IN THE COURT OF
APPEAL OF MALAYSIA
AT PUTRAJAYA
BETWEEN
1. TAMIT ANAK
ANJAT
2. MUKIT ANAK
SEKERANG
3. JUPITER ANAK
SEGERAN @ SEGARAN
[Suing on behalf
of themselves and 19 other family or bilik, or
proprietors,
occupiers, holders and claimants of native customary
rights land
situate at Lubok Batu, Nanga Lembong, Suai, Niah, Miri,
Sarawak]
- APPELLANTS
And
1. FUNG TAI SDN
BHD (REG. NO. 94165-D)
2. LAND CUSTODY
AND DEVELOPMENT AUTHORITY (LCDA)
3. SUPERINTENDENT
OF LANDS AND SURVEYS, MIRI DIVISION
4. STATE
GOVERNMENT OF SARAWAK
- RESPONDENTS
AND BETWEEN
TR MERINGAI ANAK
SEGARAN (WN.KP. 490804-13-5571)
[Suing on behalf
of himself and 21 other family or bilik or
proprietors,
occupiers, holders, and claimants of native customary
rights land
situated at Sungei Lembong Suai, Miri, Sarawak]
- APPELLANTS
And
1. BUTRASEMARI
SDN. BHD. (REG. NO. 560581-D)
2. SUPERINTENDENT
OF LANDS AND SURVEYS, MIRI DIVISION
3. STATE
GOVERNMENT OF SARAWAK
- RESPONDENTS
CORAM:
Abdul Wahab
Patail, JCA
Mohtarudin Baki,
JCA
Mah Weng Kwai, JCA
Date of Judgment:
8th October 2013
GROUNDS OF JUDGMENT
2. The High Court dismissed the Appellants/Plaintiffs'
Tamit Anak Anjat and Others ("the Plaintiffs") claims in their
consolidated civil suits on the grounds the Plaintiffs had failed to discharge
the burden of proof that they had acquired Native Customary Rights (NCR) over
the disputed lands.
The Appeal
3. The Plaintiffs appealed to this Court. Their grounds
of appeal were that the High Court had erred:
(a) in not finding that the Plaintiffs had established
NCR over the said land and ought to have found in favour of the Plaintiffs upon
the balance of probabilities;
 |
| Baru Bian one of the lawyers representing the NCR landowners |
(b) in dismissing the Plaintiffs' claim of NCR over the
said land in spite of overwhelming evidence adduced before it proving the
Plaintiffs' NCR ;
(c) when it failed to judicially appreciate the decision
in Nor Anak Nyawai & Ors v Borneo Pulp Plantation Sdn Bhd & Ors [2001]
2 CLJ 769 HC when the area claimed by the Plaintiffs were only within
half-a-day's walk from the Plaintiffs' village as per the testimonies of the
Plaintiffs consistent with the custom or adat of the Plaintiffs;
(d) when it failed to appreciate that the two maps
("D66" and "D67") tendered by DW8, a government staff surveyor/cartographer
J41, showed that the Cleared Area had increased in 1963 from approximate 407
hectares in 1950 to approximate 1,147 hectares in 1963. DW8 in cross-examination
had agreed that roughly an average area of 56 hectares had been cleared
annually since 1950 to 1963.
From these two images, there had been clear evidence that
the Plaintiffs had been residing in the area even before 1950s and the rate
that the forest was cleared from 1950 to 1963 at about 56 hectares per year
showed that the said area claimed by the Plaintiffs was indeed NCR Land and not
far away from the longhouse of the Plaintiffs;
(e) in holding that the 1st Defendant's counter-claim
against the Plaintiffs in Suit No. 22-46-2007(MR) had been established on the
balance of probabilities when the Plaintiffs by ample
evidence had established their NCR over the said land
even before 1958;
(f) in allowing the 1st Defendant’s counter-claim in Suit
No. 22- 46-2007(MR) and dismissing the Plaintiffs' claim as it did.
The High Court Grounds
4. The decision of the High Court was summed up in the
first paragraph of the grounds of decision. The 4-page grounds of judgment gave
its reasons beginning from the second paragraph thereof as
follows:
(a) It accepted the submissions of the 1st Defendant
that:
(i) There was no evidence of land clearance and/or cultivation
on the land under the Provisional Leases of Lot 176 Suai Land District and Lot
96 Sawai Land District ("the provisional leases"). The Plaintiffs
could have produced photographs to show the fruit trees and/or padi planted but
the Plaintiffs had failed to do so.
(ii) The Plaintiffs did not have and could not claim any Native
Customary Rights (NCR) over the lands in the licensed areas.
(iii) The Plaintiffs did not have and could not claim NCR
over lands in the Niah Forest Reserve and in the licensed areas by virtue of
the Forest Ordinance and the Sarawak Land Code and also because the Plaintiffs
had not proved on the balance of probabilities that they had or had acquired
NCR over the said lands in accordance with Sarawak laws.
(iv) The map (P.3) was not correct and could not be
relied on as evidence because PW4 was not qualified to prepare a map as he was
not a qualified surveyor. .... It was an offence under section 23 of the Land
Surveyors Ordinance 2001.
(v) DW3 was not an independent or impartial witness because
being a politician his political motto was that if his political party took
over the State Government, he would want NCR to be recognized. In any event it
did not consider DW3 to be an expert in the Iban customs and practice and has
never written any article on NCR lands.
(vi) From the aerial photographs annexed as Appendix A (Job
No.CC/09/2009) in Exhibit DWS-8, there was no sign of land clearance in the
areas under the provisional leases.
(vii) The Plaintiffs had not suffered any losses and damages
as the 1st Defendant and its agents or
servants were prevented from working or entering the said
lands by the Plaintiffs.
(b) It found on the evidence that the 1st Defendant's had
been proved on the balance of probabilities that:
(i) it was not disputed that the 1st Defendant was the registered
proprietor of the said lands by virtue of the provisional leases;
(ii) it was also not disputed that as at the date of
hearing, the Plaintiffs were still preventing the 1st Defendant from working on
the lands; and (iii) the 1st Defendant has suffered loss and damages as a
result.
(c) The court had on 8.5.2007 granted interlocutory
injunctions against PW2 and his residents. There can be no dispute that the
Plaintiffs had disobeyed the court order. The Plaintiffs' action has caused
interruptions, delays and inconvenience to the 1st Defendant. DW5 had given
evidence on the amount of special damages suffered by the 1st Defendant which
was in the sum of RM1,575,500.00 from 21.5.2007 to 4.10.2007.
This evidence was not challenged by the Plaintiffs.
(d) On the issue of limitation in respect of Suit No.
22-40- 2006(MR), it accepted the 1st Defendant's submissions as follows:
(i) The Plaintiffs' action filed in 2006 is caught by
section 2 of the Public Authorities Protection Act, 1948 which stipulates that
the action must be brought within 36 months from the issuance of the quarry
licence on 1.12.1988.
(ii) Further section 3 and item 97 of the Schedule to the
Sarawak Limitation Ordinance provided a period of 6 years for the Plaintiffs to
bring their claims from the time the right to sue accrued. The Plaintiffs'
claim filed in 2006 was not brought within 6 years of the issuance of the
quarry licence on 1.12.1988.
Decision
43. As the
foregoing inevitably points, the Plaintiffs’ evidence in support of the claim
to having acquired NCR rights, however short of being perfect evidence, remains
more than the evidence adduced for the Defendants.
The Plaintiffs have, therefore, successfully proved their
case upon the balance of probabilities. Even though their "map" P.3 falls
short of being an officially recognised survey map, they are entitled to a
ruling that they have successfully proved upon the balance of probabilities
their NCR rights to the lands that they occupy, including under pemakai menoa,
subject to survey of the boundaries if one were eventually made, approximately
delineated by the map P.3.
44. Accordingly, we allowed the appeal, entered judgment
in terms of prayers i) - ix) and xiv) - xvi) of the Plaintiffs' Statement of
Claim, and ordered in respect of each
appeal, costs in the sum of RM15,000.00, RM10,000.00 against the 1st and 2nd
Defendants, and RM10,000 against the 3rd and 4th Defendants.
Signed
(ABDUL WAHAB
PATAIL)
Judge
Court of Appeal of
Malaysia
PUTRAJAYA
Dated: 1st June
2015
Counsels/Solicitors
–
for the
Appellants: Mr. Baru Bian, Mr. Simon Syah Syjen &
Mr. Chua Kuan
Ching
Messrs Baru Bian
Civil Suit:
22-40-2006(MR)
For the 1st
Respondent: Mr. Gabriel Kok &
Nicole Jolly
Messrs Khoo &
Co. Advocates
For the 2nd
Respondent: Kertini binti Lamat
Messrs Wan Ullok
Jugah Chin & Co
Civil Suit:
22-46-2007(MR)
For 1st
Respondent: Esther Wong & Ben Lau
Messrs Stephen
Robert & Wong Advocates
For 3rd & 4th Respondents:
Mohd Adzrul bin Adzlan
(for both appeals)
Senior Legal Officer
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