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2017 MarsdenLR 3219
FEDERAL COURT PUTRAJAYA
TH PELITA SADONG SDN BHD & ANOR – Appellant
Versus
TR NYUTAN JAMI & ORS AND OTHER APPEALS – Respondent
[Civil Appeal Nos: 01-26-12-2014(Q) 01-27-12-2014(Q) 01-3-02-2015(Q) & 01-4-02-2015(Q)]
NCR claims do not nullify the indefeasibility of land titles; the rights exist concurrently under the Sarawak Land Code.
Headnote:Statute Analysis: The judgment primarily revolves around the interpretation of s 132 of the Sarawak Land Code regarding the indefeasibility of land title and NCR claims. Facts of the Case: The plaintiffs, representing native customary rights over disputed lands, challenged the legality of provisional leases issued to defendants without extinguishing their rights.
Findings of Court:
The trial judge granted relief to plaintiffs; however, the Court of Appeal affirmed this decision based on established evidence of NCR support.
Issues: The main legal questions include whether indefeasibility of title under the Sarawak Land Code prevails over NCR claims, and whether damages or declarations should be remedied in such cases.
Ratio Decidendi: The court articulated that claims of NCR coexist with indefeasibility of title; hence existing titles remain valid unless fraud is proven.
Result: The defendants' and Interveners' appeals are allowed, and the High Court's decision for rectification and damages set aside, mandating compensation as per the Sarawak Land Code.
| Table of Content |
|---|
| 1. overview of appeals linked to native customary rights. (Para 1 , 2 , 3) |
| 2. introduction of the case and claims made by the plaintiffs regarding their ncr. (Para 4) |
| 3. court's findings that ncr over the disputed lands was established. (Para 6 , 7 , 8) |
| 4. court's explanation on coexistence of indefeasibility and ncr claims under the sarawak land code. (Para 14 , 39) |
| 5. arguments presented regarding indefeasibility of title. (Para 18 , 19 , 20 , 21) |
| 6. court's observations on ncr claims and land title validity. (Para 23 , 32 , 33) |
| 7. decision on compensation versus title rights and ncr. (Para 40 , 41) |
[1] There are four appeals before us stemming from the decision of the Court of Appeal given on 27 September 2013 dismissing the appellants' appeals and affirming the decision of the High Court. The High Court had on 23 February 2012 allowed the respondents' claim in Kuching Civil Suit No 22-249-98 III.
[2] At the High Court, TR Nyutan Ak Jami, Gangak Anak Guma and Langa Anak Kama, who are Iban by race, were the plaintiffs. They sued on behalf of themselves and 183 other residents of Kampong Lebor, Jalan Gedong, 94700 Serian Sarawak. The plaintiffs claimed that prior to 1 January 1958, they and their forefathers had acquired Native Customary Rights (NCR) over areas of land (disputed lands) that were included in three (3) parcels of land provisionally leased to Lembaga Pembangunan Dan Lindungan Tanah and Nirwana Muhibbah Sdn Bhd (1st and 2nd defendants) by the Superintendent of Lands and Surveys Kota Samarahan Division (4th defendant).
[3] The 1st defendant is a body corporate constituted under the Land Custody and Development Authority Ordinance 1981. The 2nd defendant is a company duly incorporated in Malaysia while the 3rd defendant is the State Government of Sarawak. The 1st and 2nd defendants were originally the registered co-proprietors of three parcels of land, namely, Lot 2 Block 6 Melikin Land District ("Lot 2"), Lot 166 Block 5 Melikin Land District ("Lot 166") and Lot 7 Block 3 Melikin Land District ("Lot 7"). These three parcels of lands were alienated to the 1st and 2nd defendants by the 3rd defendant.
[4] The 1st and 2nd defendants entered the three parcels of land and began clearing works for oil palm cultivation in early 1997. The plaintiffs claimed that the intrusion of their native customary land within the three parcels of land and the destruction of their crops were unlawful and without their consent, or without their NCR being first extinguished or without the payment of any compensation to them. Hence, they sought the declarations and reliefs in the suit filed at the High Court.
[5] The 1st, 2nd and 3rd defendants denied that the plaintiffs had acquired any NCR over the areas claimed by them for the following reasons:
(a) the three parcels of land did not include any NCR land as virgin jungle existed at all material times on the three parcels of land;
(b) the areas claimed to be farmed by the plaintiffs fell outside the boundaries of the three parcels of land;
(c) in 1976, pursuant to s 6(1) of the Sarawak Land Code , the Native Communal Reserve (No 4) Order 1976 was published in the Sarawak Gazette 51/76, whereby 121 parcels of land were declared Native Communal Reserve in the Melikin Land District. Out of these 121 parcels, 26 parcels of land were reserved for the Ibans of Kampong Lebor (ie the plaintiffs) for kampung and agriculture purposes and as burial sites. Accordingly, the 3rd defendant contended that the plaintiffs' rights over the land were confined to those 26 parcels of land only;
d) the land on both sides of the Sungei Tampoi and on the right hand side of Jalan Gedong was virgin jungle in 1978, and the land on both sides of the river were issued with Forests Timber Licence No T/5102 and T/5108 granted to Syarikat Eastern Sawmill Sdn Bhd and Nawi Sulaiman & Yusof Sheikh Mutu respectively. Further, under s 38 of the Sarawak Land Code , all lands within 66 feet of the banks of all navigable rivers
