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2025 MarsdenLR 772
HIGH COURT SABAH & SARAWAK MIRI
KUMPULAN PARABENA SDN BHD – Appellant
Versus
THE OCCUPIERS(S) OF THE SAID MARKED AREA OF PLOT 3 AND PLOT 5 ON – Respondent
[Originating Summons No: MYY-24NCvC-18-11/2024 (HC)]
The court confirmed the plaintiff's right to possession of land while dismissing the defendants' claims based on unrecognized NCR rights, emphasizing the finality of prior judicial rulings.
Headnote:(A) Rules of Court 2012 - Order 89 - Application for vacant possession and eviction of unknown trespassers from registered lands - Plaintiff establishes their right to possession affirmed by Federal Court, detailing illegal occupation without consent - Defendants' claims based on NCR rights are found to lack merit due to prior legal determinations. (Paras [1], [4], [30], [40])
(B) Preliminary Objections - Defendants raised objections regarding irregularity of the originating summons and identification of defendants - Court found that procedural issues did not prejudice defendants' rights and allowed application under O 89. (Paras [12], [22])
(C) Bona Fide Triable Issue - Defendants failed to present a triable issue of fact or law, allowing for summary judgment in favor of the plaintiff - The court reaffirmed the significance of established legal rights. (Paras [24], [38])
| Table of Content |
|---|
| 1. plaintiff's entitlement to land and eviction. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. defendants claim native rights and contest. (Para 8 , 9 , 10 , 11) |
| 3. court's stance on preliminary objections. (Para 12 , 17 , 18) |
| 4. court's rationale on procedural adherence. (Para 13 , 14 , 15 , 16 , 19 , 20 , 21) |
| 5. burden on defendants to show triable issues. (Para 22 , 23 , 24 , 27 , 28) |
| 6. failure of defendants to prove ncr presence. (Para 29 , 30 , 31 , 32) |
| 7. defendants' collateral attack on previous ruling. (Para 34 , 35 , 36 , 37) |
| 8. summary order granted for trespass. (Para 38 , 39) |
[1] This is the plaintiff's application under O 89 of the Rules of Court 2012 (" ROC 2012") for an order for vacant possession and eviction of the defendants from the land marked as Plot 3 and Plot 5 on Lots 187 and 188 of Block 10 Lambir Land District (Hereinafter referred to as "the said Marked Area").
[2] The grounds of the application are as follows:
"(a) The Defendant(s) are unknown trespasser(s) and illegal occupier(s) on the said Marked Area;
(b) The Defendant(s) do not have any rights in law or equity for remaining in occupation on the said Marked Area;
(c) There was no license or consent granted to the Defendants for entry into and occupation on the said Marked Area by the Plaintiff or its predecessors in title, the Sarawak State Government;
(d) The Federal Court has affirmed the Plaintiff's right to possession over the whole of the said Lots 187 and 188 both of Block 10 Lambir Land District, containing a combined area of 486.5 hectares, more or less (the said Lands) vide Originating Summons No MYY-24-18/10-2016 (HC) consolidated with MYY24-19/10-2016 (HC) and MYY-24-20/10-2016 (HC) [Kumpulan Parabena Sdn Bhd v. Yahya Timbon & Ors ] which include the said Marked Area.
(e) The Plaintiff was, accordingly entitled as of right to vacant possession of the said Marked Area, and the houses, buildings/structures which were erected thereon, and to an order of eviction against the Defendant(s);
(f) All other grounds stated in the Affidavit in Support hereof."
Background Facts
[3] It is the plaintiff's case that it is the registered proprietor of the said Marked Area, as evidenced by the land titles produced in the affidavit in support. The plaintiff has never granted any consent, license or agreement for the defendants' occupation of the land.
[4] It is in evidence that the Plaintiff has commenced legal proceedings against some trespassers in the past over the whole of Lot 187 and Lot 188 and the Federal Court had on 24 November 2021 in Civil Appeal No 02(f)-76-10/2019(Q) [Busing Jali & Ors v. Kerajaan Negeri Sarawak & Anor And Other Appeals ; [2022] 2 MLJ 273 ; ] affirmed the plaintiff's right to possession over the said lands which include the said Marked Area.
[5] The plaintiff alleged that the defendants are unknown illegal occupiers and/or trespassers who had unlawfully occupied the said Marked Area which is marked as Plot 3 and Plot 5 on the Approved State Planning Authority Plan ("SPA").
[6] The affidavit evidence showed that the defendants' initial entry into the said Marked Area was without the licence/approval and consent of the plaintiff or the State Government as the registered proprietor at the material time and this is supported by a copy of the said SPA and several photographs. (See exhibits "PS-3" and "PS-4" of the plaintiff's Affidavit in Support affirmed by Peter Sia Khiaw Soon at encl 2).
[7] The defendants, however, claim to be in occupation of the said land based on permission allegedly granted by one Mr Jimmy Nyahen to Yahya bin Timbon, who purportedly represented the native Kedayan community of Kampung Usahajaya Tukau. It is contended that the said land is encumbered by native customary rights ("NCR") that have neither been extinguished nor compensated.
[8] The plaintiff contended that this alleged NCR claim is devoid of merit in light of the earlier Federal Court's decision against Yahya bin Timbon (See the Federal
