Superintendent Of Lands And Surveys Department Sibu Division&1lagi V Usang Ak Labit&3lagi


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CIVIL APPEAL NO. Q-01-138-03/2012




















(suing on behalf of themselves and all other proprietors, occupiers, holders and claimants of native customary lands situate at Rh Garai, Rh Siew, RH Memuas, Rh. Ngindang, Rh. Gedong, Rh. Chendai, Rh. Kuching, Rh. Tabor, Rh. Encharang and Rh. Lipu Ak Ali, C/O Rh. Uta Ak Garai, P.O. Box 89259, Mini Pos Selangau, Sibu Division, Sarawak.)








CIVIL APPEAL NO. Q-02-661-03/2012
















(suing on behalf of themselves and all other proprietors, occupiers, holders and claimants of native customary lands situate at Rh Garai, Rh Siew, RH Memuas, Rh. Ngindang, Rh. Gedong, Rh. Chendai, Rh. Kuching, Rh. Tabor, Rh. Encharang and Rh. Lipu Ak Ali, C/O Rh. Uta Ak Garai, P.O. Box 89259, Mini Pos Selangau, Sibu Division, Sarawak.)




In the Matter of Sibu High Court Suit No. 21-1-2010




1. Usang Ak Labit


2. Luis Ak Libau


3. Semuel Ak Genta


4. Siew Anak Libau


(suing on behalf of themselves and all other proprietors, occupiers, holders and claimants of native customary lands situate at Rh Garai, Rh Siew, RH Memuas, Rh. Ngindang, Rh. Gedong, Rh. Chendai, Rh. Kuching, Rh. Tabor, Rh. Encharang and Rh. Lipu Ak Ali, C/O Rh. Uta Ak Garai, P.O. Box 89259, Mini Pos Selangau, Sibu Division, Sarawak.)


– Plaintiffs






1. Rosebay Enterprise Sdn Bhd


2. Superintendent of Land And Survey


Department Sibu Division – Defendants




Abdul Wahab Patail, JCA Clement Allan Skinner, JCA Dr. Hamid Sultan Abu Backer, JCA


Date of Decision: 18 December 2013 GROUNDS OF JUDGEMENT


[1] The High Court in Sibu delivered its decision on 17.2.2012 in Suit No. 21-1-2010. These appeals arose therefrom.


[2] The four Plaintiffs were Usang Ak Labit, Luis Ak Libau, Semuel Ak Genta and Siew Anak Libau (“1st, 2nd, 3rd and 4th Plaintiffs respectively”), suing on behalf of themselves and all other proprietors, occupiers, holders or claimants of native customary Lands situated at Rh Gorai, Rh. Siew, Rh. Memuos, Rh. Ngindang, Rh. Gedong, Rh. Chendoi, Rh. Kuching, Rh. Tabor,




Rh. Encharang and Rh. Lipu Ak Ali, c/o Rh. Uto Ak Gorai, P.O. Box 89259, Mini Pos Selangau, Sibu Division, Sarawak).


[3] The Plaintiffs named Rosebay Enterprise Sdn Bhd, the Superintendent of Lands And Surveys, Sibu Division and the State Government of Sarawak as the 1st, 2nd and 3rd Defendants respectively.


[4] In that decision, the High Court dismissed the claim by the 1st Plaintiff and judgment was granted in favour of the 4th Plaintiff. No specific orders were granted or made against the 2nd and the 3rd Plaintiffs. We reproduce below the orders made by the High Court:


“1. The 1 st Plaintiff’s claim be dismissed with cost;


2. A declaration that the 4th Plaintiff has native


title and/or native customary rights and/or usufructuary rights over the entire area of land now covered by Lease of State Land Lot 13;




3. A declaration that the 1st Defendant and/or its servants or agents had trespassed upon the 4th Plaintiff’s native customary land;


4. A declaration that the Lease of State Land Lot 13 by the 2nd and 3rd Defendants is subjected to the native title and/or native customary rights and/or usufructuary rights of the 4th Plaintiff in or over the native customary land;


5. That the 1st Defendant and/or its employees, servants, agents to be restrained from trespassing, clearing, using or occupying the 4th Plaintiff’s native customary land;


6. That the 4th Plaintiff be given forthwith vacant possession of their native customary land;




7. Damages to be assessed by the Deputy or Senior Assistant Registrar in the Plaintiffs’ native customary land;


8. Costs be to the 4th Plaintiff; and


9. Costs be to the 1st, 2nd and 3rd Defendants against the 1st Plaintiff.”


[5] Against that decision, Rosebay Enterprise Sdn Bhd (“1st Appellant”) filed Civil Appeal No: Q-02-661-03/2012 and the Superintendent Of Lands And Surveys, Sibu Division (“2nd Appellant”) and the State Government of Sarawak (“3rd Appellant”) filed Civil Appeal No: Q-01-138-03/2012; and we refer to the Appellants hereafter by these descriptions separately and as “Appellants” collectively.


The Appeals


[6] At the appeal, this Court was informed that the 2nd and 3rd Appellants had filed discontinuance against the 1st, 2nd and




3rd Respondents since no orders had been granted in their favour.


[7] The remaining Respondent in appeal No. Q-01-138-03/2012 is therefore 4th Respondent Siew ak Libau. This is also correct for the 1st Appellant in Civil Appeal No: Q-02-661-03/2012.


Basic Approach to NCR Cases


[8] As is evident, Suit No. 21-1-2010 concerns a claim of a breach of native customary rights (NCR) over land. Between the denial of a native’s NCR right to land, to whom it is not mere asset but upon which his livelihood depends, and protecting the State from being made the victim of a false claim, these cases require anxious consideration to avoid mis-appreciation of the facts and thus injustice to one party or the other.


[9] Without a structured and systematic approach, the adversarial type of litigation descends from the level of persuasion towards a detached and objective appreciation of facts and evidence and decision on the NCR claim in accordance with law as




submissions to a court of law and justice ought to be, into an imbroglio of effective sounding argument but which offers no assistance towards determination of facts correctly. This is particularly important to prevent the claims to native customary rights over land from being exploited for collateral purposes against the authorities who act as the executive arm of the State of Sarawak.


[10] It is best, therefore, in NCR cases to approach such a claim broadly in the following steps:


(a) the identification of the area of alleged encroachment into the land over which NCR over land (“NCR land”) is claimed;


(b) the bona fides of the claim to the NCR right;


(c) whether the particular NCR right relied upon is a right to the land over which the right is exercised; and,




(d) where relevant, what was the NCR right to land that can be acquired.


[11] The reasons are:


(a) If the area of alleged encroachment is not or cannot be identified, there is nothing to be considered as possible encroachment.


(b) If the claim made is not bona fide, for example it is false or purely opportunistic, or that he does not belong to a race that is native to Sarawak, there can be no basis for any claim of any NCR right over land.


(c) Given that native customary rights could range between communal, familial and individual on the one hand, and on the other, to the right to pass and repass through land, right of access to land for various purposes and rights to land cleared and cultivated. If the right is one that can be




separated from the land over which it is exercised, it cannot be a right to the land.


(d) The NCR right over land that can be acquired under the Laws of Sarawak was varied over time as the law was changed.


Identification Of The Area Of Alleged Encroachment


[12] In Suit No. 21-1-2010, a map of the area was appended to the Statement of Claim. We reproduce it below:




[13] Objection was made that it was not a licensed surveyor and should not be used. We are of the view it is to illustrate the Statement of Claim, and at the end of the day, the map is not contradicted by the aerial photographs below when maps were superimposed by the Appellants.


[14] The largest shaded area covers approximately 11,822.26 hectares. This is the area over which the NCR claim over land is made. The land comprised in the next smaller and somewhat angular boundary on the map was comprised in a provisional lease of Lot 3 Pelugau Land District. This was later cancelled and replaced with a provisional lease of the land in the smallest of the three areas marked on the map. That provisional lease was described as a lease of Lot 13 Pelagau Land District (Lot 13) finally issued to the 1st Appellant covering about 4270 hectares.


[15] The 1st Appellant is the registered holder of Lot 13. The Plaintiffs alleged that the provisional lease of Lot 13 affects and cover the Plaintiffs’ native customary land and hence they




sought the respective declarations and orders in the Statement of Claim.


[16] The above map shows clearly that Lot 13, with the exception of a small area in the lower corner on its left, is largely within the claimed NCR land. The area of alleged encroachment is thus clearly identified in the Statement of Claim to be in the lower part of the land area over which NCR is claimed. That then is the land area the subject of the appeal before this Court.


The Bona Fides Of The Claim To The NCR Right to the Land:


I. Status as Iban and Natives of Sarawak


[17] The Respondent and the persons he represented had asserted in the Statement of Claim that they were Ibans and were natives of Sarawak.


[18] From the statements of defence, some limited facts were admitted by the Appellants while other assertions were denied, the Plaintiffs put to strict proof. To this assertion that they are Ibans and natives of Sarawak, it was pleaded in the defence




that the Appellants had no knowledge and put the Plaintiffs to strict proof.


[19] It is trite that denials and putting the plaintiff to strict proof does not change the standard of proof required in civil cases, which remains as upon a balance of probabilities and is upon the party who relies on that fact to succeed (s. 101, 102 & 103 Evidence Act). An assertion that is inherently improbable contributes nothing to the balance. But any evidence that is admitted into evidence, however little it may be, adds to the balance, and if there is no evidence adduced to contradict and outweigh it, it is accepted that he has discharged the burden of proof that is upon him. The key word in the phrase “balance of probabilities” is not the word “probabilities”, but the word “balance”. This explains the principle of the shifting of the balance, that once a plaintiff has adduced some evidence that is not incredible, the burden shifts to the other party to adduce evidence to contradict it. He needs to adduce only sufficient evidence to outweigh the evidence adduced by the plaintiff. But




if he fails to do so, then the balance of probabilities is in favour of the plaintiff.


[20] It is fact that Ibans are a race native to Sarawak. The question was whether the Respondent and the residents of Rumah Siew were Ibans. Examination of the testimony of the Respondent who came forward to testify as PW2 shows no challenge as to whether he and the residents of Rumah Siew were Ibans or not. Thus, although the Respondent was put to strict proof, he had come forward and the challenge was abandoned. Obviously, if he came forward and looked like no Iban looks-like, or he looked like an Eskimo, he would have been challenged on whether he was Iban. Therefore, it is fair to infer and conclude that since he came forward, held a Malaysian identity card, and was not challenged, his assertion he and the residents he represents are Iban and natives of Sarawak is accepted.


[21] The point is that once shown that they are Ibans and natives of Sarawak, their claim to the native customary rights is not inherently incredible.




[22] In our view, there is more than sufficient evidence to establish the bona fides of the Respondent and the residents of Rumah Siew to maintain an NCR claim as Ibans and natives of Sarawak. Whether they succeed in their NCR claim to land is a separate matter.


II. Locus Standii


[23] Instead, the challenge was as to The Respondent’s locus standii.


[24] The learned trial Judge addressed the question of locus standii. The Respondent herein as PW2 had admitted in crossexamination that he was only representing himself and the residents of his longhouse. The learned Judge therefore did not err in holding that the Respondent was not representing the other Plaintiffs and the residents of the other longhouses, but was only representing himself and the residents of his longhouse, Rumah Siew.




[25] Since the litigation was commenced jointly, to exclude the claims of the other Plaintiffs because they did not come forward to testify, is a mechanical application of the law of evidence. This was compounded by the error of not asking the Respondent whether he knew the other Plaintiffs and that they represented the residents of the other longhouses mentioned in the claim. Be that as it may, it is irrelevant for this appeal since the 1st to the 3rd Plaintiffs had not appealed, and are therefore not before this Court.


III. The Cleared, Cultivated and Claimed Areas


[26] Another aspect of the bona fides of their claim is the fact that Rumah Siew and the cleared and cultivated area are outside and some kilometres from Lot 13.


[27] The temuda of an Iban longhouse comprises cleared area under cultivation (“tanah umai”) and lands left to fallow after cultivation, and the term “pemakai temuda” includes “pulau galau”: see Director of Forest Sarawak & Anor v TR Sandah & Ors Civil Appeal Q-01-463-2011 (unreported).




[28] To appreciate this part of the submissions, we turned to the “Restricted. For Official Use Only” aerial photographs and superimposed maps compiled by the Director of Lands and Surveys.


[29] The aerial photograph taken in 1951 and the composite aerial photograph taken in 1963-1966 are as follows:


I 1964 – 23/64 ( AP ; 2683 – 2687 )|


1966 – 88/SK/9 ( AP ; 78 – 86 )


[30] The above two aerial photographs show enclosed in the area roughly matching the Lot 13 the area planted with oil palm. The entirety of the area in Lot 13 or planted with oil palm remained within the area claimed under NCR. The maps superimposed on the official aerial photographs taken as far back as 1951 does not conflict with the map in the Statement of Claim.


[31] Within the area claimed under NCR, the light area is where longhouses are located. Rumah Siew is indicated first above in the map from the Statement of Claim at the lower end of the vertical line drawn. It would be within the light area in the two aerial photographs. From the scale provided on these maps, though not reproduced in the reproductions above, it is possible to estimate the distance of Rumah Siew to the nearest border of Lot 13 is about 2.5 kilometres, and to the furthest corner of Lot 13 is about 16.5 kilometres. From the right-hand most of the light area to the furthest end of the claimed NCR area on the right is about 8 kilometres.




[32] The light areas coincide with the valleys of the rivers and the streams, consistent with areas suitable for agriculture by clearing and cultivation, while higher elevations remained uncleared. The aerial photographs also show expansion of the cleared and cultivated areas between 1951 and 1966. The same photographs show the flow of rivers and streams generally from the right to the left, mute explanation as to why the cultivated and the claimed area are not in a compact formation but elongated. It was a form dictated by the topography, as Lot 13 itself is.


[33] The aerial photographs show that up to 1966 at least Lot 13 remained under forest cover, and in the absence of evidence to the contrary it is safe to accept the area comprised in Lot 13 remained under forest cover until leased to the 1st Appellant.


[34] Bearing in mind that a pulau galau is an area maintained under forest cover in order to harvest, collect or otherwise obtain forest products, the claim by the Respondent that the area in Lot 13 is part of their “pulau galau” is not inconsistent with the




official aerial photographs produced by the Appellants. The location of the claimed pulau galau area within which Lot 13 is located is not inconsistent with the claim since the pulau galau area is adjacent to the cleared and cultivated areas. No evidence was produced by the Appellants to contradict these claims and evidence. In the circumstances, it must be held that they had so proved upon a balance of probabilities and have discharged the burden placed upon them under the Evidence Act 1950.


Whether The NCR Right Claimed Is A Right To The Land


[35] A distinction was sought between a native custom and customary right to land.


[36] We accept that the term native custom is a wide term that include native social customs. We accept as reasonable also that social customs are not necessarily related to land.


[37] The NCR claim to the area in Lot 13 not as a native social custom, or custom of “pemakai umai” and/or cultivated land left




to fallow, but under the native custom of “pulau galau”, of setting aside an area, in this case, under the custom of the Ibans, under forest cover from which they derive various forest produce and products.


[38] What is pulau galau has been explained by this Court in Director of Forest Sarawak & Anor v TR Sandah & Ors (supra). It is true that not all produce or products in a pulau galau are derived directly from the land. But it stands to reason that produce and products derived directly from the land, be it its mineral or formation such as caves or cliffs for birds’ nests, necessarily means it is a right related to land for without the land the right to the produce and products could not be enjoyed, benefited from or accessed. Equally true and for the same reason, for produce or products derived indirectly, such as woods, fruit, seeds such as engkabang or ellipe nuts, resin, vegetables, honey from beehives on tualang trees, and medicinal plants from the forest in the pulau galau. Without the land, the native customary right of the use of pulau galau can no longer be exercised. The custom of pulau galau is therefore




a native custom so inextricably wrapped and tied up with the land it is upon that it is as much a native custom to land as the tanah umai and the fallow lands in the temuda. Hence, it has always been part of the native custom that the “pulau galau” is part of the menoa or pemakai menoa (also referred to as “pemakai temuda”).


[39] There is no evidence adduced for its part of the scale in the “balance of probabilities” by the Appellants that the Respondents did not exercise any rights under the custom of “pulau galau”, or that any right they exercised thereon was not inextricably wrapped and tied up with the land.


[40] We hold, therefore, that the claim to the land in Lot 13 based upon the native custom of “pulau galau” is a claim of a native customary right to land, and that the claim has been proved upon a balance of probabilities.




What Is The NCR Right To Land That Can Be Acquired


[41] The Appellants submitted to this Court the development of the law as to land in Sarawak from 1875 the various Orders, Circulars and Ordinances, the Tusun Tunggu to the Land Code 1958 (Sarawak Cap. 81). This was addressed in Director of Forest Sarawak & Anor v TR Sandah & Ors Civil Appeal (supra). The analysis in that case demonstrated the progressive restriction on what can be acquired under “native customary rights” until today. But through it all, native customary rights to acquire land had at all times been recognised, and the State undertook to protect the natives’ rights to do so.


[42] We observe there is a clear distinction between the State being the State of Sarawak, and the Government of the State of Sarawak who is the executive arm or the custodian of the executive powers of the State which carries out the responsibilities of the State. It goes without saying that the rights guaranteed by the State under the Constitution in respect of native rights must be carried out by the Government of the




State. In so doing, the Government must therefore determine and where valid recognise the NCR rights of the natives of the State. Likewise, the legislature of the State with regard to the laws it passes in respect of native rights. With such obligation, not only acts contrary to or in breach of the constitution null and void as being unconstitutional, but that acts in excess of the purposes may well place the government and the legislature of the state under similar attack: see as example Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3.


[43] Returning to the instant case, and from the development of the State laws in relation to land and the recognition that land could be claimed under native customary rights, we are of the view


(a) that land without apparent habitation is not necessarily State Land and must be subject to native customary rights previously acquired thereon; and




(b) the native customary right to the land that can be acquired at any point of time must be in accordance with the law at the time the right was acquired.


[44] Now, the pleaded case per paragraphs 4 and 5 of the Statement of Claim is as follows:


“4 (c) The Plaintiffs acquired the said rights over the said native customary lands by the following methods:


i) custom, laws, tradition and practices of the Iban community in Sibu, Sibu Division, Sarawak; and/or


ii) by occupation of the said native customary land; and/or


iii) by felling, clearing, using and cultivation of the said native customary lands; and/or




iv) by all the methods as specified In the Sarawak Land


Code Cap. 81;


5. Alternatively, the Plaintiffs aver that they have acquired the said rights in the said native customary lands by way of encouragement or assurance or guarantee and/or promises made by the 3rd Defendants and/or its predecessors to the Plaintiffs and their ancestors to settle, occupy, cultivate and use the said native customary lands in that:


i) The 3rd Defendant and/or its predecessors had recognised, accepted and/or demarcated the communal native customary land boundary of the Plaintiffs with that of neighbouring communities.


ii) The 3rd Defendant and/or its predecessors had and continues to grant agricultural subsidies and assistance to the Plaintiffs and their ancestors to cultivate various trees and crops over the said native customary lands;




iii) The 3rd Defendant and/or its predecessors had and continues to appoint ”Ketua Kaum/Masyarakat” (community chiefs) for the Plaintiffs’ said longhouses; and


iv) The 3rd Defendant, its agent(s) or servant(s) had and still continues to implement or provide members of the Plaintiffs’ longhouses with various minor rural projects, socioeconomic and infrastructural projects and services on the said native customary land.”


[45] The defence of the Director and the Government is that no admissions are made in respect of paragraph 4 and the Respondents were put to strict proof in respect of paragraph 5.


[46] The Respondent Siew ak Libau gave a witness statement (as PW2) affirmed on 8/3/2011 through the interpretation of one Nicholas Bawin Anggat, before a Commissioner for Oaths. This Nicholas Bawin ak Anggat, a Deputy President of the Majlis Adat Istiadat Sarawak between 12/8/1992 until February 2005,




also gave a witness statement as PW1 as an expert on Iban adat.


[47] The Respondent Siew ak Libau averred in his witness statement:


“4. The residents of Rumah Siew and Rumah Gedong, share a common origin and history. Our ancestors had settled, cultivated and/or occupied all the areas within the said NCR Land since time immemorial. We claim NCR over the said NCR land by virtue of our adat or customs as Ibans of Sarawak, which is the felling of virgin jungles, the farming of the same thereafter and the occupation of it to this day. We have never abandon our NCR over the said NCR Land we are now the 3rd and/or 4th generation since our ancestors led by their Berinau ak Bangan who with his 6 sons and a few other families first came and occupy the said NCR land from Batang Skrang.




5. Our said ancestors started occupying the said NCR land area since the late 1800s to this day. Berinau ak Bangan was my great grandfather who came with the other families to occupy the said NCR land. The first Tuai Rumah at that time was TR Dangat ak Bonsu.


6. Several old longhouses sites or “tembawai” situated around the area are; Tembawai Nitar, Tembawai Sikup, Tembawai Rantau Deras, Tembawai Gudang Garam, Tembawai Lubok Angkong, Tembawai Nanga Setawak, Tembawai Nanga Tawong dan Tembawai Nanga Lingeh.


7. I was originally from Tembawai Gudang Garam which was led by TR Dangat ak Bonsu. In the year 1975, the longhouse under was split into two; one headed by TR Gedong ak Embuas which is now living in Rumah Gedong and another group led by me which is now living in Rumah Siew.




8. The locations of these old longhouses sites or “Tembawais” are as marked in the locality sketch map marked “M” referred to above.


9. We the Plaintiffs further claim that we have acquired and/or inherited their rights, interest and title over the said NCR Land by virtue of our adat, as Ibans of Sarawak. We have been in occupation of the said NCR Land uninterrupted since our ancestors Berinau ak Bangan came to settle on the said NCR Land more than one hundred years ago.”


[48] Cross-examination of PW2 was conducted by Mr. George Lim for the 1st Appellant and SLO Mr. McWillyn for the 2nd and 3rd Appellants. We do not propose to reproduce the crossexamination. It suffices to say that though challenged in crossexamination, the witness did not concede. More importantly, no evidence to substantiate the assertions made in the challenges during cross-examination was produced by the Appellants. In the event the balance of probabilities having inclined remained




inclined in favour of the Respondent, and the Court must conclude that the Respondent had discharged the burden that is placed upon him under the Evidence Act 1950 as the plaintiff, that occupation began in the 1800s, at a time when no limitations on the acquisition of native customary rights existed because the various orders, circulars and the Sarawak Land Code 1958 had not come into existence.


[49] For the foregoing reasons, we dismiss the appeal with costs fixed, unless otherwise agreed, in the sum of RM10,000 by the 1st Appellant, and the 2nd and 3rd Appellants respectively.








Court of Appeal, Malaysia Putrajaya


Dated: 18th December 2013






For the Appellants:


For the Respondent:


Messrs Batternerg & Talma


Nos. 12 & 14, 1st Floor Jalan Chew Geok Lin 96000 Sibu, Sarawak


Messrs Baru Bian Advocates & Solicitors


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



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