Bisi Ak Jinggot @
Hilarion
Bisi Ak Jenggut …Plaintiff
And
1.
Superintendent Of Lands And Surveys
Kuching
Division
2.
State Government Of Sarawak
3.
The Chief Scouts Commissioner, Sarawak
4.
Lembaga Amanah Kebajikan Darul Falah
…Defendants
CORUM
ARIFIN
ZAKARIA, CJ
RICHARD
MALANJUM. CJSS
ABDULL
HAMID EMBONG, FCJ
SURIYADI
HALIM OMAR, FCJ
HASAN
LAH, FCJ
JUDGMENT
OF THE COURT
On
9th April 2012 the Federal Court granted the plaintiff, hereinafter referred to
as the appellant, leave to appeal on three questions.
On
the day of the appeal the appellant invited us to determine only two questions,
and they are:
i)
“Whether, the alleged adat or custom that “individual customary rights are not
transferable by sale or otherwise for value” referred to and applied in Sumbang
Ak Sekam vs. Engkarang Ak Ajah [1958] SC 95 ceased to existmand enforceable as such:
a)
upon enactment of the same as law under Section 2 of the Fruit Trees Order
1889, of the Rajah; and/or
b)
upon the subsequent repeal of the said Rajah’s Order?
ii)
If the answers to question (1) above are in the negative, whether, by virtue of
section 6 of the Land Code, the alleged adat or custom applies only to land
gazetted as
Antecedent
and facts of appeal
The
appellant being an Iban and/or sea Dayak by race, thus a native of Sarawak,
filed a writ of summons at the High Court of Sabah and Sarawak seeking
declarations against the 4 respondents (defendants) involving 3 parcels of
land. He pleaded that he had acquired native customary rights (NCR) over the
said 3 parcels of land through 8 sale and purchase agreements (S&Ps) and
through a mixture of customary and other legal means. The following are the
details of the transactions regarding these parcels
of
land and court action.
The
1st parcel of land comprise 8 lots bought under 8 different S&Ps from 5
different NCR beneficial owners who had acquired the NCR by means of Iban’s
customary land law prior to 1.1.1958.
Five
lots (lots 7, 9, 35, 36 and 43) were bought on 8.12.1984, two lots (lots 3 and
29) were bought on 29.10.1990 and one lot (lot 2) was bought on 10.7.1991. The
appellant pleaded that he had continuously occupied and cultivated those 8 lots
of land. As per
the
pleadings the appellant stated that the 8 lots had been gazetted as Native Area
Land.
The
2nd parcel is lot 34 measuring 2.94 acres and likewise had been cultivated by
him as early as 1986. He said he was the first person to cultivate this lot in
1986 under the Cocoa Scheme and later under the SEDC Adoption Scheme for cattle
farming in 1991.
The
3rd parcel measuring 34 acres comprised 3 lots (lots 1, 2 and 3) of land. This
parcel was given to him through his wholly owned company by the Forest
Department of Sarawak on 7th of September 1993 vide a Letter of Authority No.
6/93. He was
permitted
to extract logs or timber from this parcel.
The
appellant also pleaded that he was given the understanding and or guarantee by
the 1st respondent that if ever titles were issued for all the 3 parcels he
would be the recipient of the issued titles. He also pleaded that by his
continuous occupation and
cultivation
of the 2 parcels, together with the rights given to extract timber from the 3rd
parcel, he had acquired NCR over them.
The
prayers in the Statement of Claim
We
now touch on the prayers pleaded in the Statement of Claim.
His
first prayer was for a declaration that he acquired NCR over the said 3
parcels of land either collectively or separately.Collectively all the 12 lots
would fall under this first prayer.
The
second declaration prayed for was that with the acquisition of the NCR
all the respondents were precluded from impairing his rights over the 3 parcels
of land. The third declaration was for an alleged infringement of his
rights over all the three parcels of land.
He
pleaded that on or about April 1993 two issue documents of title were issued
for two areas known as Lots 85 and 86 in favour of the 4th respondent by the
1st and 2nd respondents. The areas of Lots 85 and 86 covered or included
portions of all 3 parcels
claimed
by the appellant inclusive of the 8 lots obtained vide the 8 S&Ps. He
claimed that his NCR over the lands had been impaired and their inclusion in
the two issue documents was null and void, irregular and unlawful as no prior
extinguishment of his NCR had ever taken place. As against the 3rd respondent
the appellant claimed that the Chief Scout Commissioner of Sarawak trespassed over
those plots of land causing damage and hence entitled to damages. The rest of
the prayers were consequential prayers.
Defence
of the respondents
The
respondents in their respective defences took the collective stance that the
appellant had not acquired NCR over the first parcel of land through the
S&Ps. With no NCR created or acquired prior to 1.1.1958 over the impugned
lands no NCR could
have
been transferred to the appellant.
As
regards the 2nd parcel the respondents replied that any activity carried out
over that land was done without any lawful authority.
Pertaining
to the 3rd parcel, the respondents agreed that a Letter of Authority (6/93) was
indeed issued on 7.9.1993 permitting the appellant to extract forest produce on
that parcel of land but by 6.2.1994 the document had expired, causing further
extraction of
forest
produce illegal.
Further
the respondents denied the existence of any understanding that the appellant
would be issued with titles over the 3 parcels of land in the event titles were
issued. Additionally, the 4th respondent fielded the defence that by the issuance
of the
documents of title it had acquired an
indefeasible title over Lots 85 and 86, which included the 8 lots located in
the 1st parcel.
Alternatively
the learned State Legal Counsel for the first and second respondents also
submitted that the appellant’s case rested on conditional sale and purchase
agreements (see para 8 Statement of Claim) as a basis for his alleged
acquisition of NCR
over
the parcels of land; the condition precedent being that the Sarawak Government
would first alienate the lands to the vendors.
And
since this express condition was never fulfilled the S & Ps were thus
rendered void and ineffective.
The
High Court’s decision
On
30.4.2008, the High Court dismissed the appellant’s prayers for the declaratory
and consequential orders. Dr. Hamid Sultan, JC found that the appellant was not
alleging that the acquisition of the NCR, whether by himself or his father was
by the clearance,
cultivation,
occupation of the land or inheritance undertaken by them, but pursuant to
ordinary sale and purchase transactions.
The
learned JC opined that NCR could not be transferred to another person by such
means. In the course of dismissing the action the learned JC said:
“A
native customary right can only be transferred in a limited sense like by gift
or
inheritance, within the community members of the
native. That means, a native at south
Sarawak
cannot purchase the native customary rights from a native at north Sarawak. The
nexus must be within the community and not within the race. For courts to recognize
any such transfer it must be legislated.
(i)
The appellant did not also acquire native customary rights under the Sarawak
Land
Code.”
The
Court of Appeal’s decision
Being
dissatisfied the applicant appealed to the Court of Appeal.
This
court affirmed the Iban’s customary concept of Tusun Tunggu, that an NCR
could only be acquired by 2 modes namely by felling a virgin jungle and
planting crops to create temuda, and secondly by gift or inheritance.
The Court of Appeal further held
the
view that it was legally bound to take judicial notice of the customary law
established by the Native Court of Appeal in Sarawak particularly the NCR
principle having been created or acquired by natives through the practice of
their customs, with such rights not transferrable for value to someone else
outside the community or district.
On
10.12.2010, the Court of Appeal unanimously dismissed the appeal.
The
appellant then successfully obtained leave to appeal to the Federal Court hence
the matter before us.
Concessions
made by the parties
In
the course of the proceedings before us the appellant and the respondents made
a few concessions. The appellant conceded that he was restricting his appeal to
the 8 lots comprising the 37.24 acres bought through the S&Ps, as reflected
in paragraph 1.3 of
the
appellant’s written submission and confirmed later in open court.
By
this concession the appellant had abandoned his claim to the other 4 lots,
respectively lot 34 in the 2nd parcel and lots 1, 2, and 3 in the 3rd parcel
allegedly covered by the Letter of Authority.
His
appeal thus was limited to the alleged NCR obtained through the 8 S&Ps.
Learned
counsel for the respondents in the course of his submission conceded that the 8
lots transacted in the 8 S&Ps were indeed native customary land at the time
of their execution. By such concession the 8 lots will be subject to native
customary law, and the need to discuss lengthily whether they are located in a
Native Area Land as pleaded, or the creation of the NCR was properly
undertaken, become unnecessary. With the lots having been acquired by the
vendors prior to 1.1.1958, as pleaded in the
Statement
of Claim, the rights acquired will be subject to customary law in force prior
to that date. Lee Hun Hoe J in Rampai ak Chunggat v Langau ak Chandai &
Superintendant of Lands and Surveys, Third Division, Sibu (in Cases on
Native
Customary
Law in Sarawak pg 144)
had distinctly said:
“But
rights acquired prior to 1958 will be decided according to law in force prior
to
1958....”
Notwithstanding
the concession, the respondents stood their ground that as the transactions had
not adhered to native customary law, and with indefeasible title having been
acquired by the 4th respondent, the appellant’s position had become untenable.
Our
Analysis
Despite
the contentious facts having been drastically reduced and the issues
simplified, contributed in no small way by the concessions, the need to discuss
the current position as regards customary land and the acquired NCR in Sarawak
must still be undertaken.
We
will begin with the unchallenged evidence adduced by the appellant through a
witness in court. At pages 186-187 RR part B Vol.1, Nicholas Bawin ak Anggat,
an Iban and the former Deputy President of the Majlis Adat Istiadat Sarawak,
amongst others
said:
“As
a general rule, the household within the community that first felled the forest
secured
rights over specific pieces of land.
These
rights are heritable, passing ideally from generation to generation of
households
members…
Rights
to a piece of land is lost if it is transferred to another person, for example
a
sibling, a cousin or a relative. It can also be lost if the person moves to
another
villages
through marriages or migration (pindah).
The
adat on pindah is quite clear on depriving one’s rights to customary land.
For
instance, section 73 of the Adat Iban 1993 stipulates that whoever moves from
one
longhouse to another shall be deprived of all rights to untitled land or any
customary
land that has not been planted with crops and all such lands shall be
owned
in common by the people of the longhouse.
There
is no adat on sale of customary land.
If
a person pindah from the longhouse, rights to customary land will either
go to the
community
or he can transfer such rights to a cousin or relative who will in turn provide
him
with tungkus asi.
Tungkus
asi refers
to the token provided by the recipient to the person who on account
of
his moving from the longhouse to another transfers rights of his customary land
to the recipient.”
There
is marked similarity in the above explanation regarding customary land law as
discussed in case laws with the law in force prior to 1.1.1958. To illustrate,
in Abang v Saripah [1970] 1 MLJ 164 the Native Court of Appeal of
Sarawak when considering the
factual
question in issue of whether the appellant or the respondent was entitled to a
piece of temuda land, at the same time had discussed Sarawak’s native
customary law in some detail.
Briefly
and simply put, temuda land is untitled virgin land cleared by a native
whereupon he acquires some restricted right of proprietorship over that cleared
land to be used by him. Once it is cleared it becomes temuda. In this
case of Abang v Saripah the land was originally cleared by the
respondent but subsequently abandoned for more than 20 years. The appellant
wanting to claim the contested land alleged that he bought that temuda land
from the respondent’s brother-in-law. B.T.H Lee J who sat with two other
assessors in the Native Court of Appeal agreed with the decision of the
Resident’s Native Court and dismissed the appeal.
This
Native Court of Appeal held that not only did the respondent lose her rights to
the land when moving away (pindah) to another district (let alone without any
right or power to alienate it), but the appellant likewise on the facts of the
case could not claim NCR
over
it. In the course of it, the learned judge at page 165 stated the following:
“I
do not find it necessary to discuss the point at great length. The law is to be
found in the following passage from Native Customary Laws Ordinance (Cap.
51) Vol.
VII
Sarawak Law Appendix ‘A’ para 7 at page 636.
“Theoretically
all untitled land whether jungle or cleared for padi farming (temuda)
is
the property of the Crown. The fact that Dayaks do clear a portion of virgin
land for
the
site of their padi farm confers on them a restricted right of proprietorship
over the
land
thus cleared. Once the jungle has been cleared it becomes ‘temuda’. It
is a
recognized
custom that ‘temuda’ is for the use of the original worker, his heirs
and
descendants.
This is the only way Dayaks can acquire land other than by gift or
inheritance….No
Dayak is allowed to sell, purchase or lease (by way of demanding
rent
either in kind or in cash) untitled land.
It
would be an infringement of the right of the Crown if they did so, and they may
be
prosecuted
in view of the fact that selling of untitled land is prevalent in this
division,
and
Dayaks seem to forget this custom.
There
are no other ways in which Dayaks can part with possession of untitled land
other
than by gift or on death. When a Dayak abandons his land ‘temuda’ and
moves
to another district he loses all his rights to it. The land that has been
farmed
by
him reverts to the Crown (as legally it is Crown land) and it is usually set
aside for
the
benefit of the general community or to help those who are otherwise lacking in
land.
In
such a case the original owner has no right to prevent others from making use
of
the land and the user acquires the rights.
This
was made clear by the Rajah’s order dated 10th August 1899 Land Tenure
Act….”
Another
succinct elucidation was given by the Native Court of Appeal, the highest court
in the Native Court System in Sarawak, in Sat ak Akum & Anor v Randong
ak Charareng [1958] SCR 104 when it said in the following manner:
“Temuda
rights are created by felling the old jungle and cultivating the land, and are
created only for the use of original worker, his heirs and descendants. They
certainly cannot be transferred for value.
…The
owner leaving the district without any heir may arrange for someone else to
have
prior
right to farm that land by taking from him what is called tungkus asi,
which is some form of token to bind the agreement. It may not be anything of
value, which would invalidate the transaction, but may consist of as much as a pig.
The rights taken over by the person paying the tungkus asi are
inheritable by the heirs of the person but revert to the original owner if he returns
or to his heirs if they return”.
Another
case for illustration, and incidentally part of the question for our
determination, is Sumbang Ak Sekam v Engkarang Ak Ajah [1958] SCR 95.
This case not only discussed the customary law of a native in order to obtain
NCR, but also deliberated on the issue of whether such right could be
transferred for value.
The
matter was heard by the Native Court of Appeal of Sarawak, via case stated by
the presiding Magistrate who had earlier heard the appeal from the Resident’s
Native Court. The facts of the case are as follows. Guyu, a Dayak who stayed in
a longhouse cleared,
cultivated
and occupied a piece of land but later decided to move to Bintulu. Before
leaving he handed over his land and rights to Perada, who in return gave Guyu
what is called tungkus asi.
Despite
having obtained this right Perada failed to use the land.
Later
this land, which was still without a title, became part of the Mixed Zone. The
appellant i.e. Sumbang ak Sekam then desired not only to be declared the holder
of the customary rights over the land but also the one to be given the right to
a Mixed Zone title.
When
the matter went before the Resident’s Native Court, it found that Guyu had
contractually sold the land to Perada, and proceeded to hold that the tungkus
asi was actually a sale price for the land.
In
a nutshell it was a commercial deal and that Perada had bought the land from
Guyu. The Native Court of Appeal of Sarawak presided by Lascelles J thought
otherwise. Before arriving at a factual finding Lascelles J had to contend with
three points of native law or custom for decision, one of which is on point with
this current appeal i.e. whether individual rights are transferable by sale or
otherwise for value. The learned judge in
the
course of disagreeing with the Resident Native Court, after going through the
facts, held the view that the heirs of Perada still held full customary farming
rights and entitled to apply for title over the land.
Lascelles
J explained that tungkus asi could be best interpreted as a customary tanda
or token and not a purchase price. He further explained that:
“In
former days this was something of little value, supposed to represent a meal
which
might
reach the level of a pig and was usually handed over in front of Tuai Rumah.”
The
learned judge declared that as the tungkus asi received from Perada by
Guyu was a mere token, it could not be regarded as a sale of the property. At
page 96 of the case, he made the statement under scrutiny before us, when he
said:
“In
the Court’s opinion…Individual customary rights are not transferable by sale or
otherwise for value.”
The
above statement posed for our determination, of whether individual customary
rights are not transferable by sale or otherwise for value ceased to exist and
become unenforceable upon the enactment and subsequent repeal of the Fruit
Trees Order 1889 of the Rajah Order, requires discussion of like Orders.
The
Rajah’s Orders, precursors to written and structured forms of Sarawak Land law
which included the recognition of Sarawak’s land customary law, culminating in
the Sarawak Land Code 1958 (Cap 81) made matters clearer. Skinner J (as he then
was) in
Madeli
Salleh v Superintendant of Lands & Surveys & Anor [2005] 3 CLJ 697 had occasion to
discuss the Rajah’s Order 1X 1875 which directed that any person who made
clearings of old jungle but subsequently allowing the same to go uncared would
lose all claim or title over such land.
Such
reference in Order 1X 1875 according to the Court of Appeal, of losing all
claims over the uncared land, was clear recognition of such native custom of acquisition
of NCR over land. This decision was approved by the Federal Court later (see Superintendant
of Land & Surveys Miri Division & Anor v Madeli Salleh [2007] 6 CLJ 509).
We see no reason to disagree with the view held by the Court of Appeal of the
clear
recognition of acquisition of NCR, also confirmed by the Fruit Trees Order 1889
particularly section 2. This provision reads:
“Any
Dayak removing from a river or district may not claim, sell or transfer any
farming
ground
in such river or district, nor may he prevent others, farming thereon, unless
he
holds
such land under a grant….”
Before
proceeding further some clarification is required on the applicability of this
provision on the appellant who is an Iban. The above section speaks of Dayaks.
Under article 161A (7) of the Federal Constitution the definition of natives
include Sea Dayaks
and
Land Dayaks. Under the Sarawak Interpretation Ordinance 2005 found in the Schedule
again the Dayaks are split into two, namely the Land Dayaks (Bidayuh) and
the Sea Dayaks or Ibans.
The
Sea Dayaks and Ibans are one and the same indigenous race who are natives of
Sarawak. As the Order of 1889 speaks of any Dayak regardless of whether
a Land Dayak or Sea Dayak, being an Iban the above provision of s. 2 would
therefore apply on the appellant.
This
Fruit Trees Order 1889, which did not legislate in any way that it was
replacing the native customary law, merely confirmed the existence of a dual
system of land i.e. one subject to grant and the other not. Interpretatively
under the system where a Dayak has a grant he could claim, sell or transfer any
farming ground in such river or district, to others. Under the other sisterly
system, where the Dayak has no grant i.e. untitled land and invariably
applicable to customary land, he may not claim, sell or transfer any farming ground
in such river or district, nor may he prevent others, farming
thereon.
Section 2 says nothing about preventing a Dayak having acquired NCR, handing down
that right to another native, subject to the adherence of all the tenets of
customary land law.
In
short whether s. 2 of the Fruit Trees Order 1889 was enacted or repealed subsequently made no difference to Native
Customary Land or of the law and rights attached to it as its subsistence is guaranteed.
Haidar
J in Jok Jau Evong & Ors v Marabong Lumber Sdn Bhd & Ors [1990] 3
MLJ 427 at 432 succinctly said:
“As
such it would appear that native customary rights whether communal or
otherwise
are recognized by the law i.e. the Land Code of Sarawak (Cap 81) (see ss. 5
and
15 of the Land Code). In other words if native customary rights were
established
as
at 1 January 1958 such rights shall subsist”.
The
subsequent enactment of the Sarawak Land Code 1958 (Cap 81), the primary
statute to make better provision in the law relating to land and at the same
time ensuring the continued existence of Native Customary Land, brought major
changes but leaving the NCR unscathed.
As
an example, under Part II of Cap 81 the Minister may by order signified in the Gazette
declare any area of land to be Native Area Land or Interior Land. The Minister
is also empowered to declare any area of land to be Mixed Zone and any Native
Area Land or Interior Land located within such area shall be part of the Mixed
Zone [s.4 (1)]. Even the Director of Land and Surveys may, with the approval of
the Minister by notification in the Gazette, declare any such area as Native
Area Land, inclusive of
Interior
Area Land located in that declared area.
Despite
these statutory powers to classify land, s. 4 (4) of Cap 81 states clearly
that
no Native Customary Land shall be affected by the above declarations made by
the Minister or Director of Lands and Surveys, unless any part thereof may subsequently
cease to be Native Customary Land. Section 4 (4) reads:
“Where
the area in respect of which a declaration has been made under subsection (1),
(2) or (3) comprises Native Customary Land, such land shall be unaffected by
the declarations….”
Under
s. 2 of Cap 81 Native Customary Land includes land on which NCR, whether
communal or otherwise, have lawfully been created prior to 1.1.1958. In a gist
NCR created prior to 1.1.1958, which does not owe its existence to statutes, is
statutorily
protected
and continues to subsist under s. 4 (4) regardless of any declarations (see
also Sapiah Mahmud v. Superintendant of Lands and Surveys Samarahan Division
& Ors [2009] 9 CLJ 567).
Apart
from ensuring the subsistence of NCR already in existence prior to 1.1.1958,
Cap 81 also provides for the creation of new NCR after 1.1.1958 on Interior
Area Land, but subject to a permit (ss. 5(1) and 10 (4). Under s. 5 (2) the
methods by which the new
NCR
may be acquired are-
(a)
the felling of virgin jungle and the occupation of the land thereby cleared;
(b)
the planting of land with fruit trees;
(c)
the occupation or cultivation of land;
(d)
the use of land for a burial ground or shrine; or
(e)
the use of land of any class for right of way; or
(f)
any other lawful method.
The
newly created NCR may be subject to extinguishment by direction of the Minister
upon adherence of certain statutory requirements (s.5 (3)). Section 5 (2) (ii)
of Cap 81 is highly relevant if any extinguishment exercise of the new NCR is undertaken.
It reads:
“the
question whether any such right has been acquired or has been lost or
extinguished
shall, save as in so far as this Code makes contrary provision, be
determined
by the law in force immediately prior to the 1st day of January, 1958”.
In
simple terms, in the event any acquisition of new NCR comes under scrutiny, or
whether subsequently lost, or extinguished shall be determined by the law in
force immediately prior to the 1st day of January, 1958. This provision
therefore does not differentiate the treatment of the newly created NCR and
rights acquired prior
to
1.1.1958 (see Rampai ak Chunggat v Langau ak Chandai & Superintendant of
Lands and Surveys, Third Division, Sibu (supra).
Additional
to the newly created NCR, is the creation of Native Communal Reserves under s.6
of Cap 81 whereupon the Minister may order and declare any area of State land
for the use of any community having a native system of personal law. Rights in
that
Native
Communal Reserve shall be regulated by the customary law of the community for
whose use it was declared to be reserved. Not unlike newly created NCR in
Interior Area Land, the Minister may by order signified in the Gazette declare
any part of
the
Native Communal Reserve to cease being part of it.
Our
decision
From
the totality of evidence and authorities referred in the course of the hearing,
we are satisfied that the creation of native customary land and rights acquired
by a native of Sarawak, is conditional upon the adherence to custom or common
practice of his community.
For
an Iban, it has the customary concept of Tusun Tunggu whereby NCR could
be acquired by 2 modes namely clearing untitled virgin jungle enroute to the
creation of
what
is locally described as temuda and the other by receiving the temuda as
a gift or inheritance.
For
the first mode, the common thread is that the acquisition of NCR starts with
the clearance of the said untitled virgin land or jungle by a native, followed
by the occupation of the cleared land and thereafter not allowing the land to
be abandoned. Once abandoned whatever NCR was created or acquired previously
over that land would be lost. If the original owner abandons the land without
more the community takes over.
Even
though native customary land remains State land, with such rights acquired
being considered as individual rights, after his death that land may be
inherited.
The
appellant certainly cannot inherit these 8 lots as he is not an heir to the
vendors.
An
original owner of native customary land who has no heir, may circumvent the
loss of such NCR over the land by passing that land to some other person within
the community, subject to him handing over to the original owner what is
traditionally called tungkus asi. The tungkus asi is a form of
token (tanda) symbolizing the transfer of rights of the cleared land to
the new owner.
This
token is customarily of little value, perhaps fetching the value of a pig, usually
handed over in front of the head of the community. The appellant, though an
Iban, will fail to qualify as a legitimate recipient of the temuda from
the vendors as he not a native of that community.
The
novel argument that the S&Ps would fall under the phrase of “any other
lawful method”, which concerns only newly created NCR as provided for under
s.5 (2)(f) of Cap 81, must equally fail by virtue of those 8 lots being native
customary land created prior to 1.1.1958.
Lastly
there is no hint of any provision in Cap 81 that legitimizes any transfer of
pre 1.1.1958 acquired NCR through the mode of S&Ps.
Such
a drastic change that drifts away from established natives customary law
require express and clear language in Cap 81 (Haji Khalid bin Abdullah v
Khalid b Abg Haji
Mazuki
& Anor (Kuching OM KG 3/1983-Land Cases (1969-1987); Superintendant of Land
& Surveys Miri Division & Anor v Madeli Salleh [2007] 6 CLJ 509 per Arifin Zakaria
FCJ [as he then was]).
With
the ineligibility of the appellant to inherit or acquire through the tungkus
asi procedure, let alone the litany of case laws, inclusive of Sat ak Akum
& Anor vs Randong ak Charareng (supra) and Sumbang Ak Sekam v
Engkarang Ak Ajah [supra], establish that individual customary rights are
not transferable by sale or otherwise for value thus invalidating the S&Ps,
the position of the appellant is tenuous.
With
the S&Ps being in contravention of customary land law in force immediately
prior to 1.1.1958, the answer to questions 1 (a) and (b) therefore must be in
the negative.
I
now return to the alternative argument of the State Legal Counsel briefly touched
earlier. He argued that the appellant’s case rested on conditional sale and
purchase agreements, and the express conditions were never fulfilled thus
rendering the S & Ps void and ineffective. We agree with this submission.
We
therefore dismiss this appeal with costs. We now invite parties
to
submit on the amount of costs.
Dated
this 11th days of July 2013
sdg
SURIYADI
HALIM OMAR
Judge
Federal
Court, Malaysia
For
the Appellant:
Mekanda
Singh Sandhu
Kalveet
Singh Sandhu
Messrs.
Sandhu & Co
Lots
278-279 First Floor
Rubber
Road No.9
93400
Kuching
Sarawak
For
the 1st & 2nd Respondents:
Datuk
JC Fong
Saferi
Ali
Mohd
Adzrul Adzlan
State
Attorney General Chambers
16th
Floor Wisma Bapa Malaysia
Petra
Jaya
93502
Kuching
Sarawak
25
For
the 3rd Respondent:
Abang
Halit Bin Abang Malik
Messrs.
Loke, King, Goh & Partners
1st
Floor, Lot 301 & 302 Section 9
Lorong
Rubber
No
9 Jalan Rubber
93400
Kuching
Sarawak
For
the 4th Respondent:
Bexter
Michael
Messrs.
Ee & Lim Advocates
No.
4, 1st – 3rd Floor
Petanak
Road
93100
Kuching
Sarawak
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