Kuching, Sept 1, 2012: The Miri High Court has ordered a full trial in a native customary rights (NCR) land case between Sarawak National Party (SNAP) deputy president Kebing Wan and Lah Deng against Land Custody Development Authority (LCDA) and four other defendants.
LCDA, Pelita Holdings Sdn Bhd, Tung Huat Pelita Niah Plantation Sdn Bhd, Superintendent of Lands and Survery of Miri Division and State Government, have applied to the court to strike the claims filed by Kebing and Lah Deng on four issues.
But Datuk David Wong Dak Wah, in a decision made on July 6, 2012, struck off the defendants’ applications, and ordered the case to go for a full trial.
In their applications to strike the plaintiffs claim, the defendants asked the court:
1. Whether the plaintiffs’ claim under this Suit is barred by Section 2 of the Public Authorities Protection Act 1948 (Act 198) and/or Item 97 of the
Schedule to the Sarawak Limitation Ordinance (Cap. 49) and/or Section 202 of the Sarawak Land Code (Cap. 81) and/or Section 29(1)(b) of the Government Proceedings Act 1956 (Act 359).
2. Whether it is proper for the plaintiffs to challenge the Superintendent of Lands and Surveys, Miri Division (the 4th Defendant)’s issuance of
Provisional Lease of Lot 255 Telang Usang Land District to the 1st Defendant pursuant to the provisions of the Land Code (Sarawak Cap. 81) by
way of Miri High Court Civil Suit No. 21-03-2009 (MR)/1 rather than by way of Judicial Review?
3. Whether it is proper for the Plaintiffs to file Miri High Court Civil Suit No. 21-03-2009 (MR)/1 when the Land Code (Cap. 81) specifically provides inter
alia, that the Settlement Officer shall investigate publicly all claims to State Land whether based upon native customary tenure or otherwise, and
shall have power to determine who has the rights to
such land, and
4. Whether the plaintiffs’ claim is defeated by the concept of indefeasibility as provided for in section 132 Land Code (Cap 81).
The plaintiffs’ claim, as set out in the statement of claim in this case, is as
follows:-
i. A Declaration order that the Plaintiffs had acquired and/or inherited Native title and/or Native Customary Rights (NCR) over the area as claimed by the Plaintiffs referred to and/or shaded in Green and marked in the locality map
marked as exhibit “M” and annexed hereto herein;
ii. A Declaration that this native title and/or rights precludes the defendants from impairing or abridging the Plaintiffs’ said rights and/or from issuing any title and/or lease, provisional or otherwise, which affects their said native title
18 and/or rights;
iii. A Declaration that the acts of the 4th and/or 5th Defendants in issuing the said Provisional Lease of State Land, in so far as they impair the Plaintiffs’ NCR over the said NCR Land, is wrong, bad and/or void;
iv. A Declaration order that the issuance of the 3 said Provisional Lease of State Land to the 1st Defendant in as far as the extent of that area under the said Provisional Lease overlap 6 and/or covers the Plaintiffs’ NCR Land is unlawful, improper, unconstitutional and therefore null and void, for want of extinguishment of the Plaintiffs’ NCR over the said Land;
v. Alternatively, a Declaration that the issuance of the said Provisional Lease was subject to the native title and/or native customary rights and/or usufructuary rights of the Plaintiffs in or over the said NCR Land and that the said Provisional Lease does not affect the Plaintiffs said title and/or rights there;
vi. A Declaration that in issuing the said Provisional Lease as aforesaid, the 4th and/or 5th Defendants had acted in breach of its fiduciary duty to the Plaintiffs and therefore the said Provisional Lease was null and void;
vii. Alternatively, a Declaration that the issuance of the said Provisional Lease was in breach of the statutory provisions of the Land Code (Cap. 81);
viii. A Declaration that issuance of the said Provisional Lease to
the 1st Defendant is unlawful, improper, unconstitutional and
6 therefore null and void;
ix. A Declaration order that the area so included in the said Provisional Lease as claimed by the Plaintiffs as part of their NCR Land, the same to be excised out of the area of land under the said Provisional Lease;
x. A prohibitory injunction restraining the 1st, 2nd and 3rd
12 Defendants and/or their employees, servants and/or agents from trespassing, clearing, using or occupying the Plaintiffs’ said NCR Land;
xi. A mandatory injunction against the 1st, 2nd and 3rd Defendants and/or their employees, servants and/or agents to cease operations and remove all structures and their equipments or machineries from the Plaintiffs’ said NCR
Land if any, forthwith;
xii. Damages; and
xiii. Exemplary damages, alternatively, aggravated damages.
Issue No. 1:
Whether the plaintiffs’ claim under this Suit is barred by Section 2 of the
Public Authorities Protection Act 1948 (Act 198) and/or Item 97 of the
Schedule to the Sarawak Limitation Ordinance (Cap. 49) and/or Section
202 of the Sarawak Land Code (Cap. 81) and/or Section 29(1)(b) of the
Government Proceedings Act 1956 (Act 359)? Section 2 of the Public Authorities Protection Act 1948 (Act 198):
Section 2 of Public Authorities Protection Act 1948 provides:-
“Where, after the coming into force of this Act, any suit, action, prosecution or
18 other proceeding is commenced in the Federation against any person for any
act done in pursuance of or execution or intended execution of any written law
or of any public duty or authority or in respect of any alleged neglect or default
in the execution of any such written law, duty or authority the following
provisions shall have effect[
(a) the suit, action, prosecution or proceeding shall not lie or be
instituted unless it is commenced within thirty-six months next after the act
neglect or default complained of or, in the case of a continuance of injury or
damage, within thirty-six months next after the ceasing thereof;”
The judge said that it is undisputed that the plaintiffs were aware that the relevant Provisional Lease (PL) was granted to the 1st defendant on 5th April 1988 and that a power of
attorney over the PL was given by the 1st defendant to the 2nd defendant on 29th
9 April 2005.
Further, the land under the PL had been gazetted as a mixed zone land on 24th March 1988; hence notice of such conversion of use had been given to the public at large which would include the plaintiffs.
Accordingly counsel for the respective defendants submitted that this action is well over 36 months, in fact a delay of about 21 years (from 5th April 1988) or a delay of about four (4) years (from 29th April 2005).
Here the public act, which the defendants are relying on, is the issuance of the PL to the 1st defendant and it is then my immediate duty to determine whether that act of issuance is caught by section 2 of the Public Authority Protection Act 18 1948.
Guidance can be obtained from the case of Lee Hock Ning v Government of
Malaysia (1972) 2 MLJ 12, where the appellant sued the Government of Malaysia for the non-payment of monies due under a series of contract duly executed by the appellant for the benefit of the respondent. In that case the plea of limitation under section 2 of the Public Authority Protection Act was made by the respondent. The Federal Court found that the non-payment of monies under contractual obligations by the respondent cannot be said to be an act pursuant to a public duty despite the fact that the contract may have been entered into for the purpose of performing a statutory duty. The rationale of the decision can be seen from what Ong CJ said:-
“Entirely lost sight of was the fact that section 2 of the Ordinance only comes
into operation when there is some act done "in pursuance or execution or
intended execution" of a statutory or other public duty or authority, as also
when some neglect or default occurs "in the execution" of a statutory or other
duty or authority.”
The dicta of Lord Shaw of Dunfermline in Bradford Corporation v Myers (1916)
15 1 AC 242, 262 was followed:
"It is not enough that the neglect occurs in the doing of a thing which is authorized by statute, but the thing done is not every or anything done but must be something in the execution of a public duty or authority, and it is only neglect in the execution of any such duty or authority that is covered by the statute.”
Applying the principle of Ong CJ, justice Wong said he is of the view that the issuance of the PL to the 1st defendant does not equate to an “act done in pursuance or execution or intended execution" of a statutory or other public duty or authority. One must not lose sight of the fact that there has not been any determination of the plaintiffs’ claim for native customary rights by the 4th defendant prior to the issuance of the PL. Until such time that the 4th defendant exercises his discretion 3 under section 5 of the Sarawak Land Code prior to the issuance of the PL, there is no exercise of public duty by the 4th defendant. That being the case, there cannot be any act done “in pursuance or execution or intended execution" of a statutory or other public duty or authority”.
Accordingly I find the defendants’ contention is without merit.
Section 202 of Land Code (Cap. 81) and Item 97 of the Schedule to the
Sarawak Limitation Ordinance (Cap. 49)
12 Section 202 of the Land Code (Cap. 81) provides:
“No action for recovery of damages as aforesaid shall lie or be sustained
against the Government unless the action is commenced within a period of
three years from the date when the right to bring the action accrued…”
It is the contention of the defendants that the plaintiffs are also caught by the time period provided for in the above provisions. My short answer to that contention is that I am bound by the judgment in Balare Jabu & Others v Merawa Sdn Bhd, Director of Forests and Government of Sarawak (2011) 4 CLJ 751, where the Court of Appeal through the judgment of Abdul Wahab Patail JCA held as follows:
“…While limitation appears to be a complete answer to a suit, action or proceeding for remedy, it is no answer to a suit, action or proceeding for declaratory orders. A declaration whether the issuance of a 3 licence is subject to native customary rights and whether the 2nd and 3rd Respondents were in breach of a fiduciary duty pertaining to constitutional rights of the Appellants, to know whether they have been wronged or not, is not purely academic. Even
if it is without orders for compensation or damages, it serves the purpose of providing some solace to the Appellants. And they have only their trust to rely 9 upon that the government is committed to and will do what is right. We do not think such trust is misplaced for no legitimate government intends to act unfairly or unjustly per se or in breach of its subjects' constitutional rights.Injustice or unfairness happens only by mistake or unintended error which a true government will seek to remedy without necessity of an order for
compensation and damages. …”
His Lordship then proceeded to state on the appropriateness of summary procedure application to decide native customary land cases:-
“… It is now trite that native customary right is a right recognized in our common law (see Superintendent of Lands & Surveys & Anor v Madeli Salleh [2007] 6 CLJ 509 FC). The cases involving native customary rights have either succeeded or have failed based upon the facts and the evidence in respect of disputed facts placed before the Courts in support of the assertions made in the respective statements of claims. The fact that there are two broad types of native customary rights: (a) statutory native customary rights acquired and granted under the provisions of the land legislation, and (b) historical native customary rights recognized and existing from before the coming into being of the land legislation, the Federal Constitution and the State Constitution, and the implications thereof, as well as the nature of the historical native customary rights on the lands, whether it includes what is
30 below and above the land, add up to the conclusion there are serious and substantial issues that require much research and meticulous preparation, not only on law but also research of history in order to make possible a decision that is not arbitrary but one that is fair and just. Native 3 customary rights themselves exist in different forms such as individual and communal rights. A shared right is perhaps no less a right than individual right for it may be a collective right of the tribe or village. It was, therefore, plain to us there were
serious and substantial issues that has been raised need to be addressed, by more complete pleadings perhaps, with particulars to enable the issues to be addressed fairly, and the discovery and interrogatories processes of the trial process to check and verify disputed facts and evidence. It is not a plain and obvious case for recourse to the summary process (see Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7 SC, [1993] 3 MLJ 36 SC per Mohamed Dzaiddin SCJ). ….”
I am not only bound by what his Lordship said, I fully agree with his solid
reasoning.
Section 29(1)(b) of the Government Proceedings Act 1956 (Act 359):
Section 29(1)(b) of the Government Proceedings Act 1956 provides:
“29(1) In any civil proceedings against the Government the Court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require:
Provided that-
(b) in any proceedings against the Government for the recovery of land or other property the court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the Government to the land or property or to the possession thereof.”
Counsel for the 1st and 2nd defendant cited several cases to support the contention that the Court has no power to direct the 5th defendant to deliver or give possession of the land to the plaintiffs. Suffice for me just 3 to refer to one case and that is Kuching Waterfront Development Sdn Bhd (formerly known as Tolaz Sdn Bhd) v Superintendent of Lands and Surveys, Kuching Division & 6 Ors [Suit No: 21-6-2008-III], where the plaintiff sought a declaration that the forfeiture of their land was unlawful and for an order of possession of their land.
I held as follows:-
“Despite the above finding, the Court is barred by section 29(1)(b) of the Government Proceedings Act 1956 (“GPA”) from making any order against the respondents for the recovery of the land. Section 29(1)(b) of GPA provides that ‘in any proceedings against the Government for the recovery of land or other property the court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiffs is entitled as against the Government to the land or property
or the possession thereof’. In other words, there is no alternative for the plaintiff to recover the land once the land has been forfeited by the government.
What recourse does the plaintiff have then? The Court of Appeal in one of instalments of the decision of this case, in Superintendent of Lands and Surveys, Kuching Division & Ors v. Kuching Waterfront Development Sdn Bhd [2009] 21 CLJ 751, observed that ‘therefore, implicitly an aggrieved person, though unable to recover the land or have it delivered to him is not deprived of certain entitlement, say compensation, though with some help from the court’. The right to receive compensation in such situation is clearly entrenched in Article
13 of the Federal Constitution.”
With respect, the defendants’ contention is misconceived. Section 29(1)(b) only
applies when the land is in the possession of the government. That is not the
case here. The land in the PL had been alienated to the 1st defendant 3 and there
is no question of ordering the government to give up possession of any land.
The issue here is simply whether the plaintiffs have native customary rights
6 within the area of the PL and, if so, whether the PL should be subject to those
native customary rights.
For the reasons given above, I find that the plaintiffs are not prohibited by the
above legal impediments put forth by the defendants.
Hence my answer to this issue is in the negative.
Issue No. 2:
Whether it is proper for the plaintiffs to challenge the Superintendent of
Lands and Surveys, Miri Division (the 4th Defendant)’s issuance of
Provisional Lease of Lot 255 Telang Usang Land District to the 1st
Defendant pursuant to the provisions of the Land Code (Sarawak Cap. 81)
by way of Miri High Court Civil Suit No. 21-03-2009 (MR)/1 rather than by
way of Judicial Review?
Counsel for the defendants relied on various cases to support the proposition
that the plaintiffs should have challenged the alienation of the PL to the 1st
defendant by way of judicial review. One of the cases cited is Shaharuddin Ali
& Anor v Superintendent of Lands and Surveys Kuching Division & Anor
[2004] 4 CLJ 775, where the High Court held as follows:-
“[2] The Minister who issued the direction and the 1st defendant 3 who rejected
the plaintiffs’ claim for compensation acted under the powers conferred upon
them by s. 5(3) of the Land Code. They are public authorities whose decisions
6 are subject to the supervisory control of the court by way of judicial review
under O.53 RHC.
[3] Although the plaintiffs claimed that their alleged rights were proprietary in
nature, the fact remained that those rights were created or recognized by
statute. Therefore, their alleged rights were protected by public law and did
not arise out of any private contract or arrangement between the plaintiffs and
the government. Accordingly, the plaintiffs’ remedy to enforce or protect rights
created or acquired or recognized in accordance with the provisions for the
Land Code must be sought under public law and not private law. That being
the case, the plaintiffs should have proceeded by way of O.53 RHC unless the
exception to the general rule in O’Reilly v Mackman was applicable – which on
the facts was inapplicable.
[4] The plaintiff’s prayer for a declaration that ‘the plaintiffs had acquired
native customary rights’ was only incidental to the principal relief sought, ie,
the nullification of the direction by the Minister. This was because if the
direction was nullified, only then would the plaintiffs alleged rights not be
infringed by being extinguished. It followed that the challenge to the legality or
validity of the direction was not a collateral issue as alleged by the plaintiffs. It
was the central issue of their action. Further, the prayer sought by the
plaintiffs that the direction was ‘null and void and of no effect’ was clearly a
certiorari to have the direction quashed. However, the plaintiffs had attempted
to circumvent the protection afforded to public authorities by O.53 RHC…”
The case of Jalang Paran & Anor v Government of the State of Sarawak &
Anor [2011] 3 CLJ 469 was also cited. The Court of Appeal held:-
“[35] The facts herein are devoid of any private law element – the
extinguishment of the Plaintiff’s native customary rights was executed by the
Minister through the exercise of this powers as conferred by the Sarawak Land
Code and hence must in the circumstances necessarily lie in the field of public
law.
[36] The Federal Court had lately in Ahmad Jefri Mohd. Johri v Pengarah
Kebudayaan & Kesenian Johor & Ors [2010] 5 CLJ 865 reiterated that
matters which have substantial public law element must be proceeded upon
through the mechanism as provided for by O.53 RHC for otherwise it would be
rendered redundant.
[39] In our view the Ministerial Direction is very much in the realm of public
law and any challenge thereto must be pursued through the procedure as laid
down by O.53 RHC”
The Court of Appeal’s opinion has been commented by the Chief Judge of
Sabah and Sarawak in Bato Bagi & 6 Ors v State Government of Sarawak
18 (appeal number 01-04-2011(Q)) consolidated with Jalang ak Paran & 1 Other v
State Government of Sarawak & 1 Other (appeal number 01-05-2011(Q)) and
this is what he said:
“100. I would like to make another note on the use of Order 53 of the Rules of
the High Court 1980 in cases involving native customary rights. This point
was touched upon in Jalang’s case by the Courts below. With respect, I find
that it is highly unfair and prejudicial to insist upon the natives to proceed by
way of Order 53 when they seek to enforce a constitutional right by way of a
declaration to that effect.
101. Although it does, to a certain extent, fall within the realm of public law, I
am of the view that it tilts more towards the vindication of a private right
which is recognised both under statute and at common law 3 (which pre-existed
statute). As such, the natives should be at liberty to proceed by way of an
ordinary civil suit. Another way of looking at it is to consider it as an
exception to the O’Reilly v Mackman [1982] 3 All ER 1124 principle.
102. I therefore prefer to approve the recent the decision of the High Court in
Nikodemus Singai & Ors v Sibu Slipway Sdn Bhd & Ors [2010] 10 CLJ 383
to that of Shaharuddin Ali & Anor v Superintendent of Lands & Surveys,
Kuching Division & Anor [2004] 4 CLJ 775.”
The judgment of Nikodemus Singai & Ors v Sibu Slipway Sdn Bhd & Ors
[2010] 10 CLJ 383, is the High Court judgment of Rhodzariah Bujang JC (as
her ladyship then was) and for completeness, I reproduce what she said:
“It is only right that I maintained a consistency in my approach to issues in
dispute of this nature and to exercise the same deliberations with respect to
the exceptions to the O'Reilly's principle for indeed there are exceptions to the
said rule. Lord Diplock in the O'Reilly's case mentioned two ie when the claim
for infringement of a right of the plaintiff arising under private law arose by
way of a collateral issue or when the parties did not object to the adoption of
the procedure used. The categories of exception are not closed declared Lord
Diplock in his judgment and it is to the other probable exceptions to the
principle that I am directing my mind to.
After giving the matter much thought, I am of the view that cases
involving claims of native customary rights such as this one are an
exception to the O'Reilly's principle. I came to this decision because the
prosecution of the plaintiffs' right here is a genus in itself for by its very
definition that right is largely unsupported by evidence; it is almost purely
proved by oral evidence based on customs and tradition and is a peculiarity of
only two states - Sabah and Sarawak. For the natives in these two states, -
their rights to the land - to forage, to hunt, to fish and to cultivate the land, for
it is not just a place to build a home but their very livelihood - this right is
handed down one generation to the next. To tie them down to the O'Reilly's
principle when more often than not they would only know about the
transgressions of their right when the land had already been dealt with by the
state authorities (as in this case) is an irreparable injustice which the Law
Lords in O'Reilly, I am sure would never have intended.
In holding that native customary rights cases are an exception to the
O'Reilly's principle I find support in the decision of the House of Lords in
Gillick v. West Norfolk & Wisbech Area Health Auth [1986] AC 112. In the
said case the plaintiff, a mother of five young daughters challenged, by way of
a writ action, a decision of the Health authority in allowing doctors, in some
circumstances, to give contraceptive advice and treatment to girls under
15 years of age without parental consent. Though her claim was dismissed on
merits, the House of Lords agreed that the procedure she adopted was right
and one of the reasons given for that was in the words of Lord Scarman:
... the private law content of her claim was so great as to make her
case an exception to the general rule. (emphasis added).
It cannot be denied that the assertions by the plaintiff of having native
customary rights over the land is embedded in private law; much more
private, I would say than Mrs Gillick's concern for the morality of her young
daughters who were not in any imminent danger of being prescribed
contraceptive pills and being given treatment for related ailments. The
plaintiffs in this case are facing the loss of their livelihood, their land and
their rights to all these, obviously, are more private in nature than the
motherly concerns of Mrs Gillick.
The House of Lords in another later case, Mercury Ltd v. Telecommunications Director[1996] 1 WLR 48 has advised the importance of retaining flexibility in deciding these kind of cases for the exact limits of what is private law and public law have not been exactly worked out. Lord Slynn of Hadley in the said cases in fact said that the overriding question which the court must bear in mind is whether the proceedings constitute an abuse of the court's process. It is to be noted that both these House of Lords' 3 decisions are
mentioned in YAB Dato' Dr Zambry's case and when I examined this
proceedings before me I was unable to say that the court's process has been abused in any way.
I fully adopt what was stated by her Ladyship and if I may add the following
remarks. Courts exist to dispense justice. Rules which govern procedures in
Court must never hamper or burden the Court’s constitutional duty to dispense
substantive justice. Procedural rules must never become the ‘master’ and must
remain a ‘tool’ helping the Judge to dispense substantial justice. Of equal
importance is the right of access to the Court and if that constitutional right is to
have any real meaning, the Court must be flexible enough to ensure that
litigants are also not hampered by procedural rules. It is undisputed that this
area of law has given much difficulty to legal practitioners as they have to make
a ‘life or death’ decision as to whether the facts, as given to them by their
clients, give rise to a public or private law dispute. That choice, with respect, is
a difficult one. Litigants themselves also have the right to act for themselves
and to burden them to make a choice when trying to enforce their right to life
would make constitutional right of access to Court meaningless. The litigants in
native customary right cases emphasize the very point I am making. If legally
trained people can make a wrong choice what chance do these litigants have?
Not only are they not knowledgeable in law; the majority do not have any form
of education and lived their lives according to their customs. A wrong choice of
the mode results in the case being struck out and this can be 3 seen from the law
reports where cases are struck out on the ground that the wrong mode was
chosen by the legal advisor of the litigants. The consequence is simply that
substantial justice has been sacrificed on account of a wrong choice.
In view of what I have stated and when the litigants’ claim concerns their
constitutional right to life, the Minister’s decision to extinguish their rights pale
in significance as compared to the private rights of the natives. As such the
dispute in this case is very much ‘private law’ based. Hence my answer to this
issue is in the affirmative.
Before I deal with the next issue, let me state that the opinion of learned Chief
Judge of Sabah and Sarawak may be obiter dicta but, in my view, it reflects the
present judicial thinking of the country. Hence I adopt it without any reservation.
Issue No. 3
Whether it is proper for the plaintiffs to file Miri High Court Civil Suit No.
21-03-2009 (MR)/1 when the Land Code (Cap. 81) specifically provides
inter alia, that the Settlement Officer shall investigate publicly all claims to
State Land whether based upon native customary tenure or otherwise, and
shall have power to determine in who has the rights to such land?
The relevant provisions relating to this issue are:
Section 84 of the Sarawak Land Code (cap. 81) states as follow:-
“(1) Whenever it appears to the Director that in any 3 area there may be
doubt or uncertainty as to whether the existing documents of title properly
define the rights and interests of those entitled or the boundaries of the land
included therein, or where it appears likely that rights of ownership have been
acquired by natives by the exercise of their customary rights, or whenever for
any other reason he is of the opinion that it is expedient to effect a settlement of
rights, he may publish in the Gazette a Settlement Notification in accordance
with subsection (2).
(2) …
12 (3) On or after the publication of the Settlement Notification under this section,
the Director shall assign a Settlement Officer and such Assistant Settlement Officers as
may be necessary to carry out a settlement.” (Emphasis is mine)
Section 94(1) of the Sarawak Land Code (Cap. 81) provides that:
“(1) The Settlement Officer shall investigate publicly all claims to State
land, whether based upon documentary evidence, native customary tenure or
otherwise, and shall have power to determine in which favour the rights to such
land shall be shown in the Settlement Order made under section 95 or may, in
the case of conflicting claims, permit the parties to refer the determination of
the same to arbitration under the Arbitration Act 1952.”
Section 95 of the Sarawak Land Code (Cap. 81) provides that:
“(1) After full investigation and final determination of all claims, the
Settlement Officer shall make a Settlement Order which shall be in Form E in
the First Schedule and shall contain any other particulars which may be
prescribed by rules made under section 213.
(2) Every Settlement Order is shall be published in the Gazette, and copies
thereof shall, at the same time and for a period of one month thereafter, be
exhibited at the office of the Superintendent in whose division, 3 and at the office
of the District Officer whose district, the land is situate and add any other place
which may be prescribed.
2(3) After the publication of the Settlement Order, the Settlement Officer
may by notice in the Gazette, with copies exhibited in the same manner as in the
case of the Settlement Order, correct any clerical errors and make any clerical
amendments or additions to the Settlement Order, as may be necessary to give
effect to his decision.” (Emphasis is mine)
It is the contention of the defendants that in view of the existence of a
mechanism in which natives can assert or claim for their rights, the plaintiffs
here must avail that mechanism and cannot come to Court until those statutory
remedies are exhausted. Counsel for the defendants relied on the case of
Barraclough v Brown [1897] AC 615 at pages 619 – 620. In that case, the
defendants were owners of a ship which sank in a river. There was in existence
a statutory provision in which the claimant is entitled to remove the ship and
recover the expenses of doing so in a court of summary jurisdiction. The
claimant, however, sued the defendant in the High Court instead of pursuing its
claim as provided for by the Statute. The issue which the High Court had to
decide was whether the claimant was entitled to bypass the mechanism. The
House of Lords found that the claimant had to make its claim through the
statutory mechanism and this is what they said:-
“The only right conferred [by the statute] as ‘to recover such expenses from the
owner of such vessel in a court of summary jurisdiction.’ I do not think the
appellant can claim to recover by virtue of the statute, and 3 at the same time
insist upon doing so by means other than those prescribed by the statute which
alone confers the right.
… I think it would be very mischievous to hold that when a party is compelled
by statute to resort to an inferior court he can come first to the High Court to
have his right to recovery – the very matter relegated to the inferior court –
determined. Such a proposition was not supported by authority, and is, I think,
unsound in principle.”
In dealing with this contention, the first task for me is to determine what kind of
rights is a native customary right – is it a common law right or statutory right?
The authorities are plentiful and, in my view, undisputed that native customary
rights are common law rights. Suffice for me just to refer to the judgment of the
present Chief Justice of Federal Court Ariffin Zakaria CJ in the case of
Superintendent of Lands & Surveys, Miri & Ors v. Madeli Salleh [2007] 6 CLJ
where he states as follow:-
“With respect we are of the view that the proposition of law as enunciated in
these two cases reflected the common law position with regard to native titles
throughout the Commonwealth. And it was held by Brennan J, Mason CJ and
McHugh J, concurring, in Mabo (No. 2) that by common law, the Crown may
acquire a radical title or ultimate title to the land but the Crown did not
thereby acquire absolute beneficial ownership of the land. The Crown’s right
or interest is subject to any native rights over such land. They adopted the
view of the Privy Council in Amodu Tijan v. Secretary, Southern Nigeria
27 [1921] 2 AC 399, where the Privy Council in an appeal from the Supreme
Court of Nigeria held that the radical title to land held by the White Cap
Chiefs of Lagos is in the Crown, but a full usufructuary title vests in a chief on
behalf of the community of which he is head. That usufructuary title was not
affected by the cession to the British crown in 1861; the 3 system of Crown
grants must be regarded as having been introduced mainly, if not exclusively,
for conveyancing purposes.”
This distinction is of utmost importance as can be gathered from the case of
Pyx Granite Co Ltd v Ministry of Housing and Local Government and Others
(1960) AC 260. In that case, the plaintiff company had claimed for a
declaration that the development which they proposed to carry out on their
freehold and licensed land was authorized by a certain Act and hence two
ministerial decisions in 1947 and 1953 refusing them permission to develop the
land were of no effect. The defendant/local council raised a preliminary
objection that in view of the existence of provisions in the 1947 Act providing
that if any person proposes to carry out any development of its land and wishes
to have it determined, it may apply to the local planning authority to have it
determined, the plaintiff is barred from seeking remedy in Court. The House of
Lords in dealing with the preliminary objection discussed the significance of a
common law right and a statutory right. Lord Jenkins puts it as thus:
“Where a statute creates a new right which has no existence apart from the
statute creating it, and the statute creating the right at the same time prescribes
a particular method of enforcing it, then, in the words of Lord Watson in
Barraclough v Brown, ‘the right and the remedy are given uno flatu, and the
one cannot be disassociated from the other’. As Lord Herschell put it in the
same case, the party asserting the right cannot ‘claim to recover by virtue of the
statute, and at the same time insist upon doing so by means other than those
prescribed by the statute which alone confers the right’….. 3 if A has a right
founded entirely upon particular statute to recover a sum of money from B, and
the statute goes to provide that the sum in question may be recovered in
proceedings of a particular kind, then it is wholly reasonable to impute to the
legislature an intention that the sum in question, recoverable solely by virtue of
the statute, should be recoverable in proceedings of the kind provided by the
statute and not otherwise.”
The principle distilled from the law Lords is this. If the right sought to be
enforced is a right created by statute (statutory right) and when there is a
statutory remedy provided for its enforcement, the court’s original jurisdiction
is ousted. If, however, the right sought to be enforced is a common law right
and even though there is a statutory remedy provided for its enforcement, the
court’s original jurisdiction remains intact.
As native customary right is a common law right, the plaintiff is thus fully
entitled to come to Court to enforce their rights. Hence my answer is in the
affirmative.
Issue No. 4
Whether the plaintiffs’ claim is defeated by the concept of indefeasibility as
provided for in section 132 Land Code (Cap 81)?
Section 132(1) of the Land Code (Cap 81) provides:-
“Subject to this Code, the registered proprietor of any estate or interest in land
to which this section applies shall, except in the case of fraud, hold such estate
or interest subject to the interests noted on the Register but free 3 from all other
interest.”
By virtue of this provision, it is submitted that unless fraud is alleged by the
plaintiffs (which they have not), their claims for native customary are doomed
to fail as the 3rd defendant’s registered right on the PL is indefeasible against all
9 claims except for fraud. To support this contention, counsel for defendants
refers to the case of Nikodemus Singai & Ors v Sibu Slipway Sdn Bhd & Ors
(supra) where the Kuching High Court held:-
“[21] I have no qualms in agreeing with him, that in view of the provisions he
quoted, land titles should not be issued over native customary land, unless they
have been extinguished first but with respect, once the titles are issued, I take
the contrary stand and the defendants are right – there is indefeasibility of title.
There are ample case authorities which decided that recognition under Land
Code gives an indefeasible title under the Land Code…
In my opinion, the limitation given by the words ‘Subject to this Code’ cannot
mean subject to native customary rights because it would be downright absurd
to give indefeasible title to one when making it subject to another person’s same
right to do as he pleases over the same piece of land – to put it in a more
graphic term it is just like a dog chasing its own tail – there would be no end in
sight for either the native customary rights claimants, nor the title holder.
Native Customary Rights land should not be alienated, period. That is clear
from s. 13 and 15(1) of the Land code but when it does, and I came back to
what I have also said earlier, the claimant of these native customary rights land
has a legitimate complaint against the issuer of the land title and should take
issue with them; not the title holder unless they can prove fraud as stipulated in
s. 132(1) of the Land Code.
[24] In other words, as issuer of the forest licence and the lease, only the 4th 3
and 5th defendants, respectively, and the 6th defendant vicariously must be held
accountable should the plaintiffs succeed in proving that they have native
6 customary rights over the land held under the forest licence and leases in this
case.”
Learned counsel for the defendants also relied on Awang Osen Awang Mat v
Norhazlena Abdurani & Ors [2004] 7 CLJ 1, where the Bintulu High Court
ruled that the power of attorney to a non-native over native area land was
prohibited by Section 8 of the Land Code but the plaintiff’s prayer for 1st 12
defendant to re-convey land to plaintiff was denied. Abdul Aziz Abdul Rahim
JC (as he then was) captures the spirit of the Torrens system when he held that:-
“[2] There was no allegation of a fraudulent act by the 1st 15 defendant in
obtaining the title to the said land. What was alleged against the 1st defendant
was that the instrument by which she acquired the title through the registration
of the MOT was improper and illegal. Such an allegation, however, could not,
in light of ss. 133 and 134(2) of the Code, be held against the 1st defendant
whose claim that she was a bona fide purchaser for value has not been
challenged. By virtue of the combined effect of ss. 132(1), 133(1) and 134(1) of
the Code, fraud, if proven, is the only ground that can defeat a registered
proprietor’s title. Since no fraud was alleged against the 1st defendant, she, as
the registered proprietor, had a good and indefeasible title to the said land.
Under the Torrens System, which applies to the Code, the register is everything.
It was decided in Frazer v Walker & Anor [1967] All ER 649 that registration
was effective to vest title in registered proprietor notwithstanding that he
acquired his interest under an instrument that was void.
The effect of the Privy Council advice in Frazer v Walker was summarized by
Barwick CJ in Breskvar v Wall as follows:
The Torrens system of registered title … 3 is not a system of
registration of title but a system of title by registration.
With respect to my learned brother and sister Judge, I am unable to agree with
the contention that the concept of indefeasibility defeats the claim of native
customary rights and my reasons are these. Native customary rights, as held by
the apex Court in the land in Madeli case, cannot be extinguished by any
settlement of any foreign race in the country. In the words of Chief Justice of
the Federal Court in Madeli case, the Crown may “acquire a radical title or
ultimate title to the land but not absolute beneficial ownership of the land as
such right or interest is subject to any native rights over such land’. In simple
language, native customary rights once established supersede whatever rights
one gets from the Statute for the simple reason they existed before the
legislation. Furthermore, the concept of indefeasibility is central to what is
known as the Torrens system which, in essence, regulates the conveyance
practise of titles issued by the Crown. Native customary rights are not titled
land; they are common law rights as opposed to statutory rights as contained in
a title issued by the Crown. Seen in this context, the concept of indefeasibility
cannot be of any relevance in the realm of native customary rights.
Hence my answer to this issue is in the negative.
Conclusion
In view of my above conclusion, I direct trial dates be fixed to hear Plaintiffs’ claim.
The plaintiffs were represented by Simon Siah of Baru Bian & Co Advocates while the first and second defendants by Rajesh Jethi , third by Victor Lau while fourth and fifth defendants by Joseph Chioh of the State Attorney-General’s Chambers.
ends
