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2021 MarsdenLR 1071
HIGH COURT (BINTULU)
JOHN KO WAI SENG JC
SUIT NO 21–02 OF 2011 (BTU)
26 July 2012
See Chee How (Baru Bian) for the plaintiff.
Leonard Shim (Reddi & Co Advocates) for the first defendant.
Joseph Chioh (SAG) for the second and third defendants.
Leonard Shim (Reddi & Co Advocates) for the first defendant.
Joseph Chioh (SAG) for the second and third defendants.
Native customary rights cannot be extinguished by provisional leases, as the leases are subject to existing claims, and plaintiffs' actions were barred due to res judicata but remain maintainable under specific procedural grounds.
Headnote:(A) Native Customary Rights - Issue of res judicata and issue estoppel - Provisional lease holder's claims on land against native customary rights - Court ruled plaintiffs' actions were barred by res judicata and issue estoppel due to earlier possession orders, leading to strike out of action against the first defendant - Court emphasized that while the initial action of the first defendant stifled opportunity for plaintiffs to contest their customary rights, the later inability to appeal the decision resulted in a loss of rights to seek recourse (Paras 1, 5, 6, 28, 54-57).
(B) Time Limitation - Limitation did not begin with issuance of provisional lease, as that did not constitute wrongdoing against plaintiffs’ customary rights; action maintainable since substantial issues arose from the NCR claims (Paras 56-78).
(C) Provisional Lease - Legal effects recognized as not extinguishing native rights; provisional lease subject to pre-existing claims of native customary rights (Paras 84-90).
(D) Proper Procedure - Judicial review not required; plaintiffs' claims maintainable under writ action (Paras 93-102).
| Table of Content |
|---|
| 1. the legal procedures and applications regarding ownership. (Para 19 , 20 , 21 , 22 , 23 , 24) |
| 2. understanding res judicata and its implications. (Para 28 , 29 , 30 , 31 , 32) |
| 3. possession order's effectiveness and its implications on claims. (Para 40 , 41 , 42 , 47 , 48) |
| 4. legal nature of provisional lease and native customary rights. (Para 56 , 61 , 66 , 69 , 74) |
| 5. final ruling on the claims and costs awarded. (Para 102 , 103) |
John Ko Wai Seng JC:
RULING BACKGROUND
Action
The plaintiffs filed the writ and statement of claim herein dated 20 January 2010 as Kuching High Court Suit No 22–23–2010-II and it was subsequently transferred to become Bintulu High Court Suit No 21–02–2011 (BTU).
The first defendant is the registered proprietor of the provisional lease (‘provisional lease’) for that parcel of land containing an area of 650 hectares, more or less and described as Lot 16 Block 3 Sangan Land District (‘Lot 16’).
The plaintiffs bring this action on behalf of themselves and all other occupiers, holders and claimants of native customary right (‘NCR’) land at Sungai Sekabai, Sungai Tajem, Tatau, Bintulu, Sarawak (‘NCR land’) in which Lot 16 is located against the first defendant as the registered owner of Lot 16 and the second and third defendants for issuing title over Lot 16 to the first defendant.
From the plaintiffs’ statement of claim the extracts of the relevant orders and reliefs the plaintiffs sought against the first defendant are:
(a)a declaration order that the plaintiffs had created and/or acquired and/or inherited native title and/or Native Customary Rights (NCR) over the area as claimed by the plaintiffs respectively referred to and/or edged in red marked in the locality map marked as ‘M’ and annexed hereto herein;
(b)a declaration order that this native title and/or rights preclude the first defendant from impairing and/or abridging the plaintiffs’ said native title and/or NCR;
(c)a declaration that the acts of the second and/or third defendants in issuing the said provisional leases, Lot 15–16 Block 3, Sangan Land District, (‘the said provisional leases’) in so far as it impairs the plaintiffs’ NCR over the said NCR land, is wrong bad and/or void;
(d)a declaration order that the issuance of the said provisional leases to the first defendant in as far as the extent of that area under the said provisional leases overlaps and/or covers the plaintiffs’ NCR land is unlawful, improper, unconstitutional and therefore null and void, for want of extinguishment of the plaintiffs’ NCR over the said land;
(e)alternatively, a declaration that the issuance of the said provisional leases was subject to the native title and/or native customary rights and/or usufructuary rights of the plaintiffs in or over the said NCR land and that the said provisional lease do not affect the plaintiffs’ said title and/or rights there;
(f)…
(g)a declaration order that the area so included in the said provisional leases as claimed by the plaintiffs as part of their NCR land, the same be excised out of the area of land under the said provisional leases;
(h)a prohibitory injunction restraining the first defendant and/or their employees, servants and/or agents from trespassing, clearing, using or occupying and commencing their development project on the plaintiffs’ said NCR land;
(i)alternatively, a mandatory injunction against the first defendant and/or its employees, servants and/or agents to cease operations and remove all structures and their equipments or machineries from the plaintiffs’ said NCR land forthwith;
(j)a declaration that the said order dated 20 November 2009 is not binding and/or have no effect on the plaintiffs;
(k)a declaration order that demolition of the plaintiffs houses and/or farm houses is unlawful and illegal;
(l)damages to be assessed by the registrar;
(m)costs of this action; and
(n)any further order or relief deems fit and proper by this Honourable court.
Undisputed facts of the case
The plaintiffs in this action had comme
