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2012 MarsdenLR 156
HIGH COURT SABAH & SARAWAK KUCHING
SIMO SEKAM & ORS – Appellant
Versus
NAIM CENDERA SDN BHD & ORS – Respondent
[Suit No: 21-10-2009-I]
Native customary rights can exist independently of statutory provisions, and disputes regarding their existence must be recognized irrespective of judicial review restrictions.
Headnote:(A) Rules of High Court, 1980 - Order 14A - Native Customary Rights - Issue of suitability for summary determination - Existence and extent of native customary rights over land constitutes a core issue, persisting despite defendants' argument of maintainability due to agreement between other parties - Contentions about compensation remain unresolved - Judicial review of public authority direction concerning land rights may not rectify injustices - Claims linked with provisions of Sarawak Land Code. (Paras 1, 5, 7, 9)
(B) Native customary rights predate statutes - Plaintiffs' action not equating to a request to assume the role of Settlement Officer - Courts must recognize pre-existing private rights without restricting to statutory provisions applicable post-facts. (Paras 6, 8)
Facts of the case:
Dispute over the existence of native customary rights over 6,046.69 hectares of land claimed by the Plaintiffs, as opposed to 1,530 hectares claimed by the Defendants; compensation issue raised concerning acceptance by 1st Plaintiff contradicts Defendants' assertion.
Findings of Court:
Application under O 14A by Defendants dismissed; core factual issues remain unresolved.
Issues: Core issues include existence of native customary rights and whether challenges to public authority directions should be pursued through judicial review.
Ratio Decidendi: The court emphasized that native customary rights can exist independently of statutes in conflict with pre-existing rights, undermining the Defendants' assertion for dismissal under summary procedures.
Result: Applications dismissed with costs.
| Table of Content |
|---|
| 1. suitability for summary determination under o 14a (Para 1) |
| 2. existence of factual issues regarding ncr (Para 2 , 3) |
[1] Concerning Enclosures 47 and 48, the core issue would appear to be - having regards to the facts and circumstances and legal issues involved in the instant case, whether the instant case is of the type which is suitable to be determined summarily under O 14A Rules of the High , 1980 (RHC), thereby saving time and expenses.
[2] To begin with, there appears to be substance in the Respondents' / Plaintiffs' contention of the existence and persistence of a factual issue arising from the 2nd and 3rd Defendants' averment concerning "the land over which the NCR was extinguished" (presumably about 1,530 hectares) and the Plaintiffs' averment concerning "the land over which NCR was exercised" (presumably 6,046.69 hectares). In other words, with respect, it would appear tenable what seems to be the Plaintiffs' implicit contention, that presumably notwithstanding the affidavit averments of all the parties in the O 14A applications, there still persist what the Plaintiffs refer to as "the core and primary issues of this action (being) the existence and extent of the Plaintiffs' NCR over the land." (Emphasis added).
[3] The Plaintiffs' contention that the existence and extent of the Plaintiffs' native customary rights (NCR) over the land constitutes the primary, if not the core issue in the instant suit does appear to have substantially watered down the Defendants' argument, that the Plaintiffs' cause of action is no longer maintainable at law as the Contract / Agreement in question was entered into between the 1st Defendant and the 4th Defendant who has since ceased to be a party in the action.
