(1) (delivering judgment of the court)

Facts, background and the issues

(2) 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.

(3) 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.

(4) 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.

(5) 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.

(6) 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 disposse