say that this is not an estate claim or a succession matter with respect to the distribution of a deceased’s estate.

We are after all dealing with a claim for trespass to that small portion of the land that had the tombstones and grave sites of the forebears of the appellants which together constitute the sacred sites of the appellants, having both a cultural and spiritual significance to the appellants in preserving their identity.

It has long been established that the OA communities in Malaysia have communal and proprietary rights over the land where they dwell and live and forage, farm and fish. They possessed usufructuary rights as in the rights to use and enjoy the land notwithstanding that the legal title is vested in the State. See Adong Bin Kuwau v Kerajaan Negeri Johor [1997] 1 MLJ 418 (“Adong”) which also held at p. 431 that their rights under common law and statute have to be looked at conjunctively, for both these rights are complementary. Cases subsequent to Adong (supra) have recognised the OA’s native title over the land. They do not have a physical title like that which we are accustomed to hold, register and keep but they nevertheless have a real and tangible communal and proprietary interest in their native title.

The High Court in Sagong Tasi HC (supra) recognised that the OA has a proprietary right in and over the lands in question in the form of a native title. The Court of Appeal in affirming the High Court in Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors [2005] 6 MLJ 289 (“Sagong Tasi CoA”) held that the OA there had ownership of the lands in question under a customary community title of a permanent nature. The Court of Appeal further held that the APA and the National Land Code 1965 (“NLC”) do not extinguish nor preclude common law customary title.

The Court of Appeal in Sagong Tasi CoA (supra) expounded as follows: “[32] … Remember that the purpose of the 1954 Act was to provide socio-economic upliftment of the aborigines. Land being a very valuable socio-economic commodity, it was the undoubted intention of the legislature not to deprive those in the class to whom the plaintiffs belong of the customary title existing at common law. In any event the defendants cannot now argue, in view of the Federal Court's affirmation in toto of the judgment of this Court in Adong, that the 1954 Act excludes the plaintiffs' title at common law. I would add for good measure there is also nothing in the Code, which is the principal statute that regulates titles and dealings in land and interests in land which strikes at the recognition of lands held under customary title. Indeed, s 4 of the Code expressly says that it does not apply to lands held under customary title. [33] here is another matter. The fact that the plaintiffs enjoy a community title by custom Is nothing out of the ordinary. The Privy Council in Amodu Tijani recognised the existence of such title in other jurisdictions. That concept has been re-affirmed by the Constitutional Court of South Africa in Alexkor Ltd v Richtersveld Community (2003) 12 BCLR 1301. Chaskalson CJ said: In the light of the evidence and of the findings by the SCA (Supreme Court of Appeal) and the LCC (Land Claims Court), we are of the view that the real character of the title that the Richtersveld Community possessed in the subject land was a right of communal ownership under indigenous law. The content of that right included the right to exclusive occupation and use of the subject land by members of the Community. The Community had the right to use its water, to use its land for grazing and hunting and to exploit its natural resources, above and beneath the surface. It follows therefore that prior to annexation the Richtersveld Community had a right of ownership in the subject land under indigenous law. (emphasis added.) [34] So too here. The evidence led in the court below and the findings of fact made by the learned judge which are unchallenged before us leave no room for doubt that the plaintiffs had ownership of the lands in question under a customary community title of a permanent nature. Therefore, it is my considered judgment that the learned judge did not fall into any error when he held that the plaintiffs had customary community title to the land in question. I would accordingly affirm his judgment on this point.” (emphasis added)

Until and unless their rights over their ancestral land have been extinguished by compensation under the Land Acquisition Act 1960, they retain their interests of use and enjoyment of their ancestral land. That right though not registrable under the National Land Code 1965 (“NLC”) is not diminished but recognised under the NLC as customary tenure.

We would go so far as saying that even if a separate title is issued in the name of a public or private entity through the State’s alienation, the ancestral and communal nature and rights in the land are not extinguished until compensation is paid to them.

There is a growing awareness and recognition of the rights of the indigenous people throughout the Commonwealth as seen in the UK Privy Council case from Nigeria in Amodu Tijani v Southern Nigeria Secretary [1921] 2 AC 399; the South African Constitutional Court in Alexkor Ltd v Richtersveld Community [2003] 12 BCLR 1301, the High Court of Australia’s case of Mabo v State of Queensland

107 ALR 1 and the Canadian Supreme Court case of R v Van Der Peet [1996] 4 C.N.L.R. 177. They all speak with one voice of the existence of a proprietary community title capable of recognition by the common law for so long as the indigenous people can prove a substantial connection to the land in question.

Any title issued by the State without properly extinguishing the communal proprietary rights of the OA, would be burdened or encumbered with their communal proprietary rights such that when these rights are impeded or removed, in this case their tombstones and grave sites which are sacred to them, they have a remedy under common law for trespass. The usufructuary rights of the OA would include the right to visit the grave sites and tombstones of their ancestors as part of their cultural and spiritual connection with the land on which they have been there for as long as they can remember.

The common law communal proprietary interests of the appellants over the land where the tombstones and grave sites were cannot be surrendered by implication or even by a title issued by the State to its development entity in the Pahang State Secretariat Incorporated. Neither can it be extinguished save in accordance with law and upon payment of adequate compensation. As was stated clearly by the High Court in Sagong Tasi HC (supra) at p 615: "With regard to their statutory rights, it was affirmed and confirmed in the Adong case (which was concerned with the aboriginal inhabited place) that the Act does not limit the aborigines' rights therein and in order to determine the extent of the aboriginal peoples' full rights under the law, their rights under the common law and the statute has to be looked at conjunctively for both the rights are complementary, and the Act does not extinguish the rights enjoyed by the aboriginal people under the common law."(emphasis added)

Here we need not be concerned with a claim for compensation for being ordered to vacate the land and be relocated elsewhere without compensation and without the new area being gazetted as an OA reserved land. We are concerned only with the narrower prayer for trespass to the land where the appellants had a continuing connection and interest in the identifiable burial sites intimately and inextricably connected to the OA identity and culture. The UN Declaration on the Rights of Indigenous Peoples (“UNDRIP”) by its Article 10 enjoins all States as follows: “Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.”

Our Federal Court in Superintendent of Lands & Surveys, Miri Division & Anor v Madeli Bin Salleh (suing as Administrator of the Estate of the deceased, Salleh bin Kilong [2008] 2 MLJ 677 held that extinguishment of customary rights should only be made by "clear and unambiguous language of the legislative act of extinguishing customary rights at common law and further stated that such acts "cannot be derived by mere implication. The Federal Court approved of the principle enunciated in Superintendent of Lands & Surveys, Bintulu v Nor Anak Nyawai & Ors and another appeal [2006] 1 MLJ 256 and held as follows: “[15] The Court of Appeal in Superintendent of Lands & Surveys, Bintulu v Nor Anak Nyawai & Ors and another appeal [2006] 1 MLJ 256 endorsed the view of the learned Judge in relation to native customary rights in that the common law respects the pre-existence of rights under native laws or customs though such rights may be taken away by clear and unambiguous words in a legislation… … [31] … In the absence of such a provision in the 1921 Order, we agree with the Court of Appeal that the order could not be construed to have the effect of extinguishing the rights of the native over such land which had been in existence prior to the coming into force of the said order. Such a drastic measure needs to be expressed in clear language and cannot be derived by mere implication. [32] We are also of the view that to construe the 1921 Order in the manner proposed by the appellants would give the Order a retrospective force. This is so because the respondent had been in occupation of the said land long before the 1921 Order…”(emphasis added)

Likewise in the Court of Appeal in Ketua Pengarah Jabatan Hal Ehwal Orang Asli v.Mohamad bin Nohing (Batin Kampung Bukit Rok) [2015] 6 MLJ 527 the Semelai Orang Asli's customary rights over land was not automatically extinguished by the later statutory classification under gazettement to be a Malay Reserve land under the Malay Reservation Enactment 1933.

The test as laid down in Yebet bt Saman & Ors v Foong Kwai Long & Ors [2015] 2 CLJ 929 is that the right in common law to a communal proprietary interest in the land persists where there is continuous connection and use of the land, even if physical occupation had been interrupted like in the present case by the relocation exercise. We are more than satisfied that the appellants did maintain and exercise their continuous spiritual and cultural connection with the land where the tombstones and grave sites were. See also the Supreme Court of Canada case of Delgamuukw v British Columbia [1997] 3 S.C.R. 1010.

The appellants never lost possession of the subject land and their communal native title gives them the right to sue for trespass when their ancestral tombstones and sacred grave sites were desecrated and destroyed by the respondents. Whether the interest of the first respondent is subject to s 4(2)(a) NLC where the communal proprietary rights of the appellants have not been extinguished

The issuance of separate titles to another state-owned entity does not cancel or extinguish the communal and customary proprietary rights of the appellants. We are further fortified in this view after the interpretation by Sagong Tasi CoA (supra) of s 4(2)(a) NLC. Section 4(2)(a)-(j) NLC reads: “(2) Except in so far as it is expressly provided to the contrary, nothing in this Act shall affect the provisions of—

any law for the time being in force relating to customary tenure;

any law for the time being in force relating to Malay reservations or Malay holdings;

any law for the time being in force relating to mining;

any law for the time being in force relating to sultanate lands;

any law for the time being in force relating to wakaf or Baitulmal;

the Terengganu Settlement Enactment 1356 [Terengganu En.

the Padi Cultivators (Control of Rent and Security of Tenure) Act 1967 [Act 793];

the Kelantan Land Settlement Act 1955 [Act 460];

the Land (Group Settlement Areas) Act 1960 [Act 530]; (ia) the Perlis Land Settlement Enactment 1966 [Perlis En. No. 16 of 1966]; or

any law for the time being in force relating to exemptions from the payment of land revenue, 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)

Section 4(2)(a) NLC is a saving clause having a double security as in not only is it a carved out exception in “Except in so far as it is expressly provided to the contrary” but also an entrenched one in that “…if any provision of this Act is inconsistent with any provision of any such law, the latter provision shall prevail,” making void the inconsistent provision of the NLC.

The Court of Appeal in Hajemi bin Din v Elite Agriculture Sdn Bhd [2022] 5 MLJ 363; [2022] 5 CLJ 900, held as follows: “[73] In other words, unless there is a carved out exception, any provisions of the NLC and that would include s.340 on indefeasibility, 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.”

The reference to “law” in s 4(2)(a) of the NLC includes the common law and any custom or usage having the force of law in contradistinction to “written law” that was referred to no less than 46 times in the NLC. Under s 3 of the Interpretation Acts 1948 and 1967, “law” has the meaning assigned by Article 160(2) of the Federal Constitution.

Under Article 160(2) of the Federal Constitution, “law” includes “written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof.” As the common law recognises native title, it constitutes a “law for the time being in force” within the meaning of s 4(2)(a) of the NLC.

Indeed, the Court of Appeal in Sagong Tasi CoA (supra) had occasion to briefly consider this as follows: “32 …Remember that the purpose of the 1954 Act was to provide socio-economic upliftment of the aborigines. Land being a very valuable socio-economic commodity, it was the undoubted intention of the legislature not to deprive those in the class to whom the plaintiffs belong of the customary title existing at common law. In any event the defendants cannot now argue, in view of the Federal Court's affirmation in toto of the judgment of this Court in Adong, that the 1954 Act excludes the plaintiffs’ title at common law. I would add for good measure there is also nothing in the Code, which is the principal statute that regulates titles and dealings in land and interests in land which strikes at the recognition of lands held under customary title. Indeed, s 4 of the Code expressly says that it does not apply to lands held under customary title.” (emphasis added)

Learned counsel for the respondents submitted that by “customary tenure” is meant the customary tenure of the State of Negeri Sembilan and the Settlement of Malacca and not customary tenure of the aboriginal peoples of West Malaysia. They further argued that when the NLC came into force on 1.1.1966, our courts have not recognised any customary rights of the OA over lands in West Malaysia and so “customary tenure” could not have referred to the OA customary tenure over the subject land.

We must state that if the Legislature had wanted to refer specifically to the customary tenure of the State of Negeri Sembilan and the Settlement of Malacca, they could easily have specified the relevant State Enactment or Ordinance as was the case in s 4(2)(f) the Terengganu Settlement Enactment 1356 [Terengganu En. No. 65 of 1356]; s 4(2)(h) the Kelantan Land Settlement Act 1955 [Act 460]; s 4(2)(i) the Land (Group Settlement Areas) Act 1960 [Act 530] and s 4(2)(ia) the Perlis Land Settlement Enactment 1966 [Perlis En. No. 16 of 1966].

In fact, the Customary Tenure (State of Negeri Sembilan) Ordinance 1952 and the Customary Tenure of Land (Settlement of Malacca) Ordinance 1952 were singled out for mention in the Eleventh Schedule of the NLC in the context of repeals under s 438 which reads as follows:

“Repeal and amendment of existing laws

The enactments specified in the Eleventh Schedule are repealed as from the commencement of this Act.”

That being the case, one would be even more cautious not to read words into the provision of s 4(2)(a) NLC words that are not there. Conversely where Parliament had placed the relevant Ordinances with respect to customary tenure in Negeri Sembilan and Malacca in s 438 under “Repeal of …existing laws” we do well not to resurrect them but to discern a deliberate decision to omit them. It was observed by the House of Lords in Magor and St Mellons RDC v Newport Corporation [1952] AC 189 that in the construction of a statute the duty of the court is limited to interpreting the words used by the legislature and it has no power to fill in any gaps disclosed. To do so would be to usurp the function of the legislature.

It is pertinent to note that the Land Acquisition Act 1960 (“LAA”) which came into force on 13.10.1960 and which is applicable only in West Malaysia on land acquisition defines in s 2 “land” as “…alienated land within the meaning of the State land law, land occupied under customary right and land occupied in expectation of title.” (emphasis added)

It goes without saying that Parliament had long recognised native customary right of the OA over the lands they occupied. Thus, under ss 11 and 12 of the APA, compensation was required to be paid to the OA peoples when their land was acquired for a public purpose and being a pre-Merdeka law, its provisions have to be read with the enlightened rights under Article 13(2) of the Federal Constitution with respect to adequate compensation. In Sagong Tasi CoA (supra) this issue had been clarified as follows: “[37] So far as s 11 is concerned, it deals only with any claims the plaintiffs may have to fruit or rubber trees on their land. It has nothing to do with the deprivation of their customary community title to the land. As regards s 12, it is a pre-Merdeka provision. It must therefore be interpreted in a modified way so that it fits in with the Federal Constitution. [40] That is achieved by not reading the words ‘the State Authority may grant compensation therefor’ as conferring a discretion on the State Authority whether to grant compensation or not. For otherwise it would render s 12 of the 1954 Act violative of art 13(2) and void because it will be a law that provides for the compulsory acquisition of property without adequate compensation. A statute which confers a discretion on an acquiring authority whether to pay compensation or not enables that authority not to pay any compensation. It is therefore a law that does not provide for the payment of adequate compensation and that is why s 12 will be unconstitutional. Such a consequence is to be avoided, if possible, because a court in its constitutional role always tries to uphold a statute rather than strike it down as violating the Constitution…”

The respondent’s interpretation of the “law for the time being in force” as referring to “existing law” risks extinguishment of the customary title of the OA by implication, contrary to the principles articulated in Madeli Bin Salleh (supra) where the Federal Court held that native customary rights survive unless extinguished by legislation that is clear and unambiguous.

We agree with the appellants that any contention that the phrase “any law for the time being in force” in s 4(2)(a) of the NLC does not extend to the subsequent recognition of OA Native Customary Rights at common law is misconceived for that expression is more dynamic and evolutionary as contrasted with “the existing law”. Under Article 160(2) Federal Constitution, “Existing law” means any law in operation in the Federation or any part thereof immediately before Merdeka Day.”

In V. Karupanan v. The Empire Theatre [1941] 10 MLJ 96, the Court of Appeal held that the expression “in force for the time being” indicates that the legislation or law is such that it is capable of alteration and operates from time to time. The fact that our Courts did not authoritatively pronounce or declare the common law rights of the OA people with respect to their native title until Adong (supra) in 1997 and Sagong Tasi HC (supra) in 2002 does not mean that in 1966 when the NLC came into force these Customary Native Rights of the OA did not exist.

Learned counsel for the appellants drew our attention to the same construction that has been adopted in other common law jurisdictions. In Management of M.C.D. v. Prem Chand Gupta [1999] SUPP 5 S.C.R 403 at p 415 E, the Indian Supreme Court rejected the argument that only the rules in force at the time the regulations were promulgated were relevant. The Court held that the phrase “rules for the time being in force” meant rules in force from time to time, and not merely those in force in the year of promulgation. Its scope and ambit cannot be circumscribed and frozen only to the point in time when the regulations were promulgated. A similar interpretation of the expression “law for the time being in force” may be seen in J. Parthiban v. State of Tamil Nadu (2008) 2 MAD LW 989 (HC) at para. [17] where it was held that the expression ‘for the time being in force” denotes time indefinite and refers to indefinite state of facts which will arise in future and which may vary from time-to-time.

We therefore find merits in the appellants’ submission that an Act of Parliament is “always speaking”. A statute is to be interpreted in light of present-day conditions unless there is express legislative intent to the contrary. As stated by Lord Steyn in the House of Lords decision in R v. Ireland [1998] AC 147 at p. 158E: “Bearing in mind that statutes are usually intended to operate for many years it would be most inconvenient if courts could never rely in difficult cases on the current meaning of statutes.”

The APA is fundamentally a human rights statute that should be interpreted broadly. Its preamble states that it is enacted “…to provide for the protection, well-being and advancement of the aboriginal peoples of Peninsular Malaysia”. The Federal Court in Tenaga Nasional Bhd v. Bukit Lenang Development Sdn Bhd [2019] 1 CLJ 42 stressed that such a statute has to be interpreted to enhance rather than erode such rights as follows: “[27] It is trite canon of interpretation that statutes which encroach upon rights, whether as regards persons or property,are subject to strict construction in the same way as penal Acts. It is a recognised rule that they should be interpreted, if possible, so as to respect such rights and if there is any ambiguity, the construction which is in favour of the protection of the individual rights should be adopted (see Maxwell on the Interpretation of Statutes (12th Ed) by P. St. J.

The Court of Appeal in Sagong Tasi CoA (supra) had also highlighted the same approach where it observed that: “[20] … the APA is to protect and uplift the First Peoples of this country. It is therefore fundamentally a human rights statute. It acquires a quasi constitutional status giving it pre-eminence over ordinary legislation. It must therefore receive a broad and liberal interpretation. … [23] Lastly, there is Dickason v University of Alberta [1992] 2 SCR 1103 at p1154, where L’Heureux-Dube J said: In order to further the goal of achieving as fair and tolerant a society as possible, this Court has long recognised that human rights legislation should be interpreted both broadly and purposively. Once in place, laws which seek to protect individuals from discrimination acquire a quasi-constitutional status, which gives them pre-eminence over ordinary legislation.”

The State cannot bypass the need to pay adequate compensation to the OA by simply relying on the NLC, taking advantage of the Torrens system of indefeasibility of title and interest to cancel the unwritten customary tenures that existed even before the NLC. So too any private entity that derives their interest from the State; the first respondent here takes its title subject to the native customary title of the appellants. Whether the “right to life” guarantee under Article 5(1) of the Federal Constitution should extend for the OA people to the protection of their burial sites, custom and tradition that is part and parcel of their maintaining spiritual and cultural connection with their ancestral land

The right to life in Article 5(1) is more than just physical existence but that it includes the quality and incidents of a dignified life. In Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261 at 288–289 the Court of Appeal held that Article 5(1) embraces the integral facets of life and matters forming the quality of life, including lawful and gainful employment, societal benefits, a reasonably healthy and pollution-free environment.

We would add that it encompasses human dignity, cultural identity and in the case of the indigenous peoples, the ability to maintain their spiritual and cultural relationship with their ancestors and traditional lands. In fact, it has been recognised in our local jurisprudence as well as international jurisprudence from other commonwealth countries that the indigenous cultural and spiritual identity and survival are inextricably linked with their ancestral lands and their sacred sites and ceremonies.

The desecration or destruction of indigenous graves, burial grounds and ancestral sites strikes at the very core of their cultural identity, dignity and autonomy. We cannot ignore international norms and principles that Malaysia subscribed to when it voted in favour of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) when it was adopted by the United Nations General Assembly on 13.9.2007 during the 61st Session of the General Assembly in resolution A/RES/61/295.

Whilst the UNDRIP is considered soft law, nevertheless it is a representation of what may be regarded as a distillation of the common law rights of the indigenous peoples of the world estimated to be about 370 million native peoples. It is buttressed on the Charter of the United Nations, the Universal Declaration of Human Rights (“UDHR”) and international human rights law. Article 1 of the UNDRIP reads: “Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law.” (emphasis added)

Malaysia has given statutory recognition and endorsement to the UDHR by incorporating the human rights protected under it into our corpus of law in the Human Rights Commission of Malaysia Act 1999 which s 4(4) declares as follows: “For the purpose of this Act, regard shall be had to the Universal Declaration of Human Rights 1948 to the extent that it is not inconsistent with the Federal Constitution.”

Therefore, there is nothing alarming and in fact it would be appropriate to refer to the norms and principles in the UDHR and the UNDRIP as guiding lights on matters of human rights and fundamental liberties of the indigenous people of Malaysia in so far as these are not inconsistent with our Federal Constitution.

As an international law instrument, we cannot ignore it and more so when it is not inconsistent with our Federal Constitution and in our own prismatic approach in interpreting the Fundamental Liberties provisions of the Federal Constitution and the Right to Life guarantee under Article 5(1). Article 5(1) guarantees the OA people’s connection with their ancestral lands through their cultural and ceremonial practices and way of life including the spiritual significance of their tombstones, grave sites and sacred sites in preserving and promoting their communal identity and dignity.

This approach is nothing new and even the House of Lords in the UK had alluded to this approach in Campbell v MGN Limited [2004] UKHL 22 where with respect to the cause of action brought by a fashion icon Naomi Campbell against the publisher of the ‘Mirror’ newspaper in an action for breach confidence, it observed as follows: “16. The European Convention on Human Rights, and the Strasbourg jurisprudence, have undoubtedly had a significant influence in this area of the common law for some years. The provisions of article 8, concerning respect for private and family life, and article 10, concerning freedom of expression, and the interaction of these two articles, have prompted the courts of this country to identify more clearly the different factors involved in cases where one or other of these two interests is present. Where both are present the courts are increasingly explicit in evaluating the competing considerations involved. When identifying and evaluating these factors the courts, including your Lordships' House, have tested the common law against the values encapsulated in these two articles. The development of the common law has been in harmony with these articles of the Convention: see, for instance, Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 203-

204.

The time has come to recognise that the values enshrined in articles 8 and 10 are now part of the cause of action for breach of confidence. As Lord Woolf CJ has said, the courts have been able to achieve this result by absorbing the rights protected by articles 8 and 10 into this cause of action: A v B plc [2003] QB 195, 202, para 4. Further, it should now be recognised that for this purpose these values are of general application. The values embodied in articles 8 and 10 are as much applicable in disputes between individuals or between an individual and a non-governmental body such as a newspaper as they are in disputes between individuals and a public authority.” (emphasis added)

Article 11 of the UNDRIP provides as follows:

Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.

States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.” (emphasis added) 54 102. Article 12 and Article 13 of the UNDRIP provide as follows: “Article 12:

Indigenous peoples have the right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.

States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.

Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.

States shall take effective measures to ensure this right is protected and also to ensure that indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means.” (emphasis added)

The Courts must shine the light of constitutional rights and international norms and values into the exercise of interpreting the common law rights of trespass where customary title unextinguished intersect with registered interests in land or where possession is asserted via contract. When private corporations and persons derive their rights and powers from the State via contract as in this case in their lease, they can only exercise it subordinate to constitutional and common law rights of the indigenous people that remain intact.

We find merits in the appeal and that the Court of Appeal had erred in not recognising that the title of the first respondent is burdened with the customary proprietary rights of the appellants which have not been extinguished and that the appellants continued to maintain their connection with the land culturally and spiritually in their visitation to the grave sites and tombstones and to conduct ceremonies there.

The respondents cannot ride roughshod over the communal customary rights of the appellants and by destroying and desecrating the tombstones and grave sites they have infringed on the native proprietary rights of the appellants for which they are entitled to damages as rightly held by the High Court.

Based on the evidence, the assessment of damages and the quantum granted is neither excessive nor inadequate. We are also not inclined to disturb the finding of special damages not proved. As for exemplary damages, we find that the first respondent was labouring under a misconception of the law and that it had, after the incident, written a letter of apology dated 25.3.2018 to the appellants’ solicitors. It had also trusted the wrong person in the Tok Batin Rahim to whom some compensation money was paid and who in his evidence admitted that he had no authority to represent the appellants. In the circumstances we have no good reason to disturb the dismissal of the claim for exemplary damages.

Questions 3, 4 and 5 of the Questions of Law posed shall be answered as follows:

Whether the locus standi of the Appellants, who are aboriginal peoples/Orang Asli, in a claim in trespass for the desecration or destruction or demolition of an aboriginal/ Orang Asli burial or grave or cemetery site situated in their customary/native title lands is to be based on their collective or community interest in the customary lands? Answer: Yes.

Whether the locus standi of the Appellants who are the aboriginal peoples/Orang Asli in a claim in trespass for the desecration or destruction or demolition of an aboriginal/ Orang Asli burial or grave or cemetery site situated in their customary / native title lands is conditional on a relationship or nexus between the aboriginal persons/Orang Asli and the deceased aboriginal persons/Orang Asli (i.e. that they were descendants of the deceased? Answer: Yes.

Whether the locus standi of the Appellants, who are aboriginal peoples/Orang Asli, in a claim in trespass for the desecration or destruction or demolition of aboriginal / Orang Asli burial or grave or cemetery site situated in their customary/native title lands would cover all affected or damaged grave or tombstones, named or unnamed on the site? Answer: Yes.

Question 6 deals with the issue of Admissibility and Evidential Value of Oral History with respect to oral histories in proving native customary rights’ claims under s 32(1)(d) and (e) of the Evidence Act 1950 as follows:

Whether a claim by the Appellants, who are aboriginal peoples/Orang Asli, in trespass for the desecration or destruction or demolition of aboriginal/Orang Asli burial or grave or cemetery site situated in their customary/native title lands may be supported by evidence of oral history, subject to s 32(1)(d) and (e) of the Evidence Act 1950? Answer: Yes. 58 109. Questions 7, 8, 9 and 10 relate to the issue of the Extinguishment of Customary Rights. They addressed the issue as to whether the Appellants' customary and proprietary rights over their ancestral burial grounds were lawfully extinguished following their relocation and the State's subsequent alienation of the lands to third parties. The questions read as follows:

Whether the rights of the Appellants, who are aboriginal peoples/ Orang Asli, in the aboriginal/Orang Asli burial or grave or cemetery site situated in their customary lands, were extinguished despite their continued and consistent maintenance of their traditional or customary connection to the lands by visiting the burial or grave or cemetery site to perform their rituals, after their relocation by the State Authorities? Answer: No.

Whether the rights of the Appellant, who are aboriginal peoples/ Orang Asli, in the aboriginal/Orang Asli burial or grave or cemetery site situated in their customary lands were extinguished by the State Authority granting a lease over the lands without the prior and informed consent of the aboriginal peoples/Orang Asli and without regard to the rights of the aboriginal peoples/Orang Asli in their customary lands? Answer: No.

Whether the rights of the Appellants, who are aboriginal peoples/Orang Asli, in the aboriginal/Orang Asli burial or grave or cemetery site situated in their customary/native title lands were extinguished by the deprivation of their possession or occupation of the lands and their subsequent relocation by the State Authorities, without any monetary compensation under the Land Acquisition Act 1960? Answer: No.

If the answer to Question 9 is in the affirmative, whether the Appellants are entitled to monetary compensation under the Land Acquisition Act 1960 for the extinguishment of their rights in the aboriginal/ Orang Asli burial or grave or cemetery site situated in their customary lands? Answer: No need to answer the question.

In the light of what we had covered with respect to the issues we needed to decide on to arrive at a decision on this appeal, we find that Questions 11, 12, 13 and 14 relating to Duty of Care are not necessary for us to decide on.

We therefore allowed the appeal and set aside the order of the Court of Appeal and restored the order of the High Court. For ease of reference the High Court had ordered that:

The defendants are liable jointly and severally to pay to each of the plaintiffs the sum of RM20,000.00 each;

Interest at the rate of 5% per annum on the judgment sum from date of writ of summons 21.8.2018 till date of realisation;

Costs of RM20,000.00 to be paid by the defendants to the plaintiffs subject to allocator.

We also ordered costs of RM50,000.00 to the appellants for this appeal to be paid by the respondents, subject to allocator. Dated: 16 June 2026. Sgd. Lee Swee Seng Judge Federal Court Malaysia Solicitors for the Appellants: Steven Thiruneelakandan Yogeswaran Subramaniam Hon Kai Ping Ananthan A/L Nithya Moorthi From Messrs. H.Y. Lee & Hee Solicitors for the Respondents: Wong Hok Mun Henry Ngok Heng Hui Vernise Ng Si Hui From Messrs. Loh Ivan & Lee Hui Date of Decision: 16 June 2026. Legislations referred to: Aboriginal Peoples Act 1954, Preamble, Section 11, 12 Courts of Judicature Act 1964, Section 67(1), 69(1) – (5), 69(5) Customary Tenure (State of Negeri Sembilan) Ordinance 1952 Customary Tenure of Land (Settlement of Malacca) Ordinance 1952 Evidence Act 1950, Section 32(1)(d) and (e) Federal Constitution, Article 5(1), 8(1), 8(5)(c), 13(2), 160(2) Human Rights Commission of Malaysia Act 1999, Section 4(4) Interpretation Acts 1948 and 1967, Section 3 Kelantan Land Settlement Act 1955 [Act 460] Land (Group Settlement Areas) Act 1960 [Act 530] Land Acquisition Act 1960, Section 2 Local Government Act 1976, Part IX Malay Reservation Enactment 1933 National Land Code 1965, Section 4(2)(a)–(j), 340, 438 and Eleventh Schedule Padi Cultivators (Control of Rent and Security of Tenure) Act 1967 [Act 793] Perlis Land Settlement Enactment 1966 [Perlis En. No. 16 of 1966] Rules of the Court of Appeal 1994, rule 1A, 5(1), 5(4), 8(1), 102–105 Terengganu Settlement Enactment 1356 [Terengganu En. No. 65 of 1356] International Declarations: Charter of the United Nations United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”), Articles 1, 10, 11, 12 and 13 Universal Declaration of Human Rights 1948 (“UDHR”) Cases referred to: A v B plc [2003] QB 195 Adong Bin Kuwau v Kerajaan Negeri Johor [1997] 1 MLJ 418 Alexkor Ltd and Another v Richtersveld Community and Others 2003 (12) BCLR 1301 (CC). Amodu Tijani v Southern Nigeria Secretary [1921] 2 AC 399 Campbell v MGN Limited [2004] UKHL 22 Delgamuukw v British Columbia [1997] 3 S.C.R. 1010 / [1997] 3 SCR 1010 Dickason v University of Alberta [1992] 2 SCR 1103 Douglas Ding Jangan & Ors v Kerajaan Negeri Sarawak & Ors [2021] 4 MLJ 946 Euroland & Development Sdn Bhd v Supreme Code Land Sdn Bhd [2024] 4 MLJ 732 Hajemi bin Din v Elite Agriculture Sdn Bhd [2022] 5 MLJ 363; [2022] 5 CLJ 900 J. Parthiban v State of Tamil Nadu (2008) 2 MAD LW 989 (HC) Kabushiki Kaisha Ngu v Leisure Farm Corp Sdn Bhd & Ors [2016] 5 MLJ 552 Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors. [2005] 6 MLJ 289 Ketua Pengarah Jabatan Hal Ehwal Orang Asli v Mohamad bin Nohing (Batin Kampung Bukit Rok) [2015] 6 MLJ 527 Mabo v State of Queensland (1992) 107 ALR 1 Magor and St Mellons RDC v Newport Corporation [1952] AC 189 Management of M.C.D. v Prem Chand Gupta [1999] Supp 5 SCR 403 Mashudan bin Kamar & Ors v Bank Islam Malaysia Bhd [2023] CLJU 1709 Pengerusi Suruhanjaya Pilihanraya Malaysia v See Chee How & Anor [2015] MLJU 1831 Pentadbir Tanah Johor Bahru v Tanah Sutera Development Sdn Bhd [2023] 4 MLJ 567 R v Ireland [1998] AC 147 R v Van Der Peet [1996] 4 C.N.L.R. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 Sagong bin Tasi & Ors v Kerajaan Negeri Selangor & Ors [2002] 2 MLJ 591 Sumarni v Yow Bing Kwong & Anor [2008] 3 CLJ 489 Superintendent of Lands & Surveys, Bintulu v Nor Anak Nyawai & Ors and another appeal [2006] 1 MLJ 256 Superintendent of Lands & Surveys, Miri Division & Anor v Madeli Bin Salleh (suing as Administrator of the Estate of the deceased, Salleh bin Kilong [2008] 2 MLJ 677 Tan Kim Beng & Ors v Datuk Yen Ying Pang @ Kenneth Yen Yin Pin & Ors [2013] 4 MLJ 437 Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261 Tenaga Nasional Bhd v Bukit Lenang Development Sdn Bhd [2019] 1 CLJ 42 V. Karupanan v The Empire Theatre [1941] 10 MLJ 96 Yebet bt Saman & Ors v Foong Kwai Long & Ors [2015] 2 CLJ 929