Tuesday, July 8, 2014

BARU BIAN: COURT OF APPEAL UPHOLDS MALAY NATIVE CUSTOMARY RIGHTS OVER LAND


IN THE COURT OF APPEAL MALAYSIA
(APPELLATE JURISDICTION)
CIVIL APPEAL NO Q-01-783-10 & ANOR APPEAL

BETWEEN

1.         SUPERINTENDENT OF LANDS AND SURVEYS,
KUCHING DIVISION

2.         STATE GOVERNMENT OF SARAWAK                          …APPELLANTS

AND

MOHAMAD RAMBLI BIN KAWI
(WNKP 470806-13-5403)
No. 110, Kampung Lintang
93050 Kuching                                                                  …RESPONDENT

IN THE MATTER OF SUIT NO. 22-84-II(II) & 22-88-2002-I
IN THE HIGH COURT IN SABAH AND SARAWAK AT KUCHING

·       Background:
The plaintiff Rambli Bin Kawi, had acquired native customary rights over 51 parcels of land totaling approximately 547.49 acres at Loba Rambungan, Kuching by virtue of "forty-seven (47) Surat Perjanjian Menyerah Tanah Temuda (NCR) or Letters of Surrendering Native Customary Land" signed between the plaintiff and the "respective original owners" in consideration of "certain sums or monies". It is not disputed that the plaintiff did not acquire the 51 parcels of land from the original claimants of NCR but from their descendants. No title deeds had been issued for the 51 parcels of land. By the Land (Extinguishment of Native Customary Rights) (Loba Rambungan Area) (No. 105) Direction, 1999 ("the Direction"), dated 18th September 1999 made by the Minister for Planning and Resource Management under Section 5(3) and (4) of the Land Code (Cap.81), upon the coming into force of the Direction, "all native customary rights that may be claimed or have subsisted over the land situated along Loba Rambungan and Sungai Selang Rambungan, Kuching, and the said Land held under such rights shall revert to the Government of Sarawak". The 51 parcels of land came within the Direction; hence all NCRs therein had been extinguished by it. The plaintiff had within the prescribed time of 60 days from the Direction lodged his claim but it was rejected by the 1st defendant via a letter dated 24th April, 2002.
·       Whether the plaintiff had acquired native customary rights over the 51 parcels of land or any part thereof.
There are two sub issues here, as follows:
a.    Whether the plaintiff had proved that the sellers who had surrendered their land via "Surat Perjanjian Menyerah Tanah Temuda" to the plaintiff had native customary rights in the 51 parcels of land.
b.    If the answer to sub issue (a) is in the affirmative, whether the plaintiff could have acquired the NCR in the 51 parcels of land by way of 'Serah'.
To ensure that the sets of "Surat Perjanjian Menyerah Tanah Temuda (NCR)" were in order the plaintiff had approached the late Penghulu Sadam bin Hashim who had jurisdiction over the land in Loba Rambungan to check whether the 51 parcels of land were in fact NCL and owned by the villagers. He was told by Penghulu Sadam that the villagers in Kampung Loba have native customary rights over the Loba Rambungan land and was also told to see the late Ketua Kaum Bujang bin Hassan together with Penghulu Sadam's son Mahlee @ Mahli bin Sadam (PW2) to check who the proprietors of the respective lands were. PW2 was then a councilor of Padawan Rural District Council. The plaintiff, together with PW2, did consult Ketua Kaum Bujang as to who the rightful proprietors of the NCL were. After such consultation, the 47 "Surat Perjanjian Menyerah Tanah Temuda (NCR)" were signed by the plaintiff and the respective proprietors before the late Ketua Kaum Bujang. The plaintiff also testified that the "Surat Perjanjian Menyerah Tanah Temuda (NCR)" forms were obtained from the Lands and Surveys Department and was also told that those were the proper forms for the surrendering and transferring of NCR land amongst the natives in Sarawak.
It is also the plaintiff's assertion that it is a Malay customary practice that the first person that occupy an area for dwelling, farming or generally for 'cari makan' would have a claim of native customary rights over the land and those rights can be inherited by his or her children or relatives and can be transferred to another native. It is also the Penghulu’s assertion that the Malay race recognizes the practice of 'serah' in surrendering their land. This assertion is made based on his own experience and the recognition by the Penghulu or Ketua Adat of the Malay community. He was able to produce numerous sets of "Surat Perjanjian Menyerah Tanah Temuda (NCR)" in court involving his land in which the State Government had, by implication, accepted the practice by paying him compensation. He also relied on the paper written by the late James Jabing named 'A paper on the concept of Serah over Native Customary Land in the context of the Statute Law and Adat'.
There is little doubt that the plaintiff's case is premised on section 2(a) of the Land Code (Cap. 81) 1958 which defines 'Native Customary Land' to mean:-
(a) land in which native customary rights, whether communal or otherwise, have lawfully been created prior to the 1 January 1958, and still subsist as such;

In view of the above, the trial judge said that there can be no doubt that the Malay customs in Sarawak must be given recognition and this was not disputed by the defendants. However it was the defendants' submission that there was no evidence in court that the alleged Malay customary practice of 'cari makan' and 'serah' has been given legal effect by the laws of Sarawak. In support of this submission, counsel for the defendants referred to section 2 of the Land Code, which states: "customary law means a custom or body of customs to which the law of Sarawak gives effect". Since PW5 could not show to the court that there is such written law, it was submitted by the defendants that the 'cari makan' and 'serah' practice cannot be recognized by the court. The trial Judge observed:

“With respect to counsel for the defendants, the phrase 'law of Sarawak' cannot mean only written law. In my view it also means common law as developed by the courts from time to time. This was what happened in the ground breaking decision of Nor anak Nyawai & Ors v. Borneo Pulp Plantation Sdn Bhd & Ors [2001] 2 CLJ 769; [2001] 6 MLJ 241 where Ian Chin J gave legal effect to the Iban customary practice of 'pemakai menoa' which was upheld by the Court of Appeal.

Whether Natives in Sarawak have the right of disposition of NCR land, in my view, must be considered in the context of their customs and traditions together with the Federal Constitution. The reason is simple and that is the Federal Constitution gives protection to NCR. The first of such protection is Art 160(2) which defines law to include 'customs or usage having the force of law in the Federation or any part thereof. What this means is that if, as in this case, the custom of the Malay communities allows disposition of land with NCR among themselves the court is constitutionally bound to protect that custom.”

c.      Whether members of the Malay communities can transfer their NCR in their land to members of same communities


In the case at hand, the issue is whether members of the Malay communities can transfer their NCR in their land to members of same communities. The trial judge agreed it should be allowed He reasoned that it is common sense that if natives are allowed to dispose of their NCL within their communities, it would automatically enhance their value and improve the natives' economic livelihood. This would promote the ideals behind the constitutional special status of the natives. He said:

“I see no reason why natives should not possess such rights of disposition of their NCL as non natives have in titled land. Furthermore it would not affect the rights of non-natives as they could not in law hold NCL. Not to allow such disposition even among their own communities would in effect make their NCL worthless which cannot be seen as promoting the well being of natives in the country when they have been granted special status under the Federal Constitution.”

The trial Judge gave the following orders:
i.        A Declaration that the plaintiff has acquired native customary rights (NCR) over the said 51 parcels of land;
ii.       That the 2nd defendant pays the plaintiff a compensation amount to be assessed in accordance with the provisions of the Land Code relating to extinguishment of native customary rights.
iii.      Interest to be charged on the assessed compensation amount at the rate of 8% per annum from the date of Extinguishment Notices to the date of judgment and realization; and
iv.      Costs of this action to be taxed unless agreed to the plaintiff.

AT THE COURT OF APPEAL

Against the above orders the State Government and the Superintendent of Lands & Surveys, Kuching, appealed to the Court of Appeal. A three-judge panel  presided over the appeal chaired by Datuk Abdul Wahab Patail, Datuk Balia Yusof Bin Hj Wahi and Dato’ Tengku Maimun Binti Tuan Mat.

By a majority decision, the appeal was dismissed with Datuk Abdul Wahab dissenting and the learned trial judge’s decisions were affirmed on the 7th July 2014. Although we do not have the benefit of having the full judgment of the Court of Appeal before us, it is deduced from the trial judges’ decision that was affirmed that the following principles of law pertaining to NCR for the Malays of Sarawak were now affirmed:

1.     That the “Surat Perjanjian Menyerah Tanah Temuda (NCR)” is not a form of Sale and Purchase Agreement but a form of Malay adat of “serah” or “the surrendering or rights” over land, which is practised by the Respondent Malays of Sarawak, the original claimants in this case.

2.     That according to the Malay adat or customs, the pioneers or the first persons that occupy an area for farming or planting of crops or fruit trees or generally for “cari makan” (foraging the land for food or generally use the land for his livelihood) would have a claim or right over the said land, that after his death, any of the children may inherit the right over the said parcel of land, which is commonly referred to as native customary land (NCL). This is because that land was acquired by virtue of Malay native customs, that such rights created and/or acquired over the NCL may beserah(surrendered) to another Malay person (opposed to the decision of Bisi ak Jinggot at the Federal Court).

3.     In the circumstances, the Malay NCR land which includes the swampy areas and the riverbanks where they had planted upon and foraged for food are not just sources of their livelihood but also constitutes life itself as their NCR land is also fundamental to the Malays’ social, cultural and spiritual aspects as native people of Sarawak.

4.     As there was no adequate compensation given to the Plaintiffs the extinguishment of the said NCR was unlawful.



Dated this 8th day of July 2014


BARU BIAN
Counsel For the Respondent/Plaintiff


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