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2013 MarsdenLR 243
COURT OF APPEAL PUTRAJAYA
DIRECTOR OF LANDS & SURVEYS SARAWAK – Appellant
Versus
TR SUBING JAMIT – Respondent
[Civil Appeal No: Q-01-365-09]
The High Court has jurisdiction to grant declarations enforcing native court judgments, and the respondents' writ action was appropriate for asserting native customary rights without constituting an abuse of process.
Headnote:(A) Sarawak Land Code, Cap 81 - Sections 22, 95, and 96 - Native Courts Ordinance 1992 - Declaration of enforcement of native court judgment - Respondents entitled to declarations confirming the native court’s judgment as a settlement order, and rendering the appellant's notice of objection invalid due to late submission. (Paras 1, 10, 12-13, 22-24)
(B) Jurisdiction - High Court’s jurisdiction to grant declarations regarding enforcement of native court order not ultra vires, as the native court acted within its power. (Paras 15-20)
(C) Mode of action - Direct enforcement of native court rights by writ action was appropriate and did not constitute abuse of process. (Paras 31-33)
Facts of the case:
The High Court ruled in favor of the respondents, affirming that their native customary land judgment from 1999 was valid and enforceable as the appellant failed to object within the stipulated timeframe. (Paras 1, 10)
Findings of Court:
The High Court Judge found credibility in the respondents' testimonies and ruled that the appellant’s objection was invalid as it was late. (Paras 10, 19)
Issues: Whether the High Court had jurisdiction to grant declarations, and if the respondents should have sought judicial review instead of filing a writ action. (Paras 15, 30)
Ratio Decidendi: The court emphasized the compliance with statutory provisions in native court processes, asserting the High Court's authority to grant necessary declarations based on the actions taken by both the native court and the appellant. (Paras 22-23)
Result: Appeal dismissed with costs to respondents.
| Table of Content |
|---|
| 1. nature of the appeal (Para 1 , 1 , 2) |
| 2. evidence and claims by respondents (Para 3 , 4 , 5 , 6) |
| 3. appellant's objection claims (Para 7) |
| 4. relevant law provisions (Para 8) |
| 5. court's findings on the validity of objection (Para 10 , 11 , 12) |
[1] The Director of Lands & Surveys, Sarawak ("the appellant") appeals against the decision of the High Court, Kuching, dated 11 September 2009, granting to TR Subing Anak Jamit and 25 other families of a longhouse known as Rumah Subing, Saratok, ("the respondents") two declarations in the suit they had brought against the appellant. The declarations granted were that:
"1. The said Saratok Native Court's Judgment dated 30 September, 1999 is deemed to have been duly effected by a settlement officer as a Settlement Order under s 95 of the Sarawak Land Code Cap 81 ("the Code") and enforceable in accordance with s 95(2) and (3) and s 96 of the Code (Declaration No 1).
2. The defendant's notice of objection dated 6 December 2001 is invalid, null and void and of no legal effect (Declaration No 2)."
The High Court Action
[2] The respondents sought the above declarations by way of a writ action.
The Plaintiff/Respondents' Case At The High Court
[3] In support of their claim for the declarations the respondents adduced evidence through the following witnesses:
(a) Tuai Rumah Subing Anak Jamit (PW1) who was the plaintiff;
(b) Garan Anak Chunggut (PW2) who was the Penghulu who presided with two other assessors assisting him in Native Court case No CC/STK/02/99(KB)(C) concerning the respondents' dispute with some 6 other villages over the extent of their native customary lands;
(c) Nicholas Bawin Ak Anggat (PW3) who testified on the Iban 'Adat' and native customary rights.
[4] At the High Court it was the respondents' case that they were entitled to the declarations they sought because:
(i) They had brought a case to the Saratok Native Chief 's Court in early 1999 to determine the extent or boundary of what they claimed to be their native customary lands. The defendants in that Native Court case were the Headmen of 6 other longhouses.
(ii) That on 30 September 1999 the Native Court, after a full hearing, gave a judgment in favour of the respondents and declared or confirmed the boundary or extent of the respondents' native customary land.
(iii) There was no appeal against the judgment of the Saratok Native Court dated 30 September 1999.
(iv) Following such decision, the Registrar of the Saratok Native Court had on 21 August 2001 sent by AR Registered Post an official memorandum to the appellant enclosing the following documents for his action:
(a) Form F which is a copy of the judgment (in accordance with r 10 of the Native Court Rules 1993);
(b) Form F(3) which is a notice to the Director of Lands and Surveys, informing him of the decision in the case and further notifying him that if the director does not within 21 days give to the Native Court written objection to the order (made in Form F) then the Native Court shall direct that the said order have such effect and be enforced as a Settlement Order;
(c) the map and notes of proceedings at the Native Court.
(v) The memorandum of the Registrar of the Saratok Native Court dated 21 August 2001 was duly received by the appellant on 24 August 2001. We note that this fact is expressly admitted in para 3 of the defence filed by the appellant.
(vi) On 6 December 2001 the Registrar of the Saratok Native Court wrote an official memorandum to the appellant/director enclosing Form F(2) which notified the appellant that since no objection had been received therefore the Native Court acting pursuant to s 22 of the Native Courts Ordinance 1992, directed that its final judgment shall have the same effect as that of a Settlement Order made by a Settlement Officer under s 95 of the Land Code and that the director was authorised and ordered to forthwith enforce the said judgment in accordance with s 95(2) and (3) and s 96 of the Land Code;
(vii) By an official memorandum d
