IN THE COURT OF
APPEAL MALAYSIA
(APPELLATE
JURISDICTION)
CIVIL APPEAL NO.:
Q-01-164-2011
BETWEEN
1. SUPERINTENDENT
OF LANDS AND
SURVEYS, KOTA
SAMARAHAN DIVISION
2. GOVERNMENT OF
THE STATE OF
SARAWAK ...
APPELLANTS
AND
1. LUKING ANAK
UDING
2. SIMAH ANAK
EMPALING
3. NYAMBAR ANAK
SUWAT ... RESPONDENTS
AND
TH PELITA SADONG
SDN BHD ... 1ST INTERVENER
RHB ISLAMIC BANK
BERHAD ... 2ND INTERVENER
HEARD TOGETHER
WITH
CIVIL APPEAL NO.:
Q-01-166-2011
BETWEEN
LEMBAGA
PEMBANGUNAN DAN
LINDUNGAN TANAH
Tingkat 10, Wisma
Bapa Malaysia
Petra Jaya,
Kuching
Sarawak ...
APPELLANTS
AND
1. LUKING ANAK
UDING
2. SIMAH ANAK
EMPALING
3. NYAMBAR ANAK
SUWAT ... RESPONDENTS
AND
TH PELITA SADONG
SDN BHD (Co. No. 67467)
(formerly known as
DD Pelita Sadong Plantation Sdn Bhd)
15th Floor Lot
15.01
Somerset Gateway
Building
No. 9 Jalan Bukit
Mata
93100 Kuching,
Sarawak ... INTERVENER
HEARD TOGETHER
WITH
CIVIL APPEAL NO.:
Q-02-756-2011
BETWEEN
NIRWANA MUHIBBAH
SDN BHD
Lot 298, 2nd
Floor, Lorong 9
Jalan Rubber
93400 Kuching
Sarawak ...
APPELLANT
AND
1. LUKING ANAK
UDING
2. SIMAH ANAK
EMPALING
3. NYAMBAR ANAK
SUWAT ... RESPONDENTS
[In the matter of
Suit No. 22-43-2002-I in the High Court at Kuching
Between
1. Luking anak
Uding
2. Simah anak
Empaling
3. Nyambar anak
Suwat ... Plaintiffs
And
1. Superintendent
of Lands and Surveys,
Kota Samarahan
Division ... 1st Defendant
2. Government of
The State of Sarawak ... 2nd Defendant
3. Lembaga
Pembangunan Dan Lindungan Tanah ... 3rd Defendant
4. Nirwana
Muhibbah Sdn Bhd (Co. No. 238058-H) ... 4th Defendant
HEARD TOGETHER
WITH
CIVIL APPEAL NO.:
Q-01-137-03/2012
BETWEEN
1. LEMBAGA
PEMBANGUNAN DAN LINDUNGAN
TANAH (LAND
CUSTODY AND DEVELOPMENT
AUTHORITY)
2. NIRWANA
MUHIBBAH SDN. BHD (238058-H)... APPELLANTS
AND
1. TR NYUTAN AK
JAMI (BICK. 544160)
2. GANGAK ANAK
GUMA (BICK. 500444)
3. LANGA ANAK KAMA
(BICK. 544351)
(Suing for and on
behalf of themselves and
183 other
residents of Kampung Lebor,
Jalan Gedong,
94700 Serian) ... RESPONDENTS
AND
1. TH PELITA
SADONG SDN BHD ... 1ST INTERVENER
2. TH PELITA
GEDONG SDN BHD ... 2ND INTERVENER
3. RHB ISLAMIC
BANK BERHAD ... 3RD INTERVENER
HEARD TOGETHER
WITH
CIVIL APPEAL NO.:
Q-01-136-03/2012
BETWEEN
THE STATE
GOVERNMENT OF SARAWAK ... APPELLANT
AND
1. TR NYUTAN AK
JAMI (BICK. 544160)
2. GANGAK ANAK
GUMA (BICK. 500444)
3. LANGA ANAK KAMA
(BICK. 544351)
(Suing for and on
behalf of themselves and
183 other
residents of Kampung Lebor,
Jalan Gedong,
94700 Serian) ... RESPONDENTS
[In the matter of
Suit No. 22-249-98-III(I) in the High Court in Sabah and Sarawak
at Kuching
Between
1. TR Nyutan AK
Jami (BIC.K. 544160)
2. Gangak Anak
Guma (BIC.K.500444)
3. Langa Anak Kama
(BIC.K.544351) ... Plaintiffs
(Suing for and on
behalf of themselves and
183 other residents
of Kampung Lebor
Jalan Gedong,
94700 Serian)
And
1. Lembaga
Pembangunan Dan Lindungan Tanah
(Land Custody and
Development Authority)
2. Nirwana
Muhibbah Sdn Bhd (Co. No. 238058-H)
3. Government of
The State of Sarawak ... Defendants]
CORAM:
RAMLY BIN HJ ALI,
JCA
ABDUL AZIZ BIN
ABDUL RAHIM, JCA
MOHD ZAWAWI BIN
SALLEH, JCA
(Date of decision:
19 August 2014)
Leading NCR land lawyer Baru Bian representing the NCR land owners
GROUNDS OF
JUDGMENT
[1] There are five
appeals before us. These five appeals arose from
two separate
decisions by two different High Court Judges sitting
at Kuching and
involving two different groups of Iban natives. One
decision was by
Linton Albert J and the other was by Clement
Skinner J.
[2] The appeals
are: Appeal No. Q-01-164-2011 (Appeal No.164),
Appeal No.
Q-01-166-2011 (Appeal No. 166) and Appeal No. Q-
02-756-2011
(Appeal No. 756). This first three appeals are related
and they arose
from the decision of Linton Albert J in Kuching Suit
No. 22-43-2002-I.
The other two appeals are Appeal No. Q-01-
136-03/2012
(Appeal No. 136) and Appeal No. Q-01-137-03/2012
(Appeal No. 137).
These two appeals arose from the decision of
Allan Clement
Skinner J in Kuching Suit No. 22-249-98-III(I). For
the purpose of
this judgment, we will group these five appeals into
two groups
according to their original High Court decision. The first
group is the
appeals against the decision by Linton Albert J and we
will call this
group of appeals “the Luking appeals” and the second
group is the
appeal against the decision by Clement Skinner J and
we will name this
group of appeals “the Nyutan appeals”.
[3] The appellants
in Appeals No. 164 are the Superintendent of
Lands And Surveys
Kota Samarahan Division and the Government
of the State of
Sarawak (the 1st and 2nd defendants respectively
before the High
Court). In Appeal No. 166 the appellant is
Lembaga
Pembangunan Dan Lindungan Tanah (the 3rd defendant
before the High
Court). The appellant in Appeal No. 756 is
Nirwana Muhibbah
Sdn Bhd (the 4th defendant in the High Court).
The respondents in
this appeal are the plaintiffs before the High
Court.
[4] The appellant
in Appeal No. 136 is the State Government of
Sarawak (the 3rd
defendant in the High Court). The respondents
are the plaintiffs
in the High Court.
[5] The appellants
in Appeal No. 137 are Lembaga Pembangunan
Dan Lindungan
Tanah (Land Custody And Development Authority)
– the 1st
defendant in the High Court, and Nirwana Muhibbah Sdn
Bhd – the 2nd
defendant in the High Court.
[6] There are
three interveners in these five appeals. The first
intervener is TH
Pelita Sadong Sdn Bhd. The second intervener is
TH Pelita Gedong
Sdn Bhd and the third intervener is RHB Islamic
Bank.
[7] The issues in
all the 5 appeals are the same as between the
plaintiffs/respondents
and defendants/appellants with a slight
variance in
respect of issues involving the interveners. By consent
of the parties,
all the 5 appeals were heard together.
[8] We have
decided to write only one judgment for all the five
appeals in the
light of their common issues.
[9] For ease of reference, the parties in
these appeals will be referred
to as they were
before the High Court except for the interveners
which we shall
refer to by the names.
[10] The first
thing to note about these appeals is that the two appeals
involve the
natives of Sarawak of Iban origin, and who as plaintiffs
claimed native
customary rights (NCR) over large tract of land
covered under the
provisional lease issued by the 1st and 2nd
defendants to the
3rd and 4th defendants in the Luking and Nyutan
appeals. However,
the NCR claim in both the Luking and Nyutan
appeals somewhat
overlaps. The second thing to note is that in
both group of
appeals the issues which require our determination
are common. The
first issue in the nutshell is whether Sarawak
Native Customary
Law recognize ‘pemakai menoa’ (that is land
area – mostly
uncultivated virgin jungle - where the natives roam
for their hunting
of animals and jungle produce) as part of Sarawak
natives customary
rights or NCR. The second issue is whether the
plaintiff had
proven their NCR claim.
[11] With the
foregoing brief introduction, we will now address the
salient facts in
each group of the appeals, the submissions by the
parties and follow
by the discussion on issue for determination and
the evidence. The
discussion on the issues will be common to both
groups of appeals.
The Luking Appeals
[12] In the High Court, this case was
registered as Suit No. 22-43-
2002-I. In this
case Luking anak Uding, Simah anak Empaling and
Nyambar anak Suwat
were the plaintiffs and they were suing on
behalf of
themselves and all the residents of the longhouse known
as Kampung Marakai
or rumah luang and/or all other proprietors,
occupiers, holders
or claimants of native customary rights lands
situate at or
around Kampung Marakai, Sungei Marakai, Batang
Krang, Gedong,
Simunjan, Kota Samarahan Division, Sarawak.
The 1st defendant
was the Superintendant of Lands And Surveys
Kota Samarahan
Division. The 2nd defendant was the Government
of the State of
Sarawak. The 3rd defendant was Lembaga
Pembangunan Dan
Lindungan Tanah and the 4th defendant was
Nirwana Muhibbah
Sdn Bhd, a Malaysian registered company
which held the
provisional lease issued by the 1st defendant.
[13] The
plaintiffs claimed that they have acquired NCR over land
which is under
provisional lease issued by the 1st and 2nd
defendants to the
3rd and 4th defendants as co-owners. The total
area under the
provisional lease described as Lot 2979 is 3,880
hectares. The
whole area is identified and de-alienated in a map
which was attached
to the statement of claim. An identical map to
the one exhibited
in the plaintiffs’ statement of claim was admitted
as exhibit P13.
The learned Judge found that the 1st and 2nd
defendants did not
dispute the area claimed by the plaintiffs
because the
defendants exhibit D5 - a map which shows that the
area claimed as
NCR - was within the area covered by the
provisional lease.
[14] The plaintiffs contend, inter alia, that
the issuance of the
provisional lease
extinguishes their NCR over the land covered by
the provisional
lease with no provision for compensation. The
plaintiffs
therefore are seeking various declaratory reliefs and
orders against the
defendants.
[15] As a matter
of evidence, the learned Judge accepted the testimony
and evidence of
PW2, Nicholas Bawin Ak Anggat, the expert on
Iban adat and
customs on the creation of NCR, in particular the
creation of
pemakai menoa and the determination or fixation of
‘garis menoa’. PW2
is ethnic Iban and had served as Deputy Head
of the Majlis Adat
Istiadat Sarawak from 12.8.1992 to 28.2.2005.
His knowledge of
Iban custom and tradition was from his personal
experience and
observation. He was born and brought up in his
long house and had
done research and study on adat Iban through
well documented
materials and records by well known authors
such as D.
Freeman, Kedit , Dr. Dimbab Ngidang and Benedict
Sandin. PW2 was
the same expert that gave expert evidence in
the celebrated
case of Nor Anak Nyawai & Ors v Borneo Pulp
Plantation Sdn Bhd
& Ors [2001] 3 MLJ 26. His evidence on
adat Iban was
approved by the Federal Court in Superintendant
Of Land And
Surveys Miri Division And Anor v Madeli Salleh
[2007] 8 CLJ 509.
PW2 testified that:
“... native
customary law, customs and traditions are
synonymous and
they embody the whole spectrum of their way
of life,
practices, rituals, ceremonies and conversations including
oral tradition
whereby the Ibans construct social memory relating
to every aspect of
their past which are relevant to the forest
which included
genealogies and boundary markings. These
customs and
traditions are not exhaustively codified. The
pioneering
families in the days of old would clear virgin forest for
farming which
established their rights to the cleared area
including the
forests within and around the cleared area called
‘Pemakai Menoa’
which in time became an area within a defined
boundary called
‘garis menoa’ within which are the individual
farms, farmlands
and gardens of the inhabitants of a particular
longhouse or
village including communal land like cemeteries
and islands of
forest left uncleared for the inhabitants to collect
jungle produce and
obtain timber. Where there are several
pioneering villages
or longhouses their respective ‘Pemakai
menoa’ are
separated by defined boundaries or ‘garis menoa’.
Permanent
landmarks would constitute those boundaries which
included streams,
rivers, watersheds, hills, ridges and
mountains.
Disputes on land boundaries or ‘garis menoa’ were
resolved by
village chiefs and elders. Farmlands left fallow are
called ‘Temuda’
because the Iban practice a system of farming
where farmland is
left for a number of years before a particular
farmland is again
farmed. The right to farm ‘temuda’ land is with
the person who
first felled the virgin forest.”
[16] Having
considered and assessed the evidence given by both the
plaintiffs and the
defendants’ witnesses, the learned trial Judge
held that none of
the defendants’ witnesses contradicted in any
material
particular the evidence adduced by the witnesses for the
plaintiffs. With
regard to the acquisition of the NCR by the plaintiffs
over the disputed,
the learned trial Judge said that:
“Since the
plaintiffs claim to native land under native customary
rights was
acquired prior to 1.1.1958 the strictures imposed by
the [Sarawak] land
code for the creation of native customary
rights over land
after that date have no application and do not,
therefore, fall to
be determined.”
[17] With regard
to the creation of the plaintiffs pemakai menoa and the
garis menoa, the
learned Judge said as follows:
“In this action, quite apart from proof
established by exhibit P13,
proof of the
Plaintiff’s pemakai menoa was readily available from
the oral
testimonies of their witnesses which are adumbrated
above coupled with
the evidence of DW4 who was
understandably
untruthful as to the size of the cleared area of 38
hectares,
nevertheless, showed that the Plaintiffs had been in
occupation within
their pemakai menoa since 1954.”
[18] Applying the
principles laid down in Nor Anak Nyawai & Ors
(supra) on the
creation of pemakai menoa which based primarily
on continuous
occupation of the land in question to the facts and
evidence in the
Luking appeals, the learned Judge concluded as
follows:
“It was never
remotely suggested that the Plaintiffs and their
ancestors had
‘roamed or foraged’ the areas in their ‘pemakai
menoa’ in search
of food. It was clear that the Plaintiffs from the
time of their
ancestors had been in occupation of their ‘pemakai
menoa’ which
followed a defined boundary based on permanent
landmarks which
separated Kampung Merakai from the
‘pemakai menoa’ of
neighbouring villages whose own ‘pemakai
menoa’ were
contiguous to that of Kampung Merakai and
witnesses from
these other villages gave credible testimony of
the long
established ‘garis menoa’ delineating the ‘pemakai
menoa’ from their
respective ancestors. Thus, applying the
principles I have
set out to the evidence adduced by the
Plaintiffs and the
Defendants adumbrated I am satisfied that it is
more probable than
not that the Plaintiffs have established their
native customary
rights to the ‘pemakai menoa’ which they
claim, in
accordance with the civil standard of proof required
under Section
101(1) of the Evidence Act 1950 which states:
“Whoever desires
any court to give judgment as to
any legal right or
liability, dependent on the
existence of facts
which he asserts, must prove
that those facts
exist”.
In the
circumstances, the Defendants’ contention that the
Plaintiffs do not
have customary rights over the land claimed or
that the same
falls outside the provisional lease are demolished
because quite
apart from the precise delineation set out in
exhibit P13, the
description of the Plaintiffs’ ‘pemakai menoa’
given by their
witnesses contain sufficient particulars to
demarcate the
Plaintiffs’ ‘pemakai menoa’ with the degree of
certainty to
sustain their claim over the ‘pemakai menoa’ which
is clearly within
part of the provisional lease issued on the 1st
and 2nd Defendants
under Lot 2979 Melikin Land District.”
[19] On that
conclusion and finding, the learned trial Judge in Luking
appeals granted
the declarations sought by the plaintiffs in their
suits.
The Nyutan Appeals
[20] In the High
Court, this case was registered as High Court Suit No.
22-249-98-III(I).
In this case, TR Nyutan Ak Jami, Gangak Anak
Guma and Langa
Anak Kama were the plaintiffs. They were suing
for and on behalf
of themselves and 183 other residents of
Kampong Lebor,
Jalan Gedong, 94700 Serian Sarawak. The 1st
defendant Lembaga
Pembangunan dan Lindungan Tanah (Land
Custody and
Development Authority) and the 2nd defendant
Nirwana Muhibbah
Sdn Bhd were the provisional holder of the
disputed land and
the third defendant was the State Government
of Sarawak which
had issued the provisional lease.
[21] The
plaintiffs in this group of appeals are also Iban by race and
natives of
Sarawak. They are residents of Kampong Labor, Jalan
Gedong, Serian,
Kuching and claim that prior to 1.1.1958 they and
their forefathers
had acquired NCR over areas of land which
included about one
kilometer along both banks of Sungei Tampoi
(“the Sungei
Tampoi land”) some parts of along Sungei Krang (“the
Sungei Krang
land”) and at Sungei Meringgang (“the Sungei
Meringgang land”).
[22] The
plaintiffs claim that their ancestors had occupied and
cultivated their
native customary lands since the rule of the Brunei
Sultanate to whom
a tribute was paid. The plaintiffs say they are
still in
occupation of those lands today.
[23] The 1st and
2nd defendants in Nyutan appeals are the registered
co-proprietors of
3 parcels of land namely Lot 2 Block 6 Melikin
Land District
(“Lot 2”), Lot 166 Block 5 Melikin Land District (“Lot
166”) and Lot 7
Block 3 Melikin Land District (which later change to
Lot 2979 (“Lot
7”). The 3 parcels of land were alienated to 1st and
2nd defendants by
the 3rd defendant.
[24] The plaintiffs
in Nyutan appeals claim that parts of their native
customary land
have been included in the 3 parcels of land
alienated to the
1st and 2nd defendants. The plaintiffs claim that
when the 1st and
2nd defendants entered the 3 parcels and began
clearing works for
oil palm plantation in early 1997 they destroyed
the plaintiffs’
crops. The plaintiffs claim the 1st and 2nd defendants’
intrusion and
destruction of their crops on the 3 parcels was
unlawful and
without their consent or without their NCR over the
land being first
extinguished or without the payment of any
compensation.
[25] The 1st, 2nd
and 3rd defendants deny that the plaintiffs have
acquired any NCR
to the areas claimed by them for the reasons
noted by the
learned Judge in his judgment. These reasons will be
referred to when
and if necessary.
[26] The
defendants contend that the plaintiffs have not proved their
NCR claim over the
3 parcels of land. However, after considering
the evidence by
the plaintiffs’ witnesses (whose evidence have
been challenged
and severely criticized by the defendants and
described as being
uncorroborated, unconvincing, contradictory
and based partly
on hearsay evidence), the learned Judge found
that, on balance
of probabilities the plaintiffs have lawfully acquired
or created native
customary rights as recognized by the Sarawak
Land Code over the
3 parcels of land; and the learned Judge also
found that the
lands which the plaintiffs have lawfully created NCR
are included in
the provisional leases issued to the 1st and 2nd
defendants. This
is how the learned Judge appraised the
evidence in his
judgment against the criticism by the defendants:
“The defendants
criticized the evidence of the plaintiffs as being
bare statements of
interested witnesses, uncorroborated by
other evidence and
therefore unworthy of belief. The defendants
said that even
though the plaintiffs witnesses had described
their individual
parcels of land and gave the names of other
residents who
owned neighbouring parcels to them, those other
persons were not
called to confirm the evidence of the plaintiffs’
witnesses. I find
no merit in this complaint. Just because some
of these village
folk may not be able to read maps and pinpoint
their parcel of
land on a map does not mean that those parcels
do not exist or
they are not credible witnesses. There the 1st
and 2nd defendants
show that human activity is focused outside
and along the
periphery of the project site. I do not agree. I find
that the Rubber
Tickets provide uncontroverted evidence that
the plaintiff’s
forebears were farming those lands since 1955.
The fact that the
Provisional Leases issued to the defendants
excludes those
parcels of land covered by the Rubber Tickets
does not change in
any way, the fact that the parcels of land
issued with Rubber
Tickets fall within the boundary or ‘garis
menoa’ of the land
claimed by the plaintiffs as their native
customary land.
The second source
of corroborative evidence to the plaintiffs
claim are the
ariel photographs exhibit D73A, D73B, D73C,
D73D, D73E, D73F
and D73G produced by the defendants
themselves.
According to the defendants, these ariel
photographs which
were taken in 1947 show two things: (a)
there were areas
under secondary growth in the areas claimed
by the plaintiffs
as their native customary land but these areas
have been excluded
from the area covered by the Provisional
Leases and
therefore not relevant to the plaintiffs case; and (b)
the ariel
photographs show that the other areas claimed by the
plaintiffs at
Sungai Meranggang, Sungai Tampoi and Sungai
Skrang were
covered by Primary Forest in 1947. Therefore the
plaintiffs could
not be exercising native customary rights in those
areas. I do not
agree. DW4 Mr Wee Kang Hian the Pembantu
Teknik Ukur
attached to the Lands & Surveys Department
Headquarters,
Kuching, Sarawak and whose duties included 10
years of
experience as a navigator for ariel photographs and
interpretation of
ariel photographs for Land Use maps, was
requested to do a
detailed analysis of the ariel photographs to
determine the land
use in the areas claimed by the plaintiffs.
DW4 selected 3
ariel photos, 5144 (D73B) 5146 (D73D) and
5147 (D73E). In
his analysis and write up which the court
marked exhibit P81
and P18A. In his analysis and write up
which the court
marked exhibit P81 and P81A (since they were
admitted in
evidence at the plaintiffs’ request). PW4 indicated in
different colours
the type of land use found in the area in 1947.
His write up
states:
“The said area is
coloured Purple for Horticultural Lands
(Mixed
Cultivation), shaded Purple for Rubber, Blue for
Wet Padi, and
coloured Orange for Secondary Growth,
Grassland,
Shifting Cultivation and Hill Padi.”
This analysis
provided by PW4 shows that from as early as
1947 the areas
which the plaintiffs claim their forefathers had
occupied was
already cultivated with all the above crops. The
defendants tried
to make light of this fact by saying that the
cultivated areas
had been excluded from the Provisional
Leases, but that
does not alter in any way the compelling
evidence afforded
by the ariel photographs analysed in exhibit
P81 and exhibit
P81A, that by 1947 the areas claimed by the
plaintiffs as
their native customary land was already cultivated
by their
forefathers with the crops mentioned in DW4’s write-up.
This in turn would
indicate that virgin jungle must have been
felled for that
purpose. The fact that areas of virgin jungle can
be seen between
and next to the areas under cultivated in 1947
and also shown in
more recent land use maps made in 1978
such as exhibit
D35 attached to D79 produced by the
defendants does
not detract from but rather supports the
evidence of PW1
that ‘pulau’s’ are areas of forest and jungle
within the
boundary of their native customary lands which has
abundance of
useful timber, animals and jungle produce. This
evidence also
accords with what PW14 said about the adat Iban
in clearing jungle
for settlement and cultivation but leaving areas
of virgin forest
as pulau’s within the pemakai menoa to provide
the community with
forest resources for domestic use.
Even though those
early days, the 1947 ariel photographs and
exhibit P81 and
P81A show that there were three distinct and
separate areas where
cultivation occurred. When the plaintiffs
witnesses were
asked how they and their forebears got to the
cultivated areas
at Sungai Meringgang, which were the
furtherest away
from Kampung Lebor, they said it was by river
through Sungai
Tampoi than on to Batang Skrang and
eventually on to
Sungai Meringgang. It is noteworthy that this
evidence was given
by the plaintiffs witnesses well before DW4
gave his evidence
and they had no means of knowing that what
he would say would
in effect support that evidence. Although
the plaintiff’s
witnesses may have been unable to read maps or
had made mistakes
in describing the types of fruit trees or the
crops that were
damaged on their parcels of land, I accept them
as credible
witnesses as their evidence is supported by other
credible evidence
such as the Rubber Tickets and Ariel
Photographs.
The defendants
contended that the boundary of the plaintiffs’
native customary
land cannot extend to areas where the
plaintiffs had
roamed to forage for their livelihood. I do not find
this to be so in
the plaintiffs’ case. None of their witnesses said
that the boundary
of their native customary land included areas
where they roared
to forage for their livelihood. When the
community map
exhibit P76A, which demarcates the boundaries
of the plaintiffs
native customary land is compared with the
analysis of the
ariel photographs in exhibit P81A, and the pelan
annexed to the
Statement of Claim marked ‘A’, it can be seen
that the
plaintiffs claim is limited to the areas cultivated by them
and the areas
regarded by them as their pemakai menoa,
temuda and pulau.”
[27] It is
observed that in assessing the evidence by the plaintiffs’
witnesses, the
learned Judge had taken less than strict approach.
The learned Judge
said:
“Even though the
historical account of how the plaintiffs came to
settle and
exercise customary rights over the areas of land they
claim may be based
on hearsay evidence the court must take a
realistic approach
in a case such as this when applying the rules
of evidence. It
would be unrealistic to insist on strict evidentiary
standards to prove
things which occurred many generations ago
within a rural community.”
[28] And the
learned Judge finds support for his approach in the
passage by Haidar
J (as he then was) on section 48 of the
Evidence Act 1950
in the case of Hamit b Matussin & 6 Ors v
Superintendent Of
Lands & Surveys & Anor [1991] 2 CLJ
1524, 1526. We
cannot find anything wrong with the approach
taken by the
learned Judge.
[29] In his
judgment, the learned Judge dealt with several issues.
However, the issue
on the creation of NCR as mentioned above is
one of the two
most important issues in this case. The other issue
which is closely
related to the creation of NCR is the issue relating
to the pemakai
menoa. But this issue takes slightly different form.
The important
question that begs this issue is not how it is created
but whether the
Sarawak Native Customary Law recognize
pemakai menoa as
part of Sarawak native customs within the
concept of NCR.
[30] Before we
discuss the issue relating to the pemakai menoa, we will
say something
about the interveners. There are three interveners
in these appeals.
The first two interveners are TH Pelita Sadong
Sdn Bhd (formerly
known as DD Pelita Sadong Plantation Sdn
Bhd) (“PSSB”) and
TH Pelita Gedong Sdn Bhd (formerly known as
DD Pelita Gedong
Plantation Sdn Bhd) (“PGSB”). PSSB is the
intervener in the
Luking appeals and also in the Nyutan appeals.
PGSB is the other
intervener in the Nyutan appeals. These two
interveners are
the registered holders of the lease over Lot 2979
Melikin Land
District but not a party to the proceedings in the High
Court. The
application to intervene in these appeals has been
allowed earlier by
this Court.
[31] At the
hearing of these appeals, we also heard two applications by
the proposed 3rd
intervener who is the chargee of the land under
the provisional
lease having granted a facility of RM660 million to
the registered
lease holders of the land. The 3rd intervener is RHB
Bank. They had
filed application in enclosures 23a and 30a to
intervene in both
the appeals. Though the lead State Counsel
Dato’ JC Fong
attempted a feeble objection to the application, the
other appellants
in the appeal have either indicated that they took
a neutral stand on
the two applications or had agreed to
enclosures 23a and
30a. The respondent however objected to the
applications.
After hearing counsel, we gave order in terms of
enclosures 23a and
30a with the agreed cost of RM3,000.00.
[32] Now to return to the issues in these
appeals. State Legal Counsel
(the learned SLC)
submitted two issues. The first issue is the
meaning of NCR
under Sarawak laws and whether it includes
pemakai menoa. The
second issue is whether NCR can be
created over
riverbank reserves.
[33] Learned SLC
submitted that NCR lands are limited only to the area
under cultivation
and under continuous occupation. It does not
include virgin
jungle. It was submitted that the learned Judge in
Luking appeals
equated native customary rights over land to the
Iban custom of
pemakai menoa – an Iban term that refers to ‘a
territorial domain
of a long house community where customary
rights to land
resources was created by pioneering ancestors’. This
finding by the
learned Judge is based on the expert evidence of
PW2, Nicholas
Bawin. Learned SLC contends that such finding is
incorrect. He
submitted that there is a significant difference
between ‘native
custom’ and ‘native customary law’ and that the
law does not give
effect to every native custom; and only those
customs to which
the law gives effect, to form part of the
customary law of
the State of Sarawak and are covered by the
definition of
‘law’ in Article 160(2) of the Federal Constitution.
Thus, it was
argued and submitted for the appellants in these
appeals that the
law in Sarawak only recognizes ‘temuda’ i.e. land
brought under
cultivation through felling of virgin jungle and in
continuous
occupation of the natives give rise to rights over land.
The paramount
issue in these appeals according to learned SLC is
whether the custom
of pemakai menoa falls within the definition of
law in Article 160
(2) of the Federal Constitution or the definition of
customary law in
the Sarawak Land Code and the Native Courts
Ordinance (Cap. 43
1958 Edn of Laws of Sarawak) which came
into force on
1.9.1955.
[34] Learned
counsel for the appellants contends that it does not. We
were referred to
various writings, Orders and Ordinances
applicable in
Sarawak since 1939 and this include a passage from
A.F. Porter’s book
“The Development Of Land Administration
In Sarawak From The
Rule Of Rajah Brooke To The Present
Time (1841-1965)”
quoted by the Federal Court in
Superintendant Of
Lands & Surveys Miri Division & Anor v
Madeli Bin Salleh
[2007] 6 CLJ 509, which speaks of a body of
customs known by
generic term Indonesian Adat in reference to a
system of land
tenure originating in and supported by customary
law. This
Indonesian Adat has been authoritatively stated in the
Sarawak
Secretariat Circular No. 12/1939 dated 21.11.1939
signed by the
Chief Secretary. The Circular recognizes that the
customary tenure
of land practiced in Sarawak at that time is the
right to cultivate
cleared land vests in the community with priority to
the heirs of the
original feller of big jungle evidence by existence of
permanent
cultivation of reasonable density.
[35] However, it
was also submitted for the appellants that based on
writings by AJN
Richards in “Report On Land Law & Anor”
published in
November 1961, not all native customs give rise to
rights to land or
is part of customary law relating to customary land
tenure over land.
It was submitted that AJN Richard’s definition of
‘custom’ is consistent with the definition of
law in Article 160(2) of
the Federal
Constitution which includes any custom or usage
having the force
of law in the Federation or any part thereof. It was
argued that the
customary law in Sarawak only refers to customs
which the laws of
Sarawak recognize; and only these customs
have the force of
law.
[36] Going by the
above argument, it was submitted that Sarawak laws
as contained in
the various executive Orders issued during the
Rajah Brooke’s
days [Rajah’s Order 1875, The Fruit Trees Order
1989, Land Order
1920 (s.21), Supplementary to Land Order No.
VIII 1920 (s.2),
Rajah Order L-7 of 1933 (s.66 of the Land
Settlement
Ordinance), Secretariat Circular No.12/1939, Tusun
Tunggu (sea
Dayak/Iban codes of fines) and s.5(2) of Sarawak
Land Code (Sarawak
cap. 81)] recognize only the ‘temuda’ as
native customary
rights over land. ‘Temuda’ is a process whereby
virgin jungle was
cleared for farming and occupation by a native,
and the land that
had been cleared is under continuous
occupation.
[37] Learned SLC
took us through several cases on the issue of
‘temuda’ decided
by the Native Court of Appeal which is the
highest court in
the native court system of Sarawak in his written
submission, and
submitted that the Native Court of Appeal had
consistently
declared that customary rights to land is established
by whoever fells
the primary jungle and cultivates thereon. (See
Galau Ak Kumbong v
Penghulu Imang & 30 Ors, Sumbang ak
Sekam v Engkarong
ak Ajah (1958) SCR 95 and Injing v Tuah
& Anor [1971]
1 MLJ 115,116).
[38] Learned SLC
also referred to certain passages in Superintendent
Of Lands &
Surveys Bintulu v Nor ak Nyawai & Ors [2005] 3
CLJ 555 at p
572-573 where the Court said that the natives’ NCR
claim in that case
‘must be confined to the areas where they
occupy
continuously for cultivation. It does not include areas,
within half a
day’s walking distance from a longhouse, where the
natives went to
collect their resources from the uncleared forests,
under the concept
of pemakai menoa which no Order,
Proclamation or
statute has given recognition or which do not have
the force of law’.
[39] In Bisi
Jinggut v Superintendent of Lands & Survey Kuching
Division &
Ors, Suryadi FCJ, delivering the judgment of the Court
held that the
creation or acquisition of NCR over land must be in
accordance with
the customs and recognized practices of a
particular
community. For the Iban, the customs is codified in
Tusun Tunggu which
recognized only the ‘temudas’.
[40] Thus, it was
submitted that the learned Judges in these appeals
have erred when
they ruled that the plaintiffs had rights beyond the
areas they had
cleared and brought under cultivation and therefore
had wrongly
applied the native customary law of the Iban
community in
Sarawak. It was argued, therefore, that it follows
from the above
submission that the order of rectification i.e. for the
defendant (the
State Government of Sarawak and the
Superintendent of
Lands & Survey) to exclude the natives pemakai
menoa it being the
plaintiffs NCR from the provisional lease is
equally wrong and
should be set aside.
[41] As for the other
defendants (the registered provisional lease
holders), they
associated themselves with the submission by
learned SLC on the
issue of pemakai menoa. Their main
submission focused
mainly on the creation of NCR by the plaintiffs
in this case. This
submission concerns mainly the evidence and
the finding of
facts by the trial Judges. We will say more on this in
the later part of
this judgment.
[42] Related to
the issue of the area claim by the plaintiffs, learned
State Counsel also
submitted that part of the area claimed include
river bank reserve
about the size of one (1) km long running along
the banks of
Sungei Tampoi. It was submitted that no NCR could
be claimed over
reserved land.
[43] In response
to the submission by the defendants, learned counsel
for the plaintiffs
submitted that it is contrary to established
authorities to say
that pemakai menoa should not be recognized in
law because its
creation does not have the force of law as
envisaged in the
express ‘law’ in Article 160(2) of the Federal
Constitution. He
submitted that the creation of pemakai menoa
and garis menoa
(and this includes the pulau galau) is Iban adat or
usage.
[44] Learned counsel cited Anyam & Anor v
Intan (1948-1949) supp
MLJ 13, a case of
estate distribution according to the
Muhammadan law and
the Malay custom, where it was held that
under section
184(iii) the expression “having force of law” in
Muhammadan law and
the adat. In another case In Re Haji
Mansur bin Duseh
alias Matso bin Duseh decd(1940) 1 MLJ
110, the Court
said that for the purpose of section 184(iii) Probate
and Administration
Enactment, ‘a body of unwritten law, that is
customary law
known as adat’ exist until the contrary is
established. Mohd
Noor Ahmad J (as he then was) in Sagong Bin
Tasi & Ors v
Kerajaaan Negeri Selangor & Ors [2002] 2 MLJ
591, observed at p
618 that:
“Apart from the
orang asli and the native people of the Borneo
states, there are
no other classes of people in Malaysia who
occupy the said
lands on the basis of customary rights, except
the lands under
the tribal adat in Negeri Sembilan and Malacca.”
[45] Learned
counsel also referred to the judgment by David Wong J
(as he then was)
in Mohamad Rambli bin Kawi v
Superintendent of
Lands Kuching & Anor [2010] 8 MLJ 441,
where the learned
Judge held, inter alia, that the Federal
Constitution gives
protection to NCR through application of Article
160(2) of the
Federal Constitution. The learned Judge said, at pp.
469-470 of the law
report, as follows:
“[49] Whether
natives in Sarawak have the right of disposition
of NCR land, in my
view, must be considered in the
context of their
customs and traditions together with the
Federal
Constitution. The reason is simple and that is the
Federal
Constitution gives protection to NCR. The first of
such protection in
art 160(2), which defines law to include
‘customs or usage
having the force of law in the
Federation or any
part thereof’. What this means is that
if, as in this
case, the custom of the Malay communities
allows disposition
of land with NCR among themselves
the court is
constitutionally bound to protect that custom.
This is how Dr
Ramy Bulan in her paper titled ‘Legal
Perspectives On
Native Customary Land Rights in
Sarawak’ puts it
at p 151:
The denial of
customs supporting native property
rights on the
basis that they are different from non
native property
holding patterns not only violates
art 160(2) by
failing to recognize customs as part
of Malaysian law,
it also violates the right of
natives to
equality before the law, guaranteed by
art 8(1) of the
Federal Constitution. The failure to
provide for
registration of native title and to accord
indefeasibility to
registered interest could similarly
violates art 8(1)
[50] There is much
merit in what Dr Bulan says and I adopt
her view ...”
[46] Based on the
above authorities, learned counsel for the
respondent
submitted that the treatment of Article 160(2) and
Article 8(1) of
the Federal Constitution by the courts demonstrates
that these
provisions incorporate common law principles that are
largely not
legislated which include recognition of local customs.
Therefore, it was
submitted, the learned Judge did not err in giving
a wider
interpretation to the phrase “having the force of law” in
Article 160(2) of
the Federal Constitution to include common law
doctrines, Malay
tribal customary laws (adat perpateh) and the
aboriginal and
native customary land rights and in finding that Iban
custom has the
force of law.
[47] At this juncture, we will observe that it
is not the defendant case
that the creation
of pemakai menoa or garis menoa is never part of
Iban custom. The
only complaint by the defendants is that the
particular Iban
customs never have the force of law under Article
160(2) of the
Federal Constitution. We must say that the
expression “having
the force of law” in Article 160 of the Federal
Constitution must
not be read to confine only to statute law or
legislative
orders. It must also encompass, in our view, the
Malaysian common
law developed through the cases decided by
our courts
especially the appellate and the apex court.
[48] It is noted
that the Federal Court’s decision in Bisi ak Jinggot
(supra) cited by
the appellants, did not discuss the issue whether
pemakai menoa is
part of Iban custom or whether its creation has
the force of law.
The main issue discussed in Bisi ak Jinggot
(supra) is the
untitled land known as temuda cleared by the natives
of Sarawak of
Dayak origin for padi farming and whether such land
is capable of
being inherited or transfer by sale. At the Court of
Appeal, it was
recognized that under the Iban system of Tusun
Tunggu there are
only two modes or acquiring customary rights
over land – one is
felling a virgin jungle and planting crops thereon
to create the
‘temuda’ and the other is by gift or inheritance. Both
modes were
approved or endorsed by the Federal Court in the
same case.
[49] The concept
of temuda, pemakai menoa and pulau galau was first
discussed at great
length by Ian Chin J in the celebrated case of
Nor Anak Nyawai
& Ors v Borneo Pulp Plantation Sdn Bhd &
Ors [2001] 6 MLJ
241. One of the issue in that case was that the
Ibans could only
claim rights to temuda as provided in the Tusun
Tunggu or its
successor the Adat Iban 1933. But the trial Judge,
after examining
the various orders, decrees of the white Rajah
Brooke and the
writing of various authors claiming to be experts on
Sarawak natives customary
law and customary rights concluded at
page 797:
“Thus far, the
native customary rights of an Iban associated with
the terms
‘temuda’, ‘pemakai menoa’ and ‘pulau galau’ have not
been abolished.
They have survived through all the Orders and
Ordinances. It is
not surprising given the attitude of the First
Rajah which has
been commented on by various authors. It has
been said that
though Sarawak was ceded to James Brooke and
with it the
proprietorship and sovereignty over the land, he had
shown a consistent
respect for native customary rights over land
(see Anthony
Porter – “The Development of Land Administration
in Sarawak from
the rule of Rajah James Brooke to the present
time
(1841-1965)”). In fact James Brooke had referred to native
customary rights
as “the indefeasible rights of the Aborigines”
(see John Templer
– “The Private Letters of Sir James Brooke,
K.C.B., Rajah of
Sarawak”). James Brooke was ‘acutely aware
of the prior
presence of native communities, whose own laws in
relation to ownership
and development of land have been
consistently
honoured” (see Anthony Porter, p.16).
In my view there
is another obvious though unmentioned reason
for not attempting
to prohibit entirely native customary rights.
During the reign
of the Rajah he has to contend with rebellions
after rebellions
of various native groups and he was able to
convince one group
to go on war expeditions on his behalf
against the other.
The exploits of Munan Anak Minggat is an
example (see
Robert M. Pringle’s Thesis on The Ibans of
Sarawak Under
Brooke Rule 1841-1941). If the Rajah had
abolished all
those rights he would have united all the natives
and he would have
a war against him by a united front made up
of all the natives
of Sarawak. His head would have been the
trophy that would
be sought, it being the custom of that time to
take the head of
an enemy. To put it another way, the Rajah
cannot afford to
abolish those rights given the ability of the like
of Munan to lead
his people.”
[50] In the same
case, Ian Chin J also held (at p.800) that the
recognizance or
existence of NCR is ‘not dependent on statutes,
or any
legislation, executive or judicial declaration’. The customary
rights however
could be extinguished by express provision in the
statutes,
legislation or executive orders. However, his Lordship
concluded after he
had gone through those relevant legislation and
orders, that none
of them had extinguished the creation of temuda,
pemakai menoa and
pulau galau as part of native customs and
rights in Sarawak
though they restricted their creation.
[51] The arguments
by the appellant in this appeal to persuade us to
decide that the
Iban custom of creating pemakai menoa does not
have the force of
law under the Sarawak laws are the same
arguments that
were raised in Nor Anak Nyawai case. Those
arguments have
been rejected by the Court. In fact on appeal, Ian
Chin’s J decision
was affirmed by the Court of Appeal in
Superintendent Of
Lands & Surveys, Bintulu v Nor Anak
Nyawai & Ors
and Another Appeal [2006] 1 MLJ 256. Following
on the footsteps
of Nor Anak Nyawai are several other cases
decided by the
High Court in Sarawak. In Agi Ak Bungkong &
Ors v Ladang Sawit
Bintulu Sdn Bhd & Ors [2010] 4 MLJ 204
David Wong J (as
he then was) said at p.215:
“[15] However
counsel for the defendants contends that as
‘Pemakai Menoa’ is
not listed in the Adat Iban 1993 codification
of Iban customary
custom and practice or in any of the statutes
(which is not
disputed) and hence not recognised by statue, the
law should not
give recognition to it or used by the court to
confer NCR on the
lands. The same argument was made by the
then learned state
attorney general in Nor Anak Nyawai & Ors v
Borneo Pulp
Plantation Sdn Bhd & Ors [2001] 6 MLJ 241 which
was rejected by
both the High Court and Court of Appeal. Both
courts held that
native title requires an examination of the
customs and
practices of each individual community and this
involves a factual
inquiry and not whether the customs appear in
the statute book.
This view is consistent with the intention of
Federal Constitution
as native customs are accorded the status
of law under art
160(2) of the Federal Consitution which defines
law to include
‘custom or usage having the force of law in the
Federation or any
part thereof’. In that case the view of the
Court of Appeal
differs from the High Court only in respect of the
factual evaluation
of evidence in which they found that the
plaintiffs there
had failed in proving ‘Pemakai Menoa’ in the
disputed area.
[16] Accordingly,
I reject counsel for the defendants’
contention that there
cannot be NCR unless the same is
embodied in
statutes.”
[52] Learned
counsel for the respondents draws our attention to some
of the cases that
had followed Nor Anak Nyawai on the issue of
temuda, pemakai
menoa and pulau galau and recognizing them as
part of Iban
customs in creating NCR. These cases are: Luking
Uding & Ors v
Superintendent Of Lands and Surveys Kota
Samarahan Division
& Ors [2011] 7 CLJ 342; Muli Anak Baya &
Anor v Everbright
Enterprise Sdn Bhd, Civil Suit No. 21-6-2009
(Unreported); TR
Gayan Anak Tupai & Ors v Vita Hill Sdn Bhd
& Ors, Civil
Suit No. 21-4-2009 Sibu High Court (Unreported)
and Usang Labit
& 3 Ors V Rosebay Enterprise Sdn Bhd & 2
Ors , Civil Suit
No. 21-1-2010 at Sibu High Court (Unreported).
[53] It is interesting
to note that in Nor Anak Nyawai, the trial Judge
had relied on the
expert evidence of Nicholas Bawin ak Anggat
(Nicholas) on the customs and practices of the
Ibans in Sarawak
and accepted the
evidence that the natives customary rights in
Sarawak extend to
pemakai menoa, garis menoa and pulau galau;
not simply
confined to temuda. His evidence was accepted by the
Court of Appeal.
The Federal Court in Superintendant Of Lands
& Surveys,
Miri Division & Anor v Madeli Salleh [2007] 6 CLJ
509 had also
approved Nicholas Bawin’s expert evidence on
natives customs
and practices in Sarawak. Nicholas had also gave
evidence in other
NCR cases that came to Court after Nor Anak
Nyawai. More
importantly, for the purpose of this appeal, he also
testified in the
Lukings and the Nyutan appeals. The trial Judge in
both the appeals
accepted his expert evidence on the natives
customs and
practices in Sarawak in relation to the creation of
natives customary
rights over lands.
[54] In the Nyutan
appeals, Nicholas testified for the plaintiffs as PW14.
Nicholas is an
Iban and was, at the time of giving evidence, the
Deputy Head of
Majlis Adat Istiadat Sarawak. He had been in that
position since
12.8.1992. Nicholas obtained his knowledge in Adat
Iban through his
experience, learning, reading and studying of
Adat Iban. The
learned Judge found on evidence that Nicholas’s
works with the
Majlis Adat Istiadat Sarawak requires him to study
and record the
Adat Iban. Nicholas testified that pioneering
families of Iban
would fell virgin forest for settlement and farming
after which the
community can establish its rights to the felled
areas. It is
Nicholas’s evidence that a pemakai menoa
encompasses an
area of land held by a distinct longhouse or
village community,
and includes farms, gardens, fruit groves,
cemetery, water
and forest within a defined boundary or garis
menoa. A pemakai
menoa also includes temuda which is
cultivated land
which is left to fallow, tembawai or old long house
sites, and pulau
or patches of virgin forest that have been left
uncultivated to
provide the community with forest resources for
domestic use. As a
general rule, the household within the
community that
first felled the forest secured rights over specific
areas of land.
Those rights are heritable, passing ideally from one
generation to
generation of household members. According to
PW14 (Nicholas)
where several pioneering villages occupied a
general area,
boundaries (garis menoa) are drawn between
villages. These
boundaries followed streams, watersheds, ridges
and permanent
landmarks.
[55] The above
evidence of PW14 Nicholas the expert, was accepted
by the trial
Judge. Alan Clement Skinner J (as he then was) in
Nyutan appeals
said :
“I accept what
PW14 said about the adat Iban above. I accept it
that from the
various ways he has come into this knowledge, he
is able to give
evidence on the matters related by him.”
[56] In Luking
appeals, Nicholas also testified for the plaintiffs as PW2.
He gave similar
evidence as in the Nyutan appeals on Iban
customs and
practices and in particular on the creation temudas
and pemakai menoa.
Linton Albert J (as he then was) the trial
Judge in the
Luking appeals accepted PW2, the expert testimony
and taken together
with the evidence of the other plaintiffs’
witnesses (mostly
natives) and rejected the contention by the
defendants that
the plaintiffs had roamed or foraged the areas in
pemakai menoa in
search of food and that they were not in
continuous
occupation of the area marked as pemakai menoa. The
learned Judge said
in his Judgment:
“Even though the
historical account of how the plaintiffs came to
settle and
exercise customary rights over the areas of land they
claim may be based
on hearsay evidence the court must take a
realistic approach
in a case such as this when applying the rules
of evidence. It
would be unrealistic to insist on strict evidentiary
standards to prove
things which occurred many generations ago
within a rural
community.”
[57] With regard
to the issue of whether the plaintiffs in Luking appeals
and Nyutan appeals
have proof their claim for NCR, one must
borne in mind that
the respective trial Judge had heard and
recorded the
evidence of the witnesses, particularly the plaintiffs’
witnesses
firsthand. They believed and accepted their evidence. In
the circumstance,
the appellate court should be slowed in
departing from the
trial Judge’s finding and conclusion of facts
based on those
evidence.
[58] For instance,
in the Nyutan appeals the learned trial Judge had
said this on PW1’s
evidence:
“It is PW1’s
evidence that during the reign of the Sultan of
Brunei the Renum
or Melikin Sea Dayaks paid yearly tributes in
the form of “Ai
Pinang” to the Sultan. The Sultan gave the first 6
Renum Chiefs the
title of Orang Kaya, which title, when the
British took over,
became known as a Penghulu. During one of
the visits of
Orang Kaya Sago, a Renum Dayak Chief, to pay
tribute to the
Sultan of Brunei, the Sultan gave Orang Kaya
Sago a handful of
Tanah Keramat as a symbol that the Renum
Dayaks were his
subjects and under his protection. The
plaintiffs’
ancestors then created the “Guna Gayau” in the shape
of a crocodile at
a site about 4 kilometres from Kampung Lebor.
The heart of “Guna
Gayau” was made out of the Tanah Keramat
given by the
Sultan of Brunei. Till today, every year a ceremony
called “Enselan
Guna” is performed to offer food and
thanksgiving to
the spirits of “Guna Gayau” in the belief that the
welfare of the
people of Kampung Lebor will be looked after.
Besides the Tanah
Keramat, the Sultan of Brunei is also said to
have presented to
Orang Kaya Sago a wooden door, a Tombak
(spear) and a
keris. The spear and keris have since gone
missing but the
wooden door with its carvings of a dragon and
snake are still
kept at “Rumah Guna”.
PW1 testified that
their ancestors left many important landmarks
and sites where
they settled and occupied, which are to be
found within the
area claimed by the plaintiffs as their native
customary land.
Thus, besides numerous Tembawai which
were the sites of
settlement during the time of various Orang
Kayas, Pendam
Serias is the earliest burial ground as well as
the site of a
Pulau (a term explained shortly) which is sacred to
the residents of
Kampung Lebor. According to PW1, Punjong
Berut is the site
where the original belian peg was planted to
show the extent of
the Rajah’s authority to the plaintiffs’ land
which can still be
seen today. PW1 also referred to another site
of significance
called Tapang Tanah Keladan where the brother
of Orang Kaya
Daka, one Igin was the pioneer to open up this
area where the
Tapang Keladan tree is found and still growing
there. It is PW1’s
evidence that the areas which their ancestors
occupied,
cultivated and lived upon subsists until today.
According to PW1
the present residents of Kampung Lebor are
mostly farmers who
plant padi, vegetables, rubber, pepper and
other crops for
their own consumption and as a source of
income. The
plaintiffs also hunt in their “pulau” which are areas
of forest and
jungles, which aside from those which are sacred
grounds, have
abundance of useful timber, fruit trees, animals
and other jungle produce.
The plaintiffs also fish in the rivers
within their
“pemakai menoa” which is a communal land,
comprising of a
“pulau” and “temuda” or farmland. Therefore,
PW1 testified that
to the plaintiffs, their “pemakai menoa” or
lands and forest
over which they claim native customary rights is
not just a source
of livelihood but also constitutes life itself as
the land and
forest is also fundamental to their social, cultural
and spiritual
aspects as natives.
PW1 further
testified that the residents of Kampung Lebor
exercise their
native customary rights over the lands which they
claim as their
native customary land within a defined boundary
only, the extent
and location of which is marked by rivers,
mountain ridges,
particular trees and other important landmarks,
which is known to
the residents of Kampung Lebor. These
boundaries
separate their native customary lands from that of
other native
communities who also claim to exercise customary
rights over areas
they claim.”
[59] With regard
to the mapping and demarcation of the areas claimed
by the plaintiffs
as their NCR, the learned trial Judge in the Nyutan
appeals appraised
the evidence as follows:
“It was the
evidence of PW1 that in February 2003 a working
committee was at
up from the residents of Kampung Lebor to
produce a proper
map of the boundaries of their native
customary land.
For this purpose they invited one Nicholas
Mujah Ak Ason to
assist them to survey their native customary
land. PW1
testified that they held 2 meetings with Nicholas
Mujah and in March
and April 2003, PW1 and other members of
the working
committee walked the whole length of the boundary
of their native
customary land, indicating to Nicholas Ak Mujah
numerous places of
historical and cultural significance to the
plaintiffs within
the boundary of their native customary land.
Mr Nicholas Mujah
Ak Ason (PW12) confirmed what PW1 had
said on the
matter. PW12 testified that he has worked with the
Sarawak Dayak Iban
Association and attended numerous
workshops and
seminars on community mapping organized and
conducted by
Sahabat Alam Malaysia and Borneo Research
Institute,
Malaysia. Through those attendances, PW12 learned
the methodology
and techniques of mapping which included the
operation of GPS
(Global Positioning System) equipment, how
to operate these
equipment to collect GPS data and for
surveying, the
setting of co-ordinating points, how to do plotting
on a topographic
map, how to count the acreage of land
surveyed and how
to transfer GPS data into the GIS
(Geographic Information System). PW12 said he
had
undertaken mapping
work for 11 other rural native communities
besides that of
Kampung Lebor. PW12 testified that he used a
Garmin brand GPS
to take readings at some 77 co-ordinate
points to
determine the boundary of Kampung Lebor. The data
collected by him
were entered into a note-book [exhibit P72(1) to
(12)], where the
co-ordinate points had names or where the
committee members
gave names of rivers, hills, “tembawai” or
“pendam”, these
data were also recorded in the note book. I
accept PW12’s
evidence. Although he admitted in crossexamination
to making errors
in some of his recordings, I did not
regard them as
material nor affecting the overall accuracy and
reliability of his
mapping work.
PW12 handed all
the data he had collected for the boundary
map of the
plaintiffs native customary land to Mark Bujang
(PW13) who
graduated with a degree of Bachelor of Science
Geology, during
which course of study he was trained to
produce scaled
geological maps. PW13 works as a programme
and community
mapping coordinator. He has worked with
native communities
of Sarawak to demarcate their native
customary land
boundaries. PW13 testified that from the data
he received from
PW12 (Nicholas Mujah Ak Ason), he produced
a map drawn to
scale showing the boundaries of the plaintiffs’
native customary
lands which the court marked exhibit P76.
This is the same
as the map found in the Bundle of Disputed
Documents (BDD)
which the court eventually admitted into
evidence and
marked exhibit P76A. I accept the evidence of
PW13. I also
accept that the scale maps produced by him are
reliable and
accurate.
When exhibit P76,
exhibit P76A and the plan attached to the
plaintiffs’
statement of claim are compared, it cannot be denied
that parts of the
areas claimed by the plaintiffs as their native
customary land is
covered or comes within the 3 parcels of land
alienated to the
1st and 2nd defendants.
[60] Likewise,
Linton Albert J, the trial Judge in Luking appeals, after
referring to the
definite statement of law by the Federal Court in
Superintendent of
Lands & Surveys Miri Division & Anor v
Madeli Bin Salleh
(supra) applicable to the determination of
claims to native
land under native customary rights and the
proposition of law
by Ian Chin J on the establishment and creation
of pemakai menoa
in Nor Anak Nyawai (supra) said that:
“Since the
plaintiffs claim to native land under native customary
rights was
acquired prior 1.1.1958 the strictures imposed by
(Sarawak) Land
Code for the creation of native customary rights
over land after
that date have no application and do not
therefore, fall to
be determined’.
[61] Then the
learned Judge went on to say:
“In this action,
quite apart from proof established by exhibit P13,
proof of the
plaintiff’s pemakai menoa was readily available from
the oral
testimonies of their witnesses which are adumbrated
above coupled with
the evidence of DW4 who was
understandably untruthful
as to the size of the cleared area of 38
hectares,
nevertheless, showed that the plaintiffs had been in
occupation within
their pemakai menoa since 1954. In his
analysis of the
photographs under exhibit D20, Claus-Peter
Gross (PW11) Ph.D
and Diploma in Forestry whose
qualifications and
experience encompass remote sensing
applications for
forest and land use inventories, environmental
monitoring,
thematic mapping, image interpretation,
establishment of
GIS database, training of experts, project
management,
project evaluation in more than ten countries,
gave the following
conclusions:
“Aerial photo
interpretation 1954
Polygon features
Primary Forest
4153 ha
Disturbed Forest
395 ha
Poor Forest 117 ha
Regeneration
Forest/Shrubs 225 ha
Clearing
/Agriculture 437 ha
_______
Sum 5327 ha
Line features
1 Longhouse 40m”
I have no
hesitation in preferring the interpretation of PW11 over
that of D4 not
least because unlike DW4 who was a minor
functionary in the
State Civil Service PW11 was not laboring
under any
constraints real or imagined and arrived at a
reasoned analysis
of the aerial photographs in D20.
...
It was never
remotely suggested that the plaintiffs and their
ancestors had
‘roamed or foraged’ the areas in their ‘pemakai
menoa’ in search
of food. It was clear that the plaintiffs from the
time of their
ancestors had been in occupation of their ‘pemakai
menoa’ which
followed a defined boundary based on permanent
landmarks which
separated Kampung Merakai from the
‘pemakai menoa’ of
neighbouring villages whose own ‘pemakai
menoa’ were
contiguous to that of Kampung Merakai and
witnesses from
these other villages gave credible testimony of
the long
established ‘garis menoa’ delineating the ‘pemakai
menoa’ from their
respective ancestors. Thus, applying the
principles I have
set out to the evidence adduced by the
plaintiffs and
defendants adumbrated I am satisfied that it is
more probable than
not that the plaintiffs have established their
native customary
rights to the ‘pemakai menoa’ which they
claim, in
accordance with the civil standard of proof required
under Section
101(1) of the Evidence Act 1950 which states:
“Whoever desires
any court to give judgment as to any
legal right or
liability, dependent on the existence of facts
which he asserts,
must prove that those facts exist.
In the
circumstances, the Defendants contention that the
Plaintiffs do not
have customary rights over the land claimed or
that the same
falls outside the provisional lease are demolished
because quite
apart from the precise delineation set out in
exhibit P13, the
description of the Plaintiffs’ ‘pemakai menoa’
given by their
witnesses contain sufficient particulars to
demarcate the
plaintiffs’ ‘pemakai menoa’ with the degree of
certainty to
sustain their claim over the ‘pemakai menoa’ which
is clearly within
part of the provisional lease issued to the 1st and
2nd Defendants
under Lot 2979 Melikin Land District”
[62] As to the creation of the pemakai menoa
and the fixation of the
‘garis menoa’ in
the Luking and Nyutan appeals, we are of the
view that this is
largely a determination and finding of facts by the
trial Judge. On
the evidence of plaintiff witnesses which comprises
mainly the natives
who were born and brought up in the
longhouses within
the area claimed by the plaintiffs, we are
satisfied that
there is ample evidence for the trial Judge to come to
a conclusion that
the plaintiffs have proved and established their
NCR the disputed
area of land before 1.1.1958.
[63] However, we
are in agreement with the submission by learned
lead State Counsel
Dato JC Fong that part of the land claimed by
the plaintiffs in
these appeals which formed the river reserved
ought to be
excluded from the claimed area.
[64] With respect
to the submission by counsel for the other appellants,
the original provisional
lease holders and their successor in title,
they associated
and adopted the submission by learned lead State
Counsel on the
first issue which is the question of law whether the
claim and creation
of pemakai menoa have the force of law under
the Sarawak laws.
[65] However, with
regards to the second issue whether the plaintiffs
have proved their
claim, counsel for the respective provisional
lease holders
raised additional arguments.
[66] Learned
counsel for 3rd and 4th defendant in Luking appeals
(Appeal Nos. 166
& 756) Lembaga Pembangunan Dan Lindungan
Tanah and Nirwana
Muhibbah Sdn Bhd Mr. Shankar Ram, for
example, argued
that the learned Judge erred in holding that the
NCR still subsists
when the area involved had been declared a
mixed zone land
vide Declaration Order 1998 and the declaration
has not been
invalidated. We have two comments on this
argument. Firstly,
the declaration was made in 1998 whereas the
trial Judges found
that the plaintiffs have acquired their NCR
before 1958.
Secondly, the declaration does not extinguish the
NCR. It is a
settled principle at common law that extinguishment of
native customary
rights can be done only by express statutory
provision. The
other aspect of Mr. Shankar Ram’s submission is
related to proofs
of the claim. As we have said earlier, this is a
matter of evidence
before the trial Judge and the finding of facts by
him on those
evidence. We do not think that we should disturb it
hastily.
[67] Learned
counsel for the 1st and 2nd defendant Lembaga
Pembangunan Dan
Lindungan Tanah and Nirwana Muhibbah Sdn
Bhd - in Nyutan
appeals Mr Ivan Hussein raised the issue that his
clients has
indefeasibility of title under s.132 of the Sarawak Land
Code in respect of
the provisional leases issued by the 3rd
defendant the
State Government of Sarawak because they had
paid the premium
on the land. He argued that this indefeasibility of
title can only be
defeated if there is fraud involved in the issuance
of the provisional
leases. (See Kho Kwang Choon v Phuman
Singh [1968] 1 MLJ
188). However, he said in this case no fraud
was pleaded and
none was found by the trial Judge. The other
point raised by
the learned counsel is with regard to the river bank
reserves along the
river bank along Sungai Tampoi, Sungai Krang
and Sungai
Meringgang. He pointed out that the reserve is
provided under
s.38(1) of the Sarawak Land Code. In relation to
this, he pointed
out to us that the respondent’s action is a
representative
action claiming for communal rights to their natives
customary land.
But, in so far as the claim to areas along the river
bank, the claim
was by individuals where only some testified in
Court. With regard
to the ratification Order given by the trial Judge
directing the
State Government to rectify the land register to
comply with the
Court Order declaring the land as NCR, learned
counsel pointed
out that the respondent had not produced
sufficient
material for the Registrar to carry out the ratification
exercise. In our
view, the issue of indefeasibility of title is
dependent on the
finding of fact whether the plaintiff had proved
their NCR claim,
which in this case the trial Judge had found to be
so. Therefore, in
our opinion the area which the Court had found
to be NCR land
must be excluded from the provisional leases. For
that reason, the
Court had made the ratification Order for the State
Government to
rectify the register so that the land that is declared
to be NCR can be
excluded.
[68] Learned
counsel for the 1st and 2nd interveners - PGSB and PSSB
– in Appeal No.
137 submitted on the issue of evidence and proof
of claim which we
have already said that we would not intervene.
The other issue
which they submitted is that the interveners rights
to lease of State
land Lot 2984 Melikin Land District is indefeasible
under the Sarawak
Land Code because the interveners were bona
fide purchaser for
value of the lease from the original lease holders
without notice of
the NCR. We do not find any substance in this
argument because
it was never proven by the appellants that the
NCR had been
extinguished. In our view, the purchaser of the
lease took the
lease together with the NCR attached to the lands.
On the issue of
limitation raised by Mr. Lee in his submission we
do not think that
it can be sustained. Under the Sarawak Limitation
Ordinance any
claim on interests in land the limitation period is 12
years from the
date the cause of action arose. The plaintiffs in both
the Luking and the
Nyutan appeals have filed their claim well
within that time
limit.
[69] With regard
to the 3rd intervener RHB Bank, the submission is that
firstly, they had
not been heard in the High Court. Secondly, their
interest will be
adversely affected because they have provided
financing in the
form of banking facilities of RM66 million upon the
security of Lot
2984 in the Nyutan appeals. So, it was argued by
the learned
counsel for the 3rd intervener that his client is the
registered chargee
for the land and had acquired interest in Lot
2984. Thus, the
argument as to the indefeasibility of title would
apply to his
client. Again, we must say that the 3rd intervener
interest in
relation to the land claimed by the natives as NCR is
dependent upon the
trial Court’s finding whether the NCR claim
has been proven.
We have said earlier that this was so based on
the finding of
facts by the trial Judge. In other words, what we are
saying is this;
the provisional lease owner had charged the land to
the 3rd
intervener. Based on the size and the location and other
relevant factors
which the chargee must have taking into
consideration, the
3rd intervener had agreed to provide the facilities
of RM66 million.
With the finding by the trial Judge that the plaintiff
had proven their
NCR, and with which finding we agree, the
chargor and the
3rd intervener must now reconsider the facilities by
taking into
consideration the fact that the Court had ordered
ratification of
the register. It is pertinent to note that not the entire
area covered by
the provisional leases was declared by the trial
Court as NCR land.
In the circumstances, the actual land area
after excluding
the land which the Court found to be affected by
NCR, the line size
that is available to the chargee as security for
the financing
provided is now being reduced. This, in our view is a
matter that is to
be negotiated between the chargee and the
chargor.
[70] For the above
reasons, we dismissed all the five appeals with
costs of
RM10,000.00 against each of the defendants in each
appeals,
RM5,000.00 against each of the intervener in each
related appeals.
Deposit if any, be refunded to all appellants.
[71] My learned
brother Ramly Ali and Mohd Zawawi Salleh JJCA had
seen and read this
judgment in draft; and had approved the same.
Dated: 14th March
2016
(DATO’ ABDUL AZIZ
BIN ABDUL RAHIM)
Judge
Court of Appeal,
Putrajaya
Counsel and
Solicitors:
(Appeal No:
Q-01-164-2011)
For the appellants
: Datuk J C Fong
(Saferi bin Ali,
Nur Azhr bin Bujang with him)
State Legal
Counsel
Sarawak State
Attorney General’s Chambers
For the
respondents: Mr Harrison Ngau
Messrs. HNL &
Co
For the 1st
intervener: Mr Arthur Lee
Messrs. Arthur Lee
Lin & Co
For the 2nd
intervener: Mr Albert Tang Yew Liong
Advocate
(Appeal No:
Q-01-166-2011)
For the appellant
: Mr Shankar Ram Asnani
(Mr Daniel Ling
with him)
Thomas, Shankar
Ram & Co Advocates
For the
respondent: Mr Harrison Ngau
Messrs. HNL &
Co
For the
intervener: Mr Arthur Lee
Messrs. Arthur Lee
& Co
(Appeal No:
Q-02-756-2011)
For the appellant
: Mr Shankar Ram Asnani
(Mr Daniel Ling
with him)
Thomas, Shankar
Ram & Co Advocates
For the
respondent: Mr Harrison Ngau
Messrs. HNL &
Co
(Appeal No:
Q-01-137-03/2012)
For the appellant
: Mr Mohd Ivan bin Hussein
Messrs. Ivan
Hussein
For the
respondent: Mr Baru Bian
(Mr Joshua Parir
Baru)
Messrs. Baru Bian
& Co
For the
interveners: Mr Arthur Lee
Messrs. Arthur Lee
& Co
(Appeal No:
Q-01-136-03/2012)
For the appellant
: Datuk J C Fong
(Tuan Saferi bin
Ali, Tuan Nur Azhar bin Bujang
with him)
State Legal
Counsel
Sarawak State
Attorney General’s Chambers
For the
respondent: Mr Baru Bian
(Mr Joshua Parir
Baru with him)
Messrs. Baru Bian
& Co
For the
interveners: Mr Arthur Lee
Messrs. Arthur Lee
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