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2018 MarsdenLR 3057
HIGH COURT SABAH & SARAWAK TAWAU
ABDUL SALIN AMMING & ORS – Appellant
Versus
BUMI ASERI SDN BHD & ORS – Respondent
[Originating Summons No: TWU-24-27/4-2018]
The Director's interpretation of 'State land' under the Land Ordinance was found to be incorrect, impacting native customary rights claims.
Headnote:This judgment addresses an appeal regarding the Director's decision on land claims based on native customary rights under the Land Ordinance. The appellants argued that their established claims were wrongly dismissed as the lots were purportedly categorized under a forest reserve. The court found the Director’s interpretation of State land as erroneous, leading to the appeal being granted. Issues of legitimate expectation, NCR establishment, and the Director's authority were also discussed, highlighting the complex interplay of statutory definitions.
| Table of Content |
|---|
| 1. details regarding the appeal process and foundational claims on land. (Para 1 , 3 , 19 , 25 , 28) |
| 2. introduction of appeal regarding land claims. (Para 4 , 5 , 6) |
| 3. court findings on the ncr establishment and forest reserve status. (Para 26 , 42) |
| 4. interpretation of native customary rights in relation to forest reserve status. (Para 30 , 32 , 38) |
| 5. court's determination on the need for formal recognition of forest reserves. (Para 44 , 46 , 54) |
| 6. issues around land classification and the director's interpretation. (Para 47 , 49 , 53) |
| 7. discussion on jurisdiction and legitimate expectations. (Para 59 , 60) |
[1] This is an appeal by the plaintiffs/appellants by way of Originating Summons (Encl 1) against the decision of the Director of the Lands and Survey ("Director") pursuant to s 41(1) of the Land Ordinance (Sabah Cap 68) given on 16 March 2018 in Director Land Enquiry (Appeal) Nos 37, 39, 48 and 39 of 2017.
[2] On 28 November 2018, I allowed the Originating Summons in terms with cost of RM2,000.00 to the appellants subject to the payment of allocatur.
[3] By the notice of appeal dated 19 December 2018, the 1st respondent appealed to the Court of Appeal against this Court's decision.
[4] I now give my grounds of decision.
The Background Facts
[5] Before the Director, the appellants' appeal against the Assistance Collector of Land Revenue's ("ACLR") decision was dismissed on the ground that lots 3, 4, 2 and 6 ("the Lots") are forest reserves.
[6] The lots are situated at Tingkayu in the District of Kunak which were allegedly entered and occupied by the appellants before 1998 for oil palm plantation and goat and cattle rearing farms The lots are part of the 14 lots belonging to the other occupiers within the same area of Tingkayu, Kunak.
[7] Specifically, the lots that were occupied by the respective appellants are shown in the table below:
[8] It was further alleged by the appellants that they started to harvest the oil palm fruits produced from the said lots in 2005.
[9] As of 2007, the appellants alleged that they had planted a total of 19,250 oil palm trees within the said lots measuring of about 350 to 380 acres. The average number of oil palm trees over the said lots is 55 fruit trees per acre which has exceeded 50 fruit trees of economic value per each hectare of land.
[10] By reason of the said cultivation and livestock farms carried out by the appellants in the said lots, the appellants submitted that as natives of Sabah, they had satisfied both the minimum requirement of 50 fruit trees per hectare and the requirements under s 15(a), (b), (c), (d), (e) and (g) of the Land Ordinance for native customary rights ("NCR") in the said lots.
[11] The appellants averred that together with the other occupiers of the other 10 lots, they have applied to the ACLR for the issuance of a document of title for all the 14 lots cultivated by them since 2002 in the land applications No PT.20-03240179 to 20-03240191 and 20-03240193.
[12] On 31 October 2002 and further on the 25 January 2008, the ACLR rejected the appellants' application for the issuance of a document of title for the lots on the ground that the said lots were proposed as government reserves or "simpanan kerajaan".
[13] The appellants further averred that as a result of the ACLR"s rejections of the appellants' land applications since 2002, the Secretary of Natural Resources of the Chief Minister's Department directed in writing dated 12 January 2009 to the ACLR and the Director to reconsider their decisions in rejecting the appellants' land application.
[14] Subsequently, on 23 March 2011, the Land Utilization Committee of the Kunak District ("LUC") indorsed the appellants' land applications and recommended for approval to the Director (Exh "A-2" at p 112 of encl 2).
[15] On 27 August 2012, the Secretary of Natural Resources approved the appellants' land applications for the said lots and directed the Director to carry out the survey of the 14 lots of the said lands in Na
