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Court and Tribunal Decisions - Malaysia
High Court of Malaya (Shah Alam, Malaysia) (Mohd Noor Ahmad J)
12 April 2002
Aboriginal peoples’ right over land — compulsory acquisition of ancestral land by government — whether proprietary interest of aboriginal people in their customary land was an interest in and to the land — whether aboriginal peoples’ right under common law extinguished by Aboriginal Peoples Act 1954 — Meaning of ‘land occupied under customary right’ — Land Acquisition Act 1960 s 2 — Federal Constitution art 13(2) — adequate compensation — oral history — Evidence Act 1950 ss 32(d) (e)
The plaintiffs are orang asli of the Temuan tribe. On 13 February 1996, pursuant to an acquisition of land, the Sepang District Land Administrator gave written notices to the plaintiffs to vacate the land they were occupying within 14 days failing which enforcement action would be taken (the notices).
The plaintiffs did not comply. They felt the compensation offered was inadequate. The first defendant claimed that the land was state land. The defendants had refused to recognize that the plaintiffs had any proprietary interest in the land or any interest in it at all. The defendants refused to compensate the plaintiffs for the value of the land, except for loss of crops, fruit trees and their homes, that is, the building structures only.
On 21 March 1996, the plaintiffs were asked to report at a police station to collect their compensation cheques. The third and seventh plaintiffs complied.
On 22 and 27 March 1996, the plaintiffs were evicted from the land by a police operation with support from the Federal Reserve Unit in the presence of the officials from the District Land Office, the Officials of the second (United Engineers) and third (Malaysian Highway Authority) defendants and of the Jabatan Hal Ehwal Orang Asli (Department of Aboriginal Peoples’ Affairs). The fruit trees, crops, houses, Balai Raya and Balai Adat of the Temuan community were destroyed.
The plaintiffs filed a writ seeking declarations that they are the customary owners, original title holders and the holders of usufructuary rights in respect of the land claiming relief for trespass, illegal eviction and breach of fiduciary duty.
1. The land had been continuously occupied by the Temuans including the plaintiffs for at least 210 years up to the time of the acquisition. They were customary lands and ancestral lands belonging to the Temuans including the plaintiffs and occupied by them for generations.
2. The proprietary interest of the orang asli in their customary and ancestral lands was an interest in and to the land, limited however to the area forming their settlement but not to the jungles at large where they used to roam to forage for their livelihood in accordance with their tradition.
3. In order to determine the extent of the aboriginal people’s full rights under the law, their rights under the common law and the statute had to be looked at conjunctively, for both the rights were complementary, and the Aboriginal Peoples Act 1954 (the Act) did not extinguish the rights enjoyed by the aboriginal people under the common law.
4. The defendants purported to compensate the plaintiffs only for what had been provided for under the Act. Such compensation was not adequate within the meaning of art 13(2) of the Federal Constitution, although the Act was a special Act relating to the aboriginal people. The deprivation of the plaintiffs’ proprietary rights was unlawful.
5. As the land was continuously occupied and maintained by the plaintiffs to the exclusion of others in pursuance of their culture and inherited by them from generation to generation in accordance with their customs, it fell within the ambit of ‘land occupied under customary right’ within the meaning of the definition of s 2 and the Land Acquisition Act 1960 (LAA). Therefore, the plaintiffs must be compensated in accordance with the LAA.
6. The first and fourth defendants owed fiduciary duties towards the plaintiffs which had been breached and therefore, the plaintiffs must be compensated for the loss suffered which was the value of the land. However no order was made for the breach of fiduciary duties since it was not specifically prayed for and to avoid duplicity in view of the award of compensation made in accordance with the LAA.
7. The eviction of the plaintiffs from the land was unlawful because the 14 day notice given was unreasonable and insufficient. Trespass had been committed against the possession of the land by the plaintiffs and the second and third defendants were liable.
8. In principle, oral histories of the aboriginal societies relating to their practices, customs and traditions and on their relationship with land should be admitted subject to the confines of the Evidence Act 1950, in particular s 32(d) and (e), that is to say (i) they must be of public or general nature or of public or general interest; (ii) the statement must be made by a competent person, that is one who ‘would have been likely to be aware’ of the existence of the right, customs or matter; and (iii) the statement must be made before the controversy as to the right, customs or matter had arisen.
The Plaintiffs sue in a representative capacity in respect of themselves and on behalf of each and every member of their respective families. The suit was filed as a result of dispute that arose out of the eviction of the plaintiffs and their respective families from 38.477 acres of land situated at Kampung Bukit Tampoi, Dengkil, Selangor (the ‘Land’). In March 1996, the land was acquired for the purpose of the construction of a portion of the highway to the Kuala Lumpur International Airport. The land was in the shape of a strip running through a gazetted aboriginal reserve under the Aboriginal Peoples Act 1954 (the ‘Act’) and also land customarily occupied by the orang asli, therefore classified as an aboriginal area or an aboriginal inhabited place under the Act. In the context of the purpose of the acquisition of the land, the 1st defendant (the Selangor State Government) is the acquiring authority which acquired the land through the Sepang District Office. The 4th defendant (the Federal Government) is the decision maker to undertake the construction of the Highway, the 3rd defendant (the Malaysian Highway Authority) is the authority to supervise and execute the design construction and maintenance of the Highway and the 2nd defendant (United Engineers (M) Bhd) is the contractor engaged to construct the Highway.
By this writ action, the plaintiffs seek the following declarations:
(a) that the plaintiffs are the customary owners, the original title holders and the holders of usufructuary rights in respect of the land;
(b) that their customary ownership, original title and usufructuary rights to the land are not destroyed, restricted or extinguished;
(c) that their ownership, title and usufructuary rights and/or that of the orang asli or their ancestors to the land are entitled to be protected by the 1st defendant by reason of a fiduciary duty owed or the existence of a trust;
(d) that the 1st defendant owes a fiduciary duty to them and their ancestors or is their trustee in respect of the ownership, title and rights claimed;
(e) that the 1st defendant has no rights to destroy, restrict or extinguish their ownership, title and rights to the land without compensation; and
(f) based on the reliefs sought, a declaration:(i) that the exercise of any power or action taken by any person or authority to destroy, restrict or extinguish their customary rights and title to the land is not valid and therefore is null and void, in particular, the notice for vacant position issued by the Sepang Land Administrator; and
(ii) that each of them, as beneficial owners of the land, is entitled to adequate compensation as stipulated in the Land Acquisition Act 1960 (the ‘LAA’) in respect of the land which had been destroyed, restricted or extinguished by or on behalf of the 1st defendant.
The plaintiffs also pray for the following orders:
(i) the first defendant to pay adequate compensation for the land;
(ii) the second and third defendants to pay damages for trespass;
(iii) the first defendant to pay damages for the illegal eviction; and
(iv) special damages.
Consequently, and in the alternative, the plaintiffs ask for the following reliefs:
(a) a declaration that the land is ‘Malay Reservation’ within the meaning of art 89 (6) and protected under art 89 (1) of the Federal Constitution (‘the Constitution’);
(b) a declaration that all actions taken by the defendants which deprived the plaintiffs of the use and enjoyment of the land are unconstitutional, invalid and therefore, null and void;
(c) a declaration that the land is protected by reason of usufructuary rights, customs and ancestral occupation;
(d) a declaration that the land is originally, or based on laws, protected;
(e) a declaration that it is the duty of the 1st and 4th defendants to protect the rights of the plaintiffs in the land under the Act, read with arts 8 (5) and 162, or separately, under art 8 (5) of the Constitution;
(f) a declaration that the 1st and 4th defendants are estopped from claiming, asserting or taking a stand that the land is not protected under the law by relying on their improper actions or failure to take proper steps to protect the rights of the plaintiffs to the land;
(g) damages; and
(h) interests and costs.
Briefly, the undisputed facts are these. The plaintiffs are orang asli of the Temuan Tribe. Pursuant to the Acquisition of the land on 13 February 1996, the Sepang Land Administrator gave written notices to the plaintiffs to vacate the land within 14 days, failing which enforcement action would be taken (the notices). The plaintiffs did not comply for obvious reason that they were not happy with the amount of compensation. The first defendant claims that the land is state land and the defendants have refused to recognize that the plaintiffs have any proprietary interest in the land or any interest therein at all. Hence, the defendants have refused to compensate the plaintiffs for the value of the land lost except for the loss of their crops and fruit trees, and the loss of their homes, ie the building structures only. On 21st March 1996, the plaintiffs were asked by the Sepang Police to report at the Dengkil Police Station to collect their compensation cheques. Only the 3rd and 7th Plaintiffs collected the cheques. On 22 and 27 March 1996, the plaintiffs were evicted from the land by a police operation with support from the FRU in the presence of the officials from the Sepang District Office, the officials of the 2nd and 3rd defendants and of the Jabatan Hal Ehwal Orang Asli (‘the JHEOA’). The fruit trees and the crops on the land were destroyed, the houses, the balai raya and the balai adat of the Temuan Community thereat were demolished. On 14 June 1996, the plaintiffs received their cheques for the limited compensation under protest and without prejudice to their legal rights.
... [preliminary points dealt with]
Now I will deal with the substantive claims of the plaintiffs. The plaintiffs contend that the notices are unlawful and that the entry of the defendants onto their land to demolish their houses and destroy their crops and deprive their continued occupation of the land is an act of trespass. The claims are based on their rights at common law, statutory law and under the Constitution.
At common law, they claim as owners by custom, the native title and the holders of usufructuary rights over the land. They contend that the land was customary and ancestral land occupied by them and their forefathers for generations.
Under statutory law, they claim the protection of the Act and that both under the Act and the Constitution, the 1st and 4th defendants as governments, owed a fiduciary duty towards them to protect their welfare and the land, and are therefore holding the land as trustees for them.
And under the Constitution they claim:
(i) that by reason of their customary and proprietary rights over the land from time immemorial, the land is classifiable as ‘Malay reservation land’ within the wide meaning of the expression in art 89(6) of the Constitution. The land is therefore protected land.
(ii) that the 4th defendant is under a positive duty under art 8(5) of the Constitution, read together with the Act and art 162 of the Constitution to take appropriate steps to protect the land rights of the orang asli including to positively discriminate in their favour, if necessary, that is to say, to have taken appropriate measures to protect all aboriginal inhabited lands and that it cannot now take advantage of its own default and contend that the lands are unprotected lands;
(iii) that after the coming into force of the Constitution in 1957, any compulsory acquisition or taking of such lands can only be made pursuant to written law with adequate compensation under art 13 of the Constitution;
(iv) that ss 11 and 12 of the Act are ultra vires the Constitution, in that they offend art 13 because they fail to provide for adequate compensation, and against art 8 in that there is discrimination in terms of process and compensation as between the acquisition of aboriginal land and acquisition under the LAA. In the alternative, the provisions of the Act as pre-Merdeka law ought to be read under art 162 in conformity with arts 13 and 8 of the Constitution.
...
An aborigine is defined in s 3 of the Act to mean:
a) any person whose male parent is or was, a member of an aboriginal ethnic group, who speaks an aboriginal language and habitually follows an aboriginal way of life and aboriginal customs and beliefs, and includes a descendant through males of such persons;
b) any person of any race adopted when an infant by aborigines who has been brought up as an aborigine, habitually speaks an aboriginal language, habitually follows an aboriginal way of life and aboriginal customs and beliefs and is a member of an aboriginal community; or
c) the child of any union between an aboriginal female and a male of another race, provided that the child habitually speaks an aboriginal language, habitually follows an aboriginal way of life and aboriginal customs and beliefs and remains a member of an aboriginal community.
Under s 2, an aboriginal ethnic group means a distinct tribal division of aborigines as characterized by culture, language or social organization and includes any group that the state authority may, by order, declare to be an aboriginal ethnic group. And an aboriginal community means the members of one aboriginal ethnic group living together in one place.
The defendants recognize the plaintiffs as aboriginal Temuan people but challenge the fact as to whether they still continue to practice their Temuan culture. Therefore, the onus is on the plaintiffs to show that they speak an aboriginal language, follow an aboriginal way of life as well as aboriginal customs and beliefs.
Evidence has been led to show the existence of a tribal council called the ‘Lembaga Adat’ from previous generations until the present day. It consists of five persons with specific roles and authority, namely the batin who is the head of the whole community and is the highest authority, the penghulu balai who is the keeper of the Temuan culture, the jenang who is the person that conducts and sanctions marriages in the community, the jekerah who directs communal activities and pelima who is the watchdog against social ills and for peace in the community. It meets at the balai adat to resolve disputes and settle all matters relating to the adat ...
...
... [I]t is manifestly evident that the Temuan people of Kampung Bukit Tampoi live in an organized society, with a system for adjudicating disputes, governed by their laws and customs, and they that still practice a specific political system according to their culture with specific persons to hold offices that had been passed down from generation to generation. The plaintiffs also adduce evidence in respect of other essential matters, that is to say, their culture relating to land (adat tanah) and burial (adat kebumian), their religion of belief system, their community weapon, ie the blowpipe (sumpitan), their tradition of sekor-menakor, their personal and place names, their custom on inheritance, their traditional activities and their aboriginal language. On adat tanah, the opening of land is preceded by specific rituals called ‘adat tiga penjuru’ in which the help of the spirits are invoked and homage to the spirits paid. The lands within the communal territory had been individually delineated by their forefathers as clearly defined family lots having the force of property and ownership in their culture. Each individual lot is demarcated by traditional markers, such as the pinang palm or specific fruit trees or by geographical features, such as rivers and streams, and these boundaries are invariably recognized by all in the community. The inheritance to the respective parcels of land is determined according to the adat and the distribution is resolved by the Lembaga Adat on the seventh day following the death of the land owner.
... [further evidence of way of life]
In view of the foregoing, I am satisfied that the plaintiffs belong to an organized society, following an aboriginal way of life, practicing customs and beliefs and having their own Temuan language which they use to the present day. Therefore, the plaintiffs belong to an aboriginal society within the meaning of the Act. To my mind the facts that:
(a) they no longer depended on foraging for their livelihood in accordance with their tradition;
(b) they cultivate the lands with non-traditional crops such as palm oil;
(c) they also speak other languages in addition to Temuan language;
(d) some members of the family embrace other religions, and/or marry outsiders;
(e) some family members work elsewhere either before or after the acquisition; and
(f) the Jawatankuasa Kemajuan dan Keselamatan Kampung (‘JKKK’) was set up by the JHEOA to manage their affairs;
do not change their origin. The election of Tukas anak Siam (PW2) as batin by the JKKK after his appointment by the Lembaga Adat should not be construed as an abandonment of their adat because it was held for administrative purposes only. Further, s 3(2) of the Act preserves their ethnic identity, which reads:
Any aborigine who by reason of conversion to any religion or for any other reason ceases to adhere to aboriginal beliefs but who continues to follow an aboriginal way of life and aboriginal customs or speaks an aboriginal language shall not be deemed to have ceased to be an aborigine by reason only of practicing that religion.
About the land, whether the plaintiffs have proved that the Bukit Tampoi lands are customary and ancestral lands belonging to the Temuan and occupied by them for generations:
a) evidence has been adduced of the settlement of the Temuans in Bukit Tampoi [evidence set out];
b) evidence has also been adduced of the fact that the Temuans, including the plaintiffs, have been living at Kampung Bukit Tampoi for at least seven generations [evidence set out];
c) It is evident that the Bukit Tampoi lands, including the land, were customary and ancestral lands based on (i) the adat of inheritance and succession of lands (ii) their usage for dwelling purposes and cultivation and as resting places for their deceased members (iii) the recognition of individual or family ownership not only by all the members of the community but also by the authorities without any dispute except for the acquisition. It is also clear that the Bukit Tampoi lands are customary lands by reason of (i) the existence of graves of the ancestors and the importance of the moyangs to the Temuans (ii) the existence of evidence on the land that confirms the presence of the community there ... (iii) the existence of the names for specific places ... which originated from the Temuans’ spoken language ... (iv) the existence of the balai adat on the land before the acquisition which is another culturally significant monument distinctive of the Temuan culture ... and (v) the archaeological findings ...
...
The common law recognizes a form of native title which reflects the entitlement of the aboriginal people, in accordance with their laws and customs, to their traditional land. The aboriginal people’s right over the land includes the right to move freely about their land, without any form of disturbance or interference, and also to live from the produce of the land itself, but not to the land itself (in the modern sense that the aborigines can convey, lease out, rent out the land or any produce therein) since they have been in continuous and unbroken occupation and/or enjoyment of the rights of the land from time immemorial. In Malaysia, the recognition was affirmed by the High Court in the case of Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor [1997] 1 MLJ 418 and confirmed by the Court of Appeal in the case of Kerajaan Negeri Johor & Anor v Adong bin Kuwau & Ors [1998] 2 MLJ 158 (both referred to as ‘the Adong case’). It was held that the aborigines’ common law rights include, inter alia, the right to live on their land as their forefathers had lived and this would mean that even the future generation of the aboriginal people would be entitled to this right of their forefathers, and further, that the Act does not exclude rights vested in the aboriginal people at the common law. The decision in the Adong case was influenced by the persuasive authority of the Canadian case of Calder v A-G of British Colombia (1973) 34 DLR (3d) 145 (‘the Calder case’) and the Australian cases of Mabo & Ors v State of Queensland & Anor [1986] HCA 8; (1986) 64 ALR 1, Mabo v Queensland [1992] HCA 23; (1991-1992) 175 CLR 1 (‘Mabo No 2’) and Pareroultja & Ors v Tickner & ORS [1993] FCA 465; (1993) 117 ALR 206. The Adong case is concerned with the deprivation of vast areas of aborigines traditional and ancestral land on which they did not stay, but depended on to forage for their livelihood in accordance with their tradition. However, in the case before me, the acquisition is in respect of a small portion of their traditional and customary or ancestral land where they resided, that is to say, their settlement. I follow the Adong case, and in addition, by reason of the fact of settlement, I am of the opinion that based on my findings of fact in this case, in particular on their culture relating to land and their customs on inheritance, not only do they have the right over the land but also an interest in the land. I am fortified in my view by the leading Privy Council case of Amodu Tijani v the Secretary, Southern Nigeria [1921] 2 AC 399 (‘the Amodu case’), which was relied on by the High Court in the Adong case though the issue of settlement did not arise in the case. The issue in the Amodu case was whether the native people whose land was taken for a public purpose ought to be compensated on the basis of ownership of the land or merely on the basis of having a right of control and management of the land.
...
The Privy Council had cautioned against interpreting the native title by reference to the English land law principles and in Mabo (No 2) Brennan J administered the same caution. Accordingly, the Privy Council relied upon a report on the character of the tenure of land among the native communities and the same can be said of the character of land tenure and use amongst the Temuan people ...
...
Since the establishment of the Selangor Sultanate in 1766, it was claimed that all lands in the state belonged to the Sultan, including those occupied by the aboriginal people since time immemorial. In general, the aboriginal people occupied the lands in the hinterland in an organized society, though some were nomadic. Although the Sultan owned the lands, they were left undisturbed to manage their affairs and way of life thereon in accordance with their practices, customs and traditions, except in those lands which attracted activities to enrich the privy purse, such as tin mining etc. In my view, if the aboriginal people are now to be denied the recognition of their proprietary interest in their customary and ancestral lands, it would be tantamount to taking a step backward to the situation prevailing in Australia before the last quarter of the 20th century where the law, practices, customs and rules of the indigenous people were not given recognition, especially with regard to their strong social and spiritual connection with their traditional lands and waters. The reason being that when a territory was colonized by the Whites, it was regarded as practically unoccupied, without settled land, an empty place, desert and uncultivated even though the indigenous people had lived there since time immemorial because they were regarded as uncivilized inhabitants who lived in a primitive state of society. However, Mabo No 2 changed the position, and since then, there had been a flurry of state and federal legislation relating to native title. Brennan J in his reasoning, referred to international human rights norms.
...
Therefore in keeping with the worldwide recognition now being given to aboriginal rights, I conclude that the proprietary interest of the orang asli in their customary and ancestral lands is an interest in and to the land.
...
The law governing the acquisition of land is the LAA. Under s 2, the word ‘land’ is defined to mean alienated land within the meaning of the state land law, land occupied under customary right and land occupied in expectation of title. To my mind as the land was continuously occupied and maintained by them to the exclusion of others in pursuance of their culture and inherited by them from generation to generation in accordance with their customs, it falls within the ambit of ‘land occupied under customary right’ within the meaning of the definition. The expression ‘land occupied under customary right’ is not defined. Hence, in construing its meaning, I adopt a purposive approach and hold that it should be given a wider interpretation so as to achieve the object of the LAA, that is to say, to ensure adequate compensation be paid for the land acquired. Although the Code, including the previous state enactments, make provision for the customary tenure and land holder ... in my view it does not mean that the land cannot fall within the definition, because the Code and the enactments were enacted ... before the Adong case was decided at the time when native titles were unknown to our law. Further, by such construction, full effect can be given to the requirements of arts 13 and 8 of the Constitution, otherwise ss 11 and 12 of the Act relating to compensation would be ultra vires the constitution, being inconsistent with the articles. And further, the definition clearly contemplates that the customary land may not have title and is distinguished from alienated land which has title, and acquired land where the title is forthcoming. It should be noted that the definition of ‘land’ is peculiar to Malaysia only even though India and Singapore have similar legislation. Apart from the orang asli and the native people of the Borneo states, there are no other classes of people in Malaysia who occupy the said lands on the basis of customary right, except the lands occupied under the tribal adat in Negeri Sembilan and Malacca. This was recognized when the Act was enacted. Thus, the Act speaks of aboriginal reserve land and aboriginal occupied land. The latter refers to hereditary land or customary land. The National Land Code (Penang and Malacca Titles) Act 1963 was enacted for the introduction of a system of registration of titles to land in the states of Penang and Malacca, for the issue of replacement title and for the assimilation of such system into the provision of the Code, that is to say, to give full effect to the Torrens system adopted. The absence of similar legislation in respect of the aboriginal land cannot be construed to mean that the aboriginal land is to be excluded from the expression ‘land occupied under customary right’ in the definition of ‘land’ under the LAA. Therefore, the plaintiff must be compensated in accordance with the LAA.
The content of the fiduciary duties has been described in many ways. But in essence, it is a duty to protect the welfare of the aborigines including their land rights, and not to act in a manner inconsistent with those rights, and further to provide remedies where an infringement occurs. In Mabo No 2, it was said that the obligation on the Crown was to ensure that the traditional title was not impaired or destroyed without the consent of or otherwise contrary to the interests of title holders. And in the Wik case, it was reiterated that the fiduciary must act consistent with its duties to protect the welfare of the aboriginal people. The remedy, where the government as trustee or fiduciary has breached its duties, is in the usual form of legal remedies available, namely by declaration of rights, injunction or a claim in damages and compensation.
To my mind, the first and fourth defendants owe fiduciary duties towards the plaintiff on the following grounds:
(a) By reason of the constitutional and statutory provisions, art 8(5)(c) of the Constitution provides an exception to the equality provision in respect of any provision for the protection, well being or advancement of the aboriginal people of the Malay Peninsular (including the reservation of land) or the reservation to aborigines of a reasonable proportion of suitable position in the public service. In addition, item 162(6) of the Constitution in List 1-Federal List expressly empowers the Federal Government to enact laws for the welfare of the aborigines, though no specific law has been enacted on this after Merdeka. The Act is pre-Merdeka law. However, by art 162(6) of the Constitution, any court applying pre-Merdeka law has to read it in conformity with the provisions of the Constitution. The object of the Act is to provide for the protection, well being and advancement of the aboriginal people of West Malaysia. They need to be protected from unscrupulous exploitation and to safeguard their tribal organization and way of life ...
(b) The JHEOA was set up pursuant to the Act and was charged with the responsibility of looking after the welfare of the orang asli. It made a significant policy statement in 1961 called ‘Statement of Policy Regarding the Administration of the orang asli of Peninsular Malaysia’ ... which it considers still applicable and forming the policy of the department ... In respect of the land rights of the aborigines, the statement states:
(d) The special position of aborigines in respect of land usage and land rights shall be recognized, that is every effort will be made to encourage the more developed groups to adopt a settled way of life and thus to bring them economically in line with other communities in this country. Aborigines will not be moved from their traditional areas without their full consent.
c) In a 1955 document, the then adviser on aborigines in the Colonial Government expressly declared responsibility for the welfare of the orang asli in the Bukit Tampoi area.
...
... [N]otwithstanding the government’s good efforts, it had breached the fiduciary duties owed to the plaintiffs by
(i) the deprivation of their proprietary rights without adequate compensation;
(ii) by the unlawful eviction of the plaintiffs from their land. It is unlawful as the 14-day notice was unreasonable and insufficient, not being compliant with the LAA procedure.
Trespass is a tort against possession. As the plaintiffs were in possession of the land, a trespass had been committed in respect of the land. However, in my view, the 1st and 4th defendants are not liable for trespass ... since the identity of the relevant officer has not been ascertained and the liability of the officer has not been established. For the same reason, the 1st defendant is not liable in damage for the unlawful eviction. As for the 2nd and 3rd defendants, they are liable to the plaintiff for trespass. They cannot take shelter under the authority of either the 1st or 4th defendants or both, because trespass is against possession but not ownership, and their misdeeds are reflected by the presence of the highway on the land now which had constructed by the second defendant and maintained by the third defendant.
(1) The land is customary and ancestral land occupied by the plaintiff for generations.
(2) Under the common law, their proprietary interest in the land within the settlement is an interest in and the land.
(3) Their rights under the common law and the Act are complementary to each other.
(4) Their rights both under the common law and statutory law are proprietary rights protected by art 13 of the Constitution.
(5) The compensation paid to them under the Act is not adequate within the meaning of art 13(2) of the Constitution; therefore, the deprivation of the land was unlawful.
(6) They must be compensated under the LAA.
(7) The 1st and 4rth defendants owe fiduciary duties towards the plaintiff, which had been breached and therefore, the plaintiff would be entitled to be compensated for the loss suffered which is the value of the land, had it not been for [the fact that it was not specifically prayed for and to avoid duplicity].
(8) The eviction of the plaintiff from the land was unlawful because the 14 day notice given was unreasonable and insufficient.
(9) Trespass had been committed against the possession of the land by the plaintiff. The 2nd and 3rd defendants are liable for it ... ?
Counsel for the Plaintiff:
Cyrus V Das with Jerald Gomez, Abdul Rashid Ismail, Leena Ghosh and Sharmila Sekaran
Solicitor for the Plaintiff:
Jerald Gomez & Associates
Counsel for the First Defendant:
Mohd Zawawi bin Hj Salleh with Kamarulzaman bin Abidin
Solicitor for the First Defendant:
Selangor State Legal Adviser
Counsel for the Second Defendant:
Zaki bin Tun Azmi with Harjinder Kaur andTan Siok
Solicitor for the Second Defendant:
Rashid & Lee
Counsel for the Third Defendant:
Ramesh Sanghvi with Harmeet Singh
Solicitor for the Third Defendant:
Kasim Tadin Wai & Co
Counsel for the Fourth Defendant:
Pretam Singh with Lailawati Husin
Solicitor for the Fourth Defendant:
Senior Federal Counsel
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2002/47.html