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2007 MarsdenLR 1573
FEDERAL COURT, PUTRAJAYA
ARIFIN ZAKARIA, FCJ
SUPERINTENDENT OF LAND & SURVEYS MIRI DIVISION & ANOR – Appellant
Versus
MADELI SALLEH – Respondent
CIVIL APPEAL NO: 01-1-2006 (Q)
State-mandated land reservations for industrial or public purposes do not automatically extinguish pre-existing native customary rights. Such rights survive unless specifically terminated by clear, unambiguous legislative act, and possession is maintained through exercise of control rather than solely through continuous physical presence.
Headnote:(A) Land Law - Native Customary Rights - Whether pre-existing rights are extinguished or resumed by state reservation orders - Principles of statutory interpretation regarding property rights - Courts assume that the sovereign intends that property rights of the inhabitants be fully respected unless intention to extinguish is expressed in clear and unambiguous terms. (Paras 18, 34, 35)
(B) Appellate Practice - Issue estoppel - Whether a jurisdictional challenge to the granting of leave to appeal can be re-opened by the appellate panel - Once leave has been granted and the panel constituted, the issue should generally be treated as res judicata unless it concerns a fundamental lack of jurisdiction that was not addressed at the leave stage. (Paras 1, 2)
(C) Land Law - Occupation - Nature of possession - Whether physical presence is required to sustain rights - Actual physical presence need not be equated with occupation; sufficiency of control and intent to maintain claims over land suffices to prevent the loss of rights through abandonment. (Paras 29)
Facts of the case:
The respondent sought declarations that he held native customary rights over a parcel of land, asserting long and continuous occupation through cultivation. The relevant authority had gazetted the land for a public purpose without compensation. The claimant contended his rights existed prior to a specific government order that had reserved the territory for industrial operations. The lower court dismissed the claim, but the appellate court reversed this, citing failure to recognize pre-existing customary rights that were not explicitly extinguished by subsequent statutory instruments.
Findings of Court:
The court determined that historical orders reserving land for specific industrial purposes did not automatically extinguish pre-existing native customary rights. Such rights survive unless there is express, unambiguous legislative language to the contrary. Mere administrative reservations do not constitute a full transfer of beneficial ownership that would nullify existing usufructuary interests held by native inhabitants.
Issues: Whether native customary rights are extinguished by administrative orders reserving land for specialized industrial use, and whether physical occupancy is a mandatory prerequisite for maintaining such customary land claims.
Ratio Decidendi: The court affirmed that common law recognizes the pre-existence of native customary rights and mandates that these be respected by the state. Legislative or administrative acts do not have retrospective effect to impair existing property entitlements without clear, unambiguous language. Occupation is defined by the ability to exercise control rather than continuous physical presence, ensuring that customary interests in land are protected against encroachment unless legally extinguished via compensation or explicit statutory authority.
Result: Appeal dismissed. Case remitted to the lower court for assessment of damages.
JUDGMENT
Arifin Zakaria FCJ:
Preliminary Objection
[1] By notice dated 2 November 2006, the learned counsel for the respondent gave notice of preliminary objection that leave to appeal ought not to have been given in respect of questions (i) to (vi), or alternatively, this court should decline to answer these questions because they do not fall within the ambit of s. 96(a), Courts of Judicature Act 1964 (CJA) on the grounds stated in the notice. In this regard we are in agreement with the view expressed by Abdul Hamid Mohamad, JCA (as he then was) in Raphael Pura v. Insas Bhd & Ors [2003] 1 CLJ 61 where in delivering the majority judgment he stated at p. 96.
The first question that arises from this submission is whether, the leave having been granted by this court and now that this court (this panel) is constituted to hear the appeal, this court (this panel) should allow the respondents to re-open the issue whether the leave should have been granted or not.
Generally speaking, it should not. The issue has been decided by this court. It is res judicata. A party should not be given a second bite of the cherry. A new panel of this court should not be reversing the decision of the earlier panel of the same court. There should be consistency in the judgment of the court.
However, where the granting of the leave is challenged on the ground of lack of jurisdiction, this court has held that the granting of the leave to appeal to this court may still be challenged even at the hearing of the appeal.
[2] We are of the considered view that the issue of jurisdiction has been sufficiently dealt with by this court at the leave stage, therefore, we do not propose to revisit the issue. For those reasons we dismissed the preliminary objection with costs. We then proceeded to hear the appeal proper and having heard arguments of both parties we adjourned the matter for our consideration and decision. We now give our decision and the reasons for the same.
The Claim
[3] The respondent (plaintiff in the court below), Salleh bin Kilong, brought this action seeking declarations, inter alia, that the respondent was at all material times a licensee under native customary rights of all that parcel of land situate at Miri/Pujut Road, measuring approximately 6.00 acres in area, and forming part of Lot 660 Block 8 Miri Concession Land District, (the said land); and that the act of the appellants (defendants in the court below) to declare the said land as a park and later develope it into a school constitutes a wrongful interference with the respondent's enjoyments of his native customary rights. Salleh bin Kilong had passed away before the appeal was heard by the Court of Appeal and had been substituted by his son, Madeli bin Salleh, who is also the administrator of his estate.
[4] The respondent's pleaded case is as follows: For many years prior to 1 January 1958, his father and later himself had acquired and exercised native customary rights over the said land by clearing, occupying and planting rubber trees and later fruit trees. Thus the respondent's claim is rooted on long and continuous occupation of the said land. The second appellant by Gazette notification dated 24 December 1982 declared the said land to be a Government reserve for the purpose of a park and later it was developed into a school. The respondent alleged that the said act of the second appellant without prior extinguishment of the respondent's native customary rights and payment of compensation was wrong in law and constituted wrongful interference with his rights and enjoyment of the said land.
[5] In their defence the appellants contended, inter alia, (a) that the respondent had not acquired native customary rights over the said land as the said land was an ex-Shell Concession Area and as such no customary rights is capable of being created thereon; (b) that following from (a) the extinguishment of the respondent's customary rights does not arise; (c) that the gazette notification of 24 December
