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2021 MarsdenLR 558
HIGH COURT SABAH & SARAWAK KUCHING
EDWARD GELLA BAUL & ORS – Appellant
Versus
SUPERINTENDENT OF LAND AND SURVEY & ORS – Respondent
[Suit No: SRA-21NCvC-1/3-2017 (HC)]
Native Customary Rights claims require established continuous occupation prior to 1958 for legal recognition, and disputes over such rights among natives should first be resolved by Native Courts.
Headnote:(A) Land Code Cap 81 – Sections 5(1), 5(2), 5(3), 5(7), 6A, 132 – Native Customary Rights (NCR) claims – Plaintiffs sought declarations of NCR over 474 hectares of land; claim dismissed due to lack of evidence for continuous occupation and the existence of competing claims – Plaintiffs failed to exhaust remedies prescribed by Native Courts – Defendants were found to have acted lawfully and within statutory authority. (Paras [1], [28], [35], [70], [84])
(B) High Court Jurisdiction – High Court should not adjudicate overlapping claims of NCR rights between natives as such claims should be first handled by the District Native Court – Case upheld to maintain statutory compliance over native claims. (Paras [29], [83])
Facts of the case: Plaintiffs claimed NCR over land alienated to 3rd Defendant, asserting that they were deprived of their rights. Defendants countered that no valid NCR existed as per requirements of Land Code. (Paras [5], [8])
Findings of Court: Plaintiffs failed to prove NCR; any potential claims were time-barred or issues of jurisdiction arose rendering claims inappropriate for High Court. (Paras [84], [86])
Issues: Whether Plaintiffs established continuous occupation for NCR claims; whether the case was appropriately brought before the High Court given the existence of competing claims. (Paras [28], [29])
Ratio Decidendi: Plaintiffs must establish claims based on cogent evidence of continuous occupation prior to 1958; failure to do so resulted in dismissal of the claim. (Paras [24], [50])
Result: Claims dismissed with costs awarded to Defendants. (Paras [88])
JUDGMENT
(After trial)
On The 19 January 2021 Following The Conclusion Of A Long Drawn Trial, I Ruled At Kuching High Court II That The Plaintiffs' Claim Was Not Successful. The Following Are The Grounds Of My Decision.
The Substance Of The Plaintiff's Claim
[1] Extracting from the Endorsements of Claim of the Plaintiffs (Encl 183), they sought in their representative capacity, against the Defendants as follows:
(a) A declaration order that the Plaintiffs had acquired and/or inherited Native title and/or Native Customary Rights (NCR) totalling 474 hectares of Native Customary Right land some of which have been included in Lot 21 Block 16 Awik-Krian Land District (referred to "Lot 21") while some of the NCR land contiguous and adjoining Lot 21 have been trespassed upon and/or encroached upon and planted with oil palm by the 3rd Defendant; and
(b) A declaration that the Native title and/or Native Customary Rights land precludes the 1st, 2nd and 3rd Defendants from impairing or abridging the Plaintiffs' NCR land and/or from issuing any title or otherwise, which affects their said Native title and/or rights; and
(c) A declaration that the acts of the 1st and 2nd Defendants in issuing the said title in so far as they impair the Plaintiffs' NCR land over the said NCR land, is wrong bad and/or void; and
(d) A declaration order that the acts of the 3rd Defendant in encroaching and/or trespassing and planting oil palm on the Plaintiffs' NCR land is wrong bad and/or void; and
(e) A declaration order that the issuance of the said title by the 1st and 2nd Defendants to the 3rd Defendants in as far as the extent of that area under the title overlaps and/or covers the Plaintiffs' NCR land is unlawful, improper, unconstitutional and therefore null and void, for want of extinguishment of the Plaintiffs' NCR land over the said land; and
(f) Alternatively, a declaration that the issuance of the said title is subject to the Native title and/or Native Customary Rights land and/or usufructuary rights of the Plaintiffs in or over the said NCR land and that they do not affect the Plaintiffs' said title and/or rights therein; and
(g) A declaration that in issuing the said title as aforesaid, the 1st and 2nd Defendants had acted in breach of their fiduciary duty to the Plaintiffs and therefore the said title was null and void; and
(h) A declaration that the issuance of the said title was in breach of the Statutory Provisions of the Land Code Cap 81 ; and
(i) A declaration that the issuance of the said title to the 3rd Defendant is unlawful, improper, unconstitutional and therefore null and void; and
(j) A declaration order that the area so included in the said title as claimed by the Plaintiffs' as part of their NCR land, the same be excised out the area of land under the said title; and
(k) A prohibitory injunction restraining the 3rd Defendant and/or their employees, servant and/or agents from trespassing, clearing, planting harvesting and selling oil palm fruit, and /or using or occupying the Plaintiffs' said NCR Land immediately upon the order of the prohibitory injunction; and
(l) A mandatory injunction against the 3rd Defendant and/or their employees, servants and/or agents to cease operations, planting, harvesting and selling oil palm fruit and to remove all structures, equipment and/ or machineries from the Plaintiffs' said NCR Land forthwith immediately upon the order of mandatory injunction; and
(m) An order that the 3rd Defendant be made accountable and/or reveal to the Plaintiffs' the gross profit, which the 3rd Defendant had obtained from harvesting and selling oil palm fruit from the Plaintiffs' NCR land from the year 2005 to 2017; and
(n) An order that the 3rd Defendant be made liable for the claim or Judgment, in the sum in the amount of RM51,760,800.00 being the estimated amount of profit and income which the Plaintiffs' would have or could have obtained if the Plaintiffs had not been deprived from planting, harvesting and s
