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2013 MarsdenLR 891
FEDERAL COURT PUTRAJAYA
BISI JINGGOT – Appellant
Versus
SUPERINTENDENT OF LANDS AND SURVEYS KUCHING DIVISION & ORS – Respondent
[Civil Appeal No: 01(f)-11-05-2012(Q)]
Individual customary rights in Sarawak are non-transferable by sale or otherwise for value; such rights must adhere to traditional customs and legal precedents, and any attempts to commercially transfer these rights are invalid.
Headnote:(A) Land Code, 1958 - Section 6 - Native Customary Rights - Appellant claimed Native Customary Rights over three parcels of land based on sale agreements; Respondents denied NCR acquisition claiming no transfer was permitted under customary law before 1958 - Court affirmed that individual customary rights are non-transferable for value - APPLE (standards/practice) taken into account, relevant cases discussed include Sumbang Ak Sekam v. Engkarang Ak Ajah and Rampai ak Chunggat v. Langau ak Chandai - Customary land rights are hereditary, cannot be transferred or sold; purpose of customary land is for community welfare, thus sale undermines this principle. (Paras 2-80)
Facts of the case:
Appellant, native of Sarawak, claimed three parcels of land as having Native Customary Rights through multiple sale agreements and occupation. Respondents contended that the land has been issued titles to others and that customary land cannot be alienated outside the community before 1958.
Findings of Court:
The eight lots of land were determined to be Native Customary Land, and the appellant's rights of ownership were not validly acquired through the sale agreements claimed.
Issues: Whether the claimed adat regarding Native Customary Rights restricts transfer for value after the enactment and repeal of relevant laws, and if the rights apply to gazetted land only.
Ratio Decidendi: Court reaffirmed that Native Customary Rights must adhere to established customs; any transfer must be within the community and recognized as a token (tungkus asi) not a sale price, which was not established in this instance.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. appellant's appeal questions set. (Para 1 , 1) |
| 2. facts about land acquisition. (Para 2 , 3 , 4 , 5 , 6) |
| 3. prayers in the statement of claim. (Para 7) |
| 4. respondents' defense summary. (Para 8 , 9 , 10 , 11) |
| 5. high court's findings. (Para 12 , 13 , 14) |
| 6. concessions made by parties. (Para 15 , 16 , 17) |
| 7. evidence on customary land rights. (Para 19 , 20 , 21 , 22) |
| 8. (Para 23) |
| 9. legislation's impact on ncr. (Para 26 , 27 , 28 , 29 , 30) |
| 10. conditions for ncr acquisition. (Para 35 , 37) |
| 11. determination of rights. (Para 39) |
| 12. final appeal considerations. (Para 40 , 41 , 42) |
[1] On 9 April 2012 the Federal Court granted the plaintiff, hereinafter referred to as the appellant, leave to appeal on three questions. On the day of the appeal the appellant invited us to determine only two questions, and they are:
"i) Whether, the alleged adat or custom that "individual customary rights are not transferable by sale or otherwise for value" referred to and applied in Sumbang Ak Sekam v. Engkarang Ak Ajah [1958] SCR 95 ceased to exist and enforceable as such:
a) upon enactment of the same as law under s 2 of the Fruit Trees Order 1889 , of the Rajah; and/or
b) upon the subsequent repeal of the said Rajah's Order?
ii) If the answers to question (1) above are in the negative, whether, by virtue of s 6 of the Land Code, the alleged adat or custom applies only to land gazetted as native communal reserve?"
Antecedent And Facts Of Appeal
[2] The appellant being an Iban and/or sea Dayak by race, thus a native of Sarawak, filed a writ of summons at the High Court of Sabah and Sarawak seeking declarations against the four respondents (defendants) involving three parcels of land. He pleaded that he had acquired Native Customary Rights (NCR) over the said three parcels of land through eight sale and purchase agreements (S&Ps) and through a mixture of customary and other legal means. The following are the details of the transactions regarding these parcels of land and Court action.
[3] The first parcel of land comprise eight lots bought under eight different S&Ps from five different NCR beneficial owners who had acquired the NCR by means of Iban's customary land law prior to 1 January 1958. Five lots (lots 7, 9, 35, 36 and 43) were bought on 8 December 1984, two lots (lots 3 and 29) were bought on 29 October 1990 and one lot (lot 2) was bought on 10 July 1991. The appellant pleaded that he had continuously occupied and cultivated those eight lots of land. As per the pleadings the appellant stated that the eight lots had been gazetted as native area land.
[4] The second parcel is lot 34 measuring 2.94 acres and likewise had been cultivated by him as early as 1986. He said he was the first person to cultivate this lot in 1986 under the Cocoa Scheme and later under the SEDC Adoption Scheme for cattle farming in 1991.
[5] The third parcel measuring 34 acres comprised three lots (lots 1, 2 and 3) of land. This parcel was given to him through his wholly owned company by the Forest Department of Sarawak on 7 September 1993 vide a letter of authority No 6/93. He was permitted to extract logs or timber from this parcel.
[6] The appellant also pleaded that he was given the understanding and or guarantee by the 1st respondent that if ever titles were issued for all the three parcels he would be the recipient of the issued titles. He also pleaded that by his continuous occupation and cultivation of the two parcels, together with the rights given to extract timber from the third parcel, he had acquired NCR over them.
The Prayers In The Statement Of Claim
[7] We now touch on the prayers pleaded in the statement of claim. His first prayer was for a declaration that he acquired NCR over the said three parcels of land either collectively or separately. Collectively all the 12 lots would fall under this first prayer. The second declaration prayed for was that with the acquisition of the NCR all the respondents were precluded from impairing his rights over the thre
