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2024 MarsdenLR 549
HIGH COURT SABAH & SARAWAK KUCHING
MAYAN AK NAYANG – Appellant
Versus
BERLIAN STABIL SDN BHD & ORS – Respondent
[Suit No: KCH-21NCVC-1/1-2019]
Native Courts have original jurisdiction over disputes regarding native customary rights, requiring exhaustion of remedies under the Native Courts Ordinance before pursuing claims in higher courts.
Headnote:(A) Native Courts Ordinance 1992 – Sections 5(3)(a)(i), 5(3)(a)(ii), 5(3)(b), 12, 13, 14, 15, 16 – Jurisdiction over native customary rights (NCR) claims – The court determined that disputes regarding NCR must be adjudicated in the Native Courts in the first instance, as per the provisions of the NCO. (Paras 15, 26)
(B) The court ruled that the Plaintiff's claim for NCR over Lot 9105 is contingent upon proving his rights, which must be established in the Native Courts before pursuing claims in the High Court. (Paras 14, 37)
Facts of the case: The Plaintiff claimed NCR over Lot 9105, while the 4th and 5th Defendants contested this claim, leading to previous actions in the District Native Court. (Paras 5, 8)
Findings of Court: The court found that the Native Courts have original jurisdiction over NCR disputes and that the Plaintiff must exhaust all remedies under the NCO before proceeding in the High Court. (Paras 15, 28)
Issues: The main issues were whether the Native Courts have jurisdiction over NCR claims and if the Plaintiff had exhausted all remedies under the NCO. (Paras 23, 24)
Ratio Decidendi: The court emphasized that the Native Courts must adjudicate NCR disputes first, as mandated by the NCO, and the Plaintiff must establish his claim there before seeking relief in the High Court. (Paras 17, 26)
Result: The Plaintiff's Amended Writ and Statement of Claim against the 4th and 5th Defendants are struck out and dismissed. (Paras 21, 40)
JUDGMENT
Introduction
[1] There are two applications filed before this Court: the 4th and 5th Defendants' application under Encl 209 and the 1st Defendant's application under Encl 213, both for determination of the Court on questions of law without going for full trial pursuant to O 14A and O 33 r 2 of the Rules of 2012 ("ROC") and if the said questions of law are determined in the Defendants' favour, the Plaintiff's Amended Writ and Plaintiff's Amended Statement of Claim both dated 26 February 2019 are to be struck out and the action therein be dismissed under O 18 r 19 of ROC.
[2] These two applications Encl 209 and Encl 213 were heard separately on different dates but for the purpose of this decision, it covers both as they are basically similar in substance and the same principles of law applied to both. I will start with Encl 209 first as it was filed earlier than Encl 213.
Enclosure 209
[3] By Encl 29 dated 27 October 2023 filed by the 4th and 5th Defendants, 2 questions of law were posed for the determination of the Court and it can be summarised as follows:
(i) Whether the Plaintiff's claim for NCR over the subject land ie Lot 9105 against the 1st to 5th Defendants is contingent upon the establishment of his alleged native customary rights over the same and if the answer to this question is "yes".
(ii) Whether the Native Court is vested with the jurisdiction to adjudicate on NCR's claims pursuant to ss 5(3)(a)(i) to (ii), 5(3)(b) and 12, 13, 14, 15 to 16 of the Native Ordinance 1992 (" NCO ").
[4] The 4th and 5th Defendants submitted that all material facts relating to the subject matter of the questions of law posed above are undisputed or admitted, hence such questions of law are suitable for determination without the full trial of the action.
[5] Gleaning from the Plaintiff's Amended Statement of Claim, it is apparent that the Plaintiff is claiming native customary rights ("NCR") over land described as Lot 9105, Block 26, Muara Tuang Land District ("NCR Land") through its prayers sought therein amongst others for a declaration that the Plaintiff has NCR over the said NCR Land and for an order that title be issued over the said parcel of NCR Land to the Plaintiff.
[6] To be entitled to such reliefs sought, it is axiomatic that the Plaintiff would first have to prove that he has NCR over the subject NCR Land. This can be shown from the evidence adduced by the Plaintiff through the Plaintiff's Bundle of Documents filed for the purpose of the trial for the present action.
[7] Prior to the present action, the 4th and 5th Defendants had already filed an action against the Plaintiff before the District Native Court claiming NCR over the same subject matter of the NCR Land as in the present action and the trial had been completed where parties had called their respective witnesses to adduce evidence.
[8] The District Native Court had delivered its decision on 24 February 2023 as follows:
(i) The native customary rights over one part of the NCR Land located within Kampung Mangka ("Kampung MK"), is vested jointly to Kampung Merdang Gayam ("Kampung MG") and Kampung MK for the benefit of all the inhabitants of the two Kampungs, to be held on trust by Jawatankuasa Keselamatan dan Kemajuan Kampung ("JKKK") of both Kampungs; and
(ii) The native customary rights of the other part of the NCR Land, which is Kampung MG, vests exclusively with the Plaintiff.
[9] Dissatisfied with the decision of the District Native Court, both the 4th and 5th Defendants and the Plaintiff filed a separate appeal to the Resident's Native Court which appeals are yet to be fixed and heard.
[10] As such, in respect of the first question, it is the 4th and 5th Defendants' submission that the Plaintiff's claim herein is indeed contingent upon the proving by the Plaintiff on the alleged NCR over the NCR Land.
[11] On the second question, the 4th and 5th Defendants submitted that the Native Court is vested with the jurisdiction to adjudicate on NCR and the s
