NCR land case : Court rejects bid by defendants to strike out application

Kuching (March 26, 2012): The High Court here ruled that a case involving  a dispute over native customary rights (NCR) land claims will go for a full trial after dismissing an application by three defendants.

The defendants, Naim Cendera Sdn Bhd, Superintendents of Lands and Surveys of Kuching Division and Sarawak State Government, applied to the court to strike the claims by six plaintiffs on technical grounds.

The plaintiffs, Simo Sekam, Tasek Ayau, Eddie Ahang, Bodui Dayu, Bungai Bengem and Sirus Jon, are suing the three defendants over 6,046ha of land in Upper Bengoh in Kuching Division.

They are claiming that they have native customary right over the land which they stated had been encroached the defendants.

In his decision, Mr Justice Sangau Gunting said the defendants seemed to have overlooked the fact that the plaintiffs very complaint in the suit pertained substantially to the defendants’ implicit failure to exhaustively fulfil the requirements of the Sarawak Land Code.

“But perhaps, more to the point is that the contention of the Lands and Surveys and the State government seems also indicative of their assumption that the plaintiffs’ claim has nothing to do with NCR whose creation may relate to the time when the Sarawak Land Code and other related statues were not yet in existence,” the judge said.

Sangau said there appeared to be substance in the plaintiffs’ contention of the existence and persistence of a factual issue arising from the Lands and Surveys and the State Government’s averment concerning “the land over which the NCR was extinguished”, presumably about 1,530 hectares, and the plaintiffs‟ averment concerning “the land over which NCR was exercised”, presumably 6,046.69 hectares.

He said it was the plaintiffs’ contention that the existence and extent of their native customary rights over the land constitutes the primary, if not the core issue, in the instant suit.

“Since the issue at hand involves possibly pre-existing rights pertaining to NCR, the overall issue of existence or otherwise of NCR is so intrinsically interwined with existence or otherwise of pre-existing rights, that the contention of equating the plaintiffs’ instant action to stepping into the shoes of the Settlement Officer, would appear no longer sustainable.

“Otherwise, such contention would tantamount to wrongly applying statutes to private rights which statues in any case were not in existence at the time the alleged creation of those private rights commenced,” he said, stating that the application by the defendants pursuant to Order 14A Rule 1 of the RHC 1980 must be dismissed with costs to be taxed unless otherwise agreed.

 Desmond Khoo of Baru Bian & Co advocates represented the plaintiffs while Naim Cendera was represented y Alicia Voon of Alvin Ching & Partners Advocates and state legal officer Joseph Chioh represented the Lands and Surveys and Sarawak State Government.