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2020 MarsdenLR 1303
COURT OF APPEAL PUTRAJAYA
YAHYA TIMBON & ORS – Appellant
Versus
KUMPULAN PARABENA SDN BHD – Respondent
[Civil Appeal No: Q-02(A)-537-03/2018]
The court reaffirmed the indefeasibility of land titles under Sarawak Land Code, asserting that native customary rights (NCR) claims do not defeat issued leases if not established prior to the cut-off date.
Headnote:(A) Sarawak Land Code – Sections 5, 6A, and 132 – Native Customary Rights (NCR) – Defendants claimed rights over land leased to the plaintiff under NCR but could not prove existence prior to cut-off date of 1 January 1958. Claims for damages for trespass by the defendants were rejected. (Paras 1, 4, 10, 21, 23)
(B) Indefeasibility of title – The Court emphasized that leases issued after NCR claims hold indefeasible title under s 132 of the Sarawak Land Code, persisting even when NCR exists. (Paras 21-22)
Facts of the case: The dispute nears two parcels of land, where the plaintiff holds legal title while the defendants argue for NCR due to historical occupation. Defendants' evidence was inconsistent and unsupported, leading to a loss of their counterclaims. (Paras 3, 17, 30)
Findings of Court: The defendants failed to substantiate their claims of NCR over the disputed land, and evidence presented was deemed contradictory. (Paras 4-5, 18)
Issues: The main issues were whether NCR were established prior to the cut-off date and the indefeasibility of the plaintiff's title. (Paras 8, 10)
Ratio Decidendi: The Court ruled that the defendants did not satisfy the burden of proving their NCR, and the title issued was recognized as indefeasible by law, aligning with previous Federal Court judgments. This precedent dictates adherence in the current case despite new legislative amendments. (Para 21)
Result: Appeal dismissed.
JUDGMENT
[1] This appeal emanates from a decision of the learned Judicial Commissioner ("JC") in respect of three originating summonses filed individually by the respondent against the three appellants, which summonses were later converted into writ actions and jointly tried before His Lordship. The respondents principal claim against the three appellants was for vacant possession of land registered under its name which the appellants contended was theirs by virtue of native customary right ("NCR") and for which the respondent must pay damages on account of their respective trespass on the said land. That counterclaim of theirs for, inter alia, the said damages as well as declaration of their aforesaid rights over the land were dismissed by the learned JC whilst the claim of the respondent was allowed. Hence the appeal before us which we dismissed on the merits but without cost.
[2] Before delving into our reasons for deciding so, we would first give a brief background of the facts upon which the claim and counter-claim were based upon. Hereinafter, the parties would be referred to as they were in the High Court except that when it is necessary to refer to the appellants individually, they would be mentioned by their first name.
Acquisition Of Native Customary Rights
[3] The subject matter of the dispute between the parties are two pieces of land described as Lot 187 and 188, Block 10 Lambir Land District. The plaintiff at that material time was the registered owner of the said land, having been granted by the Government of Sarawak, through the Department of Land and Survey, a 60 years lease over them on 1 September 2009. The defendants on the other hand are residents of a village called Kampung Tukau Jaya (formerly known as Kampung Baluboh) which is situated on the said land and claimed, not just for themselves but also other residents of the said village that they have, through continuous occupation as well as usage of the land from time immemorial since the days of their ancestors, acquired NCR over it. Thus, they also sought a declaration that the said leases which were issued without a prior extinguishment of their NCR was null and void. The defendants contended they have not only built their residences on the land and cultivated the land but have also foraged and hunted in the forested area on the land for their food and livelihood. Thus they have usufructuary right over part of the land covered by the said leases ("disputed land").
[4] At the trial, all three defendants gave evidence in support of their NCR claims No other fellow villagers or other witnesses were called. The learned JC had in his judgment laid out their evidence from paras 8 to 12 thereof and found the said evidence "unsatisfactory and to a certain extent contradictory. His Lordships reasons for finding so are summarised below:
(i) The defendants relied on a letter from the Agriculture Department dated 4 June 1951 [p 143 of the Appeal Record Volume 3 - Part C (Amended)] addressed to nine village headmen, including one Hj Sakiria, whom the defendants claimed to be their former headman, which gave permission for the villagers to plant paddy. This document, which we would hereinafter referred to as the 1951 letter, the defendants contended is evidence of their cultivation of the land since 1951 but the learned JC rejected it as there was no evidence that this Hj Sakiria was the former headman of the defendants village. It is to be noted that in the 1951 letter Hj Sakiria is stated to be from Luak and from its content it appears to be have been issued after a meeting was held by the said Department and the addressees.
(ii) Contradictions in the defendants evidence as to when the land was cleared. Haslan and Mahari said they were told by their late fathers it was before the Japanese occupation but Yahya said it was after the Japanese occupation.
(iii) Yahyas evidence of the existence of a 100 years old jackfruit tree on the land was later admit
