Thursday, July 5, 2012

Bintulu High Court strikes out application by Shin Yang, Director of Forest and Sarawak government in Matu Tugang NCR land suit

MATU TUGANG (WN KP 560807-13-6239)  
Suing on behalf of themselves and 42 other proprietors,  
Occupiers, holders and claimants of Native Customary  
Rights (NCR) land situated at Kampung Long Jaik, Sungei  
Seping, Belaga, 96900 Belaga, Sarawak –Plaintiffs

1. SHIN YANG FORESTRY SDN BHD (Co. No. 278414-M)  




I. Background

A. Plaintiff‟s Claim: Facts of the Case

 (1) The Plaintiffs by paragraphs 4 to 9 of the Statement of Claim are claiming Native Customary Rights (“NCR”) and/or native title and/or usufructuary rights over the area of lands or forests covering the whole region of Sungei Seping, Sungei Jaik and the upper reaches of Sungei Maleh, based on the  boundary delineated in light brown in the locality map attached to the  Statement of Claim (respectively the “NCR Land” and “Map M”).

(2) The Director of Forests (the 2nd Defendant) authorised by the Sarawak State Government (3rd Defendant) had on 19.11.1999 issued a Licence for Planted Forests LPF/0018 (“LPF”) to the 1st Defendant pursuant to the provisions of the Forests Ordinance (Swk. Cap. 126 (1958 Ed.)) Forest Ord.) which unknown to the Plaintiffs had included or overlapped onto the 44 Plaintiffs‟ NCR Land.

(3) The Plaintiffs by paragraphs 10 to 15 of the Statement of Claim are claiming that the issuance of the LPF which included or overlapped onto  the Plaintiffs‟ NCR Land is an infringement of their NCR.

(4) By paragraph 11 of the Statement of Claim, the Plaintiffs claim that there  was no extinguishment of the Plaintiffs‟ NCR within the NCR Land covered  by the LPF before the same was issued to the 1st Defendant and/or no  provision as to compensation in accordance with the Land Code (Swk. Cap 54 81 (1958 Ed.)) (“Land Code”), Forest Ord. and the Federal Constitution were ever made or paid to the Plaintiffs. The issue of LPF affecting the 56 Plaintiff‟s Land being unlawful, unconstitutional, and improper is therefore  null and void.

(5) The other grounds used for avoiding the LPF as null and void are set out  from paragraphs 12 to19 of the Statement of Claim.

(6) The 14 orders and reliefs prayed by the Plaintiffs are set out in paragraph 20 of the Statement of Claim, inter alia:-

i. A Declaration order that the Plaintiffs had acquired and/or inherited  Native title and/or Native Customary Rights (NCR) over the area as 66 claimed by the Plaintiffs referred to and/or edged in light Brown and/or  the area surrounding the Plaintiffs village marked “Lg Jaik” in the locality map exhibit “M” and annexed hereto;  
iii. A Declaration that the acts of the 2nd or 3rd Defendants in issuing the 71 said Licence for Planted Forest No. LPF/0018 (the “said Licence”), in so far as it impairs the Plaintiffs‟ NCR over the said NCR Land, is  wrong bad and/or void;

iv. A Declaration order that the issuance of the said Licence, to the 1st  Defendant in as far as the extent of that area under the said Licence overlaps and/or covers the Plaintiffs‟ NCR Land is unlawful, improper,  unconstitutional and therefore null and void, for want of  extinguishment of the Plaintiffs‟ NCR over the said land;

v. Alternatively, a Declaration that the issuance of the said Licence was  subject to the native title and/or native customary rights and/or  usufructurary rights of the Plaintiffs in or over the said NCR Land and  that the said Licence does not affect the Plaintiffs‟ said title and/or  rights therein;

viii. A Declaration order that the area so included in the said Licence as claimed by the Plaintiffs as part of their NCR Land marked in the said  sketch map “M”, the same be excised out of the area of land under  the said Licence;

ix. A prohibitory injunction restraining the 1st Defendant and/or its employees, servants and/or agents from trespassing, clearing, using or occupying the Plaintiffs‟ said NCR Land;

x. A mandatory injunction against the 1st Defendant and/or its  employees, servants and/or agents to crease operation and remove  all structures and their equipments or machineries from the Plaintiffs‟  said NCR Land forthwith;.....”  

 After giving the matter much thoughtI am of the view that cases involving claims of native customary rights such as this one are an  exception to the O'Reilly's principle.

 I came to this decision because  the prosecution of the plaintiffs' right here is a genus in itself for by its very  definition that right is largely unsupported by evidence; it is almost purely  proved by oral evidence based on customs and tradition and is a  peculiarity of only two states - Sabah and Sarawak.

For the natives in these two states, - their rights to the land - to forage, to hunt, to fish and to cultivate the land, for it is not just a place to build a home but their verylivelihood - this right is handed down one generation to the next.

To tie them down to the O'Reilly's principle when more often than not they would only know about the transgressions of their right when the land had already been dealt with by the state authorities (as in this case) is an  irreparable injustice which the Law Lords in O'Reilly, I am sure would  never have intended.”
 Although it does, to a certain extent, fall within the realm of public  law, I am of the view that it tilts more towards the vindication of a  private right which is recognised both under statute and at common  law (which pre-existed statute).As such, the natives should be at liberty to proceed by way of an ordinary civil suit.  I therefore prefer to approve the recent the decision of the High Court inNikodemus Singai & Ors v Sibu Slipway Sdn Bhd & Ors [2010] 10  CLJ 383 to that of Shaharuddin Ali & Anor v Superintendent of Lands & 614 Surveys, Kuching Division & Anor [2004] 4 CLJ 775.”  

On the learned consideration expressed by Rhodzariah Bujang JC (as she  was) in Nikodemus Singai‟s case (supra) which was approved obiter by  Richard Malanjum CJSS in Bato Bagi‟s case (supra), there is every reason in  the interests of justice that such cases of natives claiming for NCR on land  which incidentally is used to challenge and defeat the administrative action of  the authorities in issuing licences for logging, planting trees or mining or for provisional leases which have encroached onto their NCR land should be constituted as a new exception to the O’Reilly’s principle.

 “The principle remains intact that public authorities and public servants are, unless clearly exempted, answerable in the ordinary courts for wrongs done to individuals.

After hearing the submissions from the parties the Court sees no reason why  it should change its position as held in Merang Jok‟s case (supra) and will find that the Plaintiffs‟ case is substantially a claim for NCR over their land, which  then impacts as an ancillary issue on the validity of the LPF issued by the 2nd  and 3rdDefendant to the 1st Defendant.

 The Plaintiffs‟ case remains essentially a private law issue that has been correctly commenced as a writ action and need not be by way of judicial review under O. 53.

This falls within the 1st exception in O’Reilly’s case (supra) as quoted above and highlighted  and accepted by James Foong FCJ in Ahmad Jefri’s case to become a private law matter rather than a public law matter.

Otherwise, the Court as  contemplated by Lord Diplock in O’Reilly’s case (supra) and in the interests of justice will also hold that the claim for NCR which incidentally challenges as  an ancillary issue an administrative act of the authorities is a new exception to  the O’Reilly’s principle actionable by writ action in order not to allow  substantive rights to be defeated by a procedural objection.

On the 1st question posed by the Defendants, the Court will answer that the  Writ procedure can be used by the Plaintiff on the facts disclosed in the pleadings.

B. 2nd Question: Alternative Remedy in Part V of the Land Code - Settlement

The second issue for determination is whether it is proper for the Plaintiffs to file this Suit when the Land Code specifically provides inter alia, that the  Settlement Officer shall investigate publicly all claims to State Land whether based upon native customary tenure or otherwise, and shall have power to  determine in whose favour the rights to such land.

Part V of the Land Code provides for a Settlement exercise to resolve NCR claims to be conducted by the Settlement Officer and the relevant provisions. A Settlement exercise is triggered by Section 84 of the Land Code which  provides:

“(1) Whenever it appears to the Director that in any area there may be  doubt or uncertainty as to whether the existing documents of title properly define the rights and interests of those entitled or the boundaries of the land 694 included therein, or where it appears likely that rights of ownership have  been acquired by natives by the exercise of their customary rights, or  whenever for any other reason he is of the opinion that it is expedient to effect a settlement of rights, he may publish in the Gazette a Settlement  Notification in accordance with subsection (2).  
(2) …
(3) On or after the publication of the Settlement Notification under this section, the Director shall assign a Settlement Officer and such Assistant  Settlement Officers as may be necessary to carry out a settlement.”

(Emphasis added)  
The Settlement Officer acts according to Section 94(1) of the Land Code:

“(1) The Settlement Officer shall investigate publicly all claims to State land, whether based upon documentary evidence, native customary tenure or otherwise, and shall have power to determine in which favour the rights to such land shall be shown in the Settlement Order made under section 95 or  may, in the case of conflicting claims, permit the parties to refer the determination of the same to arbitration under the Arbitration Act 1952.”

To conclude the Settlement exercise Section 95 of the Land Code provided:

“(1) After full investigation and final determination of all claims, the Settlement Officer shall make a Settlement Order which shall be in Form E in the First Schedule and shall contain any other particulars which may be prescribed by rules made under section 213.

(2) Every Settlement Order is shall be published in the Gazette, and  copies thereof shall, at the same time and for a period of one month thereafter,  be exhibited at the office of the Superintendent in whose division, and at the  office of the District Officer whose district, the land is situate and add any other place which may be prescribed.

(3) After the publication of the Settlement Order, the Settlement Officer  may buy not this in the Gazette, with copies exhibited in the same manner as  in the case of the Settlement Order, correct any clerical errors and make any clerical amendments or additions to the Settlement Order, as may be  necessary to give effect to his decision.”

Learned counsel for the 2nd and 3rd Defendants submitted that it is not proper  for the Plaintiffs to file this Suit to plead for the declaratory reliefs by asking the Court to step into the shoes of the Settlement Officer to determine  whether the Plaintiffs have any customary rights over purported area claimed by them without first exhausting the remedy of a Settlement exercise given by  Part V of the Land Code as laid down in Manggai v Government of Sarawak &  Anor [1970] 2 MLJ 41.

In Manggai‟s case (supra) Gill FJ held (pg. 44F):

“It is well settled law that the court will not make a declaratory judgment where an adequate alternative remedy is available (see  Halsbury’s Laws of England, 3rd edition, volume 22, page 749, paragraph  1611). To quote but a few authorities in support of that proposition, Lord  Hershell said in Barraclogh v. Brown: (3)  
“It was argued for the appellant that, even if not entitled to recover the expenses by action in the High Court, he was, at all events, entitled to come to that court for a declaration that on true interpretation of the  statute he had a right to recover them.

It might be enough to say that no such case was made to the appellant‟s claim. But, apart from this I  think it would be very mischievous to hold that when a party is  compelled by statute to resort to an inferior court he can come first to  the High Court to have this right to recover – the very matter relegated  to the inferior court -- determined.

 Such a proposition was not  supported by authority, and is, I think, unsound in principle.”

The Court see no reason to depart from its decision in Merang Jok’s case (supra) and will find that the courts in Sarawak are given concurrent jurisdiction by Part V of the Land Code to determine NCR claims on State Land except over such land which is subject to an ongoing Land settlement exercise then the Court is prohibited by Section 86 (1) of the Land Code from  taking up the action by NCR claimants.

On the 2nd Question, the Court will answer that following Nikodemus Singai‟scase (supra) or Merang Jok’s case it is proper for the Plaintiffs to file this Suit even though Part V of the Land Code provides for another remedy by way of  a Settlement exercise which has not been directed to be conducted on the  NCR Land yet.

C. 3rd Question: Limitation  
The third issue for determination is whether this Suit filed on 13th August 2009 wherein the Plaintiffs are challenging the issuance of the LPF is not maintainable when the LPF was issued on 19th November 1999 and is barred  by Section 2 of the Public Authorities Protection Act 1948 (Act 198) (“PAPA 1948”)

Section 2 of PAPA 1948 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;”

(Emphasis added) Learned counsel for the 2nd and 3rd Defendants submitted that on the facts in the pleadings this action filed on 13th August 2009 is now caught by limitation.

Learned counsel for the Plaintiffs submitted that on the facts and  circumstances of the present case shows that the act of trespass claimed  under the LPF is subsisting and continuous as at the date of the Suit.

Thus,  Section 2(a) PAPA does not apply because the actual and continuing trespass of the 1st Defendant have not ceased. Therefore, the limitation under Section 2(a) would only set in next after the ceasing of the 1st Defendant‟s trespass as enumerated in the second limb of Section 2(a), viz. “…or, in the case of a continuance of injury or damage, within thirty-six  months next after the ceasing thereof;…”

The Court on reading the LPF (Ex. L1 of Affidavit in Support of the 1st Defendant‟s Application) finds Clause 22 which reads as follows:-

“(1) Nothing in this Licence shall be deemed to affect rights which any native has, prior to the issue of this Licence, lawfully acquired over the  said land under the Land Code or the Ordinance. Such rights shall be referred to in this Licence as “native customary rights”.

(2) It shall be duty of the Licensee, at his own costs and expense, to  comply with the provisions of the Rules relating to the establishment of  planted forests over lands subject to native customary rights claim. ”

Based on Clause 22 (1), the Court finds that the issue of the LPF expresslysubject to and recognising any NCR that is subsisting and providing for the 1stDefendant at his own cost and expense to take care of any NCR claims that may arise does not prima facie amount to an actionable act or neglect or default by the 2nd and 3rd Defendants in the pursuance or execution or 933 intended execution of any written law or of any public duty or authority as at on19th November 1999, the date of issue of the LPF.

The Court agrees with submission of learned counsel for the Plaintiffs that  NCR rights are akin to land rights for which limitation sets in for every breach or trespass distinct from the last wrongful act.

If the act in question extinguishes NCR (like that given by Section 5 (3) of the Land Code) then  limitation would run from the date of the purported extinguishment.

The LPF  and provisional leases do not have this extinguishing effect on NCR because  in the case of the LPF its Clause 22 (1) gives recognition to NCR subsisting on the land and Section 28 of the Land Code read with the special conditions  of the provisional lease is framed to hive out NCR claims (See Ruling dated 27.9.2011 in Sebekai Plantation Sdn Bhd v The Superintendent, Lands and Surveys, Bintulu (unreported) (Bintulu High Court Land Reference No            15-04-946 2008       (BTU))..

Even though the LPF may have been issued on19th November 1999 and this Suit filed on 13th August 2009, it becomes an issue of fact which is not established by the pleadings or as undisputed facts before the Court as to when the 1stDefendant started encroaching onto the Plaintiff‟s NCR Land in order to establish whether limitation has set in under PAPA 1948 or the  Limitation Ord. (Swk. Cap 49 (1958 Ed.)).

On the 3rd Question, the Court will answer that the issue of the LPF on19th November 1999 does not per se amount to any actionable cause of action yet for limitation to set in under PAPA 1948.

VI. Conclusion

The Court will dismiss the Defendants‟ applications with costs to the Plaintiffs.  

Dated this 29th June 2012

Judicial Commissioner
High Court,

For Plaintiff: Mr. Simon Siah  
M/S Baru Bian Advocates, Kuching.
For 1st Defendant: Mr. Ferrinow Kadri s/in for Mdm. Jagjeet Sandhu
For2nd & 3rd Defendants: Mr. Saferi Ali of SAG, Kuching.

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