The High Court lacks original jurisdiction to grant declaratory relief in matters governed by the Sabah Land Ordinance regarding native customary rights.

[1] We heard both these appeals together in the sitting of the court at Kota Kinabalu on 27 January 2016. Having heard the submissions of the respective counsel, we reserved judgment in respect of both appeals. We now deliver our decision and grounds of judgment.

[2] This appeal raises several interesting points of law and fact over the plaintiff's claim to the disputed land, the subject matter of this dispute is based on common law and customary rights.

Background Facts

[3] We will refer to the respective parties as cited in the original suit. The facts are elucidated from the pleadings, judgment of the learned judge and the submissions of respective parties.

[4] The land in dispute is part of a piece of land measuring about 15 acres ("the disputed land") situated at Kampung Ansuan of Telupid in the Beluran District which has been included in the Country Lease No: Lease CL - 85334130 measuring 500 acres alienated to the plaintiff with effect from 12 October 2001 in which the plaintiff is the registered owner of the disputed land. The disputed area is marked as L1 in exh D3 (see p 2 of the appellant's core bundle).

[5] The plaintiff commenced an action against the 1st and 2nd defendants in this present suit for an injunction to stop the defendants from trespassing onto the disputed land and for a mandatory injunction to remove the body of late Yahsu Linggis, the defendants' late father who was buried in the disputed land.

[6] The plaintiff had earlier commenced an action against the late father of the defendants for trespass under Suit No: S22-13-2006 wherein judgment was granted to the plaintiff on 26 September 2008 after their late father's defence was struck out.

[7] The defendants had filed their defence as well as third party proceedings against the Assistant Collector of Revenue, District of Beluran and three others. Their main defence is that the defendants' case is under common law as their forefathers had acquired native customary rights to the disputed land even before the arrival of the British Chartered Company in North Borneo and before the enactment of any written law on land ownership and alienation of such land, such as the Sabah Land Ordinance , for generations.

[8] The defendants claimed that their forefathers had lawfully occupied the land and thus the disputed land cannot be considered as state land defined under s 4 Sabah Land Ordinance .

[9] The defendants seek in their counterclaim for declarations against the third parties on the grounds, inter alia, that:

(a) The impugned alienation of the Country Lease No: 085334130 was contrary to the procedure of the Land Ordinance for non-compliance of s 13 of the Land Ordinance and was invalid on the ground that the mandatory notice of the plaintiff's land application to natives claiming native customary rights pursuant to s 13 was not issued or published by the 1st third party (ACLR). The defendants also contended that if the said notice was issued, the said notice was wrong in law and procedure and was inadequate. Consequently, the impugned alienation of Country Lease No: 085334130 by the 3rd third party (Director) was null and void.

(b) The impugned alienation by the 1st and 3rd third parties was unconstitutional as being in violation of arts 5, 8 and 13 of the Federal Constitution to the native customary rights of the defendants as natives, and hence, null and void.

(c) In alienating Country Lease No: 085334130 including the said land to the plaintiff, the 1st and 3rd third parties had acted in breach of fiduciary duty to the defendants as natives.

[10] The learned High court Judge ruled against the plaintiff on all issues including non-compliance of a step in the procedure of land alienation according to the Sabah Land Ordinance . The learned judge went on to declare that the defendants are entitled for the declarations that they sought. Hence this appeal.

Issues Pertaining To The Customary Rights Of The Defendants To The Disputed Land And In C