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2014 MarsdenLR 2099
HIGH COURT SABAH & SARAWAK SIBU
BUNYAK GADIN & ORS – Appellant
Versus
SUPERINTENDENT OF LAND AND SURVEY & ORS – Respondent
[Suit No: 21-3-2009]
Native customary rights must be established through lawful creation and continuous occupation prior to a specific date, as recognized under the Sarawak Land Code.
Headnote:(A) Sarawak Land Code [Cap 81] - Section 2 - Native customary rights - Representative action by the Plaintiffs regarding their NCR land claimed against the Defendants issued provisional lease inclusive of their NCR land - Plaintiffs demonstrated continuous occupation and creation of NCR before 1 January 1958 - Defendants failed to rebut Plaintiffs' claim regarding NCR land's existence and legality. (Paras 1, 2, 6, 8, 63)
(B) Burden of Proof - Plaintiffs must prove the lawful creation and subsistence of NCR lands prior to the specified date - Plaintiffs presented sufficient oral and documentary evidence to establish their NCR claims. (Paras 9, 20, 40, 63)
(C) Negligence and Breach of Duty - Plaintiffs claiming negligence against the government must name responsible officers as defendants - Claims dismissed due to failure in adequately identifying the responsible parties. (Paras 47, 59)
Facts of the case:
The Plaintiffs, Iban by race, claimed native customary rights over 107.8331 hectares included in a Provisional Lease issued to the 3rd Defendant. The Plaintiffs argue the lease was improperly granted without properly surveying the claimed NCR land prior to its issuance.
Findings of Court:
The Plaintiffs were able to prove their claim of NCR land measuring 107.8331 hectares within the Provisional Lease Lot 24, and the existence and continuity of these rights were recognized.
Result: Plaintiffs' claim allowed for NCR land with specific damages and costs ordered. (Paras 63, 67)
| Table of Content |
|---|
| 1. claims for native customary rights land (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. requirements to establish ncr claims (Para 7 , 8 , 9 , 10) |
| 3. conflicting claims regarding sizes of pl lot 24. (Para 11 , 12 , 13 , 14 , 15) |
| 4. interpretation of 'more or less' in land titling. (Para 16 , 17 , 18 , 19) |
| 5. testimony related to ancestral land claims (Para 20 , 21 , 22 , 23 , 24) |
| 6. eyewitness testimonies supporting the ncr claims. (Para 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33) |
| 7. credibility of witness testimony on relationships. (Para 34 , 35 , 36 , 37) |
| 8. expert evidence corroborating the ncr. (Para 38 , 39 , 40 , 41 , 42 , 43 , 44) |
| 9. negligence and fiduciary duty in land management. (Para 45 , 46 , 47 , 48 , 49) |
| 10. validity of ncr when the claimant moves temporarily. (Para 50 , 51 , 52 , 53 , 54 , 55) |
| 11. dismissal of claims against certain defendants (Para 56 , 57 , 58) |
| 12. separation of corporate entities in liability. (Para 59) |
| 13. skepticism towards low land compensation agreements. (Para 60 , 61 , 62) |
| 14. judgment in favor of the plaintiffs (Para 63) |
[1] The Plaintiffs in this case are all Iban by race. They commenced this representative action on behalf of themselves and 21 other families, or bilek proprietors, occupiers, holder and claimants of the Native customary Rights Land situated at Sungai Baoh Chelum and Sungai Semaram, which are tributaries of Sungai Baoh which flows into Sungei Batang Oya ("the Plaintiffs' NCR").
[2] The general location of the Plaintiffs' NCR land are shown on 2 maps or plans marked as Plan B1 and Plan B2 and the location is also shown in Exhibit P20 which is a Topographical 1:50,000 Map of Stapang.
[3] On 16th May 2001, the 1st Defendant with the knowledge and authority of the 2nd Defendant issued a provisional lease described as Provisional Lease Lot 24 Mukah Land District ("PL Lot 24") to the 3rd Defendant.
[4] When the said PL Lot 24 was issued to the 3rd Defendant, the Plaintiffs claim that their NCR measuring of 107.8331 (one hundred seven point eight three three one) hectares have been included in the said PL Lot 24. Hence, the Plaintiff pleaded that the 3rd, 4th and 5th Defendants had trespassed on the Plaintiffs' NCR located within the said PL Lot 24 by cutting, clearing fruit trees crops and damaging the land.
[5] The Plaintiffs also averred that the PL Lot 24 was issued to the 3rd Defendant without proper investigation. The 1st Defendant had failed, refused and/or neglected to do physical ground survey and as a result the Plaintiffs' NCR measuring of 107.8331 hectares was included in the said PL Lot 24 which caused the 3rd, 4th and 5th Defendant to trespass and caused damaged and loss to the Plaintiffs.
[6] Hence, the Plaintiffs come to this COURT seeking various reliefs and orders amongst others declaration that the Plaintiffs had acquired and/or inherited NCR over the area claimed by the Plaintiffs as shown in Plan B1 and B2, that this NCR precludes any of the Defendants from impairing or abridging the Plaintiffs' rights over the said land, and most importantly, a declaration that the PL Lot 24 is unlawful, improper, unconstitutional and therefore null and void. The Plaintiffs also demand that the area measuring of 107.8331 hectares included in the said PL Lot 24 be excised out of the area under the PL Lot 24. Plaintiffs further claims for specific damages, loss of profit, exemplary or aggravated damages and costs.
[7] I have read the cause papers and heard witnesses from both parties. I have also read documents referred to by witnesses. I have also read the various submissions and authorities filed therein. The main issue to be determined by this COURT is whether the Plaintiff had acquired NCR measuring of 107.8331 hectares within the said PL Lot 24. Of course there are few related and pertinent issues which I shall deal later.
[8] Section 2 of the Sarawak Land Code [Cap 81] defines native customary land to mean:-
"(a) Land in which native customary rights, whether communal or otherwise, h
