July 12, 2013, Friday Churchill Edward, firstname.lastname@example.org
Federal Court rules that NCR land cannot be sold to anyone outside the community, rights extinguished if original owner abandons the land
PUTRAJAYA: The Federal Court here yesterday ruled that native customary rights (NCR) land cannot be transferred by sale and purchase agreements.
When passing the ruling, the Federal Court comprising Chief Justice Tun Ariffin Zakaria, Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum and Federal Judges Tan Sri Abdull Hamid Embong, Tan Sri Surayadi Halim Omar and Tan Sri Hasan Lah unanimously dismissed an appeal by Bisi Jinggot against
the lower courts’ decisions to refuse him a declaration that he had acquired NCRs over several lots of land totaling 37.24 acres at Sungai Agas in Matang.
Bisi, originally from Julau, alleged that he entered into eight sale and purchase agreements with a number of Ibans to purchase the land and paid them the purchase monies. He claimed that the vendors had prior to 1958 created NCRs over the land.
Named as respondents in the appeal were the superintendent of Land & Surveys Kuching, the state government of Sarawak, the scouts commissioner for Sarawak and Lembaga Kebajikan Darul Falah, now the registered owner of part of the land claimed by Bisi.
The land in dispute was used as the site for scouts jamborees, and for the filming of the Hollywood movie ‘Farewell to the King’.
Delivering the unanimous judgment of the Court, Justice Surayadi held that under native custom, the original feller of virgin jungle who occupied the felled area for farming have rights to the land (specifically Temuda) which may be inherited by his heirs.
These rights may be lost by the native abandoning the area. Justice Surayadi held no NCRs so acquired over the temuda by a native may be sold to another person who does not belong to the same community.
He added that even the expert witness Nicholas Bawin, had testified that there is no native custom that allowed the sale of NCR land, but such land may be inherited or if the owner of the land moved from the longhouse, he may transfer his NCR land to relatives such as cousins who in turn would provide him with “tungkus asi”.
This custom of “tungkus asi” had been upheld in a number of decisions of the Native Court of Appeal in Sarawak.
Justice Surayadi also agreed with the submission of State Legal Counsel Datuk JC Fong, that the eight Sale and Purchase agreements were also conditional upon the Government alienating the land by issuing titles to the Ibans who purportedly sold the land to Bisi.
In this case, the condition precedent was not fulfilled, as the title of the land was granted to Lembaga Kebajikan Darul Falah. Hence, the Agreement were legally ineffectual for the purpose of transferring rights over the land to Bisi.
The Federal Court ruled that since Bisi’s alleged acquisition of the land was neither in accordance with native (Iban) customs nor in a manner provided in the Land Code the alleged acquisition was unlawful. His appeal was dismissed with costs, totaling RM20,000 to the respondents.
In a separate Judgment which also agreed that the Appeal be dismissed, Chief Judge Malanjum agreed that native customary rights could not be transferred by the owners of such rights to persons outside their community. He was of the view that legally, under the new NCR land development concept, natives would not be able to enter into joint venture with persons outside their community to develop their NCR land.
Counsels Mekanda Singh Sandhu and Kalveet Singh appeared for Bisi. State Legal Officer Lonie Linda assisted Datuk Fong in representing the Superintendent and the Government. The Lembaga was represented by Counsel Yong See Mee and the Scouts Commissioner by Counsel Baxter Michael.