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2014 MarsdenLR 1196
HIGH COURT SABAH & SARAWAK LIMBANG
PITA ASUT – Appellant
Versus
PETRONAS CARIGALI SDN BHD & ORS – Respondent
[Civil Suit No: LMN-22-9-10-2012]
To establish native customary rights (NCR), claimants must prove continuous occupation and residence over the land, a requirement not met by the plaintiffs in this case.
Headnote:(A) Land Code (Sarawak) (Cap 81) - Sections 5(3), 5(4), 212 - Claim for compensation and recognition of native customary rights (NCR) over specific land for public purposes - The court examined the evidence presented by the plaintiff concerning ancestral land claims but found it lacking. (Paras 1-25)
(B) Customary land rights - Requires proof of continuous occupation and residence over claimed land - The absence of residence undermines the legitimacy of NCR claims. (Paras 7, 25)
Facts of the case:
The plaintiff claimed NCR over approximately 34,957.25 hectares at Sg Adang, Limbang, asserting ancestral ties and occupation, even though evidence suggested a lack of actual continuous occupation.
Findings of Court:
The court ruled that the plaintiff and the other owners did not provide sufficient evidence to prove their NCR claims for the land in question.
Issues: Whether the plaintiff successfully proved ancestral ownership or occupation of the land claimed.
Ratio Decidendi: The court concluded that the lack of actual residence and concrete evidence presented regarding ownership weakened the claim for NCR over the land, emphasizing the necessity of proving such rights through a continuous presence and occupation.
Result: The plaintiff's action was dismissed with costs.
| Table of Content |
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| 1. establishment of land code direction and ncr compensation process. (Para 1 , 2) |
| 2. claim submission and denial of ncr rights. (Para 3 , 4) |
[1] By The Land (Native Customary Rights) (No 45) 2008 Direction made under s 5(3) and (4) of the Land Code (Sarawak) (Cap 81) ("the Land Code"), which was published in the Sarawak Government Gazette vide Gazette Notification GN 1941 on 12 June 2008, all those areas of land situate at Sungai Adang, Limbang known as Plot A containing an area of approximately 55.6714 hectares as more particularly delineated on the Plans Print Nos LD/188/1133(109)C and edged in red were required for a public purpose, namely for Sabah-Sarawak Gas Pipeline. In consequence thereof, all native customary rights (NCR) over such land was subject to payment of compensation under s 5(3) of the Land Code.
[2] This Direction came into force on 29 April 2008. As from that date all NCR over the said land ceased to subsist and the land reverted back to the Government for the said public purpose. It was stated in para 5 of the gazette notification that any person having any lawful claim to NCR over the land or any part thereof and whose rights were affected by the Direction 'shall within sixty days' from the date of its publication submit his claim together with evidence in support thereof to the Superintendent of Land and Survey Department (L&S), Limbang in the form prescribed. The gazette was tendered as exh D4, the plan showing the pipeline passing Sg Adang was tendered as D5 and the publication of the Direction in the Borneo Post newspaper was tendered as P2.
[3] By a letter dated 26 June 2008 (exh P3), the plaintiff informed the Superintendent (the 3rd defendant) that they (his family and relatives) were the rightful owners of the land situated at Sg Adang, Limbang by virtue of their ancestral, birthright and adat ownership (NCR) and enclosed their claims with supporting documents for compensation for the extinguishment of the NCR land (see exhs P4, P5, P6, P7, P8, P9 and P10).
[4] By a letter dated 31 October 2008 the 3rd defendant informed the plaintiff that based on their investigation the plaintiff did not have NCR over Plot A at Sg Adang. The letter advised that if the plaintiff was not satisfied with the decision, the plaintiff was required to give notice within 21 days from the date of receipt of the decision to refer the matter to arbitration in accordance with s 212 of the Land Code.
