IN THE COURT OF APPEAL, MALAYSIA [APPELLATE JURISDICTION] CIVIL APPEAL NO. Q-01-476-11/2012
1. TR ALING ANAK ANGGAU
2. ANA ANAK BATANG
3. CHUPONG ANAK BARAW
4. JIRAM ANAK PENGIRAN … APPELLANTS
1. GOVERNMENT OF SARAWAK
2. DIRECTOR OF FORESTS
3. LIMBA JAVA TIMBER SDN. BHD.
4. SUPERINTENDENT OF LANDS &
[In the Matter of High Court in Sabah and Sarawak at Limbang Suit No. 22-7-2007 (LG)]
1. TR Aling Anak Anggau
2. Ana Anak Batang
3. Chupong Anak Baraw
4. Jiram Anak Pengiran
(Suing for an on behalf of the Residents of Rh Aling) All of care of Rh Aling, Pulau Brunei,
Nanga Medamit, 98750 Limbang, Sarawak] …Plaintiffs
1. Government of Malaysia
2. Government of Sarawak
3. Director of Forests
4. Limba Jaya Timber Sdn. Bhd.
5. Superintendent of Lands & Surveys,
Abdul Wahab Patail, JCA Dr. Hamid Sultan Abu Backer, JCA Varghese s/o George Varughese, JCA
Date of Decision: 17th April 2014
JUDGMENT OF THE COURT
 The Appellants’/Plaintiffs’ native customary right claim to the land (“NCR claim”) arose from the issue to the 3rd Respondent on 06.12.2004 the Licence for Planted Forest No. LPF/0038 (“the Licence”) covering an area of 137,203 hectares by the 2nd Respondent. It is not disputed that the Appellants are Ibans and are natives of Sarawak.
 The High Court, in its decision delivered on the 20 th September 2012, accepted that the Appellants/Plaintiffs had created and or acquired NCR rights over the land at Rh. Aling, Pulau Brunei, Nanga Medamit, Limbang in respect of 1011 hectares only as against their NCR claim over a total of 3488 hectares.
 The Appellants’/Plaintiffs’ appeal to this Court is therefore concerned only with the adjoining 2477 hectares under primary forest claimed by the Appellants.
 In its grounds of judgment, the High Court held:
“46. In determining the size of the NCR
land of the Plaintiffs, the court also takes into consideration that sub-sections (3) and (4) of section 8 of the Land (Classification) (Amendment) Ordinance, 1954 were amended and came into force on 16.4.1955.
The amendments provided that it was illegal for any native to occupy any Interior Area
Land by felling virgin jungle for the purpose of creating NCR upon such land without the prior permit from a District Officer. Again, it is not the Plaintiffs’ case and the Plaintiffs did not testify that they had obtained such a permit. In any event they did not produce any such permit. Therefore the size or area of the NCR land claimed by the Plaintiffs should be based on the aerial photographs taken in 1948 and 1951.
47. Based on the evidence before the
court, in particular exhibits D3, D20, D20A, D20B and P25, the court comes to a finding that the Plaintiffs have proved on a balance of probabilities that they have created, inherited and or acquired NCR over the land within the area of interest, that the NCR still subsist and that the size or area of their NCR land based on the aerial photographs taken
in 1948 and 1951 amounted to 1011
hectares. … “
 The Appellants’ Writ and Statement of Claim were dated 24.09.2007. They claimed that their ancestors, and now the Appellants themselves and their families, have occupied, cultivated and used the land and continue to do so. The boundary, the descriptions and particulars of the NCR land which they claimed amounting to 3488 hectares were described in paragraph 7 of the Statement of Claim and are delineated and shown in the maps marked as Exhibits P4 and P9.
Appellate Intervention on Findings of Fact
 The substantive submission for the Respondents/Defendants began with, citing APV Hill & Mills (M) Sdn. Bhd. v AQ Pacific Wide Sdn. Bhd. & Anor (2006) 3
MLJ 235 CA. It was submitted that the High Court did not make any inference but based its decision on its findings of fact. The High Court had found as a fact, that the Appellants
had NCR totalling 1011 hectares only and not the whole of the area claimed. It was further submitted that the High Court had taken into consideration:
(a) all evidences available before it, including the evidence of DW3, an expert who is in charge of the aerial photographs interpretation, whose evidence was unchallenged;
(b) the evidence of Appellants’ witnesses including P1, P4 and P9;
before finding that
“The community maps (PI, P4 and P9) were prepared by the Plaintiffs based on their occupation of the land in 2002. They did not represent the status quo as at 1.1.1958. PW4 and the villagers who took part in the perimeter survey of their claimed NCR land were not
qualified surveyors and had little experience to prepare the maps.”
 In Pekan Nenas Industries Sdn Bhd v Chang Ching Chuen & Ors  1 MLJ 465 FC, 505, the Federal Court held, citing Eng Nee Yong v Letchumanan  2 MLJ 212
PC that like the Privy Council, it adhered to the principle that a trial court is in a more advantageous position to make findings of facts and accessing the credibility of witnesses so that we will not interfere in a decision which is based on such findings of facts unless there is a clear justification on doing so. Even so, the Federal Court clearly recognised that it would more readily intervene with the trial judge’s inference based on his findings as the Federal Court would be in an equally good position as the trial judge to make that determination. In this, the Federal Court referred to Benmax v Austin Motors Co Ltd  AC 370 cited with approval in Tay Kheng Hong v Heap Moh Steamship Co Ltd  MLJ 87 and followed by the Federal Court in China Airlines Ltd v Maltran Air Corp Sdn Bhd  2 MLJ 517. The Court of Appeal, in APV Hill
& Mills (M) Sdn Bhd v AQ Pacific Wide Sdn Bhd & Anor (2006) 3 MLJ 235 CA, held that it is settled law that the Court of Appeal could not be persuaded to come to its own conclusion on those facts which is different from the conclusion reached by the court of first instance unless the conclusion reached by the court of first instance is so unreasonable that no reasonable tribunal would have come to that conclusion. In our view, the careful language of the Federal Court of “clear justification on doing so” than “so unreasonable that no reasonable tribunal would have come to that conclusion” was to cover instances of failure of judicial appreciation of the facts and the evidence, which is not necessarily addressed by the words used in APV Hill & Mills (M) Sdn Bhd (supra).
 It is in our view, necessary to bear in mind, the distinction between
(a) a conclusion and decision, which is based upon an appreciation of the totality of facts and evidence as a whole, and
(b) findings of fact on specific disputed facts which are based upon credibility of witnesses for which purpose they are called to have their oral evidence examined and tested before the trial court to enable it to determine the testimony or version of which witness is more credible, therefore more reliable, safer to accept and to act upon as true and correct.
 Though conclusions may have the appearance of a finding of facts, we bear these distinctions in mind in considering the conclusion and decision of the High Court to determine if there is any error, defect, or irregularity, whether in the decision or otherwise had occurred and affecting the merits of the decision (see section 72 Courts of Judicature Act 1964 Act 91). We cautioned ourselves, as always, against the
approach of dismissal of an appeal simply upon an attachment of the appellation “a finding of fact”.
 The grounds of decision set out the basic dispute as follows:
”4. According to the Plaintiffs, starting from about the late 1800s, early 1900s and into the 1920s, their ancestors, and later the 3rd and 4th Plaintiffs, together with many other Ibans migrated from the Skrang area in Sri Aman Division to Limbang Division. They said that their migrations and that of their ancestors were approved by the Rajahs of Sarawak who facilitated their migrations and ensure their safe arrivals and settlements in Pulau Brunei. …
7. The Defendants denied the Plaintiffs’ claims and contended that the Plaintiffs have no NCR or any other rights whatsoever over the land claimed by them and that the Plaintiffs have no rights which are recognized
by laws immediately in force before 1.1.1958. The Defendants contended that no extinguishment of the purported NCR over the land was required as there was no NCR lawfully created or acquired over the land or any part thereof as claimed by the Plaintiffs.
8. The Defendants also contended that the land covered by LPF/0038 issued to the 4th Defendant was not subject to the Plaintiffs’ NCR. Even if the NCR have been lawfully acquired over the land, which they denied, they contended that the NCR would be excluded from the areas covered by the Licence. They contended that the Plaintiffs did not suffer any loss or damage as a result of the 3rd Defendant granting the Licence to the 4th Defendant.”
 The High Court addressed the disputed facts. We summarise evidence adduced for the Appellants and the Respondents herein as follows:
(a) For the Appellants
i) PW1 (the 3rd Appellant/Plaintiff) testified that he was born in 1918 and when he was about 5 years old, his family together with others migrated from their longhouse to Limbang in 1923. They were led by his father.
ii) PW2 was born in 1944 at Pulau Brunei, Nanga Medamit, Limbang. He said that his parents migrated to Pulau Brunei, Nanga Medamit, Limbang, in the company of 4 communities led by 4 village headmen, and one of the survivors of the group who is still alive today is PW3 Jiram Anak Pengiran (the 4th Appellant/Plaintiff). Exhibits P2, P3, P4, P5 and P6 were documents possessed by their village or longhouse executed by the respective Tuai Rumah of neighbouring longhouses, which was confirmed by the late Pengarah Ngang Anak Bundan (later Dato’ Temenggong Ngang Anak Bundan) on 5.4.1973,
defining the boundary of their longhouse and NCR land with the neighbouring longhouses and State land. In 2002, their village took the initiative to survey their pemakai menoa with the assistance of community surveyors. A draughtsman from Sahabat Alam Malaysia (SAM) Encik Merin Anak Rayong (PW4) prepared a map of their NCR land which was tendered as exhibit P4.
iii) PW3 (the 4 th Appellant/Plaintiff) testified that he was also born in 1918 and migrated to Pulau Brunei, Nanga Medamit, Limbang with his adopted father about seven years after PW1 had migrated thereto.
iv) PW4 testified he worked as a draughtsman and surveyor with the Borneo Resources Institute (BRIMAS) which assisted the natives with problems relating to their NCR land and that TR Aling Anak Anggau (PW5) requested the
assistance of Shahabat Alam Malaysia (SAM) and BRIMAS to carry out a perimeter survey of their NCR land. He said he trained a number of villagers, including Harrison Jugah Anak Nyawai (PW9) to assist in the survey carried out from 29.8.2002 to 5.9.2002, and from the GPS data prepared the map Exhibit P4 and another map showing the land use of the Appellants’/Plaintiffs’ land (Exhibit P1).
v) PW5 (the 1st Appellant/Plaintiff) testified that he was born in 1939 at Pulau Brunei, Nanga Medamit, Limbang. He said that the history of their settlement, according to the oral accounts of village elders, began in the early 1910s. He had heard these elders recounted their history to the younger villagers including himself. He said that although many have already died, two of the last remaining elders still alive today are Chupong Anak Baraw (3rd Appellant/Plaintiff) and Jiram
Anak Pengiran (4 th Appellant/Plaintiff). He testified that in August, 2005, they were given a shock when someone carried out survey works on their temuda land and their rubber gardens in the upper part of Sg. Entrol, within their NCR land. He said that on 18.3.2006 they were again taken by surprise when bulldozers came onto their temuda land and started to bulldoze their land even though there was still padi in the land. One of the land owners whose land was bulldozed was the 2nd Appellant/Plaintiff Ana Anak Batang (PW7). There was further entry on 28.3.2007, as a result of which on 9.4.2007, a police report (Exhibit P24) was lodged by one of the villagers, Anjah Anak Nau (PW11).
(b) For the Respondents
i) DW1 the Superintendent of the Lands & Surveys Department, Limbang said
(1) the area claimed by the Appellants was issued with a Licence for Planted Forest LPF/0038 to the 3rd Respondent.
(2) From their records there was no land title issued over the area.
(3) Previously, a timber licence was issued covering parts of the area to Limbang Trading (Limbang) Sdn. Bhd. under timber licence T/0129.
(4) No permit was issued to the local natives i.e. the Appellants/Plaintiffs to create NCR over the area.
(5) The NCR claim by the 1st and 2nd Appellants was not recognized by their Department.
ii) DW2, a Pemelihara Hutan with the Sarawak
Forests Department, said:
(1) PF/0038 was issued pursuant to the Forests (Planted Forests Rules) 1997;
(2) the areas covered by LPF/0038 were previously logged over under forest timber licence T/0129 issued to Limbang Trading (Limbang) Sdn Bhd and that there was no objection from the local natives when T/0129 and or when LPF/0038 were issued.
(The High Court observed he did not testify whether the local natives or the
Appellants/Plaintiffs were informed of the intended issues of the licences or knew when the licences were to be issued or were consulted before the licences were issued.)
iii) DW3, a Pembantu Teknik Ukur J29 with the Lands & Surveys Department Headquarters, Sarawak, testified:
(1) On 31.11.2009, he was instructed to prepare a map of the area claimed by the Appellants/Plaintiffs, in particular over parts of LPF/0038 by reference to aerial photographs kept in the Department. He was also instructed to prepare four ‘aerial photograph maps’ namely, one map to show the area claimed by the Appellants/Plaintiffs before the year 1958, one map after 1958, a topographical map and a map showing the area of interest inside LPF/0038. He also prepared a report (Exhibit D3) on how the aerial photographs were interpreted and how the aerial photograph maps which showed the area claimed by the Appellants/Plaintiffs were prepared.
(2) Since the map Exhibit D3 was only in respect of the NCR land claimed by the Appellants/Plaintiffs situated within LPF/0038, and did not show the whole NCR land claimed by the Appellants/Plaintiffs, he subsequently prepared another report and set of maps to show the whole NCR land claimed by the Appellants/Plaintiffs which he referred to as the area of interest. These were marked as Exhibits D20, D20A, D20B and D20C.
(3) He prepared the map D20A for the area of interest for pre-1958 based on aerial photographs taken in 1948 and 1951 and the map D20B for the area post-1958 based on aerial photographs taken in 1965.
(4) Based on the aerial photographs taken in 1948 and 1951, the cleared area within the
area of interest amounted to 1011 hectares, and it had increased to 1479 hectares based on the aerial photographs taken in 1965.
 The High Court then reasoned as follows as to the evidence as to area occupied:
(a) As to community maps (P1, P4 and P9)
i) Were prepared by the Appellants/Plaintiffs based on their occupation of the land in 2002 and did not represent the status quo as at 1.1.1958.
ii) PW4 and the villagers who took part in the perimeter survey of their claimed NCR land were not qualified surveyors and had little experience to prepare the maps.
iii) DW4 and DW5 were not qualified surveyors and the maps D5 and D6 prepared by them were also not accurate.
iv) DW3 who had a certificate in Lands & Surveys in 1998, a certificate in hydrography in 2003 and a diploma in land and survey in 2005, and having worked as an assistant surveyor and surveyor assistant both in the private and public sectors, was more qualified than PW4 and the villagers and DW4 and DW5 in carrying out any survey, preparation of the maps and in the interpretation of the aerial photographs.
v) S.83(1) of the Evidence Act provides that the court shall presume that maps or plans purporting to be made by the authority of the Government of Malaysia or the
Government of any State were so made and are accurate.
(b) As to area occupied:
i) Based on the aerial photographs taken in 1948 and 1951, exhibits D20A and D20B showed that claimed by the Appellants/Plaintiffs had been cleared for farming at the times.
ii) There was no aerial photograph were taken on 31.12.1957 or on 1.1.1958 and produced as exhibit to show how many hectares had been cleared between 1951 and 1.1.1958 within the area claimed by the Appellants/Plaintiffs.
iii) Aerial photographs taken in 1965 showed that the claimed area had increased in size from 1011 hectares to 1475 hectares.
iv) There was no specific evidence whether the additional acreages were cleared prior to 1958 or subsequent to 1.1.1958 until 1965.
v) It is not the Appellants/Plaintiffs’ case and the Appellants/Plaintiffs did not produce any permit from the Superintendent of Lands and Surveys under s.5 and s.10 of the Land Code to create and acquire NCR within the area of interest from 1.1.1958.
vi) The court also takes into consideration that
subsections (3) and (4) of section 8 of the Land (Classification) (Amendment)
Ordinance, 1954 were amended and came into force on 16.4.1955, that it was illegal
for any native to occupy any Interior Area Land by felling virgin jungle for the purpose of creating NCR upon such land without the prior permit from a District Officer.
 Based upon these, the High Court made the following findings:
i) in particular Exhibits D3, D20, D20A, D20Band P25, the court comes to a finding that the Appellants/Plaintiffs have proved on a balance of probabilities that they have created, inherited and or acquired NCR over the land within the area of interest, that the NCR still subsist and that the size or area of their NCR land based on the aerial photographs taken in 1948 and 1951 amounted to 1011 hectares.
ii) Since Clause 22(1) of the Licence of LPF/0038 specifically states that nothing in the Licence
shall be deemed to affect the rights which any native has, prior to the issue of the Licence, lawfully acquired over the said land under the Land Code or the Ordinance, that it shall be the duty of the licensee at his own costs and expenses to comply with the provisions of the Rules relating to the establishment of planted forest over lands subject to native customary rights claim, the High Court concluded LPF/0038 did not and does not extinguish, derogate from or affect any NCR which have been lawfully created and or acquired over land situated within the Licence.
iii) The evidence showed that the Appellants/Plaintiffs have been residing and continue to reside at their longhouse at Pulau Brunei, Nanga Medamit and have claimed the area around their longhouse as their NCR land.
The evidence showed that they did not and have not abandoned their NCR land.
iv) The 3rd Respondent/4th Defendant was not the licensee and is a licensee under timber licenses T/0129 and T/0222 and is not in a position to take advantage of the two timber licenses and to claim adverse possession against the Appellants/Plaintiffs under T/0129 and T/0222.
v) LPF/0038 is not a document of title to the land, but merely a licence issued by the Forests Department, and there being no evidence that the 3rd Respondent/4th Defendant is the registered owner of the land, the question of indefeasibility of title does not arise and there is no merit on this ground.
vi) Given clause 22 of the Licence, the High Court concluded the 1st Respondent/2nd Defendant and 2nd Respondent/3rd Defendant in issuing LPF/0038 to the 3rd Respondent/4th
Defendant did not have any intention to diminish, impair or extinguish any NCR which the Appellants/Plaintiffs or any other natives may have over the land situated within the licensed areas.
Conclusion and Decision
 Having found that the Appellants’ ancestors had come and settled on the land in the 1920s, the relevant law to be applied is the Land Order of 1920, section 22(i) of which provided:
“Under this part lands may be occupied by Natives free of all charges for the cultivation of fruit trees, padi, vegetables, pineapples, sugar cane, bananas, yams and similar cultures in
accordance with the customary laws provided that where possible claims to fruit groves and farming lands shall be registered. Records of such claims shall be kept by all Native Headman and also in the Land Office in each district”.
 Clearly, that part of the land upon which NCR claim could be acquired are such parts that are occupied and cultivated. The proviso that where possible claims shall be registered, does not, notwithstanding the use of the word “shall” make registration mandatory and failure to do so does not therefore render the claim null and void. However, the provision means NCR could no longer be acquired after the Land Order of 1920 over land not cleared and cultivated as provided, even if it is land under the custom of “pulau galau” set aside and maintained under natural forest cover for the supply of forest produce.
 Accordingly, we dismiss the appeal, affirm the decision of the High Court and fix costs to be paid by the Appellants, unless otherwise agreed, at RM5,000.00 to the 1st, 2nd and 4th Respondents and RM5,000.00 to the 3rd Respondent.
(DATUK ABDUL WAHAB BIN PATAIL)
Court of Appeal, Malaysia Putrajaya
Dated: 17 th April 2014
For the Appellants: Mr. Baru Bian,
Mr. Simon Siah SY Jen &
Mr. Chua Kuan Ching
Messrs Baru Bian & Co Advocates No. 6, 2nd Floor, Lot 5430 Block G, RH Plaza,
Jalan Lapangan Terbang 93350 Kuching, Sarawak
For thelst Respondent: Mr. Saferi Bin Ali, State Counsel & Mr. Azhar Bin Bujang, State Legal Officer State Attorney-General’s Chambers 15th & 16 th Floors, Wisma Bapa Malaysia Petra Jaya, 93502 Kuching, Sarawak
For the 3rd Respondent: Mr. Leong Hsin Ru Messrs Tang & Partners Lots 164-166, 2nd Floor Jalan Song Thian Cheok 93100 Kuching, Sarawak