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2014 MarsdenLR 525
COURT OF APPEAL PUTRAJAYA
SUPERINTENDENT OF LANDS AND SURVEYS KUCHING DIVISION & ANOR – Appellant
Versus
MOHAMAD RAMBLI KAWI – Respondent
[Civil Appeal No: Q-01-783-2010]
All native customary rights acquired before the Sarawak Land Code 1958 are valid and enforceable, and the conditions for their transfer must respect historical acquisition timelines and customary practices.
Headnote:(A) Sarawak Land Code, 1958 - Sections 5(1) and 5(2) - Evidence Act, 1950 - Native customary rights - The Plaintiff claimed customary rights over land, and the High Court recognized these rights, which were later contested on appeal - Key questions included the lawful acquisition of rights, the application of the Land Code, and the transferability of customary rights - The court found the original owners acquired rights before the Land Code and that it does not apply retrospectively - The appellate court held the issuance of the Provisional Lease infringed upon these rights and clarified principles regarding the burden of proof in civil cases. (Paras 10, 12, 13 and 17)
(B) Native customary rights - The principles established regarding when rights can be acquired and transferred, determined by historical context and adherence to local customs, particularly that such land must be alienated for transfer. (Paras 14, 15, and 16)
(C) Appeal - Jurisdictional scope - The court clarified the limitations of prior judgments on native customs and the relevant law, confirming that customary rights acquired before relevant legislation remain enforceable. (Paras 14 and 17)
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| 1. claims over land and rights to native customs. (Para 1 , 2) |
[1] The Appellants, the Superintendent of Lands and Survey Kuching Division ( 1st Appellant) and the State Government of Sarawak ( 2nd Appellant) were, together with a 3rd Defendant, the Federal Land Commissioner who did not appeal, named as Defendants respectively in a civil suit commenced by a Plaintiff Mohamad Rambli bin Kawi (the Respondent herein) seeking a declaration that he had acquired native customary rights over 65 parcels of land totalling about 1010 acres at Loba Rambungan (the said Lands) transferred from the villagers of Kampong Loba under Surat Perjanjian Menyerah Tanah Temuda.
[2] Sometime on 12 August 1997, the Appellants alienated the whole of these lands, described as Lot 300, Block 4 Salak Land District, to the Federal Land Commissioner under a 99-year Provisional Lease.
