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2021 MarsdenLR 3248
FEDERAL COURT PUTRAJAYA
BUSING JALI & ORS – Appellant
Versus
KERAJAAN NEGERI SARAWAK & ANOR AND OTHER APPEALS – Respondent
[Civil Appeal Nos: 01(f)-31-10-2019(Q) 02(f)-77-10-2019(Q) 01(f)-32-10- 2019(Q) 01(i)-33-10-2019(Q) 02(i)-79-10-2019(Q) & 02(f)-76-10-2019(Q)]
Post-2018 Amendments, Pemakai Menoa and Pulau Galau are recognized as customs with force of law under the Sarawak Land Code, superseding previous rulings that denied their legal status.
Headnote:(A) Sarawak Land Code (Cap 81) – Sections 5, 6A, 15, and 132 – Native Customary Rights – The Federal Court determined the status of Pemakai Menoa and Pulau Galau, revealing that these customs now hold force of law following the 2018 Amendments to the Sarawak Land Code. This marks a departure from prior rulings including TR Sandah 1 and TR Nyutan, which had rendered these customs without legal effect. Appellants sought recognition of their customary rights over state land. The Court ruled that claims for native rights must be communal, not individual, as supported by amendments introducing a structured claim process under s 6A, which expressly acknowledges the legitimacy of these rights as communal titles with indefeasible characteristics. The claim based solely on individual actions must be dismissed. (Paras 40, 70, 161)
Findings of Court: Upon review, the majority principles established in TR Sandah 1 and TR Nyutan are overridden. The existing legal framework now provides for communal acknowledgment of land rights. Case A dismissed as the claims were for individuals, not the community. (Paras 166).
Findings of Court: The legislative changes necessitate a reassessment of how these historical claims function in practice under the revised code.
Issues: Evaluation of Pemakai Menoa and Pulau Galau's legal standing in light of recent amendments.
Ratio Decidendi: The Court emphasizes that historical customary practices have now been validated through statutory recognition, altering how future petitions concerning land rights will be assessed.
Result: Appeals uphold legislative amendments acknowledging native rights henceforth.
Introduction
[1] There are six appeals that were heard together despite there being different parties involved, except in two cases - Case A and Case C (which will be enumerated later) where the parties are the same. We heard oral submissions by all learned counsel representing the respective parties on two separate dates. At the end of those submissions, we stood down for the panel members to deliberate. Unfortunately, we were not able to come up with a decision on that day. We therefore indicated to all learned counsel that we needed a bit of time to consider the respective submissions and that they would be informed once a decision is reached pertaining to each of these appeals, in due course. We have now reached our decisions and what follow below are our deliberations of the issues raised and our reasons as to why we have so decided.
[2] My learned brothers Justices Vernon Ong and Harmindar Singh Dhaliwal and my learned sisters Justice Zabariah Mohd Yusof and Justice Hasnah Mohammed Hashim had read this judgment in draft and they had indicated to me their agreement with it and that it becomes the judgment of this Court.
[3] Although there have been not a few issues raised in the questions that were posed before this Court for our considerations, we observed that there were some common issues that transcended most of the appeals. The main commonality in these cases has been the very subject matter of dispute - the native customary right ("NCR") in Sarawak; and the questions of law for this Court's determination - on matters relating to the Federal Court decisions in Director Of Forest Sarawak & Anor v. TR Sandah Tabau & Ors And Other Appeals, ("TR Sandah 1"), TH Pelita Sadong Sdn Bhd & Anor v. TR Nyutan Jami & Ors And Other Appeals, [2018] 1 MLJ 77 ("TR Nyutan") and the Court of Appeal decision in Superintendent Of Lands & Surveys Bintulu v. Nor Nyawai & Ors And Another Appeal, [2006] 1 MLJ 256 ("Nor Ak Nyawai") vis-à-vis the 2018 Amendments to the Sarawak Land Code (" SLC ").
[4] For clarity and better understanding of the issues in question, it is pertinent for us to provide a brief history of the facts of each case which finally culminated in the framing of the questions for the Court's determination.
Brief Background Of The Cases
CASE A
[5] The question of law for this Court's determination is framed in the following manner:
Whether it is correct in law or proper for the Court of Appeal to set aside the trial judge's finding of fact that the plaintiffs have acquired and/or created individual or communal native customary rights over State land in Sarawak on the application as a matter of law of the decision in Director Of Forest Sarawak & Anor v. TR Sandah Tabau & Ors And Other Appeals, .
[6] In this case, the High Court Judge had, on 3 February 2014, decided upon a full trial that the appellants had acquired and/or created individual or communal NCR over 1391.42 acres of land within the 4460.00 hectares more or less of the Provisional lease Lot 11 granted to Empire Plantation Sdn Bhd In his judgment, the Judge was satisfied, on the balance of probabilities that the appellants had proved the NCR of Pemakai Menoa and Pulau Galau over the said land. The aggrieved defendants appealed against that decision.
[7] On appeal, the Court of Appeal reversed the decision of the High Court Judge and ruled that based on the decision of TR Sandah 1, the customary practices of Pemakai Menoa and Pulau Galau were not customs or usages having the force of law in the Sarawak State Laws as defined in art 160(2) of the Federal Constitution.
[8] The Court of Appeal further stated that the customary practices of Pemakai Menoa and Pulau Galau must be for the whole community, and since the claim was not a representative action but was only for the seven appellants, it must necessarily fail. It was this aspect of the Court of Appeal's decision that the appellants sought this Court's consideration to answer additi
