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2021 MarsdenLR 237
HIGH COURT SABAH & SARAWAK KOTA KINABALU
ORIJOS B LAHHI & ANOR – Appellant
Versus
SABAH FORESTRY DEVELOPMENT AUTHORITY & ANOR (ENCLS 6 & 145) – Respondent
[Civil Appeal No: BKI-12ANCvC-1/1-2021]
A default judgment entered irregularly can be set aside, and native customary rights claims must be determined through proper trial procedures.
Headnote:(A) Rules of Court 2012 – Order 13 – Default judgments – Appeal against the dismissal of application to set aside default judgment – The court held that a default judgment entered irregularly, such as in cases concerning mixed claims not specified in the endorsed writ, may be set aside. (Paras 38-45)
(B) Native Customary Rights – Entitlement to claim customary rights on land – The court reaffirmed the necessity for the determination of native customary rights to be done through proper trial procedures rather than by affidavit evidence. (Paras 24-26)
Facts of the case: The appeal was against a default judgment claiming trespass on land gazetted for plantation development, where appellants argued they held legitimate claims of native customary rights to the land in question.
Findings of Court: The default judgment was set aside as irregular and the case was remitted for proper determination of the merits pertaining to claims of native customary rights. (Paras 57-59)
Issues: Whether the Sessions Court had jurisdiction to adjudicate the claims related to native customary rights and the validity of the irregular default judgment entered by the respondents. (Paras 36-37)
Ratio Decidendi: The court outlined that the Sessions Court misdirected itself in ruling out jurisdiction to deal with native rights issues, highlighting that issues must be ventilated at a proper trial unless jurisdiction is explicitly removed. (Paras 17-21)
Result: Appeal allowed. (Para 59)
JUDGMENT
[1] This is an appeal by the 1st and 2nd Appellants (the Appellants) against the whole decision of the learned Sessions Court Judge in dismissing the Appellant's Notice of Application [Enclosure No 145] for setting aside of the Judgment in Default of Appearance dated 18 December 2017 (the Judgment in default) under O 13 r 8 of the Rules of 2012.
[2] There are four (4) grounds of appeal stated in the Memorandum of Appeal (Encl 6) and for ease of reference, the same is reproduced as follows:
a) The learned Sessions Court Judge (hereinafter referred to as 'LSCJ') erred in fact and in law when her Honour made a finding that the Appellants had committed act of trespass when there are evidences to show that the Appellants had been occupying the disputed lands to cultivate crops and had practiced customary rights since time immemorial;
b) The LSCJ erred in fact and in law when she failed to take into consideration that the Appellants' delay in filling their Notice of Application [Enclosure No 145] which were explained extensively as they are lay persons without knowing the proper procedures and lived in the remote area in Pitas, Sabah requiring them to travel to Kota Kinabalu in search of lawyers to do the necessary legal works defending their rights to the cause of justice;
c) The LSCJ erred in fact and in law when she ruled that the Appellants had no defence on merits by reasons of want of jurisdiction to decide issue of native customary rights which thereby dismissed the Appellants' Application under Enclosure No 145 for setting aside of Judgment in Default of Appearance under O 13 r 18 of the Rules of 2012.
d) The LSCJ had seriously erred in law and in fact to dismiss the Appellants' Notice of Application [Enclosure No 145] without considering the very fact that the Appellants and the other villagers are not trespasser simpliciter occupying the disputed lands.
[3] The appeal herein to the High Court from a decision of the Sessions Court under O 55 r 5 ROC 2012 shall be by way of re-hearing pursuant to s 29 Courts of Judicature Act 1964 and O 55 r 2 ROC 2012. See Ruslan Baharin Industries Sdn Bhd & Ors v. Kerajaan Malaysia, [2009] 5 MLJ 63 (CA) and United Malayan Banking Corporation Berhad v. Pembinaan KSY Sdn Bhd & 2 Ors; [1993] 3 MLJ 45; [1993] 3 CLJ 612; [1993] 2 AMR 2169 (SC).
Brief Background Facts
[4] The land in Bengkoka Peninsula, district of Pitas was gazetted to the 1st Respondent by the Sabah State Government, under the Gazette Notification No 684 of 1983 dated 22 July 1983 for the purpose of plantation development of Acacia trees and subsequently other fast growing species were included. There were 5 phases gazetted to the 1st Respondent, namely, Phase 1, Phase 2, Phase 3, Phase 4 and Phase 5 with the objective of afforestation resettlement scheme. The phase that is the subject matter in this case is Phase 1 only. An approximate area of 6,880 hectares was gazetted to the 1st Respondent under the Gazette Notification No 684.
[5] In 2005, 160 hectares of the area at Phase 1 was revoked from the gazette, thus, leaving a total area of 6,720 hectares (hereinafter still referred to as "the said Land") to the 1st Respondent. This revocation was gazetted by the Sabah State Government under the Gazette Notification No 196 of 205 dated 1 March 2005.
[6] In 1989, the first rotation of the plantation works at the said Land were initially executed by the 1st Respondent and harvested by Hijauan Bengkoka Plantations Sdn Bhd The 1st Respondent later entered into a Joint Venture Company with Hijauan Bengkoka Plantations Sdn Bhd (formerly known as Serisar Forest Plantation and Products Sdn Bhd at the time of entering into the Joint Venture Agreement) on 24 January 2003 and formed a joint venture company which is the 2nd Respondent. The 2nd Respondent thereafter handled the plantation works.
[7] On 30 December 2013, the 2nd Appellant had written a letter to the Yang di- Pertua Negeri Sabah, and informed that the 2nd Ap
