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2012 MarsdenLR 2122
HIGH COURT SABAH & SARAWAK KUCHING
JUSY MESIN & ORS – Appellant
Versus
PEMBINAAN BLT SDN BHD & ORS – Respondent
[Suit No: 22-235-2009-I]
Plaintiffs failed to establish native customary rights over disputed land and did not comply with statutory processes for claims, leading to dismissal.
Headnote:(A) Federal Constitution - Article 8 - Sarawak Land Code - Sections 5, 8, 15, 38, 84, 93, 102 - Native customary rights - Plaintiffs claimed native title over land, seeking declarations of rights and injunctions against trespass - Defendants argued lack of proof for claims of NCR and trespass, coupled with the land being river reserve - Court held that the Plaintiffs failed to establish NCR due to insufficient evidence linking ancestors' cultivation to their claims and affirming the application of Land Code regarding settlement procedures - Dismissed with costs. (Paras 1-78)
Facts of the case:
Plaintiffs claimed infringements of their native customary rights over land under dispute, presenting various declarations and injunctions against the Defendants who allegedly trespassed on their claimed area. They asserted prior occupation and native title but faced legal rebuttals. (Paras 1-5)
Findings of Court:
Upon examination, the court found that the Plaintiffs did not sufficiently prove their rights over the subject land as required under relevant statutory provisions and exhibited a lack of necessary evidence. Issues of waiver and non-action during prior settlement operations were also considered. (Paras 78)
Issues: The court addressed whether the Plaintiffs established native title, the applicability of the river reserve status, and whether their claim was rendered invalid by non-compliance with statutory processes. (Paras 2-4, 22-23, 35-36, 74-76)
Ratio Decidendi: The Plaintiffs did not carry the burden of proof necessary to substantiate the existence of native customary rights or adequately demonstrate that such rights were maintained after the establishment of the river reserve, leading to the dismissal of their claims. (Paras 17-30, 42-43)
Result: Plaintiffs' claim dismissed with costs. (Para 78)
| Table of Content |
|---|
| 1. plaintiffs seek declaration of native title (Para 1 , 1) |
| 2. parties' arguments on native title issues (Para 2 , 3 , 4 , 5) |
| 3. dispute over settlement deed and ncr recognition (Para 6 , 7 , 8 , 9) |
| 4. evidence of land locality and plaintiffs' claims (Para 10 , 11 , 12) |
[1] As against the 1st Defendant, the Plaintiffs are claiming for damages.As against the 2nd and 3rd Defendants, the Plaintiffs are claiming for Native Customary Rights (NCR). More specifically, by this action the Plaintiffs are seeking:
i. A Declaration that the Plaintiffs have native title and/or native customary rights and/or usufructuary rights over the said native customary land;
ii. A Declaration that this native title and/or rights precludes the 1st Defendant from impairing or abridging the Plaintiffs' said rights and/or from issuing any lease which affects their said native title and/or rights;
iii. A Declaration that the impairing of the Plaintiffs' rights in or over the said native customary land constitutes a violation of Articles 8 of the Federal Constitution (equality before the law);
iv. Alternatively, a declaration that the occupation of the said land was in breach of s 8 and/or s 15 of the Land Code Cap 81;
v. A Declaration that the Defendants or their servants or agents are trespassing on the Plaintiffs' said native customary land and/or otherwise unlawfully interfering the Plaintiffs' rights in or over the said land;
vi. An Order directing the Defendants and/or the Director of Lands & Surveys Sarawak to give effect to the aforesaid declarations;
vii. An Order that the Plaintiffs be given forthwith vacant possession of the said native customary land;
viii. A prohibitory injunction restraining the Defendants and/or their servants and/or agents from trespassing, clearing, using or occupying the Plaintiffs' said native customary land;
ix. A mandatory injunction against the Defendants and/or their servants and/or agents to cease operations and remove all structures and their equipments or machineries from the Plaintiffs' said native customary land fortwith;
x. Under para 23, exemplary damages, alternatively, aggravated damages;
xi. Damages;
xii. Alternatively, an Order that the damages be assessed accordingly;
xiii. Interests;
xiv. Costs; and
xv. Such further and/or other relief this Honourable Court deems fit and just.
The Parties' Respective Views Of What The Issues For Determination Ought To Be
[2] According to the Plaintiff's advocates, the issues are:
a. Whether the Plaintiffs have native title and/or native customary rights over the disputed land;
b. Whether the disputed area falls within riverbank reserve;
c. Whether the Plaintiffs are entitled for a damages (sic) against the 1st Defendant on the trespasses of (sic) native customary land.
[3] In his submission, learned counsel for the 2nd and 3rd Defendants outlines the manner he wishes to deal with what in his view are the issues in this case, as follows:
(i) Whether the Plaintiffs have Native Customary Rights (NCR) over the purported (sic) or any part thereof;
(a) The law relating to the creation of NCR;
(b) Whether the plaintiffs have established the creation and/or acquisition of native customary rights in accordance with s 5 of the Land Code (Cap 81)?
(c) Whether the Plaintiffs have established and/or proved the locality of the land claimed by them?
(d) In alternative, whether the Plaintiffs can create or acquire NCR over river reserve? and;
(e) Whether the Plaintiffs have waived their NCR, if any, over the purported land?
(ii) Whether the Declaration Order by the Court would amount to the process governed by s 93 to 96 of Land Code (Cap 81)?
(iii) Whether the commencement of this Suit is an abuse of legal process?
(iv) The damages issue.
[4] Learned counsel for the 1st Defendant sees the main issues as could presumably be gleaned from the relevant pleadings, as follows:
(i) Whether the 1st Defendant should be a party to this proceeding?
(ii) Whether the Plaintiffs have the native customary rights over the
