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2010 MarsdenLR 1390
HIGH COURT, KOTA KINABALU
SUHANNA MALKA RAMLE – Appellant
Versus
SABAH FOREST INDUSTRIES SDN BHD – Respondent
[Suit No: K24-109 Of 2007]
Transactions involving native land by non-natives are invalid under the Sabah Land Ordinance, reinforcing the necessity for statutory compliance in land dealings.
Headnote:(A) Sabah Land Ordinance (Cap 68) - Provisions regarding dealings in land - Contracts Act, 1950 - Sections 24(a), 24(b), 6(2) - Plaintiff sought declarations against defendant's alleged unlawful transfer and encroachment on land - Court examined legality of transfer and defenses based on alleged agreements - Defendant's assertions of a sale and public right of way rejected - Transactions violating the Ordinance deemed void. (Paras 1-52)
(B) Declaratory Relief - Caution against granting relief against hypothetical issues or when alternative remedies exist - Court ruled in favor of plaintiff upon sufficient evidence of trespass and illegality of defendant's claims. (Paras 10-15)
Facts of the case:
The plaintiff inherited land after her grandfather's death and claimed that the defendant unlawfully constructed an access road on her land, arguing the purported sale was invalid under the Land Ordinance. (Paras 5-7)
Findings of Court:
The agreements were illegal as the defendant is a non-native entity, thus transactions involving plaintiff's native title land were void. (Paras 17-30)
Issues: Whether the defendant had any legal rights to use the land, whether the plaintiff's claim was barred by laches, and if the plaintiff was entitled to relief. (Paras 1-52)
Ratio Decidendi: The court emphasized statutory compliance under the Land Ordinance, ruling out the defendant's claims due to their status as a non-native, reaffirming that illegal agreements cannot be enforced. (Paras 20-30)
Result: Claim allowed with costs borne by the defendant.
(a) A declaration that any Memorandum of Transfer which may have been executed by Dua bin Panjang (deceased) in favour of the defendant is null and void and of no effect being in contravention of the provisions of the Sabah Land Ordinance (Cap 68).
(b) That the defendant and/or its employees, servants or agents who, without lawful authority, licence or consent continuously encroach or use part of the said land as an access road be ordered to cease from using the same forthwith and deliver vacant possession of the said access road land to the plaintiff.
(c) A declaration that the plaintiff be permitted to demolish, tear down and remove all roads, gates, buildings, structures, fixtures and fittings of the said defendant found on the said land without liability to compensate to the defendant.
(d) That the loss and damage suffered by the plaintiff from the time of the defendant's trespass and/or wrongful or unlawful encroachment of the said land be assessed and paid by the defendant as compensation for their trespass and/or encroachment upon the land.
The principles
In Sakapp Commodities (M) Sdn Bhd v. Cecil Abraham, it was held by the Court of Appeal that generally the Court will not grant a declaratory judgment where an adequate alternative remedy is available or upon hypothetical issues or upon an issue of no practical consequence or where it may be premature to grant a declaration or where a plaintiff is guilty of laches or other inequitable conduct or where a 'cloaked declaration', that is to say, a declaration for collateral purpose or with an improper motive, is sought.
It was further held by the Court of Appeal that the Court should be cautious in granting declaratory relief, citing with approval a passage in Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd. [1921] 2 AC 438, 445 where Viscount Finlay said that the power to grant declarations should be "exercised sparingly", "with great care and jealousy", and "with extreme caution." Nonetheless Gopal Sri Ram JCA (as he then was) in delivering the judgment of the Court noted that "the learning that has later flowed upon the subject points to Viscount Finlay's language as merely reminding a Court for the need to exercise judicially the discretion to grant a declaration" which Viscount Kilmuir LC made clear in Vine v. National Dock Labour Board [1957] AC 488. Thus on the facts of Sakapp Commodities the learned judge concluded:
"It seems to me that, however 'cautiously' or 'sparingly' the discretion is to be exercised, this is a case in which the judge was right to grant a declaration ..."
The plaintiff's case
The plaintiff's case is as follows. After the death of her grandfather, the late Dua bin Panjang in 1985 she became the registered owner of the land held under NT19302489 situated at Kampong Pantai in the District of Sipitang, Sabah. The plaintiff was 3 years old when the Native Court made the order of succession on 16.3.1987 with her father Hj Ramle bin Dua (PW5) acting as guardian. The original title to NT19302489 produced in Court is a re-issued version of the first original issued in 1938. According to Mejar (retired) Bernard Lee (PW3) who was the District Officer and Assistant Collector of Land Revenue of Sipitang at the material time and whose signature appears on the endorsement of the succession order, the re-issued title is the original title and can be taken as good document. I am satisfied that the plaintiff is the registered owner of NT19302489.
The land which forms the subject matter of the dispute is a portion of NT19302489 across which the defendant had built an access road approximately 9 miles long to connect the defendant's timber concession area with its integrated pulp and paper mill. It is the plaintiffs case that the land which is held under Native Title is non transferable to the defendant who is a non-native and that consequently the defendant's purported purchas
