Thursday, December 19, 2013

COURT OF APPEAL CONFIRMS AGAIN “PEMAKAI MENUA” AND “PULAU GALAU” AS NCR LANDS



PRESS RELEASE

Once again the Court of Appeal has confirmed that “pemakai menua” and “pulau galau” are NCR lands. This was held in a decision handed down this morning in two appeals which were heard together viz; Civil Appeal No. Q01-138-03-2012 Superintendent of Lands and Surveys Department Sibu Division & Anor v Usang ak Labit & 3 Ors (which is the appeal herein); and Civil Appeal No. Q-02-661-03/2012 Rosebay Enterprise Sdn Bhd v Usang ak Labit & 3 Ors.

FACTS OF THE CASE

The Respondents in both appeals were the Plaintiffs at the trial in the High Court in Sibu and had claimed amongst others, for a declaration that their NCR land which comprises of their “pemakai menua” and “pulau galau” had been included in the area of a Provisional Lease issued to the Appellant ROSEBAY ENTERPRISE SDN BHD; the 1st Defendant/Appellant under Lot 13 Pelugau Land District (hereinafter referred to as the “Lot 13”) without the Plaintiffs’ knowledge and had been done wrongfully and in utter disregard of the Plaintiffs’ acquired or accrued rights over their said NCR.

After considering the submissions of all the parties on the evidence and the law, the learned trial Judge found in favour of the Plaintiffs and the Defendants appealed against the decision of the High Court. The 2nd and 3rd Defendants; the Superintendent of Lands and Surveys Department Sibu Division and the Government of the State of Sarawak filed their appeal under Civil Appeal No. Q01-138-03-2012 whereas the 1st Defendant, Rosebay Sdn Bhd appealed under Civil Appeal No. Q-02-661-03/2012.

In the Appellants’ Memorandum of Appeal, the Appellants had laid down the various grounds of appeal which predominantly dealt with the issues of whether the Honourable Justice Yew Jen Kie was right in her finding that “pemakai menoa” and “pulau” were customs or usages having the force of law in Malaysia or Sarawak and whether the learned Judge was right in accepting the map marked as “M”, a map which shows the extent of the Plaintiffs/Respondents NCR land, and how Lot 13 covers the said NCR land, as it was not produced by licensed surveyors.  

In October 2013 the Court of Appeal heard the said appeal and the three judges led by Datuk Abdul Wahab Bin Patail, were unanimous in their decision where the appeal was dismissed with costs and damages to be assessed by the Registrar of the High Court.

This decision refutes the stand of the present State Government as declared by Tan Sri Adenan Satem, Minister in the Chief Minister’s office at the DUN sitting last November when he disclosed that the State Government only recognises “temuda” land created before 1.1.1958 as NCR land.

The Plaintiffs/Respondents were represented by their counsels Baru Bian, Simon Siah, Chua Kuan Ching and Joshua Baru.


BARU BIAN
CHAIRMAN
PKR SARAWAK

18th December 2013


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