Note: An interlocutory injunction has been granted by High Court Judge Datuk Rhodzariah Bujang this morning (Feb 17, 2012) against Entrep Resources and LYH Everwin Oil Palm Plantations (S) Sdn Bhd.
MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK AT KUCHING
SUIT NO:___________________________
BETWEEN
1. BINGLAI ANAK BUASSAN [WNKP. 430401-13-5353]
2. UNGGAK ANAK BANTING [WNKP. 450323-13-5355]
3. BUNGKA ANAK KALOM [WNKP. 400222-13-5094]
4. JIMI ANAK NAWI [WNKP. 320924-13-5101]
5. DIAH ANAK SINGKUN [WNKP. 530215-13-5104]
6. ASMARA ANAK LASOR [WNKP. 530919-13-5356]
7. SAIMAH ANAK LAMIT [WNKP. 440525-13-5100]
8. NOHIN ANAK APAT [WNKP. 570316-13-5599]
9. JUIL ANAK ALI [WNKP. 641127-13-5309]
10. MINTIAN ANAK OLOT [WNKP. 640227-13-5299]
[Suing on behalf of themselves and other proprietors, occupiers, holders and claimants of Native Customary Rights (NCR) land surrounding Kampung Sebat Dayak and Kampung Siru Dayak, situated at Sematan, 94500 Lundu, Sarawak.] …Plaintiffs
AND
1. ENTREP RESOURCES SDN. BHD. (546975-M)
2nd Floor, Lot 3083, Block 10,
Wisma Ng Aik Oh, Jalan Rock,
93250 Kuching,
Sarawak.
2. SUPERINTENDENT OF LAND AND SURVEY,
KUCHING DIVISION
3. THE STATE GOVERNMENT OF SARAWAK
4. LYH EVERWIN OIL PALM PLANTATIONS (S) SDN BHD (782721-P)
No. 5C, 1st Floor, Jalan Lanang,
Sibu, Sarawak. …Defendants
EX- PARTE SUMMONS IN CHAMBERS
[Order 29 Rule 1(1) RHC 1980]
LET ALL PARTIES CONCERNED attend before the Judge in Chambers on the …………… day of ……………………………… 2011, at ………………………m on the hearing of an application by the Plaintiffs, upon the Plaintiffs’ undertaking to abide by any order that Court or Judge may make as to damages in the case the Court or the Judge should hereafter be of the opinion that the 1st Defendant shall have sustained any loss or damage by reason of the order to be made herein which the Plaintiffs ought to pay, for:
(a) An injunction to be issued to restrain the 1st and/or 4th Defendant, whether by themselves or by its servants or agents or otherwise, from commencing any ground works or activities, including trespassing, clearing, constructing, planting, surveying, or occupying the area referred to an/or edged in Red in the locality map marked as exhibit “M” and annexed to the Statement of Claim filed in this Court (a copy is also annexed herein) ( hereinafter referred as the “said NCR Land”).
(b) An interim order to be issued on the 1st and/or 4th Defendant to remove all machinery and personnel from the said NCR Land;
(c) Such other or further interim order/s or relief/s that the Court deems just and necessary pending the outcome of this action; and
(d) Costs of this application.
The grounds of this application are as follows:
i. That the Plaintiffs’ claim is based on Native Customary Right which requires evidences to be adduced at a proper trial of this case and cannot be disposed of by affidavit and documents only;
ii. that from the relevant documents to date as stated in the Statement of Claim filed herein, the Plaintiffs in all probability would succeed in their claims for NCR upon the said parcels of provisional leases;
iii. or as stated in the Affidavit of Binglai anak Buassan (WN.KP. 430401-13-5353) and Rabin anak Putung (WN.KP. 650122-13-5291) filed in support of this application.
Dated this ……………… day of ……………………………… 2011
……………………………………………………………
Senior Assistant Registrar
High Court, Kuching
This Summons in Chambers is filed by Messrs Baru Bian, Advocates & Solicitors for the Plaintiffs whose address of service is at No. 6, 2nd Floor, Lot 5430, Block G, RH Plaza, Jalan Lapangan Terbang, 93350 Kuching, Sarawak
MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK AT KUCHING
SUIT NO:___________________________
BETWEEN
1. BINGLAI ANAK BUASSAN [WNKP. 430401-13-5353]
2. UNGGAK ANAK BANTING [WNKP. 450323-13-5355]
3. BUNGKA ANAK KALOM [WNKP. 400222-13-5094]
4. JIMI ANAK NAWI [WNKP. 320924-13-5101]
5. DIAH ANAK SINGKUN [WNKP. 530215-13-5104]
6. ASMARA ANAK LASOR [WNKP. 530919-13-5356]
7. SAIMAH ANAK LAMIT [WNKP. 440525-13-5100]
8. NOHIN ANAK APAT [WNKP. 570316-13-5599]
9. JUIL ANAK ALI [WNKP. 641127-13-5309]
10. MINTIAN ANAK OLOT [WNKP. 640227-13-5299]
[Suing on behalf of themselves and other proprietors, occupiers, holders and claimants of Native Customary Rights (NCR) land surrounding Kampung Sebat Dayak and Kampung Siru Dayak, situated at Sematan, 94500 Lundu, Sarawak.] …Plaintiffs
AND
1. ENTREP RESOURCES SDN. BHD. (546975-M)
2nd Floor, Lot 3083, Block 10,
Wisma Ng Aik Oh, Jalan Rock,
93250 Kuching,
Sarawak.
2. SUPERINTENDENT OF LAND AND SURVEY,
KUCHING DIVISION
3. THE STATE GOVERNMENT OF SARAWAK
4. LYH EVERWIN OIL PALM PLANTATIONS (S) SDN BHD (782721-P)
No. 5C, 1st Floor, Jalan Lanang,
Sibu, Sarawak. …Defendants
AFFIDAVIT IN SUPPORT
I, Binglai anak Buassan (WN.KP. 430401-13-5353) a Malaysian citizen of full age and now residing at Kampung Sebat Dayak, Sematan, 94500 Lundu, Sarawak do hereby solemnly and sincerely affirm and say as follows:
1. That I am the 1st Plaintiff in the above suit. The facts deposed herein are within my personal knowledge, information and belief and/or have been obtained from documents kept in our Advocates’ office, Messrs Baru Bian Advocates & Solicitors. I depose the facts for and on behalf of all the Plaintiffs.
2. A Writ of Summons has been filed in the High Court In Sabah and Sarawak at Kuching on 25.10.2011 for the Court to determine the issue of the Native Customary Rights Land on the area referred to and/or edged in Red in the locality map marked as exhibit “M” and annexed to the Statement of Claim filed together with the Writ of Summons (the “said NCR Land”).
3. In late August 2011, I discovered that the 1st and/or 4th Defendant and/or their employees, servants, or agents, or contractors had trespassed into the said NCR Land. The 1st and/or 4th Defendants built their workers’ hut on the Plaintiffs’ NCR Land. The 1st and/or the 4th Defendant and/or his agents or servants had brought in their machineries into the said NCR Land and started clearing our tanah jerami (farm) which we have planted with oil palm trees and fruit trees. Some of the oil palm trees and fruit trees that are ready for harvest were already destroyed by the 1st and/or 4th Defendants.
4. On or about the 20th of September 2011, the 1st Defendant invited three of the representative of Kampung Siru Dayak and Kampung Sebat Dayak for a “dialogue session” with the company representative, Mr. Sim Kuang Bak. In the dialogue session, the 1st Defendant repeatedly wanted to buy over the Plaintiffs’ NCR Land. However, the Plaintiffs objected and stated that they will not sell their NCR Land to the 1st Defendant. However, the 1st Defendant continuously repeated that the said Land belongs to him as the said Lease was granted to the 1st Defendant by the 2nd Defendant. The 1st Defendant has also stated that the 1st Defendant will continue to do their clearing work in the said Land on the next day.
5. In the same meeting, the 1st Defendant promised that the 1st Defendant will still go into the said NCR Land but they will not disturb the area which has been planted by the Plaintiffs.
6. However, on the 07.10.2011, we found out that the 1st Defendant and/or their agents and/or representative continue to clear the Plaintiffs’ tanah jerami (farmland).
7. On 10.10.2011, the Plaintiffs represented by me and four other representatives were asked to meet with the Penolong Pegawai Tadbir Kawasan Lundu, Harry Don Bosco (hereinafter referred to as “Harry”) and the 1st Defendant’s representative at the Lundu District Office. In the meeting, we were informed by Harry that the 2nd Defendant has issued a Lease of State Land more specifically known as all that parcel of land situate at Lot 1014 Block 8 of Pueh Land District containing approximately 412.7 hectares of land (hereinafter referred to as “the said Lease”) to the 1st Defendant without the Plaintiffs’ knowledge and/or consent. Harry demanded the Plaintiffs to prove our NCR over the said land by 17.10.2011 or else Harry would allow the 1st Defendant to commence work on the said Land.
8. On the 18.10.2011, I lodged a police report against the trespass by the 1st and/or 4th Defendant at the Lundu Police Station. In the said police report, I have also stated that I will bring the matter to be determined by the Honourable Court. A copy of the Police Report No. Semantan/000260/11 is exhibited herewith and marked as “BB-1”.
9. I have also lodged a police report on the 18.10.2011 against the 1st Defendant for trespassing into my land and the Plaintiffs’ land by clearing our NCR land. The Plaintiffs’ rubber trees and coconut trees have been totally destroyed because of the clearing by the 1st Defendant. A copy of the Police Report No. Semantan/000259/11 is exhibited herewith and marked as “BB-2”.
10. The Plaintiffs’ ancestors have created and/or acquired and/or inherited their rights, interests and title over their respective parcels of NCR Land and have never abandoned the said NCR Land.
11. The 3rd Defendant and/or their predecessors have always recognised the Plaintiffs native customary rights over the said Land. Even before 1958, the Plaintiffs’ ancestors were granted with rubber tickets and copper plates to encourage the Plaintiffs’ ancestors to plant cash crop and cultivate rubber planting. The copper plates no. “I 837”, “I 1581” and “I 795” belonging to the Plaintiffs is exhibited herewith and marked as “BB-3”, “BB-4” and “BB-5”. The Identity Card of Owner of Rubber Holding No. I.1580 is exhibited herewith and marked as “BB-6”.
12. I crave leave of this Honourable Court to refer to the Print-out of Title dated 14.10.2011 for the Lot 1014 Block 8 Pueh Land District and the special conditions stated therein. Special condition numbered viii stated that “No transfer affecting this land may be affected without the consent in writing of the Minister for the time being responsible for land”. A copy of the said Print-out of Title dated 14.10.2011 is annexed hereto and marked as Exhibit “BB-7”.
13. I am advised by my counsels and I verily believed that transfers affecting the said land had been carried out illegally and without the consent in writing of the Minister for the time being and or at any material time responsible for land, the particulars are as follows:
Particulars of Improper and or Illegal Transfers affecting the Land
a) Entrep Resources Sdn Bhd (Co. No. 546975-M) with it registered address at 2nd Floor, Lot 2083 Block 10, Wisma Ng Aik Oh, Jalan Rock, 93250 Kuching, Sarawak and a business address at Lot 157, Block 45, 8.5 Mile Jalan Batu Kitang, 93250 Kuching, Sarawak, is the registered holder of the Provisional Lease of State Land Lot 736 Block 8 Pueh Land District, containing approximately 430 ha, issued on 13.05.2004.
b) The Provisional Lease was changed to Lease of State Land Lot 1014 Block 8 Pueh Land District, containing approximately 412.70 ha, registered on 14.10.2009.
c) The shareholder or holding company of Entrep Resources is Sakura Healthy Food Sdn Bhd (Co. No. 821210-D) was formerly known as Greenworld Nursery Sdn Bhd.
d) The change of name was effected on 12.04.2011 by the lodgment of a Notice of Resolution dated 08.04.2011 and signed by a Director named Chai Hon Leong. The said Notice of Resolution dated 08.04.2011 is annexed hereto and marked as Exhibit “BB-8”.
e) However, the company Greenworld Nursery Sdn Bhd, on 23.02.2011, had entered into a sale and purchase agreement with allegedly certain Purchasers, namely: 1) Apollo Inter Sdn Bhd (Co No 894271-D), 2) Moh Seng Plantation Sdn Bhd (Co. No. 931473-A), 3) Kaosheng Properties Sdn Bhd (Co. No. 735273-T) [all represented to have the same address at No. 46, 1st Floor, Jalan Arab, 84000 Johor], and 4) Poh Kim Wan (NRIC No. 490725-04-5455) of 157, Jalan Biru Muda, Taman Pelangi, 80400 Johor Bahru, for 100% of issued and paid-up capital of Entrep Resources Sdn Bhd.
f) The said purported sale and purchase agreement dated 23.02.2011 was revealed by the 4th Defendant named herein when it was shown to me and the other Plaintiffs an agreement entered into between the purchasers and “Arrangers” dated 03.05.2011, the said “Arrangers’ Agreement” of which was stamped with the Inland Revenue on 16.06.2011. The Plaintiffs had used a handphone and or mobile telephone to take images of most portions of the purported “Arrangers’ Agreement”, a copy of which is annexed hereto and marked as Exhibit “BB-9”.
g) But the aforesaid purported change of shareholdings is not reflected in the Suruhanjaya Syarikat Malaysia (Companies Commission of Malaysia) records, registered as at 01.07.2011, printed on 13.10.2011, a copy of which is annexed hereto and marked as Exhibit “BB-10”.
h) Myself and the Plaintiffs have made inquiries with the District Office in Lundu. We were informed and we verily believed that there was no written consent of the Minister for the time being and or at any material time responsible for land, to affect the transfer of this Land.
14. I am advised and I verily believe that the purported sale and purchase agreement dated 23.02.2011 and the purported “Arrangers’ Agreement” dated 03.05.2011 are illegal, null and void and of no legal effect and it is illegal and unlawful for the “Purchasers” or purported new shareholders named in the purported sale and purchase agreement dated 23.02.2011 and the purported “Arrangers’ Agreement” dated 03.05.2011 to appoint the aforesaid 4th Defendant to do clearance work on the Plaintiffs’ said native customary rights land.
15. Further, and or in the alternative, the aforesaid 4th Defendant is not clothe with legal and proper authority to do clearance work on the Plaintiffs’ said native customary rights land and hence its land clearing work should rightly be stopped and or injuncted.
16. Further and in addition, I am advised and I verily believe that the commencement of the work on this Land is in contravention of another special condition stipulated in the Print-out of Title dated 14.10.2011 for the Lot 1014 Block 8 Pueh Land District, i.e. Special Condition (vii) which stated that “The proprietor is required under the Natural Resources and Environment (Prescribed Activities) Order 1994 to undertake an Environmental Impact Assessment Study on the area prior to project implementation …”.
17. At our meeting with the proprietors, their employees servants and or representatives of the 1st and 4th Defendants at the Lundu Police Station on 22.10.2011, they failed to produce the Environmental Impact Assessment Study and by their own admission, no Environmental Impact Assessment Study had been undertaken and completed affecting the said Land.
18. I am advised and I verily believe that if an Environmental Impact Assessment Study was undertaken and completed, it would have been shown in the section of social impact studies that the villagers from our Kampung Sebat Dayak and Kampung Siru Dayak, together with the villagers from Kampung Pueh, Kampung Sebat Melayu and Kampung Siru Melayu are having native customary rights over the disputed land.
19. The Plaintiff further claims that they have created and/or acquired and/or inherited their rights, interests and title over their respective parcels of NCR Land by virtue of and under the principle of common law, which is applicable to the natives of Sarawak.
20. The Plaintiffs’ NCR over the said Land is recognised by the Sarawak Land Code (Cap. 81) and/or its predecessors and the said NCR was created and/or acquired prior to the 1st day of January 1958 and still subsist as such.
21. Further, it is the Plaintiff’s belief that if the 1st and/or 4th Defendants are allowed to continue clearing works on the said disputed lands, many physical evidences on the Plaintiff’s claims of NCR would be destroyed in the process, thus detrimental to the Plaintiffs pending the trial. These evidences are like the kind of trees, bushes and/or crops, ground features proving the Plaintiffs’ occupation of these lands which are crucial in NCR claims. As such the 1st and/or 4th Defendants must be stopped at all costs from continuing their works in the disputed areas referred in the statement of claim.
22. The Plaintiffs do admit that they are not people of means having the monies to pay the 1st and/or 4th Defendants any costs in the event the 1st and/or 4th Defendants wins in the main suit should injunction is granted in the Plaintiffs’ favour, but i have been advised by our lawyer, Mr. See Chee How that, this factor alone is not a barrier for this honourable court from exercising its discretion to grant injunction. The court should see the justice of the case and/or the balance of convenience in this case.
23. In the premises, I hereby pray for order in terms of this application.
AFFIRMED on the ..….. day of …………….. 2011 )
at Kuching through the interpretation of ………… )
………………………………………………………... )
[WNKP ……………………………………………… ] )
the said …………………………………………….... )
having first sworn that he had truly, distinctly and )
audibly translated the contents of this affidavit in )
the Bidayuh language to the deponent )
BINGLAI ANAK BUASSAN )
(WN.KP. 430401-13-5353) that he would truly )
interpret the affirmation about to be administered )
unto him the said BINGLAI ANAK BUASSAN ) …………………………………
.................................................
Interpreter
Before me,
…………………………………………………
Commissioner for Oath
This Affidavit is filed by Messrs Baru Bian, Advocates & Solicitors for the Plaintiffs whose address of service is at No. 6, 2nd Floor, Lot 5430, Block G, RH Plaza,
Jalan Lapangan Terbang, 93350 Kuching, Sarawak.
MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK AT KUCHING
SUIT NO:___________________________
BETWEEN
1. BINGLAI ANAK BUASSAN [WNKP. 430401-13-5353]
2. UNGGAK ANAK BANTING [WNKP. 450323-13-5355]
3. BUNGKA ANAK KALOM [WNKP. 400222-13-5094]
4. JIMI ANAK NAWI [WNKP. 320924-13-5101]
5. DIAH ANAK SINGKUN [WNKP. 530215-13-5104]
6. ASMARA ANAK LASOR [WNKP. 530919-13-5356]
7. SAIMAH ANAK LAMIT [WNKP. 440525-13-5100]
8. NOHIN ANAK APAT [WNKP. 570316-13-5599]
9. JUIL ANAK ALI [WNKP. 641127-13-5309]
10. MINTIAN ANAK OLOT [WNKP. 640227-13-5299]
[Suing on behalf of themselves and other proprietors, occupiers, holders and claimants of Native Customary Rights (NCR) land surrounding Kampung Sebat Dayak and Kampung Siru Dayak, situated at Sematan, 94500 Lundu, Sarawak.] …Plaintiffs
AND
1. ENTREP RESOURCES SDN. BHD. (546975-M)
2nd Floor, Lot 3083, Block 10,
Wisma Ng Aik Oh, Jalan Rock,
93250 Kuching,
Sarawak.
2. SUPERINTENDENT OF LAND AND SURVEY,
KUCHING DIVISION
3. THE STATE GOVERNMENT OF SARAWAK
4. LYH EVERWIN OIL PALM PLANTATIONS (S) SDN BHD (782721-P)
No. 5C, 1st Floor, Jalan Lanang,
Sibu, Sarawak. …Defendants
CERTIFICATE IDENTIFYING EXHIBITS
I HEREBY certify that this is the exhibit marked “BB-1”, “BB-2”, “BB-3”, “BB-4”, “BB-5”, “BB-6”, “BB-7”, “BB-8”, “BB-9”, and “BB-10” referred to in the affidavit of Binglai anak Buassan (WN.KP. 430401-13-5353) affirmed before me on the .......... day of ............................. 2011.
.........................................................
Commissioner for Oaths
