1. Appeal against High Court decision dismissing challenge to Director's order setting aside native customary rights claim. (Para 1 , 2 , 3 )
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2026 MarsdenLR 6013
COURT OF APPEAL (PUTRAJAYA)
WAN AHMAD FARID, CJ, SUPANG LIAN, J, MOHD FIRUZ, J
Edham bin Sakmad (as the administrator of the estate of Sakmad bin Hj Muhammad (deceased)) – Plaintiff
Versus
Kinsamewa Sdn Bhd & Ors – Defendant
CIVIL APPEAL NO 2–01(A)-182–03 OF 2022
Advocates:
Kong Hong Ming (with Kelvin Wong) (Lee & Kong) for the appellant. Sa’adah Abdul Aziz (Lee & Aziz) for the first respondent. (Sabah State Attorney-General's Chambers) for the second and third respondents.
Kong Hong Ming (with Kelvin Wong) (Lee & Kong) for the appellant. Sa’adah Abdul Aziz (Lee & Aziz) for the first respondent. (Sabah State Attorney-General's Chambers) for the second and third respondents.
Customary tenure, once established by three years of occupation, is a permanent heritable right not requiring continuous use to persist. Abandonment requires explicit intent to relinquish, and failure to respond to improperly served statutory notices does not extinguish such rights.
Headnote:(A) Land Ordinance - Sections 15(a), 65, 66, 74, 88 and 88A(4)(c) - Customary tenure is established by lawful possession of land through continuous occupation or cultivation for three or more consecutive years (Para 31). Once created, it confers a permanent heritable and transferable right of use and occupancy (Para 36). No further continuous occupation or cultivation is required to maintain the validity of the tenure once it has been established (Para 30). Such rights are recognized as a valid interest in land that continues to subsist unless extinguished in accordance with law (Paras 40-42).
(B) Abandonment of Land - Mere non-user of land does not amount to abandonment; there must be clear and unequivocal conduct demonstrating an intention to permanently relinquish the right (Para 46). Actual physical presence is not necessary for occupation if there is a sufficient measure of control to prevent strangers from interfering (Para 47). Actively pursuing the issuance of a land title and objecting to unauthorized surveys constitute acts of dominance and control that negate a finding of abandonment (Paras 52-56).
(C) Land Rules 1930 - Rule 8 - Service of notices issued under the Land Ordinance must be effected through the prescribed lawful modes of service. Posting a notice on a land office notice board is not a permitted mode of service under the rules (Paras 61-62). Invalid service of a notice calling for claims to native customary rights cannot result in the presumption that no such rights exist, nor can it extinguish a permanent and valid customary tenure (Paras 64-66).
(D) Land Ordinance - Section 41(1)(d) - The statutory bar on appeals from decisions of the Director under Section 9 applies to decisions concerning the alienation of state land. It does not apply to bar an appeal against a decision dismissing a claim for native customary rights (Paras 69-72).
Facts of the case:
The deceased had cleared and occupied state land for cattle farming for over three decades and had applied for a lease. Following the deceased's death, the administrator of the estate continued to pursue the issuance of the land title. A third party subsequently applied for a larger tract of land that overlapped with the area claimed by the deceased. While the land authority initially recognized the native customary rights (NCR) and customary tenure of the deceased as having devolved to the administrator, this decision was later set aside on the grounds that the rights were extinguished due to the administrator's failure to continuously occupy the land. The lower court upheld this decision, finding the land abandoned and the appeal incompetent due to a statutory bar on appeals from the Director.
Findings of Court:
The court found that the lower court erred in requiring continuous occupation to maintain a customary tenure already established by the deceased. It was held that the administrator had not abandoned the land, as he had evinced dominance and control by objecting to the first respondent's surveys and persistently pursuing the title issuance. Additionally, the notice issued to call for NCR claims was invalid for non-compliance with prescribed service rules, and the statutory bar under Section 41(1)(d) did not apply to the nature of the appeal.
Issues: Whether failure to continuously occupy or cultivate land after the creation of customary tenure extinguishes that tenure; whether non-occupation constitutes abandonment; whether failure to respond to an improperly served statutory notice extinguishes NCR; and whether the appeal was incompetent under the statutory bar for alienation decisions.
Ratio Decidendi: The threshold requirement of continuous occupation for three years under the law is for the creation of customary tenure, not its maintenance. Once established, it is a permanent heritable right. Abandonment requires a demonstrated intention to relinquish the right, which is contradicted by acts of dominance such as legal objections and administrative persistence. Furthermore, statutory notices must be served according to law to have legal effect; a failure to respond to an invalidly served notice cannot extinguish a vested property right.
Result: Appeal allowed; decision of the lower court set aside; declaration that the customary tenure devolved upon the administrator.
Legal Category Hierarchy
-
property law
-
native customary rights
- customary tenure
- alienation of state land
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native customary rights
- practice and procedure
Table of Contents
2. Whether customary tenure requires continuous occupation to remain valid, and whether NCR is extinguished by abandonment or failure to claim. (Para 23 , 24 , 25 , 26 )
3. Customary tenure under s.65 is a permanent heritable right; s.65 does not require continuous occupation for its subsistence. (Para 29 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 )
4. Customary tenure acquired under s.65 is a permanent heritable right; no further continuous occupation is required for its validity. (Para 31 , 37 , 38 , 40 )
5. Appeal allowed; High Court decision set aside; declaration that appellant is entitled to customary tenure and title. (Para 73 , 74 )
6. Does customary tenure under s.65 of the Land Ordinance require continuous occupation or cultivation for its continued validity?
No. The threshold requirement is continuous occupation for three or more consecutive years to create tenure; no further requirement exists. (Para 29 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 )
7. Is customary tenure acquired under s.65 heritable and transferable under s.66 of the Land Ordinance?
Yes. Section 66 confers a permanent heritable and transferable right of use and occupancy, which passes by operation of law. (Para 36 , 37 , 38 , 42 )
8. What constitutes abandonment of native customary rights in land under the Land Ordinance?
Mere non-user without clear and unequivocal conduct demonstrating intention to permanently relinquish the right does not amount to abandonment. (Para 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 )
9. Does failure to file a claim under s.13 of the Land Ordinance upon a s.13 notice extinguish native customary rights?
No. A s.13 notice not served according to statutory service rules under r.8 is invalid; further, established NCR cannot be extinguished by notice alone. (Para 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66 )
10. Is a decision on native customary rights appealable under s.41(1)(d) of the Land Ordinance?
Yes. Section 41(1)(d) bars appeals from decisions under s.9 on alienation, not from decisions on NCR claims under ss.12-16. (Para 69 , 70 , 71 , 72 )
Supang Lian JCA
:INTRODUCTION
[1]The appellant, Edham bin Sakmad, as the administrator of the estate of his late father, Sakmad bin Hj Muhammad (‘the deceased’), brought this appeal against the decision of the High Court which had dismissed his Originating Summons No BK1-24–84/9 of 2020 (‘OS 24–84/9’) dated 7 September 2020.
[2]The OS 24–84/9 sought to set aside the decision of the second respondent (Director of Lands and Surveys, Sabah (‘the director’)) dated 13 August 2020, which had in turn: (a) set aside the decision of the third respondent (Assistant Collector of Land Revenues Kota Belud (‘ACLR’)) on 17 April 2018, which held that the appellant was entitled to an area of 150 acres as claimed by the deceased; and (b) directed the process of alienation of the land, as offered to and accepted by Kinsamewa Sdn Bhd (the first respondent or ‘Kinsamewa’), to proceed with the issuance of title.
[3]We heard the appeal on 15 July 2025. A draft of this judgment had been forwarded to the Right Honourable Wan Ahmad Farid bin Wan Salleh Chief Justice and the Honourable Mohd Firuz bin Jaffril JCA and Their Lordships had expressed their agreement with the draft. Our unanimous judgment is set out below.
BACKGROUND
[4]The background to this appeal is obtained from the appeal record, the grounds of judgment (‘GOJ’) of the High Court and the submissions of the parties, both oral and written.
[5]At all material times, the appellant was acting as the administrator of the estate of his late father Hj Sakmad bin Hj Muhammad (‘the deceased’). In 1958, the deceased applied to the ACLR under Land Application No 224 of 1958 for 150 acres of state land at Kg Rampayan, Kota Belud (‘the land’/‘the land in question’) for cattle farming, to be held under a country lease. Indeed, the deceased had entered and cleared the land before 1958 for cattle farming and put up timber posts and barbwire to fence the grazing land. He occupied the land for that purpose until he passed away on 26 November 1993.
[6]The Department of Lands and Surveys had carried out survey along the fenced boundary of the land in 1972 which was re-surveyed in 1986 and 2002. Nevertheless, despite the completion of the survey, no offer to alienate the state land was issued to the deceased and no grant of the land applied for was ever made to him.
[7]The appellant had continued his efforts in obtaining the issuance of the land title for the land following the demise of the deceased. Based on the official records (at pp 21–31 and 47–49 of the core bundle encl 71), the ACLR and the director were aware of the deceased’s occupation and use of the land and the pending issuance of the land title. In May 2008, approximately 16 years later, the appellant obtained an order from the Mahkamah Rendah Syariah, whereby he was appointed as the administrator of the estate of the deceased.
[8]On 4 February 2009, the director approved the deceased’s land application and recommended to the Setiausaha Hasil Bumi for the issuance of the land title to the land in favor of the deceased.
[9]Whilst the issuance of the land title to the deceased for the land was still pending, Kinsamewa (the first respondent) applied on 20 October 2009 for 720 acres of land in PT 2009031305 in Kg Rampayang. Part of the area of land applied for by the first defendant overlapped with the land applied for by the deceased.
[10]Pursuant to the first defendant’s application, notice under s 13 of the Land Ordinance (Cap 68) (‘the Land Ordinance’ or ‘the Ordinance’ or ‘the Land Ordinance 1930’) was issued. Subsequently, a letter to alienate land dated 22 January 2014 was issued by the Director of the Lands and Surveys to the first defendant under s 9 of the Ordinance for the land applied for, the exact boundaries to be determined by the district surveyor after the survey was duly carried out. The first defendant accepted the offer.
[11]The appellant became aware of the first defendant’s application. It is common ground that in March 2014, the appellant
