Data source
Date of text
07 Jul 2014
Country
Seat of court
Putrajaya
Type of text
National - higher court
Reference number
[2010] 8 MLJ 441
Court name
Court of Appeal
Justice(s)
Zaki tun Azmi
Richard Malanjum
Raus Shariff
Sources
InforMEA
Keywords
compensation, constitutional law, customary law, Human rights, indigenous peoples, land tenure, liability, property right

In this case, the plaintiffs would like to see recognized their native customary rights they have over several parcels of land which were alienated by the Superintendent of lands and surveys, the defendant, which then granted them in lease to the Federal Land Commissioner.

The plaintiffs argued in front of the court that all of them could prove that they are the owners of the different parcels because they inherited from their family and that their ancestors had always occupied those lands. As a result the plaintiffs required the payment of compensation for the loss of their lands to be assessed in accordance with the relevant provision of the Land Code concerning the extinguishment of native customary rights. The High Court held that the absence of written evidences supporting the plaintiffs’ claims was not impeding their claim because the balance of probabilities resulting from different testimony was in their favours. As a result, the Court recognized their native customary rights and condemned the defendant to compensate the plaintiffs.

The defendants sought an appeal in front of the Court of Appeal. They appealed the decision on the fact that if the title over the land was considered to be a native title, then it could be only transferred to other natives. Consequently, the alienation of the land would be void, and the defendants would not have to pay any compensation for it. The judge of the court of Appeal followed the argumentation of the defendants and held that only registered customary land title could be transferred, which was not the case here. Consequently, the court held that the alienation was void and that no compensation was to be paid.