COA instructs Agri-Tech Sdn Bhd’s claim on traditional Orang Asli land to go to trial

PUTRAJAYA (July 21): The Court of Appeal has ordered a trial to resolve a dispute between Agri-Tech Sdn Bhd and the local Orang Asli community over 101.17ha of land in Rompin, Pahang, which the indigenous group asserts is their ancestral territory.

This comes after the appellate court ruled on Monday (July 20) that it was not proper for the High Court to enter a summary judgement against the Orang Asli without going for a full trial.

The three-member COA bench led by Datuk Azizul Azmi Adnan ruled that the Orang Asli’s claim of customary rights had raised genuine triable issues which must be determined through a trial and not be summarily dismissed.

Azizul, who sat with judges Datuk Ong Chee Kwan and Datuk Seri Latifah Mohd Tahar, in unanimously allowing the appeal by Koperasi Orang Asli Kampung Tanam Rompin, its chairman Ibrahim Jinal, and Tok Batin Ahing Pak Kahling, directed that the case be remitted to the Kuantan High Court.

The bench also ordered Agri-Tech to pay RM30,000 costs to the Orang Asli and the Koperasi Orang Asli Kampung Tanam Rompin. The matter will be remitted to the Kuantan High Court on July 27.

On Nov 4 last year, Kuantan High Court Judicial Commissioner Samry Masry had granted a summary judgement as the court ruled that the presence of a land title owned by Agri-Tech in 2009 showed that it owned the land, and the defendants’ (the Orang Asli) claim of it being their ancestral land is unsupported by documentary proof or any counterclaim for declaratory relief.

“In my view, it does not constitute a triable issue capable of defeating Agri-Tech’s application for a summary judgement,” Samry had said.

The absence of photographs of alleged ancestral graves and sacred sites, and a police report suggesting that the land had only been opened for cultivation in 2013 were reasons for such a judgement to be entered. The land in question was never gazetted as an aboriginal area or aboriginal reserve under the Aboriginal Peoples Act 1954, and the community did not claim fraud or forgery.

The appeal by the Rompin Orang Asli community arose from the summary judgement secured by Agri-Tech granted by Samry, which relied heavily on its status of being the registered owner of the land and the principle of indefeasibility of title under Section 340(1) of the National Land Code.

Azizul in overturning the High Court’s decision said it was wrong for the High Court to rely on evidence solely by affidavit, as there are material conflicts in Agri-Tech and the defendants’ affidavits.

The Orang Asli had separately commenced a civil suit against Agri-Tech, the director general of the Orang Asli Department (Jakoa), the director of the Pahang Land and Mines office, and the Pahang government on the same matter.

Judge Azizul said although Agri-Tech’s title was issued in 2009, the main matter was whether the Orang Asli community had established customary rights over the land or their continuous occupation of the said property before the issuance of the title.

“And if so, whether those rights (by the Orang Asli) could prevail over the registered title,” he said, adding that these disputed facts required oral evidence and cross-examination in a full trial and not through affidavits.

This, Azizul added, makes the summary judgement that was entered against the community questionable, as the matter could only be resolved after a full examination of the oral and documentary evidence after trial.

Lawyers Lai Chee Hoe, Deyvinah Ganesalingam, and Jonathan Tan Ooi Boon of Messrs Chee Hoe & Associates appeared for the appellants, while Zaharman Zainal Abidin and Ahmad Syamsul Akmar Yusof of Messrs Fatin & Zaharman represented Agri-Tech.

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