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2011 MarsdenLR 3813
HIGH COURT SABAH & SARAWAK SIBU
TR SANDAH AK TABAU & ORS – Appellant
Versus
KANOWIT TIMBER SDN BHD & ORS – Respondent
[Civil Suit No: 21-2-2009]
Court affirmed the recognition of native customary rights based on continuous occupation and Indigenous customs, despite non-registration. Timber license was declared invalid against established native rights.
Headnote:(A) Sarawak Land Code (Cap 81) - Section 2 - Public Authorities Protection Act, 1948 - Claim for native customary rights over land - Plaintiffs claimed native customary rights over land occupied since early 1800s, recognized by customs and common law - Court found that Plaintiffs proved their rights prior to 1st January 1958, and the trespass by 1st Defendant was established - Declaratory reliefs granted including the unlawful nature of timber license issued over the area - 1st Defendant restrained from further trespass. (Paras 4, 12, 82)
(B) Native Customary Rights - Recognition by law - Native rights can exist and be proven via customs and documents, even with non-registration - The custom of 'Pemakai Menua' relevant for demonstrating native occupancy and rights to land. (Paras 22, 30, 37)
Facts of the case:
Plaintiffs, descendants of land settlers, claim native rights over area marked on a map, asserting continuous occupation since the 1800s by virtue of 'adat' and common law, challenging a timber license granted to the 1st Defendant for the claimed area. (Paras 1-6)
Findings of Court:
The court determined that the Plaintiffs had established native customary rights prior to the cutoff date and validated their claims against the trespass allegation, issuing orders to rectify the timber license and protect the Plaintiffs' land rights. (Paras 82)
Issues: Whether Plaintiffs had acquired native customary rights prior to 1 January 1958; whether the 1st Defendant's activities constituted trespass; and entitlement to damages. (Paras 12)
Ratio Decidendi: The court concluded that the Plaintiffs' customs sufficed for recognition of their rights, emphasizing that non-registration does not negate existing rights, and factual evidence established the persistence of their rights over the claimed land. (Paras 30, 37)
Result: Declarations made regarding native rights, trespass confirmed, timber license rectified, and damages to be assessed. (Para 82)
| Table of Content |
|---|
| 1. claim of native customary rights (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. defendant's assertions and defenses (Para 7 , 8 , 9 , 10 , 11) |
| 3. legal framework defining native customary rights (Para 12 , 22 , 28 , 30) |
| 4. evidence of occupation and custom (Para 13 , 14 , 15 , 16 , 40) |
| 5. court's observation on evidence presented (Para 17 , 18 , 19 , 20 , 21) |
| 6. court's findings on evidence of rights (Para 23) |
| 7. recognition of iban customs (Para 35 , 37 , 39) |
| 8. evidence of trespass by the defendant (Para 63 , 64 , 68 , 71) |
| 9. court's final declaration and orders (Para 82) |
[1] In this action the Plaintiffs, together with twenty two others whom they represent, residents of Rumah Sandah and Rumah Lajang of Ulu Machan, Kanowit, Sarawak, are claiming for Native customary rights over an area edged in brown on the locality sketch map marked "M" annexed to the statement of claim ("the claimed area").
[2] The Plaintiffs averred that they are the descendants of Jarop and Anggit Ak Mut, and that their ancestors started occupying the claimed area since early 1800 to this day.
[3] The Plaintiffs claimed they have acquired native customary rights over the claimed area by virtue of the "adat" or customs of the Iban of Ulu Machan, Kanowit, Sarawak and/or the Iban of Sarawak. Also, by virtue of the principle of common law.
[4] The Plaintiffs pleaded that their native customary rights over the claimed area is recognised by the Sarawak Land Code (Cap 81) and/or its predecessors, and their native customary rights was created and acquired prior to 1st January 1958 and still subsists as such.
[5] It is the case for the Plaintiff that the 1st Defendant had trespassed the claimed area and caused extensive damage to the area.
[6] The Plaintiffs claimed for various declaratory reliefs including a declaratory order that the Plaintiffs have acquired native customary rights over the claimed area and that the issuance of any timber licence over the claimed area is unlawful, improper, unconstitutional and therefore null and void, for want of extinguishment of the Plaintiffs' native customary rights over the claimed area.
The 1st Defendant's Defence
[7] In denying that the Plaintiffs have acquired native customary rights over the claimed area, the 1st Defendant averred that they are the licensee of the timber licence No T/0378 issued on 1 June 1967 by the Sarawak Forests Department, to fell harvest and extract timbers in the forest areas situated in the Kanowit - Ngemah State land Forest in Kanowit, Sarawak ("the Licensed Area").
[8] Alternatively, the Plaintiffs are stopped from bringing this suit by reason that they had neither complained nor challenged the issue of the timber license although they were aware of 1st Defendant's operation in the Licensed Area since issuance of the timber license No T/0378 on 1 June 1967.
[9] It was also averred that by failing to institute the suit within 36 months from the date of issue of the timber license, this suit is barred by virtue of s 2(a) of the Public Authorities Protection Act , 1948.
The 2nd Defendant's Defence
[10] The 2nd Defendant put the Plaintiffs to strict proof of their native customary rights claim and averred that the area of the timber license No T/0378 was not under any native customary rights.
[11] It also averred that the Plaintiffs' claim is time barred by s 2(a) of the Public Authorities Protection Act , 1948.
Issues To Be Tried
[12] Gleaning from the pleadings, the issues to be tried are:-
a. Whether the Plaintiffs have acquired native customary rights over the claimed area;
b. If the finding to (a) is in the affirmative, whether the 1st Defendant had trespassed on the claimed area.
c. If the answer to (b) is in the affirmative, whether the Plaintiffs have suffered damages in consequence of such trespass.
Issue (a) - The NCR Issue
[13] PW2, Tuai Rumah Sandahak Tabau (the 1st Plaintiff), Longhouse Chief, in his witness statement ("WSPW2), testified:-
3. The Plaintiffs bring this action on our own behalf as well as on
