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2018 MarsdenLR 280
HIGH COURT SABAH & SARAWAK KUCHING
PAWZI SAKUP & ORS – Appellant
Versus
FELCRA BERHAD & ORS – Respondent
[Suit No: KCH-22NCvC-58/10-2016]
The establishment of Native Customary Rights requires substantial evidence, and mere assertions are insufficient to prove ownership.
Headnote:In this case, the Plaintiffs claimed Nativ Customary Rights (NCR) over certain lands, totaling approximately 1146 acres, asserting ownership since the 1930s. The court analyzed evidence presented, including testimonies and registries, ultimately concluding that the Plaintiffs failed to substantiate their claims. The resolution of this matter hinged upon estabishment of NCR, which was found unproven. The court framed the issues around the legitimacy of the NCR claims made by the Plaintiffs and whether they satisfied the evidentiary burden. The reasoning underscored the lack of credible evidence supporting the Plaintiffs' assertions and established that mere assertions of occupancy were insufficient for recognizing ownership. The court dismissed the Plaintiffs' claims against the Defendants and, by extension, all counterclaims by the 1st Defendant against specific Plaintiffs. The specific declarations sought were not granted.
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| 1. establishment of native customary rights requires adequate evidence. (Para 1 , 2 , 3) |
[1] In this action the Plaintiffs are suing on their own behalf and on behalf of their family, the residents, occupiers and claimants of native customary rights (NCR) over their land situated at Kampong Semera, Kpg Jemukan, Kpg Jemukan Ulu and Kpg Terasi of Sadong Jaya, Asajaya, Samarahan, Sarawak.
[2] In para 4 of the Statement of Claim, the Plaintiffs claimed that they have acquired NCR and are customary owners over the land between and around Sg Ulu Semera, Sg Ulu Jemukan and Kpg Tarasi in particular over:
(a) For Kampong Semera at Ulu Semera:
(i) Lots 2 till 14, all of Block 22, Sadong Land District (13 Lots),
(ii) Lot 41, Lots 43 till 47, 64 till 79, all of Block 23 Sadong Land District (23 Lots),
(iii) Lots 7 till 9, 12, 17, 20, 23, 26, 29, 36, 42, 44, 47, 49, 51, 53, 55, 57, 59, 61 and 63 all of Block 29 Sadong Land District (21 Lots),
(iv) Lots 2, 5, 6, 9, 10, 29 till 33, 37 till 39, 58 till 61, 63, 66, 69, 72, 75, 78, 81, 84, 87, 90, 112, 114, 115 till 117, 120, 121, 124, 127, 130, 133, 136, 137, 139 till 141, 186, 191 till 205 and 207, all of Block 30 Sadong Land District (60 Lots),
The total area of land claimed approximated to 1146 acres or 463.7 hectares.
(b) For Kampong Jemukan, at Ulu Jemukan:
(i) Lots 9 to 39, all of Block 23, Sadong Land District (29 Lots),
(ii) Lot 71 and 72, both go Block 24 Sadong Land District (2 Lots), and
(iii) Lots 14 to 26, all of Block 30 Sadong Land District (13 Lots)
The total area of land claimed approximated to 625 acres or 253 hectares.
(c) For Jemukan Ulu:
(i) Lots 105 and 106, Block 31 Sadong Land District
(ii) Lot 87, Block 38 Sadong Land District
(iii) Lots 42 till 49 (8 Lots) and lot 140, Block 30 Sadong Land District
The total area of land claimed approximated to 249 acres or 100.8 hectares.
(d) For Kampong Terasi:
Lots 168 and 169, both of Block 31 Sadong Land District which approximated to 176 acres or 71.2 hectares.
[3] The 1st to 5th Plaintiffs represented the villagers and claimants of Kpg Semera, the 6th to 11th Plaintiffs represented the villagers and claimants of Kpg Jemukan whereas the 12th to 14th Plaintiffs represented the villagers and claimants of Kpg Terasi. The Plaintiffs claimed that their forefathers migrated from the 2nd Division, or now known as Sri Aman Division, to settle in their respective villages in the 1930s, before the Japanese Occupation. The Plaintiffs claimed that a subsidiary company of the 1st Defendant, with the knowledge and consent of the 2nd and 3rd Defendants, developed an oil palm plantation known as Asajaya Estate over their land. The Plaintiffs claimed that Asajaya Estate had trespassed and encroached onto their titled and NCR land.
