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2013 MarsdenLR 1452
HIGH COURT SABAH & SARAWAK KUCHING
SANABUNG SAMPAI & ORS – Appellant
Versus
HYDROFLOW SDN BHD & ORS – Respondent
[Suit No: 21-15-2010-III]
Claims to native customary rights require strong evidentiary support, and consensus among the community is crucial for territorial claims like Pemakai Menoa.
Headnote:(A) Sarawak Land Ordinance - Section 5 - Native Customary Rights - Plaintiffs claimed that a large area of about 5,000 hectares is their Native Customary Rights (NCR) land, but failed to prove NCR over the claimed area within Provisional Leases (PLs) issued to the defendants - Evidence of witnesses based on oral history insufficient compared to aerial photographs showing the area was predominantly forested before 1958 - The court declared the claim dismissed due to lack of evidence. (Paras [1], [15], [26], [50])
(B) Concept of Pemakai Menoa - The court recognized that territory claimed as Pemakai Menoa must reflect communal use and support from the wider community; plaintiffs failed to demonstrate substantial unity among bordering residents regarding the claim. (Paras [43], [46])
Facts of the case:
This action was initiated by three villages to declare that a significant area is their NCR land, subsequent to the issuance of PLs to two companies which were later struck out as defendants. The government maintained that the land is devoid of NCR due to its forested state prior to 1958. (Paras [1], [50])
Findings of Court:
Plaintiffs were unable to prove NCR within the disputed area, as their claims were unsupported by concrete evidence, and the concept of Pemakai Menoa was not sufficiently validated. (Paras [39], [47])
Issues: The court addressed whether the plaintiffs had established NCR over the area, the admissibility of the evidentiary map, the recognition of Pemakai Menoa in prevailing native law, and the implications of forest reserve status. (Paras [15], [16], [18], [20])
Ratio Decidendi: The court emphasized the necessity for robust evidence to support NCR claims and the importance of community consensus for claims of communal territory under Pemakai Menoa, highlighting the insufficient oral history and expert testimonies provided by the plaintiffs. (Paras [18], [46])
Result: Claim dismissed with costs awarded to the defendants.
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| 1. representative action for ncr land claim. (Para 1) |
[1] This is a representative action brought by three plaintiffs on their own behalf and on behalf their fellow residents of three villages, ie Kampung Sungai Lingkau, Kampung Melanjok and Kampung Sekendu which are located in Simunjan, Sarawak. Their claim is principally for a declaration that a large area of about 5,000 hectares near the said villages is their Native Customary Rights (NCR) land. This area is demarcated and shaded light brown, yellow and brown in Map "M" which is attached to the Statement of Claim. Originally there were four defendants. The first two defendants are companies that had been issued Provisional Leases (PLs) which allegedly cover a large part of the NCR land of the said three villages. The 1st defendant was issued a PL over Lot 1226 and Lot 1242 of Sedilu-Gedong Land District. The 2nd defendant was issued a PL over Lot 1224. However, before the trial commenced, the 1st and 2nd defendants were struck out by the court as defendants. The ground of the striking out application was "want of prosecution". The plaintiffs did not appeal against the decision. The 3rd and 4 defendants are the Superintendent of Lands and Surveys Department of Samarahan Division and the Government of Sarawak. In spite of the removal of the 1st and 2nd defendants, the plaintiffs still proceeded with the suit against the 3rd and 4th defendants whom I shall collectively refer to as the Sarawak Government.
