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2020 MarsdenLR 3412
HIGH COURT SABAH & SARAWAK KUCHING
MAYAN AK NAYANG – Appellant
Versus
BERLIAN STABIL SDN BHD & ORS – Respondent
[Suit No: KCH-21NCvC-1/1-2019 (HC 1)]
The court maintains jurisdiction over civil claims against non-native entities, yet stays proceedings pending resolution of Native court actions regarding the rightful ownership of NCR land.
Headnote:(A) Native Courts Ordinance 1992 – Section 5(3)(a)(i) – Courts of Judicature Act 1964 – Jurisdiction over NCR claims – Court stayed proceedings against 1st defendant pending determination of Native court actions; ruling found plaintiff's claim premature and unsustainable against a non-native entity; plaintiff's previous claims and multiple proceedings addressed; principles of striking out emphasized. (Paras 6, 19, 62)
(B) Abuse of Process – Unclean hands – The plaintiff's previous inconsistent claims regarding land ownership led to the conclusion that the current action is an abuse of process. (Paras 9, 10, 11)
Facts of the case: The plaintiff claimed to be the rightful NCR owner of Lot 9105, Block 26, while the 1st defendant challenged this claim based on competing ownership claims and pending Native court suits.
Findings of Court: The court found that the plaintiff's claim was unsustainable given multiple competing claims and the pending jurisdiction of Native courts regarding NCR land claims.
Issues: The court addressed whether it has jurisdiction to hear the plaintiff's claim given the existence of pending Native court suits and whether the claim constituted an abuse of process.
Ratio Decidendi: The court found that until the Native court resolves claims of NCR ownership, it holds no jurisdiction to adjudicate the plaintiff's claim against the 1st defendant.
Result: The application to strike out was dismissed, and proceedings were stayed pending Native court determination.
JUDGMENT
Introduction
[1] The plaintiff's cause of action in this case is premised on the allegation that:
(a) he is the rightful native customary rights (NCR) owner of a piece of land described as Lot 9105, Block 26, Muara Tuang Land District; and
(b) the 1st defendant is trespassing on the alleged NCR land through its development project known as Taman Berlian Stabil.
[2] However, the 1st defendant says that the plaintiff has yet to prove that he is the rightful owner of the alleged NCR land in the first place. In other words, in order to have locus standi to institute a claim of trespass against the 1st defendant over the land, the plaintiff must be able to first prove that he is the rightful owner of it.
[3] Consequently, the 1st defendant is applying to strike out the plaintiff's:
(a) Amended Writ of Summons dated 26 February 2019;
(b) Amended Statement of Claim 26 February 2019 ("SOC"); and
(c) Particulars Served Pursuant to Request dated 6 March 2019.
[4] The affidavits before the court are:
(a) Affidavit in Support of Tony Pang Sze Yaw ['AIS' or Encl 38] dated 5 August 2019;
(b) Affidavit in Opposition of Mayan Ak Nayang ['AIO' or Encl 41] dated 16 August 2019; and
(c) Affidavit in Reply of Tony Pang Sze Yaw ('AIR' or Encl 43) dated 3 September 2019.
Principles Of Striking Out
[5] The principles for a striking out application are trite. They are set out by Mohd Dzaiddin SCJ in Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd, at 43:
"It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley MR in Hubbuck & Sons Ltd v. Wilkinson, Heywood & Clark Ltd), and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it 'obviously unsustainable' (see AG of Duchy of Lancaster v. L & NW Rly Co). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (see Wenlock v. Moloney & Ors). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O 33 r 3 (which is in pari materia with our O 33 r 2 of the RHC) (see Hubbuck & Sons Ltd v. Wilkinson, Heywood & Clark Ltd). The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable."
The Grounds Of Application
[6] The 1st defendant contends that the plaintiff's claim of being the rightful owner of the alleged NCR land is obviously unsustainable and/or an abuse of court process for 5 reasons:
(a) the plaintiff commenced this action with unclean hands as he has failed to disclose to this court that he had previously claimed that the rightful owners of the land were himself and 5 other individuals;
(b) there is a voluminous amount of competing NCR claims against the land;
(c) this court has no original jurisdiction to adjudicate matters due to the pending Native court suits which were filed first in time;
(d) there is a multiplicity of proceedings over the same issue of the rightful ownership of the alleged NCR land due to the pending Native court suits which were filed first in time; and
(e) the plaintiff's filing of this action was with the collateral purpose of attacking the pending Native court suits to the prejudice of the claimants therein.
[7] Additionally, the 1st defendant contends, the plaintiff will not be prejudiced in the event this application is allowed on the basis that the plaintiff should first defend the Native court Suits because:
(a) if the District Native court hold that the plaintiff has acquired NCR rights over the land, the plaintiff is at liberty to bring an action against the 1st defendant for trespass; and
(b) any loss and damages can be compensated by the 1st defendant in monetary form, which is the appropriate remedy
