Wednesday, October 9, 2013

BARU BIAN: ANOTHER JUDGMENT CONFIRMING “PEMAKAI MENOA” & “PULAU GALAU” AS NATIVE CUSTOMARY LAND.


PRESS STATEMENT

1.         The Court of Appeal sitting in Kuching the whole of this week once again confirmed in their ruling that “pemakai menoa” & “pulau galau” are Native Customary Land (NCL) under the Iban adat or custom in Sarawak. This was the decision of the three judges, Datuk Abdul Wahab Bin Patail (who led the panel), Datuk Wira Mohtarudin Bin Baki and Dato’ Mah Weng Kwai in two cases, which were heard together on appeal yesterday.

2.         The 22 Plaintiffs who lost in their first hearing at the High Court in Miri before the Honourable Judge Dato’ Abdul Rahman bin Sebli are Ibans from Rumah Meringai, Sungei Lembong Suai, Miri, Sarawak (the Plaintiffs/Appellants). In the first case, the suit was against Fung Tai Sdn Bhd, Land Custody and Development Authority (LCDA), Superintendent of Lands & Surveys, Miri & The State Government of Sarawak, the Plaintiff being aggrieved by the fact that a Quarry Licence was issued to Fung Tai Sdn Bhd and/or LCDA without the Plaintiffs’ consent. In the second case, the Plaintiffs sued Butrasemari Sdn Bhd, Superintendent of Lands & Surveys, Miri & The State Government of Sarawak over two Provisional Leases issued to Butrasemari Sdn Bhd by the Superintendent of Lands & Surveys, Miri.

3.         On 25.07.2011, the Honourable Judge Dato’ Abdul Rahman bin Sebli delivered his decision, striking out both of the Plaintiffs’ suits on grounds amongst other things, that the area claimed by the Plaintiffs/Appellants was not cleared or farmed before 1958 and therefore no NCR existed. Dissatisfied with that decision, the Plaintiffs appealed. In allowing their appeal on Tuesday, their Lordships unanimously agreed that the Plaintiffs had on the balance of probabilities proved their claims of pemakai menua and/or pulau galau over their NCR land comprising about 3475 hectares.

4.         Besides declaring the Plaintiffs’ NCR over the area claimed, their Lordships further ruled that the issuance of the Quarry Licence to Fung Tai Sdn Bhd and the two Provisional Leases to Butrasemari Sdn Bhd was as far as the areas which extended to the Plaintiffs’ NCR land under the said Licence and Provisional Leases, unlawful, improper, unconstitutional and therefore null and void and the same should be excised out of the Quarry Licence and Provisional Leases. It is interesting to note that for the first time in NCR cases emanating from Sarawak, the Court had declared that the issuance of the Quarry Licence and the Provisional Leases to Fung Tai Sdn Bhd and the two Provisional Leases to Butrasemari Sdn Bhd respectively without first extinguishing NCR was a breach of the Government’s fiduciary duty to the Plaintiffs/Appellants.

5.         As to damages, their Lordships ordered the same to be assessed by the registrar of the High Court together with interests and costs. As to the appeal, the respondents were all ordered to pay costs.

6.         This decision is another victory for the natives in Sarawak. With this decision we have at least 5 judgments from the Court of Appeal confirming this adat of pemakai menua and pulau galau as NCR of the Ibans/natives in Sarawak.

7.         The Plaintiffs/Appellants were represented by their Counsels Mr. Baru Bian, Mr. Simon Siah and Ms. Chua Kuan Ching.


Dated this 9th October 2013.


MR. BARU BIAN
COUNSEL FOR THE
PLAINTIFFS/APPELLANTS


Casenames:
Tamit ak Anjat, Mukit ak Sekerang & Jupitter ak Segeran @ Segaran v Fung Tai Sdn Bhd, LCDA, Superindent of Land and Survey & State Govt of Sarawak

consolidated with

TR Meringai ak Segaran v Butrasemari Sdn Bhd, Superintendent of Land and Survey & State Govt of Sarawak


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