The winning streak has continued for owners of land to which native customary rights (NCR) are exerted in Sarawak, but which has been encroached upon by plantation companies with help from the state government.

The third consecutive legal victory came last Friday when the High Court declared the provisional lease given to Nirwana Muhibbah Sdn Bhd as “null and void” on the ground that the company is not a “native” by virtue of Section 8 of the Sarawak Land Code 1958.

The plaintiffs - Luking Uding, Simah Empaling, Bari Barien and Nyambar Suwat - sued on behalf of themselves and all the residents of Kampung Merakai and all other proprietors, occupiers, holders and claimants of the NCR land situated at or around the longhouse.

They named the Superintendent of  Lands and Surveys of Samarahan Division, the state government, the Land Custody and Development Authority (LCDA) and Nirwana Muhibbah Sdn Bhd, as first to fourth defendant respectively.

The first and second defendants had on Oct 7, 2000 issued a provisional lease described as Lot 2979 Melikin Land District to the third and fourth defendants as co-owners, part of which extended into the NCR land.

In late 2000, LCDA and Nirwana Muhibbah, ignoring their protests, had cleared the land and destroyed the trees and crops on these land.

The plaintiffs contended that this extinguished or confiscated their NCR over land and that the subsequent actions were wrongful because they had not been compensated. They sought various declaratory reliefs and orders.
 
The Lands and Surveys Department and state government did not dispute the area claimed by the plaintiffs as delineated, but denied that the plaintiffs had acquired NCR over the area covered by the provisional lease.
 
Justice Linton Albert said he was satisfied that it was more probable than not that the landowners had established their NCR to the pemakai menoa (communal land area) in accordance with the civil standard of proof required under Section 101(1) of the Evidence Act 1950.
 
“In the circumstances, the defendants’ contention that the plaintiffs do not have customary rights over the land claimed or that the same falls outside the provisional lease are demolished ...

“Quite apart from the precise delineation set out in (an) exhibit, the description of the plaintiffs’ pemakai menoa given by their witnesses contain sufficient particulars to demarcate the (area) with the degree of certainty to sustain their claim over the pemakai menoa which is clearly within part of  the provisional lease issued by the first and second defendants ...,” he said.
 
He said the respondents’ contention that the area under the provisional lease had been declared as a mixed zone was devoid of merit as it was no different from “putting the cart before the horse with its backside forward”.
 
“Without the requisite extinguishment of the pre-existing acquisition of land under (NCR), the declaration of the area under mixed zone land is woefully ineffectual.
 
“It is patently clear that the issuance of the provisional lease Lot 2979 ... covered an area which included land owned by the plaintiffs under (NCR) well before the existence of the Land Code under which the provisional lease was issued (and that it) violates Articles 5 and 13 of the federal constitution.”

Court’s orders
 
The judge said the inclusion of the land under NCR within the provisional lease and the conversion of all but 30 ha of the leased area into an oil palm plantation without the plaintiffs’ consent - and without compensation - made it unarguable that the plaintiffs had been deprived of their constitutional right to property.
 
The provisional lease also contravenes Section 8(1) of the Land Code because the Nirwana Muhibbah is a non-native and as such “may not acquire any rights or privileges whatever over native customary land...”
 
“In the circumstances, it follows that the provisional lease is null and void in so far as it purports to include land in respect of which the plaintiffs have established (NCR),” said the judge.
 
Justice Albert ordered that the first and second defendants to rectify the provisional lease within 30 days, by excluding the plaintiffs’ native customary land.
 
He also ordered damages to be paid to the plaintiffs, to be assessed by the Deputy Registrar and paid for by LCDA and Norwana Muhibbah with interest at 8 percent per annum from the date of the writ until full payment is made.
 
LCDA and Nirwana and their associates were further restrained from entering, clearing or carrying out any works on the plaintiffs’ native customary land.
 
The plaintiffs were represented by Harrison Ngau Laing; the first and second defendants by State Legal Officer Yap Khan Kee; the third defendant by Norida Sipek; and Nirwana Muhibbah by Ivan Hussein.