Rosli Jendut & Ors v Agrobest (M) Sdn Bhd & Ors

Appellant(s):

• Rosli A/L Jendut
• Atan Bin Baro
• Melah Binti Hamid
• Awang Bin Bako
• Esah A/P Wir
• Kasim Bin Awang
• Majib Bin Kasim

Respondent(s):

• Agrobest (M) Sdn. Bhd
• Mudzafar Bin Abu Samah
• Khong Chung Chong

• YA Dato' Nordin Bin Hassan
• YA Dato' Seri Vazeer Alam bin Mydin Meera
• YA Dato' Lee Swee Seng

• The appellants, Orang Asli of Kampung Orang Asli Batu 20 in Pahang, were relocated by the Jabatan Kemajuan Orang Asli without compensation, but continued to return periodically to perform rituals at the graves and tombstones of their forebears on the land.
• The land was later leased by the State to a company for a large-scale aquaculture project; the first respondent, a subsidiary of the lessee, engaged a contractor who used bulldozers to raze the cemetery, destroying the tombstones and graves before any settlement was reached with the appellants.
• The High Court found the respondents liable in trespass and awarded general damages, but the Court of Appeal reversed, holding that the appellants lacked locus standi (not being personal representatives of the deceased) and were not in lawful possession of the land.

• Whether a respondent who wishes to challenge only part of a High Court decision (e.g. quantum of damages) may properly do so by Notice of Cross-Appeal under Rule 8 RCA 1994, where the appellant had appealed against the whole decision.
• Whether Orang Asli claimants have locus standi to sue in trespass for desecration of ancestral burial sites based on collective/communal interest, without proof of a direct descendant relationship to each deceased, and whether oral history evidence is admissible under s 32(1)(d)-(e) of the Evidence Act 1950 to establish such connection.
• Whether the Orang Asli's common law customary/native title and usufructuary rights over ancestral burial grounds survive relocation and the State's subsequent alienation/leasing of the land absent lawful extinguishment and compensation, and whether such rights are protected under s 4(2)(a) of the National Land Code and Article 5(1) of the Federal Constitution.

• The Federal Court held that, where the opposing party had appealed against the whole decision below, the respondent's Notice of Cross-Appeal need not be struck out even though a separate Notice of Appeal may have been more technically correct, as no real prejudice arose; ultimately this issue was not determinative.
• The Court held that the appellants had proved, through oral tradition, family evidence, and available death certificates, their continuing spiritual and cultural connection to the identified grave sites, and that locus standi to sue in trespass for desecration of ancestral burial grounds rests on collective/communal interest, not on proof of direct descent from each deceased; oral history is admissible under s 32(1)(d)-(e) of the Evidence Act 1950.
• The Court held that Orang Asli customary/native title constitutes a proprietary interest recognised at common law and preserved under s 4(2)(a) of the National Land Code, which is not extinguished by State alienation or leasing absent clear legislative language and payment of adequate compensation; any title granted by the State remains subject to unextinguished native customary rights, and the Court restored the High Court's finding of liability and award of general damages (RM20,000 per plaintiff), while declining to disturb the dismissal of claims for special and exemplary damages.