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2021 MarsdenLR 3951
FEDERAL COURT PUTRAJAYA
DOUGLAS DING JANGAN & ORS – Appellant
Versus
KERAJAAN NEGERI SARAWAK & ORS – Respondent
[Civil Appeal No: 01(f)-42-11-2018(Q)]
A party cannot set aside parts of a judgment not appealed against; cross-appeals should pertain to matters directly related to the primary appeal.
Headnote:(A) Rules of the Court of Appeal 1994 – Rule 5 and Rule 8 – Appeal against the decision of the High Court regarding native customary rights (NCR) over land – Court of Appeal acted outside its jurisdiction in setting aside a part of the High Court’s decision that was not appealed against – Substantive finding of fact by High Court restored, relating to the appellants' rights to specific patches of land as lawful proprietors (Paras 2, 18, 52).
(B) Jurisdiction – Cross-appeals filed without proper foundation as they challenged decisions not appealed by the initial appellants – Emphasis on necessity for notices of cross-appeal to directly relate to the matter at hand (Paras 8, 37, 52).
Facts of the case: The appellants claimed communal native customary rights over specific patches of land, a decision initially favorable to them but overturned by the Court of Appeal without proper jurisdiction.
Findings of Court: The Court of Appeal lacked authority to set aside the unchallenged finding of the High Court regarding NCR over the cleared areas (Para 52).
Issues: Whether the Court of Appeal correctly exercised its jurisdiction in relation to cross-appeals, particularly regarding decisions not appealed against.
Ratio Decidendi: The Court ruled that cross-appeals must align with the substantive appeal; the finding of fact from the High Court was upheld as it had not been subject to an appeal.
Result: Appeal allowed; the decision of the Court of Appeal was set aside and the High Court's ruling restored.
[1] This appeal is against the decision of the Court of Appeal allowing the cross-appeals by the 1st to 5th respondents and setting aside the whole of the decision of the High Court which favoured the appellants. The cross-appeals by the 6th to 8th respondents, who were interveners in the Court of Appeal but who were not parties to the High Court action, were also allowed by the Court of Appeal.
[2] The appellants obtained leave on 24 October 2018 for the determination of the following question of law:
"Whether the Court of Appeal acted within its jurisdiction when it set aside the whole of the order or decision of the High Court, including that part which decided that "the Plaintiffs have acquired and/or created communal native customary rights over the said land and are still the lawful proprietors of the same for the specific patches of cleared areas labeled as No 4, 5, 9, 16, 25, 36, 37, 38 and 39 in exhibit D80 and the cleared area labeled as No 27 in exhibit D81" and which is not appealed against, in determining the cross-appeals brought by the defendants and the interveners?"
[3] It is a jurisdictional challenge over the decision of the Court of Appeal to set aside the decision of the High Court on cross-appeals by the respondents/ interveners although no appeal pursuant to r 5 of the Rules of the of Appeal 1994 ("the RCA") was filed by the 1st to 5th respondents against the decision of the High Court to allow para 25(i) of the statement of claim.
[4] The facts as set out by the appellants, with the necessary modifications, are largely undisputed and they are as follows. In the High Court action, the appellants pleaded that since time immemorial, their ancestors, descendants and themselves have been occupying and practising native customary rights over the native customary rights (NCR) land which is known as "tana' daleh" in their dialect. They claimed NCR over the whole area of land edged in red ink in three community maps marked at the trial as exhibits P27, P28 and P29.
[5] The appellants claimed encroachment and trespass on their NCR land by both the 4th respondent's licence for planted forest No LPF/0013 and the 5th respondent's provisional lease, Lot 10 Punan Land District, which were issued by the 2nd and 3rd respondents respectively as agents of the 1st respondent. The 1st to 5th respondents contested the appellants' claim.
[6] The appellants' claim against the 1st to 5th respondents was tried over a period of 22 days with witnesses called and examined. On 8 August 2014, the learned trial judge decided partially in favour of the appellants by allowing para 25(i) of the statement of claim, which was for a declaration that the appellants have acquired and/or created NCR and are still the lawful proprietors of the specific patches of cleared land areas labeled as No 4, 5, 9, 16, 25, 36, 37, 38 and 39 in exh D80 and the cleared area labeled as No 27 in exh D81 (hereinafter referred to as "the cleared areas"), and consequential orders to give effect to the declaration.
[7] It was a decision that was adverse to the 1st to 5th respondents but they did not appeal against the decision to have it set aside. What they did was to purportedly apply for a variation of the decision by way of cross-appeal under r 8 of the RCA after the appellants had filed an appeal against that part of the decision of the High Court that dismissed their claim for the balance of the land areas. The 1st to 5th respondents' notices of cross-appeal were filed on 7 November 2014 (1st to 3rd respondents), 31 October 2014 (4th respondent), and 5 November 2014 (5th respondent).
[8] Except for para 25(i), the rest of the prayers in para 25 of the appellants' statement of claim were dismissed by the High Court. We reproduce below the orders, inter alia, made by the High Court:
(1) that the appellants' prayers in para 25 of the statement of claim dated 18 August 2010 were dismissed except for prayer 25(i) declaring that the appellan
