Back
2021 MarsdenLR 977
HIGH COURT SABAH & SARAWAK KUCHING
BISI ANAK JINGGOT & ORS – Appellant
Versus
SUPERINTENDENT OF LANDS AND SURVEYS KUCHING & ORS – Respondent
[Suit No: KCH-22NCVC-35-7-2019]
Fraud claims can potentially override indefeasibility of title, necessitating a trial to resolve multiple legal issues, including the validity of Native Customary Rights.
Headnote:(A) Sarawak Land Code (Cap 81) – Sections 13 and 202 – Government Proceedings Act 1956 – Section 29(1) – Plaintiffs claimed Native Customary Rights over land alienated to 3rd Defendant, alleging fraud in the issuance of title. Federal Court decision in TH Pelita Sadong Sdn Bhd v. TR Nyutan confirms that remedy is for damages, not declaratory relief; also discusses indefeasibility of title. (Paras 2, 24, 27)
(B) Fraud – The Plaintiffs alleged fraud in the issuance of title as an exception to indefeasibility. The court ruled that fraud can affect the indefeasibility of title if proven, distinguishing this case from previous judgments. (Paras 10, 19, 27)
Facts of the case: Plaintiffs claim approximately 224.41 acres of land, alleging Native Customary Rights, and maintain they were deprived of their land without proper consent. (Paras 6, 9)
Findings of Court: The application to determine legal questions without a trial was not appropriate due to multiple issues, including fraud. The claim of fraud was significant to the proceedings. (Paras 28, 31)
Issues: The central issues were whether the Plaintiffs’ claim should be dismissed based on legal precedents and whether their allegations of fraud were sufficient to maintain the suit. (Paras 4, 13, 21)
Ratio Decidendi: The court emphasized that while title is generally indefeasible, fraud claims can challenge this under specific circumstances, necessitating further trial for resolution. (Paras 19, 21, 29)
Result: Application dismissed in respect of encl 111; application for encl 125 allowed with costs. (Paras 32)
JUDGMENT
[1] These are two grounds of decisions in respect of two Enclosures i.e encl 111 and encl 125. By Notice of Application dated 15 October 2020 the 1st and 2nd Defendant has filed encl 111 seeking for certain facts to be determined prior to trial.
[2] The issues to be determined in encl 111 which was filed by the 1st and 2nd Defendants are:
(a) Whether having regards to the decision of the Federal Court in TH Pelita Sadong Sdn Bhd v. TR Nyutan & Ors, [2018] 1 MLJ 77, [2018] 1 CLJ 19; [2017] 8 AMR 142, the remedy for the Plaintiffs claim based upon the issuance of title or alienation of land by the 1st & 2nd Defendants over which the Plaintiffs had allegedly created Native Customary Rights is for an award of damages and not for declaratory reliefs sought by the Plaintiffs in their Statement of Claim;
(b) In the event that the answer to the question above is in the affirmative, whether having regard to the Federal Court decision in Husli Mok v. Superintendent of Lands & Surveys & Anor, , the Plaintiffs claim for damages herein is barred by s 202 of the Sarawak Land Code ; and
(c) In the alternative, whether the Plaintiffs' cause of action and/or for the reliefs prayed for in the Statement of Claims is barred by section 2(a) of the Pubic Authorities Protection Act 1948 having regard to the Federal Court decision in Litus Jau & Anor v. Boustead Pelita Tinjar Sdn Bhd & Ors, [2014] 1 MLJ 794.
[3] The grounds of the application in encl 111 filed by the 1st and 2nd Defendants are that:
(a) the said questions or issues of law is suitable for determination without full trial of the action;
(b) the determination of the said questions or issues of law are likely to finally or substantially dispose of the Plaintiffs' claims therein;
(c) the determination of the said questions or issues of law are likely to save time and costs for all parties concerned and facilitates an early disposal of this action;
(d) the said questions and issues of law, once determined, would decide whether this action is maintainable against the 1st and 2nd Defendants;
(e) the said questions and issues of law, once determined, would demonstrate that the Plaintiffs' action against the 1st and 2nd Defendants is is scandalous, frivolous or vexatious or is otherwise an abuse of the process of the Court.
[4] In respect of encl 125 filed by the 3rd Defendant, the issues to be determined are:
(a) whether, the effect of the decision of the Federal Court in TH Pelita Sadong Sdn Bhd v. TR Nyutan & Ors, [2018] 1 MLJ 77, [2018] 1 CLJ 19; [2017] 8 AMR 142 and Court of Appeal in Yahya Timbon & Ors v. Kumpulan Parabena Sdn Bhd, [2020] 5 MLJ 774, on the Plaintiffs' action against the 3rd Defendant is that the Plaintiffs have no right in law whatsoever to claim declaratory order or any other legal remedy against the 3rd Defendant who is the registered proprietor of Lots 85 and 86 both of Block 1 Matang Land District and should therefore be summarily dismissed; and
(b) whether the 3rd Defendant by virtue of being the registered proprietor of Lots 85 and 86 both of Block 1 Matang Land District and the holder of the issue documents of title thereto issued by the Superintendent of Lands and Surveys; holds an indefeasible title to the same as against the Plaintiffs who accordingly have no cause of action against the 3rd Defendant.
[5] The grounds of the application in encl 125 by the 3rd Defendant are that:
(a) the determination of the said questions or issues will decide the viability of the Plaintiffs' cause of action or claim against the 3rd Defendant and will save time and costs for all parties concerned; and
(b) the said questions and issues, once determined, would demonstrate that the Plaintiffs' action herein against the 3rd Defendant is without merit in law, scandalous, frivolous or vexatious or is otherwise an abuse of the process of the Court.
Background
[6] The Plaintiffs in this action are claiming native customary rights (NCR) in the land approximately 224.41 acres
