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2014 MarsdenLR 1990
HIGH COURT SABAH & SARAWAK SANDAKAN
BORNEO SAMUDERA SDN BHD – Appellant
Versus
UTTOH AJAK & ORS; THE ASSISTANT COLLECTOR OF LAND REVENUE KINABATANGAN &.... – Respondent
[Case No: SDK-24-78/ 10-2011]
Proof of Native Customary Rights requires credible evidence linking current claims to ancestral practices, which was lacking in this case, affirming the plaintiff's title under the Land Ordinance.
Headnote:(A) Land Ordinance - Section 9 - Evidence Act - Section 114(e) - Native Customary Rights (NCR) - The court ruled that the plaintiff holds legal title to the land, which had been registered without charges of fraud - No valid NCR claims established by the defendants despite assertions of long occupancy - Defendants' counterclaim dismissed. (Paras 20, 66, 90, 106)
(B) Jurisdiction - The Court held that it lacked jurisdiction to hear defendants' NCR claim under common law as per the Land Ordinance. (Paras 61, 66)
Facts of the case:
The plaintiff applied for and received a title to land at Sungai Pin, while the defendants claimed prior rights based on earlier applications and customary practices. (Paras 1, 8, 14)
Findings of Court:
The court found that the defendants had not proven their claims of native rights based on insufficient evidence and lack of credible witness support. (Paras 74, 104)
Issues: The primary issues were whether the plaintiff was the rightful owner of the land, the validity of defendants' applications, and the existence of any NCR. (Paras 14, 16)
Ratio Decidendi: The court affirmed that the defendants failed to establish their claims of NCR and affirmed the title granted to the plaintiff under the Land Ordinance, highlighting the evidentiary burdens on the claimants. (Paras 66, 106)
Result: Judgment granted in favor of the plaintiff, dismissing the defendants' counterclaims.
| Table of Content |
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| 1. land history and cultivation prior to dispute. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. plaintiff's application and development activities. (Para 8 , 10) |
| 3. subsequent land applications contested. (Para 9) |
[1] The land applied by the 30th - 129th Defendants was once part of the Sungai Pin Forest Reserve. That reserve was gazetted on the 15th of July 1958. On the 3rd of August 1978 an area of 13,540.48 of alienated land surrounding the said Forest Reserve namely CL11238, CL118269 and CL20468 were acquired for the cultivation of rattan for experimental purposes.
[2] SAFODA then in 1979 entered onto the acquired area and Forest Reserve and started to plant rattan. (See both the areas marked in Yellow and Green on p 168 of BOD1). By 1984 the area was substantially cultivated with rattan by SAFODA. SAFODA was then in possession of the land and their entry onto the Forest Reserve was also with the knowledge and consent of the Forestry Department (Exhibit TPW2).
[3] By another gazette notification No: 567 of 1982 dated the 24th June 1982 part of the Sg Pin Forest Reserve was partially revoked with retrospective affect from 1st March 1978 that excised area includes that portion of land claimed by the 30th - 129th Defendants.
[4] SAFODA then set about to apply for the said land the gazetting of the same for rattan cultivation.
[5] By a letter dated 16th of February 1995 the Lands & Survey Department approved the gazetting of the land applied by SAFODA in their letter dated 20th of June 1984 and SAFODA was advised to apply for the issuance of the Survey Papers (pp 7 - 8 SBOD3). Meanwhile the State Government by a letter dated 4th of February 1996 granted permission to Petrojasa Sdn Bhd to carry out logging activities on the land that would be gazetted for SAFODA. A temporary occupation licence dated the 30th of October 1996 was then issued for a period from 1st of November 1996 to 1st of November 1998 to carry out logging activity on the area marked in Green on p 168 PBOD1.
[6] On the 16th of November 1998, the 30th Defendant and 500 others under Land Application 98094760 applied for 8,000 acres of land. The land applied covers the portion marked in Green on p 168 PBOD1.
[7] The land utilization committee No: 3/2001 held on the 17th of April 2001 rejected this application on the ground that no land was available on the area applied. Hj Ahdah, the 30th Defendant was informed of this vide a letter dated 16th January 2002 (see p 189 ABD).
[8] On 22th October 1999 the Plaintiff submitted its Land Application 99096156 dated 21st October 1999 for the said land together with a processing fees of RM500/-. The application was for 8,250 hectares of country land at Sg. Pin.
[9] The Director of Lands and Survey Department granted permission to the Plaintiff to enter the land for preliminary reconnaissance, surveying works and development purposes vide a letter dated 8th September 1999. (See p 141 of ADB).
[10] The Plaintiff then engaged a contractor Andikah Jaya Sdn Bhd to commence development but due to massive flooding work ceased in February 2000. On 18th February 2003 the land utilization committee in its meeting 1/2003 deliberated the Plaintiffs' application and recommended the same to be forwarded to the Lands and Survey Department for further consideration. On the 14th March 2007 the Lands and Survey Department issued the offer to Alienate Land in respect of the Plaintiffs' application and this was accepted by the Plaintiff on the 3rd April 2007. A title document was subsequently issued after the land had been surveyed for 6,197 hectares. It was registered on the 8th of September 2010.
