in the court of appeal of malaysia (appellate jurisdiction) civil appeal no. q … ·...

Civil Appeal No. Q-01-19-01/2014

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IN THE COURT OF APPEAL OF MALAYSIA

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. Q-01-19-01/2014

BETWEEN

1. THE STATE GOVERNMENT OF SARAWAK 2. THE SUPERINTENDENT … APPELLANTS

AND 1. EMPIYU ANAK ASAN 2. SUMOR ANAK MEREDAN 3. SATAH ANAK MANG 4. DAPOR ANAK NYALU 5. DANGGOH ANAK TUBAI 6. AJAK ANAK INDIT 7. ANGIKANAK AMO 8. MAMAT ANAK GANI 9. UMIN ANAK JANTAU 10. MEHIN ANAK TIWEH 11. ENGKELAN ANAK ANGKAM 12. LADAI ANAK JUMAN 13. BAGONG ANAK SWEE 14. TIMAH ANAK GANI 15. GANI ANAK TARANG 16. KIAH ANAK AMU 17. BADI ANAK BAJIK 18. EJAU ANAK JANTAI 19. HILAM ANAK BANYAM 20. ENGSANGAI ANAK UPAI 21. PENI ANAK ENGKILAN 22. SUNBANG ANAK BUNGIN 23. CHAI ANAK SANYUT 24. LASU ANAK AGAU 25. SUANG ANAK EGIL 26. ROSLIND ANAK BULO 27. NGUMBANG ANAK ATONG 28. MELINA ANAK EMPARI


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29. AGING ANAK JUMAT 30. USIAK ANAK JUGING 31. JELICIA ANAK LUCHIR 32. BONIFACE ANAK BELILI 33. LUCHIR ANAK BUNGING 34. BUNYEH ANAK LUCHIA 35. UJANG ANAK JATI 36. INDET ANAK JUGI 37. LUA ANAK BELILI 38. MULANG ANAK BELILI 39. CLEMENT ANAK BELILI 40. JELIA ANAK LUCHIA 41. USIT ANAK JUING ... RESPONDENTS

(In the matter of Suit No. 22-39-2000(BTU) in the High Court in Sabah and Sarawak at Bintulu)

BETWEEN

1. EMPIYU ANAK ASAN 2. SUMOR ANAK MEREDAN 3. SATAH ANAK MANG 4. DAPOR ANAK NYALU 5. DANGGOH ANAK TUBAI 6. AJAH ANAK INDIT 7. ANGIK ANAK AMO 8. MAMAT ANAK GANI 9. UMIN ANAK JANTAU 10. MEHIN ANAK TIWEH 11. ENGKELAN ANAK ANGKAM 12. LADAI ANAK JUMAN 13. BAGONG ANAK SWEE 14. TIMAH ANAK GANI 15. GANI ANAK TARANG 16. KIAH ANAK AMU 17. BADI ANAK BAJIK 18. EJAU ANAK JANTAI 19. HILAM ANAK BANYAM 20. ENGSANGAI ANAK UPAI 21. PENI ANAK ENGKILAN 22. SUNBANG ANAK BUNGIN


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23. CHAI ANAK SANYUT 24. LASU ANAK AGAU 25. SUANG ANAK EGIL 26. ROSLIND ANAK BULO 27. NGUMBANG ANAK ATONG 28. MELINA ANAK EMPARI 29. AGING ANAK JUMAT 30. USIAK ANAK JUGING 31. JELICIA ANAK LUCHIR 32. BONIFACE ANAK BELILI 33. LUCHIR ANAK BUNGING 34. BUNYEH ANAK LUCHIA 35. UJANG ANAK JATI 36. INDET ANAK JUGI 37. LUA ANAK BELILI 38. MULANG ANAK BELILI 39. CLEMENT ANAK BELILI 40. JELIA ANAK LUCHIA 41. USIT ANAK JUING … PLAINTIFFS

AND

THE STATE GOVERNMENT OF SARAWAK THE SUPERINTENDENT LANDS & SURVEYS DEPARTMENT LEMBAGA TABUNG HAJI SEMAI MEKAR SDN BHD … DEFENDANTS (Decided by the High Court in Bintulu on 13th day of December, 2013)

CORAM:

TENGKU MAIMUN TUAN MAT, JCA ZALEHA YUSOF, JCA

ABDUL KARIM ABDUL JALIL, JCA


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JUDGMENT OF THE COURT

Introduction

[1] This is an appeal by the State Government of Sarawak and the

Superintendent of Land & Surveys, Bintulu (“the first and the second

defendants”) against the decision of the High Court at Bintulu in allowing

the respondents’ (“the plaintiffs”) claim for various declaratory orders and

consequential reliefs in respect of native customary rights (“NCR”) over

more or less 813.83 hectares of land (“the disputed area”).

[2] The disputed area was within the provisional lease issued by the

first and the second defendants to Lembaga Tabung Haji and Semai

Mekar Sdn Bhd (“the third and the fourth defendants”).

[3] The third and the fourth defendants filed a separate appeal against

the order of the High Court. For non-compliance with the rules of court,

their appeal however, was struck out.

The background facts

[4] The inhabitants of Rumah Remang, Sebungan, were issued with a

“Permit to fell virgin jungle” dated 24.4.1961 (“the permit”) under section

10(3) of the Sarawak Land Code (“the Land Code”). The permit reads:

“28 doors from Rumah Remang, Sebungan are hereby permitted

to fell hutan tua in the ulu Sebungan sa-belah kiri mudek from

Nanga Balim to the ulu”.


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[5] On 2.12.1996, the first and/or the second defendants (“the

defendants”) granted a provisional lease of State land described as Lot

2, Block 4, Seluzu Land District containing an area of 6,692 hectares to

the third and fourth defendants.

[6] The plaintiffs alleged that the provisional lease covered their NCR

land and that the provisional lease was issued without payment of

compensation or extinguishment of their rights and was therefore illegal

or unconstitutional.

[7] The plaintiffs filed a claim against the defendants, seeking for inter

alia, a declaration that they have NCR and native customary land over

the disputed area within the provisional lease; for re-possession of the

said native customary land and for damages.

[8] The plaintiffs pleaded that:

(i) they are Iban natives and are descendants of the inhabitants

of Rumah Remang, Sebungan;

(ii) they and their ancestors had been occupying cleared virgin

jungle at Sungai Selujuk/Balim/Ulu Sebungan and Bukit Bala

and had acquired and created NCR over the land cleared;

(iii) the rights so created were passed to them in accordance with

Iban custom; and

(iv) they and their ancestors had been occupying and cultivating

the land cleared.


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[9] The defendants maintained that the said provisional lease was

lawfully and properly issued under the Land Code and put the plaintiffs

to strict proof of their claim for their NCR.

Proceedings in the High Court

[10] To prove their NCR claim over the disputed area, several

witnesses testified for the plaintiffs. We do not propose to reproduce

their evidence except to highlight the evidence of some of the witnesses

as follows.

[11] Gani anak Tarang (PW1) who was about 76 years old at the time

he gave evidence, stated among others, that –

(i) he is the Tuai Rumah (TR) and that he was authorised by the

rest of the plaintiffs to testify on their behalf;

(ii) he is the fourth generation to have occupied and settled over

the NCR land;

(iii) in 1961, the plaintiffs were given a permit to clear the virgin

jungle at the Sungai Balim area; and

(iv) the younger plaintiffs’ claim is based on inheritance under Iban

custom whilst for the older plaintiffs’, the claim arises by the fact

that they had taken part in clearing the old jungle to create NCR

both before 1958 and under the permit given in 1961.

[12] PW1 further testified that before “we obtained the permit in 1961,

our ancestors had long ago cleared and created native customary rights

land at Ulu Sungai Sebungan.”. According to PW1, before him, there

was the first TR named Chabu who was succeeded by TR Umbar AK


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Galat. TR Umbar in turn was succeeded by TR Remang. In 1961, being

aware that no more NCR can be created after 1958, TR Remang applied

for a permit to clear the virgin jungle at Sungai Balim/Sungai Bala areas.

His application was approved and a permit dated 24.4.1961 was issued

to ‘28 doors from Rumah Remang’.

[13] Mamat ak Gani (PW7), stated that he inherited the NCR from his

ancestors who created the NCR three or four generations before him.

PW7 said he also has NCR created under the permit.

[14] Bagong Anak Swee (PW3) testified that all the plaintiffs share

common ancestors from Rumah Remang. PW3 further testified that the

areas at Bukit Bala had been cleared before 1958 and the areas were

cleared by the plaintiffs’ fathers and grandfathers. PW3 similarly stated

that he inherited the NCR from his ancestors.

[15] According to the plaintiffs, Rumah Remang had long ceased to

exist and from Rumah Remang there are now three (3) longhouses,

namely Rumah Usah, Rumah Gani and Rumah Luang and that under

Iban customs and traditions, all of them have the right to inherit the NCR

created by their ancestors from Rumah Remang. The plaintiffs

contended that there are no rival claims over the same parcel of lands

made by other third party. Hence, the disputed area certainly belongs to

the plaintiffs.

[16] For the defendants, evidence was led essentially that there is no

NCR in the provisional lease and that the provisional lease is covered by

Similajau Forest Reserve, which was de-gazetted before the provisional

lease was issued to the third and fourth defendants.


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[17] The defendants submitted that the permit is issued only to the 28

doors from Rumah Remang and not to other persons or other Rumah.

Therefore, a person who is not from Rumah Remang is not entitled to

the permit. It was also contended for the defendants that because the

permit was “to fell hutan tua”, the permit did not allow permit holders to

occupy the land and that the pemit to Rumah Remang could not be

inherited.

[18] In this regard the defendants relied on the case of TR Usah ak

Lutong and Ors v Lembaga Tabung Haji & Ors [2013] 4 MLJ 578 (“TR

Usah”), which concerned the same permit as in the instant appeal,

where the plaintiffs in TR Usah (“the related case”) claimed to have

created and acquired NCR over the area under the permit by virtue of

having that permit. This Court in the related case held inter alia, that

neither the terms of the permit nor the provisions of section 10(3) of the

Land Code allow the plaintiffs continuous occupation of the land and

without continuous occupation, there is no basis for customary rights

over the said land.

[19] Despite the submissions for the defendants that the learned judge

was bound by the decision of this Court in TR Usah (supra), the learned

trial judge decided otherwise. His Lordship distinguished the instant case

from the related case of TR Usah and found that the plaintiffs have

proved on a balance of probability their NCR claims over the disputed

area. His Lordship granted the declarations sought for and a

consequential declaration that the plaintiffs have repossession of the

disputed area.


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[20] Aggrieved by the High Court order, the defendants appealed to

this Court. We had unanimously allowed the appeal. We now give our

reasons.

The Appeal

[21] The gist of the defendants’ arguments was:

(i) that the claims by the plaintiffs over the disputed area of

813.83 hectares included the area of 521.592 hectares

claimed by TR Usah and the residents of his longhouse in

the related case;

(ii) on this factual basis, the learned judge ought to have held

that excluding the area claimed by TR Usah, the balance of

the disputed area would be only 232.238 hectares;

(iii) in the event that the plaintiffs claimed this balance of the

disputed area amounting to 232.238 hectares on the basis of

the permit issued, their claim would fail as the permit issued

to the 28 families from Rumah Remang, had been declared

to be invalid ab initio;

(iv) the doctrine of res judicata would have barred the plaintiffs

from contending that the permit was valid and that the permit

supported their claim to the disputed area or any part

thereof;

(v) the learned judge is bound by the doctrine of stare decisis to

follow the decision of this Court in the related case that the

permit did not entitle the plaintiffs to create NCR over the

disputed area and that the permit was invalid; and


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(vi) the plaintiffs’ claim to the disputed area of 813.83 hectares

based upon the said permit must therefore be dismissed for

the reasons given by this Court in the related case.

[22] On the alleged creation of NCR over the disputed area by the

ancestors of the plaintiffs prior to 1.1.1958, the defendants submitted

that there was no evidence that the disputed area was cleared by the

ancestors of the plaintiffs, which evidence is important as there are rival

claims to the disputed area or a substantial part thereof by the residents

of TR Usah’s longhouse in the related case. Even if the land within the

disputed area was cleared of virgin jungle, the defendants contended

that the evidence does not show it was the plaintiffs or their ancestors

who actually cleared the disputed area or any part of it particularly when

there are other claimants from TR Usah’s longhouse over the disputed

area.

[23] The defendants highlighted that the plaintiffs had also based their

claim on the basis that the disputed area or so much of it as not claimed

by the residents of TR Usah’s longhouse, that they had ‘unhindered’

access thereto for hunting, collection of forest produce and timber etc,

which is their practice of pemakai menoa. The only way that the

plaintiffs, being Iban by race, could create NCR to land is by clearing

virgin jungle and then occupying and cultivating that cleared area or by

way of inheritance or gift. In support of his proposition, learned State

legal counsel for the defendants, cited Bisi ak Jinggot @ Hilarion Bisi ak

Jenggut v Superintendent of Lands & Surveys Kuching Division& Ors

[2013] 5 MLJ 149.


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[24] Further, since the permit was granted to the 28 families from

Rumah Remang in 1961 to fell virgin jungle or hutan tua, the only

reasonable inference that could be drawn from the issuance of the

permit must be that the disputed area was still virgin jungle at the time

when the permit was granted in 1961. The learned judge ought to have

drawn such logical inference and since his Lordship did not, learned

State Counsel submitted that this Court is entitled to draw such

inference.

[25] As for inheritance, since the plaintiffs had failed to discharge the

burden of proof that their ancestors had cleared virgin jungle and

cultivated and thus created NCR over the disputed area, the defendants

contended that the plaintiffs had also failed to discharge the burden of

proving that the disputed area was inherited from their ancestors whose

rights thereto had not been proven.

[26] Learned counsel for the defendants further submitted that if the

basis of the plaintiffs’ claim is pemakai menoa, then the disputed area

must be communal land or land for the use of the whole community of

the longhouses and it cannot be for the plaintiffs only. It is not disputed

that the plaintiffs’ longhouses and the longhouses headed by TR Usah

are nearby to each other. If NCR had been created over the same, it

must be communal land or property for the communities of the

longhouses where the plaintiffs and the longhouses residents headed by

TR Usah anak Lutong, reside. Since the resident of the longhouses

headed by TR Usah were not before the court together with the plaintiffs

in the instant case, the learned judge erred in granting the plaintiffs the

declaration that they have NCR over the disputed area. Sanabung ak

Sampai & 2 Ors v Hydroflow Sdn Bhd [2014] 7 MLJ 429 and Binglai


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anak Buassan & 9 Ors v Entrep Resources Sdn Bhd & 3 Ors [KCH-22-

199/10-2011] were cited in support of the submission.

Submissions of the plaintiffs

[27] For the plaintiffs, the crux of the argument was that the learned

judge did not err in law or in fact in holding that the plaintiffs are entitled

to their claim for NCR in respect of land which was cleared of virgin

jungle and on which the plaintiffs and their ancestors have settled and

have been in continuous occupation. The learned judge also did not

commit any error in holding that NCRs were created in the instant case

by the felling of the old jungle pursuant to the permit.

[28] The plaintiffs submitted that the learned judge was correct in his

evaluation of the evidence pertaining to the issue on the existence of

NCR. The learned judge followed the approach and the legal principles

stated by the High Court in Agi Ak Bangkong & 2 Ors v Ladang Sawit

Bintulu Sdn Bhd & 5 Ors [2010] 4 MLJ 204, where David Wong Dak

Wah J (as he then was) cited the observation of Kirby P (as he then

was), sitting as the President in the Court of Appeal of the New South

Wales Supreme Court in Mason v Tritton [1994] 34 NSWLR 572 and

Lamer CJ in Delagamuk v British Columbia [1997] 3 SCR 1010, before

concluding that aboriginal rights are truly sui generis and demand a

unique approach to the treatment of evidence which accords due weight

to the perspective of aboriginal peoples.

[29] The learned trial judge was also correct to distinguish the instant

case from the case of TR Usah (supra) as in the instant case, the

plaintiffs had adduced evidence that they had continuously occupied and


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settled on the land they claimed to have NCR within the provisional

lease issued to the third and fourth defendants.

[30] The plaintiffs further submitted that the correct approach to adopt,

in the interpretation of the wording of the permit in the instant case, is

not to look at it by reference only to section 10(3) of the Land Code, but

to consider the wording of the permit by reference to all the relevant

provisions pertaining to such a permit, that is sections 10(3), 5(1) and

5(2) of the Land Code. Premised on the above, the plaintiffs contended

that the inhabitants of Rumah Remang, having obtained a permit under

section 10 of the Land Code to fell virgin jungle, were at liberty to occupy

the land cleared or to cultivate the land and thus create NCR.

[31] The above approach to interpretation, according to learned

counsel for the plaintiff, would give effect to the legislative object behind

the enactment of section 5(1) of the Land Code which is to provide for

the creation of NCR pursuant to a permit obtained under section 10

upon Interior Area Land “in accordance with the native customary law of

the community by any of the methods specified in subsection (2)” and

would not render the said provisions unworkable.

[32] It was thus argued for the plaintiffs that the learned judge did not

commit any error in finding that the permit not only accorded the 28

families of Rumah Remang the right to ‘fell hutan tua’ but also created

NCR by occupation of the land cleared. The above construction of the

legal effect and scope of the permit is supported by the rule of

interpretation set out in S. Bindra’s Interpretation of Statute 9th Edition:


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“It is settled rule of interpretation that all the provisions would be read

together harmoniously so as to give effect to all the provisions as a

consistent whole rendering no part of the provisions as surplusage.

Otherwise, by process of interpretation, a part of the provision of a

clause would be rendered otiose. Any other view would defeat the object

of the Act. The well-known principle of harmonious construction is that

effect shall be given to all the provisions and for that any provision of the

statute should be construed with reference to the other provisions so as

to make it workable.”.

[33] From the foregoing, the plaintiffs submitted that the learned judge’s

finding of fact that the plaintiffs were entitled to their claim for NCR was

clearly justified in the light of the evidence adduced, which finding of fact

should not be interfered with by this Court.

Our Decision

[34] There was no quarrel as such as regards the principles relating to

the standard or burden of proof and/or the correct approach to evaluate

the evidence for a claim based on NCR. The defendants’ complaint

essentially was that the learned trial judge failed to sufficiently evaluate

the evidence and that his Lordship’s decision allowing the plaintiffs’

claim could not be sustained in law and in fact.

[35] Before we proceed to consider whether the finding of the High

Court that the plaintiffs have NCR over the disputed area is correct in

fact and in law (which is related to the issue whether the learned judge

was correct in not following the decision of this Court in TR Usah

(supra), for convenience we reproduce below the relevant sections of

the Land Code.


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[36] Section 5 reads:

“Native customary rights

5. (1) As from the 1st day of January, 1958, 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 section 10, upon Interior Area land. Save as

aforesaid, but without prejudice to the provisions hereinafter contained in

respect of Native Communal Reserves and rights of way, no recognition shall

be given to any native customary rights over any land in Sarawak created

after the 1st day of January, 1958, and if the land is State land any person in

occupation thereof shall be deemed to be in unlawful occupation of State land

and section 209 shall apply thereto.

(2) The methods by which native customary rights may be acquired are –

(a) the felling of virgin jungle and the occupation of the land thereby

cleared;

(b) the planting of land with fruit trees;

(c) the occupation or cultivation of land;

(d) the use of land for a burial ground or shrine;

(e) the use of land of any class for rights of way; or

(f) any other lawful method.”.

[37] Section 10 of the Land Code provides:

“Occupation of different classes of land

10. (1) Without prejudice to section 5(2)(e) or to section 29 or to the

provisions of any written law, no person may occupy or exercise any rights or

privileges over any Mixed Zone Land or Native Area Land save under a valid

and subsisting document of title and, if the land in question is unalienated, any

occupier thereof shall be deemed to be in unlawful occupation of State land

and section 209 shall apply thereto.


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(2) No person whether a native or non-native may occupy any

Native Customary Land or any Reserved Land save under and in accordance

with the conditions applicable thereto by virtue of this or any other written law,

and any person in occupation thereof shall be deemed to be in unlawful

occupation of State land and section 209 shall apply thereto.

(3) Without prejudice to any law for the time being regulating the

prospecting for minerals and mineral oils or the taking of forest produce, any

native who, without a prior permit in writing from a Superintendent, occupies

any Interior Area Land or fells or attempts to fell virgin jungle upon any such

land or attempts to create customary rights upon any such land shall be guilty

of an offence: Penalty, in the case of a first offence, a fine of one thousand

ringgit and, in the case of a second or subsequent offence, imprisonment for

two years and a fine of five thousand ringgit.

(4) The occupation of Interior Area Land by a native or native

community without a permit in writing from a Superintendent shall not,

notwithstanding any law or custom to the contrary, confer any right or privilege

on such native or native community and, in any such case, such native or

native community shall be deemed to be in unlawful occupation of State land

and section 209 shall apply thereto.”.

[38] The plaintiffs’ claim pertained to both native customary land over

which they alleged NCR had been created by their ancestors prior to

1.1.1958 and also native customary land over which they alleged they or

their ancestors had created NCR after 1.1.1958 pursuant to the permit.

[39] In the High Court, the plaintiffs’ counsel described the nature of the

plaintiffs’ claim thus:

“... they inherited their NCR from their ancestors who had settled

and occupied their respective NCRs at least three (3) generations

before them. Their pre-1958 NCR were mostly in Ulu Sebungan


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and some in Sungai Balim area. The creation of NCR in Sungai

Balim area which in actual fact started before 1958 continued after

1958 with the grant of the permit.”.

[40] The learned trial judge accepted the evidence of the plaintiffs that

they inherited their NCR from their ancestors who had settled and

occupied the land for at least three generations before them, and that

their pre-1958 NCR were mostly in Ulu Sebungan and some in Sungai

Balim area. The learned trial judge also accepted the evidence of the

plaintiffs that there are no rival claims by any third party over the

disputed area claimed by the plaintiffs as their NCR land.

[41] In so far as the plaintiffs’ pre-1958 NCR claim is concerned, the

plaintiffs contended that their ancestors had cultivated and settled on the

disputed area and that the plaintiffs had continuously occupied and

settled on the land which was cleared of virgin jungle. At this juncture, it

is pertinent to highlight the evidence adduced for the plaintiffs namely

that their ancestors had long ago cleared and created NCR over the land

at the areas of Ulu Sungai Sebungan, Sungai Balim and Bukit Bala.

[42] It cannot be denied that the permit issued in 1961 was to grant

rights to 28 doors of Rumah Remang to fell virgin jungle in the disputed

area which covered the area of Ulu Sebungan. And whilst the plaintiffs

contended that the ancestors had long ago cleared and created NCR

over the land at Sungai Balim and Bukit Bala areas, there was also

evidence that TR Remang applied for a permit to clear the virgin jungle

at Sungai Balim and Bukit Bala.


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[43] In light of the permit, the reasonable inference that could be drawn

must be that the disputed area was not cultivated and settled but still

virgin jungle. As submitted by the defendants, the plaintiffs’ assertions

that their ancestors had cleared the disputed area could not therefore be

credible and on a balance of probability, such evidence did not prove

that the disputed area had been cleared before 1.1.1958.

[44] Further, since a substantial part of the disputed area was also

claimed by the residents of Rumah Usah, it could not be said that the

plaintiffs have proved their claim that it was their ancestors who had

cleared the disputed area. And whilst the plaintiffs in TR Usah (supra)

were paid and accepted compensation for the crops that they planted on

the disputed area claimed by them, the plaintiffs in the instant case led

no such evidence to indicate that they or their ancestors had planted

crops on the disputed area. In our view, the inference that could be

drawn would be that there was no cultivation by the plaintiffs in the

instant case nor were their ancestors on the disputed area that they

claimed. However, we found that the learned judge was silent on this.

His Lordship failed to make such an inference.

[45] Keeping in mind that there is a distinction to be drawn between the

finding of a specific fact which depends upon the credibility of witnesses

and a finding of fact which depends upon inferences drawn from other

facts, we found that the learned judge erred in not making proper

inferences from the evidence and the facts, which warrants our appellate

intervention (see China Airlines Ltd v Maltran Corp. Sdn Bhd & Another

Appeal [1996] 3 CLJ 163; see also Gan Yook Chin & Anor v Lee Ing

Chin & Ors [2004] 4 CLJ 309).


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[46] As for the NCR claim premised on the permit, it is common ground

that the permit relied upon by the plaintiffs in the instant case is the

same permit relied upon by the plaintiffs in the related case of TR Usah

(supra), which was issued to 28 doors of Rumah Remang to fell virgin

jungle.

[47] The plaintiffs in the instant case contended that the permit should

be interpreted to benefit the persons from the 28 doors of Rumah

Remang and their descendants. This interpretation, according to the

plaintiffs, would accord with Iban customs and traditions and sections

5(2) and 10(2) of the Land Code. The plaintiffs took the position that it

was within the objective mutual contemplation of both the grantor of the

permit and the longhouse inhabitants that since the latter obtain their

livelihood from the land, they would, upon felling the virgin jungle,

occupy and cultivate it in accordance with their custom or practice. In

other words, the permit was not only to allow them to fell the virgin jungle

but to also occupy and cultivate the area.

[48] With respect, we disagreed. The effect and scope of the permit

had been decided by this Court in TR Usah (supra) which decision we

fully endorsed. In TR Usah (supra), the plaintiffs being the resident of

Rumah Usah brought an action on behalf of themselves and on behalf of

all residents of the said longhouse. The plaintiffs claimed that the

provisional lease issued by the Superintendent of Land & Surveys,

Bintulu Division to Lembaga Tabung Haji and Semai Mekar Sdn Bhd,

overlapped with their NCR land.

[49] As in the instant case, the plaintiffs in TR Usah (supra) similarly

claimed that their longhouse was formerly known as Rumah Remang


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and that their forefathers settled in that area some time in 1870’s. They

further claimed that the permit issued on 24.4.1961 to the residents of

Rumah Remang under section 10(3) of the Land Code gave them the

right to fell virgin jungle in that area. They contended that pursuant to the

permit, they felled and cleared the land within it for planting, hunting etc.

The plaintiffs’ claim for various declaratory reliefs was dismissed by the

High Court. The plaintiffs appealed to this Court. The issue for

determination was whether the permit gives rise to NCR over the said

land.

[50] This Court through Apandi Haji Ali JCA (as he then was) said at pg

585:

“[22] On this issue, we are guided by the case of Madeli bin Salleh (suing as

administrator of the estate of Salleh bin Kilong, deceased) v Superintendent of

Lands & Surveys Miri Division & Anor [2005] 5 MLJ 305 which the relevant

portion at pp 314-315; reads as follows:

[12] It will next be necessary to say something about native

customary rights in Sarawak and how they are created or

acquired. The law on the matter is presently embodies in sub-s

(1) of s 5 of the Land Code which provides that as from January

1, 1958, native customary rights may be created in accordance

with native customary law of the community or communities

concerned by any of the methods specified in sub-s (2).

[13] As can be seen, after January 1, 1958 no recognition is given to

any native customary rights created after that date by any of the

methods mentioned in s 5 unless a permit to do so under s 10 of

the Land Code is obtained. The parties accept it that, and

correctly in our view, the question whether in any particular

case, native customary rights have been acquired prior to


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January 1, 1958, must be determined by the law in force

immediately prior to that date.

[23] It is our judgment that the cut-off date of 1 January 1958 as provided in

the proviso in s 5(2)(ii) of the SLC is the relevant law and as such the plaintiffs

could not have any right to the area, as claimed by them.

[24] Accordingly, whatever rights which they may have must be those

‘rights’ stated in the permit itself and those rights must be read with s 10(3) of

the Land Code under which the permit was issued. The rights accorded under

the permit must be ‘without prejudice to any law for the time being regulating

the prospecting of mineral, oils or the taking of forest produce’. Therefore,

from the clear and unambiguous provisions of s 10(3) of the Land Code, any

rights granted under the permit are subject to other laws regulating, inter alia,

the taking of forest produce, such as the Forests Ordinance. Read with s 5(1)

of the Land Code, the land over which the permit was issued is undoubtedly

State Land.

[25] It is our judgment that although section 10(3) allows for a permit to be

issued to a native to (a) occupy any Interior Land Area, or (b) fell virgin jungle

upon such land; or (c) or customary rights upon such land; the permit issued

to the plaintiffs only entitled them to ‘fell virgin jungle’ implying that their rights

were merely to take forest produce from the area under the permit and no

more. In other words, should the plaintiffs occupy or attempt to create native

customary rights over land under the permit, they would have committed an

offence under s 10(3) as the permit issued to them is only to fell virgin jungle

or “hutan tua”. Section 10(3) itself prohibits any attempt to create customary

rights upon such land.

[26] In our instant case, the plaintiffs claimed to have created and acquired

NCR over the area under the permit by virtue of having that permit which was

issued under s 10(3) of the Land Code. But neither the terms of the permit nor

the provisions of s 10(3) allow the plaintiffs continuous occupation of the land.

Clearing virgin jungle per se does not enable a native to create NCR. Without

continuous occupation, how can there be any basis for customary rights over


22

the land?. See Superintendent of Lands & Surveys, Bintulu v Nor Anak

Nyawai & Ors and another appeal [2006] 1 MLJ 256; [2005] 3 CLJ 555.

[27] It is clear that the permit allowed the natives only to fell ‘hutan tua’ (‘old

jungle/virgin jungle’) implying that they were only to fell the trees. No right of

farming or occupation or the ‘creation of NCR’ by the method specified in s

5(2)(a) ie by felling virgin jungle and occupation of the land thereby cleared

was granted in the permit. Based on the terms of the permit, if they have

attempted to create individual communal NCR over the area under the permit,

they would have committed an offence under s 10(3) of the Land Code.

[28] Corollary to that, the permit issued to the plaintiffs does not enable the

plaintiffs to create NCR over the land described in the Permit. On this ground

alone, the High Court’s judgment dismissing the plaintiffs’ claim ought to be

upheld and affirmed.”.

[51] This Court in TR Usah (supra) also found that the disputed area

was part of Similajau Forest Reserve which was gazetted under GN

1716 dated 11.12.1959, which was prior to the issuance of the permit on

24.4.1961 to Rumah Remang. By virtue of the definition of the “Interior

Area Land” in section 2 of the Land Code, this Court further held that the

issuance of the permit to Rumah Remang was void ab initio as it cannot

be issued over reserved land, which includes forest reserve.

[52] In respect of the above decision of this Court in TR Usah (supra),

the learned judge had this to say:

“80. With respect, the issue of whether, by virtue of the issuance of a

Section 10 permit, creation of rights over land is possible through the felling of

virgin jungles and occupation of the area felled seems to have remained

rather problematic. In the High Court, the learned judge said: “The reading of

the said subsection will clearly show that the section does not create positive

rights in contrast to s. 5 of SLC. Further the section relates to penal sanction.


23

If permission is granted to the plaintiffs, the plaintiffs can only do the acts

permitted in the said permit. In this case, the permit is issued to fell virgin

jungle and that does not mean the plaintiffs can exercise all of their native

customary rights, if any pursuant to the said permit. In this case, no evidence

was adduced to show that the plaintiffs have felled trees and in occupation of

the land. Though, there was some documentary evidence produced by the 1st

to 3rd defendant to show that they had abandoned their rights. (Emphasis

added).”.

[53] His Lordship went on to state:

“81. The emphasised portion of the High Court judgment, which has earlier

been highlighted, seems to quite clearly indicate, that creation of rights over

land would still be possible, should there be evidence of felling of virgin

jungles and evidence of the claimants being in occupation of the area felled.

...

104. On the contentions of all the Defendants, that this court is bound by the

decision of the Court of Appeal, there is to begin with the Plaintiffs’

submission that the High Court case of TR Usah Lutong & Ors v Lembaga

Tabung Haji & Ors (supra) is distinguishable from the instant case. This is so

presumably because in the former case “the High Court held the permit did

not create ‘positive rights’ because the Judicial Commissioner held that there

was no evidence of occupation and settlement on the land by the plaintiffs”,

whereas, in the latter (instant) case, the plaintiffs had adduced that the

plaintiffs had continuously occupied and settled on the land they claim to have

NCR”. With respect, this court agrees that basically for the aforesaid reasons,

the instant case is indeed distinguishable from the case of TR Usah Lutong &

Ors v Lembaga Tabung Haji & Ors (supra). Substantially for that reason, the

question of whether or not this court is bound by the Court of Appeal decision

in TR Usah Lutong & Ors v Lembaga Tabung Haji & Ors [2012] 1 LNS 960

does not in substance really arise.”.


24

[54] With respect, we found that the learned judge erred in declining to

follow the decision of this Court in TR Usah (supra) by distinguishing the

instant case on the facts, as the issue decided by this Court in TR Usah

(supra) was on the scope and legal effect of the very same permit relied

upon by the plaintiffs in the instant case.

[55] The learned judge distinguished the instant case on the occupation

by the plaintiffs of the disputed area, which fact or evidence was said to

be absent in TR Usah (supra). In our view, even if the plaintiffs in the

instant case had proven the fact (which we found they have not) that

having felled the virgin jungle under the permit, they had cultivated and

occupied the disputed area and had thus created NCR over the land,

that cannot form a valid basis for the learned judge to depart from TR

Usah (supra) as in the first place, the permit did not allow for farming or

occupation or creation of NCR. The permit was only to fell the trees and

if the plaintiffs attempted to create NCR over the disputed area under the

permit, they would have committed an offence under section 10(3) of the

Land Code.

[56] There was thus no justification for the learned judge to distinguish

the instant case from TR Usah (supra) and to interpret the permit as to

not only accord the 28 families the right to fell virgin jungle but also to

create NCR by occupation of the land cleared. The learned trial judge’s

interpretation and construction of the permit was contrary to the

judgment of this Court in TR Usah (supra). As emphasised by Steve

Shim CJ (Sabah & Sarawak) in the case of Dato Tan Heng Chew v Tan

Kim Hor [2006] 1 CLJ 577, judicial hierarchy must be observed in the

interests of finality and certainty in the law and for orderly development


25

of legal rules as well as for the courts and lawyers to regulate their

affairs.

[57] It is pertinent to highlight that not only were both the plaintiffs in the

instant case and the plaintiffs in TR Usah (supra) claiming under the

same permit, both sets of the plaintiffs claimed that they were the

descendants of the inhabitants of Rumah Remang. The plaintiffs in the

instant case are thus privies to the plaintiffs in TR Usah (supra). By the

doctrine of res judicata, the plaintiffs in the instant case would be barred

from contending that the permit granted them the right not only to fell

virgin jungle but to occupy and create NCR over the area (see Asia

Commercial Finance (M) Berhad v Kawal Teliti Sdn Bhd [1995] 3 CLJ

783).

[58] As for the learned judge’s finding that there were no rival claims for

the disputed area, with respect, we found the finding erroneous given

that at paragraph 55 of the grounds of judgment, his Lordship had

clearly stated:

“It seems not seriously disputed (see the testimony of PW1, En. Gani

Ak Tarang), that the land area claimed by plaintiffs in the instant case includes

the land areas (presumably about 521.592 hectares) claimed by the plaintiffs

in TR Usah Lutong & Ors [supra].”.

[59] In the light of the express finding of the learned judge that the

plaintiffs’ claim in the instant case includes the areas claimed by the

plaintiffs in TR Usah (supra), and given the existence of another

longhouse namely Rumah Luang, (also a split of Rumah Remang) which

is not before the court, the decision of the learned judge allowing the


26

plaintiffs’ claim for declaratory reliefs in respect of the disputed area

clearly could not be sustained. Obviously there were rival claims for the

disputed area, nullifying the plaintiffs’ position that the disputed area

belongs to them.

Conclusion

[60] Having regard to all the above, we found that the learned judge

erred in law and in fact in granting the plaintiffs the declaration that they

have NCRs over the disputed area within the provisional lease. The

appeal was therefore allowed with costs.

Dated: 1st November 2017

Signed

(TENGKU MAIMUN BINTI TUAN MAT) Judge Court of Appeal Counsel/Solicitors: For the Appellants: J. C. Fong (Saferi bin Ali and Evy Liana binti Atang with him) For the Respondents: Mekanda Singh Sandhu (Musa Anak Dinggat with him) Musa Dinggat Advocates

in the court of appeal of malaysia (appellate jurisdiction) civil appeal no. q … ·...

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