(WN KP 650722-13-5471)
2. JUSLIN MAJANG ANAK BADA
10
3. BERJAYA ANAK PUNDU
(WN KP 651102-13-5299)
4. MAT ANAK TANGGON
(WN KP 431006-13-5251)
(WN KP 650605-13-6045)
15
all other proprietors, occupiers,
holders and claimants of native
customary rights land at Kampung
Sual, 94800 Simunjan, Sarawak] …. PLAINTIFFS
[Suing on behalf of themselves and
20
AND
1 FIRST BINARY SDN BHD
(Company No. 597488-H)
No. 47, Lot 5397, 2
nd Floor, Block C
25
Jalan Lapangan Terbang Baru
93250 Kuching, Sarawak
2 DIRECTOR OF FOREST SARAWAK
3 SUPERINTENDENT OF LANDS & SURVEYS
RH Plaza Commercial Centre
30
4 GOVERNMENT OF THE
STATE OF SARAWAK …. DEFENDANTS
Samarahan Division
[22-10-2007-I]
2
JUDGMENT
Introduction
This is a representative action by four plaintiffs on behalf of themselves and
fellow villagers of Kampung Sual in Simunjan District of Sarawak. The 1
st
defendant is a timber company that had been issued a logging
vicinity of Kampung Sual. The 2
of the Sarawak Government and have jurisdiction over forests and lands in
the State. Briefly stated, the claim of the plaintiffs is that the 1
had encroached into a part of their Native Customary Land (NCL) and
5 licence in thend and 3rd defendants are in the employmentst defendant
10
approximately 168 acres and is shaded in pink in the map marked as “M”
which is attached to the Statement of Claim. It was tendered in evidence in
the course of the trial by its maker who is an unqualified surveyor.
caused destruction to forested as well as planted areas. The area in dispute is
Case for the Plaintiff
15
defendants have not taken issue with the plaintiffs’ status as natives. The
plaintiffs’ case is as follows. They are residents of Kampung Sual. Their
case is that Kampung Sual does not merely include the land on which it is
located. It also includes what is known in Iban Native Customary Law
All the plaintiffs are Ibans by race and therefore are natives of Sarawak. The
20
domain of the village. The “Pemakai Menoa” is delineated by a boundary
known as “Garis Menoa”. In the instant case, the “Pemakai Menoa” of
Kampung Sual which is asserted by the plaintiffs is quite large. In the map
marked as “M”, the “Pemakai Menoa” over which the plaintiffs’ claim
terminology as “Pemakai Menoa” which can be translated as the territorial
25
Native Customary Rights (NCR) is a large area which is probably over 3,000
[22-10-2007-I]
3
hectares. It is the area between several villages. It is pleaded in the
Statement of Claim that the boundary line of the village runs to Kampung
Emplas in the south, to Kampung Temiang in the east and until Sungai
Entanggor in the north. The surveyor of the plaintiffs, Nicholas Mujah
testified that the area he covered during the survey of the
of Kampung Sual is 3,816.87 hectares. The 1
had been granted a timber licence (T/8408) over an area covering 1,400
hectares. The area under the said timber licence is edged pink on the map
found at page 1 of the 2
5 territorial domainst defendant, on the other hand,nd, 3rd and 4th defendant’s Supplementary Bundle of
10
Forestry Department for the purpose of this trial. It is a proper map with coordinates
that had been superimposed on the map produced by the plaintiffs.
The map not only shows the area under the Timber Licence but also the
Forest Reserves in the north and alienated land in the east. The area covered
Document (D). This map is actually a comparison map. It is produced by the
15
licence (T/8408). On the map, the Timber Licence area is to the south-east of
Kampung Sual. The complaint of the plaintiffs is that the 1
encroached onto about 168 acres of the territorial domain of Kampung Sual.
All the four plaintiffs testified on their own behalves and on behalf of other
by the Timber Licence is also as shown in the map attached to the timberst defendant
20
They are Dr. Klaus-Peter Wilhen Gross (P.W. 3, aerial photography expert),
Nicholas Bawin ak Anggat (P.W. 5, Iban Adat expert), Nicholas Mujah anak
Ason (P.W. 7, who drew the map of the “Pemakai Menoa”) and Ajan ak
Wein (P.W. 8, Tuai Rumah of neigbouring village, Kampung Sungai Raya).
villagers of Kampung Sual. In addition, they called four more witnesses.
25
summarize their lengthy testimony as follows.
The evidence of the four plaintiffs is substantially similar. I shall attempt to
[22-10-2007-I]
4
P.W. 1 (Mat Anak Tanggon) is not an original inhabitant of Kampung Sual.
He was born in a neighbouring village in 1943. He moved to Kampung Sual
in 1958 after having married the daughter of the Tuai Rumah (Headman of a
longhouse). His father in law, Tuai Rumah Resa anak Nyaring, had related
to him the oral history of Kampung Sual. The plaintiffs
are the descendants of Penghulu Buda anak Ajak or Tajak, the pioneer settler
who was also the first Government appointed Paramount Chief during the era
of the White Rajah. Penghulu Buda was succeeded by Tuai Rumah Nyaring
anak Buda who was in turn succeeded by Resa anak Nyaring, the father in
5 of Kampung Sual
10
his son, Sinja anak Resa. The current Tuai Rumah is Tambi anak Sinja. He
succeeded Sinja anak Resa in 1998. However, Tambi anak Senja did not
give evidence. P.W. 1 said that the ancestors of the plaintiffs, since the time
of Penghulu Buda, had cleared virgin forest in the disputed area to create
law of P.W. 1. When Resa anak Nyaring passed away, he was succeeded by
15
also been living off the land by gathering jungle produce, fishing and hunting
from the reserved part of the forests known as ‘pulau”. The oral history that
P.W. 1 learnt from his father in law and from his experience in Kampung
Sual since 1958 was repeated by the other three plaintiffs who are the
farmland. Apart from farming activity, the residents of Kampung Sual had
20
On 30
1
carry out logging. This act of the 1
by the name of Retty anak Lemu to lodge a police report on 9
original inhabitants. I, therefore, find it unnecessary to repeat it in extenso.th September 2006, P.W. 1 and the other plaintiffs discovered that thest defendant had trespassed into their island of preserved forest (pulau) tost defendant prompted one of the villagersth October 2006.
25
requested Penghulu Kambiang who has jurisdiction over several villages,
including Kampung Sual, to intercede with the 1
She also complained to the District Officer of Simunjan. The District Officerst defendant and resolve the
[22-10-2007-I]
5
matter. However, Penghulu Kambiang failed to resolve the matter. P.W. 1
also stressed that the timber licence of the 1
30
through their acts of trespass and logging, had deprived the residents of
Kampung Sual of sources of livelihood. P.W. 1 also said
area is about 30 minutes walk from Kampung Sual. During crossexamination,
P.W. 1 agreed that the area shaded in pink is a “pulau” which
means that it was generally not cultivated land but preserved forests.
However, he disagreed later and said that there were rubber plantations and
st defendant had expired beforeth September 2006. In conclusion, P.W. 1 asserted that the 1st defendant,5 that the disputed
10
3 acres is Berjaya anak Pundu (P.W. 2). P.W. 1 conceded that the villagers
demanded compensation from the 1
paid. He was not aware that the timber licence was renewed until 31
fruit trees on it. He said that the owner of the rubber plantation of the size ofst defendant but he said that it was notst
December of 2008. He said that prior to the 1
st defendant’s logging, P.W. 2
15
P.W. 2’s (Berjaya anak Pundu) testimony is similar to that of P.W. 1.
However, he claimed to own three acres of land planted with rubber trees in
the disputed area. He said that his great grandfather, Lebung anak Chan had
planted rubber trees on the disputed area during the time of the White Rajah.
had made a survey of the trees on the number and type of trees in the area.
20
1854” which was issued by the then authorities to permit the sale of rubber.
He was unable to produce any documents from the time of his great
grandfather. P.W. 2 took some photographs of the area purportedly damaged
by the 1
As proof, he tendered into evidence a copper plate with serial number “Sst defendant. The photographs showed logged trees and stumps.
25
some reason, Counsel for the plaintiffs marked them as ID (identification)
They are found on pages 16 - 23 of the plaintiffs’ Bundle of Document. For
[22-10-2007-I]
6
only. The photographs, as pointed out by Counsel for the 1
never tendered in evidence. During cross-examination, P.W. 2 insisted that
he owned three acres of rubber plantations and fruit trees in the disputed area.
He said that apart from the three acres that belonged to him, there were no
other cultivated areas in the disputed area
The 2
the original pioneer settler, Penghulu Buda. He said that on 30
2006, he discovered that the 1
area. He said that the workers told him that they are from the 1
st defendant were5 shaded in pink.nd plaintiff (P.W. 4) gave similar evidence. He is a direct descendent ofth Septemberst defendant had trespassed into the disputedst defendant
10
as a result of the encroachment. He also took some photographs that are
shown in pages 16 - 23 of the plaintiff’s Bundle of Document. As I have said
earlier, these photographs were not tendered into evidence. Apart from
destruction to the “pulau” in the disputed area, he also said that the sources of
company. He said that the forest trees and rubber trees were chopped down
15
he was asked to point out the area where he had planted crops.
He pointed to a spot outside the disputed area shaded in pink. He agreed that
the rubber trees in the disputed area belonged to P.W. 2. However, when he
was asked to show where he collected forest produce, he pointed to the
water had been contaminated due to silting and erosion. During crossexamination
20
The last plaintiff to take the witness stand was Jubang anak Punjab (P.W. 6).
He is a 45 year old full time farmer residing in Kampung Sual. He said that
their NCR area consisted of communal forest land, “Pulau”, cultivated
gardens, “Temuda” land, “Tembawai” (old longhouse sites), fishing areas
disputed area shaded in pink.
25
Kampung Sual had permitted logging in parts of their NCL. However, they
and farming land. He said that previously, the longhouse community of
[22-10-2007-I]
7
never entered into any agreement with the 1
in their NCR area. He said that his wife, Retty anak Lemu had made a police
report on 9
villagers of Kampung Sual then requested the assistance of Sarawak Dayak
Iban Association (SADIA) to survey the territorial
Menoa” of the village. P.W. 6 denied that the villagers of Kampung Sual had
demanded exorbitant compensation from the 1
The said survey was conducted by Nicholas Mujah (P.W. 7) who described
himself as a community mapper. He is a social worker attached to SADIA.
st defendant to permit them to logth October 2006 over the encroachment by the 1st defendant. The5 domain or “Pemakaist defendant.
10
He was educated up to Form 6. Although he is not a licensed surveyor, he
underwent courses in community mapping which was organized by SADIA
and a few other NGOs (Non-Governmental Organizations). He described the
aim of these courses as follows:
He is also from one of the neighbouring kampungs north of Kampung Sual.
15
Iban Association to train, assist and work in collaboration with the native
communities of Sarawak to demarcate their native customary rights land
boundaries.
Community mapping is also known as participatory mapping where local
The community mapping programme is an initiative of Sarawak Dayak
20
the place in which they live. The local people who live and work in a place
have the most intimate knowledge of the place. Only they are able to make
a detailed and accurate map of their history, land use, way of life, or vision
for the future.
community members participate to demarcate and make maps to describe
25
its territorial domain which included the disputed area by use of a GPS
(Global Positioning System) equipment. He explained his method as
P.W. 7 was accompanied by 14 villagers of Kampung Sual when he plotted
[22-10-2007-I]
8
follows. He asked the villagers to show and walk with him along the
boundary of their “Pemakai Menoa”. They pointed out all the landmarks,
historical places such as old longhouse sites to him. Together with this
information, he also recorded the waypoints or geographical co-ordinates of
various locations in his notebook. He did this by using
equipment which can store the co-ordinates in its memory. He also inserted a
peg at the waypoint that was recorded. Later by means of computer software
which used the co-ordinates that he recorded, he was able to plot the map
based on the “Pemakai Menoa” of Kampung Sual. He agreed during cross
5 the Garmin GPS10
examination that the accuracy of the data in respect of waypoints would be
affected by heavy cloud cover. However, he said that good weather
prevailed when he did the survey. He also agreed that his method was
subject to a margin of error of about 30 metres on the circumference of
boundary.
15
Force in 1947 of the disputed area and the surrounding general area, the
plaintiffs called Dr. Klaus-Peter Wilhen Gross as their expert witness. Dr.
Gross is an Associate Professor at the Department of Remote Sensing and
Landscape Information System of the Albert-Ludwigs University in
In respect of interpretation of the aerial photographs taken by the Royal Air
20
aerial photographs. He explained as follows in simple terms in his report the
work that was involved in translating historical aerial photographs:
Germany. Dr. Gross is an expert on the use of photogrammetry to interpret
Photograph interpretation is the process of taking data from an aerial
photograph. Interpreters translate the information provided by aerial
25
and land use by a classification. The interpreter has to extract useful
photographs into a corresponding terrestrial model for vegetation coverage
[22-10-2007-I]
9
information with his ability to identify objects and correctly judge their
significance.
He used the following classes for stratification of the land cover:
1. Primary Forest
5
3. Disturbed Forest
4. Regeneration Forests/Shrubs
5. Agriculture/ Clearings.
2. Dense Forest
He also interpreted two line features in the photograph: a longhouse and a
10
forest in 1947. He said that farming was distinguishable on only 5% of the
case area. The cultivation mosaic corresponds to roughly the southern area
of the “Pemakai Menoa”. It is near the area shaded in pink where the alleged
logging took place. He also detected a longhouse. During cross
river. His finding was that 89% of the case area was covered by primary15
examination, he agreed that the area of interest that he interpreted may not be
exactly the disputed area claimed by the plaintiffs. Therefore he was unable
to answer if his estimate of human presence on 11% of the case area shown
by the aerial photographs is accurate. He said as follows:
Q: So do you agree with me that your calculation on the human
20
A: Difficult to answer because we have different size, because of
difference limits, so percentages cannot be compared.
presence of the entire case area at 11 per cent is not accurate?
The expert witness on Adat Iban for the plaintiffs was Nicholas Bawin Anak
Anggat (PW 5). He is a former Deputy President of the Majlis Adat Istiadat
25
expert in Iban customs (see
Sarawak. He has been called to testify in a number of NCR cases as anNor Anak Nyawai & Ors v. Borneo Pulp
[22-10-2007-I]
10
Plantation Sdn Bhd & Ors [2001] 2 CLJ 769 High Court, Muli Anak Baya
& Anor v Everight Enterprise (21-6-2009, Sibu High Court), Nicholas Mujah
Anak Ason & Ors v Hock Tong Hin Sawmill Co. Bhd (22-118-2007-I, High
Court Kuching), Agi Anak Bungkong & 2 Ors v Ladang Sawit Bintulu Sdn
Bhd & 4 Ors (22-93-2001-III(I), High Court Kuching).
respect of the initiation ceremony known as “Panggul Menoa” which was
performed by the pioneer settlers before clearing the jungle for settlement.
He then proceeded to explain the meaning of essential terms such as
“Pemakai Menoa, Garis Menoa, Tanah Umai, Temuda, Tembawai, Pendam”,
He 5 gave evidence in
10
accepted in other cases, especially in
Pulp Plantation Sdn Bhd & Ors [2001] 2 CLJ 769
& 2 Ors v Ladang Sawit Bintulu Sdn Bhd & 4 Ors 22-93-2001-III(I).
testified that he acquired knowledge of Iban customs through his experience
etc. I shall not repeat all his evidence here. They have been discussed andNor Anak Nyawai & Ors v. Borneoand Agi Anak BungkongP.W. 5
15
and living the life of an Iban. Given the acceptance of his expert evidence in
the cases quoted above and the fact that his evidence was not significantly
challenged or rebutted, I have no reason to doubt his expertise on Iban
customary law and practice. Although I do not wish to summarize his entire
in the Majlis Adat Istiadat Sarawak, his readings and study of Iban customs
20
The area in dispute is about 168 acres. Some of the plaintiffs agreed that
they did not have the right to “Temuda” lands in the disputed area during
cross-examination. They also agreed that the “Temuda” right can be lost if
an Iban sells the land or moves away. However, in the instant case, the
testimony, I shall highlight some points that may have a bearing in his case.
25
168 acres which has been preserved as a ‘pulau’ for the common use of the
villagers in accordance with Iban custom. Only P.W. 2 (Berjaya anak Pundu)
plaintiffs in the main are asserting the collective communal ownership of the
[22-10-2007-I]
11
claimed that he owned about three acres of rubber land in the disputed area of
168 acres. He said that the rights to the “Pulau” are passed down to the
descendants of the longhouse as long as they remain in the village or
maintain their attachment to it by participating or contributing to the
activities of the longhouse. In respect of compensation, he
would not lose his right to the land even if he had accepted consideration for
allowing a non-native to log or plant on his ancestral lands. In the instant
case, the 4
from the 1
by Counsel for the 1
5 said that a nativeth plaintiff is alleged to have received compensation of RM750st defendant to permit logging. He said as follows during crossexaminationst 10 defendant:
Q: I put it to you that in situations such as where the 4
collected payments from a non native in order to allow free access,
he lost his native customary rights over the land?
A: I do not agree.
th plaintiff had
During cross-examination by Counsel for the 2
candidly agreed that at times he was involved in opposition politics and that
NCR is always an issue during elections. However, I do not see why P.W. 5’s
involvement in political activities should detract from his expertise as an
expert on Iban customs. If he has misled the court on Iban Adat, it is up to
nd to 4th 15 defendant, P.W. 5
20
alternatively the defendants should provide rebuttal testimony through their
own expert on the same subject matter. A general accusation that P.W. 5 is
biased merely because of his involvement in opposition politics cannot hold
water.
counsel for defendants to challenge him during cross-examination or
25
the current Headman of a neighbouring village, Kampung Sungai Raya. The
The last witness called by the plaintiffs was Ajan anak Wein (PW 8). He is
[22-10-2007-I]
12
said Kampung is an extension to Kampung Temiang which is located to the
south east of Kampung Sual. According to this witness, Kampung Sual and
Kampung Sungai Raya share a common boundary in respect of their
respective “Pemakai Menoa”. He corroborated the claim of the plaintiffs
over their right to “Pemakai Menoa” in the disputed area.
he knows the identity of the logging company because they had extracted
timber in the vicinity of his village. During cross-examination, he admitted
that the 1
extracted from his land. He disagreed that the disputed area is within the
5 He also said thatst defendant paid him compensation of RM20 per ton of timber
10
Sedilu Forest Reserve.
The 1
st Defendant’s case
The defence of the 1
timber licence to take forest produce over 1,400 hectares. They deny that the
plaintiffs have NCR over the disputed area of 168 acres which is shaded pink
in the map marked as “M”. The 1
disputed area to extract timber. Their witness, Mr. Wong Ing Sin (D.W.2),
the general manager of the 1
licence covered an area of 1,400 acres, his company was only allowed to
extract timber in blocks or compartments by applying for a
st defendant is as follows. They had been granted ast 15 defendant also denied entering thest defendant testified that although the timberpermission to
20
concession area intersected with the purported “Pemakai Menoa” of the
plaintiffs. Since the negotiations for compensation with the residents of
Kampung Sual failed, the 1
For that reason, his company did not apply for PEC in respect of Coupe 6
enter coupe (otherwise known as PEC). He said only Coupe 6 of the timberst defendant did not enter into the disputed area.
25
the 1
which is in the purported territorial domain of Kampung Sual. The fact thatst defendant did not apply for PEC in respect of Coupe 6 was vouched
[22-10-2007-I]
13
for by Asan Odau (D.W.5), the Executive Forester of the Forestry
Department at Kuching. D.W. 2 told the court that normally before
extraction of timber he would visit the vicinity of the logging area and
consult with the Penghulu who has jurisdiction over the nearby villages.
This is to ensure that there would be no trouble from the
maintains contact with the Penghulu during the logging operations so as to
receive feedback and complaints if any. In the event there is a demand from
the natives for compensation, he would attempt to negotiate and make
payment. He said that in the instant case, he contacted Penghulu Kambiang
5 natives. He also
10
Kawasan Temiang Sungai Alit at the material time and the villages of
Kampung Sual, Kampung Emplas, Kampung Temiang and Kampung Sungai
Raya fall under his jurisdiction. D.W. 2 apprised Penghulu Kambiang of the
logging operations that his company was about to undertake. Penghulu
anak Tumin (D.W. 3). Penghulu Kambiang is the Penghulu in charge of
15
Sual were amenable to payment of compensation in exchange for their
agreement to allow the extraction of timber near their respective villages. As
the residents of Kampung Sual did not agree to the quantum of compensation
offered, the 1
extract timber in the disputed area. The 1
for Coupe 5 which is near the purported “Pemakai Menoa” of the plaintiffs.
D.W. 2 held regular meetings with his Site Supervisor called Mandor Ting
and his Log Pond Supervisor (Jimmy anak Busan, D.W. 4). He ensured that
they adhered to his instructions that timber should only be extracted from
Kambiang told him that the residents of all the villages except for Kampungst defendant did not apply for PEC for Coupe 6 and did notst 20 defendant also did not apply PEC
25
plaintiffs’ Bundle of Document (A) were not taken at the disputed area. He
said that the allegation of the plaintiffs that the 1
Coupes 2, 3 and 4. He said that the photographs on pages 16 - 23 of thest defendant had entered the
[22-10-2007-I]
14
disputed area is untrue. D.W. 2 also said that P.W. 8 is not an honest person
as he had demanded that cash payments meant for all the residents of
Kampung Sungai Raya be collected by him personally. During crossexamination,
he agreed that he was not present at the site during the timber
extraction
Penghulu Kambiang claimed in his evidence that he was well versed with the
boundaries of the kampungs under his jurisdiction. He said that the residents
of Kampung Sual wanted compensation from the 1
is extracted from their area. He discussed their demand with D.W. 2.
However, the negotiations for compensation failed. To his knowledge the 1
5 operations.st defendant if any timberst 10
defendant did not extract any timber from Kampung Sual’s “Pemakai
Menoa” area. He said that the plaintiffs had all lied about the encroachment
of the 1
The Log Pond Supervisor of the 1
st defendant into the disputed area.st defendant, Jimmy anak Busan (D.W. 4)
15
revenue collection purposes. He said that he calculated the payment of
commission for timber extracted in the areas claimed as the NCR land of
Kampung Emplas and Kampung Temiang/Kampung Sungai Raya. However,
D.W. 4 was emphatic that the 1
testified that he kept a record of all timber logged under the said licence forst defendant did not extract any timber from
20
Asan Adau (D.W. 5), the Executive Forester testified that the wide area
claimed by the plaintiffs as their “Pemakai Menoa” is largely within the
boundaries of the Sedilu Forest Reserve and Extension (G.N. No. 143/23
dated 17 December 1923 and G.N. No. 1368 dated 7 October 1955). This
area is edged in green on the map exhibited as ID5 on page 1 of 2
the area claimed as NCR land of Kampung Sual.nd, 3rd 25 and
[22-10-2007-I]
15
4
corroborated the evidence of D.W. 2 when he said that the 1
never applied for PEC to enter Coupe 5 and 6. He also said that as Executive
Forester he had never received any complaint of logging in the area covered
by Coupe 5 and 6 from the villagers of Kampung Sual.
he agreed that the gazette notification did not say that “no rights
or privileges have been admitted or conceded in respect of the land within the
Sedilu Forest Reserve”. He agreed that there was no subsequent constitution
of the Extension of Sedilu Forest Reserve. He also agreed that he did not
th defendant’s Supplementary Bundle of Document (D). D.W. 5st defendant5 During crossexamination
10
Sedilu Forest Reserve.
The last witness for the defendants was Bujang Redzuan bin Mohammed
(D.W. 6). He is an officer of Land and Survey Department of Sarawak. He
gave evidence about the procedure of classifying land as per the Land Code.
In respect of the instant case, he was referred to page 5 of the 2
produce the locality map showing the boundary of the Proposed Extension ofnd, 3rd and 4th 15
defendant’s Supplementary Bundle of Document (D) which is a map of the
wide area on which the plaintiffs are claiming as the “Pemakai Menoa” of
Kampung Sual. He said that the purported area claimed by the Plaintiffs is
largely
within the boundaries of the Sedilu Forest Reserve and Extension that
20
No.1368 dated 7 October 1955. However, it must be noted that he did not
say that the smaller disputed area of 168 acres is entirely within the Sedilu
Forest Reserve. The superimposed map at page 1 of Bundle of Documents
(D) which was produced by the Forestry Department also does not place the
was gazetted under G.N. No.143/23 dated 17 December 1923 and G.N.
25
evidence in respect of the approval of land for other companies in the wider
168 acres within the Sedilu Forest Reserve. This witness gave lengthy
[22-10-2007-I]
16
area of “Pemakai Menoa” of Kampung Sual. However the disputed area in
this case is only 168 acres at the southern portion of the Sedilu Forest
Reserve from which the 1
this reason, I find the testimony of D.W. 6 in respect of other areas, apart
from disputed area of 168 acres,
st defendant had allegedly extracted timber. For5 as irrelevant.
Issues
The plaintiffs and the defendants did not present agreed issues in this case.
However, after having considered the submissions of the parties, it is my
view that the dispute turns on the following issues. The plaintiffs who are
10
The action is intituled as a representative action. The principal interest
sought to be protected in this action is the alleged communal right of
Kampung Sual villagers to the land claimed as “Pemakai Menoa” or
territorial domain. In the premises, common interest of a class of persons
residents of Kampung Sual have purported to represent all their villagers.
15
beyond several tentative questions on this issue, the Counsel for defendants
did not challenge the rights of the plaintiffs to proceed by way of
representative action. The plaintiffs have annexed a map drawn by an
unqualified surveyor showing the purported territorial domain of Kampung
and a common grievance has been clearly defined and identified. I note that
20
Claim, the plaintiffs pleaded that the 1
area covering only 168 acres. This is the overlapping area between the
alleged territorial domain of Kampung Sual and the area consisting of 1,400
acres which is covered by the Timber Licence belonging to the 1
Sual. It is a large area of over 3,000 hectares. However, in the Statement ofst defendant had encroached into anst defendant.
25
Claim. The 2
22-10-2007-I]
17
This overlapping area is shaded pink in the map annexed to the Statement ofnd, 3rd and 4th defendant had relied on their own map with co[
ordinates indicated at the grid line. It was produced by the Forestry
Department. This map was superimposed on the map of the plaintiffs. The
plaintiffs’ map does not provide any co-ordinates although Nicholas Mujah
(P.W. 7) said that he recorded them in a notebook. The Forestry
Department’s map also shows a small area which is
which is the disputed area between the alleged territorial domain of the
plaintiffs and the area under the Timber Licence. However, the plaintiffs
have prayed for a declaration that the entire area edged in red be declared as
the NCR land. Counsel for 2
5 covered by Coupe 6nd, 3rd and 4th defendants had argued that the
10
168 acres had been gazetted as the Sedilu Forest Reserve in 1923 and
extended in 1955. In the alternative, both Counsel for 1
Counsel for 2
establish NCR over the area edged in red as well as in the smaller disputed
area. In this respect, Counsel for 2
effect that any NCR claim based on “Pemakai Menoa” or “pulau” is
erroneous as it is not part of NCR law at least since 1993 when the Adat Iban
was codified. Counsel for 1
enter into the disputed area as they did not apply for permit to enter into
larger area claimed by the plaintiffs which also includes the disputed area ofst defendant andnd, 3rd and 4th defendants argued that the plaintiffs had failed tond, 3rd and 4th 15 defendants argued to thest defendant also submitted that his client did not
20
the plaintiffs failed to prove damage in the disputed area.
Coupe 6 which would have been the disputed area. He also submitted that
Whether a claim based on “Pemakai Menoa” and “Pulau” is debarred by
Adat Iban 1993?
I shall address this issue at the outset as the claim of the plaintiffs for a
25
acres allegedly encroached by the 1
declaration over the area edged in red is a wide area that extends beyond 168st defendant. As explained by P.W. 5,
[22-10-2007-I]
18
Nicholas Bawin, “Pemakai Menoa” is the territorial domain of an Iban
Kampung or longhouse. It includes the cleared area for farming (Temuda),
the planted areas (Tanah Umai), old longhouse sites (Tembawai), burial
grounds (Pendam), sacred shrines and forest preserved (Pulau) for foraging,
food, medicine etc. Counsel for 2
researched submission journeyed through history starting with the White
Rajahs’ edicts on native customs and rights over land until the promulgation
of the present Land Code and the Adat Iban 1993. Her thesis is that
“Pemakai Menoa” or “Pulau” is not a practice of Iban custom that has the
nd, 3rd and 4th defendants 5 in her well
10
farming before 1958 without a permit would qualify as NCR land. I do not
wish repeat her lengthy submission in its entirety or discuss all the authorities
which include textbook writers and colonial government circulars. This issue
has been addressed in recently decided court cases. In the well-known case
sanction of law. Her argument is that only “Temuda” or land cleared for
15
(supra),
recognize the Iban custom of “Pulau”. His Lordship said that the Adat Iban
1993 and the Tusun Tunggu is not exhaustive as the concept of “Pulau” was
not unambiguously excluded. His Lordship said as follows:
of Nor Anak Nyawai & Ors v. Borneo Pulp Plantation Sdn Bhd & OrsIan Chin J dismissed the argument that the Adat Iban 1993 did not
20
Adat Iban nor in the Tusun Tunggu, it means that “this practice is not in
accordance with the customary law”. For that argument to succeed it must
be shown that there are provisions in the Adat Iban to say that unless a
custom is mentioned in it, such a custom is no longer to be recognised or
Mr. Tan’s argument is that because the term “pulau” is not mentioned in the
25
was not so intended.
regarded as a native customary right. There is no such provision because it
[22-10-2007-I]
19
Although the above decision of Ian Chin J was reversed in respect of the
finding of facts, the pronouncement of law in respect of the conclusiveness of
Adat Iban was not reversed. Undeterred, Counsel for 2
nd, 3rd and 4th
defendants also cited the following passage from the Court of Appeal
decision in the above case (
Anak Nyawai & Ors and Anor appeal
Superintendent of Land Surveys, 5 Bintulu v Nor[2005] 3 CLJ 555:
Further, we are inclined to agree with the view of the learned trial judge in
bin Tasi & Ors (supra)
used to roam to forage for their livelihood in accordance with their tradition’. Such
Sagongthat the claim should not be extended to areas where ‘they
10
native customary rights simply through assertions by some natives that they and
their ancestors had roamed or foraged the areas in search for food.
view is logical as otherwise it may mean that vast areas of land could be under
However, as pointed out in other subsequent cases (see
Ason & 2 Ors v Hock Thong Hin Sawmill Co. Sdn. Bhd. & 3 Ors, 22-118-
Nicholas Mujah anak
15
the Court of Appeal’s view that there was no evidence to support the claim
that the disputed area was a traditional foraging area. The Court of Appeal
said that:
2007-1, Kuching High Court), the above passage must be read in the light of
On the basis that the Disputed Area was covered with jungles in 1951, with
20
credibly established, in the circumstances of this case under appeals, the
claim for the area to be under native customary rights is a non-starter. And it
follows that the issues of which statute is applicable or whether the area was
abandoned do not arise.
no evidence of ‘temuda’ or ‘pulau’ or ‘pemakai menoa’ having beenHaving said that we must hasten to add that this
25
proof may be readily available.
case should not necessarily be a precedent for other potential claims where
The Court of Appeal therefore did not make a decisive pronouncement that a
claim based on “Pemakai Menoa” and “Pulau” is defeated by the prevailing
[22-10-2007-I]
20
Native Customary Law of Sarawak. In fact in another celebrated case
(
665), the Court of Appeal expressly approved the right of the native to live
off the land. In Sarawak, the argument that “Pemakai Menoa” or “Pulau” is
not part of the Native Customary Law that is enforceable
other recent cases (see
Sdn Bhd & 4 Ors [22-93-2001-III (I)], Mohamad Rambli Kawi v.
Superintendant Of Lands Kuching & Anor
Baya & Anor v Everight Enterprise [21-6-2009], Sibu High Court
Kerajaan Negeri Johor & Anor v. Adong bin Kuwau & Ors [1998] 2 CLJ5 was rejected inAgi Anak Bungkong & 2 Ors v Ladang Sawit Bintulu[2010] 1 LNS 115 and Muli Anak). I shall
10
that pertains to “Pemakai Menoa” and “Pulau” has legal recognition.
respectfully follow the above decisions and hold that Native Customary Law
Whether Plaintiffs entitled to pray for a declaration of the entire area
edged in red in Map marked as “M” in the Statement of Claim?
In paragraph 4 of the Statement of Claim, the plaintiffs pleaded as follows:
15
inherited and/or created native customary (NCR) over that area of Native
Customary Land (NCL) locally referred to as “pemakai menoa” or
otherwise spelt as “menoa” in and around Kampung Sual edged in RED in
the map marked as “M” attached with this Statement of Claim (hereinafter
The plaintiffs stated that at all material times they have acquired and/or
20
situated as Simunjan, Sarawak.
referred to as “the said Land or NCL”) containing 168 acres more or less,
The evidence led during the trial was that the 1
an area of the plaintiff’s “Pemakai Menoa” which consists of 168 acres. This
area is shaded pink in the map “M”. In the 1
st defendant encroached intost defendant’s map, the purported
25
as Coupe 6. However, the area edged in red in map “M” is a huge area of at
overlapping area which is not admitted is in the Timber Licence area known
[22-10-2007-I]
21
least 3,000 plus hectares according to the map maker of the plaintiff,
Nicholas Mujah (P.W. 7). He took one week to draw his map and he covered
an area of 3,816.87 hectares. On map “M”, the purported NCR area of the
plaintiffs extended up to Sg Entanggor and Sg Sebangan in the north and
near Sg Blebak in the east. However, it must noted that the disputed
where the 1
plaintiffs is a short distance to the east and south east of Kampung Sual. The
plaintiffs’ witnesses said that it was a 30 minutes’ walk from Kampung Sual.
The question that arises here is whether the plaintiffs are entitled to a
5 area, i.e.st defendant had allegedly encroached into the NCR area of the
10
subject matter of dispute with the 1
that their rights over the wider purported area have been infringed. The 1
declaration in respect of the wider purported NCR area which is not thest defendant. The plaintiffs did not allegest
defendant stands accused of entering only the 168 acre area shaded in pink in
map “M”. The government had issued a Timber Licence to the 1
st defendant
15
claim over the 168 acres. It is not the case of the plaintiffs that the area under
the Timber Licence includes any part of their purported NCR area outside the
area shaded pink in map “M” which is limited to 168 acres. It is also not the
case of the plaintiffs that the 1
their purported NCR area outside the area shaded pink. Counsel for 2
whose area includes Coupe 6 which roughly coincides with the alleged NCRst defendant had encroached into any part ofnd, 3rd 20
and 4
area falls under the Sedilu Forest Reserve. She also submitted that a small
part of the area on the east had already been alienated under a Provisional
Lease to Kris Jati Sdn. Bhd. Counsel for plaintiffs made a cogent argument
th defendants has submitted that a large part of the purported wider NCR
25
or compensation could not have extinguished any pre-existing NCR of the
natives. I agree with him. However, in the Statement of Claim, the plaintiffs
that generally, the gazettement of an area as a Forest Reserve without inquiry
[22-10-2007-I]
22
singularly failed to pray for revocation of the gazettement of any part of their
purported NCR land as a forest reserve or revocation of part of the
provisional lease granted to Kris Jati Sdn. Bhd. It must also be noted that
Kris Jati Sdn. Bhd. is not a party in this Suit. Therefore, it is patently clear
that the real matter in controversy in this Suit is only the
that had been allegedly encroached by the 1
for this reason, the plaintiffs are not entitled for a declaration as to the status
of the entire area edged in red in map “M”.
5 168 acres of landst defendant. I therefore rule that
Whether the Timber Licence should be declared null and void?
10
expired. It had expired on 31
The defendants led evidence that by the time of trial, the Timber Licence hadst December 2008. Counsel for 2nd, 3rd and 4th
defendants submitted that the Timber Licence is not a live issue at this point
in time and therefore any order to declare it null and void would be purely
academic. In support, she cited the case of
Baltim Timber Sdn Bhd v The
15
Richard Malanjum JC (as His Lordship then was) held that:
Minister of Resource Planning & 2 Ors. [1993] 2 CLJ 327. In that case
Similarly in the present case the validity of the revocation of the said
Licence is no longer in dispute. ….. It is therefore my view that given the
circumstance of this case it is not necessary and not a condition precedent
20
pursue its claim for damages under private law.
that an Order of Certiorari should be obtained before the applicant can
She submitted that in the instant case, assuming that it is found that the 1
st
defendant had encroached into the NCR area, the plaintiffs could pursue their
claim for damages in private law. Counsel for plaintiffs had no answer to
25
this argument. However, he did not dispute that Timber Licence had expired.
[22-10-2007-I]
23
In the premises, I shall not make a declaration to nullify the Timber Licence
that had already expired.
Whether the Plaintiffs have established NCR over the area shaded pink in
map “M”?
This is the disputed area that had been allegedly encroached
the 1
over the disputed area comes mainly from the four plaintiffs. They all live in
Kampung Sual and related the oral history and tradition of the village told to
them by their ancestors. Only Berjaya anak Pundu claimed that he owns
5 and damaged byst defendant. The evidence outlined earlier to support the claim of NCR
10
other three plaintiffs on behalf of themselves and the other residents is
communal in nature, i.e. they claimed that the disputed area has been
preserved as “Pulau” for their common benefit. The evidence that the
plaintiffs are required to discharge is on the balance of probabilities. I am
three acres of farmland in the disputed area. The ownership asserted by the
15
discharged the burden that the disputed area of 168 acres is land over which
the plaintiffs can exercise NCR. My reasons are as follows. Under section
48 of the Evidence Act 1950, evidence of custom can be given by those who
would be likely to know of its existence (applied in the NCR cases of
satisfied that insofar as the disputed area is concerned, the plaintiffs haveHamit
20
2 CLJ 677 (Rep); [1991] 2 CLJ 1524,
Sawit Bintulu Sdn Bhd & 4 Ors [22-93-2001-III (I)] and Masa Nangkai &
Ors v. Lembaga Pembangunan Dan Lindungan & Ors
B. Matussin & 6 Others v. Superintendent of Lands & Surveys & Anor [1991]Agi Anak Bungkong & 2 Ors v Ladang[2011] 1 LNS 145):
48. Opinion as to existence of right or custom when relevant.
25
custom or right, the opinion as to the existence of such custom or right of
When the court has to form an opinion as to the existence of any general
[22-10-2007-I]
24
persons who would be likely to know of its existence, if it existed, are
relevant.
Explanation -
or rights common to any considerable class of persons.
The expression "general customs or right" includes customs
5
ILLUSTRATION
The right of the inhabitants of a particular village to use the water of a
particular well is a general right within the meaning of this section.
For this reason, the evidence of the four plaintiffs cannot be dismissed
merely as self serving testimonies or pure hearsay in respect of the NCR
10
testimonies were generally consistent. All the plaintiffs live in the Kampung
Sual longhouse community. With the exception of P.W. 1 who came to live
in the village in 1958, the other plaintiffs had lived there for generations.
The disputed area is only about a 30 minutes walk away from the longhouse.
claim merely because the evidence is aimed at bolstering their case. Their
15
significant manner challenged during cross-examination, cannot be dismissed
as hearsay or self serving. They are not giving evidence of a recent
transaction but relating the custom of their community to live off the disputed
area from time immemorial. In the premises, it is nigh impossible for any
Therefore the oral history and tradition related by them which was not in any
20
claim. Since all the witnesses live in longhouse community of Kampung
Sual, unless they have been challenged as having been untruthful, there is no
good reason why appropriate weight should not be given to their evidence of
custom which supports the existence of “Pulau” in the disputed area. It is
these witnesses to rely on recorded history from those times to support their
25
longhouse. It is also significant that the superimposed map of the Forestry
Department shows that the disputed area of 168 acres is outside of the Sedilu
Forest Reserve. Apart from the evidence of oral history and tradition, there
significant that the disputed area is only a 30 minutes’ walk from the
[22-10-2007-I]
25
are other evidences which lend credibility to their claim. The disputed area is
168 acres. The witnesses said that this is mainly a ‘Pulau”. However,
Berjaya anak Pundu gave convincing evidence that his family, from the time
of his great grandfather, owned three acres of rubber land in the disputed area
i.e. from a time before 1958. He even produced a copper
issued by the then authorities as evidence that his ancestors were permitted to
sell rubber sheets. Counsel for plaintiffs did not address the court in respect
of the practice of the colonial administration to issue copper plates with serial
numbers to permit sale of rubber. However, the point to note was that the
5 plate allegedly
10
balance of the disputed area, all witnesses consistently testified that their
ancestors had been entering the disputed area to live off the land by sourcing
for food, medicine and hunting for wild animals. Counsel for 2
witness was not successfully challenged in cross-examination. As for thend, 3rd and 4th
defendants submitted that the common finding of both experts on the aerial
15
primary and dense forests before 1958. This is true. However, the plaintiff’s
expert (Dr. Gross, P.W. 3) testified that there is
south of the general area which is the vicinity of the disputed area. This is
not disputed by the government’s expert. Unfortunately, the plaintiffs’ map
photograph is that the general area claimed as “Pemakai Menoa” wascultivation mosaic around the
20
map analysed by Dr. Gross to determine the exact location of the cultivation
mosaic. Nonetheless, one cannot fail to notice that a small part of the
cultivated area is very near the disputed area. This lends credence to the oral
testimonies of the four plaintiffs, especially that of Berjaya anak Pundu that
did not provide geographical co-ordinates so that it can be overlaid with the
25
rubber trees. The 4
compensation for allowing logging on his land. However, according the
his ancestor had cleared a small part of the disputed area of 168 acres to plantth Plaintiff is alleged to have received RM750 as
[22-10-2007-I]
26
Nicholas Bawin, mere acceptance of compensation would not have the effect
of extinguishing NCR over land. The claim asserted here is communal
ownership under NCR. For that reason, I fail to see why acceptance of
compensation by a lone resident would have the effect extinguishing the right
of the entire longhouse community. I have also considered
the 1
anyone can stake a historical claim to NCR without proof of documents.
Documentary proof is of course impossible given the fact that longhouse
communities from time immemorial relied on oral tradition and custom to
5 the submission ofst defendant that the plaintiffs had only given oral testimony and that
10
at that point of time. Therefore appropriate weight must be given to the
evidence of the witnesses who are relating their oral tradition and history. In
this case, all the plaintiffs with exception of P.W. 1 have lived their entire
lives and for several generations in the same longhouse. The disputed area is
demarcate their property. It is not argued that written records were available
15
testimony. They were not successfully challenged in respect of details of the
history they related. One of the plaintiffs, Berjaya anak Pundu was even able
to produce copper plates evidencing his family’s involvement in rubber
cultivation in the disputed area. He was also not convincingly challenged
only a 30 minutes’ walk from their longhouse. They gave consistent
20
conclusive, lends corroboration to the testimony of Berjaya anak Pundu that
some limited cultivation was visible before 1958 near the disputed area. For
all the above reasons, I am satisfied on a balance of probabilities, that the
plaintiffs have established NCR over the 168 acres shaded in pink in Map
during cross-examination. The aerial photograph evidence, though not
25
“M”.
[22-10-2007-I]
27
Whether the 1
area?
st defendant had entered and caused damage in the disputed
In respect of this issue, I am inclined to agree with Counsel for 1
that the plaintiffs have failed to prove their case on the balance of
probabilities. My reasons are as follows. The only
tendered by the plaintiffs on this issue is oral testimony. In the Statement of
Claim, the plaintiffs have pleaded specifically the number of trees and type
of trees that were damaged. However, during the trial, all the plaintiffs stated
only in very general terms that the 1
st defendant5 evidence of damagest defendant had caused damage to trees,
10
in the police report which was admitted as to authenticity only. However the
maker of this police report was not called as witness to verify the damage to
the disputed area. In their respective testimonies, the plaintiffs did not even
bother to refer to the specifics of damage as listed in the Statement of Claim
caused pollution and ecological damage. The number of trees was mentioned
15
plaintiffs had relied on oral history and tradition out of necessity. However,
for the type of damage asserted in present time, the plaintiffs could have
collected photographic evidence, evidence of independent persons or report
of ecological damage. The photographs taken (pages 16 - 23 of the Plaintiff
and the police report. It may well be that in respect of the NCR claim, the
20
not even tendered as evidence as pointed out by Counsel for 1
respect of the oral evidence, the plaintiffs only gave sketchy and general
evidence of damage. None of them specifically referred to the number of
fallen trees or stumps that they had discovered. For that reason, the inference
Bundle of Document (A)) of the alleged damage to the disputed area werest defendant. In
25
be avoided. I am mindful that Counsel for plaintiffs had urged the court to
that the plaintiffs are simply making a general assertion without proof cannot
[22-10-2007-I]
28
send this case for assessment of damages to the Deputy Registrar. However,
before the course can be adopted, there must be evidence of damage.
Beyond the oral evidence which is neither specific nor detailed, the plaintiffs
have not adduced any other evidence to support damage to the disputed area.
I also find that the defence that the 1
disputed area is probable. Two witnesses, who can be considered as
independent witnesses testified to this fact. Penghulu Kambiang under
whose jurisdiction Kampung Sual falls was emphatic that the 1
did not encroach into the disputed area. Asan Adau, the Executive Forester
st defendant did not cause 5 damage at thest defendant
10
would know of any encroachment in the disputed area. However, I hasten to
add that it is not for the 1
disputed area and cause damage. It is for the plaintiffs to prove on a balance
of probabilities that damage was caused by logging. They cannot merely rely
in charge of the area said that no PEC for Coupe 6 was issued by him and hest defendant to prove that they did not enter the
15
shall therefore dismiss the claim for damages.
In conclusion, in view of my acceptance of the evidence on oral history and
tradition in respect of the NCR claim over the disputed area, I am only
on oral evidence when other supporting evidence could have been adduced. I
20
the said 168 acres. The map marked “M” has no geographical coordinates
but I note that the map of the Forestry Department at page 1 of the 2
prepared to grant a declaration that the plaintiffs have established NCR overnd, 3rd
and 4
superimposed on the Map marked as “M” gives the geographical co
th defendant’s Supplementary Bundle of Document (D) which is25
ordinates of the disputed area shaded pink. I shall therefore grant a
declaration that the plaintiffs have acquired NCR over the said area shaded
pink.
[22-10-2007-I]
29
As the plaintiffs have only succeeded partially against the government, I shall
reduce the costs that they are entitled to. I shall order the 2
nd, 3rd and 4th
defendants to pay costs of RM30,000 to the plaintiffs. Insofar as the 1
st
defendant is concerned, at the time the Suit was filed in 2007, the Timber
Licence subsisted. In the premises, I shall order the 1
their own costs
st 5 defendant to bear.
(RAVINTHRAN PARAMAGURU)
Judicial Commissioner
10
For all the Plaintiffs: Mr. Baru Bian
Messrs Baru Bian & Co. Advocates
25
For the 1
Messrs David Allan, Sagah & Teng Advocates
Kuching
For the 2
and 4
Sarawak
Kuchingst Defendant: Mr. Allan Lao with Miss Lidwina Kiewnd, 3rd Puan Dayang Jamillah Tun Salahuddinth 30 Defendants: State Attorney General’s Chambers
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