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Editors --- "Adong bin Kuwau and Ors v Kerajaan Negeri Johor and Anor - Case Summary" [2001] AUIndigLawRpr 52; (2001) 6(4) Australian Indigenous Law Reporter 82

Court and Tribunal Decisions - Malaysia

Adong bin Kuwau and Ors v Kerajaan Negeri Johor and Anor

High Court (Johor Bahru)

Mokhtar Sidin JCA

21 November 1996

[1997] 1 MLJ 418

Aboriginal rights in respect of land in peninsular Malaysia — whether recognised at common law — whether protected by statute — whether such rights were proprietary rights such that compensation was payable for their impairment under statute and under art 13(1) of the Federal Constitution


By agreement with the Government of Singapore, the Government of the State of Johore acquired land for the construction of a dam to supply water both to Singapore and Johore. Representatives of aboriginal people living around the catchment area sought declarations that the lands acquired were ‘aboriginal area or aboriginal reserve’ and that they were entitled to compensation.


That the plaintiff peoples had both common law aboriginal rights and statutory rights under the Aboriginal Peoples Act 1939 (as amended), and were entitled to compensation under the legislation and under art 13(1) of the Federal Constitution.

Mokhtar Sidin JCA:

The 52 plaintiffs are heads of families representing a group of aboriginal people living around the Sungai Linggiu catchment area which also includes the tributary Tebak (‘the Linggiu valley’). The defendants are the Government of the State of Johor and the Director of Land and Mines, Johor. The plaintiffs brought this action by way of originating summons seeking reliefs against the defendants for the following declarations:

(i) that all the lands acquired by the defendants for the purpose of constructing the Sungai Linggiu Dam near Kota Tinggi, Johor is aboriginal area or aboriginal reserve; and
(ii) that the defendants jointly or severally pay to the plaintiffs all the compensation received by them from the Government of Singapore or a sum deemed just by the honourable court.

The plaintiffs in their affidavits claimed that the lands within the vicinity of Sungai Linggiu were their ‘kawasan saka’ — or their traditional and ancestral land — and upon which they depended to forage for their livelihood in accordance with their tradition. The plaintiffs stated that the defendants had alienated 53,273 acres from their ‘kawasan saka’ to the State Corporation by way of four titles.

The State Corporation had in turn entered into an agreement with the Government of the Republic of Singapore which, through its Public Utilities Board, had agreed to build a dam and supply water to both Singapore and the State of Johore. The plaintiffs claimed that the defendants had restricted those areas and had prohibited the plaintiffs and/or their families from entering those areas to forage them. The defendants in their affidavits in reply affirmed by En Baderi bin Dasuki, Assistant Director of Lands and Mines and En Daud bin Hj Hassan, Director, Department of the Aboriginal Peoples’ Affairs (‘JHEOA’) have not rebutted most of the allegations of the plaintiffs, except to state that the plaintiffs were not staying in the area anymore and that they were not prevented from entering the said area.

I took time to do my research and I believe that this is the first case in this country where the aboriginal people have sued the government for their traditional rights under law. As such, I have had to turn to various sources æ including cases, articles and other writings both from within and outside Malaysia æ to determine the plaintiffs’ rights, if any.

It is established law that courts may take judicial notice of facts of history, whether past or contemporaneous: Monarch Steamship Co Ltd v E Karlshamus Oljefabriker (A/B) [1949] AC 196; and further, the court is entitled to rely on its own historical knowledge and researches: Read v The Bishop of Lincoln [1892] AC 644, per Lord Halsbury at pp 652–654.

During the hearing, counsel for the plaintiffs had submitted eight booklets comprising articles by various writers, both local and foreign, and also by government agencies and non-government organizations on the subject of aboriginal matters. These booklets comprised historical, judicial as well as policy decisions of governments, including the Malaysian Government. In view of the neutral source of these articles, I am of the view that I am entitled to admit historical facts both past and contemporaneous from booklets tendered by the plaintiffs’ counsel and also rely on my own research on these issues. As such, I did not ask the parties to adduce evidence by witnesses. It is to be noted that most of the issues raised by the plaintiffs before me were not disputed.

It is established from the various articles that the aboriginal people inhabiting the Linggiu valley are of the Jakun tribe and have been in inhabitation of that area from time immemorial. Prior to 1954, there was no specific authority established to take care of the affairs of the aborigines. In 1954, the British Colonial Government established the Department of the Aboriginal Peoples’ Affairs. That department took over the control of administering the socio-economic welfare of the aborigines of the Federation of Malaya. In 1961, after Malaysia had gained her independence, the Federal Government, in order to eliminate the influence of communist terrorists amongst the aborigines, relocated most of the aborigines including the plaintiffs from the deep jungles to the jungle fringes where the authorities could keep an eye on them. Since most of the aborigines were experts in jungle trekking, they were employed as guides by the police and the army. Eventually, some of them were recruited by the government to fight against communist terrorists.

However, the legal recognition of the aboriginal peoples’ rights in Malaysia was first enacted in 1939 under the State of Perak Enactment No 3 of 1939. It was enacted to protect the aboriginal tribes of Perak whereby a ‘protector’ was appointed by the Ruler in the State Council to take charge of the aboriginal peoples’ affairs. When the 1954 Aboriginal Peoples’ Ordinance was re-enacted, the post of ‘protector’ was retained for the same purpose as the 1939 Enactment. However, in 1967 when the 1954 Ordinance was amended, the post of ‘protector’ was redesignated as ‘the commissioner’. Currently, the Federal Government has a special department to take care of the affairs of the aborigines and to improve their living conditions. This clearly shows the government’s interest in the affairs of the aborigines. The Aboriginal Peoples Ordinance 1954 was revised in 1974 (‘the Act’). The Act provides for a commissioner to be appointed for the protection, well-being and advancement of the aborigines of West Malaysia.

In so far as the plaintiffs and their families are concerned, it is clear to me that the plaintiffs and their families, and also their ancestors, were the aboriginal people who lived in the Linggiu valley or, at the very least, were living in the surrounding areas. It is also established that the plaintiffs depend on the produce of the jungle in the Linggiu valley and its surrounding areas for their livelihood. The jungle produce are the fauna, flora, fruits and the animals which include land animals and water animals, like fish, crab, etc. The defendants have not denied the plaintiffs’ claim that the Linggiu valley was the source of their livelihood until the jungle was cleared for the purpose of building a dam. Despite an affidavit filed by En Daud, stating that the plaintiffs were not staying in that area, from a document which was produced after an order of discovery was obtained by the plaintiffs against the defendants, it was found that the JHEOA had recommended to the State Authority that the plaintiffs’ families ought to be compensated as a result of the acquisition of the land. In a letter dated 16 April 1990 addressed to Ketua Pengarah Alam Sekitar, Kementerian Sains, Teknologi dan Alam Sekitar, the JHEOA admitted that the land involved are the plaintiffs’ ancestral land for which they should be compensated under s 11 and s 12 of the Act. The letter went on to recommend a compensation of a sum of RM560,535 to the plaintiffs. This letter, in my view, is an admission of the defendants’ liabilities to pay compensation to the plaintiffs.

In view of the fact that the plaintiffs were the inhabitants of that area or the surrounding areas of the Linggiu valley — and which fact has not been seriously disputed by the defendants — I am of the opinion that this case was properly commenced by originating summons and no further evidence by way of witnesses is necessary to establish the plaintiffs’ original inhabitation of the Linggiu valley. The learned State Legal Adviser appearing for the defendants did not seriously dispute this fact in his submission. All this, in my opinion, go towards establishing the fact that the plaintiffs were the inhabitants of that area.

I will now proceed to examine the legal rights — or generally what is known as native peoples’ rights — has gained much recognition after the Second World War, with the establishment of the United Nations of which the UN Charter guarantees certain fundamental rights. Native rights have been greatly expounded on by courts in Canada, New Zealand and Australia restating the colonial laws imposed on native rights over their lands. It is worth noting that these native peoples’ traditional land rights are now firmly entrenched in countries that had and or/are still practising the Torrens land law — namely Canada, New Zealand and Australia — where special statutes have been enacted or tribunals set up in order for natives to claim a right over their traditional lands. In Malaysia, as we do not have special statutes or tribunals, the courts is the only forum whereby the natives can make their claim, and this case being the first of such a claim of an Aboriginal group in Malaysia. I will now set out the plaintiffs’ right under the different headings of common law, statutory law and under the Federal Constitution.

Plaintiffs’ right under common law

The study of native land rights shows that common law recognizes native land rights, even in countries practising the Torrens land system where the authorities issue titles pursuant to statutory powers.

[His Honour reviewed major cases from the United States Supreme Court, the Privy Council, the Canadian Supreme Court and the High Court of Australia (Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1).]

The question now is whether the plaintiffs have any rights over their traditional and ancestral lands. For this purpose, it is better for me to trace the plaintiffs’ historical claim on the said land.

It is not disputed that traditionally, Peninsular Malaysia was occupied by two groups of people; namely, the Malays who lived along the coast and rivers and the aboriginal people who lived in the interiors or locally known as the ‘Ulus’, each group occupying their own areas of spheres and living in harmony. Within the Malay Peninsular were found the Malay Sultanates and, within the Malay Sultanates, some areas were occupied by the aboriginal peoples without any disputes as to their occupation of their lands. Land disputes in this part of the world began with the coming of the Europeans. The British introduced their system of government and administration which included the demarcation of lands.

The British introduced the Torrens land system, which introduced alienation and title for the first time. This system brought within it all the people except the aborigines who continued to live in the jungle and roamed freely and sheltered wherever they wanted. These people continue to live from the produce of the jungle and the jungles are still their hunting grounds. Before the introduction of the Torrens land system, these lands were unclaimed land in the present sense but were ‘kawasan saka’ to the aboriginal people. On the introduction of the Torrens land system, all the kawasan saka became state land but the aboriginal people were given the freedom to roam about these lands and harvest the fruits of the jungle. Some of these lands have been gazetted as forest reserves. The plaintiffs, however, continue to live and/or depend upon this unalienated land. It was not denied that some of them had lived on these lands, and all of them still consider the jungle as their domain to hunt and extract the produce of the jungle just like their forefathers had done.

My view is that, and I get support from the decision of Calder’s case and Mabo’s case, the aboriginal peoples’ rights over the land include 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. I believe this is a common law right which the natives have and which the Canadian and Australian courts have described as native titles and particularly the judgment of Judson J in the Calder case at p 156 where His Lordship said the rights and which rights include ‘the right to live on their land as their forefathers had lived and that right has not been lawfully extinguished’. I would agree with this ratio and rule that in Malaysia 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 generations of the aboriginal people would be entitled to this right of their forefathers.

Statutory rights

Recognising these rights of the aboriginal people, the government enacted the Aboriginal Peoples Act 1939 which is ‘an enactment for the protection of the aboriginal tribes of Perak’. In the same year, this enactment was extended to the states of Selangor, Negeri Sembilan and Pahang which were then known as the Federated Malay States. The Aboriginal Peoples Act was amended in 1954, 1967 and lastly in 1974.

Sections 6 and 7 of the Act specifically provide for the creation of special areas exclusively for the aboriginal peoples of Malaya, either as a reserve land or for the right to collect the produce of the jungle and to be used as hunting grounds. By virtue of s 10, the rights of the aboriginal peoples to occupy and/or collect forest produce overrides Malay reserve land, forest reserve or game reserve. Section 10 reflects the legislature’s intention to allow the aboriginal people to lead the type of life they have always led, which has been nomadic and always looking for greener pastures. Under s 11, the State Authority must pay compensation when acquiring by alienation or leasing any land upon which are fruit and rubber trees claimed by the aboriginal people.

These people live from the hunting of animals in the jungle and the collection of jungle produce. Those are the only source of their livelihood and income. Can these rights be taken away by the government without compensation? At a glance this could be done, but upon looking further and deeper, it is my opinion that compensation ought to be made. This can be discerned from s 11 of the Act, which guarantees adequate compensation for land, bearing rubber or fruit trees claimed by the aboriginal people, that is alienated. It is clear to me that the land on which those trees are planted is either a reserve land for the aboriginal people or an area where they had a right to access, which is a jungle reserve. In the first case, there is no problem because it is their reserved land. In the second case, it is clear that the land belongs to the state but they were planted by the aborigines. As such, adequate compensation must be made for these trees but not for the land. In the present case, I am of the view that adequate compensation for the loss of livelihood and hunting ground ought to be made when the land where the plaintiffs normally went to look for food and produce was acquired by the government. The compensation is not for the land but for what is above the land over which the plaintiffs have a right.

The Act does not limit the aborigines’ rights therein. In order to determine the extent of aboriginal peoples’ full rights under law, their rights under common law and statute has to be looked at conjunctively, for both these rights are complementary, and the Act does not extinguish the rights enjoyed by the aboriginal people under common law.

Constitutional rights of the aboriginal peoples

When Malaysia gained its independence on 31 August 1957, the Federal Constitution became the supreme law of the country. See art 4 of the Federal Constitution. All laws passed after independence day, which are inconsistent with the Federal Constitution, are void to the extent of the inconsistency.

Article 4 (1) provides:

This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

Under the Federal Constitution, the aboriginal people of Malaysia enjoyed a special position. This is found in art 8(5)(c):

(5) This Article does not invalidate or prohibit:
(c) any provision for the protection, well-being or advancement of the aboriginal peoples of the Malay Peninsula (including the reservation of land) or the reservation to aborigines of a reasonable proportion of suitable positions in the public service.

The plaintiffs’ counsel submitted that the rights accorded to the aboriginal people by common law and statutory law are proprietary rights within the ambit of art 13(1) of the Federal Constitution and there is no law to take away these rights without due compensation. The plaintiffs’ counsel further submitted that the act of the defendants in taking away the traditional and ancestral funds from the plaintiffs without compensation is unlawful.

However, we need not go into the common law on compensation for our Federal Constitution art 13 covers that situation. Article 13 states:

13 Rights to property
(1) No person shall be deprived of property save in accordance with law.
(2) No law, shall provide for the compulsory acquisition or use of property without adequate compensation.

The plaintiffs’ counsel submitted that the rights accorded to the aboriginal people by common law and statutory law are proprietary rights within the ambit of art 13(1) of the Federal Constitution and that when these rights are taken away by the defendants, the plaintiffs should be compensated pursuant to art 13(2).

To answer this question, we have to determine whether the rights accorded to the plaintiffs under common law and statutory law as described earlier are proprietary rights protected by art 13(1), or in other words, do the rights accorded to the plaintiffs fall within the ambit of art 13(1), and which is to be adequately compensated by art 13(2) if compulsorily acquired or used.

The word ‘property’ appearing in art 13(1) is a legal word and should be accorded its legal meaning. There is a similar provision to our art 13 in the Indian Constitution arts 19(1)(f) and 31. There are numerous Indian constitutional cases which have defined the word ‘property’ and I rely on the case of Rabindra Kumar v Forest Officer AIR 1955 Manipur 49 at pp 53–54 which eloquently sets out the meaning of the word ‘property’ as used in a constitutional context:

It has been contended that the petitioner cannot seek any relief under arts 19(1)(f) and 31 of the Constitution for his ‘property’ right has not been infringed at all. The argument is that the lease dated 24 February 1955, is not a completed contract and it is only a permit and so the petitioner did not acquire any property through it.
I think this contention of the respondents has no force. The words ‘property’ has been explained in Corpus Juris, Vol 73 p136 as follows:
‘In legal usage “property” is perhaps the comprehensive word which can be employed and it may signify either the subject matter in which interest exists or it may signify valuable rights and interests protected by law or it may signify both. It is generally recognized that property includes certain rights such as the right of acquisition, possession, use, enjoyment and disposition.
In legal usage, the word property is a generic term. According to the authorities on this question it is a term of broad and extensive application and it is also a term of large import with the very broadest and most extensive signification. It is a very comprehensive word having broad and comprehensive and exceedingly complex meanings and is perhaps the most comprehensive of all the terms that can be used.
The word property includes both real and personal property and ordinarily will be construed as meaning both real and personal property. It includes both intangible rights and physical things.
In the strict legal sense, the word property signifies valuable rights or interests protected by law and this is the primary appropriate and broader signification of the term. In modern legal system, property includes practically all valuable rights, the term being indicative and descriptive of every possible interest which a person can have in any and every thing that is the subject of ownership by man and including every valuable interests, it can be enjoyed as property and recognized as such equitable interests as well as legal interests and extending to every species of valuable rights or interests in either real or personal property or in easements, franchises and incorporal hereditaments.
The term comprises also all rights which are incidental to the use, enjoyment and disposition of intangible things, the bare possession, with colour or right of anything of value, the right to be protected in one’s possession of a thing or in one’s privileges belonging to him as an individual or secured to him as a member for the Commonwealth including the right to contest judicially any invasion of that which one possesses or owns.
The property may reasonable be construed to include obligation rights and other intangible and physical things and thus the word “property” means not only the thing but also the rights in the physical and corporeal thing which are created and sanctioned by law.
It is generally recognized that property includes the right of acquisition, the right of dominion, the right of possession, the right of use and enjoyment, the right of exclusion and the right of disposition.’

The Federal Court in the case of Selangor Pilot Association (1946) v Government of Malaysia & Anor [1975] 2 MLJ 66 at p 69, per Suffian LP said:

The language of our art 13 is not identical with, but it certainly approximates to, the language of the Indian art 31 before the 1955 amendment which added the new cl (2A). The absence of a similar clause from our art 13 persuades me to adopt the construction placed on the Indian article by the Indian Supreme Court on the unamended art 31.

I would therefore agree with the wide interpretation given to proprietary rights under art 13 and hold that the plaintiffs’ rights both under common law and statutory law are proprietary rights protected by art 13 of the Federal Constitution.

I will now proceed to examine whether the plaintiffs were deprived of proprietary rights protected by the Federal Constitution art 13(1).

At the time the defendants entered into an agreement with the Government of the Republic of Singapore and built a dam in the Linggiu Valley, the plaintiffs’ rights of free access into Linggiu valley and to harvest the fruits of the jungle were unchallenged and recognized in law. It is the building of the dam that brought the plaintiffs’ freedom of movement within the Linggiu valley, which is guaranteed by the Federal Constitution art 9(2), to an end and subsequently extinguished the plaintiffs’ rights to collect the forest produce which are recognized at common law and statutory law.

The plaintiffs’ statement that the forest was a source of their livelihood was not rebutted by the defendants and neither was there evidence that there was a break in the continuous occupation and traditional connection in the land for their livelihoods.

It has been long recognized under our law that when a person is deprived .of any proprietary right under an executive exercise pursuant to powers given by statute, that person must be compensated.

Hashim Yeop Sani J (as he was then) in the case of S Kulastngam & B Anor v Commissioner of Lalrds, Federal Territory & Ors [1982] 1 MLJ 204 at p 206 said:

Article 13(1) in my opinion ensures the sanctity of private property. That clause guarantees the right of any person not to be deprived of his property save in accordance with law which simply means that no one can be deprived of his property merely on the orders of the executive but that he may be deprived of his property only in accordance with law

I agree with his Lordship.

The plaintiffs have established that they have proprietary rights over the Linggiu valley and that the defendants have deprived them of these rights. It was then up to the defendants to show that they had the right to deprive the plaintiffs of such rights. The defendants have failed to do so.

Since the defendants have failed to establish the right to deprive the plaintiffs of their rights, I will hold that this deprivation without compensation was unlawful. I therefore hold that the plaintiffs are entitled to the compensation in accordance with art 13(2).

The Federal Constitution art 13 supersedes both statutory law and common law and mandates that all acquisition of proprietary rights shall be compensated and that any law made for the compulsory acquisition or use of property without compensation shall be rendered void in accordance with art 4 of the Federal Constitution. I assume that the alienation of the Linggiu valley lands in four titles was done under the National Land Code 1965 but the National Land Code 1965 does not provide for compensation of land acquired. However, the National Land Code 1965 must be read as being subservient to art 13 of the Federal Constitution and where there is no provision for compensation under statutory law, art 13(2) should be read into that statute.


To understand the plaintiffs’ claim, one has to find out the legal meaning of the word ‘compensation’ which is what the plaintiffs are claiming. 12 Halsbury’s Laws (4th Ed) at para 1123 throws some light on the meaning of the word ‘compensation’:

Meaning of ‘compensation’: In the sense in which the term is usually used, ‘compensation’ may be defined as the pecuniary recompense which a person is entitled to receive in respect of damage or loss which he has suffered, other than as a result of an actionable wrong, litigated in the civil court, committed by the person bound to make the recompense. In this sense, ‘compensation’ is distinct from ‘damages’ which are recoverable in respect of actionable wrong. The two main classes of compensation consist of payment by public authorities in respect of land or other property lawfully acquired under statutory powers or injuriously affected by or under statutory provisions, and payments by government departments or statutory bodies is respect of damage to property or personal injuries; but there are many examples of compensation; both in relation to interests in land and in other connections which fall outside these two classes.

We now come to the difficult part of this judgment as to how to decide on the compensation for proprietary rights taken away from the plaintiffs as there is no precedent and/or method of arriving at a formula for a just sum to be compensated.

After the Mabo case (No 2), the Federal Government of Australia enacted ‘The Native Title Act’ to compensate the Australian aborigines for lands taken away from them and for a lack of a proper formula, the Australian Federal Legislature simply stated that compensation must be on ‘just terms’. In my view, ‘compensation’ on ‘just terms’ in our context means ‘adequate compensation’.

As a starting point, I would look at the compensation given by the Singapore Government to the Johore Government which was RM320m. However, even though the Singapore Government parted with RM320m the Singapore Government did not receive title in the form of freehold or leasehold and neither did the Singapore Government obtain possession of the land. Further, the Singapore Government have to incur expenses in that they have to build the dam at their own cost and hand it over to the Johore Government upon completion. As such, the compensation paid by the Singapore Government to the Johore Government was purely for loss of use or loss of revenue by the Johore Government on what is above the land and not the land itself.

In awarding compensation under the Land Acquisition Act 1960 for titled lands, the court applies the similar compensable interest test or, in other words, the court compensates a land at its market value. However, the same test cannot be applied for native title land, for the native land is a far cry from a titled land, in that a native title land cannot be sold, conveyed, leased, charged, mortgaged, etc as distinct from titled land. On the other hand, where a member of other societies of the Malaysian communities is deprived of their property under the law, he must be adequately compensated and with that compensation he is able to restart elsewhere by buying another property and/or by relocating himself. An aborigine will not be in the same category as the other Malaysian citizen, for an aborigine has special attachment to his land and without any skill, education or way to live as the other communities, he would find it very difficult, if not impossible, to relocate himself and start afresh. Therefore, it would not be appropriate to place a value to a land under the two categories of titled land and native land. Yet, for the purposes of record, counsel for the defendants informed the court, when inquired, that land around Kota Tinggi, a town within the proximity of the Linggiu valley would fetch about RM75,000 an acre. I would accept the market value, if at all there is a market value for land use in the Linggiu valley, not involving title, to be equivalent to the sum paid by the Singapore Government to the Johore Government, ie RM6,000 per acre (round figure). However, this sum of RM6000 per acre would involve deprivation of land use for a person for no special attachment to the land and upon which land he does not depend on for his livelihood. For a case involving the plaintiffs, I would state that the plaintiffs had suffered deprivation of the following types of interest in the land:

(1) deprivation of heritage land;
(2) deprivation of freedom of inhabitation or movement under art 9(2);
(3) deprivation of produce of the forest;
(4) deprivation of future living for himself and his immediate family; and
(5) deprivation of future living for his descendants.

For want of a yardstick, I would compute the sums for the above deprivations commencing on the same rate the Singapore Government paid the Johore Government at RM6000 per acre multiplied by two amounting to RM12,000 per acre for loss of land used based on the above. This would be the maximum sum I would award to the plaintiffs. However, I must bear in mind that in making this award I am only giving a monetary equivalent to the loss of land use and the land produce. The sentimental, cultural and heritage attachment is not objectively achievable for that is a subjective matter. In awarding the compensation, I have in my mind that the sum would not only reflect a just figure, but also be a sum which would enable the plaintiffs to put into good use and regenerate.

Taking into consideration all the circumstances, I would make an award of RM500 per acre. This figure of RM500 per acre multiplied by the total area of 53,000 acres (to the nearest thousand acres) would amount to RM26.5m and which is what the plaintiffs are entitled to. Another method of computing the compensation is by counting the heads of the aborigines in the Linggiu valley and the surrounding areas which have their sources of income and livelihood destroyed with the acquisition of that land. The latest statistic shows there are 424 aborigines in that area. This statistic was not seriously challenged by the defendants. It was submitted by the plaintiffs and not denied by the defendants that the par capita income of poverty line at the time of the acquisition is slightly above RM300 per month per person. I will take that as the loss of income of each aborigine. I will award compensation of loss of income for 25 years for each person. On calculation, the total loss of income of the aborigines is RM26.5m and which is the same as the other compensation

I now grant order in terms of the plaintiffs’ prayer (2) and order that the defendants pay the plaintiffs the sum of RM26.5m. Parties are at liberty to apply. No order as to costs. In parting, it is my sincere hope that the plaintiffs would make good use of the compensation awarded so that they and their families would be able to survive for generations to come.

Application allowed.


On 24 February 1998 the Court of Appeal (Kuala Lumpur) dismissed an appeal against the decision and fully endorsed the reasoning of Mokhtar Sidin JCA on liability. The Court of Appeal allowed a cross-appeal against the Judge’s failure to award costs to the plaintiffs, and interest on the amount awarded to be paid as compensation (see [1998] 2 MLJ 158). A subsequent attempt to appeal to the Federal Court was unsuccessful.

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