Trespass is actionable without proof of damage; claims regarding Native Customary Rights must be decided before appropriate authorities, not in civil court.

Celestina Stuel Galid J:

Introduction

The Parties

[1] The 1st Plaintiff (in the original action and 1st defendant in the counterclaim) was the registered landowner of the lands held under Native Title No(s) 093069071 and 093069080 situated at Kampung Tambisan Darat, in the district of Kinabatangan ("the Lands").

[2] The 2nd Plaintiff (in the original action and 2nd defendant in the counterclaim) was the registered sub-lessee of the Lands.

[3] The 1st and 2nd Plaintiffs shall be collectively referred to herein as "the Plaintiffs" unless specified otherwise.

[4] The 1st Defendant (in the original action and the plaintiff in the counterclaim) was an individual. Apart from the 1st Defendant, no other defendants applied to be joined as a party in the original action. Hence, the reference to the "Defendant" herein shall refer to the 1st Defendant only.

The Plaintiffs' Claim

[5] The Plaintiffs' claim was essentially for trespass by the Defendant on the Lands. They pleaded that the Defendant had wrongfully and illegally entered the Lands and harvested the palm oil trees thereon without their licence, consent and permission.

The Defendant's Defence And Counterclaim

[6] The Defendant averred that the alienation of the Lands by the Director of Lands and Surveys Department ("the Director") to their original land applicants namely under PT No 84091446 to one AB Halim b Mohammad and under PT No 84091455 to one Mohammad b Daud was null and void and of no effect as no survey was allegedly carried prior to the said alienation. Consequently, it was averred that the transfer of the Lands to the 1st Plaintiff was also null and void.

[7] The Defendant claimed that he had in 1997 applied for a plot of land under Land Application No 98090484 known as Lot 8 and that the application was successful. His late grandfather named Salahuddin was also successful in his Land Application No 80090001 made on 17 April 1980 of the adjacent land known as Lot 9.

[8] The Defendant further claimed that in or before 1980, his father and grandfather had been occupying and cultivating the 2 lots. They had also built a house and the Defendant's mother and nephew were also buried in a graveyard on Lot 8. Accordingly, the Defendant claimed to have acquired native customary rights ("NCR") over the Lands.

[9] The Defendant averred that Lots 8 and 9 were surveyed in 1998 and boundary stones were planted by the Lands and Surveys Department, however, in February 2010, the 2nd Plaintiff's workers destroyed the boundary stone located at Lot 9 when they were constructing a drain along the boundary. It was alleged that there were overlapping land applications in respect of Lots 8 and 9 and the Lands.

[10] The Defendant counterclaimed against the Plaintiffs, the said AB Halim b Mohammad and Mohammad b Daud, the Director, the Assistant Collector of Land Revenue ("ACLR") and the District Surveyor, inter alia, for declarations that the alienation of the Lands were null and void and of no effect and that the transfer of the Lands to the 1st Plaintiff was also null and void and of no effect.

Striking Out Application (Enclosure 42)

[11] The Director, ACLR and the District Surveyor applied to strike out the Defendant's counterclaim on the following grounds:

(i) That being a mere land applicant, the Defendant did not have any right or legal interest over the land which he had applied for;

(ii) That the Defendant did not have locus standi to sue in respect of the land application No 80090001; and

(iii) That the Director was vested with discretionary power to alienate land.

[12] On 18 February 2022, this Court allowed encl 42. The Defendant did not appeal against the said decision.

This Court's Decision

Whether The Defendant Had Trespassed On The Lands