Back
2010 MarsdenLR 1629
Jaya bin Asahak – Plaintiff
Versus
Munggau ak Lawai & Ors – Defendant
Native Customary Rights over caves must predate 1 January 1958 to be valid; rights are inherited and cannot be transferred outside family lineage.
Headnote:(A) Sarawak Land Code - Native Courts Ordinance 1992 - Establishment of Native Customary Rights (NCR) - The plaintiff claimed ownership and rights to collect birds’ nests from several caves, including the disputed 'Lubang Bukit Lumut', alleging the defendants forced him to relinquish these rights through threats. The defendants counterclaimed, asserting their own rights. The court emphasized the necessity of pre-1958 establishment of NCR for valid claims, underscoring that rights are inherited and not transferable beyond family lineage. The plaintiff successfully demonstrated inheritance and customary rights through historic documents and testimonies. (Paras 1, 5, 273, 274)
(B) Customary Rights - Jurisdiction of Courts - The court accepted its jurisdiction to address declarations sought regarding ownership, dismissing the defendants' claims as unsupported by credible evidence. Issues included the legitimacy of documents signed under duress, the incorrect assertion of discoveries made after 1995, and the failure of the defendants to establish ancestral rights. The Native Court’s decision favoring the sixth defendant was declared void, reaffirming the plaintiff’s rights. (Paras 136, 142, 170-275)
(C) Result - The plaintiff’s claims granted; declarations of ownership, rights to collect nests validated, and proprietary rights restored against the defendants who failed to provide substantiated evidence for their claims.
| Table of Content |
|---|
| 1. judgment affirms plaintiff's ownership rights. (Para 273 , 274 , 275) |
Abdul Aziz Abdul Rahim J
INTRODUCTION
The dispute between the plaintiff and the first to third defendants is in respect of native customary rights (‘NCR’) and ownership of a bird’s nest cave (‘the disputed cave’) situate on Bukit Lumut along the Bukit Lumut range in Merirai-Kakus area in the District of Bintulu, Sarawak.
The plaintiff called the disputed cave Lubang Berkat whilst the first to third defendants called it Lubang Peseilu. For the purpose of this judgment, I will refer to the cave as ‘the disputed cave’.
The plaintiff said he inherited the disputed cave from his father and who in turn inherited it from his grandfather. In other words, the ownership and rights to the disputed cave was passed down to the plaintiff from his ancestors.
However the plaintiff alleged that the first to third defendants had unlawfully and by using threat of bodily harm and violence to the plaintiff have forced the plaintiff to sign over the ownership and rights over the disputed cave to the first, second and third defendants under two instruments that is the deed of assignment (exh P33) and the statutory declaration (exh P37).
Additionally the plaintiff alleged that the first to third defendants have by letter (exh P60) wrongfully claim to have found the disputed cave in 1995 as being part of the Bendawa caves complex on the Bukit Lumut range.
Therefore the plaintiff claimed against the first to third defendants various declaration, inter alia:
(a)that the plaintiff is entitled to enjoy the NCR and/or rights to extract or harvest edible birds’ nests over or from the said ‘bird’s nest caves’ including Lubang Bukit Lumut;
(b)that the plaintiff is the owner of the said ‘bird’s nest caves’ and in particular ‘Lubang Bukit Lumut’ Ulu Sungai Melirai, Pandan, Bintulu;
(c)that purported ‘Pasar Peseilu’ cave has never been verified, accepted and or approved by the district office as belonging to the first, second and third defendants;
(d)that the purported ‘Pasar Peseilu’ cave is in fact the plaintiff’s ‘Lubang Bukit Lumut’;
(e)that the first, second, third, fourth and fifth defendants are precluded from impairing the plaintiff’s rights, licence and title in ‘Lubang Bukit Lumut’;
(f)that the said deed dated 21 August 2001 (exh P33) and the letter dated 20 August 2001 (exh P60) is illegal, void, unenforceable and or contrary to public policy;
(g)that licence to collect/sell edible birds’ nests No BC 0750 issued by the fourth defendant to the first, second and third defendants to the extent of covering or adding ‘Pasar Peseilu’ cave is illegal, void and or improper; and
(h)damages.
In their defence the first to third defendants, contended that they have NCR over the disputed cave. The first to third defendants alleged that the disputed cave is part of Bendawa caves complex to which they have NCR and rights to collect birds’ nests. The first to third defendants also alleged that they discovered the disputed cave by accident in 1995 as they travelled far inside the Bendawa caves complex. The first to third defendants contended that they had written to the District Officer of Tatau/Bintulu a letter (exh P60) informing the latter about the discovery.
Additionally, the first to third defendants contended that the plaintiff has vide the deed (exh P33) and the statutory declaration (exh P37) relinquished his rights over the disputed cave to the first to third defendants.
Therefore, the first to third defendants have also filed a counterclaim against the plaintiff seeking similar declarations as sought by the plaintiff on the ownership and rights over the disputed cave. The first to third defendants also claimed damages for trespass and assault.
The plaintiff’s claim against the fourth and fifth defendants is premised on the plaintiff’s contention that the fourth and fifth defendants have at 233wrongfully refused to issue bird’s nest’s licence to the plaintiff to collect birds’ nests from t
