Kerajaan Negeri Selangor v Sagong bin Tasi

JurisdictionMalaysia
CourtCourt of Appeal (Malaysia)
Judgment Date19 September 2005
Date19 September 2005
Malaysia, Court of Appeal.

(Sri Ram, Arifin Zakaria and Nik Hashim JJCA)

Kerajaan Negeri Selangor and Others
and
Sagong bin Tasi and Others1

Human rights — Property rights — Recognition of indigenous land rights — Whether common law recognizing existence of customary communal title in plaintiffs — Whether radical title of State burdened by native or customary title — Nature of customary title — Whether Aboriginal Peoples Act 1954 excluding any common law right

Damages — Whether deprivation of land requiring compensation under Aboriginal Peoples Act 1954 or Land Acquisition Act 1960 — Whether plaintiffs entitled to receive compensation for ungazetted land — Whether award of exemplary damages appropriate — The law of Malaysia

Summary: The facts:—The plaintiffs were aboriginal peoples of the Temuan tribe settled on the Bukit Tampoi lands. These customary and ancestral lands belonged to the Temuans who had occupied them for generations. The plaintiffs maintained the traditional connection with the lands, the customs in relation to which were distinctive to the Temuan culture. Part of that land was gazetted as aboriginal land under the Aboriginal Peoples Act 1954 (‘the 1954 Act’).2 The plaintiffs were evicted from the land by the defendants for the purpose of the construction of an expressway. The plaintiffs brought an action against the four defendants (the State Government of Selangor,3 a limited road construction company, the Malaysian Highway Authority and the Government of Malaysia4) for several declarations, compensation and damages in relation to the compulsory deprivation of their land.

The High Court granted the plaintiffs compensation under the Land Acquisition Act 1960 (‘the 1960 Act’) for deprivation of land found to have been held under customary title. The defendants appealed. They denied the existence of a customary community title, not permitted under the 1954 Act, and maintained that compensation should have been in accordance with Sections 11 and 12 of the 1954 Act5 rather than the 1960 Act.

Held:—The appeal was dismissed. The orders of the Court are set out at paragraph 70 of the judgment.

(1) Common law recognized the existence of customary title in the plaintiffs. On the evidence and findings of fact there was no doubt that the plaintiffs had ownership of the lands in question under a customary community title of a permanent nature. The definitive position at common law was that radical title to land, vested in the Sovereign or State, could be burdened by a native or customary title. The nature of customary title depended upon the practices and usages of each individual community to be ascertained on the evidence as a question of fact (paras. 9–12).

(2) The 1954 Act did not exclude the common law position. There was ample authority from extrinsic material that the purpose of the 1954 Act was to protect and uplift the First Peoples of Malaysia. Since it was fundamentally a human rights statute, the 1954 Act had acquired a quasi-constitutional status with pre-eminence over ordinary legislation. As such it was to be constructed liberally in favour of the aborigines, particularly with respect to the valuable socio-economic commodity of land. Neither did any provision in the Code, the principal statute regulating titles and interests in land, detract from the recognition of customary title which was also recognized in other jurisdictions. In any event, Malaysian precedent had established that indigenous rights at common law existed despite the 1954 Act (paras. 12–34).

(3) Since the plaintiffs were occupying their land under customary right recognized by the 1954 Act, when compulsorily deprived of their land they were entitled to compensation in accordance with the principles laid down by Malaysian courts under the 1960 Act. By adopting a liberal interpretation, the trial judge was merely giving full effect to Article 8(5)(c) of the Federal Constitution, which sanctioned positive discrimination in favour of the aborigines. The plaintiffs were plainly entitled to a declaration that they also had customary title to the ungazetted part of the land for which compensation was also due under the 1960 Act. An award of exemplary damages against the second and third defendants was appropriate on the evidence of the oppressive treatment received by the plaintiffs (paras. 35–68).

The text of the judgment of the Court, delivered by Sri Ram JCA, commences on the following page.

FACTS, BACKGROUND AND THE ISSUES

1. There are four 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 four 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 Sagong bin Tasi & Ors v. Kerajaan Negeri Selangor & Ors [2002] 2 MLJ 591. 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.

2. 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.

3. 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.

4. The first defendant is the State Government of Selangor. And by written law, namely, the National Land Code 1965 (‘the Code’) it is the owner of all unalienated land within its geographical boundaries, including the land settled upon by the plaintiffs. The second defendant is a public limited company. It carries on, inter alia, the business of road construction. The third defendant is the Malaysian Highway Authority. It is a statutory authority which is, in very general terms, in charge of the highways in this country—or at least in the Peninsular. The fourth defendant is the Government of Malaysia. It is the owner of all Federal land.

5. Part of the land settled upon by the plaintiffs was gazetted as Aboriginal land under the Aborigines Peoples Act 1954 (‘the 1954 Act’). The other parts upon which they had settled were not so gazetted. A large strip across all this land was excised for the purpose of an expressway which the second defendant was to construct. In consequence, the plaintiffs were dispossessed. Their houses were demolished. The evidence is crystal clear that they were evicted rather unceremoniously and left to fend for themselves and their families. They were offered and paid compensation in accordance with s 12 of the 1954 Act which they accepted under protest and without prejudice to their rights. Later, I will refer to and deal with s 12 and some of the other sections of the 1954 Act.

6. The plaintiffs were dissatisfied with the way in which they were dealt with by the defendants. They brought an action for several declarations, compensation and for damages for trespass. The latter claim was directed only against the third defendant. But the judge thought that it was also directed against the second and fourth defendants. He purported to dismiss it for reasons which are, in my judgment, fatally flawed. But I will say no more than necessary about it later in this judgment since nothing in these appeals turns upon it in so far as the first and fourth defendants are concerned.

7. At the trial of the action a mass of evidence was led by the plaintiffs to prove their claim. Some of it was archival. All of it was strictly relevant to the issues the High Court was trying. The defendants did not even try to rebut the plaintiffs' claim to title. Most of their evidence appears to have been directed upon matters of subsidiary importance. After a fairly lengthy hearing, the judge held that the plaintiffs were the owners of the gazetted land under customary title. He awarded them compensation for deprivation of that land under the 1960 Act. The first and fourth defendants have appealed against it. He...

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1 books & journal articles
  • THE COURTS AND THE ENFORCEMENT OF HUMAN RIGHTS
    • Singapore
    • Singapore Academy of Law Journal Nbr. 2020, December 2020
    • 1 December 2020
    ...832 at [28]. 52 Noorfadilla bt Ahmad Saikin v Chayed bin Basirun [2012] 1 MLJ 832 at [32]. 53 Kerajaan Negeri Selangor v Sagong bin Tasi [2005] 6 MLJ 289. 54 (1980) 64 ALR 1. 55 Public Prosecutor v Pung Chen Choon [1994] 1 MLJ 566. 56 [1994] 1 MLJ 566. 57 Act 301. 58 Public Prosecutor v Pun......

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