IN THE HIGH COURT IN SABAH AND SARAWAK AT KUCHING
SUIT NO.: 22-220-2008-I
BETWEEN
1. JAMES JAGAH AK NYADAK (WN.KP.501229-13-5241)
2. NYAMUNG AK SANGAN (WN.KP.361221-13-7463)
3. RICKY ABELL AK GUNYAU (WN.KP.430525-13-5363)
4. DONNY RUING AK LIMPAU (WN.KP.471201-13-5187)
5. REGEW AK TION (WN.KP.540228-13-5153)
6. TAMBONG AK RINUM (WN.KP.361205-13-5309)
7. GUANBEE AK NYAOD (WN.KP.570814-13-5647)
8. SIJA ANAK GINYUNG (WN.KP.390226-13-5001)
9. SUAI ANAK SATOR (WN.KP. 381231-13-5247)
10. BIKU ANAK TASOD (WN.KP.541231-13-5431)
11. PADAM MIDIN ANAK SIBAN (WN.KP.550412-13-5267)
12. SIGAY ANAK RANONG (WN.KP.480101-13-5525)
13. SADEN ANAK UMPAI (WN.KP.480624-13-5241)
(Representing themselves and other owners, occupiers
and/or proprietors of Native Customary Rights (NCR)
Land from Kampung Baru Mawang, Kampung Bunga,
Kampung Menggu Lalang, Kampung Plaman
Baki/Kuhas, Kampung Tarat Mawang, Kampung
Tarat Melawi, Kampung Tarat Sibala
94700 Serian … PLAINTIFFS
AND
1. USAHA JASAMAJU SDN BHD (CO. NO. 660630-K)
NO. 6 JALAN RAWANG
96000 SIBU
2. BESRICHAS SDN BHD (CO. NO. 625431-D)
2ND 35 FLOOR 96 JALAN PETANAK
93100 KUCHING
3. LAMBANG SINAR MAS SDN BHD (CO. NO. 629306-M)
LOTS 1004-1006 JALAN KWONG LEE BANK
93450 KUCHING
4. POLIGA SDN BHD (CO. NO. 586847-T)
LOT 3629 TAMAN TIMBERLAND
LRG ROCK 2
93200 KUCHING
5. SIBU SLIPWAY SDN BHD (CO. NO. 228470-H)
LOTS 1004-1006 JALAN KWONG LEE BANK
93450 KUCHING
6. SOUTHERN FORCE SDN BHD (CO. NO. 484050-K)
LOTS 1181-1183 2ND FLOOR MCLD MIRI
WATERFRONT COMMERCIAL CENTRE
98000 MIRI
7. SUPERINTENDENT OF LANDS AND SURVEYS
SEMARAHAN DIVISION
8. DIRECTOR OF FORESTS
SARAWAK
9. GOVERNMENT STATE OF SARAWAK … DEFENDANTS
BEFORE THE HONOURABLE
MR. JUSTICE DATUK LINTON ALBERT IN CHAMBERS
R U L I N G
The Plaintiffs commenced an action for various declaratory reliefs relating to their native customary rights over lands in respect of which timber licences were issued and alienation of land under Provisional Leases were granted by the authorities under the relevant legislations. The 4th Defendant, under enclosure 34 and the 7th to 9th Defendants under enclosure 51 filed almost identical applications to strike out the Plaintiffs’ action under Order 18 rule 19
and Order 92 of the Rules of the High Court 1980 and were accordingly heard together.
The respective applications are founded on the principle enunciated in O’REILLY v MACMAN [1983] 2 AC 237 where the House of Lords held that, as a general rule, it is contrary to public policy and as such an abuse of process for a person seeking to 5 establish that a decision or action of a person or body infringes rights which are entitled to protection under public law, to proceed by way of an ordinary claim rather than the judicial review procedure under O 53, thereby evading the provision intended to protect public authorities.
The principle laid down by Lord Diplock in O’REILLY has been applied with the rigidity and precision of an arithmetical equation in some of the authorities cited on behalf of the Defendants. For example in SHAHRUDDIN BIN ALI & ANOR v SUPERINTENDENT OF LANDS AND SURVEYS, KUCHING DIVISION & ANOR [2005] 2 MLJ 555 a case concerning the extinguishment of native customary rights over land the court in dismissing the Plaintiffs’ action stated:
“ …. the plaintiffs’ remedy to enforce or protect rights created or acquired or recognised in accordance with the provisions of the Land Code must be sought under public law and not private law.
That being the case, the plaintiffs here should have proceeded to seek judicial review of the Minister’s Direction and first defendant’s decision under O 53 RHC, unless of course they can bring themselves within the exceptions to the general rule 25 stated in O’Reilly v Mackman (Supra) ….” .
Similarly, in TR LAMPOH AK DANA & ORS v GOVERNMENT OF SARAWAK [2005] 6 MLJ 371 the Plaintiffs’ action for declaratory reliefs concerning extinguishment of their native customary rights over communal native customary lands was dismissed and the court stated at pp 389-390 as follows:
“In this particular case, the very fact that the defendant issued the Direction to extinguish the NCR over the said land is in itself a proof that the defendant recognizes that NCR could have existed on the said land.
Since the issuing of the Direction is an act of a public body or authority in the form of the Minister for Planning and Resources Management the plaintiffs must proceed under Order 53 of RHC 1980. In order to have the Direction quashed the plaintiffs must apply for an order of 10 certiorari, the Direction being an administrative act of a public authority. To move the court for such an order the plaintiffs must proceed under O 53 of RHC 1980. In my view it is wrong for the plaintiffs to seek a relief in a declaratory order for their NCR and then pray for a consequential order that the Minister’s Direction be quashed. To allow that means to allow the plaintiffs to circumvent O 53 of RHC 1980 and all the protections afforded by it to the defendants. For that same reasons, I think
the learned counsel for the plaintiffs’ argument on Chap VI of Pt 2 of the Specific Relief Act 190 (Act 137), particularly on s 41 of the Act, is irrelevant and misconceived”.
Hence, it is argued on behalf of the Defendants that the Plaintiffs in the present proceedings are in fact challenging the decision of the 7th and 8th Defendants and ought therefore to have resorted to Judicial Review to quash those decisions under Order 53 of the RHC 1980. In not doing so, the Plaintiffs have attempted to circumvent the strict requirements of Order 53 which constitutes an abuse of the process of the court.
A very similar objection was raised on behalf of the respondent in YAB DATO DR. ZAMBRY ABD KADIR & ORS v YB SIVAKUMAR VARATHARAJU NAIDU; ATTORNEYGENERAL MALAYSIA (INTERVENER) [2009] 4 CLJ 253 where the applicants’ action was for declaratory reliefs challenging the
respondent’s decision to suspend them from the Perak Legislative
Assembly. The objection was dismissed and the reasons are stated in the judgment of Augustine Paul FCJ at pp 266-267:
“The rule in O’Reilly v Mackman [1982] 3 All ER 1124 has been adopted by the Court of Appeal in cases such as Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2002] 2 CLJ 697, Dato Seri Anwar bin Ibrahim v Perdana Menteri Malaysia & 5 Anor [2007] 3 CLJ 377 and Ahmad Jefri Mohd Jahri v Pengarah Kebudayaan & Kesenian Johor & Ors [2008] 6 CLJ 473.
However, due to the uncertainties in the rule in O’Reilly v Mackman [1982] 3 All ER 1124 in England itself the adoption of the rule in that case locally must be done so with care and caution as in Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2002] 2 CLJ 697. The result is that the remedies of declaratory relief under O 15 r 16 and certiorari must still be regarded generally as being alternatives and mutually not exclusive.
However, whatever restriction there may be on the use of O 15 r 16 it will not apply where a person seeks to assert, inter alia, his right to a legal status. This is statutorily recognised in the form of s 41 which reads as follows:
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to the character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in that suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration or title, omits to do so”.
and added at pp 290-291:
“Clearly the challenge of the applicants to their suspension from the Legislative Assembly is a matter that affects their legal status within the meaning of s 41. They are therefore entitled to seek a declaration of their legal right pursuant to O 15 r 16. It
cannot be argued that they ought to have proceeded under O 53 itself for declaratory relief for two reasons. Firstly, O 53 does not say it is the exclusive provision for the grant of declaratory relief as stated by Lord Diplock in O’Reilly v Mackman [1982] 3
All ER 1124 at p 1134 in the following words:
My Lords, O 53 does not expressly provide that procedure by application for judicial review shall be the exclusive procedure available by which the remedy of a declaration or injunction may be obtained for infringement of rights that are entitled to protection under public law; nor does s 31 of the
Supreme Court Act 1981. There is great variation between individual cases that fall within O 53 and the Rules of Committee and subsequently the legislature were, I think, for this reason content to rely on the express and the inherent power of the High Court, exercised on a case to case basis, to prevent abuse of its process whatever might be the form taken by that abuse. Accordingly do not think that your Lordships would be wise to use this as an occasion to lay down categories of cases in which it would necessarily
always be an abuse to seek in an action begun by writ or originating summons a remedy against infringement of rights of the individual that are entitled to protection in public law.
Secondly, when the Specific Relief act 1950 was enacted O 53 was not in existence and, thus, adherence to it could not have been contemplated”.
In the present proceedings, the Plaintiffs’ claim to native customary rights over lands alienated under the three Provisional Leases is unarguably ‘a right as to any property’ under the other limb of s 41 of the specific Relief Act 1950 and are, therefore, entitled to seek a declaration of their right to property under O 15 r 16 which is consonant with what was laid down in THE ATTORNEY-GENERAL OF HONG KONG v ZAUYAH WAN CHIK & 3 ORS & ANOTHER APPEAL [1995] 3 CLJ 35 where Gopal Sri Ram JCA (as he then was) referring to the jurisdiction of the court to grant declaratory relief under s 41 had this to say at p49 which was reproduced with approval in ZAMBRY’s case.
“Now, the jurisdiction of a Malaysian court to grant declaratory relief springs from two sources. First there is the statutory basis to be found in s 41 of the Specific Relief Act 1950 which reads as follows:
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to the character or right, and the court may in its discretion make therein a declaration that he is
so entitled, and the plaintiff need not in that suit ask for any further relief:
Provided that no court shall make any such a declaration where the plaintiff, being able to seek further relief than a mere declaration or title, omits to do so.
Explanation – A trustee of property is a ‘person interested to deny’ a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.
The procedural adjunct to the statutory basis is to be found in O 5 15 r 16 of the Rules of the High Court 1980, which provides as follows:
No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not consequential relief is or could be claimed”.
ZAMBRY’s case has now rendered it unnecessary to pretend that litigants in the jungles of Malaysian Borneo have the same sophistication as those in 1982 England when O’REILLY was first enunciated, to comply with the intricacies of Order 53 the relevant provisions of which are these:
“2. (1) An application for any of the reliefs specified in paragraph 1 of the Schedule to the Courts of Judicature Act 1964 (other than an application for an order of habeas corpus) shall be in Form 111A.
(2) An application for judicial review may seek any of the said reliefs, including a prayer for a declaration, either jointly or in the alternative in the same application if it relates to or is connected with the same subject matter.
(3) Upon the hearing of an application for judicial review, the Court shall not be confined to the relief claimed by the applicant but may dismiss the application or may any orders, including an order of injunction or monetary compensation:
Provided always that the power to grant an injunction shall be exercised in accordance with the provisions of section 29 of the Government Proceedings Act 1948 and section 54 of the 35 Specific Relief Act 1950.
(4) Any person who is adversely affected by the decision of any public authority shall be entitled to make the application.
(3) (1) No application under this Order shall be made unless leave therefore has been granted in accordance with this rule.
(2) An application for leave must be made ex parte to a Judge in Chambers and must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought, and by affidavits verifying the facts relied on.
(3) The applicant must give notice of the application for leave not later than three days before the hearing date to the Attorney General’s Chambers and must at the same time lodge in those Chambers copies of the statement and affidavits.
(4) The Judge may, in granting leave, impose such terms as to costs and as to the giving of security as he thinks fit.
(5) The grant of leave under this rule shall not, unless the Judge so directs, operate as a stay of the proceedings in question.
(6) An application for judicial review shall be made promptly and in any event within 40 days from the date when grounds for the application first arose or when the decision is first communicated to the applicant provided that the Court may, upon application and if it considers that there is a good reason for doing so, extend the period of 40 days”.
It is hardly surprising that many a litigant has faced the ignominy of having his action dismissed and thereby denied the opportunity to present the merits of his claim simply because he is unable to meet the strict and mandatory requirements of O 53 but in the light of ZAMBRY’s case and for the reasons aforesaid the Plaintiffs in the present case may yet get that opportunity because the Defendants’ objection to the effect that the Plaintiffs ought to
have proceeded by way of Judicial Review under O 53 does not hold water.
There is also no merit in any of the arguments advanced on behalf of the Defendants which are predicated on various provisions of the Land Code because the Plaintiffs’ claim to native customary right is not entirely dependent on them. In NOR ANAK NYAWAI & ORS v BORNEO PULP PLANTATION
SDN BHD & ORS [2001] 2 CLJ 769 Ian Chin J said:
“ …. there is no law in Sarawak to say that if you do not apply for a licence to occupy the land under s 30A of the Land Ordinance or s 29 of the Land Code you will lose your native customary rights which you have hitherto enjoyed now and which your ancestors have enjoyed since the days of the Rajahs. Support for the view that whatever native customary rights were acquired are not affected by the Land Code can be found in TR Bujang Ak Untor v TR Tanjong Ak Usat 4 MC 62 which is a decision made in 1966 where Lee Hun Hoe J (as he then was) sitting in appeal with two assessors held that temuda acquired prior to 1958 continue to subsist”.
Similarly, in KERAJAAN NEGERI SELANGOR & ORS v SAGONG BIN TASI & ORS [2005] 6 MLJ 289 the CA at pg 302 stated –
“So far as authority is concerned, there is Amodu Tijani to which the judge referred. There is also the decision of Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor [1997] 1 MLJ 418 when this upheld a finding by the High Court that aborigines had
rights at common law over land vested in the State and that such rights existed despite the 1954 Act”.
In the circumstances and for the reasons aforesaid the respective applications under enclosure 34 and 51 are dismissed with costs to be taxed unless agreed.
LINTON ALBERT, J.
Date: 21st October, 2009
For the Plaintiffs: Baru Bian
M/S Baru Bian Advocates
Kuching
For the 4th Defendant: Tan Kee Heng
With Wong Siong Tung and Ling Pei
Ying, M/S S.K. Ling & Co. Advocates
Kuching,
For the 7th, 8th and Joseph Chioh with McWillyn Jiok
9th Defendants: of State Attorney-General’s
Chambers Kuching
