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2012 MarsdenLR 1849
HIGH COURT SABAH & SARAWAK MIRI
BANA ONGAP & ORS – Appellant
Versus
SYARIKAT KAI NGUONG RESORT AND DEVELOPMENT SDN BHD & ORS – Respondent
[Suit No: MR-21-04-2010(MR)]
The proper avenue for challenging administrative decisions on land classification and provisional leases related to native customary rights is through judicial review, not writ action.
Headnote:(A) Land Code (Cap. 81) - Sections 4(1), 5, 13(1), 15(1), and 18(1) - Native Customary Rights - Challenge to the issuance of provisional leases to third parties encroaching on claimed NCR land - Plaintiffs asserted the leases were unconstitutional and encroached on their rights - Court found no dispute of facts regarding the declaration of land as mixed zone - Judicial review is the appropriate mechanism for such claims rather than writ action. (Paras 5, 25, 27)
Facts of the case:
Plaintiffs claimed native customary rights over land and challenged the issuance of provisional leases by the Government without consent, alleging encroachment on their NCR land. (Paras 1-3)
Findings of Court:
Court held that the decisions to issue provisional leases and declare the land as mixed zone did not infringe any existing NCR claims; Plaintiffs should have pursued judicial review. (Paras 25, 27)
Issues: Whether Plaintiffs' rights were extinguished by subsequent declarations and provisional leases; whether the challenge should be by writ action or judicial review. (Para 9)
Ratio Decidendi: The court determined that the challenge to administrative decisions regarding land classification and leases involves elements of public law, necessitating a judicial review process. (Paras 22-26)
Result: Plaintiffs' suit struck out as an abuse of process.
| Table of Content |
|---|
| 1. claims of native customary rights over land. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8) |
| 2. challenge to land classification and lease issuance. (Para 9 , 12 , 13 , 14) |
| 3. examination of laws relating to native rights and land leases. (Para 10 , 11 , 15 , 16 , 17 , 18 , 19 , 20 , 21) |
| 4. judicial review procedures for administrative decisions. (Para 22 , 23 , 24 , 25) |
| 5. procedural correctness in filing claims. (Para 26 , 27 , 28 , 29 , 30) |
[1] The Plaintiffs brought this action on their own behalves as well as on behalf of the other residents of Rumah Aji and Rumah Bundan of Sungei Liam, Bakong, Miri, Sarawak.
[2] The Plaintiffs averred that they are Ibans by race, are natives of Sarawand that they have created, acquired and or inherited native customary rights (NCR), native titles and or usufructuary rights over an area of land in close proximity to their villages or kampungs as their ancestral or NCR land. The Plaintiffs averred that the rough boundary of the NCR land is shaded in dark and or light brown colour on a locality map marked "M" annexed to the Statement of Claim.
[3] The Plaintiffs pleaded that on or about the 3 July 2006, without the knowledge and or consent of the Plaintiffs, the 3rd Defendant issued to the 1st Defendant a provisional lease of State land described as Lot 202 Bakong Land District, containing an area of 80 hectares, which the Plaintiffs averred encroached onto parts of the NCR land claimed by the Plaintiffs.
[4] The Plaintiffs pleaded that on or about the 28 May 2007, without the knowledge and or consent of the Plaintiffs, the 3rd Defendant issued to the 2nd Defendant a provisional lease of State land described as Lot 204 Bakong Land District, containing an area of 228 hectares, which the Plaintiffs averred encroached onto parts of the NCR land claimed by the Plaintiffs.
[5] Further and or in the alternative, the Plaintiffs claimed that the registration and or issuance of the provisional leases by the 3rd Defendant to the 1st and 2nd Defendants, on the ostensible authority of legislations such as the Sarawwak Land Code (Cap. 81), was unconstitutional and or wrongful in so far as they abridged or impairedthe Plaintiffs' rights and or titles in or over their NCR land which was the source of the Plaintiffs' livelihoods and to be used for the generations to come.
[6] It was pleaded that the granting of the provisional leases amounted to an extinguishment and or termination of the Plaintiffs' rights in or over their NCR land which was bad as it was not done by a legislation designed specifically and clearly for that purpose. Therefore the Plaintiffs claimed that the provisional leases were subject to the rights of the Plaintiffs in or over their NCR land and that the 1st and 2nd Defendants did not and could not lawfully acquire any title or interest in the 2 parcels of land.
[7] It was also pleaded that he Plaintiffs had a legitimate expectation that their rights, traditions, cultures and livelihoods would not be disrupted, extinguished and or be restricted by the issuance of the provisional leases. They averred that their rights were impaired without them being given a right to be heard and or to object to the registration and issuance of the provisional leases which had led to the extinguishment and or termination of their rights. It was pleaded that the 3rd and or 4th Defendants had acted unreasonably and had failed to take relevant matters into consideration when they granted the respective provisional lease to the 1st and 2nd Defendants.
[8] The map 'M' shows that the Plaintiffs' NCR claims affected parts of Lot 4446 Sibuti Land District (now described as Lot 15 Block 2 Sibuti Land District) belonging to the 1st Defendant, Lot 202 Bakong Land District and Lot 204 Bakong Land District. The affidavit evidence showed that on 27 May 2003 the 3rd Defendant issued to the 1st Defendant a provisional lease of State land described as Lot 15 Block 2 Sibuti Land District containing an area of 215 hectares wh
