1. Claim for native customary rights over cultivated land cleared before 1958 under Sarawak Land Code. (Para 1 , 2 , 3 , 4 , 5 , 40 , 41 )
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2025 MarsdenLR 6991
COURT OF APPEAL, PUTRAJAYA
RAVINTHRAN PARAMAGURU, JCA
SU'OT TEBARI – Appellant
Versus
SUPERINTENDENT OF LAND AND SURVEY LIMBANG DIVISION & ORS AND OTHER APPEALS – Respondent
[CIVIL APPEAL NOS: Q-01(NCVC)(W)-654-11-2021, Q-01(NCVC)(W)-671-11-2021 & Q-01(NCVC)(W)-672-11-2021]
NCR claims based on oral history are unsustainable if contradicted by aerial photographic evidence of primary forest. State alienation extinguishes NCR, rendering the resulting title indefeasible, leaving the claimant entitled only to damages against the State.
Headnote:(A) Land Code (Cap 81) - Sections 2, 5, 10, 17, 93 to 96, 102, and 202 - Native Customary Rights (NCR) - Burden of proof - Evidence of cultivation - Aerial photographic evidence versus oral history - Settlement process - Limitation of action - Indefeasibility of title.
(B) Native Customary Rights (NCR) - While oral history, customs, and traditions are admissible to prove the creation of NCR, such evidence must be reliable, consistent, and persuasive. Where oral testimony asserting land cultivation prior to 1958 is directly contradicted by objective aerial photographic evidence showing the land remained primary forest during that period, the oral history is insufficient to establish NCR. (Paras 43, 46, 50)
(C) Alienation of land - Once land is alienated by the State, the indefeasibility of title prevails over pre-existing NCR. State alienation extinguishes the customary rights, and the claimant is not entitled to rectification of the land register but may only seek damages against the Government. (Para 85)
(D) Land settlement process - Settlement orders issued under the prescribed statutory procedure must be challenged through the appropriate appeal mechanism. A failure to appeal such orders, particularly when the party was aware of the settlement exercise and participated in it for other plots, renders subsequent claims barred by limitation. (Paras 80, 83)
Facts of the case:
A native claimant asserted NCR over four plots of land, alleging they were cleared and cultivated by his grandfather prior to 1941. One of the plots had been alienated via lease to a third-party entity. The state denied the claim, producing aerial photographs from 1948 and 1958 showing the land was mostly primary forest. Evidence was also presented that the claimant had participated in a land settlement exercise and received several other plots but did not claim the disputed lands at that time.
Findings of Court:
The claimant failed to prove NCR over the disputed lands. The oral history was contradicted by aerial photography, and the claimant's credibility was undermined by inconsistent testimonies regarding his knowledge of the settlement exercise. The claim was further held to be barred by limitation as the settlement orders from 1977 were never challenged.
Issues: Whether the claimant established NCR over the disputed lands; whether the claim was time-barred by limitation laws; and whether the titled interest of the third-party entity was indefeasible.
Ratio Decidendi: The court ruled that objective aerial photographic evidence of primary forest overrides oral history regarding the cultivation and occupation of land prior to 1958. Additionally, the failure to contest statutory settlement orders within the provided timeframe bars subsequent claims. Finally, the principle of indefeasibility of title ensures that state-alienated land overrides pre-existing NCR.
Result: Appeal of the plaintiff dismissed; appeals of the government and the third party allowed.
Legal Category Hierarchy
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property law
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native customary rights
- land code (sarawak)
- ncr creation
- ncr extinguishment
- limitation of actions
- practice and procedure
-
native customary rights
Table of Contents
2. Claimant asserted NCR by continuous cultivation since 1941; Government and developer disputed existence and validity. (Para 3 , 4 , 5 , 14 , 15 , 16 , 42 )
3. Oral history contradicted by 1948/1958 aerial photographs showing minimal clearing; plaintiff's credibility and evidence insufficient. (Para 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69 , 70 , 71 , 72 , 73 , 74 , 75 , 76 , 77 , 78 )
4. Natives can prove NCR through oral history but evidence must be reliable and uncorroborated. Contradictory expert evidence defeats claim. (Para 43 )
5. Plaintiff's appeal dismissed; Government and developer's appeals allowed with costs. NCR claim unproven. (Para 87 )
6. What is the standard of proof for establishing native customary rights over cultivated land?
Natives may rely on oral history and customs, but the evidence must be reliable, consistent, persuasive, and not contradicted by other evidence. (Para 43 )
7. Can aerial photographic evidence be used to disprove native customary rights claims?
Yes, historical aerial photographs are admissible and can weigh against oral history if they show the land was not cleared or cultivated before the relevant date. (Para 46 , 47 , 48 , 49 , 50 , 51 )
8. What is the effect of a prior settlement order on a later NCR claim?
If the claimant knew of the settlement exercise and did not appeal the orders under the Land Code, the claim is barred by limitation. (Para 80 , 81 , 82 , 83 )
9. Does the principle of indefeasibility of title prevail over pre-existing native customary rights?
Yes, for alienated land, a registered proprietor's indefeasible title prevails over pre-existing NCR; the remedy is damages against the Government. (Para 84 , 85 )
Ravinthran Paramaguru JCA:
Introduction
[1] There are three appeals before us, ie, Appeal 654, Appeal 671 and Appeal 672. The appeals arise from a suit filed by the appellant to prosecute a native customary right (NCR) claim over lands that were previously untitled and not demarcated on the map. In the said suit, the plaintiff sued on behalf of himself and his three siblings to assert the NCR claim. The Superintendent of Land and Survey, Limbang Division and the State Government of Sarawak were the first and second defendants. The Land Custody and Development Authority (LCDA) was the third defendant.
[2] The plaintiff is the appellant in Appeal 654 whereas the Superintendent of Land and Survey, Limbang Division and the Government of Sarawak are the first and second respondents. Where applicable, we shall refer to them collectively as the Government. The LCDA is the third respondent. In Appeal 671, the Government is the appellant whereas the plaintiff is the respondent. In Appeal 672, the LCDA is the appellant whereas the plaintiff is the respondent.
[3] The plaintiff claimed that he acquired NCR or native customary rights over four plots of land, namely Field Lots No. 349, 682, 702 and 722 or the same as edged in red in map marked as "M" which was attached to the statement of claim. All the said lots are part of Block 9, Trusan Land District in the Limbang Division of Sarawak. Lot 349 had been alienated to LCDA under a lease. At the conclusion of the trial, the learned High Court Judge granted a declaration that the plaintiff had acquired NCR over the said lands. However, His Lordship did not grant other reliefs, namely an order for issuance of titles to the plaintiff or an order that LCDA's title is unlawful. Hence, the appeal by the plaintiff. The other two appeals are by the Government and the LCDA in respect of the finding of the High Court that the plaintiff had acquired NCR over the disputed lands.
Summary Of The Plaintiff's Evidence
[4] The plaintiff's pleaded case was that the four plots of land referred to in the foregoing passage (the disputed lands) are cultivated lands. His grandfather cleared and cultivated the plots in accordance with the practice of the Lun Bawang community before the Japanese occupation in 1941. After the passing of his grandfather, the lands were inherited by his father and subsequently passed down to him and his siblings. Up to present time, the plaintiff claimed that he and his siblings have continued to occupy and cultivate the lands without interference from anyone.
[5] He claims that since the lands were cleared and cultivated in accordance with the customs of his native community before 1 January 1958, they constitute land over which he and his siblings have NCR under the Land Code of Sarawak (Cap 81) (hereinafter referred to as Land Code). With respect to Lot 349, the plaintiff pleaded that the alienation of the said land by way of a 60-year lease to LCDA is unlawful as there was no extinguishment of NCR. He discovered the fact of alienation in favour of LCDA after the statement of claim was filed. That discovery necessitated an amendment to the statement of claim.
[6] The plaintiff gave evidence and called two other witnesses. He has been a farmer since leaving school at the age of 15. The disputed lands have been in his family since his grandfather first cleared the jungle for cultivation, prior to the Japanese occupation. Upon his father's death in 1967, he and three of his seven siblings inherited the said lands. According to the plaintiff, Lot 349 was given to him by his father, while Lots 702, 682, and 722 were given to Punang, Dayang, and Bakar respectively.
[7] His family planted paddy, fruit trees and other crops on the said lands, which have remained in their possession to this day, as their occupation and enjoyment of the lands have never been disturbed. He identified photographs depicting the fruit trees and crops. He said some of the fruit trees are more than 80 years old.
[8] The pl
