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2012 MarsdenLR 2119
HIGH COURT SABAH & SARAWAK MIRI
ABU BAKAR PANGIS & ORS – Appellant
Versus
TUNG CHEONG SAWMILL SDN BHD & ORS – Respondent
[Suits No: 22-16-2003(MR) & 22-19-2003(MR)]
Court ruled native customary rights must be proven with credible evidence, not just assertions or oral history, particularly in claims of land occupation disagreements.
Headnote:(A) Sarawak Land Code - Sections 2 and 5(1) - Native Customary Rights - Plaintiffs claimed Native Customary Rights (NCR) over lands alienated to defendants, asserting no extinguishment of rights prior to leases being issued. Court found plaintiffs failed to prove NCR claims on balance of probabilities. Evidence suggested lands were unoccupied jungles at material times. (Paras 9, 30-54)
(B) Burden of Proof - The court emphasized that it is the responsibility of plaintiffs to establish their NCR claims substantiated by credible evidence, not mere assertions. (Paras 15, 30)
Facts of the case:
Plaintiffs claimed NCR over specific plots of land in Sarawak based on inheritance and occupation, asserting their lands were unlawfully alienated. They consisted of Kedayans and Jati Mirik natives. (Paras 2-6)
Findings of Court:
The court ruled that plaintiffs did not prove their NCR claims as their accounts were based on oral histories without concrete evidence, and many plots were verified as virgin jungle without previous occupation. (Paras 53-54)
Issues: The principal issue was whether the plaintiffs have established their claims to NCR based on sufficient legal evidence and if the actions of defendants were unlawful.
Ratio Decidendi: The court held that without demonstrable evidence of land occupation and inheritance per native customs, the plaintiffs' claims of NCR must fail. (Paras 30-54)
Result: Suits dismissed with costs to be taxed.
| Table of Content |
|---|
| 1. plaintiffs claimed native customary rights over land. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. allegations of unlawful alienation of ncr lands. (Para 7 , 8) |
| 3. plaintiffs assert illegality in land alienation. (Para 9 , 10 , 11) |
| 4. defendants deny plaintiffs' ncr claims. (Para 12 , 13) |
| 5. burden of proof lies on plaintiffs for ncr. (Para 14 , 15) |
| 6. burden of proof and evidentiary considerations regarding ncr. (Para 29) |
| 7. challenges of proving ncr based on historic evidence. (Para 30 , 31) |
| 8. verification of ncr claims and historical evidence requirements. (Para 35 , 46) |
| 9. historical logging licenses challenge ncr claims. (Para 44 , 45) |
| 10. court's dismissal based on insufficient proof of ncr. (Para 53) |
[1] These two suits were directed to be jointly tried and were part-heard before the previous presiding High Court Judge. Parties have agreed for the joint-trial to be continued before me. The plaintiffs altogether called eight witnesses and the defendants' three witnesses for the joint-trial.
[2] In Suit No: 22-16-2003, the plaintiffs testified that they are Kedayans by race and are natives of Sarawak. The three plaintiffs sued on behalf of themselves and 150 others and they claimed that they were the occupiers, owners and or claimants of native customary rights (NCR) over individual plots of land claimed and or owned by them situated at Sibuti.
[3] The plaintiffs asserted that at all material times they have acquired and or inherited NCR over all those areas of land delineated in a map and therein shaded in orange. The map is marked "A" and attached to the statement of claim (exh P1(A)). The individual plots with the acreage delineated in the map have been identified and agreed by the plaintiffs among themselves to belong to the individual plaintiff whose name is stated within each plot as shown in the map. The areas claimed by the plaintiffs in this suit as shown in the map added to approximately 2915.78 acres.
[4] In Suit No: 22-19-2003, the plaintiffs testified that they are all natives of Sarawak, are locally referred to as "Jati Mirik" and professed the religion Islam. They considered themselves to be Malays by race.
[5] In Suit No: 22-19-2003, the three plaintiffs sued on behalf of themselves and 90 others and they claimed that they were the occupiers, owners and or claimants of NCR over the individual plots of land claimed and or owned by them situated at Kampung Bakam.
[6] The plaintiffs also claimed that at all material times they have acquired and or inherited NCR over all those areas of land delineated in a map and shaded in orange in a map which is also marked "A" and attached to the statement of claim (exh P8). The individual plots with the acreage delineated in the map have been identified and agreed by the plaintiffs among themselves to belong to the individual plaintiff whose name is stated within each plot as shown in the map. The areas claimed by the plaintiffs in this suit as shown in the map added to approximately 2,480 acres.
[7] The evidence showed that on 14 April 1997, the second and the third defendants had alienated a parcel of land and issued a provisional lease to this parcel land which is described as Lot 3927 Lambir Land District containing an area of 1,004 hectares to the first defendant. The perimeter of this parcel of land overlaps with or is similar to the perimeter of the NCR lands of the plaintiffs claimed by them in Suit 22-19-2003.
[8] The evidence showed that on 6 February 2001, the second and third defendants alienated another parcel of land and issued a provisional lease to the land which is described as Lot 3935 Lambir Land Districts containing an area of 1,180 hectares to the first defendant. The perimeter of this parcel of land overlaps with or is similar to the perimeter of the NCR lands of the plaintiffs claimed by the plaintiffs in Suit 22-16-2003.
[9] In both suits the plaintiffs claimed that the second and third defendants' actions in alienating the lands to the first defendant which
