Sunday 24 August 2014

Balingian NCR land case: Court rejects defendant's application

MALAYSIA
 IN THE HIGH COURT IN SABAH AND SARAWAK AT SIBU
 SUIT NO. SBW-22-5/1-2013

 BETWEEN

 1. MULOK ANAK TAMA
 2. MULIE ANAK LINGGIR
 3. UMPUT ANAK BALAJA
 4. JOHNNY ANAK MAGGI
 5. BADOL ANAK CHUNGAT
 6. ANTHONY ANAK BANGAU
 7. JARAU ANAK IPOK … PLAINTIFFS
 (Suing on behalf of themselves and all the
 residents of the longhouses known as
 Rumah Mulok, Rumah Mulie, Rumah Juti,
 Rumah Ilin, and Rumah Demong, Sungai Bawan,
 96350 Balingian, Mukah Divisions, Sarawak
 who are the occupiers, holders or claimants
 of native customary rights land situated within
 the area the boundary of which is as edged
 in red on the map marked “X” attached to the
 Statement of Claim annexed hereto)

 AND

 1. PEMBINAAN KUANTITI SDN BHD
 2. SARAWAK PLANTATION AGRICULTURE
29 DEVELOPMENT SDN BHD
 3. SUPERINTENDENT OF LANDS AND SURVEYS
 MUKAH DIVISION
 4. GOVERNMENT OF THE STATE
 OF SARAWAK … DEFENDANTS


 Judgment

[1] This is an application by the 2nd  defendant for the plaintiff to furnish further  and better particulars under O 18 r 12 of the Rules of Court 2012. The matters for which the 2nd defendant requests further and better particulars  are:-


 (i) the full names, identity card numbers and addresses of the other  inhabitants whom the plaintiffs also represent in this action; and (ii) the precise locations of the plaintiffs’ longhouses, namely, Rumah  Mulok, Rumah Mulie, Rumah Juti, Rumah Ilin, and Rumah Demong.

 Further and Better Particulars of the Other Inhabitants

[2] The 2nd  defendant argues that the delivery of the particulars of the full  names, NRIC numbers and the addresses of the other inhabitants of the said areas that the plaintiffs purport to represent would substantially limit and  clarify the plaintiffs’ assertion that they represent these other plaintiffs.
 Furthermore, these further and better particulars do not constitute evidence but are necessary facts that were not pleaded. It is in the interest of justice  that they be furnished.

[3] With respect, I find no merit in this request of the 2nd defendant. It is to be  noted that the title to the plaintiffs’ writ in this action states that the plaintiffs  are suing on behalf of themselves and all the residents of the longhouses  known as Rumah Mulok, Rumah Mulie, Rumah Juti, Rumah Ilin, and Rumah  Demong, 96350 Balingian, Mukah Division, Sarawak who are the occupiers,  holders or claimants of native customary rights land situated within the area  the boundary of which is edged in red on the map marked “X” attached to  the Statement of Claim annexed to the writ. Clearly, the plaintiffs are suing  in a representative capacity in accordance with O 15 r 12 ROC 2012.

The  learned authors of the Malaysian Civil Procedure 2013 commenting on the subject of “Representative Action” under O 15 r 12 ROC 2012 state as follows (at para 6.2.22):-
 Where a person sues on behalf of himself and others in a representative action under Order 15 r 12, he is the sole plaintiff and the names and addresses of the others cannot be obtained: Leathley
 v McAndrew [1875] WN 275.

 [4] Following from what is stated above, in my considered view, the plaintiffs  are not obliged to provide the particulars of the names and addresses of the others whom they claim to represent. It is interesting that the 2nd 10 defendant  has referred to the decision of Higgins v Weekes [1889] 5 TLR 238 in its  submission. It was said in that case that a party suing in a representative  capacity action is usually only ordered to give the best particulars he can.

To my mind, instead of supporting the case for the 2nd 14 defendant that it is entitled  to further and better particulars of the others, this decision fortifies the  position that the plaintiffs suing in a representative capacity need only to give  the best particulars of the others as they can and not their names and addresses. The 2nd defendant has cited a number of case authorities on “further and better particulars”. With respect, I agree with the plaintiffs that  the said cases are not cases where the parties sued in a representative  capacity under O 15 r 2 ROC 2012 or Rules of the High Court 1980. They  are not applicable to the issue at hand.

 Particulars of the locations of the Plaintiffs’ longhouses
[5] The 2nd 25 defendant also asks for the particulars of the precise locations of  the longhouses of the plaintiffs with particular geographical reference to the  longitude and latitude. With respect, I think this is misconceived. In my view,  the particulars of the locations of the plaintiffs’ said longhouses are already disclosed by the plaintiffs and made known to the 2nd defendant from the 3 map marked as “X” attached to the plaintiffs Statement of Claim. Besides, it is to be noted that based on the map marked “X” (also annexed an exhibit M-1 to the AIO), the 3rd and 4th 5 defendants were able to plot the specific location of the communal land boundary or the “antara menoa” of the land over which the plaintiffs and the residents of the longhouses are claiming communal native customary rights in this case. This can be seen from the 2nd and 3rd defendants’ “Locality Diagram” dated 28.2.2013 (Survey Job/File reference No. 43/2013) i.e. exhibit M-2 annexed to the AIO and to be found in the 2nd and 3rd defendants’ Bundle of Documents filed in this court. The 2nd and 3rd defendants in M-2 have also shown the location and boundary of part  of Lot 6 Bawan Land District (the disputed area) which overlaps with part of  the land within the said communal land boundary (“antara menoa”) or the  “pemakai menoa” of the plaintiffs’ said longhouses. I agree with the plaintiffs  that the above clearly shows that the required particulars of the location and boundary or the extent of the land over which the plaintiffs are claiming NCR and the locations of their respective longhouses are already known to the  defendants. To my mind, there is no necessity to give further precise  particulars like the longitude and latitude references of the longhouses.

Conclusion
[6] For the reasons stated above, I find the application of the 2nd 23 defendant
to be without basis. It is dismissed with costs of RM3000.00 to the plaintiffs.
(Signed)
Supang Lian J
Judge
High Court
Sibu

Dated this 2 April 2014

Counsels
For the plaintiffs … Mr. Abun Sui
(Messrs HNL & Co., Advocates)

For the 2nd 15 defendant … Mr. Arthur Lee Cheng Chuan

(Messrs Arthur Lee, Lin & Co., Advocates)

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