BTH Lee J:

This is an appeal from a judgement of the District Court, Simanggang, given on 4 September 1972.

The appellants (17 in all) alleged that they are claiming customary rights over the land, the subject matter of this appeal.

On behalf, of the appellants a number of grounds were raised.

To my mind the main question upon which this appeal turns is simply one of fact.

I do not propose to recapitulate in detail the evidence that was given by all the 17 appellants. But it would be expedient to set out shortly the evidence which bears on the question of customary rights over the land of which they lay claim.

That all the appellants in this case failed to discharge the burden of proof which lay upon them to prove that at the time of Settlement they were entitled to the parcels of land is plain enough.

Their evidence has been proved to be uncorroborated, unconvincing, contradictory, and based partly on hearsay evidence.

In so far as identification of the land is concerned the appellants had no means of identifying the land. Their evidence as it stood seemed vague, unsatisfactory and unreliable.

I will deal first with the evidence of TR Marim (PW5) and John Shim (PW19).

TR Marim (PW5) called in support of Omar's (Appellant No. 4) claim said he was only 13 when the jungle was felled and only visited the land once subsequently i.e. 40 years later. On that occasion he knew it was Omar's land because Omar himself told him so.

John Shim (PW19) merely raised speculations. He said:

It is impossible to miss customary rights,"and earlier he said:" I do not think there was any surrender.

The following witnesses could speak as to matters only by hearsay.

Appellant No. 3 said her father and mother told her about this land i.e. that her father felled the jungle. Appellant No. 7 said his father felled the jungle on the land. He did not know when. His father told him that he felled.

The evidence of identification of the parcels of land is hardly convincing:

Witness No. 1 (Appellant No. 1) said in cross-examination she cannot point out the piece of land on the map but she can show the site of the land.

Appellant No. 3 said she visited the land only once when she was eight years old and then twice when she was 32 years.

The land was not cultivated in the meantime but her husband is able to point out the boundaries to the surveyor.

Appellants No. 6, 10 and 11 did not point out their boundaries to the surveyor at the time of survey, but allowed their neighbours to do it.

TK Abu Talip (Appellant No. 17) was supposed to have 'verified' a lot of the boundaries, but in cross-examination it was revealed that he did not actually visit the lands. He admitted he could not actually be sure of the boundaries."

Some of the reasons given in evidence carried little conviction:

Appellant No. 8 says he regularly farmed this land. He filled in a form claiming this land during the Settlement but omitted to mention this vital fact. When asked in re-examination the reason, he said he forgot i.e. he forgot he had been regularly farming the very piece of land he was claiming.

Appellant No. 9 says he has not farmed the land since the Japanese occupation because he had no title. But this factor did not stop him farming before the Japanese occupation.

Appellants No. 11 and 12 say they often visit the lots they are claiming just to look at them.

Almost all the Appellants say they want to make use of the land, but have not done so for 25 years.

Appellant No. 16 has not used the land he is claiming since 1946 or 1947 because no one has made use of the surrounding land.

It is I consider worth noting that no evidence was adduced to show that the land was allowed to fallow. Quite clearly the appellants had in their evidence offered some other reasons.

Some of the evidence can scarcely be called evidence at all.

Appellant No. 7 says his father gave him the land. His father told him he felled the jungle. He does not know if his father ever c