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2010 MarsdenLR 591
HIGH COURT BINTULU
JAYA ASAHAK – Appellant
Versus
MUNGGAU LAWAI & ORS (NO 2) – Respondent
[Suit No 22-01-2002 (Btu)]
Native Customary Rights in Sarawak prohibit new claims established after January 1, 1958, affirming existing ancestral rights without valid transfer mechanisms.
Headnote:(A) Native Customary Rights - Sarawak Land Code - The Plaintiff claims ownership of a birdnest cave inherited from his ancestors. The Defendants assert similar rights, claiming discovery of the cave in 1995. The court emphasized the importance of evidentiary documentation and expert testimony to ascertain rightful ownership based on ancestral lineage and customary rights. The evidence indicated that the Plaintiff was threatened to relinquish his rights, making related legal agreements void. The 1st to 3rd Defendants failed to establish any legitimate claim to the cave or prove their allegations against the Plaintiff. (Paras 117 to 125)
(B) Jurisdiction of Native Courts - The court held that the Native Court's prior decision favoring the 2nd Defendant was invalid due to lack of jurisdiction under section 5 of the Sarawak Land Code, which prohibits claims to Native Customary Rights established after January 1, 1958. The High Court determined that declarations sought by the Plaintiff were well-founded and issued necessary orders for ownership recognition. (Paras 126 to 132)
Facts of the case:
The Plaintiff asserts rightful ownership through inheritance, while the Defendants allege rights based on a supposed discovery in 1995. The dispute revolves around the status of the birdnest cave named differently by the parties involved. (Para 95)
Findings of Court:
The court confirmed the Plaintiff's ownership of the cave based on ancestral ties and documentation. The Defendants' claims were unsupported and dismissed. (Paras 150 to 155)
Issues: The court addressed whether the Plaintiff’s ownership claims were legitimate and if the Defendants could establish their own rights to the cave per the Sarawak Land Code regulations. (Paras 97 to 100)
Ratio Decidendi: Legal rights and ownership over the cave were reinforced through expert testimonies, locality evidence, and documentation proving the Plaintiff's heritage. Effective rights could not be transferred or abandoned without proper authorization as per customary laws. (Paras 139 to 145)
Result: The Plaintiff's claims were upheld, and the Defendants were ordered to cease interference with the Plaintiff's rights to the cave. (Paras 162 to 165)
Introduction
The dispute between the Plaintiff and the 1st to 3rd Defendants is in respect of Native Customary Rights ("NCR") and ownership of a birdnest cave ('the disputed cave') situate on Bukit Lumut along the Bukit Lumut Range in Merirai - Kakus area in the District of Bintulu, Sarawak.
The Plaintiff called the disputed cave Lubang Berkat whilst the 1st to 3rd Defendants called it Lubang Peseilu. For the purpose of this judgment, I will refer to the cave as 'the disputed cave'.
Plaintiff said he inherited the disputed cave from his father and who in turn inherited it from his grandfather. In other words, the ownership and rights to the disputed cave was passed down to the Plaintiff from his ancestors.
However the Plaintiff alleged that the 1st to 3rd Defendants had unlawfully and by using threat of bodily harm and violence to Plaintiff have forced the Plaintiff to sign over the ownership and rights over the disputed cave to the 1st, 2nd and 3rd Defendants under two instruments that is the Deed of Assignment (Exhibit P33) and the Statutory Declaration (Exhibit P37).
Additionally the Plaintiff alleged that 1st to 3rd Defendants have by letter (Exhibit P60) wrongfully claim to have found the disputed cave in 1995 as being part of the Bendawa Cave Complex on the Bukit Lumut Range.
Therefore the Plaintiff claimed against the 1st to 3rd Defendants various declaration inter alia : (1) that the Plaintiff is entitled to enjoy Native Customary Rights ("the NCR") and or rights to extract or harvest edible birds' nests over or from the said "Birds' Nest Caves" including Lubang Bukit Lumut; (2) that the Plaintiff is the owner of the said "Birds' Nest Caves" and in particular 'Lubang Bukit Lumut' Ulu Sungai Melirai, Pandan, Bintulu; (3) that purported 'Pasar Peseilu' Cave has never been verified, accepted and or approved by the District Office as belonging to the 1st, 2nd and 3rd Defendants; (4) that the purported 'Pasar Peseilu' cave is in fact the Plaintiff's 'Lubang Bukit Lumut'; (5) that the 1st, 2nd, 3rd, 4th and 5th Defendants are precluded from impairing the Plaintiff's rights, licence and title in 'Lubang Bukit Lumut'; (6) that the said Deed dated 21.8.2001 (Exhibit P33) and the Letter dated 20.8.2001 (Exhibit P60) is illegal, void, unenforceable and or contrary to public policy; (7) that Licence To Collect/Sell Edible Birds' Nests No BC 0750 issued by the 4th Defendant to the 1st, 2nd and 3rd Defendants to the extent of covering or adding 'Pasar Peseilu' cave is illegal, void and or improper; (8) damages.
In their defence the 1st to 3rd Defendants, contended that they have NCR over the disputed cave. 1st to 3rd Defendants alleged that the disputed cave is part of Bendawa Cave Complex to which they have NCR and rights to collect birdnests. The 1st to 3rd Defendants also alleged that they discovered the disputed cave by accident in 1995 as they travelled far inside the Bendawa Cave Complex. The 1st to 3rd Defendants contended that they had written to the District Officer of Tatau/Bintulu a letter (Exhibit P60) informing the latter about the discovery.
Additionally, the 1st to 3rd Defendants contended that the Plaintiff has vide the Deed (Exhibit P33) and the Statutory Declaration (Exhibit P37) relinquished his rights over the disputed cave to the 1st to 3rd Defendants.
Therefore, the 1st to 3rd Defendants have also filed a counterclaim against the Plaintiff seeking similar declarations as sought by the Plaintiff on the ownership and rights over the disputed cave. The 1st to 3rd Defendants also claimed damages for trespass and assault.
The Plaintiff's claim against the 4th and 5th Defendants is premised on the Plaintiff's contention that the 4th and 5th Defendants have wrongfully refused to issue birdnest's licence to the Plaintiff to collect birdnests from the disputed cave because of the disputes between the Plaintiff and the 1st to 3rd Defendants.
At this juncture, it is necessary to note that in a parallel development the 2nd De
