Upko claims seats anomaly, according to Sabah Daily Express

 

 

 

Penampang: Sabah and Sarawak risk losing the special safeguards provided for both under the Malaysia Agreement if nothing is done to realign the policy on distribution of the country's parliamentary seats back to what had been agreed upon during the formation of Malaysia in 1963.
The peninsula, with its present total number of parliamentary seats, can easily secure a two-third majority without the need of support from Sabah and Sarawak and amend the Federal Constitution, in which all the special safeguards for both Borneo states are also preserved.
This is against what had been agreed upon by all the parties involved during the formation, i.e. the distribution of parliamentary seats in the peninsula should not be more than two-third of the total number of seats.
United Pasokmomogun Kadazandusun and Murut Organisation (Upko), which uncovered this after studying in depth the Cobbold Commission report and the Malaysia Agreement, also noticed that the Election Commission (EC) is not following this policy on parliamentary seat distribution.
"Upko's study of the Cobbold Commission report and the Malaysia Agreement signed on Aug. 28, 1963, found it was carefully decided that the total number of parliamentary seats in the distribution of seats in the peninsula must not be more than two-third of the total parliamentary seats, to ensure that any attempt to amend the Federal Constitution, especially those touching on the special safeguards of the Borneo states, must have support from the Borneo states," said its Sec-Gen, Datuk Wilfred Madius Tangau.
"Thus, the peninsula was then allocated 104 seats, as opposed to 15 seats for Singapore, 16 for Sabah and 20 for Sarawak, giving it a total of 51 seats.
That 51 seats constitute 34 per cent of the total parliamentary seats of 155 seats," he explained.
"Unfortunately by 1974, the peninsula was given an additional 10 seats making it 114 seats, while there were no additional seats for Sabah and Sarawak. And with the withdrawal of Singapore from the Federation, it was now possible for the peninsula to secure two-thirds without the support of Sabah and Sarawak," he said.
Presently, peninsula has 166 seats as opposed to Sabah and Sarawak with 56 seats, he told a press conference at the party's headquarters, Tuesday.
Party Vice President Senator Datuk Maijol Mahap, Wanita Chief Dr Jaina Sintian and Komulakan Chief Ewon Benedict, were present.
Madius also raised this matter on the distribution of parliamentary seats during the recently concluded Parliamentary Select Committee on Electoral Reform public hearing here.
In addition to the anomaly, Madius said a careful analysis of the geographical sizes of the three territories showed that the peninsula with a land size of 131,598 sq km was allocated 166 seats, as opposed to Sabah (73,631 sq km) only given 25 seats and Sarawak (124,450 sq km) 31 seats, where both combined a total area of 198,081sq km but allocated a mere 56 seats.
Upko proposed to the Parliamentary Select Committee that in the present re-delineation exercise Sabah should be given an additional 10 parliamentary seats making it 35 seats and a corresponding 21 parliamentary seat increase for Sarawak, making a total of 87 seats.
Madius said with 87 seats (Sabah and Sarawak) versus 166 seats for peninsula, it will no longer be possible for Members of Parliament from the peninsula to amend the Federal Constitution without support from Sabah and Sarawak.
"In doing so we should have followed the spirit of the Cobbold Commission and the Malaysia Agreement and at the same time allay the fear of leaders of the Borneo states such as expressed by the late Tun Jugah, as reported by the Cobbold Commission when he said: "Anang Malaysia sebaku tebu, manis dipohon, tawar di hujung (Malaysia should not be like the sugar cane, sweet at the head and getting less and less sweet towards the end)," he said.
"Hence in any subsequent re-delineation exercise when it comes to the creation of new parliamentary seats, the EC must strictly follow the policy of ensuring 34 per cent of parliamentary seats are always maintained for Sabah and Sarawak," said Madius.
In addition, he said Upko also proposed that the re-delineation exercise with the objective of creating parliamentary and state constituencies must be done with the view to ensure that major native communities are represented such as the Kimaragang, the Tabilung, the Lotud, the Lundayeh, the Tatana, the Kadazan Papar and Membakut, the Orang Asli of Semenanjung, etc.
"In line with that Upko demands that the EC reinstate the State constituency of Langkon," he said, adding that the party also cautioned the EC to be truly autonomous and independent as well as to be more professional in treating State Government and community leaders' proposal, complaints as well as objections to the EC's proposal for re-delineation.
Referring to the EC's non-action to various proposals, views and objections by various parties to the 1993 re-delineation proposal by the EC, Madius said that re-delineation of electoral boundaries was the beginning of a systematic reduction of non-Muslim natives and Chinese dominated seats by the EC.
"We lost more than eight seats including the removal of Langkon and Sook," he said.
Upko also wants the EC to re-instate the 1967, 1976, 1985 and 1990 distribution of seats according to racial composition, he said, adding the setting up of the Parliamentary Select Committee is a golden opportunity to rectify past arbitrary decisions of the EC to one that is based on the spirit of the formation of Malaysia which seeks harmony, stability, progress and prosperity for all.
THE party submitted a comprehensive 101-page document to the Parliamentary Select Committee during its public hearing and presented the highlights of the proposals.
This included explaining the party's proposal for the establishment of a Royal Commission of Inquiry (RCI) to investigate and clean up the existence of "Project IC" holders in the electoral roll.
Madius said Upko's stand on this matter is consistent with Upko's position calling on the Federal Government to establish RCI to resolve issues pertaining to the "Project IC" and IMM13 holders once and for all.
"We cannot be calling for a RCI on the Project IC and not on the cleaning up of the electoral roll.
The two are actually related especially after a careful reading of the written judgement by Justice Datuk Haji Muhammad Kamil Awang in the Likas Election Petition 1999," he said.
"That is why Upko will not support any automatic registration of voters on reaching the voting age of 21 for the simple reason that questions raised on the existence of Project IC holders have not been dealt with by the authorities concerned," he said.
Once the RCI has clearly provided answers to each and every question raised, he said then Upko will be in a better position to support the proposal for automatic registration of voters, he said.

Jubang & 3 others win in NCR land case

1. JUBANG ANAK PUNJAB

(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

Date of Delivery of Judgment: 25.8.2011