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2022 MarsdenLR 892
HIGH COURT SABAH & SARAWAK TAWAU
ABD HAMAN @ SAKARAN MOHD YASIN & ORS – Appellant
Versus
DATUK ZULKIFLI TUN MUSTAPHA & ORS – Respondent
[Suit No: TWU-22NCvC-10/8-2022]
Successful land applicants must hold titled ownership to enforce rights; mere applications do not confer legal standing in disputes over communal titles.
Headnote:(A) Land Ordinance - Sections 6, 9, 12, 22, 41 - Plaintiffs asserted ownership of 1,050 acres as successful land applicants but lacked title; claimed trespass against Defendants who held communal title. (Paras 1-8, 14-45)
(B)
Requirement for land title issuance is completion of survey and registration; mere application does not confer rights. (Paras 16-22)
(C)
High Court lacks original jurisdiction regarding communal title disputes, requiring appeals to the Director prior to litigation. (Paras 37-42)
Facts of the case:
53 Plaintiffs claimed to have cultivated oil palm on the subject land since 2004 but were denied title. Defendants held communal title, leading to contest over land rights.
Findings of Court:
The court found that Plaintiffs lacked legal ownership and the right to the land sought, dismissing their application for an interim injunction due to insufficient grounds.
Issues
: Whether Plaintiffs had a bona fide serious issue to be tried for title ownership and the legality of the communal title.
Ratio Decidendi:
Plaintiffs' lack of title and reliance on land applications alone do not establish ownership; communal title legislation prevails.
Result:
Application for interim injunction dismissed.
JUDGMENT
The Parties And The Causes Of Action
[1] The 53 Plaintiffs are "successful applicants" for plots of land of varying sizes in Sg Nipah Tambisan, Kinabatangan, which in aggregate measure 1,050 acres more or less. These plots of land will be collectively referred to as "the subject land."
[2] They claim to have entered the subject land to take possession ever since they were successful in their land applications, and to have cultivated oil palm trees thereon since 2004.
[3] The 1st to 7th Defendants are sued as trespassers who have prevented the Plaintiffs from carrying plantation works and from harvesting the oil palm fruits.
[4] The 8th Defendant is the Assistant Collector of Land Revenue Kinabatangan who is able to decide on claims premised on native customary rights.
[5] The 9th Defendant is the Director of the Lands and Surveys.
[6] The 8th and 9th Defendants were sued for, inter alia, for breach of their fiduciary duties, failing to issue native titles to the applicants and "wrongfully intending" to issue a communal title for land which is inclusive of the subject land to the inhabitants of Sg Nipah Tambisan, including the 1st-7th Defendants.
[7] The 10th Defendant is the State Government of Sabah which the Plaintiffs hold accountable for the alleged wrongdoings of the 8th and 9th Defendants.
[8] As against the 8th, 9th and 10th Defendants, the Plaintiffs seek to nullify the issuance of the communal title to the 1st - 7th Defendants who they sued as trespassers, but have not named the other 380 beneficiaries named therein. They purport not to know of the issuance of the communal title on 23 April 2013 until the fact was disclosed in the 1st-7th Defendants' affidavit in opposition filed on 17 August 2022.
Plaintiffs' Application for Interim Injunction
[9] By encl 3, the Plaintiffs applied for an interim injunction to restrain the 1st - 7th Defendants and their servants and agents from "unlawfully entering the Plaintiffs' lands... and from hindering and/or preventing the Plaintiffs and their workers from entering and carrying out plantation works on the said lands until the final disposal of this action or until further order."
[10] The Plaintiffs asked for it to be heard ex-parte on the back of a certificate of urgency filed on 2 August 2022.
[11] The court directed that it be heard inter parte on 30 August 2022 and for the Defendants to be served.
Cause Papers
[12] The court had for reference:
(i) the Plaintiffs' affidavit in support filed on 2 August 2022;
(ii) the affidavit in opposition of the 2nd, 3rd, 4th and 7th Defendants filed on 17 August 2022;
(iii) the Plaintiffs' affidavit in reply filed on 23 August 2022;
(iv) the 2nd affidavit in opposition by the 2nd, 3rd, 4th and 7th Defendants filed on 30 August 2022 which was described as a further affidavit in reply and which exhibited a power of attorney executed by numerous beneficiaries under the communal title vide Field Register 094004985 encompassing the subject land. It named the 2nd Defendant as the donee and empowered him to represent them in these proceedings, as the Plaintiffs contended that the 2nd Defendant lacked authority.
[13] The 8th-10th Defendants were represented by the State Attorney- General's chambers but filed no affidavit.
Reasons For Dismissal Of Plaintiffs' Application For Injunction
[14] Having heard the Plaintiffs and the 2nd, 3rd, 4th and 7th Defendants, as well as the 8th-10th Defendants, the court dismissed the Plaintiffs' application for an interim injunction with costs in any event. The Plaintiffs have since appealed. These are the reasons for dismissing encl 3.
[15] The Plaintiffs contended that the test as laid down in Keet Gerald Francis Noel John v. Mohd Noor Bin Abdullah & 2 Ors, by the court of Appeal is applicable and the threshold question - whether there is at least a bona fide serious issue to be tried - is to be answered in the affirmative. If there is at least a bona fide serious issue, then the court is to consider the ba
