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2014 MarsdenLR 2516
COURT OF APPEAL PUTRAJAYA
ABU BAKAR PANGIS & ORS – Appellant
Versus
TUNG CHEONG SAWMILL SDN BHD & ORS – Respondent
[Civil Appeal No: Q-01-237-05-2012]
The court recognized that claimants of Native Customary Rights must prove their claims on a balance of probabilities, emphasizing the need for a sympathetic judicial approach towards claims originating from historical context.
Headnote:(A) Native Customary Rights - Land disputes - The appellants claimed NCR lands in Kampung Selanyau that were alienated without extinguishing their rights - Various provisional leases were granted to the 1st respondent without proper consultation - The High Court dismissed the suits on grounds of insufficient proof by the appellants regarding their NCR claims. (Paras 1-4, 11, 12, 14, 89, 92, 104)
(B) Burden of Proof - The court highlighted the evidentiary challenges faced by claimants of NCR rights due to historical lack of records - The court recognized that the plaintiffs needed to demonstrate their land occupation on a balance of probabilities. (Paras 17, 21, 94)
(C) Appellate Review - The principle that an appellate court should not interfere with findings of fact unless demonstrated to be perverse was underscored, alongside the unique nature of NCR claims requiring detailed scrutiny of evidence. (Paras 9, 10, 41, 104)
Facts of the case:
The appellants initiated representative actions for their claims over untitled lands historically occupied by their ancestors since 1909 but faced land alienation through provisional leases granted to the 1st respondent.
Findings of Court:
The court found discrepancies in the High Court’s dismissal of the claims and recognized the appellants' maintained occupancy of the lands since their ancestral times.
Issues: The main issues included the adequacy of evidence supporting the NCR claims, the appropriateness of the High Court's factual findings, and the legal status of alienation without extinguishment of NCR rights.
Ratio Decidendi: The court held that the High Court erred in its assessment of the evidence, particularly regarding the burdens of proof and the appraisal of witness credibility, concluding that the appellants did prove their NCR claims on a balance of probabilities.
Result: Appeals allowed; damages to be assessed to be paid by the 2nd and 3rd respondents.
| Table of Content |
|---|
| 1. appellants' claims for ncr over disputed lands. (Para 1 , 2 , 3) |
| 2. court's review of high court's decision. (Para 4 , 5 , 6) |
| 3. court reasons for reviewing findings of fact. (Para 7 , 8 , 9 , 10) |
| 4. evidentiary standards for ncr claims. (Para 11 , 12 , 13 , 14 , 15) |
| 5. judicial standard for review of evidence. (Para 16 , 17 , 18 , 19 , 20) |
| 6. burden of proof in ncr claims. (Para 21 , 22 , 23 , 24 , 25) |
| 7. judicial appreciation of ncr evidence. (Para 26 , 27 , 28 , 29) |
| 8. tests for proving ncr claims. (Para 30 , 31 , 37) |
| 9. reliability of witness testimonies in ncr claims. (Para 32 , 33 , 34 , 35) |
| 10. the significance of oral history in ncr claims. (Para 36 , 38 , 39) |
| 11. evidence regarding ancestral claims. (Para 40 , 41 , 42 , 43 , 44) |
| 12. court’s observation on documentary evidence. (Para 45 , 46 , 47 , 48) |
| 13. presumption of native claims in absence of evidence. (Para 49 , 50 , 51) |
| 14. judicial approach towards ncr jurisdiction. (Para 52) |
[1] The appellants had commenced representative actions suing on behalf of themselves and 150 other occupiers, holders and claimants of Native Customary Rights (NCR) Land individually claimed and/or owned by the plaintiffs respectively, located at Kampung Selanyau, Sibuti 98150 Bekenu, Miri, Division.
[2] The areas claimed were untitled land. The appellants alleged, in Suit No: 22-16-2003 (MR), that their NCR over the disputed areas were infringed or impaired by the grant of a Provisional Lease described as Lot 3935 Lambir Land District to the 1st respondent on or about 6 February 2001. In Suit No: 22-19-2003(MR), the appellants alleged that their NCR rights were infringed or impaired by the grant of a Provisional Lease on or about 14 April 1997 over Lot 3927 Lambir Land District to the 1st respondent, without extinguishment of their alleged NCR rights over the disputed areas. The respondents denied they had any such NCR rights as claimed.
[3] The boundaries of Lot 3935 and Lot 3927 generally correspond with the areas claimed by the appellants as shown in the maps marked "A" and annexed to the respective statement of claims.
[4] The appellants' suits were tried together and dismissed upon the ground that the appellants herein had in each civil suit failed to prove their NCR claims upon a balance of probabilities. The appeal before this court related to the findings of fact and alleged misdirection of law in the High court.
[5] We noted that the primary grounds of appeal pertained to the grant by the 2nd and 3rd respondents of the two provisional leases to the area encompassing the lands claimed under NCR by the appellants, and the 1st respondent was merely applicant and the recipient of the provisional leases. The 1st respondent was named solely because in both cases it was the recipient of the provisional leases and in accordance therewith entered upon the lands to proceed to develop the lands. There is on record no evidence adduced that the 1st respondent was, apart from making the application and accepting the provisional leases, involved in the cause of action of the appellants against the 2nd and 3rd respondents. The merits of the case, therefore, concerned a matter between the appellants and the 2nd and 3rd respondents.
Appellate Intervention On Findings Of Fact
[6] After citing APV Hill & Mills (M) Sdn Bhd v. AQ-Pacific Wide Sdn Bhd & Anor, , it was submitted for the 2nd and 3rd respondents that the High court:
"... did not make any inference based on his findings of fact. He actually found as a fact, that the appellants had not discharged the burden of proof that they had NCR over the area claimed or had failed to prove their NCR claims on the balance of probabilities."
[7] In considering this submission, we examined and had to resort to the precise language describing concepts in civil procedure. We set out the following to demonstrate the concepts and their place in the steps towards conclusion and decision by a court:
(a) A plaintiff pleads the cause of action he relies upon and
