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2024 MarsdenLR 2320
HIGH COURT SABAH & SARAWAK SANDAKAN
JOBLIA SATAR @ MASATAR – Appellant
Versus
ABEL PATRICK WASAI & ORS – Respondent
[Suit No:: SDK-22NCvC-10/8-2022]
The court affirmed that jurisdiction over Native Customary Rights claims lies solely with the Assistant Collector of Land Revenue, and a claim for trespass is actionable per se without proof of damages.
Headnote:(A) Land Ordinance - Sections 13 and 14 - Native Customary Rights - Dispute over land ownership - The Plaintiff, substituted after the original owner's death, sought possession against the Defendants alleged to be trespassers - Defendants claimed Native Customary Rights over the land - Court affirmed that only the Assistant Collector of Land Revenue has jurisdiction over such claims - The Plaintiff's claim was proven on a balance of probabilities. (Paras 11, 54)
(B) Trespass - A claim for trespass is actionable per se without proof of damages - The Plaintiff was awarded nominal damages despite not leading evidence on damages. (Paras 55, 57)
Facts of the case:
The Plaintiff, registered owner of lands, sought possession against Defendants claiming Native Customary Rights - The Defendants disputed the trespass claim, asserting continuous occupation and wrongful alienation of the lands.
Findings of Court:
The Plaintiff's claim was upheld, with nominal damages awarded for trespass, and the Defendants' counterclaim dismissed.
Issues: Whether the Defendants had valid claims of Native Customary Rights and whether the alienation of land was wrongful.
Ratio Decidendi: The Court ruled that jurisdiction over Native Customary Rights lies with the Assistant Collector of Land Revenue, and the Defendants failed to prove their claims.
Result: Plaintiff's claim allowed, counterclaim dismissed.
JUDGMENT
Introduction
[1] This case was originally commenced by the Plaintiff by way of an Originating Summons against the 1st and 2nd Defendants under O 89 of the Rules of 2012 ("ROC 2012"). Having opined that the dispute was not suitable to be decided on affidavits alone, I exercised my power to convert the Originating Summons to a writ action pursuant to O 28 r 8 of the ROC 2012.
[2] Thereafter, the parties filed their respective pleadings. The 1st and 2nd Defendants also filed a counterclaim against the Plaintiff, the Director of Lands & Surveys Department ("the Director"), Assistant Collector of Land Revenue, Kinabatangan ("ACLR") and the State Government.
The Plaintiff's Claim In The Original Action
[3] The Plaintiff passed away on 20 May 2023 ("the deceased") and his wife was later substituted in his place.
[4] The deceased who was the registered owner of the lands held under Native Title No(s). 253226863 and 253226774, situated at Sg Karamuak, Tongod, Sabah ("the lands") sought for vacant possession of the lands against the 1st and 2nd Defendants who were alleged to be trespassers thereon without any licence, permission or consent from the deceased and or his predecessor, Norsiah bte Daungkal ("Norsiah").
[5] The Plaintiff prayed for the following reliefs in this action (verbatim):
"(1) an order of possession against all the Defendants and that the Defendants are to quit and vacate the said Land namely NT253226863 and NT253226774 within fourteen (14) days from the date of the Order;
(2) a declaration that the Defendants are trespassers;
(3) an Order that the Plaintiff is at liberty to dismantle any houses and/structures in whatever form erected thereon by the Defendants and their family members should they fail to deliver vacant possession of the said Land within fourteen (14) from date of the Order;
(4) an injunction to restrain the Defendants, their servants or agents or by their family members or agents from trespassing the said Land or any part thereof;
(5) damages to be assessed for the loss and damage suffered;
(6) Costs of this action to be taxed unless otherwise agreed;
(7) interest at the rate of 5% per annum on the damages from the date of the Writ until Judgment under s 11 of the Civil Law Act 1956 and from the date of the Judgment until full payment; and
(8) further or other reliefs as the Court deems fit."
The Defence And Counterclaim Of The 1st And 2nd Defendants
[6] The 1st and 2nd Defendants disputed that they were trespassers on the lands and pleaded that they and their ancestors have continuously occupied and cultivated on the lands. In essence, their defence was that they have acquired Native Customary Rights ("NCR") over the lands.
[7] Additionally, they claimed that the alienation of the lands to the original land applicants was wrongful as the 2nd, 3rd and 4th Defendants in the counterclaim failed to take into consideration their NCR and objections when doing so in breach of their fiduciary and statutory duties.
[8] They, inter alia, prayed for a declaration that the alienation of the lands to the original landowners namely Norsiah and Jimpi bin Taulani ("Jimpi") was null and void and also for the registration of the deceased as the landowner to be cancelled.
The Defence Of The 2nd, 3rd And 4th Defendants In The Counterclaim
[9] The 2nd, 3rd and 4th Defendants in the counterclaim pleaded that the alienation of the lands was in accordance with the discretionary power of the Director and that it was in accordance with the provisions under the Land Ordinance .
[10] It was also pleaded that requisite notices under s 13 of the Land Ordinance were published calling upon any claimant to NCR over the lands and that there had been no such claims received prior to the alienation.
This Court 's Decision
[11] At the outset, it is trite law that it is not within the jurisdiction of the civil Court to determine any NCR claim. It is to be determined by the ACLR under s 14 of the Land Ordinance - also see Da
