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2011 MarsdenLR 794
HIGH COURT SABAH & SARAWAK BINTULU
MERANG JOK & ORS – Appellant
Versus
GOVT OF MALAYSIA & ORS – Respondent
[Civil Suit No: 21-02-2007(BTU)]
The court held that claimants of native customary rights may pursue action in court without first exhausting statutory remedies, affirming concurrent jurisdiction of courts on such issues.
Headnote:(A) Land Code (Cap. 81) - PART V - Native Customary Rights (NCR) - Plaintiffs sought declaration of NCR over land against Defendants who hold Planted Forest Licences - Defendants challenged jurisdiction, arguing Plaintiffs must first use statutory remedies - Court found no mandatory requirement to pursue statutory settlement before claiming NCR - Therefore, both judicial action and statutory remedies may coexist. (Paras 5, 8, 16)
(B) Judicial Review vs. Writ Action - The issue was whether the Plaintiffs should pursue a judicial review instead of a writ action - Court held that the claim is fundamentally a private law issue to establish NCR rather than challenge an administrative act - Thus, the procedural choice does not constitute an abuse of process. (Paras 25, 34)
Facts of the case:
Plaintiffs claim 29 reliefs based on alleged native customary rights over land that the Defendants obtained licenses to plant forests on - The licenses expressly reserved the rights of natives over the land.
Findings of Court:
The Court dismissed the Defendants' application, confirming the jurisdiction to claim NCR does not require prior compliance with statutory remedies outlined in the Land Code.
Issues: Whether the Plaintiffs' claim for NCR should proceed without initially resorting to the statutory remedy under the Land Code; and whether the nature of the claim necessitated a judicial review or writ action.
Ratio Decidendi: The court determined that the statutory remedy is permissive and not compulsory, allowing for concurrent jurisdiction in NCR claims by the courts.
Result: Application dismissed.
| Table of Content |
|---|
| 1. recognition of native customary rights (Para 2 , 3) |
| 2. challenge to procedural validity by judicial review (Para 4) |
| 3. interpretation of land code part v remedies (Para 5 , 6 , 7) |
[1] Upon reading the following:
A. Pleading
1. Enclosure 161 - Amended Statement of Claim;
2. Enclosure 162 - Amended Defence of 6th Defendant;
3. Enclosure 163 - Amended Reply to 6th Defendant's Defence;
4. Enclosure 169 - Amended Defence of 5th Defendant;
5. Enclosure 174 - Amended Defence of 2nd, 3rd and 4th Defendants.
B. Application: Order 14A
6. Enclosure 181 being our application under O 14A supported by Affidavit of Mdm. Tan Hie Lee affirmed on 15 July 2011; and
7. Enclosure 182 Affidavit in Opposition of the 1st Plaintiff Merang Jok affirmed on 20 July 2011.
C. Submissions:
1. Enclosure 187 - 5th Defendant's submission.
2. Enclosure 188 - 5th Defendant's Bundle of Authorities.
3. Enclosure 189 - 2nd, 3rd and 4th Defendants' submissions.
and hearing submissions by Learned Counsel for the Plaintiffs, 5th Defendant, 2nd to 4th Defendants and 6th Defendant the Court dismisses the Defendants' Application with costs to Plaintiffs on the following grounds:
I. Facts Of The Case And Application
1. Facts Of The Case
[2] The Plaintiffs claim is for 29 reliefs by Writ action arising from the issue of Planted Forest Licence LPF/0013 to the 5th Defendant and Planted Forest Licence LPF/0018 to the 6th Defendant by the 2nd, 3rd and 4th Defendants over the said land as defined in paragraph 9 of the Amended Statement of Claim over which the Plaintiffs claim native customary rights (NCR).
[3] The crux of the Plaintiffs? Amended Statement of Claim is for the 1st relief as stated in paragraph 43(i):-
"(i) A declaration that they have acquired and/or created individual and communal native customary rights over the said land which is not titled land or declared to be State land after a settlement exercise and are still the lawful proprietors of the same;"
For the purposes of this Ruling the term "said land" shall exclude titled land or declared as State land after a settlement exercise.
