Alau Baru (F) V Lee Ling Timber Sdn. Bhd. &2lagi


Download PDF Here





CIVIL APPEAL NO. Q-01-721-12/2011




ALAU BARU (F) (WN. KP. 521225-13-5218) … APPELLANT












[In the matter of Suit No. 21-01-2010 (LG) in the High Court of Sabah and Sarawak at Limbang]




Alau Baru (F) (WN KP.521225-5218) … Plaintiff




1. Lee Ling Timber Sdn. Bhd.


2. Limba Jaya Timber Sdn. Bhd.


3. Government State of Sarawak . Defendants]




Abdul Wahab Patail, JCA Balia Yusof Haji Wahi, JCA Tengku Maimun Tuan Mat, JCA


Date of Judgment: 29th December 2014






[1] The claim by the Plaintiff Alau Bam in Miri Suit No 21-01-2010(LG) against the Defendants Lee Ling Timber Sdn. Bhd., Limba Jaya Timber Sdn. Bhd. and the Government of the State of Sarawak was dismissed by the High Court on the grounds that the Plaintiff has not established that she has acquired and or inherited NCR over the land claimed by her. Accordingly, the declarations sought under prayer (i), (ii), (iii), (iv) and (v), the injunctions under prayer (vi) and (vii), rectification under prayer (viii) and for damages were refused. The counter-claims by the 1st and 2nd Defendants were allowed in terms of their prayers (1) (a) and (b) with general damages to be assessed and costs to the 1st, 2nd and 3rd Defendants to be taxed.


[2] The Plaintiff now appeals to this Court.


[3] For the purposes of this judgment, we maintain their designations as Plaintiff and as the 1st, 2nd and 3rd Defendants in the High Court.




Background Facts


[4] According to the Plaintiff:


a. She was gifted on 22.12.1980 with a parcel of land measuring 124 hectares situated at Sungai Besan, Brunot Trusan, Lawas, by her late father Baru Puek. The parcel was claimed to be held as part of 3000 hectares of NCR land.


b. Finding out in 1998 that some logging companies were extracting timber from their NCR land and she was authorized by her family to negotiate with the logging companies which agreed to pay some compensation to her family.


[5] The Plaintiff claimed the 1st and the 2nd Defendants trespassed by entering upon her land and –


a. levelling her land;


b. setting up a temporary camp thereon;


c. parking heavy machineries thereon;


d. constructing a logging road thereon; and




e. constructing a bridge on her land to cross the Trusan River.


[6] It was the Plaintiff’s case that:


a. her NCR rights had not been extinguished;


b. no compensation was paid to her for her land;


c. she had a legitimate expectation to be issued a title to her NCR land;


d. she had a right to be heard before the license and or provisional lease were issued to the 1st and 2 nd Defendants; and


e. the license and or the provisional lease should not have been issued to the 1st and 2nd Defendants over her NCR land.


[7] The Defendants –




a. denied the Plaintiffs claim, and


b. denied that a timber license and/or a provisional lease of State land had been issued to the 1st and 2 nd Defendants.


[8] Instead –


a. the 2nd Defendant averred it was issued with a License for Planted Forests No. 0038 (LPF/0038) by the Director of Forests on 6.12.2004 for a period of 60 years over a forest area measuring approximately 37,084 hectares and that the 1st Defendant is its contractor under the license;


b. the 1st and 2nd Defendants contended they were lawfully in the forest area since 2005 to carry out works under and pursuant to the license including to repair and maintain an old logging road and to build new roads, bridges and camps for its workers;




c. the 1st and 2nd Defendants denied that the Plaintiff has any or has acquired NCR over the land and therefore denied that they had trespassed the Plaintiff’s NCR land; and


d. the 1st and 2nd Defendants’ counter-claim on the basis that it is the Plaintiff, her servants and or agents who had encroached, trespassed and interfered with their works by blocking roads in the forest area.


[9] The 3rd Defendant, the State Government of Sarawak maintained that in seeking to challenge the decision of the Director of Forests in issuing LPF/0038 to the 2nd Defendant, the Plaintiff should have applied for a judicial review; and that the Plaintiff’s claims were statute barred under s. 202 of the Sarawak Land Code.


Preliminary Observations


[10] Strictly speaking, an appellate court cannot and therefore does not interfere with the decisions of any Court. This is for the reason that s. 72 of the Courts of Judicature Act 1964 (Act 91)




provides that no judgment or order of the High Court, or of any Judge, shall be reversed or substantially varied on appeal, nor a new trial ordered by the Court of Appeal, on account of any error, defect, or irregularity, whether in the decision or otherwise not affecting the merits or the jurisdiction of the Court. Thus, only if it is demonstrated that the error, defect, or irregularity in the decision or otherwise affected the merits or the jurisdiction of the Court, is the Court of Appeal empowered to intervene. In practical terms, it must be demonstrated that the error, defect, or irregularity led the court appealed from to a decision that but for the error, defect, or irregularity it would not have made.


[11] This necessitates an examination of the grounds of decision of the court appealed from to appreciate the basis upon which it had made its decision.


The High Court Decision


[12] Having set out the background facts, the High Court proceeded to address the incidents in 2008 of discovery of the alleged trespass by the 1st and 2nd Defendants, their denial and refusal to cease, and the blockade on 3.9.2009.




[13] The High Court traced the origins of the Plaintiff’s claim to NCR rights over the land as follows:


a. The Plaintiff was gifted 124 hectares from 3000 hectares held by her father Baru Puek. Her father, living at Long Tengoa, Trusan, bought the 3000 hectares of NCR land from one Tagal Tiri (PW1) for the price of one buffalo on 1.12.1972. PW1 himself inherited the land from his father Piri Riung who inherited it from his father Riung Sigar.


b. According to PW1 it was Riung Sigar who with other family members cleared the land during the rule of the 1st and 2 nd Rajahs of Sarawak.


c. PW1 explained from his family oral history how when Riung Sigar died his son and PW1’s eldest uncle Agung inherited the land, and when Agung died, PW1’s father inherited the whole of the land because Agung and another brother Ngilo did not have any children, a sister Libu (f) cannot inherit as a female, his father Piri




Riung inherited the whole of the land. After many years Piri Riung moved to Kampong Tang Sango where PW1 was born.


d. PW1 testified that his NCR land is located on the bank of the Trusan river, bordered by Sg Besan on the lower part of Sg Trusan, by Sg Bitanung on the upper part of Sg Trusan and by Gunung Tebunan on the other side of Sg Trusan.


[14] The High Court then turned its mind briefly to the acquisition of NCR rights, the Rajah’s Order 1875, amended or modified by the Land Order 1920 and the Land Settlement Ordinance 1933, the Land Code (Chapter 81) (1958 Edition) which put a cut-off date as 1.1.1958 and that thereafter under s.5 of the Land Code native customary rights may be created in accordance with the native customary law of the community or communities concerned by any of the methods specified in subsection (2), if a permit is obtained under s.10, upon Interior Area Land.




[15] The 3 rd Defendant’s case was summed up as follows: that PWl’s grandfather did not clear the specific portion of the land amounting to 124 hectares claimed by the Plaintiff, that relying on aerial photographs taken in 1951 and 1959 that land was still virgin jungle in 1951 and 1959 and had not been cleared at all as alleged by PW1 and the Plaintiff.


[16] On proof of a claim to NCR rights to land, the High Court referred to Ara binte Aman & Ors v Superintendent of Lands and Mines 2nd Division [1979] 1 MLJ 208 HC, Tapah bin Bangkol v Superintendent of Lands and Surveys [1999] 3 MLJ 588, Sop Plantations (Suai) Sdn Bhd v Ading Ak Layang & Ors 12004] 4 MLJ 180 that it must be proven by cogent evidence and not by bare assertions.


[17] The High Court considered the testimony of PW1 in respect of his grandfather having cleared and settled on the land during the rule of the 1st and 2nd Rajahs. The High Court discounted the testimony of PW1 as follows:




a. PW1 had no personal knowledge whether his grandfather actually cleared and farmed the 3,000 acres of land since he was not born yet;


b. PW1 testified that he did not know the date of birth or date of death of his grandfather and that he knew only from his family’s oral history;


c. PW1 said his father inherited the land when his uncles died during the times of the Rajah but he did not give any specific date or year;


d. PW1 said that his father was residing at Kampung Tang Sango at the end of 1972. [If was true that his father inherited the land during James Brooke’s time and lived until 1972, it would mean his father was nearly 130 years old when he died because James Brooke became the 1st Rajah in 1842 and Charles Brooke became the 2nd Rajah in 1868. But he also said that he was only 5 years old when his father




passed away and that would be in 1927. There was no attempt to clear away this discrepancy.]


e. PW1 was not able to tell and did not lead any evidence as to –


i. when his grandfather was born and died,


ii. when did his grandfather first clear the land, when were his uncles and father born and when did they die;


iii. how old were they when they helped to clear the land and whether his father had any personal knowledge of the land being cleared by his grandfather in order to tell him about the land;


iv. PW1 was not able to tell when the first fruit tree was planted or the age of the trees;


v. PW1 referred to the graves and burial ground but was not able to tell and did not give the age of




these graves or who were buried in these graves except to say that they belonged to his ancestors;


vi. PW1 said his grandfather cleared 3,000 acres of land but no survey was carried out by his father or by him to establish its locality, perimeter or area;


vii. PW1 did not produce any birth certificate, death certificate or documents to substantiate his family history;


viii. The 3rd Defendant produced aerial photographs taken in 1951 and 1959 (exhibited in the bundle of documents) to show that the area claimed by the Plaintiff as her NCR land was then still virgin jungle;


ix. When put to PW1 that in 1951 and 1959 respectively the area claimed by him as his




inherited NCL land was still virgin jungle and he answered he did not know.


[18] The High Court considered the question whether, assuming that PW1’s grandfather had acquired NCR rights to the land, whether the rights subsisted and PW1 could sell the land to Baru Puek. On this issue, the High Court reasoned as follows:


”27 … PW3, who is a Penghulu of the Tagal community of Lawas District, testified that according to the Tagal customs, NCR land can be bought and sold to other Tagal or Lun Bawang or Murut in consideration of a buffalo, old jars or cash money. The NCR land can also be given as dowry in an agreement made between the father of the groom and the father of a bride and witnessed by the Ketua Kampung or Penghulu. He said that a Tagal from a different village can acquire NCR in another village by clearing and farming the land with padi and fruit trees. He further said that this person can also buy NCR land in another village.




28. PW3’s testimony on the Tagal customs in these respects however were different from and contradicted by the testimony of PW1 who said the land cannot be sold to anyone outside the longhouse community. PWI also testified that land cannot be inherited by a daughter who married out from the family i.e. if she moved out from the longhouse or village after her marriage. She could inherit a parcel of land from her father if it had been partitioned and given to her. Although PW3 said that PW1 was wrong on his testimony on the Tagal customs, there was no attempt to clarify these discrepancies.


29. There are many similarities between the Code of Adat Lun Bawang and the Tusun Tunggu applicable to the Ibans. …


30. In this case, Baru Puek and PW1 were from different villages and they also lived in different villages. They were from different communities. The land could not be sold or be transferable by PW1 to the Plaintiffs




father notwithstanding that the purported sale was witnessed by the Tua Kampong and Penghulu in 1972: see Section 90(1) of the Code of Adat Lun Bawang, 2004. Further, the Plaintiff having moved out from her community to live in another community with her husband, after her marriage, could not inherit the land from her late father unless the land had been partitioned. The evidence showed that there was no partition or sub-division of the land when her father purportedly gave the land to her.”


[19] Relying upon Shaharuddin Ali & Anor v Superintendent of Lands and Surveys, Kuching Division & Anor. [2004] 4 CLJ 775; Jalang Paran & Anor v Government of the State of Sarawak & Anor [2011] 3 CLJ 469 CA and Ahmad Jefri Mohd Johari v Pengarah Kebudayaan & Kesenian Johor & Ors. [2010] 5 CLJ 865, the High Court agreed the action contained no private law element and should be commenced under judicial review.




[20] The 3rd Defendant’s objection as to limitation was dismissed on the ground S.202 of the Land Code does not apply as the instant case did not concern or involve the question of indefeasibility of title.


[21] The High Court concluded:


”35. For the reasons given in this judgment, the Plaintiff has not established that she has acquired and or inherited NCR over the land claimed by her.


On the evidence before the court, she did not and does not have any NCR over the land claimed by her as pleaded. Therefore, the declarations sought by her in prayers (i), (ii), (iii), (iv) and (v) are refused.


36. As the Plaintiff does not have any NCR over the land claimed by her and the land did not and does not belong to her but is State land, the 1st and 2nd Defendants did not trespass any land belonging to her. The 1st and 2 nd Defendants were lawfully on




the land under and pursuant to LPF/0038. They were issued with permits to enter coupe dated 25.8.2005 by the Director of Forests to carry out and survey coupe boundaries, propose topographical workmap, survey of proposed roads and so on. The injunctions in prayers (vi) and (vii) are refused.


37. The evidence showed that the 2 nd Defendant was only issued with a planted forest licence and has not been alienated with the land nor has it been issued with a provisional lease or lease of State land. The 2nd Defendant is not and has not become the registered owner of the land covered by LPF/0038. The Plaintiffs prayer for an order for rectification of the Register book in prayer (viii) is refused.


38. Therefore, the Plaintiff’s claims for damages are refused and the Plaintiff’s claims are dismissed. I allow the 1st and 2 nd Defendants’ counterclaim in




terms of prayers (1) a and b, with general damages to be assessed. Costs to the 1st, 2nd and 3rd Defendants to be taxed.”


Deliberation and Conclusions


[22] In considering the submissions made before us and in arriving at our conclusions, we deliberated in the following steps.


Recognition of Native Customary Rights


[23] The recognition of native customary rights by the common law was accepted in Adong Kuwau & Ors v Kerajaan Negeri Johor & Anor [19971 1 MLJ 418, Nor Anak Nyawai & Ors v Borneo Pulp Plantation Sdn Bhd & Ors 12001] 2 CLJ 769; Adong Kuwau & Ors v Kerajaan Negeri Johor [2007 1 MLJ 418 CA, Superintendent Of Lands & Surveys, Bintulu v Nor Anak Nyawai & Ors And Another Appeal [2006] 1 MLJ 256 CA, Superintendent of Lands & Surveys, Miri v Madeli Bin Salleh [2007] 6 CLJ 509 FC. With decisions in other jurisdictions such as Mabo & Ors v Queensland (No. 2) [1992] HCA 23, (1992) 175 CLR 186; Delgamuukw v British Columbia (1997) 153 DLR 4th 193; Western Australia v




Ward (2000) 170 ALR 159; Yorta Yorta Community v


Victoria (2001) 180 ALR 655; there is today no more question about the recognition of native customary rights.


[24] The recognition of native customary rights in Sarawak is not new. Even before these cases, native customary rights were recognised in Sarawak.


[25] Sir James Brooke became the 1st Rajah of Sarawak in 1842. Consistent with the common law that today recognises native customary rights to land, the 1st Rajah had since 1842 recognised the native customary rights to land. The 1st Rajah was sensitive to the prior presence of native communities with their own laws to ownership and the development of land. In Nor Anak Nyawai & Ors v Borneo Pulp Plantation Sdn Bhd & Ors (supra), Ian Chin J stated:


“Thus far, the native customary rights of an Iban to do the things associated with the terms temuda, pulau, and pemakai menoa have not been abolished. They have survived through all those Orders and Ordinances. It is




not surprising given the attitude of the First Rajah which has been commented on by various authors. It has been said that though Sarawak was ceded to James Brooke and with it the proprietorship and sovereignty over the land, he had shown a consistent respect for native customary rights over land (see Anthony Porter -”The Development of Land Administration in Sarawak from the rule of Rajah James Brooke to the present time (1841-1965) “). In fact James Brooke had referred to native customary rights as “the indefeasible rights of the Aborigines” (see John Templer – ”The Private Letters of Sir James Brooke, K.C.B., Rajah of Sarawak “). James Brooke was “acutely aware of the prior presence of native communities, whose own laws in relation to ownership and development of land have been consistently honoured” (see Anthony Porter, p. 16).”


[26] In ”The Private Letters of Sir James Brooke, K.C.B., Rajah of Sarawak ” edited by John C Templer Esq. Volume 1 Chapter 1, the editor explained at page 2 he was reproducing a paper by Sir James Brooke written before the latter left England in 1838




which set out his objectives explicitly. Discussing protecting British interests in the Malay Archipelago, and decrying the Dutch approach, Sir James Brooke significantly wrote (see Page 11):


“For these and many other causes which readily occur it would seem, that territorial possession, is the best, if not the only means, by which to acquire a direct and powerful influence in the Archipelago, but any government instituted for the purpose must be directed to the advancement of native interest and the development of native resources, rather than by a flood of European colonization, to aim at possession only, without reference to the indefeasible rights of the Aborigines.”


[27] There was no notion that the acquisition of territorial possession, and thus sovereignty, was to have the effect to extinguish native customary rights.




[28] Indeed the first order affecting acquisition of native land rights is only to be found in the Rajah’s Order of 1875, about 7 years after Charles Brooke became the 2nd Rajah of Sarawak. Then over the years, the right to acquire land under native customary rights was progressively restricted.


[29] The point we observe is that at all times native customary rights to land were recognised, and the restrictions in effect from 1.1.1958 introduced by the Land Code cannot apply to NCR lands acquired earlier, for it would amount to taking away individual holders’ rights to property recognised earlier, to property they had already acquired. They cannot suddenly become squatters or illegal claimants by some new law or regime. Further, with entry into Malaysia, the Federal Constitution not only set out the rights of the State of Sarawak and the Federal Government inter se, but also extended the fundamental rights and liberties under the Federal Constitution to the people in Sarawak. Their property, a term that necessarily includes land that had been acquired under NCR rights are protected by the Federal Constitution.




Effect of Assumption of Sovereignty


[30] In the time of the 1st Rajah, Justice Chapman and Justice Martin in New Zealand in R v Symonds (1847) NZPCC 388


upheld the concept of native title subsisting notwithstanding the assumption of sovereignty by the Crown, and that the Crown is bound to respect it. Similar views were expressed in In re The London and Whittaker Claims Act 1871 (1872) 2 NZCA 41. Notwithstanding these cases, the attitude to native titles was to change when Chief Justice James Prendegast was appointed in New Zealand in 1875. In Wi Purata v The Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72, Justice Prendergast transformed the position of aboriginal title from one subsisting at law, to one held on sufferance of the Crown.


[31] That view was dismissed in New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 CA, commonly known as the Lands Case. Discussing the common law approach to native rights to land, Justice Richardson said:


“There is . . . one overarching principle . . . that . . . the Treaty must be viewed as a solemn compact between




two identified parties, the Crown and the Maori, through which the colonisation of New Zealand was to become possible. For its part, the Crown sought legitimacy from the indigenous people for its acquisition of sovereignty and in return it gave certain guarantees.”


[32] In Sarawak, there is no treaty similar to the Treaty of Waitangi 1840. But equally the acceptance of James Brooke, thereby according him legitimacy as the Rajah, was not only because of the protection he was able to give from pirates but the peace he was able to make between the constantly warring native tribes. In reading of the barbaric practice of head hunting in Sarawak it is often overlooked that the practice was a desperate attempt to deter encroachment of land over which native customary rights is claimed, and which became a necessary proof of ability to protect his family, community and their lands.


[33] With the acceptance of native customary rights to land, the words of Justice Chapman in R v Symonds (supra) inevitably come to mind:




“Whatever may be the opinion of jurists as to the strength or weakness of the Native title, whatsoever may have been the past vague notions of the Natives of their country, whatever may be their present clearer and still growing conception of their dominion over land, it cannot be too solemnly asserted that it is entitled to be respected, that it cannot be extinguished (at least in times of peace) otherwise than by the free consent of the native occupiers …”.


[34] For the removal of doubt, the above applies to lands already under native title. In other words, rights to land acquired under native customary rights before the assumption of sovereignty subsist and are not extinguished by the assumption of sovereignty. We note the 1st Rajah did not impose any restriction but respected native customs and rights. Thus in Sarawak, native title established before the Rajah’s Order 1875 subsist similarly without limitation. However, rights to land acquired after the Rajah Order 1875, the Land Order 1920, the Land Settlement Ordinance 1933, and the Land Code (Chapter 81)




(1958 Edition) are subject to the restrictions under the respective Orders, Ordinance and Code.


A Fair and Just Decision


[35] The issues raised and touched upon that this case was not merely of finding of facts based upon credibility of witnesses founded upon the advantage of having seen and heard them testify and tested upon their testimony. The findings of facts involved an appreciation not only of the land laws, the law relating to native customary rights, civil procedure and the law of evidence, and the reasoning that lead to the findings of fact. In these the High Court enjoys no audio visual advantage over an appellate court.


[36] Accepting that justice is about a fair and just resolution of a dispute, it must necessarily be a decision that is (a) an application of the law and (b) founded upon facts determined to be true and correct.


[37] As to the law, be it substantive law, the law of procedure or the law of evidence, it is not enough to know the law, but it is




more important to understand it, so that it may be applied in furtherance of justice and not to evade it. For this reason, it is important to appreciate the objective of the law so that it is applied correctly.


[38] As to the true and correct facts, given that humans lack omniscience (having complete or unlimited knowledge, awareness, or understanding, perceiving and knowing all things), the fundamental jurisprudence of justice (also termed as fundamental principles of justice or natural justice) determines that we rely on facts that are safe to rely upon. A fact is safe to rely upon if it is not disputed, and if a fact is disputed, a determination of what is the fact safe to rely upon is based upon evidence that is safe to rely upon.


[39] A judicial decision requires the court to appreciate the evidence and relevant facts to make a finding on the disputed facts, and an appreciation of the law and the facts in coming to its decision.




“Standard of Proof” and “Cogent Evidence”


[40] A key part of the reasoning by the High Court is the standard of proof required.


[41] The law requires proof beyond reasonable doubt in criminal cases and a balance of probabilities in civil cases. The requirement for cogent evidence and not mere assertions means no more than that there must be evidence and not mere assertions. Assertions is not evidence. But cogent evidence is not a third standard of proof. The words clear, convincing, unequivocal, strong, compelling and cogent had at various times been used to describe the evidence before a court, but that can by no means be taken as having established another standard of proof in addition to the two standards of proof of beyond reasonable doubt and proof upon a balance of probabilities that form the bulwark of the justice in common law jurisdictions. Chief Justice Warren Burger accepted the concept of the intermediate standard of proof in Addington v. Texas (441 U.S. 418). The concept was considered and rejected in Canada in Re: Robinson and Hislop [(1981) 114 DLR (3d) 620]. In Re B (Children) [2008] UKHL 35, the test in family law cases that the




more serious allegation the more cogent is the evidence needed to prove it, was dismissed. Baroness Hale of Richmond (who gave the lead speech in the House of Lords) stated of it at para [64] that: ‘It is time for us to loosen its grip and give it its quietus’.


[42] Ara binte Aman & Ors v Superintendent of Lands and Mines 2nd Division (supra), Tapah bin Bangkol v Superintendent of Lands and Surveys (supra), Sop Plantations (Suai) Sdn Bhd v Ading Ak Layang & Ors (supra) were decisions based upon findings of fact. But findings of fact themselves do not bind other cases. It is a fundamental principle of justice that each case is decided upon its particular facts, but according to the same principles or ratio decidendi.


[43] In this case:


a. The High Court required cogent evidence instead of proof upon a balance of probabilities. We observe that at no time has any law affecting land and property rights required a standard higher that the proof upon a balance of probabilities. Nor is there any provision in




the Land Code of Sarawak that, while adopting the common law position that a claimant to an NCR right must prove his claim, required a standard of proof beyond proof upon a balance of probabilities.


b. There was a failure to consider proof upon a balance of probabilities. To appreciate what proof upon a balance of probabilities means, it must be understood the term does not mean “whether or not he has probably proven it.” It means putting onto each side of the balance the evidence in support adduced by the respective parties. As everyone will have observed it is not a question of how much evidence is put to make the balance tip in one’s favour, but a question of having put more than the other party. Even if one party’s evidence is not weighty, the scale tips in his favour if the other party evidence weighs less.


[44] In this case, there is evidence of the Plaintiff, supported by PW1 from whom the Plaintiff’s father purchased the land. The High Court failed to consider that since the NCR rights were




acquired by PWl’s ancestors, PW1 was giving evidence not only as an independent witness, but also against his own possible personal interests to the land when he testified that the Plaintiff’s father had purchased the property from his father. That is evidence that cannot be lightly dismissed.


[45] We have summarised the reasons given by the High Court for rejecting the testimony. Here we observe the error of the “cogent”. The requirement of “cogent” was applied to reject the evidence adduced, when what is pertinent is whether the reasoning is cogent. We asked ourselves whether it is cogent reasoning to reject PW1 testimony on the grounds that PW1 was not born yet when his grandfather cleared and farmed the land, when it is PW1 testimony that his father inherited the land from his grandfather who cleared and farmed the land. It is not cogent reasoning to discount the testimony of PW1 on the grounds he did not know the date of birth and death of his grandfather but knew only from the family’s oral history, or the specific dates when his uncle died and his father inherited the land? The calculation PW1 grandfather must have been 130 years old when he died in 1972 means the grandfather must have been born in




1842. But it was not the PWl’s testimony the grandfather was born in 1842. It is only that the occupation and clearing began in the time of the 1st Rajah. An unexplained discrepancy was founded upon PW1 testimony that he lived with his father at Kampung Tang Sango the latter died in 1972, but he also testified his father dies when he was 5 years old, which must have been 1927. It is true there appears to be a discrepancy, but a judicial appreciation cannot be based upon speculation. Little can be made of it one way or another unless the question was put to PW1 and he could not explain it. Otherwise it would be unfairly faulting PW1 without giving him the opportunity to explain it. In the days when adversarial advocacy is taken too far by a party to look from his end of the telescope in submissions, Judges necessarily need to be cautious.


[46] The Courts appreciate that it is possible that claims based on NCR rights to land are driven by greed and are not bona fide and the State has a responsibility to protect citizens from such claims. But not every claim is necessarily driven by greed or not bona fide. At the same time, parties granted license or title find themselves confronted by adverse NCR rights claims to the lands




leased or licensed to them. The injustice to those parties who in good faith applied for and accepted the leases and the license is not less than the injustice to natives with bona fide claims to the lands under NCR rights.


[47] This situation exists not simply because the State continues to recognise the native acquisition of title to land by NCR rights, which in any case today is restricted, but often because no effort was made to determine whether a piece of land is subject to an NCR rights claim before a lease or a license is issued.


[48] The State relied on aerial photographs in 1951 and 1959. While it is true commercial plantations with trees planted in neat straight rows or along terraced or unterraced contours, and cultivated areas are cleared and are therefore easily identifiable from aerial photographs:


a. the native plantations do not have the same features as trees are often planted erratically;




b. the rotational cultivation practised because the native


cultivators –


i. did not have access to fertiliser supported cultivation;


ii. need to move to minimise fungal, parasite and pest infestation;




c. their practise of keeping pulau galau areas as sources of products, supplementary sources of food and wood source for their structures do not always lend themselves to easy identification from aerial photographs.


[49] Aerial photographs are thus not entirely conclusive even when expert interpreters are called to testify as opposed to memory of the very people who took the photographs themselves and the photographs serve to augment their memory.




[50] Not having taken steps at any time surveys for actual determination of land held under NCR rights as at 1.1.1958, and the nature and extent of each holding before that date, the State may be failing in its obligation to protect State lands. The State having also elected not to conduct surveys to first determine there are no NCR rights claim to any piece of land before issuing a lease or license in respect of it, the conclusion follows that the State elected to face the risk of facing such claims. Unless the parties accepting such lease or license is shown to have accepted such risk, they may be entitled to make a claim against the State.


[51] It became obvious that the error is somewhere between the State and the party taking the lease or the license. We took time to consider fairly whether it is cogent reasoning to adopt the standards of evidence expected by the High Court before accepting the evidence adduced by the Plaintiff. We accept it may have the effect of protecting the State from claims driven by greed and motives that are not bona fide. But we have to admit we are not satisfied it will always successfully do so. But worse, it is likely to result in bona fide claimants not being able to sustain their claim in a system not set up by them but the State, and




where they do not have the resources to keep the necessary historical records, but have to rely on oral history and the memories of diminishing numbers of elders, in an environment and climate where the materials used and evidence habitation do not survive the generations.


[52] We concluded that expectations of high standards of evidence in these circumstances is not cogent reasoning, and that the High Court erred in discounting or rejecting the evidence adduced by the Plaintiff in arriving at the conclusion that the Plaintiff had failed to prove its case. If the evidence of the Plaintiff is accepted and placed upon the balance, even without giving it its full weight, against the evidence by the Defendants, we find that the balance necessarily tilts in favour of the Plaintiff.


[53] Accordingly, we would allow the appeal with costs which we fix at RM30,000.00 here and below unless otherwise agreed. We set aside the order of the High Court and enter judgement for the Plaintiff as follows:




a. A Declaration that the Plaintiff had inherited and


acquired Native Customary Rights (NCR) over the parcel of lands as claimed by the Plaintiff shaded Yellow in the locality map marked “M” annexed to this Statement of Claim (the said “NCR Land”);


b. A Declaration that this native title preclude the Defendants from impairing and/or abridging the Plaintiff’s said native title and/or NCR Land;


c. A Declaration that the acts of the 3rd Defendant in issuing any Licence and/or Provisional Lease/s to the 1st and 2nd Defendants insofar as they impair the Plaintiff’s NCR rights over the said land, is wrong null and/or void;


d. A Declaration order that the issuance of any Licence and/or Provisional Lease/s, to the 1st and 2nd Defendants who are non-natives is unlawful, improper, under the Land Code (Cap. 81) and therefore null and void;




e. A Declaration that in issuing any Licence and/or Provisional Lease/s, as aforesaid, the 3rd Defendant had acted in breach of its fiduciary duty to the Plaintiff and therefore any Licence and/or Provisional Lease/s, to the 1st and 2 nd Defendants are null and void;


f. A Prohibitory injunction restraining the 1st and 2nd Defendants and/or their servants and/or agents from trespassing, clearing, using or occupying the Plaintiff’s said NCR Land;


g. A mandatory injunction against the 1st and 2nd Defendants and/or their servants and/or agents to cease operations and remove all structures and houses, their equipments or machineries from the Plaintiff’s said NCR Land forthwith; ‘


h. An Order of rectification in the Registry book against the 1st and 2nd Defendants in respect of any title and/or lots issued under the name of the 1st and 2nd




Defendants in respect of the Plaintiffs land kept at the


Limbang Land Office; and


i. Damages against all the Defendants to be assessed by the Registrar.






Court of Appeal of Malaysia Putrajaya


Dated: 26 th January 2015


Counsels/ Solicitors


for the Appellant: Mr. Baru Bian & Mr. Simon Siah


Messrs BARU BIAN Advocates No. 6, 2nd Floor, Lot 5430, Block G RH Plaza, Jalan Lapangan Terbang 93350 Kuching, Sarawak


for the 1st & 2nd


Respondents: Mr. Leong Hsin Ru & Ms. Cindy Chow


Messrs Tang & Partners


Lot 164-166, 2nd Floor


Jalan Song Thian Cheok


P.O. Box No. 869, 93100 Kuching, Sarawak




for the 3 rd Respondent:


Datuk J. C. Fong, State Legal Counsel, Mr. Lonie Anak Pinda, State Legal Officer & Mr. Hishamudin


State Attorney-General’s Chambers 15th & 16th Floors, Wisma Bapa Malaysia Petra Jaya, 93502 Kuching, Sarawak



PDF Source: