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2011 MarsdenLR 433
HIGH COURT, KOTA KINABALU
ROSINAH NASRY & ANOR – Appellant
Versus
SALAHUDIN HASANAH & ORS – Respondent
[S21-61-2010]
Jurisdiction to determine native status lies exclusively with Native Courts; claims alleging forgery were time barred under the Sabah Limitation Ordinance due to established knowledge of forgeries prior to suit.
Headnote:(A) Interpretation (Definition of Native) Ordinance, Cap. 64 - Section 3(2) - Sabah Limitation Ordinance, Cap. 72 - Claims regarding ownership of land against purported native title holders - The court held that jurisdiction over native title declarations rests with Native Courts - Allegation of forgery tied to claims barred by limitation, with knowledge of alleged forgeries established prior to filing suit - Plaintiffs' claims dismissed as statute barred. (Paras 6, 10, 20-28)
(B) Jurisdiction of Native Courts - The court affirmed that jurisdiction to determine native status under the ordinance is exclusive to Native Courts, as clarified in case law. (Paras 7-12)
Facts of the case:
The 2nd plaintiff claimed ownership of land parcels based on alleged sale agreements from 1978-1985, while the 46th and 47th defendants purchased the land under disputed power of attorney documents that the plaintiffs claimed were forged.
Findings of Court:
The court found that the plaintiffs had knowledge of the alleged forgeries prior to the filing of the writ, making the claims time barred under the Limitation Ordinance.
Issues: Whether the Native Court has exclusive jurisdiction regarding the native status of the defendants and whether the plaintiffs' claims are statute barred due to the limitation period.
Ratio Decidendi: The court reasoned that rights from native certificates are statutory, thus requiring adherence to specified legal processes for claims related to such rights. Furthermore, it found plaintiffs had sufficient knowledge of the alleged fraud in time to file within the limitation period, validating the defendants' claims for dismissal. (Paras 12-15)
Result: Plaintiffs' claims dismissed with costs in the sum of RM70,000.00.
| Table of Content |
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| 1. ownership claims of the 2nd plaintiff. (Para 1 , 2 , 3 , 4) |
The plaintiffs' claims in short are these:
1. That the 2nd plaintiff is the beneficial and legal owner of 44 parcels of land as from July 1976;
2. The Power of Attorney given to the 1st defendant by the land applicants (2nd to 45th defendants) of the 44 parcels of lands (PA) and Substitute PA, all consequential acts made or purported to be made or carried out in pursuant to the PA and Substitute PA, the acceptance and registration of the draft titles, the transfer of ownership and sublease of the said Land, are null and void and of no legal effect; and
3. That the 46th and 47th Defendants are not natives of the State of Sabah.
Background Facts:
The dispute between the parties here concerns the ownership of 44 parcels of lands situated at Latangon in the district of Kinabatangan (the Lands). The 2nd to 45th defendants were the successful applicants of the Lands and they had purportedly given a full power of attorney to the 1st defendant to deal with them including disposing of the same. The 46th to 47th defendants were approached by the 1st defendant acting as the authorized agent or attorney of the land applicants as to whether they wish to purchase the Lands. The 46th and 47th defendants decided and agreed to buy the Lands in 1995 pursuant to a set of power of attorney (PA), substitution under a power of attorney (Substitute PA) and a sale and purchase agreement (SNP) all dated 06.09.1995. The Lands were transferred to the 46th and 47th defendants between 17.09.1996 and 07.03.1997. On 13.12.2000 the Lands were subleased to the 48th defendant.
As for the plaintiffs, their case is that between 1978 and 1985 the land applicants had sold the Lands to the 2nd plaintiff at the price of RM2,000 per lot (15 acres per lot) and the land applicants had received full payment of the purchase price. The plaintiffs also claim that the PA was never signed by the land applicants and the Substitute PA and SNP were never signed by 1st defendant. In essence they are alleging that those documents are forged.
After the oral evidence of the 2nd plaintiff, the 46th, 47th and 48th defendants took out enclosure 132 pursuant to Order 14A requesting the Court to determine the following two issues:
(1) Whether the exclusive jurisdiction to determine and declare whether the 46th and 47th Defendants are Natives of Sabah lies with the Native Courts of Sabah under Section 3 (2) of the Interpretation (Definition of Native) Ordinance , Cap. 64.
(2) Whether the Plaintiffs' claim is barred by items 73 and 74 of Section 3 or otherwise under the Limitation Ordinance (Sabah Cap. 72)? After hearing submissions from counsel I allow the application of the 46th, 47th and 48th defendants and directed counsel to submit on the two issues. Having heard those submissions, I now give my grounds of decision in respect of the two issues.
Issue 1:
Whether the exclusive jurisdiction to determine and declare whether the 46th and 47th Defendants are Natives of Sabah lies with the Native Courts of Sabah under Section 3 (2) of the Interpretation (Definition of Native) Ordinance , Cap. 64?
Mr Ansari, to his credit, in his oral submission conceded that, in view of the recent Court of Appeal decision in Hon Chung Lip v Kwan Ngen Wah & 6 others - case appeal number 02-99-2009, the jurisdiction in so far as native certificates are concerned belongs exclusively to the Native Court and not this Court. In my view the intention of the legislature is clear and this can be seen in the following piece of legislation:
Section 3 of the Interpretation (Definition of Native) Ordinance (Cap 64):
"3(1) Any person claiming to be a native may apply to a Native Court established under the Native Court Enactment 1992 and having jurisdiction in the area in which such person resides to declare:
(a) that such person is recognized by native law and custom as the parent or child, as the case maybe, of any person; or
(b) that such a pers
