IN THE COURT OF APPEAL OF MALAYSIA AT PUTRAJAYA
CIVIL APPEAL NO. Q-01(IM)-576-09/11
1. MALAYSIA ANAK BANG (630925-13-5262)
2. LABANG AK JAOL (K 644240)
3. SABANG AK LANGGAN (K 709319)
4. BREAK AK JANTAU (K 668154)
5. BANGAT AK MERAYANG (K 745665)
(suing on behalf of themselves and
all other proprietors, occupiers, holders and claimants of native customary land at the longhouses which situate at Sungai Pangi, Sungai Kelabit, Sungai Gamunnar,
Bakong, Baram, Miri Division, Sarawak.) … APPELLANTS
1. EMPRESA (M) SDN. BHD. (145959-H)
2. GOVERNMENT OF THE STATE OF SARAWAK
[In the matter of High Court in Sabah and Sarawak at Miri
Suit No. 22-73-97(MR)
1. Malaysia Anak Bang (630925-13-5262)
2. Labang Ak Jaol (K 644240)
3. Sabang Ak Langgan (K 709319)
4. Break Ak Jantau (K 668154)
5. Bangat Ak Merayang (K 745665)
(suing on behalf of themselves and all Other Proprietors, occupiers, holders and Claimants Of native customary land at the longhouses which situate at Sungai Pangi, Sungat Kelabit, Sungai Gamunnar,
Bakong, Baram, Miri Division, Sarawak.) … Plaintiffs
1. Segarakam Sdn. Bhd.
2. Prana Sdn. Bhd.
3. Empresa (M) Sdn. Bhd.
4. Government of the State of Sarawak . Defendants]
Heard together with CIVIL APPEAL NO. Q-01(IM)-577-09/11
1. BANGGAU AK ANDOP (K.433381)
2. BAWAN ANAK MUMIN (K.554592)
3. JANTING ANAK NGAIT (K.546156)
(Suing on behalf of themselves and all other proprietors, occupiers,
holders and claimants of native customary land at Kampong Rumah Banggau,
Rumah Pengguang, Rumah Sidu,
Rumah Kiai and Rumah Janting, Bakong Baram, Miri Division, Sarawak)
1. EMPRESA (M) SDN. BHD. (Reg. No. 145959-H)
2. LEMBAGA PEMBANGUNAN DAN LINDUNGAN TANAH (LAND CUSTODY AND DEVELOPMENT AUTHORITY)
3. GOVERNMENT OF THE STATE OF
SARAWAK . RESPONDENTS
[In the matter of High Court in Sabah and Sarawak at Miri
Suit No. 22-74-97(MR)
1. Banggau Ak Andop (K433381)
2. Bawan Anak Mumin (K554592)
3. Janting Anak Ngait (K546156)
(suing on behalf of themselves and other Proprietors, occupiers, holders and claimants of native customary land at Kampong Rumah Banggau, Rumah Pengguang, Rumah Sidu,
Rumah Kiai and Rumah Jantang, Bakong,
Baram, Miri Division, Sarawak) . Plaintiffs
1. Segarakam Sdn. Bhd.
2. Prana Sdn. Bhd.
3. Empresa (M) Sdn. Bhd.
4. Lembaga Pembangunan Dan
Lindungan Tanah (Land Custody And Development Authority)
5. Government of the State of Sarawak … Defendants ]
Abdul Wahab Patail, JCA Zaharah Ibrahim, JCA Mohamad Ariff Md. Yusof, JCA
Date of Judgment: 15th October 2012
GROUNDS OF JUDGEMENT
1. The Appellants/Plaintiffs appealed against the striking out of their Writ of Summons and Statement of Claim dated 29.12.1997 upon the application by Summons in Chambers dated 16.6.2011 (Encl. 50), by the 1st and 2nd Respondents/3rd and 4th Defendants upon the grounds that the Appellants / Plaintiffs –
a. failed to comply with the provisions of the Government Proceedings Act 1956 (Act 359);
b. the claims and reliefs sought by the Appellants/Plaintiffs are barred by Section 2 of the Public Authorities Protection Act 1948 and/or Item 97 of the Schedule to the Limitation Ordinance [Cap 49) and/or Section 202 of the Land Code 1958 (Cap 81);
c. the Plaintiffs ought to have filed an action by way of judicial review of the administrative action of the issuance of the documents of title to Lot 48 and Lot 52 Bok Land District; and
d. the 1st & 2 nd Appellants/Plaintiffs’ titles are
2. At the commencement of hearing preliminary objection, notice of which was given on 18.6.2012 was raised that the Appellants/Plaintiffs have failed to serve upon the 1st and 2nd Respondents the notice of appeal dated 11.8.2011, and to date no application had been made to extend the time to serve the notice of appeal upon the 1st and the 2nd
3. Counsel for the Appellants/Plaintiffs conceded he became aware on 14.6.2012, did not have evidence of service having been made and therefore unable to prove the notice had been served.
4. Relying upon Lee Lan v Lim Yoon Loy & Ors  1 CLJ Rep 251 SC and MBF Cards Sdn. Bhd. v Chew Ah Too 
1 CLJ 140 CA, the preliminary objection by 1st Respondent/Defendant in appeal Q-01(IM)-576-09/ 11 and the 1st and the 2nd Respondents/Defendants in appeal Q-01(IM)-576-09/11 were sustained and the appeals against the respective Respondents/Defendants were struck out with no order as to costs.
5. It was agreed by the parties that appeals Q-01(IM)-576-09/11 and Q-01(IM)-577-09/11 be heard together and the decision in Q-01(IM)-576-09/11 shall bind Q-01(IM)-577-09/11.
6. The appeal was proceeded with one issue only concerning section 2 of the Public Authorities Protection Act 1948 (Revised 1978) Act 198. In the High Court, the Respondents/Defendants
had, by Summons in Chambers dated 16.6.2011 (End. 50), successfully applied to strike out the Appellants / Plaintiffs writ on grounds, inter alia, that the claims and reliefs sought by the Appellants/Plaintiffs are barred by section 2 of the Public Authorities Protection Act 1948 and/or Item 97 of the Schedule to the Limitation Ordinance (Cap 49) and/or section 202 of the Land Code 1958 (Cap 81). The Appellants/Plaintiffs appealed to this Court.
7. The case for the Respondents/Defendants was that the Provisional Leases for Lot 48 and Lot 52 Bok Land District were issued under the Land Code by the Superintendent of Lands and Surveys, Miri acting in accordance with such written law on 5.4.1988 and 28.9.1988 and that prior to that Timber Licence No. T/0027 and Timber Licence No. T/0072 had been issued for harvesting of trees without any objection or complaint from the Appellants/Plaintiffs or any of them or any of those whom they purportedly represent. They relied upon Alias Bin Ismail v Hairuddin Bin Mohamad & Anor.  4 CLJ 669 CA, Jok Jau Evong & Ors v Marabong Lumber Sdn Bhd & Ors  2 CLJ (Rep) 169 HC, Balare Jabu & Ors v Merawa Sdn Bhd &
Ors [Suit No 22-21-2007] HC, Baltim Timber Sdn Bhd v Director of Forests & Ors [19961 4 MLJ 103 HC, Tasia Sdn Bhd v Golden Approach Sdn Bhd  3 CLJ 751 FC.
8. Section 2(a) of Act 198 provides:
“Where, after the coming into force of this Act, any suit, action, prosecution or other proceeding is commenced in the Federation against any person for any act done in pursuance or execution or intended execution of any written law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority the following provisions shall have effect:
(a) the suit, action, prosecution or proceeding shall not lie or be instituted unless it is commenced within thirty-six months next after the act, neglect or default complained of or, in the case of a continuance of injury or damage, within thirty-six months next after the ceasing thereof;
(b) … “
9. Before this Court, the Appellants/Plaintiffs submitted that the High Court erred in holding that the Plaintiffs’ claims and the reliefs sought are barred by reason of section 2 of the Public Authorities Protection Act 1948. They rely upon the submission that the act of trespass claimed was subsisting and continuous as the date of the writ and statement of claim.
10. In Director Of Forests, Sarawak & Anor v Balare Jabu & Ors And Another Appeal  7 CLJ 685 FC, the Federal Court held:
” We also noted that cl. 29(a) of the licence clearly stipulated thus:
This licence is granted without prejudice to the exercise of any right admitted or privilege conceded to the natives under the Forests Ordinance.
During the hearing we drew the attention of the parties to it and all agreed that the licence was subject to the respondents’ NCR, if any.
 As such we are of the view that as long as the licence remains valid, it continues to be subject to the respondents’ NCR, if any, and rights in respect of the land concerned. Accordingly, the second limb of s. 2(a) PAPA applies, is a continuing injury or damage upon the NCR and rights of the respondents. (see: Ronald Beadle v Hamzah HM Saman & Ors [20071 1 CLJ 421 and Ibrahim Mohideen Kutty v Timbalan Menteri Dalam Negeri & Ors 12003] 6 CLJ 144). The respondents’ action is therefore well within time since time would only begin to run from 30 March 2012.”
11. The Respondents/Defendants sought to distinguish the above decision of the Federal Court on the ground that:
a. There is no similar provision as mentioned in para  in Director Of Forests, Sarawak & Anor v Balare Jabu & Ors And Another Appeal (supra).
b. That the pleaded case was a single act of granting of the lease which “extinguished” their NCR.
No Similar Provision as in para  Director Of Forests, Sarawak & Anor v Balare Jabu & Ors And Another Appeal (supra).
12. It was submitted that there was no provision in the leases similar to the provision quoted at paragraph .
13. The submission was in our view irrelevant, as the leases were between the State Government and the respective defendants to whom the leases were issued. The provision operates as a limitation to the lessor’s responsibility from claims from the lessee, and the lessee takes the risk of liability where they trespass on lands the subject of an NCR claim. Indeed without a similar provision it implies to the lessee that there are no NCR claims.
14. All these are however irrelevant to the natives who claim to hold the land under NCR rights. By the Federal Constitution their rights to the land, as property rights are undertaken to be protected by the State of Sarawak as well as the Federation of Malaysia. These lands having been acquired through NCR rights
to provide for their livelihood, it is no surprise that their support and allegiance to the State of Sarawak that sought to join the Federation of Malaysia was founded upon their NCR rights being protected under the Federal Constitution. Thus, their protection is not solely from the laws of Sarawak but also from Article 13 of the Federal Constitution which provides:
Rights to property
13. (1) No person shall be deprived of property save in accordance with law.
(2) No law shall provide for the compulsory acquisition or use of property without adequate compensation.
15. Both the Government of the State of Sarawak and the Government of the Federation of Malaysia have a duty to protect their NCR rights.
16. Property rights, to be given meaning, necessarily includes all rights associated with the property. It includes the right to enjoy it, to enjoy the benefit of it and all that is on, in and under it. Whether or not there is any clause as in paragraph  of Director of Forests, Sarawak & Anor v Balare Jabu & Ors
And Another Appeal (supra) is irrelevant to the native whose land, held under NCR rights, is encroached or trespassed upon, or taken and leased to another even if that other is a native. We observe that in the lease all payments are to the State of Sarawak and not to the natives holding NCR rights to the land.
That the pleaded case was a single act of granting of the lease which “extinguished” their NCR
17. The submissions made that the Appellants’/Plaintiffs’ pleaded case, that the lease was in disregard of the Appellants’/Plaintiffs’ rights, that the grant of the lease was unconstitutional and amounted to extinguishment of their NCR rights over their NCR land was of a single act served no other purpose than to seek to establish that time for the purposes of limitation began to run from the dates the leases were granted on 5.4.1988 and 28.9.1988 and that the actions filed in 1997 were time barred. It was submitted that the Appellants’/Plaintiffs’ claim was but a declaration sought to nullify the issue of the leases to the two companies.
18. The submission is, in our view, without merit for the reason that it is trite that time begins to run from the time the cause of action accrues, and not the act the fact of which is one of the facts in support. Indeed in this case as correctly pleaded, the single act was the foundation for more than one cause of action.
19. We observe, however, that the submissions made nothing at
all of the obvious, that the lands to which the
Appellants’/Plaintiffs’ claim NCR rights were leased and not alienated. Conceivably, where it is established the Appellants/Plaintiffs did in fact have acquired NCR rights, the State should have acquired the land from the
Appellants/Plaintiffs before it could lease it out to a third party, or if the State erred in leasing it out, there is a continuing damage until the error is corrected and the lands returned to the Plaintiffs.
20. At the time of the 1st Rajah in Sarawak, 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. That decision is consonant with the views of the 1st Rajah expressed in “The Private Letters of Sir James Brooke, K.C.B., Rajah of Sarawak ” edited by John C Templer Esq. Volume 1 Chapter 1, where the editor explained at page 2 that 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.”
21. Similar views were expressed in In re The London and
Whittaker Claims Act 1871 (1872) 2 NZCA 41.
22. 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.
23. That view was rejected in New Zealand Maori Council v Attorney-General  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.”
24. Although there is no treaty by the 1st Rajah in Sarawak, it
is noted that the first order affecting land was made by the 2nd Rajah by the Rajah’s Order of 1875. In our view, in the light of the Lands Case and Mabo v Queensland [No 2] (1992) 175 CLR 1; 66 ALJR 408 (Mabo [No 2] the interpretation of the effect of assumption of sovereignty expressed in Wi Purata v The Bishop of Wellington (supra) in the second half of 1870’s no longer has a place in the common law.
25. That being the case, and in the light of the protection under Article 13 of the Federal Constitution, the rights to land acquired under NCR are such as according to the law and the time it was acquired, without diminution as to its scope and extent by subsequent legislation without adequate compensation. Extinguishment does not arise as common law no longer recognise NCR land held on sufferance, and if extinguishment is applied it would be contrary to Article 13 if without adequate compensation.
26. From time to time we find submissions that a fact or issue is not pleaded. It is important to appreciate that the rule of
pleadings is to expedite the judicial resolution of a case. Thus the law need not be pleaded, but the cause of action and the facts in support must be pleaded. This is for the reason that –
a. justice according to law is founded necessarily upon the application of the true and correct facts to the law. It is safe to rely upon a fact if it is not disputed.
b. A safe finding of fact can be made upon a disputed fact if the evidence relied upon is not disputed or if disputed, is shown to be safe to be taken into consideration.
c. That “safety” is founded solely upon the facts with sufficient particulars, or where applicable, the evidence, having been disclosed to the other party who then has the opportunity to check and verify the fact or the evidence, for then only, in the event of a dispute thereon, the parties are in a position to address the reasons for the disagreement on the fact or the
evidence, and enable the court to make a judicial decision thereon.
27. But it is clearly never intended that style of pleading or failure to plead should become “stumbling blocks” standing in the way of justice. The rules of procedure is not intended to provide blinkers to prevent the Courts from seeing its way to a fair and just decision. This is evident from Order 15 of the Rules of the High Court 1980 that pleadings may be amended at any time before judgement is delivered, and that the amendment may be made on the motion of the Court. Even if a fact has not been pleaded, a finding may be made thereon if the facts relevant thereto has been admitted into evidence before the Court. The fundamental rule is that a Court makes its decision based upon the application of law to the facts and evidence before it and no other.
28. Thus if an objection of “not pleaded” is to be successful, the party raising that objection must demonstrate that the failure to disclose the fact in the pleadings denied that party an
opportunity to check and verify that fact, thereby rendering it unsafe to rely upon.
29. Considering the pleadings as a whole and bearing in mind that the pleadings could still be amended if necessary, we find no reason to strike out the writs and statement of claim on this ground also.
30. We found no basis to distinguish Director of Forests, Sarawak & Anor v Balare Jabu & Ors And Another Appeal
31. Accordingly, we allowed the appeal with costs fixed at RM10,000.00, refunded the deposit, and remitted the case to the High Court for trial.
(DATUK ABDUL WAHAB BIN PATAIL) Judge
Court of Appeal of Malaysia Putrajaya
Dated: 24th December 2014
For the Appellants:
For the 1st & 2 nd Respondents:
Mr. Baru Bian &
Mr. Simon Siah Sy Jen
Messrs BARU BIAN Advocates No. 6, 2nd Floor, Lot 5430, Block G RH Plaza, Jalan Lapangan Terbang 93350 Kuching, Sarawak
Datuk J.C. Fong, Mr. Talat Mahmood Abdul Rashid, Ms Mayanah Adenan,
Mr. Leonard Shim & Mr. Wong Duk Ying
State Attorney-General’s Chambers 15th & 16th Floors, Wisma Bapa Malaysia Petra Jaya, 93502 Kuching, Sarawak