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2021 MarsdenLR 2283
FEDERAL COURT (PUTRAJAYA)
ROHANA YUSUF, J, MOHD ZAWAWI SALLEH, CJ, ABDUL RAHMAN, J
Douglas Ding Jangan & Ors – Plaintiff
Versus
Kerajaan Negeri Sarawak & Ors – Defendant
CIVIL APPEAL NO 01(f)-42-11 OF 2018(Q)
A cross-appeal cannot set aside a substantive finding of fact made by the High Court without a legitimate appeal; the court must adhere to established rules governing jurisdiction and appeals.
Headnote:(A) Courts of Judicature Act 1964 - Sections 67 and 69 - Rules of the Court of Appeal 1994 - Rule 5 and Rule 8 - Jurisdictional challenge - Court of Appeal acted outside jurisdiction in setting aside High Court’s decision regarding plaintiffs' communal native customary rights (NCR) - Decision favored plaintiffs regarding land clearly marked in community maps as their ancestral land - Cross-appeals by respondents were deemed incompetent as they sought to reverse a decision not appealed against. (Paras 1, 2, 38, 52)
(B) Cross-appeals - Distinction between appeal and cross-appeal - A cross-appeal cannot reverse a substantive finding of fact by way of notice under Rule 8; separate notice of appeal necessary for such action. (Paras 31, 50)
Facts of the case:
The appellants claimed NCR over specific patches of land, winning partial favor in High Court, leading to cross-appeals by respondents against the favorable ruling regarding NCR, despite no appeal against that ruling.
Findings of Court:
Court of Appeal exceeded jurisdiction by reversing High Court's acknowledgment of NCR based on unchallenged findings.
Issues: Whether Court of Appeal could set aside High Court’s decision not subject to appeal; connections of cross-appeals to appellants' appeal.
Ratio Decidendi: The High Court’s ruling on NCR rights was undisputed and unchallenged, thus any reversal required a legitimate appeal rather than a cross-appeal.
Result: Appeal allowed; Court of Appeal’s order set aside and High Court’s decision restored.
[1]This appeal is against the decision of the Court of Appeal allowing the cross-appeals by the 1st to 5th respondents and setting aside the whole of the decision of the High Court which favoured the appellants. The cross- appeals by the 6th to 8th respondents, who were interveners in the Court of Appeal but who were not parties to the High Court action, were also allowed by the Court of Appeal.
[2]The appellants obtained leave on 24.10.2018 for the determination of the following question of law:
“Whether the Court of Appeal acted within its jurisdiction when it set aside the whole of the order or decision of the High Court, including that part which decided that “the Plaintiffs have acquired and/or created communal native customary rights over the said land and are still the lawful proprietors of the same for the specific patches of cleared areas labeled as No. 4, 5, 9, 16, 25, 36, 37, 38 and 39 in exhibit D80 and the cleared area labeled as No. 27 in exhibit D81” and which is not appealed against, in determining the cross appeals brought by the defendants and the interveners?”
[3]It is a jurisdictional challenge over the decision of the Court of Appeal to set aside the decision of the High Court on cross-appeals by the respondents/interveners although no appeal pursuant to rule 5 of the Rules of the Court of Appeal 1994 (“the RCA”) was filed by the 1st to 5th respondents against the decision of the High Court to allow paragraph 25(i) of the statement of claim.
[4]The facts as set out by the appellants, with the necessary modifications, are largely undisputed and they are as follows. In the High Court action, the appellants pleaded that since time immemorial, their ancestors, descendants and themselves have been occupying and practising native customary rights over the native customary rights (NCR) land which is known as “tana’ daleh” in their dialect. They claimed NCR over the whole area of land edged in red ink in three community maps marked at the trial as exhibits P27, P28 and P29.
[5]The appellants claimed encroachment and trespass on their NCR land by both the 4th respondent’s licence for planted forest No. LPF/0013 and the 5th respondent’s provisional lease, Lot 10 Punan Land District, which were issued by the 2nd and 3rd respondents respectively as agents of the 1st respondent. The 1st to 5th respondents contested the appellants’ claim.
[6]The appellants’ claim against the 1st to 5th respondents was tried over a period of 22 days with witnesses called and examined. On 8.8.2014, the learned trial judge decided partially in favour of the appellants by allowing paragraph 25(i) of the statement of claim, which was for a declaration that the appellants have acquired and/or created NCR and are still the lawful proprietors of the specific patches of cleared land areas labeled as No. 4, 5, 9, 16, 25, 36, 37, 38 and 39 in exhibit D80 and the cleared area labeled as No. 27 in exhibit D81 (hereinafter referred to as “the cleared areas”), and consequential orders to give effect to the declaration.
[7]It was a decision that was adverse to the 1st to 5th respondents but they did not appeal against the decision to have it set aside. What they did was to purportedly apply for a variation of the decision by way of cross-appeal under rule 8 of the RCA after the appellants had filed an appeal against that part of the decision of the High Court that dismissed their claim for the balance of the land areas. The 1st to 5th respondents’ notices of cross-appeal were filed on 7.11.2014 (1st to 3rd respondents), 31.10.2014 (4th respondent), and 5.11.2014 (5th respondent).
[8]Except for paragraph 25(i), the rest of the prayers in paragraph 25 of the appellants’ statement of claim were dismissed by the High Court. We reproduce below the orders, inter alia, made by the High Court:
(1)that the appellants’ prayers in paragraph 25 of the statement of claim dated 18.8.2010 were dismissed except for prayer 25(i) declaring that the appellants have acquired and/o
