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2022 MarsdenLR 484
HIGH COURT SABAH & SARAWAK SIBU
PANGGAU NYAMBANG & ORS – Appellant
Versus
LEMBAGA PEMBANGUNAN DAN LINDUNGAN TANAH (LAND CUSTODY AND DEVELOPMENT AUTH.... – Respondent
[Suit No: SBW-21NCvC-1/2-2017 (HC)]
The court emphasized that plaintiffs must demonstrate continuous occupation to establish native customary rights, failing which their claim will be dismissed.
Headnote:(A) Sarawak Land Code – Section 84 – Native Customary Rights – Plaintiffs sought recognition of native customary rights over 1,835.57 hectares of land, but failed to prove continuous occupation or nexus between Plaintiffs and land – Claim dismissed with costs. (Paras 6, 30)
(B) Burden of Proof – Plaintiffs did not establish evidence of occupation or activity to substantiate their native customary rights claim – The necessity of continuous occupation emphasized. (Paras 13, 24)
(C) Representative Actions – Difficulty in proving native customary rights on behalf of third parties highlighted – Court questioned the feasibility of establishing claims through hearsay. (Paras 29, 30)
Facts of the case: Plaintiffs claimed native customary rights over land based on historical usage and inheritance, involving 24 families, but the land in question had been categorized as State land.
Findings of Court: Plaintiffs failed to demonstrate the necessary proof for their claim, leading to their amended writ and statement being struck out.
Issues: The main issues were whether Plaintiffs had established native customary rights and the implications of such rights against registered land titles.
Ratio Decidendi: Court ruled the burden lies with the Plaintiffs to prove their claim of continuous occupation and the connection to their native customary rights, which they failed to achieve.
Result: Claim dismissed with costs.
JUDGMENT
Preliminaries
[1] Today's ruling is in point form, highlighting only the issues that shaped my final decision. The full grounds will be issued later and in any event within 8 weeks of today if an appeal is lodged.
[2] This case has a chequered history. It was registered in 2017 and the usual steps were taken to move this dispute towards trial.
[3] In a nutshell, the Plaintiffs brought this action on their own behalf as well as on behalf of 24 other families, all of them of the Iban race. They sought Native Customary Rights over land which had been alienated tot eh 1st Defendant. The 2nd and 3rd Defendants were in effect the State Government of Sarawak and its land agency or arm.
[4] The Plaintiffs, in their amended Statement of Claim, claimed that they had:
"created and/or acquired and/or inherited native customary rights (NCR) and/or native title and/or usufructuary rights over an area of land in close proximity to their said village or Kampung as their ancestral or native customary rights land locally referred to as pemakai menua which contains their temuda and/or their former pulau galau ("the NCR Land") and referred to their mad "M" to delineate the area claimed. They, the Plaintiffs, then claimed that they had inherited the NCR and in consequence the NCR Land. "
[5] It is pertinent to note that although the words "close proximity to their said village" was used in the Statement of Claim, the actual area claimed is a staggering 1,835.57 hectares which, equating to 18.3 sq kms
Interlocutory Applications
Enclosure 70 By The 2nd And 3rd Defendants Under Order 32 Rule 1, Order 33 Rules 3 and 5
[6] The 2nd and 3rd Defendants then sought in encl 70 to strike out the Plaintiffs' amended Statement of Claim over certain questions of law. The Learned High Court Judge then ruled:
(1) As regards the 1st Question of Law, this Court finds that having regard to the pleading and the case of Director of Forest, Sarawak & Anor v. TR Sandah Tabau & Ors and Other Appeals, and Bisi Jinggot @ Hilarion Bisi Jenggut v. Superintendent of Lands and Surveys Kuching Division & Ors; [2013] 5 MLJ 149; [2013] 6 CLJ 805; [2013] 4 AMR 701, the Plaintiffs do not have any cause of action against the 2nd and 3rd Defendants for claiming native customary rights over forested area which are still primary forest and/or virgin jungle;
(2) As regards the 2nd Question of Law, this Court finds that it would be an abuse of the process of the Court for the Plaintiffs to commence this action and seek declaration of native customary rights, whereby, the subject land claimed has already been declared to be State land under the settlement exercise pursuant to s 84 of the Sarawak Land Code (Cap 81), and whereby the Plaintiffs did not exhausted the alternative remedy available under the same Code, namely to appeal against the decision declaring the land to be State land as stated in the Settlement Order published in the Sarawak Government Gazette.
(3) Having answered the above 2 Questions of Law in favour of the 2nd and 3rd Defendants, this Court orders that the Plaintiffs' Amended Writ and Statement of Claim both dated 25 April 2017 be struck out against the 2nd and 3rd Defendants as the Plaintiffs' Amended Writ and Statement of Claim dated 25 April 2017 against the 2nd and 3rd Defendants discloses no reasonable cause of action; and/or Scandalous, frivolous, vexatious; and/or otherwise an abuse of the process of Court, with costs of RM3,000.00 subject to payment of allocator fees.
[7] The Plaintiff appealed to the Court of Appeal.
Enclosure 93 By 1st Defendant - Order 14A, Order 33, Order 18 Rule 19(1)(a), (b), (d), Order 32 Rule 1
[8] In encl 93, the 1st Defendant sought to strike out the Plaintiffs' claim against them. The Learned High Court Judge ruled:
[9] Having read the relevant pleadings, considered the various exhibits tendered and the written submissions of learned counsels of the parties herein, this Court answers the above 2 Questions of Law a
