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2022 MarsdenLR 528
COURT OF APPEAL PUTRAJAYA
KWAN NGEN WAH & ANOR – Appellant
Versus
JULITA TINGGAL – Respondent
[Civil Appeal No: S-02(NCVC)(A)-1899-09/2018]
The District Native Court lacks jurisdiction to invalidate Native Certificates issued prior to the enforcement of the Native Courts Enactment 1992, emphasizing the principle of non-retroactivity in legal proceedings.
Headnote:(A) Interpretation (Definition of Native) Ordinance 1952 (Sabah Cap 64) – Section 3; Native Courts Enactment 1992 – Sections 6, 16, 24 – Appeal against decision of High Court quashing judgment of Native Court of Appeal regarding native status and certificates – The court held that the District Native Court lacked jurisdiction to invalidate 37-year-old Native Certificates, and thereby cannot apply s 16 retroactively. Additional emphasis was placed on the legislative intent of the Native Courts system regarding jurisdiction over native status, leading to a correct legal interpretation that necessitates respect for the terms and limits of previously established laws. (Paras 14, 24, 26, 29)
Facts of the case: The appellants applied for native status in 1979 and received Native Certificates, which were later challenged 37 years later by the respondent claiming them to be forged.
Findings of Court: The court concluded that the District Native Court acted in excess of its jurisdiction and reinstated the earlier judgment of the Native Court of Appeal as valid.
Issues: The key issues revolved around the jurisdiction of the District Native Court to revisit and invalidate Native Certificates issued under previous legal frameworks.
Ratio Decidendi: The court determined that valid Native Certificates cannot be questioned under the current revisionary powers as they do not extend retroactively, maintaining the conclusive nature of past declarations in the interest of legal certainty.
Result: Appeal allowed; the decision of the High Court was set aside.
JUDGMENT
Introduction
[1] This is an appeal against the decision of the High Court sitting in Kota Kinabalu. The High Court granted the judicial review application by the respondent (Julita Binti Tinggal) to quash the judgment of Justice Ismail Brahim who sat as the presiding judge of the three-member panel of the Native Court of Appeal. Consequently, the judgment of the remaining two lay members of the Native Court of Appeal who dissented from the judgment of Justice Ismail Brahim was declared as the final judgment.
Background Facts
[2] The instant dispute is about native status of the 1st appellant and Kwan Ngen Chung (deceased) who is represented by his administratrix, the 2nd appellant. For ease of reference, we shall refer to them collectively as the appellants.
[3] Under s 3(1) of the Interpretation (Definition of Native) Ordinance 1952 (Sabah Cap 64), a person claiming to be native may apply to a Native Court established under the Native Courts Enactment 1992 for a declaration to that effect. Under s 3(2), the Native Court has exclusive jurisdiction to determine the application and grant a declaration to that effect. The judgment of the Native Court under s 3(3) is subject to review and scrutiny, and appeal to the District Officer or a Board of Officers appointed by the Yang Di-Pertua Negeri. Section 3 (4) enacts that any decision under subsection (1) shall be conclusive evidence for all purposes in respect of the matter or matters to which it relates.
[4] This provision was availed of by the appellants a long time ago. In September of 1979, they applied for native status at the Kota Kinabalu Native Court. They were successful. The declaration of native status was scrutinised and endorsed as correct by the District Officer. Both respondents were issued Native Certificates by the Native Court. The Native Court that heard the application of the appellants was constituted by the predecessor of the Native Courts Enactment 1992 , ie the Native Courts Ordinance 1953 (Cap 86).
[5] The Native Certificates of the appellants were challenged some 37 years later against the backdrop of a rival claim to native lands. In 1992, the appellants purchased 46 parcels of native title lands from their owners. They took possession of the lands. They developed an oil palm plantation on it. The titles were not issued at that time. Titles were issued to the 46 land owners in 2001. But a third party by the name of Abdul Hamid Duli managed to become the registered owner. He sold the lands to a nonnative by the name Vun Yun Lau @ Vun Yun Liew Tony who caused the lands to be registered in the name of his sister in law who is the respondent herein (Julita binti Tinggal).
[6] Julita binti Tinggal sold the lands to one Hiew Kon Fah in 2005 who commenced an action in the High Court sitting in Sandakan in Suit No S22- 27-2005 against the appellants to recover possession. In that suit, Hiew Kon Fah challenged the native status of the appellants. Under the Sabah Land Ordinance 1930 (Cap 68), only a native is entitled to purchase native title land. The High Court rejected the challenge to the native status of the appellants. It held that the jurisdiction to determine the native status belonged to the Native Court. The claim of Hiew Kon Fah was dismissed and the counterclaim of the appellants herein (respondents in the Sandakan in Suit No S22-27-2005) was allowed on 28 October 2011. Hiew Kon Fah's appeal to the Court of Appeal was unsuccessful and the matter is now pending before the Federal Court.
[7] Julita binti Tinggal then filed an application to the District Native Court on 27 March 2017 at Kota Kinabalu to challenge the Native Certificates of the appellants that were issued on 12 May 1979. The District Native Court is the middle tier Court in the native Court system. It is presided by the District Officer and two members who are District Chiefs or Native Chiefs. Below it is the Native Court that is presided by a District Chief and tw
