WRIT
MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK AT KUCHING
SUIT NO:
Between
1. LUANG ANAK ENTIYANG (WN KP 520606-13-5495)
2. IGAT ANAK BIJU (WNKP 610605-13-6401)
3. SINGA ANAK UNSIT (WN KP 540901-13-5621)
4. AJAH ANAK GUNYA (WN KP 660920-13-5615)
5. ALAN ANAK SULANG (WN KP 661214-13-5639)
6. MADELY ANAK NAMBA (WN KP 650315-13-5589)
7. MULU ANAK SUGA (WN KP 610719-13-5749)
8. AROH ANAK JEBENG (WN KP 470907-13-5285)
9. MELILI ANAK JAGAK (WN KP 570912-13-5333)
10. TONI ANAK PUGIM (WN KP 710727-13-5747)
11. GILI ANAK TEKONG (WN KP 650102-13-5093)
12. NYALU ANAK TAMPA (WN KP 571104-13-5145)
13. MANCHA ANAK SANG (WN KP 591225-13-5211)
14. BRANGKA ANAK SAWENG (WN KP 590512-13-5375)
15. SAMAD ANAK JUNNA (WN KP 710313-13-5341)
16. MUSIT ANAK NGAWING (WN KP 601009-13-5483)
17. ROSE ANAK UTAK (WN KP 640830-13-5664)
[Suing on behalf of themselves and on behalf of the other
proprietors, occupiers, holders and claimants of Native
Customary Rights (NCR) land surrounding Kampung Menyang
“A” Tanah Mawang, KampungTapang Maong, Kampung
Sungai Linsat, Kampung Krangan Sungai Katak, Kampung
Krangan, Kampung Semukoi, Kampung Krangan Trusan,
Kampung Tekalong, Kampung Krangan Jaya, Kampung
Krangan Baru, Kampung Simpang Melikin, Kampung Danau
Melikin B, Kampung Emperan Melaban, Kampung Kranji Atas
and Kampung Kranji Baruh, all situate at Melikin, Balai Ringin,
Daerah Serian, Sarawak.]
All c/o Kampung Tanah Mawang
94700 Serian, Sarawak % Plaintiffs
And
1. UNITED TEAMTRADE SDN BHD
(Co. No. 765831-W)
No. 88 Pusat Pedada
Jalan Pedada
96000 Sibu, Sarawak
2. MEMAJU JAYA SDN BHD
(Co. No. 812386-W)
1st Floor, Lot 8712, No. 6, Shoplot 11
Green Heights commercial Centre
3. GOVERNMENT, STATE OF SARAWAK
4. SUPERINTENDENT OF LANDS AND SURVEYS,
SAMARAHAN DIVISION ... Defendants
YANG AMAT ARIF TAN SRI DATUK SERI PANGLIMA RICHARD
MALANJUM, P.S.M., S.P.S.K., S.S.A.P., S.I.M.P., S.P.D.K., P.G.D.K., CHIEF
JUDGE OF THE HIGH COURT IN SABAH AND SARAWAK IN THE NAME AND
ON BEHALF OF SERI PADUKA BAGINDA YANG DI-PERTUAN AGONG
TO:
1. UNITED TEAMTRADE SDN BHD
(Co. No. 765831-W)
No. 88 Pusat Pedada
Jalan Pedada
96000 Sibu, Sarawak
2. MEMAJU JAYA SDN BHD
(Co. No. 812386-W)
1st Floor, Lot 8712, No. 6, Shoplot 11
Green Heights commercial Centre
New Airport Road
Kuching Sarawak
3. GOVERNMENT, STATE OF SARAWAK
4. SUPERINTENDENT OF LANDS AND SURVEYS,
SAMARAHAN DIVISION
WE COMMAND you that within 14 days after the service of this Writ on you,
inclusive of the day of such service, you do cause an appearance to be entered for
you in a cause of the suit of the above-named Plaintiffs.
AND TAKE NOTICE that in default of you so doing, the Plaintiffs may
proceed herein to judgment and execution.
Verification Code:13-317337-478112-452355
WITNESS TUAN AZHAHARI KAMAL BIN RAMLI, Registrar of the High
Court in Sabah and Sarawak the
@@@@@@@@@@@@@@@@. @.@@@@@@@@@@@@@@@@.
MESSRS BARU BIAN SENIOR ASSISTANT REGISTRAR
Advocates for the Plaintiffs High Court, Kuching
N.B. 1. This writ may not be served more than six (6) calendar months after the
above date unless renewed by order of court.
2. The Defendant/s may appear hereto by entering an appearance or
appearances either personally or by Advocate at the Registry o the High
Court.
3. A Defendant appearing personally may, if he desires, enter his
appearance by post, and the appropriate forms may be obtained by
sending a postal order for RM10.00 with an addressed envelope to the
High Court in Sabah and Sarawak at Kuching.
Order 6, rule 1 of the RHC 1980
____________________________________________
INDORSEMENT OF CLAIM
This is a representative action where the Plaintiffs claim against the Defendants for
the following orders:
i) A Declaration that the Plaintiffs have native customary rights over their said
native customary land;
ii) A Declaration that this right precludes the 1st and 2nd Defendants and/or their
agent or servants from impairing or abridges the Plaintiffs’ rights;
iii) A Declaration that the issue of the provisional leases to the said parcels of
lands Lot 261 Block 25 Melikin Land District, Lot 2985 and Lot 2986 Melikin
Land District to the 1st and 2nd Defendants in so far as they impair the
Plaintiffs’ customary right over their said native customary land is bad;
v) A Declaration that the act of the 3rd Defendant is precluded from issuing any
provisional lease which affects the Plaintiffs’ said rights;
iv) A Declaration that the act of the 3rdand or 4th Defendants in issuing the said
provisional leases to the said parcels of land are void and/or wrongful;
vi) A Declaration that the impairing of the Plaintiffs’ rights constitutes a violation
of Article 8 of the Federal Constitution;
vii) A Declaration that the issuance of the said provisional leases over the said
parcels of land constitutes a violation of Article 13 of the Federal Constitution
(No confiscation of property without adequate compensation);
viii) A Declaration that the issuance of the said provisional leases over the said
parcels of lands constitutes a violation of Article 5 of Federal Constitution ( No
person shall be deprived of his life, except in accordance with law);
ix) A Declaration that the 1st and 2nd Defendants and/or their agents or servants
are trespassing on the Plaintiffs’ customary lands and/or otherwise unlawfully
interfering with the Plaintiffs’ rights over the said lands’
x) An Order directing the Director of Lands and Survey Sarawak to give effect to
the aforesaid declarations and to cancel the said provisional leases;
xii) A prohibitory injunction restraining the 1st and 2nd Defendants and/or their
agents or servants from trespassing entering or using the Plaintiffs’ said
customary lands;
xiii) A mandatory injunction against the 1st and 2ndDefendants and/or their agents
or servants to cease operations and remove all structures from the Plaintiffs’
said native customary land;
xiv) Damages to be assessed;
xv) Costs of this action; and
xvi) Any further order or relief deems fit and proper by this Honourable Court.
A Statement of claim is annexed hereto and marked “X”
And RM500-00 (or such sum as may be allowed on taxation) for costs, and also if
the Plaintiff obtains an order for substituted service, the further sum of RM250-00 (or
such sum as may be allowed on taxation). If the amount claimed and costs be paid
to the plaintiff of his advocates within (10) days after the service hereof (inclusive of
the day of service), further proceedings will be stayed, but if it appears from the
indorsement on the writ that the Plaintiff is resident outside the scheduled territories,
as defined in the Exchange Control Act (1953), or is acting by order or on behalf of a
person so resident, proceedings will only be stayed if the amount claimed and costs
is paid into court within the said time and notice of such payment in is given to the
Plaintiff or his advocate.
Verification Code:13-317337-478112-452355
Indorsement as to advocate and address
This Writ is taken out by Messrs Baru Bian, Advocates & Solicitors, Advocates for
the Plaintiffs whose address of service is at No. 6, 2nd Floor, Block G, R.H Plaza,
Jalan Lapangan Terbang, 93350 Kuching, Sarawak.
Tel. 082-455593. Fax. 082-45959
MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK AT KUCHING
SUIT NO.
Between
1. LUANG ANAK ENTIYANG (WN KP 520606-13-5495)
2. IGAT ANAK BIJU (WNKP 610605-13-6401)
3. SINGA ANAK UNSIT (WN KP 540901-13-5621)
4. AJAH ANAK GUNYA (WN KP 660920-13-5615)
5. ALAN ANAK SULANG (WN KP 661214-13-5639)
6. MADELY ANAK NAMBA (WN KP 650315-13-5589)
7. MULU ANAK SUGA (WN KP 610719-13-5749)
8. AROH ANAK JEBENG (WN KP 470907-13-5285)
9. MELILI ANAK JAGAK (WN KP 570912-13-5333)
10. TONI ANAK PUGIM (WN KP 710727-13-5747)
11. GILI ANAK TEKONG (WN KP 650102-13-5093)
12. NYALU ANAK TAMPA (WN KP 571104-13-5145)
13. MANCHA ANAK SANG (WN KP 591225-13-5211)
14. BRANGKA ANAK SAWENG (WN KP 590512-13-5375)
15. SAMAD ANAK JUNNA (WN KP 710313-13-5341)
16. MUSIT ANAK NGAWING (WN KP 601009-13-5483)
17. ROSE ANAK UTAK (WN KP 640830-13-5664)
[Suing on behalf of themselves and on behalf of the other
proprietors, occupiers, holders and claimants of Native Customary
Rights (NCR) land surrounding Kampung Menyang “A” Tanah
Mawang, KampungTapang Maong, Kampung Sungai Linsat,
Kampung Krangan Sungai Katak, Kampung Krangan, Kampung
Semukoi, Kampung Krangan Trusan, Kampung Tekalong,
Kampung Krangan Jaya, Kampung Krangan Baru, Kampung
Simpang Melikin, Kampung Danau Melikin B, Kampung Emperan
Melaban, Kampung Kranji Atas and Kampung Kranji Baruh, all
situate at Melikin, Balai Ringin, Daerah Serian, Sarawak.]
All c/o Kampung Tanah Mawang
94700 Serian, Sarawak % Plaintiffs
And
1. UNITED TEAMTRADE SDN BHD
(Co. No. 765831-W)
No. 88 Pusat Pedada
Jalan Pedada
96000 Sibu, Sarawak
2. MEMAJU JAYA SDN BHD
(Co. No. 812386-W)
1st Floor, Lot 8712, No. 6, Shoplot 11
Green Heights commercial Centre
New Airport Road
Kuching Sarawak
3. GOVERNMENT, STATE OF SARAWAK
4. SUPERINTENDENT OF LANDS AND SURVEYS,
SAMARAHAN DIVISION ... Defendants
STATEMENT OF CLAIM
1. (a) The Plaintiffs’ bring this action on their own behalf as well as on behalf of
the residents of Kampung Menyang A” Tanah Mawang,Kampung Tapang Maong,
Kampung Sungai Linsat, Kampung Krangan Sungai Katak, Kampung Krangan,
Kampung Semukoi, Kampung Krangan Trusan, Kampung Tekalong, Kampung
Krangan Jaya, Kampung Krangan Baru, Kampung Simpang Melikin, Kampung
Danau Melikin B, Kampung Emperan Melaban, Kampung Kranji Atas and
Kampung Kranji Baruh, all situate at Melikin, Balai Ringin, Daerah Serian,
Sarawak.
(b) The Plaintiffs are Iban by race and are natives of Sarawak.
2. The 1st Defendant is a company incorporated in Malaysia and registered under
the Companies Act 1965, having its registered address at No. 88, Pusat Pedada,
Jalan Pedada, 96000 Sibu, Sarawak.The 1st Defendant has been granted a
Provisional Lease of State Land known as Lot 2985 Melikin Land District with its
location between Sungai Kerangan and Sungai Ensabang Baru Balai Ringin
containing an area of approximately 7300 hectares (the “said Lot 2985”). The
location of the said Lot 2985is shown in the map marked “M1”,“M3”, “M4” and
“M5” annexed to this Statement of Claim, the area covered in the said Provisional
Lease is edged in pink colour.
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3. The 2nd Defendant is a company incorporated in Malaysia and registered under
the Companies Act 1965, having its 1st Floor, Lot 8712, No. 6, Shoplot 11, Green
Heights commercial Centre, New Airport Road, Kuching SarawakNo. 88, Pusat
Pedada, Jalan Pedada, 96000 Sibu, Sarawak. The 2nd Defendant has been
granted 2Provisional Leases of State Land, known as Lot 2986 Melikin Land
District with its location at Balai Ringin containing an area of approximately 188
hectares (the “said Lot 2986”) and Lot 261Melikin Land District with its location
at Balai Ringin containing an area of approximately 1236 hectares (the “said Lot
261”) The locations of the said Lot 2986 and the said Lot 261are shown in the
map marked “M1” and “M2” annexed to this Statement of Claim, the area
covered in the said Provisional Leases of the said Lot 2986 and the said Lot 261
are edged in grey colour and dark green colour respectively.
4. The 3rd Defendant is the Superintendent of Lands & Surveys Department for the
Samarahan Division, a department within the 4th Defendant’s Government,
appointed under Section 3(1) of the Sarawak Land Code (Cap. 81) having the
powers and authorities stipulated therein and purportedly in the course of
exercising such powers and authorities had carried out such act conduct and
deed complained hereinafter and/or failed refused and/or neglected to perform
such lawful and legal act conduct and deed stipulated in the said Sarawak Land
Code.
5 (a) The Plaintiffs claim that at all material times they have acquired native
customary right (“NCR”) over the land which in description include the land on
the left bank of Batang Krang from the tributary of Batang Krang meeting Sungai
Engkabang going upriver towards Tong Nibong proceedings left following the
range Tinting Pentik towards the watershed of Sungai Engsebang, Nerachi
Melintang, Genting Pentik turning towards Bukit Kara, Ulu Sungai Merah, and
following the Tinting Sg Merah Ulu Sg Engseban towards Nangga Sg Engkelunbi
towards Sg Merah Hilir to Ulu Sg Ngalai, then Tinting Mawang to Tembawai
Uchong towards Ulu Sg Pemintas to Sg Kura and Sg Dundu towards Simpang
Melikin then Pendam Melikin, following Sg Pangel Melikin to Bukit
Kelampai/Nyindeng towards Kayu Tasam and towards Ulu Sg Kemantan Melikin,
Pendam Pengkalan Bait thereafter back towards Batang Krang where Kampung
Tanah Mawang situates. The said native customary rights lands are more
particular set out in the maps/plans annexed hereto marked “M1” (please take
note that the keys, legend and explanatory notes are printed at the reverse
page),“M2”,“M3”, “M4” and “M5” annexed to this Statement of Claim and they are
edged in RED(“M1” and “M2”), edged in LIGHT GREEN(“M1” and “M3”), edged
Verification Code:13-317337-478113-452356
in MAROON(“M1” and “M4”) and shaded with LIGHT BLUE lines(“M1” and “M5”),
are the areas in which the Plaintiffs claim the said NCR. The Plaintiffs shall
produce a more detailed map/plan with more particulars at the trial of this action.
6. The Plaintiffs’ native customary rights over the said native customary land (“NCL”)
is recognized by the Land Code (Sarawak Chapter 81) and acquired prior to the
1st day of January 1958
Particulars of Acquiring Native Customary Rights
6.1 The Plaintiffs’ ancestors fore-parents had exercised their traditional and
customary practice including the occupation and or cultivation of said NCR
lands and the land surrounding their present villages from the time of
Orang Kaya Daka of the Remun Iban and the exercise of the traditional
and customary practice over the said NCR land still subsist in the present
day.
7. The settlement of the Remun Iban in this Melikin region dated back to the times
of the Brunei Sultanate.
7.1 It was during the time of Orang Kaya (“OK”) Rapak anak Enjah that he and
his brothers Aki Jenggut ak Enjah and Lagi anak Enjah together with his
followers who first settled at Entadu.
7.2 Afterthe demise of OK Rapak anak Enjah Entadu, Engkiang anak Jenggut
succeeded OK Rapak as the village chief at Entadu.
7.3 During the time of the Japanese Occupation, Tuai Engkiang anak Jenggut
brought his peoples to move up to the Batang Remangan to avoid
confrontation with the Japanese army. They first settled down at Sungai
Binong to clear and farm the land there. Owing to the constraint of limited
fertile farmland, some of the villagers moved to Krangan Trusan, Tapang
Maong and Sungai Linsat which were parts of their fruit grooves, farming
areas and pulau to start their settlements.
7.4 Jebeng and his relatives followed Engkiang Jenggut in moving to
Pengkalan Chabi Batang Remangan and continuing their cultivation and
settlement there. Jebeng is the father of Aruh anak Jebeng who married
and stays in Kampung Semukoi.
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7.5 Not long after the Japanese occupation, Tuai Engkiang and his people
moved and settled at Tanah Mawang and in or about 1957, Tuai Engkiang
and his followers moved up river to settle at the place now known as
Tembawai Sungai Binong. In 1959 some families moved again to Tanah
Mawang as encouraged by the British Colonial Government as there was
a school being built at Balai Ringin name as Upper Sadong District
Council School.
7.6 In or about 1959,most of the families returned to their previous settlement
in Tanah Mawang. They were persuaded and encouraged by the British
Colonial Government to do so as there was a school the Upper Sadong
District Council School being built at Balai Ringin.
7.7 In or about 1963, it was decided that some of the families in Kampung
Tanah Mawang should move to start another village settlement. Engkiang
anak Jenggut and his relatives moved to construct their houses atthe
present settlement site of Kampung Menyang “A” Tanah Mawang. In the
absence of Engkiang, Libat anak Chunding was elected as village
headman of Kampung Tanah Mawang. Engkiang anak Jenggut died in or
about 1969 and he was buried at Pengkalan Bait, Batang Krang. His son
Antalai ak Engkiang replaced him after his demise. Antalai ak Engkiang
passes away in 1989 and he was replaced by Renggan anak Brita who is
the current village headman of Kampung Tanah Mawang.
8. Mawat anak Ajit and his relatives were originally from Bunut Menyang. Later
Mawat and some villagers moved and settled at Krangan Trusan under the
village chief Bundan. From Krangan Terusan, Mawat and his relatives moved up
river and settled at Ulu Remangan, then they moved up river and settled at
Sungai Limau. When Mawat and his people were residing at Sungai Limau, they
also cleared lands and carried ourt cultivation and farming at Kranji Atas. The
group later moved up river and settled at the present site of Tembawai Entula
and from there Mawat and his relatives moved up river and settled at the site
presently Tembawai Tapang Pinang. Mawat is the grandfather of Rose anak
Utak. Utak is the son of Mawat. Mawat died and his body was buried at Kampung
Krangan Trusan his original village. Rose is wife of Brangka anak Saweng who
inherited the properties of Mawat anak Ajit and staying at Kranji Atas with his
family which is about 2 kilometers from Sungai Limau. Rose anak Utak continues
farming on her late grandfather Mawat’s NCR lands presently.
Verification Code:13-317337-478113-452356
9. In or about 1958,a fire broke out and destroyed the longhouse of Krangan Trusan.
Jagak anak Lansu brought his relatives and longhouse folks to move a kilometer
away and settled at Kampung Krangan Takalong. In or about 1971, some
villagers of Kampung Krangan Takalong moved and settled to Kampung Krangan
Katak under the leadership of Juti anak Namba. In or about 1994, some villagers
from Krangan Trusan were led by Jaban anak Uja to move to Krangan Jaya and
started their village settlement there.At or about the same time, another group of
villagers were led by Tunjah anak Bas to move and settle at Kampung Krangan
Baru. Kampung Krangan Trusan, Kampung Krangan Takalong,Kampung
Krangan Katak, Kampung Krangan Jaya and Kampung Krangan Baru are
located close by each other and the village folks in these villages shared the
same territorial domain (or “pemakai menoa”).
10. In the Danau Melikin region, the Plaintiffs’ ancestors have occupied and/or
cultivated the said NCR lands and the land surrounding their present villages
from the time of Orang Kaya Daka who allowed the then headman Nanyi anak
Gimang and his followers to moved and settled at Tembawai Melikin Lama.
Orang Kaya Daka had also instructed and allowed some his followers to follow
Nanyi anak Gimang to move and resettle at Tembawai Kampung Melikin
Lama.Nanyi anak Gimang passed away in Tembawai Melikin Lama in or about
1960.
10.1 After the demise of Nanyi anak Gimang, Kalih ak Sujal was chosen as the
village headman. Under Tuai Ruumah Kalih ak Sujal, all the villagers
moved to Tembawai Lubok Kubal and settled there. TR Kalih ak Sujal died
in Tembawai Lubok Kubal in or about 1970.
10.2 TR Kalih ak Sujal was succeded by TR Ganssie ak Kalih and TR Ganssie
brought all the villagers to move to Tembawai Lubok Raba.TR Ganssie
passed away in or about 1999 and he was succeeded by TR Gasan ak
Mangku who brought all the villagers to settle at Tembawai Lubok Lian.
TR Gasan passed away in 2006.
10.3 After the death of TR Gasan anak Mangku, the villagers were divided. TR
Mancha ak Sang brought his followers to settle at Munggu Melaban, TR
Sujal ak Ganssie brought his followers to settle in Simpang Melikin, TR
Musit ak Ngawing brought his followers to settle in Kampung Sungai
Gudom, TR Rentap ak Gasan brought his followers to settle in Bukit
Sungai Tebelian. Some of the villagers moved to stay in Danau Melikin. All
of these places mentioned herein are within the pemakai menoa of the
folks of Danau Melikin.
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11. TR Numpang was the first village chief of Ensebang and he was later succeeded
by his son TR Mut anak Numpang. TR Mut was later replaced by his son Baring
anak Mut and TR Baring was replaced by his son TR Gimang anak Baring. TR
Gimang was succeeded by his son TR Baga anak Gimang who was a famous
Iban leader as he had received a Long Service Medal given by Rajah Vyner
Brooke.
The late Juna ak Nyambung who was a descendant of the abovenamed brought
his family and some villagers from Ensebang and moved to settle at Nanga
Sungai Buloh Ensebang Palaie which is about two hours’ walk from Ensebang
Kuari. Juna’s first child Lily was born in Kampung Ensebang Palaie on 18 April
1948.
Beside the people from Ensebang (now called Ensebang Kuari), there were also
those people from Lubok Antu who had moved and settled at Ensebang Plaie.
When Juna and his wife Pengantin were separated, Pengantin returned to her
family in Kampung Bayor. Juna was later married to Lima. Lima is the mother of
Tunai, Samat, Jumpa and Sima. Tunai, Samat and Jumpa staying at Ensebang
Palaie. Lily passed away some time June 2012 at the age of 64 years. Winnie
the daughter of Lily inherited the lands at Sungai Kamir, land at Sungai Kura,
land at Lubok Dadup and at Tembawai Maram.
The late Juna has land at Sungai Buloh planted with fruit trees such as
durian,langsat and ruku. He has also left behind rubber gardens and padi fields.
Jesica Sunfah anak Juna built her house.
During the Japanese occupation, Jana’s brothers and sisters moved back to
Ensebang. Juna died in Ensebang Palaie and was buried at Ensebang.
12. The Plaintiffs claimed NCR over the said NCR Land:
12.1 The Plaintiffs and/or their ancestors had cultivated and/or planted on the
said NCR lands padi, rubber and/or fruit trees and other crops; and/or
12.2 The Plaintiff and/or ancestors had cleared and/or fell virgin jungles for
farmland and occupied the same till today; and/or
12.3 The Plaintiffs and/or their ancestors had been occupying the said NCR
lands by traditionally gathering of jungle produce like rattan, woods, herbs,
shoots, mushrooms and other edible and medicinal plants; and/or
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12.4 By the Plaintiffs own culture, customs and/or adat. The said native
customary land which is comprised of land and forest is not just a source
or livelihood but also constitutes life itself as the said land is also
fundamental to the Plaintiffs’ social, cultural and spiritual expect as native
people
12.5 The said NCR lands subsist as it were since the Plaintiffs’ ancestors
occupied, cultivated and lived upon the said NCR Lands.
13. Sometimes in 2010, the Plaintiffs have found out that the1st and 2nd Defendants
their employees servants agents and or contractors had trespassed and
encroached upon their NCR Land to carry out logging and land clearing works.
The 1st and 2nd Defendants their employees servants agents and or contractors
have claimed to have been granted provisional leases of state land for the said
Lot 2985, Lot 2986 and Lot 261 the areas covered by the said provisional leases
included and overlapped with the Plaintiffs’ said native customary rights lands.
13.1 It was also found out that the 1st and 2nd Defendants their employees
servants agents and or contractors had planted oil palm plants or
seedlings on the Plaintiffs’ NCR Lands without the consent of the Plaintiffs.
13.2 The Plaintiffs have since lodged numerous police reports against the 1st
and 2nd Defendants.
14. The Plaintiffs aver that the issuance of the provisional leases over the said Lot
2985, Lot 2986 and Lot 261 by the 3rd and 4th Defendants and/or through the
office of the 3th Defendant was wrongfully and or in disregard of the Plaintiffs
acquired NCR rights over the said native customary land and is therefore bad in
law and/or void.
Particulars
14.1 The land areas covered by the said parcels of land cover and include a
substantial part of the Plaintiffs’ said native customary land.
14.2 There has no prior extinction or extinguishment of the Plaintiffs’ native
customary rights over the said native customary land according to the law
or at all.
14.3 There has been no provision for compensation to the Plaintiffs
14.4 There has been no payment of compensation to the Plaintiffs.
15. In addition, the Plaintiffs aver that there was no extinguishment of the Plaintiffs’
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NCR within the land covered by the said provisional leases before the same was
issued to the 1st and 2nd Defendants and/or no provision as to compensation in
accordance with the Land Code of Sarawak and the Federal Constitution was
ever made or paid to the Plaintiffs. The alienation of the said provisional leases is
unlawful, unconstitutional, and improper and henceforth the issuance was null
and void.
Particulars
15.1 The said provisional leases granted to the 1st and 2nd Defendants were
given without the permission of the Plaintiffs who are the rightful owner
and/or proprietors and/or licensees and/or claimants of the said NCR Land.
15.2 The Plaintiffs NCR over the said provisional leases were never
extinguished and the Plaintiffs’ NCR continue to exist over the said
provisional leases.
15.3 The said provisional leases were given to the 1st and 2nd Defendants,
who are not a native of Sarawak and therefore unlawful and illegal under
the Sarawak Land Code.
15.4 Further and/or that there was a breach of Articles 13 of the Federal
Constitution, in that there was deprivation of the Plaintiffs properties
without adequate compensation.
16. The granting of the said parcels of land by the 3rd Defendant on the ostensible
authority of legislation such as the Land Code (Sarawak Cap 81) is
unconstitutional and/or wrongful in so far as it abridges or impairs the Plaintiffs’
rights.
Particulars
16.1 Since time immemorial the said Plaintiffs have established and maintained
comprehensive scheme by which through their law, custom, tradition and
practices they determined questions concerning the ownership, use
occupation of land, forest and rivers.
16.2 By then said laws, customs tradition and practices, they were entitled to
the rights of ownership and/or use and/or occupation over the land and
access to forest as well as the fishing waters. The Plaintiffs exercised the
aforesaid rights over the said native customary land.
16.3 Therefore the Plaintiffs had prior to the enactment of such legislation
accrued and vested native customary over the said land.
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16.4 For reasons aforesaid the said accrued rights could not be and were never
lawfully vested in the Colonial State Government and could not be and
were not vested in the State Government under Article 47 of the
Constitution of the State of Sarawak or however otherwise.
16.5 No title could therefore be issued over the Plaintiffs’ said native customary
land.
17. The Plaintiffs have a legitimate expectation that their rights, tradition, culture and
livelihood will not be disrupted, extinguished, and/or restricted.
18. The Plaintiffs’ rights were impaired without a right to be heard and/or a right to
say “no” and/or object to the registration and/or issuance of the said provisional
leases of State Land or Title to the extinguishment and/or termination of their
rights.
19. The 3rd and 4th Defendants had also acted unreasonably and had failed to take
relevant matters into consideration when they granted the said provisional lease
of State Land to the 1st and 2nd Defendants.
Particulars
19.1 That the said provisional leases of State Land had affected the rights
and/or interests of the Plaintiffs, their immediate family members and
descendants.
19.2 that the activities of the 1st and 2nd Defendants upon the said native
customary land would cause irreparable damages to the environment and
eco-system of that area, thereby affecting the lives and lifestyles of the
Plaintiffs who are dependant on their lands and rivers for their food and
medicine, well-being and the very survival of themselves their children and
their community.
20 Further and in the alternative the issuance of the said titles over the said parcels
of land was unconstitutional as it was issued in violation of Article 13 of Federal
Constitution.
Particulars
20.1 The granting of the said leases by the 3rd Defendant and/or it department
of then Land and Survey amounted to the compulsory acquisition of the
Plaintiffs said native customary land by the 1st and 2nd Defendants and/or
their servants or agents but no provision for compensation in accordance
with the law has been made nor have the Plaintiffs been paid any
compensation.
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21. Further and in the alternative, the acts as aforesaid of the Defendants their
servants and/or agents and/or the provisions of the law which impair the rights of
the natives to their native customary rights over land as herein before referred to
are unconstitutional and void in that they violate individually and/or cumulatively
Article 5 of the Federal Constitution which guarantees inter alia that no person
shall be deprived of his life (which includes the right to livelihood) except in
accordance with law.
Particulars
21.1 The Plaintiffs have been deprived of their source of food, fish, medicines,
wildlife and other forest produce which the Plaintiffs need and are
dependant upon for their daily sustenance.
21.2 The Plaintiffs have also been deprived of heir source of income from their
fruit trees, rubbers, and other essential trees and crops.
21.3 The Plaintiffs aver that their rights to livelihood has been and will continue
to be seriously impaired by the aforesaid acts and provisions of the law.
21.4 The Plaintiffs further aver that the impairing of their right to livelihood by
the aforesaid acts and provision s of the law is unjust, unfair and
unreasonable, destructive of the economic, cultural and social system for
their existence and therefore not in accordance with the law.
22 Some time in May 2010 the 1st and the 2nd Defendants and/or its agents or
servants wrongfully trespassed onto the Plaintiffs’ said native customary land in
particular part of Sungai Puteh , foot of Bukit Bedegum, Bukit Peniki Guwek, Ulu
Sungai Pawang, with the aid of bulldozers and lorries destroyed and damages
the said native customary lands and the crops thereon and planted oil palm trees
on the said lands. They also caused extensive pollution and silting of Sungai
Melikin, Sungai Keroh, Part of Sungai Ulu Remangan part of Ulu Sungai Tapang
Pinang, part of Ulu Sungai Tinting Pawang and Bukit Ketugan, Ulu Ensebang
Lubok Kajatau partially destroyed, on which the Plaintiffs and other members of
the community are dependant for their water supply and their source of fish.
23 The 1st and the 2nd Defendants and/or its agents or servants continued and still
continue to trespass on the said land native customary land despite the
numerous and continued objections and protests raised by the Plaintiffs.
24 The 1st and the 2nd Defendants and/or its agents or servants wrongfully claim that
they have the right to enter, utilize and occupy the said native customary lands.
25 By the reason of the matters aforesaid, the Plaintiffs’ source of and right to their
livelihood is seriously threatened and they have suffered loss and damages.
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Particulars of Damages
25.1 Destruction of the Plaintiffs’ source of livelihood includes food, valuable
medicines, wildlife and other forest produce which the Plaintiffs need and
are dependant upon
25.2 Extensive erosion and damages to the said customary land
25.3 Extensive pollution and silting of the rivers and streams which the Plaintiffs
and the member of their community are dependant on for water supply
and for their source of fish.
25.4 Damage to cultivated padi land.
25.5 Damages to fruit trees rubber gardens and other essential trees and crops.
26 The Plaintiffs in addition to the matters alleged in paragraphs 22, 23, 24 and 25
herein further claim exemplary damages by reason of the conduct of the 1st and
2nd Defendants as set out hereinbefore.
Particulars of Conduct Relied on
26.1 The 1st and 2nd Defendants and/or their agents or servants despite
continued objections and protest made by the Plaintiffs to the Defendants,
have persisted in continuing to trespass on the Plaintiffs’ said native
customary lands.
26.2 Such conduct is oppressive, arbitrary and unconstitutional.
26.3 Such conduct is also calculated to result in a profit for the 1st and 2nd
Defendants
27. Further and in the alternative, the Plaintiffs claim that notwithstanding the fact
that the 3rd and 4th Defendants knew or ought to know that the Plaintiffs have
NCR over the said NCR Land and/or the 3rd and 4th Defendants through the 3rd
Defendant had failed to act for the benefit and/or to protect the Plaintiffs’
proprietary rights over the said NCR Land therefore in breached of their fiduciary
duty towards the Plaintiffs.
Particulars of Fiduciary Duty Relied On
27.1 Although the law granted upon the 3rd and 4th Defendants special powers
and discretion to give preferential treatment and/or protection to the
Plaintiffs as regards the reservation, protection or alienation of lands in
Sarawak, the 3rd and 4th Defendants and particularly the 3rd Defendant
had failed, refused or neglected to exercise it to protect the Plaintiffs said
rights and/or title against the intrusion or trespass act of the 1st and
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2ndDefendants and/or their servants or agents or contractors.
27.2 The 4th Defendant and/or its predecessors, upon acquiring and/or
establishing sovereignty over the State of Sarawak with the agreement
and/or undertaking that the said sovereignty shall be subjected to the
natives rights and/or title to and obliged to act to protect the Plaintiffs’ said
rights and/or title to and possession of the said NCR Lands.
WHEREFORE the Plaintiffs claim against the Defendants
i) A Declaration that the Plaintiffs have native customary rights over their said
native customary land;
ii) A Declaration that this right precludes the 1st and 2nd Defendants and/or their
agent or servants from impairing or abridges the Plaintiffs’ rights;
iii) A Declaration that the issue of the provisional leases to the said parcels of lands
Lot 261 Block 25 Melikin Land District, Lot 2985 and Lot 2986 Melikin Land
District to the 1st and 2nd Defendants in so far as they impair the Plaintiffs’
customary right over their said native customary land is bad;
v) A Declaration that the act of the 3rd Defendant is precluded from issuing any
provisional lease which affects the Plaintiffs’ said rights;
iv) A Declaration that the act of the 3rdand or 4th Defendants in issuing the said
provisional leases to the said parcels of land are void and/or wrongful;
vi) A Declaration that the impairing of the Plaintiffs’ rights constitutes a violation of
Article 8 of the Federal Constitution;
vii) A Declaration that the issuance of the said provisional leases over the said
parcels of land constitutes a violation of Article 13 of the Federal Constitution (No
confiscation of property without adequate compensation);
viii) A Declaration that the issuance of the said provisional leases over the said
parcels of lands constitutes a violation of Article 5 of Federal Constitution ( No
person shall be deprived of his life, except in accordance with law);
ix) A Declaration that the 1st and 2nd Defendants and/or their agents or servants
are trespassing on the Plaintiffs’ customary lands and/or otherwise unlawfully
interfering with the Plaintiffs’ rights over the said lands’
x) An Order directing the Director of Lands and Survey Sarawak to give effect to the
aforesaid declarations and to cancel the said provisional leases;
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xii) A prohibitory injunction restraining the 1st and 2nd Defendants and/or their
agents or servants from trespassing entering or using the Plaintiffs’ said
customary lands;
xiii) A mandatory injunction against the 1st and 2ndDefendants and/or their agents or
servants to cease operations and remove all structures from the Plaintiffs’ said
native customary land;
xiv) Damages to be assessed;
xv) Costs of this action; and
xvi) Any further order or relief deems fit and proper by this Honourable Court.
Dated this
JJJJJJJJJJJJJJ.
MESSRS BARU BIAN
Advocates & Solicitors for the Plaintiffs
This Statement of Claim is filed by Messrs Baru Bian Advocates & Solicitors for the Plaintiffs
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