The burden of proof for native customary rights lies with the plaintiffs, who must demonstrate continuous occupation and authority to represent the community in rights claims over the land.

Table of Content
1. burden of proof lies with claimants to show continued occupation. (Para 71)

Mr Yong See Mee alternatively submitted that this being a representative action for communal rights over land (without abandoning his primary submission that this fact was not pleaded in the statement of claim), the fact that the villagers were not united in their pursuit of the alleged communal right must mean that the claim should fail. He did not cite any past decisions to support his point above but, Mr Saferi Ali for the 2nd to 3rd defendants, referred me to the decision of Ravinthran Paramaguru JC (as His Lordship then was) in Sanabung Sampai & Ors v. Hydroflow Sdn Bhd & Ors, [2014] 7 MLJ 429 where His Lordship held that the plaintiff's other claim based on pemakai menoa (the claim was also premised on temuda) failed because their action did not have the support of other longhouses which were in the vicinity of the claimed native customary rights land as well. Granted that the area claimed to be native customary rights land in that case was a large one, 5,000 acres whereas in this case the 1st plaintiff said it is about 40 to 50 acres, (although the Matek ak Geram said it was 267.95 hectares), the fact that I cannot ignore is that, even worst that in Sanabung's case (supra), the villagers themselves are not unanimous in their assertation of having native customary rights over the land. I agree with the stand taken by His Lordship in Sanabung's case (supra) that when not just one or two, but a large number of those from the same villagers, or longhouse are not likeminded with the plaintiffs, their representative action based on communal use of the land should fail. Furthermore in this case, the number of those who are not with the plaintiffs in this action are too large to ignore or to explain away."

[Emphasis Is Mine]

[55] Further, this court also finds that there was no considerable unanimity among the claimants to bring a claim of NCR, especially when the land involved is large. Guidance can be found in Sanabung Sampai case supra where the court held inter alia as follows:

"It is beyond dispute that the 'pemakai menoa' is for the benefit of an entire community. Therefore, although not every resident or headman in the area of interest was required to appear in court to support the claim, there should at least be considerable unanimity amongst the residents and the different villages bordering the purported 'pemakai menoa' in respect of their right to assert a claim to it."

[Emphasis Is Mine]

[56] This court finds that from the list of names and signatures of the persons that the plaintiffs claimed to represent, which was stated in exhs P5 to P12 of PBOD, the list of names and signatories does not contain the names and signatures of all the other occupiers, holders and claimants of NCR land, in and surrounding the six Longhouses. It only contained a mere total of 51 people who are claiming the said NCR Lands.

[57] PW4 testified that in Rumah Dingon alone which is one of the six Longhouses, there are 26 doors with an average of five to ten family members. On the assumption that there are eight people in one household, then Rumah Dingon will have about 208 occupants. The list of names of residents from Rumah Dingon that took part in this action in exh P7 showed that there are only 13 names, which is less 10 percent of the occupants. Thus this court finds that the plaintiffs cannot be said to be representing all the other occupiers, holders and claimants of NCR land surrounding Rumah Dingon. Thus the element of "considerable unanimity" among the residents of the six Longhouses is clearly missing.

[58] PW8 (the 1st plaintiff) testified that he only represented those who had NCR land, thus PW8 is contending that out of the assumed 208 inhabitants of Rumah Dingon, only 13 occupants had NCR land. This court finds that it is simply not credible that only less than 10 percent of the occupants of Rumah Dingon or a small percentage of Rumah Dingo

Click Here to Read the rest of this document