Tuesday, August 3, 2010


19 SEPTEMBER 2005Case History : High Court : [2002] 2 CLJ 543 JUDGMENT
Gopal Sri Ram JCA:
Facts, Background And The Issues
There are 4 appeals and a cross appeal before us. For convenience, I will refer to the parties according to the titles assigned to them in the court below. The appeals have been brought by each of the 4 defendants. Their complaints are directed against the judgment of the High Court granting the plaintiffs compensation under the Land Acquisition Act 1960 ("the 1960 Act") for loss of certain land which the judge found to have been held under customary title. His judgment is reported in [2002] 2 CLJ 543. The facts of this case have been - to adopt the expression currently in vogue - sufficiently 'interrogated' in that judgment. That spares me regurgitating the facts here. I need only say something about them for the limited purpose of understanding the arguments that have been canvassed before us.

The plaintiffs (which expression appearing throughout this judgment includes all those whom they represent) are aboriginal peoples of the Temuan tribe. They are the First Peoples of the States of Malaya. They are, by their custom and tradition, settled peoples. In other words, they are not nomadic as are some of their other aboriginal brothers and sisters. They settle on the land. They cultivate it with crops. They put up buildings on the land. They also exercise rights of usufruct over the surrounding area. In other words they forage and fish in that area. In this case the lands in question are in Bukit Tampoi.

Now, the judge made several findings of fact in the plaintiffs' favour. None of these are the subject of challenge before us by the defendants. That is hardly surprising. His findings of fact which form the substratum of the case for making out customary community title are amply supported by cogent evidence. All the facts as found by the judge are therefore accepted by the defendants. Some of his primary findings of fact are as follows:

(a) the Bukit Tampoi lands, including the land, have been occupied by the Temuans, including the plaintiffs, for at least 210 years and the occupation was continuous up to the time of the acquisition;

(b) the plaintiffs had inherited the land from their ancestors through their own adat;

(c) the Temuans who are presently occupying the Bukit Tampoi lands including the plaintiffs in respect of the land are the descendants of the Temuans who had resided thereat since early times and that the traditional connection with the Bukit Tampoi lands have been maintained from generation to generation and the customs in relation to the lands are distinctive to the Temuan culture; and

(d) the Bukit Tampoi lands, including the land, are customary and ancestral lands belonging to the Temuans, including the plaintiffs, and occupied by them for generations.

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