Arifin Zakaria FCJ (delivering judgment of the court)::

PRELIMINARY OBJECTION

[1] By notice dated 2 November 2006, the learned counsel for the respondent gave notice of preliminary objection that leave to appeal ought not to have been given in respect of questions (i) to (vi), or alternatively, this court should decline to answer these questions because they do not fall within the ambit of s 96(a) of the Courts of Judicature Act 1964 (‘CJA’) on the grounds stated in the notice. In this regard we are in agreement with the view expressed by Abdul Hamid Mohamed JCA (as he then was) in Raphael Pura v Insas Bhd & Anor [2003] 1 MLJ 513 where in delivering the majority judgment he stated at p 543:

The first question that arises from this submission is whether, the

leave having been granted by this court and now that this court (this

panel) is constituted to hear the appeal, this court (this panel)

should allow the respondents to re-open the issue whether the leave

should have been granted or not.

Generally speaking, it should not. The issue has been decided by this

court. It is res judicata. A party should not be given a second bite of

the cherry. A new panel of this court should not be reversing the

decision of the earlier panel of the same court. There should be

consistency in the judgment of the court.

However, where the granting of the leave is challenged on the ground of

lack of jurisdiction, this court has held that the granting of the

leave to appeal to this court may still be challenged even at the

hearing of the appeal.’

[2] We are of the considered view that the issue of jurisdiction have been sufficiently dealt with by this court at the leave stage, therefore, we do not propose to revisit the issue. For those reasons we dismissed the preliminary objection with costs. We then proceeded to hear the appeal proper and having heard arguments of both parties we adjourned the matter for our [*685] consideration and decision. We now give our decision and the reasons for the same.

THE CLAIM

[3] The respondent (plaintiff in the court below), Salleh bin Kilong, brought this action seeking declarations, inter alia, that the respondent was at all material times a licensee under native customary rights of all that parcel of land situate at Miri/Pujut Road, measuring approximately 6.00 acres in area, and forming part of Lot 660 Block 8 Miri Concession Land District (‘the said land’); and that the act of the appellants (defendants in the court below) to declare the said land as a park and later developed it into a school constitute a wrongful interference with the appellant’s enjoyments of his native customary rights. Salleh bin Kilong had passed away before the appeal was heard by the Court of Appeal and had been substituted by his son, Madeli bin Salleh, who is also the administrator of his estate.

[4] The respondent’s pleaded case is as follows: For many years prior to 1 January 1958, his father and later himself had acquired and exercised native customary rights over the said land by clearing, occupying and planting rubber trees and later fruit trees. Thus the respondent’s claim is rooted on long and continuous occupation of the said land. The second appellant by gazette notification dated 24 Disember 1982 declared the said land to be a Government reserve for the purpose of a park and later it was developed into a school. The respondent alleged that the said act of the second appellant without prior extinguishment of the respondent’s native customary rights and payment of compensation was wrong in law and constituted wrongful interference with his rights and enjoyment of the said land.

[5] In their defence the appellants contended, inter alia, (a) that the respondent had not acquired native customary rights over the said land as the said land was an ex-Shell Concession Area and as such no customary rights is capable of being created thereon; (b