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2014 MarsdenLR 197
HIGH COURT SABAH & SARAWAK MIRI
JELI ANAK NAGA & ORS – Appellant
Versus
TUNG HUAT PELITA NIAH PLANTATION SDN BHD & ORS – Respondent
[Suit No: MR-21-5-2011 & Os No: 24-44-2010 (MR)]
Successful litigants are entitled to the fruits of their judgment; stay of execution pending appeal requires proof of special circumstances that justify such stay, and appeals should not be rendered nugatory.
Headnote:(A) Adat Iban 1993 - Native customary rights (NCR) - Judgment on 28 February 2014 stated that residents could not sell or transfer NCR land within Lot 2 to non-residents - The court ruled Plaintiffs acquired NCR over 380 hectares and ordered exclusion from Lot 2, pending joint survey for confirmation. (Paras 1, 2, 12)
(B) Stay of Execution - The court highlighted that a successful litigant should not be deprived of judgment fruits unless special circumstances exist. The onus is on the applicants to prove such circumstances and prevent appeals from being rendered nugatory. (Paras 12, 16)
Facts of the case:
Dispute concerning ownership and rights over NCR land involving multiple Defendants and distinct applications for stays pending appeal following the judgment which ruled the Plaintiffs had NCR over limited land within Lot 2.
Findings of Court:
The registered owner (Tung Huat) has provided assurance regarding not destroying longhouses or crops, and established that the Plaintiffs have rights only over 380 hectares, with no basis for staying the original judgment.
Issues: Whether a stay of execution should be granted during pending appeals, and if special circumstances exist for such stay.
Ratio Decidendi: The court maintained that the applicants failed to demonstrate any special circumstances and that ongoing possession by Tung Huat should not be impeded.
Result: Applications for stay dismissed with costs.
| Table of Content |
|---|
| 1. court ruling on ncr land ownership. (Para 1 , 2) |
| 2. applications for stay of judgment execution. (Para 3 , 4) |
| 3. grounds for applications for stay. (Para 5 , 6) |
| 4. opposition to stay applications. (Para 7 , 8 , 9 , 11) |
| 5. tung huat's claims on land management. (Para 10) |
| 6. conditions for granting a stay of execution. (Para 12 , 13) |
| 7. limitations of applicants' claims. (Para 14) |
[1] There are two applications heard together. On 28 February 2014, after the joint trial of the OS and suit between the parties, the court ruled that according to Adat Iban 1993 the residents of Rh Tinggi, Rh Balau, Rh Rajit and Rh Jambai could not sell, assign or transfer the NCR land within Lot 2 Block 9 Bukit Kisi Land District (Lot 2) to the 1st or other Defendants in the OS action. The court ruled that the OS Defendants being not Iban and did not belong to the communities of these longhouses could not legally purchased or acquired the NCR land within Lot 2.
[2] The court has also ruled that the Plaintiffs in the suit have acquired NCR over 380 hectares of the land inside Lot 2, that the 380 hectares are to be excluded and excised from Lot 2 and that the perimeter and area of the 380 hectares in Lot 2 would have to be confirmed by a ground survey to be jointly carried out by the Plaintiffs and the Defendants.
[3] In Encl 81 in the OS action, the 1st to the 5th Defendants applied that the execution of the judgment delivered on 28 February 2014, that Tung Huat being the registered owner of Lot 2 be entitled to recover and have possession of Lot 2 [except the 380 hectares shown in exh D42], and that all actions or proceedings pursuant to the judgment be stayed until after the full and final determination of the appeal filed by the 1st Defendant to the 5th Defendant.
[4] In Encl 181 in the suit, the Plaintiffs there in also applied that: (a) the execution of the judgment to the extent that the Plaintiffs do not have any native customary rights over the Lot 2 [except the 380 hectares shown in exhibit D42] and that all actions or proceedings pursuant to the judgment be stayed until after the full and final disposal of the appeal to the court of Appeal by the Plaintiffs; and (b) that the execution of the judgment which was jointly tried giving and or entitling Tung Huat to recover and have possession of Lot 2 [except the 380 hectares shown in exhibit D42] and all actions or proceedings pursuant to the judgment in the said OS be stayed until after the full and final disposal of the appeal to the court of Appeal by the 1st to 5th Defendants in the said OS.
[5] The grounds of these applications are as follows: (i) they have on 10 March 2014 appealed against the judgment delivered on 28 February 2014; (ii) the appeals will be rendered nugatory and they will suffer substantial injustice if the judgment is not stayed pending the determination of the appeals; (iii) there are in existence special circumstances that warrant a stay of execution of or proceedings of the judgment; (iv) the continuation of the proceedings or execution of the judgment will severely prejudice them which cannot be compensated with costs; (v) there are merits in the appeals; (vi) in the event a stay of execution is not granted, they cannot be returned to their original position or be compensated by damages or costs thereby rendering their appeals nugatory.
[6] TR Rajit in his affidavit affirmed that the location of their longhouse and graveyard are within the perimeter of Lot 2 and that these were confirmed by another GPS reading of the coordinates of the longhouse and graveyard carried out by Yusuf Bin Abdullah (PW12) on 13 March 2014, after the judgment has been delivered. He submitted that in the event possession of Lot 2 is obtained by Tung Huat, then the longhouse and graveyard would likely be destroyed and they could not be returned to their original position or be compensated by damages and costs thereby rendering their appeals nugatory.
[7] The 2nd, 3rd and 4th Defendants i
