The indefeasibility of land title prevails over native customary rights claims that lack settlement or cultivation.

[1] There are two applications before me. The first one is the plaintiff's Notice of Application dated 20 March 2017 under O 14A and O 18 r 19 of the Rules of 2012 ("ROC") for the Court's determination on questions of law (encl 51). The second one is the application by the 1st, 2nd and 3rd parties under O 32 and O 14A for the questions of law posed to be determined by the Court without a full trial of this action (encl 69). Under this encl 69, the 1st, 2nd and 3rd parties also apply for the defendants' statement of claim against the third parties be struck out.

[2] On the 3 November 2017, I gave my ruling on both applications. for encl 51, I allowed the plaintiff's writ and statement of claim and struck out the defendants' defence and counterclaim with costs of RM2000.00 subject to the payment of allocator fee. For encl 69, I dismissed the defendants' claim against the 1st, 2nd and 3rd parties with costs of RM2,000.00 subject to the payment of allocator fee.

[3] Aggrieved by my decisions above, the defendants appealed to the Court of Appeal. I now give my grounds of decision.

Enclosure 51

[4] Under this encl 51, the plaintiff sought the following questions to be determined namely:

(i) whether the plaintiff who is the registered proprietor of Lot 130 Block 3 Bakong Land District by virtue of the issue document of title for the lease of State Land over Lot 130 Block 3 Bakong Land District ("Lot 130") issued by the Superintendent of Lands and Surveys holds an indefeasible title.

(ii) whether the defendants who are claiming native customary rights ("NCR") over the plaintiff's Lot 130 by virtue of the defendants' allegation that the same area is their customary forest reserve and such a custom, even if proven, has any force of law against the plaintiff.

(iii) whether the defendants who do not have any settlement or cultivation on the plaintiff's Lot 130 are entitled as a matter of law to claim NCR over the said Lot 130.

[5] It is my view that the plaintiff's application is amply suitable for the applicability of O 14A. This is because the above questions posed by the plaintiff can be determined without having to go for the full trial of the action and such determination will finally determine the entire cause or claim or issue therein (Seloga Jaya Sdn Bhd v. Uem Genisys Sdn Bhd, [2007] 7 MLJ 385).

[6] In the Federal Court's case of Director Of Forests Sarawak & Anor v. Racha Urud @ Peter Racha Urud & Ors And Other Appeals, ), Arifin Zakaria CJ (as he then was) held that

"[42] On the strength of the authorities cited it is apparent that one primary task which must be undertaken by the Court in deciding on the suitability and applicability of the order is to consider whether the pleadings disclose any dispute on the material facts. The order shall only apply where the material facts pleaded are obviously undisputed which should not have been disputed."

Indefeasibility Of Title

[7] In respect of the first question of law ie whether the plaintiff, being the registered proprietor of Lot 130, holds an indefeasible title, my answer is in the affirmative. This is because it is beyond dispute that the plaintiff was issued with the lease of state land of Lot 130 by the State Government of Sarawak through its agent, ie the Superintendent of Lands and Surveys.

[8] It was not in dispute that Lot 130 was formerly a Provisional lease Lot 236 Bakong Land District which was also alienated to the pla