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2013 MarsdenLR 816
COURT OF APPEAL PUTRAJAYA
GOVERNMENT OF THE STATE OF SARAWAK – Appellant
Versus
LAH ANYIE & ORS – Respondent
[Civil Appeal No: Q-01-254-10]
Native customary rights cannot be established on land designated as state or reserved land unless properly authorized under law, hence claims contrary to this are not recognized.
Headnote:(A) Land Code (Sarawak Cap 81) - Sections 5, 10, and 209(1) - Native customary rights (NCR) claims in Sarawak - The plaintiffs sought declarations of NCR over specific land, which the defendants contested, arguing this infringed state land rights. The court noted that NCR could only be recognized if created according to laws prior to 1958. Section 5 prohibits recognition of NCR created after this date without a permit. (Paras 4-5, 11-16)
(B) Jurisdiction to change native customary law - While the court acknowledged the inquiry into customary rights and legitimate expectations, it emphasized the jurisdiction lies with the State Legislature. (Paras 19-22)
(C) Doctrine of legitimate expectation - The plaintiffs' claims were evaluated under the principle of legitimate expectation, but the inability to establish NCR under statutory provisions led to denial of rights. (Paras 20-23)
Facts of the case:
The plaintiffs alleged they acquired NCR in 1964, claiming approval from the local community and authorities to occupy the land. The trial judge found in their favor, but this was contested by the defendants.
Findings of Court:
The appeals were allowed as the learned judge erred in granting NCR over prohibited land without proper evidence of custom and authority as per statutory provisions.
Issues: The core issues included the existence and validity of NCR on the disputed land and whether legitimate expectations could grant rights where no legal foundation existed.
Ratio Decidendi: The court ruled that NCR cannot be transferred outside the community without legislative backing, thus affirming that plaintiffs lacked recognizable rights due to non-compliance with legal requirements for NCR acquisition.
Result: Appeals allowed, with costs awarded against the plaintiffs.
| Table of Content |
|---|
| 1. introduction to native customary rights appeals. (Para 1 , 2 , 3) |
| 2. argumentation on native customary rights and legitimate expectation. (Para 4 , 12 , 17 , 19) |
| 3. court's analysis on native customary rights. (Para 5 , 6 , 15 , 21) |
| 4. legal basis for determining native customary rights. (Para 7 , 14 , 22 , 23) |
| 5. principles on transfer of native customary rights. (Para 10) |
| 6. summary of arguments by plaintiffs and defendants. (Para 11 , 13) |
[1] Three appeals relating to native customary rights (NCR) in Sarawak came for hearing on 4 February 2013 and on the same day we allowed the appeals. My learned brother Abdul Wahab bin Patail JCA and sister Tengku Maimun binti Tuan Mat JCA have read the draft judgment and approved the same.
[2] The respondents/plaintiffs' action was to seek declarations to assert their NCR claims against the defendants. The learned trial judge found in favour of the plaintiffs' claim. Each and every defendant has filed a separate appeal and is represented by three firms of solicitors and or advocates. For easy reference the parties will be referred to as plaintiffs, 1st, 2nd and 3rd defendant as per the suit.
[3] The 3rd defendant, the Government of the State of Sarawak, has filed appeal No: Q-01-254-10 and the 2nd defendant has filed appeal No: Q-02-1373-2010 and the 1st defendant has filed appeal No: Q-02-1372-2010. All parties agree for the purpose of disposing all the three appeals, it will be sufficient to deal with the 3rd defendant's appeal and the plaintiffs have filed one submission to cover all the three appeals substantially responding to the 3rd defendant's submission.
[4] The learned State Legal Counsel Datuk JC Fong for the 3rd defendant in this appeal says:
(a) The declaration that the respondents/plaintiffs have native customary rights over the claimed area ought to be set aside;
(b) The consequential declarations that the issuance of the provisional leases by the appellants infringed or impaired their NCR and violates the Federal Constitution should be set aside;
(c) The award of damages premised upon the respondents having lawfully created or acquired NCR over the claimed area and that there was no extinguishment of their purported NCR, be set aside;
(d) In lieu thereof, there should be an order that the claimed area was State land and that neither do the respondents have any, nor any legitimate expectation to be granted, proprietary interests over the claimed area, that the respondents were in unlawful occupation of State Land under s 209(1) read with subsection (2) of the Land Code.
(e) Alternatively, for the reasons mentioned in para 6.2 the court ought not to, grant the declarations sought by the respondents.
[5] At the outset we must say that as from 1 January 1958 NCR may be created as set out in s 5 of Land Code (Sarawak Cap 81). The said s 5 reads as follows:
"5.(1) As from the 1st day of January, 1958, native customary rights may be created in accordance with the native customary law of the community or communities concerned by any of the methods specified in subsection (2), if a permit is obtained under s 10, upon Interior Area Land. Save as aforesaid, but without prejudice to the provisions hereinafter contained in respect of Native Communal Reserves and rights of way, no recognition shall be given to any native customary rights over any land in Sarawak created after the 1st day of January, 1958, and if the land is State land any person in occupation thereof shall be deemed to be in unlawful occupation of State land and s 209 shall apply thereto.
(2) The methods by which native customary rights may be acquired are:
(a) the felling of virgin jungle and the occupation of the land thereby cleared;
(b) the planting of land with fruit trees;
(c) the occupation or cultivation of land;
(d) the use of land for a burial ground or shrine; or
(e) the use of land of any class for right or way; or
(f) any other lawful method:
Provided that:
(i) Until a document of title has been issued in respec
