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2021 MarsdenLR 2094
FEDERAL COURT (PUTRAJAYA)
ABANG ISKANDAR ABANG HASHIM, CJ, VERNON ONG LAM KIAT, J, ZABARIAH MOHD YUSOF, J, HASNAH MOHAMMED HASHIM, J, HARMINDAR SINGH DHALIWAL, J
Busing ak Jali & Ors – Plaintiff
Versus
Kerajaan Negeri Sarawak & Anor and other appeals – Defendant
CIVIL APPEAL NO 01(f)-31-10 OF 2019(Q), 02(f)-77-10 OF 2019(Q), 01(f)-32-10 OF 2019(Q), 01(i)-33-10 OF 2019(Q), 02(i)-79-10 OF 2019(Q) AND 02(f)-76-10 OF 2019(Q)
Statutory recognition of indigenous customs through legislative amendments alters the legal landscape for native customary rights, mandating a reevaluation of prior judicial decisions.
Headnote:(A) Sarawak Land Code - Sections 5 and 6A - Indigenous customary rights - Legal recognition of customs of Pemakai Menoa and Pulau Galau through 2018 amendments - Court affirms that practices have statutory force since 1 August 2019 - Appeals concern interpretation of earlier decisions regarding native customary rights (NCR) and the issue of indefeasibility of titles. (Paras 3, 71, 156, 172)
(B) Court of Appeal decisions - Jurisdiction and authority to review earlier rulings - Statute may alter legal foundation of prior judgments, resulting in their unenforceability. (Paras 1, 140)
(C) Indefeasibility of title- Statutory interventions do not retrospectively nullify individuals' rights but provide a framework for validating community rights. (Paras 90, 132)
Facts of the case:
The court reviewed six appeals involving arrangements over native customary land disputes and the legal standing of related practices under Malaysian law. The court assessed prior findings against newer statutory provisions recognizing these indigenous rights (Para 30-32).
Findings of Court:
The court concluded that community rights, particularly those of Pemakai Menoa and Pulau Galau, gained legal validity through the 2018 amendments, necessitating the recalibration of previous judicial decisions. (Paras 169, 172)
Issues: The appeals concerned the need to review earlier findings on native rights and the implications of the 2018 legislative amendments on previously determined cases. (Paras 30-34)
Ratio Decidendi: The decision establishes that statutory recognition of customs alters the judicial landscape significantly, affirming the collective rights of indigenous communities over individual claims and redefining the application of prior federal judicial precedents. (Paras 155-157)
Result: Appeals dismissed in Case A; remanded for fact-finding in Case B; affirmed findings in Case D; ordered reevaluation in Case C.
| Table of Content |
|---|
| 1. court's decision process overview (Para 1 , 2 , 3) |
| 2. factual background of case a (Para 4 , 5 , 6) |
| 3. court of appeal's ruling on ncr (Para 7 , 8) |
| 4. legal questions raised by parties (Para 9 , 30) |
| 5. observations on pemakai menoa and pulau galau (Para 40 , 41) |
| 6. statutory recognition of customs (Para 65 , 70) |
| 7. final orders regarding appeals (Para 170 , 171) |
JUDGMENT
Introduction
[1]There are six appeals that were heard together despite there being different parties involved, except in two cases - Case A and Case C (which will be enumerated later) where the parties are the same. We heard oral submissions by all learned counsel representing the respectiveparties on 2 separate dates. At the end of those submissions, we stood down for the panel members to deliberate. Unfortunately, we were not able to come up with a decision on that day. We therefore indicated to all learned counsel that we needed a bit of time to consider the respective submissions and that they would be informed once a decision is reached pertaining to each of these appeals, in due course. We have now reached our decisions and what follow below are our deliberations of the issues raised and our reasons as to why we have so decided.
[2]My learned brothers Justices Vernon Ong Lam Kiat and Harmindar Singh Dhaliwal and my learned sisters Justice Zabariah Mohd Yusof and Justice Hasnah Mohammed Hashim had read this judgment in draft and they had indicated to me their agreement with it and that it becomes the judgment of this Court.
[3]Although there have been not a few issues raised in the questions that were posed before this Court for our considerations, we observed that there were some common issues that transcended most of the appeals. The main commonality in these cases has been the very subject matter of dispute - the native customary right (“NCR”) in Sarawak; and the questions of law for this Court’s determination - on matters relating to the Federal Court decisions in Director of Forest, Sarawak & Others v TR Sandah Anak Tabau & Others and Other Appeals (“TR Sandah 1”); TH Pelita Sadong Sdn Bhd & Ors v TR Nyutan Ak Jami & Orsand Another Appeal [2018] 1 MLJ 77(“TR Nyutan”); and the Court of Appeal decision in Superintendent of Lands & Surveys, Bintulu Division v Nor Ak Nyawai & Ors (“Nor Ak Nyawai) vis-a-vis the 2018 Amendments to the Sarawak Land Code (“ SLC ”).
[4]For clarity and better understanding of the issues in question, it is pertinent for us to provide a brief history of the facts of each case which finally culminated in the framing of the questions for the Court’s determination.
Brief background of the cases CASE A
[5]The question of law for this Court’s determination is framed in the following manner:
“Whether it is correct in law or proper for the Court of Appeal to set aside the trial judge’s finding of fact that the Plaintiffs have acquired and/or created individual or communal native customary rights over State land in Sarawak on the application as a matter of law of the decision in Director of Forest, Sarawak & Others v TR Sandah Anak Tabau &Others and Other Appeals ”
[6]In this case, the High Court Judge had, on 3 February 2014, decided upon a full trial that the Appellants had acquired and/or created individual or communal NCR over 1391.42 acres of land within the 4460.00 hectares more or less of the Provisional lease Lot 11 granted to Empire Plantation Sdn Bhd. In his judgment, the Judge was satisfied, on the balance of probabilities that the Appellants had proved the NCR of Pemakai Menoa and Pulau Galau over the said land. The aggrieved Defendants appealed against that decision.
[7]On appeal, the Court of Appeal reversed the decision of the High Court Judge and ruled that based on the decision of TR Sandah 1, the customary practices of Pemakai Menoa and Pulau Galau were not customs or usages having the force of law in the Sarawak State Laws as defined in Article 160(2) of the Federal Constitution.
[8]The Court of Appeal fu
