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2021 MarsdenLR 3781
HIGH COURT SABAH & SARAWAK TAWAU
IBNUHAILI @ HOLLY JAUHALI & ORS – Appellant
Versus
BORNEO SAMUDERA SDN BHD & ANOR – Respondent
[Suit No: TWU-22NCVC-1/2-2021]
The High Court dismissed the claim for native customary rights due to lack of jurisdiction, application of res judicata, and expiration of the limitation period for action.
Headnote:(A) Sabah Land Ordinance – Sections 9, 12, 14, and 41 – Plaintiffs sought to claim native customary rights over land without going through proper administrative channels; claim deemed unsustainable due to lack of jurisdiction in the High Court as per s 41(2) – Plaintiffs attempted to bypass statutory process, which is ineffective. (Paras 11-16)
(B) Res Judicata – Previously adjudicated claims prevent re-litigation of the same issue; plaintiffs estopped from pursuing action due to earlier decisions by the Director. (Paras 24-28)
(C) Limitation – Plaintiffs failed to assert their rights within the applicable limitation period, the applicable statutory limits initiate from the time of dispossession or discontinuation of possession. (Paras 31-34)
Facts of the case: Plaintiffs claimed NCR over 9,030 acres claiming occupation since before 1968, but defendants argued that they have developed the land for decades and the proper avenues for claims were not pursued. (Paras 2-6)
Findings of Court: The High Court lacks jurisdiction to hear the case directly and plaintiffs must pursue claims through the Collector. The action is also barred by res judicata and limitation principles. (Paras 11-16, 24-28, 31-34)
Issues: The court addressed jurisdiction regarding NCR claims, especially the necessity of administrative processes under the Land Ordinance, res judicata application, and the limitation period for claims. (Paras 11-16, 24-28, 31-34)
Ratio Decidendi: The court upheld that jurisdiction on NCR must be determined by designated authorities under the Sabah Land Ordinance and previous rulings prevent this claim and indicate that the plaintiffs did not comply with necessary statutory requirements. (Paras 11-16, 24-28)
Result: Plaintiffs' claim dismissed; striking out applications allowed with costs.
JUDGMENT
Striking Out Applications
[1] By encls 14 and 16, the 1st and 2nd defendants respectively applied to strike out the plaintiffs' action under all 4 heads of O 18, r 19(1), Rules of 2012, and pursuant to the inherent jurisdiction of the Court. The law governing striking out applications is so well-entrenched that it is not necessary, at this point, to go beyond recognising that it is a draconian order which ought to be exercised only in plain and obvious cases; a principle that is to be kept at the forefront in deliberating whether to strike out the action. Affidavits in support, encls 15 and 17, were affirmed by the 1st and 2nd defendants respectively. The plaintiffs filed affidavits in opposition vide encls 18 and 19.
Brief Facts
[2] The plaintiffs' action is premised on native customary rights (NCR) over a parcel of land measuring 9,030 acres situate in Semporna ("the subject land"). They claim that they and members of their families have built houses on, occupied and developed the subject land since before 1968 by planting various types of fruit trees and cassava. It is asserted that in 1968, OKK Hj Sakaran Dandai (who was later to become the Chief Minister of Sabah) had applied for the 10,640 acres of land as native placement land, and the application was approved by the then Tuan Yang Terutama, the late Tun Datu Mustapha Datu Harun, vide Sabah Government Gazette No 171/68 dated 20 February 1968 which became known as Tanah Simpanan Rancangan Penempatan Pegagau Semporna.
[3] That approval of the land for public purposes was revoked vide a Gazette notification on 20 November 1007, namely, GN No 149/97.
[4] Prior to that revocation, on the mandate of the State Government, the 2nd defendant had been developing the subject land as an oil palm plantation since 1969/1970.
[5] In 1996, the State Government directed the assets of the 2nd defendant to be transferred to the 1st defendant.
[6] In 1997, the Director of the Lands & Surveys Department issued a circular to the Assistant Collector of Land Revenue in Tawau to process all applications for the land - previously developed by the 2nd defendant -which had been submitted by the 1st defendant. The ground surveys did not disclose the existence of any NCR, and all the survey plans were approved.
[7] The Lands & Surveys Department issued a Letter of Offer ("LO") on 11 January 2007 to the 1st defendant for 3,491 hectares ("the said land").
[8] The 1st defendant accepted the offer on 16 February 2007, and paid the premium of RM4,313,130.50 for the said land.
[9] The defendants make the point that the 1st defendant had developed the said land since the 70s, including the cultivation of the oil palm plantation, construction of a multi-purpose hall and a mosque, while the 2nd defendant has continued development on the said land, apart from maintaining the roads on it.
[10] As for the plaintiffs, they aver that in 1984 there was a dispute over the subject land whereby the 2nd defendant had asserted that the plaintiffs have no rights over it. The plaintiffs contend that there was a reference of the dispute to the Mahkamah Anak Negeri Semporna and it had issued the Jadual Tiga dated 5 September 1984 which only allowed the 2nd defendant or any companies linked to the State Government of Sabah a period of 20 years to occupy the subject land, following which the land would have to be handed over to the 2nd defendant, his in-laws, and followers or descendants and the people of Semporna, except for Phase 1 which would be for KK Hj Mohd Noor's group and followers and Phase 2 which would be for KK Rajani Bin Salambatan's group and his followers.
Threshold Issue Of Jurisdiction
[11] Off the bat, I am bound to recognise that the action comes before this Court which is not seised with original jurisdiction to hear it.
[12] A claim predicated on NCR must first be brought before the Collector, whether it be for the subject land measuring 9,030 acres, or for the said land measuring 3,491 hectare
