Back
2012 MarsdenLR 1305
HIGH COURT SABAH & SARAWAK MIRI
DING LAENG & ORS – Appellant
Versus
MINISTER OF PLANNING AND RESOURCE MANAGEMENT & ORS – Respondent
[Suit No: MR-21-11-2011]
The court ruled that ongoing appeals in other jurisdictions regarding land status render related suits an abuse of process, emphasizing the importance of avoiding conflicting judgments.
Headnote:(A) Order 14A and Order 18 Rule 19 of the Rules of the High Court 1980 - Native Customary Rights (NCR) - Issue of forest licence - Plaintiffs claim rights over land subject to licence; defendants argue suit is barred by law and based on questions of fraud and limitation - Court determined action was an abuse of process due to pending appeals in other jurisdictions, striking out the claim. (Paras 2-16)
(B) Abuse of Process - Plaintiffs filing suit while appeal on land status pending - Court ruled that dual proceedings risk conflicting judgments and thus were procedurally improper. (Paras 14-15)
Facts of the case:
Plaintiffs represent residents claiming NCR over land licensed for timber since 1998 without compensation - Defendants argue no valid NCR and cite limitation laws for claim filed late.
Findings of Court:
Court found plaintiffs acted improperly by not waiting for appeal outcomes, which constituted abuse of process.
Issues: Main issues included maintainability of action during ongoing appeal, definition of NCR, and limitation concerns.
Ratio Decidendi: Court held that pending appeal on the same matter filed by plaintiffs prevented this action, reinforcing the necessity to avoid inconsistent judgments in similar land disputes.
Result: Claim of plaintiffs struck out.
| Table of Content |
|---|
| 1. plaintiffs claim native customary rights. (Para 1 , 1 , 2) |
| 2. defendants challenge the ncr claim and its legality. (Para 3 , 4) |
| 3. defendants raise legal questions regarding claim's maintainability. (Para 5 , 6 , 10) |
| 4. court analyzes jurisdiction and abuse of process. (Para 7 , 8 , 9 , 11) |
[1] This is an application by the defendants to determine questions of law under O 14A of the Rules of the High 1980 and strike out the suit of the plaintiffs. The defendants are also alternatively praying for striking out under O 18 r 19 of the Rules of the High 1980.
Brief Facts Of The Plaintiffs' Claim
[2] The seven plaintiffs have brought this representative action on behalf of other residents of Kampung Long Panai in Sg Tutoh Baram, Miri Division principally for a declaration that they possess Native Customary Rights (NCR) over a large parcel of land (delineated in red and marked B on the map annexed to the statement of claim) on which the 4th defendant had been issued with a Licence for Planted Forests (the LCF) No LPF/0011 since 1998. The 4th defendant is the joint venture company of the Sarawak Timber Industry Development Corporation and KTS Sdn Bhd. The plaintiffs have pleaded lengthy facts to support their claim that the land in question is their NCR land from time immemorial. The 1st and 2nd defendants issued the LCF on the land in question to the 4th defendant in 1998. It is due to expire in 2058. The 1st and 2nd defendants did not extinguish and compensate the plaintiffs prior to the issuance of the LCF. In the premises, the plaintiffs averred that the 1st to 3rd defendants had interfered with the proprietary rights of the plaintiffs in breach of the Federal Constitution, the Land Code and their fiduciary duty to the natives as well.
Defence Of The 1st To 3rd Defendants
[3] The 1st to 3rd defendants pleaded that the purported NCR was not created over the said land in accordance with s 5(1) and (2) of the Land Code and, therefore, the question of extinguishment of NCR and compensation did not arise. They pleaded limitation as the LCF was issued in 1998 but the suit was only filed 13 years later in 2011.
Defence Of The 4th Defendant
[4] The 4th defendant's defence briefly stated that:
(a) They have been duly granted the LCF since 1998.
(b) The map "B" was not drawn by a land surveyor.
(c) That the Chief's Court had ruled on the status on the land pursuant to an action initiated by the 1st and 6th plaintiffs.
(d) That the claim is barred by the Land Code , Limitation Ordinance of Sarawak and the Public Authorities Protection Act 1948 .
Order 14A/ Order 18 Rule 19(1)(b) Or (d) Applications
[5] The 1st to 3rd defendants and the 4th defendant have both filed separate O 14A and O 18 r 19(1)(b) or (d) applications. However, except for the affidavits in support, the grounds of both applications are virtually identical. I, therefore, heard both applications together. The grounds of the application for questions of law to be determined without a full trial are as follows;
(a) Whether the action is maintainable because the Chief's Court had in its judgment in an action between the 1st and 6th plaintiff and one Gilbert Ding Laing decided that the land within the LCF is State Land and not NCR land and that the appeal against this decision is still pending.
(b) Whether this action is maintainable when there is no plea of fraud and/or collusion against the defendants insofar as the issuance of the LCF is concerned;
(c) Whether the plaintiffs should have challenged the decision of the 2nd defendant by way of Judicial Review action instead of writ action;
(d) Whether it is proper to file an action in Court when under the Land Code it is for the Settlement Officer to investigate NCR claims; and
(e) Whether this action is barred by limitation?
[6] However, during argument, the 1st to 3rd defendants relied on questions (a), (b) and (e) only. The 4th defendant pursued questions (a) and (b) only.
Jurisdiction Of Court Under Order 14A
[7]Order 14A reads as
