The court ruled that a registered title under the Sabah Land Ordinance prevails over claims of native customary rights that were not asserted properly within the required timeframe.

The Claim

[1] The plaintiff's claim is for possession of a piece of land known as CL035319558 situated at Kampong Ginapas, Rosok, Kota Belud Sabah ('the said land') which he inherited from his late mother Butang bt Banawas. The defendants who are his close relatives contended that he cannot inherit the said land alone as they have been in lawful occupation and possession of the said land under native customary rights and which rights were not extinguished by the issuance of the new title to the late Butang bt Banawas.

The Issue

[2] A number of issues were raised by the defendants but in my view the determinative issue is whether the plaintiff's beneficial interest over the said land can be defeated by the defendants' claim for native customary rights.

Background Facts

[3] The said land was previously issued with Title No CL035263159 in January 1961 in the name of the plaintiff's late father Gudul bin Sampit for a term of 21 years exclusively for the grazing of cattle. Upon expiry of the lease in 1982 the land reverted back to the state. The plaintiff's late mother then applied for renewal of the lease. Her application was supported by the Kota Belud Native Court which confirmed that being the widow of the late Gudul bin Sampit she was entitled to inherit the land. No objection was raised by any party to the application and so it was approved. A new Title No 035319558 was then issued in her name.

[4] After the demise of the late Butang bt Banawas on 30 November 2003 her son the plaintiff applied to the Kota Belud Native Court for the issuance of two Schedule 3 (Jadual 3) notices under the Administration of Native and Small Estates Ordinance 1941, the first for the purpose of administering the estate of his late mother and the second for the purpose of claiming inheritance. The operative part of the second Schedule 3 reads as follows:

HARTA TANAH CL 035319558 MILIK MENDIANG BUTANG BANAWAS KP 460510-12-5418 DIWARISKAN KEPADA ENSUI BIN GUDUL @ GODOL KP 720405-12-5967 SEORANG SAHAJA.

[5] It was the plaintiff's contention that the second Schedule 3 conferred inheritance rights on the plaintiff and that he not only became the administrator but also the beneficial owner of the said land.

Section 88 Of The Land Ordinance

[6] There can be no argument that since the said land is registered in the name of the plaintiff's late mother, the provisions of s 88 of the Sabah Land Ordinance ('the ') come into play. Section 88 of the provides as follows:

No new title and no dealing with, claim to or interest in any land except land still under native customary tenure without documentary title shall be valid until it has been registered in accordance with the provisions of this part.

[7] In Borneo Housing Mortgage Finance Bhd v. Time Engineering Bhd , [1996] 2 MLJ 12 Edgar Joseph Jr FCJ in delivering the judgment of the Court said:

However, s 88 which emphasises the paramount importance of registration in accordance with Part V of the Land Ordinance as a condition precedent for the recognition of the validity of title or dealing or claim to or interest in any land does imply the basic Torrens concept that title to or interest in land vests and divests only upon registration.

[8] The decision in Borneo Housing Mortgage Finance Bhd was relied upon by Linton Albert J in Ng Kon Yu v. Sakim bin Saiking & Ors, [2006] 3 MLJ 533. In that case the defendants in resisting the registered owner's application for possession under O 89 of the Rules of the High 1980 contended that they could not be dislodged from the land because they had a licence to remain indefinitely on the land or alternatively had acquired native customary rights over the same by virtue