MALAYSIA IN THE HIGH COURT IN SABAH AND SARAWAK AT
KUCHING KCH-22NCvC-2/1-2015 5 BETWEEN
MIKI ANAK JINOP (f) [WNKP No. 710315-13-5206) No. 25,
Kampung Sebemban 94600 Lundu, Sarawak. … … … … … … … Plaintiff
AND SEPTIMUS AMIT
ANAK MIAW [WNKP No. 380517-13-5037] No. 24, Kampung Sebemban 94600 Lundu,
Sarawak. … … … … … … … Defendant
BEFORE THE HONOURABLE JUSTICE DATO RHODZARIAH
BT. BUJANG IN CHAMBER JUDGMENT
The plaintiff and the defendant are blood relatives. The
defendant is the plaintiff’s maternal uncle and she sued him in this action for
a 1/7th share in a parcel of land held under his name, described as Lot 412,
Block 10 Gading – Lundu Land District (“Lot 412”) which land used to belong to
the defendant’s grandfather cum the plaintiff’s great grandfather named Sileng
ak Merai (Sileng).
Sileng passed away sometime in 1967 without leaving any
will and on 26th 25 August 1976 the defendant was granted the letters of
administration for his estate in which the said land was one out of four
parcels of land listed in the Schedule to the said letters.
The defendant effected the transfer of the said land to
himself sometime in 2014. The land is situated at Kampung Sebemban in the
district of Lundu. The plaintiff in her statement of claim pleaded that as
adminstratrix to her late mother’s estate (who passed away on 17th January
1999) she is entitled to the said share in the land.
This judgment is written after a full trial of the
action. Family tree and dispute. It is opportune for me to pause here to make a
brief mention of the parties’ family tree and I will do so by using their first
names, starting with Sileng.
He was an Iban but married a Bidayuh named Dunga. They
were childless and adopted a girl named Sajah, an Iban (see the adoption
certificate at page 3 of Exhibit P2). Sajah in turn married an Iban named Miaw.
They have seven children and other than the plaintiff’s
mother Kosit and the defendant, the other five are Garib, Joseph Akib, Latip,
Jaib and Tiket. Besides Kosit, two other siblings of theirs have also passed
away i.e Garib and Latip. Garib’s son, Sporen ak. Bol (PW3) gave evidence on
behalf of his cousin, the plaintiff at the trial.
The plaintiff’s mother Kosit married a Bidayuh named
Ginop ak. Nyanang @ Jinop ak. Nyanang from Kampung Stenggang, Bau who passed
away on 4th May 20 2008. The plaintiff agreed in cross-examination that her
late father was working with Public Works Department or Jabatan Kerja Raya
(JKR) in Kuching, that she was born in Kampung Stenggang and that her parents
have a house in the said kampung. It is however not disputed that the
plaintiff’s parents also built a house on Lot 412 in 1985 but which the
defendant contended was done with his permission.
This was of course denied by the plaintiff. The house
were made of belian posts and have since been renovated by the plaintiff by
replacing the wooden walls with bricks and it is presently a semi-concrete
house. The plaintiff admitted in
cross-examination that after her mother died in 1999, her father moved back to
stay in Kampung Stenggang, Bau.
A fellow villager of Kampung Sebemban, one Ena ak. Jimbai
(PW2) agreed in his cross-examination that when the plaintiff’s mother passed
away in 1999, the plaintiff was already married and she stayed with her husband at Kampung Sungai
Lundu and Felda Sempadi and not at Kampung Sebemban.
However, in re-examination he said despite staying
elsewhere the plaintiff always come back to visit her parent’s house at Kampung
Sebemban. Even though the plaintiff disagreed with this but her cousin Sporen
agreed in cross-examination that the defendant gave the plaintiff’s mother
permission to stay on Lot 412 for he said he was present when the permission
was sought to build the house there.
It is not disputed however that other than building the
house, the plaintiff’s parents and then the plaintiff and her husband also
planted crops on Lot 15 412. Sporen did too (and of course the defendant did as
well) but according to Sporen his rambutan trees planted on Lot 412 were
chopped down by the defendant who also inundated his paddy field on the said
land with sand.
He has lodged a police report against the defendant for
doing all these but the police report was not produced as evidence. The
defendant in his evidence agreed that he cut down the trees because they were
planted on his land but said the sand that covered the paddy field was washed
down from the mountain by rain. Customary entitlement to Lot 412.
This entitlement is based solely on custom – that of the
Ibans since Sileng died intestate. Section 17 (c) the Administration of Estates
Ordinance provides that the estate of such a deceased must be distributed by
the administrator of his estate to his beneficiaries according to their “shares
to which they are entitled by recognized law or custom”.
In this respect the parties have each called a witness on
what the Iban custom says about the entitlement to land. The plaintiff’s expert
witness is Mr. Gungoi anak Joll @ Barnabas who was, at the time of the trial,
the Ketua Kaum or Headman of Kampung Sebemban.
That of the defendant is another Iban, Mr. Nicholas Bawing
ak. Anggat who was the Deputy President of Majlis Adat Istiadat Sarawak and
impressively had a hand in the codification of the Iban custom known as Adat
Iban 1993 as well as that for the Bidayuhs, Kayans, Kenyahs, amongst others.
What is more he has been called to testify in court not
just on the customary laws of the Ibans but also that of the Penans, Beketans
and Melanaus and has written several books on Iban customs as well as give
talks on the said customs.
In relation to this case both witnesses have enlightened
the court on two customary concept of the Ibans which have been raised by the
defendant to defeat the claim of the plaintiff i.e ‘nguai’ and ‘lanting’.
Nguai.
Unlike lanting which is specifically enacted as section
183 of the Adat Iban Order, 1993, nguai is not and Mr. Bungoi ak. Joll did not
give any evidence pertaining to it but Mr. Nicholas Bawing did. In his words
this is what that customs means.
“A. ‘Nguai’ is a
term of the Iban whereby an Iban marries to another Iban or another race for
that matter. Upon that marriage he or she chooses to reside with her husband’s
family or with his wife’s family. During that period of the marriage the
parents give permai anak or a token for him or her to bring to the new family
so that the relation between her and him with that original family remains
(page 73 of the notes of proceedings).”
He was then asked this follow-up question (also appearing
at page 73 of the notes of proceedings): “Q. What about the inheritance rights
of a person who ‘nguai’?
A. By virtue of following her husband or his wife, he or
she does not hold rights as before
except for the rights of the parents in the form of fruit trees and other
rights over the land but the full rights reside with her parents or siblings
for instance she can use any of their land for purpose of planting if the
family agrees. She can also have a share of fruit from the fruit growth in time
of fruit season. These are among the rights she still have privilege to enjoy.
Other than that her rights she enjoys with that of her husband or his wife.”
Then in cross-examination he explained this custom of
nguai further at page 75 of the notes of proceedings:
“PUT: You
specifically in your answer mentioned about ‘nguai’ is a case where a man or a
women got married and chooses to reside with his or her wife’s or husband’s
family. I put it to you that this concept of ‘nguai’ is not applicable where
the couple decide to live on their own that is to say they do not stay with
either of their respective family. Do you agree?
A. I agree, however the traditional concept the new
couple upon the marriage normally stay with other one of the spouse’s parents.
However, under the modern day concept the couple can choose not to stay with
both the parents. In other words they choose to stay on their own.
Q. And that is not strictly a ‘nguai’, correct?
A. Yes but subject to my earlier explanation.”
From the facts of this case, as outlined by me earlier,
it is obvious despite the defendant’s strong stand that Kosit is not entitled
(and hence the plaintiff) to a share in Lot 412 because after marriage she has
left her village to stay in her husband’s village where he had built their
matrimonial house there, that nguai is not applicable to Kosit based on the
defendant’s own expert’s evidence above because she did not stay with her husband’s
family after marriage and neither did the plaintiff after hers.
The evidence shows that each one of them stayed on their own with their respective spouses. What is
even more telling of her attachment to her village is in fact that she has
built a house on Lot 412, regardless whether it was with or without
(defendant’s permission or made of hardy materials because this house is
evidence of an intention to reside in the village and is the evidence which
strengthen my view that contrary to the defendant’s assertion, Kosit did not 10
‘nguai’ when she married her husband.
Lanting.
Given that lanting has been enacted as section 183 of the
Adat Iban Order 1993, it is best that I reproduce the said section here. But
before that and to kill any potential
argument or contention that the said Order does not apply to the Ibans of
Kampung Sebemban which according to Mr. Bungoi ak Joll practiced the customs of
the Ibans of Sebuyau (another small town in the First Division of Sarawak), the
preamble to the said Order states this:
“Sarawak. L.N. 18
THE NATIVE CUSTOMARY LAWS ORDINANCE THE ADAT IBAN ORDER, 1993 (Made under
section 3 and 5) 25 Whereas the Tusun Tunggu of 1952 which was printed by the
Government Printer and reproduced in Volume VII of the Revised Edition of the
Laws of Sarawak 1958 (hereinafter referred to as the “1952 Tusun Tunggu”) has
by virtue of the Tusun Tunggu (Third Division) Order, the Tusun Tunggu (Fourth
Division) Order and the Tusun Tunggu (Fifth Division) Order been declared to be
the native customary law for all Ibans resident in the Administrative Areas
known then as the Third, Fourth and Firth Divisions:
And whereas the Yang Di-Pertua Negeri in Council is
satisfied, after having consulted with the Temenggongs and Chiefs of the Iban
community throughout the State of Sarawak, that a general consensus of opinion
of the Iban community in the State of Sarawak favours an amendment to the 1952
Tusun Tunggu and to make it applicable to all Ibans resident in the State of
Sarawak.
Now, therefore, the Yang Di-Pertua Negeri in Council, in
exercise of the powers conferred by sections 3 and 5 of the Native Customary
Laws Ordinance, has made the following Order.” (emphasis added) I will now
reproduce section 183 below:
“183. This is an item or items of valuable property which
may be chosen by the father or mother before the property is divided to the
members of the bilik-family. It may be an old jar or gong, or a rubber garden
or a piece of land, or any other valuable property of their choice. It is
inherited by whoever cares for him or her until the end of her or his life.”
The defendant has pleaded in paragraph 4 of his amended
defence which he repeated in his witness statement that this Lot 412 is his
sole entitlement because Sileng adopted him when he was eight years and brought
him up as his own son after his mother’s death and that of his paternal
grandmother i.e Sileng’s wife.
Therefore, he said under Iban custom (which he did not
named in the pleading but in his witness statement that custom is identified as
lanting), only he is entitled to inherit his properties because he cared for
Sileng in his old age up till Sileng’s death in 1967.
The parties’
experts have elaborated on this custom in their respective evidence. Mr. Bungoi
ak. Joll explained so in his answers No. 11 of his witness statement:
“1. Firstly, based
on the adat that I know of and based on what we had been briefed during courses
on Adat Iban Sarawak recently, a person who takes care of the parents (carer)
until they died is entitled to the “Lanting” of the deceased parent.
“Lanting” is basically the belongings and those
properties such as the house and the lands on which the house is built
including the compound. It also includes all belongings that the deceased
usually take care and love. What the deceased is said to be usually take care
are like orchard, land where he did his farming, fruit trees, house where
he/she live and such other chattels that he or she loved to take care. In
short, “Lanting” are those properties that the deceased gave more attention and
thus special to him/her.
2. The carer is entitled to have the “Lanting”. In
respect of other properties that is not considered “Lanting”, the same must be
distributed fairly among the other deserving beneficiaries.
What is meant by fairly is necessarily equal in size but
based on whether the beneficiaries had got their house on it, or planted crops
or had cultivated the said land or had spent labour on that land.”
He then weighed in his own opinion on whether Lot 412 is
Sileng’s lanting in the subsequent paragraphs as follows:
“3. The said Lot 412 at the time of Sileng death was
empty land. Not planted with any fruit
trees or not usually visited by Sileng. As such, Lot 412 is not the “Lanting”
of Sileng.
4. Therefore, based on Adat Iban, the defendant cannot
claim exclusive rights over it. He must distribute the same as among his
siblings on the principle of who had fruit 30 trees or house of spent some
labour on or cultivated the said lands.
On the basis of
the above, I am of the view that Kosit rightfully be given her rights and share
in Lot 412 as she had her house on the said land and she had cultivated the
land for so many decades and had planted so many crops and fruit trees. I
myself used to help her during paddy planting season in the past.”
Then in cross-examination, Mr. Bungoi ak Joll qualified
his evidence above by stating pre-conditions for the validity of the lanting.
He said an announcement of it must be made in the presence of the village
elders and the Ketua Kaum would then record it down before signing that
statement together with the village elders. That statement or letter as he call
it would be proof of the lanting (see lines 12 to 17 of page 43 of the notes of
proceedings).
In his re-examination he said there was no such letter in
respect of Sileng’s lanting. Mr.
Nicholas Bawing’s explanation of lanting echoes the words in section 183. He
said, at lines 18 to 23 of page 73 to line 2 of page 74 of the notes of
proceedings) as follows:
“In respect of
“lanting” which spelled out in the Adat Iban section 183, “lanting” is an item
or items of valuable property which may be chosen by the father or mother
before the property of the family is to be divided to the members of the
family.
“Lanting” can be in the form of a jar or gong or fruit
garden or a piece of land. The “lanting” is to be given to one of them who
takes care of the person (either the father or the mother) until the end of his
or her life and until the burial.
“Lanting” has been in Iban Adat which they have practiced
since time in memorial.” Then in cross-examination he confirmed the
pre-requisite of making that announcement as testified by Mr. Bungoi ak Joll
which he calls ‘beterang’. Reproduce below the excerpt from his evidence
including Mr. Francis Teron’s questions to him as they appear at line 15 of
page 75 to line 14 of page 76:
Q. On ‘Lanting’, is it correct for me to say that when
allocating ‘lanting’ to the deserving carer, it has to be done in the presence
of Tuai Rumah according to section 183?
A. Under that section 183, ‘beterang’ is done before the
Tuai Rumah or the community at large in that particular village. However,
‘beterang’ can be done only among members of the family and this practice is
common among the Iban. The ‘lanting’ that is being allocated to whoever is made
known to the Tuai Rumah, to the villagers and perhaps to the members of the
family.
In most cases if
there is no dispute over this ‘lanting’, it means the members of the siblings
or members of the family they agreed over the allocation of the ‘lanting’ to
whoever it is already allocated to.
Q. What ‘beterang’ means?
A. The word ‘beterang’ means an announcement or made
known literally in English.
Q. During ‘beterang’ does the note of proceedings
‘beterang’ normally recorded in writing?
A. As far as I
could remember ‘beterang’ is normally done orally in front of the crowd or the
people present during the occasion. However, there is no harm if the proceeding
or the ‘beterang’ is to be recorded. So far there is no hard and fast rule over
this matter.”
Therefore, what I can gather from the evidence of these
two gentlemen is that for lanting to operate in favour of a person or rather
the defendant in this case, the pre-requisite of an announcement of such a
bequest by the owner of the property made in favour of a particular beneficiary
or beneficiaries must be made before the village elders or headman.
That announcement may or may not be recorded in 30
writing but it must be made. Such a condition of course makes perfect sense and
promotes harmony amongst the beneficiaries or descendants of the deceased for
otherwise there would be squabbles between them as evidenced in this case.
Whilst I have no reason to dispute and therefore accept
the ‘adoption’ of the defendant by Sileng or that he was Sileng’s primary
caregiver, his claim of being 5 the sole beneficiary of Sileng’s estate based
on lanting have been demolished by none other than his own expert witness. With
Mr. Nicholas Bawing’s credentials and whose evidence supported that of Mr.
Bungoi ak Joll’s on the pre-requisite or condition for the operation of
lanting, I have no other choice but to find that the defendant has failed in
his defence of the plaintiff’s claim because he has not adduced an iota of
evidence to show compliance with the pre-requisite of lanting as stated above.
Mr. Bernard Philip for the defendant in his submission
raised the issue that the plaintiff has not discharged the burden of proof
under section 101 (1) of the 15 Evidence Act 1950 but with due respect, it is
his client who failed to prove his defence on a balance of probability.
The plaintiff, on the other hand has discharged that
burden in the presence of the undisputed facts that Sileng died intestate and
that her late mother Kosit was one of his grandchildren who has built a house
on Lot 412 and with the defendant’s full knowledge and concurrence.
Given that familial relationship between the parties
which family tree I have traced at the beginning of this judgment, Kosit as too
her other siblings and the defendant of course all have beneficial interest in
Sileng’s estate.
Of course being the administratrix of Kosit’s estate the
plaintiff has the legal capacity to mount a claim on that part of Lot 412 where
Kosit had built her house. Mr. Francis Teron had quoted in his written
submission an apt decision of another Iban case on intestacy and inheritance
i.e Jagai anak Wan v. Nanai anak Meluda [2008] MLJ 876 which in turn quoted
from Laga v. Uging & Anor Suit No. 63 of 1964 where Lee Hun Hoe J (as His
Lordship then was) held that eventhough the estate of a Dayak intestate is to
be distributed amongst his beneficiaries according to their custom of inheritance
but the Administration of Estates
Ordinance is still applicable to them.
These case authorities further strengthen my view that
the plaintiff has not mounted this action in vain against the defendant. Order
to be granted. In her amended statement of claim the plaintiff has prayed for
the following declaration:
“a. A declaration
that the plaintiff or the estate of Kosit anak Miaw is entitled to the 1/7th
share of the said Lot 412.
b. That the defendant do effect to transfer of the said
1/6th 1/7th 15 share of the said land to the plaintiff in her capacity as the
Administratrix of the estate of Kosit anak Miaw (f) within fourteen (14) days
from the date of Court Order failing which the Superintendent of Land and
Survey shall will transfer the same accordingly to the estate of Kosit anak
Miaw (f).
c. That the defendant to pay for all the cost for the
transfer including legal fees, and stamp duties (if any) and all such cost
necessarily incurred arising from or such transfer.” However in concluding his
written submission Mr. Francis Teron has changed that first prayer to this:
“The 1/7th share or equivalent to 46 points (i.e 14.28%
out of 3.25 acre of Lot 412) to be determined on the ground to include the site
of the said house and to include the compound which contains the fruit trees
and crops.”
Since it is clearly stated in the intitulement of the
action that the plaintiff is suing on behalf of the estate of her late mother
Kosit and that the subject matter of the action is Lot 412 and 17 of the
Administration of Estates Ordinance 1948, the first prayer made in the
alternative in the amended pleading is a fair and equitable one to make i.e
that the estate of Kosit is entitled to the 1/7th share of the land.
However, for certainty and to prevent further dispute
later as to the size of it, I am going to adopt part of the prayer as submitted
in Mr. Francis Teron’s written submission as reproduced above i.e that the
estate of Kosit’s entitlement of 1/7th share is equivalent to 46 points and
that is be measured or determined with the plaintiff’s house as the epicentre.
The second prayer in the amended statement of claim is
allowed but with the cost of the transfer to be borne equally by both the
plaintiff and defendant. As for costs of the trial at RM10,000.00 as suggested
by Mr. Francis Teron in his written submission, that is indeed a very
reasonable one given the relatively simple issues raised at and the short
length of the trial and I would so order but subject to payment of the
allocatur fee.
Sgd. (Y.A. DATO
RHODZARIAH BT. BUJANG) Judge High Court II Kuching
Date of Grounds of Judgment : 13th day of December, 2016
For the Plaintiff : Mr. Francis Teron Kadap Messrs.
Francis Teron Kadap & Co. Advocate Level 1, Lot 3140 Block 10 5 Kuching
Central Land District Jalan Laksamana Cheng Ho 93350 Kuching, Sarawak. For the
Defendant : Mr. Bernard Philip Messrs. B.P Lanat & Co. No. 129, 1st Floor
Lot 572, Serian Bazaar 94700 Serian.
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