The Court saves the Salakao Dayak NCR landowners from the Taib regime

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)

            2^nd 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, 1^st 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 1^st 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 1^st and/or 4^th 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 1^st and/or 4^th 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, 2^nd 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)

            2^nd 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, 1^st 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 1^st 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 1^st and/or 4^th Defendant and/or their employees, servants, or agents, or contractors had trespassed into the said NCR Land. The 1^st and/or 4^th Defendants built their workers’ hut on the Plaintiffs’ NCR Land.  The 1^st and/or the 4^th 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 1^st and/or 4^th Defendants.

4.         On or about the 20^th of September 2011, the 1^st 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 1^st 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 1^st Defendant. However, the 1^st Defendant continuously repeated that the said Land belongs to him as the said Lease was granted to the 1^st Defendant by the 2^nd Defendant. The 1^st Defendant has also stated that the 1^st Defendant will continue to do their clearing work in the said Land on the next day.

5.         In the same meeting, the 1^st Defendant promised that the 1^st 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 1^st 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 1^st Defendant’s representative at the Lundu District Office. In the meeting, we were informed by Harry that the 2^nd 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 1^st 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 1^st Defendant to commence work on the said Land.

8.         On the 18.10.2011, I lodged a police report against the trespass by the 1^st and/or 4^th 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 1^st 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 1^st 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 3^rd 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, 1^st 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 4^th 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 4^th Defendant to do clearance work on the Plaintiffs’ said native customary rights land.

15.       Further, and or in the alternative, the aforesaid 4^th 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 1^st and 4^th 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 1^st day of January 1958 and still subsist as such.

21.       Further, it is the Plaintiff’s belief that if the 1^st and/or 4^th 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 1^st and/or 4^th 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 1^st and/or 4^th Defendants any costs in the event the 1^st and/or 4^th 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, 2^nd 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)

            2^nd 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, 1^st 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

High Court ruling on James Jagah NCR land case

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

Taib Mahmud's govt loses in appeal case involving NCR land

Kuching, Feb 16, 2012: The Court of Appeal has unanimously dismissed the appeal of the State Government in the case of Superintendent of Lands and Surveys, Samarahan Division & 2 Ors v James Jagah ak Nyadak & 12 Ors; Superintendent of Lands and Surveys, Samarahan Division & 1 Or v Abas ak Naun & 5 Ors; Jangkar Plantation Sdn. Bhd. v Abas ak Naun & 5 Ors and Poliga Sdn. Bhd. &  James Jagah ak Nyadak & 12 Ors. 

The Court of Appeal was posed with the main legal issue of whether it was proper for the native Plaintiffs to seek a declaration of their Native Customary Rights over provisional leases and timber licences granted by the Superintendent of Land and Survey and the State Government of Sarawak by way of an ordinary Writ of Summons or whether they should have applied by way of a very stringent mode, judicial review. 

The Appellants had submitted that Native Customary Rights claims must be filed by way of judicial review as these involved elements of public law and the challenging of public authorities such as the Superintendent of Land and Surveys and/or the Director of Forests Sarawak in exercising their power under the laws of Sarawak in issuing provisional leases and timber licences.

It was argued on behalf of the native Plaintiffs (Respondents in this appeal) that NCR claims involve issues of law and of facts and therefore their claims against the Appellants must be filed by ordinary writ, which allows oral evidences to be adduced at the proper trial.

The court of  judges consisting of Datuk Dato’ Sulaiman Daud, Datuk Serii Mohamed Apandi  Ali and. Datuk Wira Mohtarudin bin Baki, decided that NCR landowners claiming their rights over their NCR land are entitled to file their claims in a civil court by way of Writ of Summons and that judges should be slow to close the door on Plaintiffs who are claiming such rights over their NCR lands, which are also their proprietary rights enshrined and protected under the Federal Constitution.  

The decision by the learned Court of Appeal judges comes as a great relief to many NCR landowners as there had been an increase in interlocutory applications by timber and palm oil companies lately, to strike out NCR claims based solely on the grounds that their claims should have been filed by way of judicial review.

This of course was intended to oust the natives’ claims from reaching the courts should judicial review be the proper mode of commencing their claims, as judicial review requires that such claims must be filed within 40 days of the date of issuing the lease or timber licence.

This would in most cases be impossible as the issuance of provisional leases and timber licences are normally done ‘behind the back’ of the natives.

The interlocutory applications by the companies and the State Attorney General have substantially delayed many trials to date.

This latest decision by the Court of Appeal is a sign that the Court is indeed pragmatic and just in dealing with NCR claims, understanding as they have demonstrated, the predicament in which many natives of Sarawak find themselves when faced with such intrusion of their NCR lands by lessees and timber companies.

Their Lordships ordered costs of RM10,000-00 each against the three Appellants. The native Respondents were represented by Mr. Baru Bian and Mr. Simon Siah Sy Jen. 

Decline the conferment, Voon tells Rosmah

Kuching (Feb 15, 2012): PKR Wanita vice president Voon Shiak Ni urged Rosmah Mansor, Najib's wife, to quietly decline or defer the conferment of the doctorate degree from Curtin University.

"It is not the time for her as she has not shown that there is result from her work to set up pre-schools in rural Sarawak, eventhough she has been allocated RM1.1 billion to do so," Voon said today.

Voon recalled that she and  two other members of PKR Wanita handed over a memorandum to Rosmah in Feb 2010.

"Rosmah was accompanying her husbands to Kuching then. At a lunch, after an official function officiated by Rosmah, we handed over to her the memorandum from PKR Wanita highlighting issues including the rape of the Penan women and girls in Sarawak and the need to improve the education and health of the communities in Sarawak," Voon said.

"Unfortunately, none has seen improvement or remedial action been undertaken," she said.

Voon said for two years Rosmah has not lifted a finger yet to even respond to PKR Wanita or to give assistance to the women NGOs for them to help what is necessary for women and children.

"We wish to tell her this. Set up pre-schools withing the settlements of the Penans and the others in the interior of Sarawak immediately to ensure that these rural children have equal opportunity for early childhood education.

"Rosmah has to earn the conferment of the doctorage degree," Voon added.

Apologise, Taib told

Kuching (Feb 14, 2012): Sarawak PKR chief Baru Bian has called on Prime Minister Najib Razak and Chief Minister Taib Mahmud to apologise for squandering the country's money in the delusional ego-boosting exercise by paying FBC Media Ltd to promote them internationally over BBC.

"They should resign immediately if they possess even an ounce of integrity and self-respect," Baru said in a press conference yesterday.

"It is difficult to believe that these two men do not realise that good reputation and respect are to be earned and cannot be bought, even if one is wealthier than the Queen of England," the Ba'Kelalan state assemblyman said.

Najib was reported to have paid RM83.8 million to boost his international image while Taib paid RM15 million per year to FBC to produce an extremely rosy but grossly inaccurate picture of Sarawak under Taib's rule.

Some of the misleading stories are that:

. Taib claimed that over 80 % of the Borneo jungle is still virgin forest. In fact, according to the Borneo Research Institute Malaysia Sarawak (Brimas), 85% of Sarawak has been deforested, and that thousands of natives have lost their lands and livelihood to loggers, oil palm plantations and dams and received nothing in return,

. That the only oil palm plantations that have been set up have only been on land cleared for rubber plantations anhd other crops. That oil palm is an agent of development and that those who raise issues about deforestation and corruption are ignorant and selfish outsiders. The reality is that many of the land grab cases in Sarawak involve timber and oil palm plantation. It was reported in the newspapers that Sarawak recorded its fastest pace in opening up land for oil palm cultivation in the past one year.Wetlands International reported in 2011 that a third of one million hectares of peat was drained and cleared between 2005 and 2010 alone for oil palm plantations, and that the expansion of oil palm plantations may lead to the complete loss of theese vast, unique forests by end of this decade. Most shocking of all, leaked records from the Land and Survey Department show that 31 companies linked to Taib have been given land for oil palm plantations amounting to almost 200,000 hectares- equivalent to three times the size of Singapore. More than half of the land leases - 45,000 hectares - have been given out for free or payment in kind. All of this leaving the native land owners with nothing.

. A happy Penan man is featured in the "Deforestation in Sarawak" programme, enjoying his life in the city. The reality is that many Penans have been struggling to protect their lands from the clutches of the logging companies since the 1980s. There are numerous cases of Penan girls being raped by workers of the logging companies but the government has so far refused to act. In fact, a minister added insult to injury by suggesting that the girls were to blame as Penan girls were known to be promiscuous from early age.

Baru called on BBC

“We suggest a series of fact-based documentaries on logging and deforestartion, oil palm plantations, native customary right (NCR) land issues, the proposed mega-dams, the displaced natives and the persecution of the lost Penans,” he said.

“These programmes should receive equal air time as was given to fairy tales on Malaysia and Sarawak produced by FBC Media Ltd for the BBC, only then can we say that an attempt has truly been made to right the wrong done to the people of Sarawak and to restore the integrity of the BBC,” he said.

However, he welcomed the apology by the BBC for its carelessness in airing eight programmes featuring Malaysia produced by FBC which “appeared to have a financial relationship with the Malaysian government.”

Baru stressed that the apology, aired on Feb 10 and 11 as well as made in its website, was a result of the investigations by whistleblower website, Sarawak Report, into the eight programmes favourable to the Malaysian and Sarawak state governments.

He added the apology vindicated Sarawak Report and confirmed to the 74 million BBC World News viewers around the world that the insidious tentacles of corruption and dirty politics of Malaysia and Sarawak.

"We also call on CNN and CNBC to follow the BBC's example and admit their mistake by apologising for allowing their journalistic integrity to be compromised by FBC and for airing misleading propaganda disguised as current affairs to be viewed by millions of people around the world," Baru said. to do documentaries on the “real situation” in Sarawak to compensate for its “compromised” reporting on the state and country.