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2023 MarsdenLR 166
HIGH COURT SABAH & SARAWAK TAWAU
ABD HAMAN @ SAKARAN MOHD YASIN & ORS – Appellant
Versus
DATUK ZULKIFLI TUN MUSTAPHA & ORS – Respondent
[Suit No: TWU-22NCVC-10-8-2022]
The court ruled that without evidence of native customary rights, the plaintiffs failed to establish ownership claims to state land, and the High Court lacked jurisdiction over land alienation issues.
Headnote:(A) Land Ordinance (Cap 68) - Sections 12, 14, 41(1)(d), and 88 - Plaintiffs claimed ownership of land based on native customary rights (NCR) but failed to provide evidence of such rights or proper applications - Court found no statutory duty breached by Defendants in issuing communal title - Plaintiffs' application for injunction was dismissed, and their action against Defendants was ultimately dismissed for lack of evidence. (Paras 10, 13, 15, 19, 28, 96)
(B) Jurisdiction - High Court lacks original jurisdiction under s 41(1)(d) of the Land Ordinance to hear claims regarding land alienation decisions - Appeals must be directed to the appropriate authorities. (Paras 28, 34, 41)
(C) Trespass - Plaintiffs were found to have committed trespass on State land, leading to nominal damages awarded to the Defendants. (Paras 96, 98)
Facts of the case:
The Plaintiffs claimed ownership of 1,050 acres of land in Sg Nipah Tambisan based on applications made in 2003, 2004, and 2007, asserting native customary rights. They were sued for trespass by Defendants who were granted a communal title to the land in 2013. (Paras 1, 2, 3, 6, 10)
Findings of Court:
The Plaintiffs failed to prove their claims of NCR and were found to have no legal basis for their applications. The Court dismissed their action for lack of evidence and jurisdictional issues. (Paras 96, 97)
Issues: The main issues included the validity of the Plaintiffs' claims of native customary rights, jurisdiction of the High Court, and the legitimacy of the communal title issued to the Defendants. (Paras 15, 28, 34)
Ratio Decidendi: The Court ruled that without evidence of native customary rights or proper applications, the Plaintiffs' claims were unfounded, and the High Court lacked jurisdiction to intervene in land alienation matters. (Paras 28, 96)
Result: Plaintiffs' action dismissed; Defendants awarded nominal damages of RM50,000.00 and costs.
| Table of Content |
|---|
| 1. plaintiffs' claims based on land applications. (Para 1 , 2 , 3 , 4 , 5 , 6 , 8 , 9 , 10) |
| 2. injunction application dismissed. (Para 11 , 12 , 13 , 14) |
| 3. lack of evidence for native customary rights. (Para 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23) |
| 4. court's jurisdiction limitations on ncr claims. (Para 24 , 25 , 26 , 27 , 28 , 29 , 30) |
| 5. appeal process requirements. (Para 31 , 32 , 33 , 34 , 35 , 36 , 37) |
| 6. court cannot intervene in statutory decisions. (Para 38 , 39 , 40 , 41 , 42) |
| 7. injunctions against government are not allowed. (Para 43 , 44 , 45 , 46 , 47) |
| 8. discretion in land alienation by the director. (Para 48 , 49 , 50 , 51 , 52 , 53 , 54) |
| 9. no rights from unlawful occupation. (Para 55 , 56 , 57 , 58 , 59 , 60 , 61) |
| 10. no constitutional violation in land claims. (Para 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69 , 70) |
| 11. communal title is still valid. (Para 71 , 72 , 73 , 74 , 75 , 76) |
| 12. counterclaims for trespass and damages. (Para 77 , 78 , 79 , 80 , 81 , 82 , 83 , 84 , 85) |
| 13. nominal damages awarded due to insufficient proof. (Para 86 , 87 , 88 , 89 , 90 , 91 , 92 , 93) |
| 14. final judgment and costs awarded. (Para 96 , 97 , 98) |
[1] The Plaintiffs are self-described "successful applicants" for various parcels of land of varying sizes in Sg Nipah Tambisan, Kinabatangan, which in aggregate measure 1,050 acres more or less. For convenience, these parcels of land will be collectively referred to as "the subject land."
[2] The Plaintiffs assert that they entered the subject land to take possession ever since they were successful in their land applications lodged in 2003, 2004 and 2007, and to have cultivated oil palm trees thereon since 2004. They also asserted that their claim was based on native customary rights or "NCR," as alternatively referred to herein.
[3] The 1st to 7th Defendants were sued as trespassers who have prevented the Plaintiffs from carrying plantation works and from harvesting the oil palm fruits.
[4] The 8th Defendant is the Assistant Collector of Land Revenue Kinabatangan who is able to decide on, among others, claims premised on native customary rights.
[5] The 9th Defendant is the Director of the Lands and Surveys.
[6] The 8th and 9th Defendants were sued for, inter alia, for breach of their fiduciary duties, failing to issue native titles to the applicants, and for wrongfully issuing a communal title for land which is inclusive of the subject land - under the Tambisan Darat Minor Settlement Scheme - to the inhabitants of Kg Tambisan and its neighbourhood, which includes the 2nd, 4th and 7th Defendants who, in turn, counterclaimed against the Plaintiffs for trespass.
[7] The communal title was issued on 23 April 2013. See CBOD, Part B1, p 138. The 3rd Defendant is not named in the communal title and is not a beneficiary, but is involved in the management of the subject land.
[8] The 10th Defendant is the State Government of Sabah which the Plaintiffs hold accountable for the alleged wrongdoings of the 8th and 9th Defendants.
[9] As against the 8th, 9th and 10th Defendants, the Plaintiffs seek to nullify the issuance of the communal title to the 1st-7th Defendants who they sued as trespassers, but have not named the other 380 beneficiaries named therein. Further, the Plaintiffs contend that the concept of communal title has been abolished.
[10] The Plaintiffs were in occupation of the subject land from around 2003 to August 2022.
[11] Prior to the trial, the Plaintiffs applied for an injunction to restrain the 1st-7th Defendants and their servants and agents from "unlawfully entering the Plaintiffs' lands... and from hindering and/or preventing the Plaintiffs and their workers from entering and carrying out plantation works on the said lands until the final disposal of this action or until further order."
[12] The Plaintiffs' application was dismissed. The Plaintiffs' appeal was dismissed by the Court of Appeal.
[13] After a full trial, the Plaintiffs' action was dismissed. The 1st a
