Court makes landmark decision on NCR
Tony ThienPublished: Jul 25, 2007 7:37 AM | Updated: Jan 29, 2008 10:21 AM
In a landmark decision on native customary rights (NCR) to land in Sabah, the Kota Kinabalu High Court declared the alienation of two disputed plots of NCR land in Kampung Gailun Salimpodon in the Pitas District by way of native titles issued to certain individuals as unlawful.
In a landmark decision on native customary rights (NCR) to land in Sabah, the Kota Kinabalu High Court declared the alienation of two disputed plots of NCR land in Kampung Gailun Salimpodon in the Pitas District by way of native titles issued to certain individuals as unlawful.
In a judicial review application by local NCR landowner Rambilin Ambit against the director of land and survey, Sabah, assistant collection for land revenue (ACLR), Pitas and registrar of titles, Justice Ian H C.Chin also ordered the decision of the director of land and survey to alienate the land constituted by Native Title No 233105729 and Native Title No 233105710 be immediately quashed.
He also ordered the decision of the ACLR and the Registrar of Titles to register the two native titles be quashed.
The judge also ordered the director, the ACLR and the registrar of titles and all officers acting under them to be prohibited from further dealing with the land applications connected with the case until and after the final determination of a land enquiry and the plaintiff Rambilin's land application.
He ordered costs to the plaintiff.
Rambilin claimed possession of the land from Ruddy Awah, who in November 2001, was issued the titles to the two lots of land, and she therefore sought a judicial review of that decision.
The two lots of land were bought by Rambilin and her husband sometime in 1982 from one Sharif Osman Sharif Murah for RM12,000 and from Sharif Endun Sharif Ading for RM2,000.
After this, the couple took up occupation of the land.
Ruddy, the defendant, claimed the sale and purchase agreement was null and void, saying the two lots were then state land and that the subsequent occupation by the plaintiff did not confer her any right whatever to the land.
The judge went through various land legislation with specific reference to the customs and laws of the natives relating to land, beginning with the period from Nov1, 1881 when a charter was granted by the British government to the British North Borneo Company to take over the grants of lands to British North Borneo Provisional Association Limited by the Sultan of Brunei and the Sultan of Sulu and to rule over the inhabitants in those lands.
Though it was established that land was the property of the state, it did not mean that the native rights to the land could not co-exist, he said.
Customary tenure
The judge went on to say that under the 1913 Land Rules, 'Customary tenure' had been defined to mean 'the possession of land by natives by the continuous residential occupation or cultivation for three or more consecutive years, provided that failure to cultivate for three consecutive years shall be considered to be an abandonment.'
He said there are clear legal provisions that native rights to land or native customary rights continue to subsist unless the settlement exercise had been completed for the whole of the state.
"There is no evidence that this had been done and therefore in areas where there was no section 66 notification, such rights can still be claimed because until those claims had been extinguished through an exercise under s 66, they continue to subsist."
Even after the Land Ordinance came into force on Dec 13, 1930, it is recognised that native customary rights shall be held to be land possessed by customary tenure, land planted with fruit trees, when the number of fruit trees amounts to 50 and upwards to each hectares, isolated fruit trees, sago, rotan or other plants of economic value, among others.
"This means that native customary rights which included the right to enter state land for the purpose of establishing it still subsists until today," the judge pointed out.
The judge went on to say that this meant the occupation of the land by Rambilin was not unlawful within the meaning of the Land Ordinance 1930.
"Does this not mean, it may be asked, that a native can enter any land in Sabah and then attempt to establish a claim to native customary right? Yes, it does but the government could easily immediately proclaim the whole un-alienated land in Sabah for settlement since after all some of the claim to be successful must have been in existence for three years prior to the date of the settlement," he added.
Osman and Endun from whom Rambilin had acquired the land were natives who had occupied the land under customary tenure.
Section 88 was cited as preventing Rambilin from acquiring any interest in the land as to be able to assert possession to support her action.
After Rambilin and her husband had entered the land in 1982 after procuring them from Osman and Endun earlier, the husband cleared the land for planting and in 1983 built a house as well as erecting a boundary fence.
They had also planted coconut and fruit trees. Water pipes were laid as well as the pole to lead electricity supply to the house.
Overlapping application
In coming to his conclusion based on the facts of the case, as adduced in court, the judge said there was definitely something sinister brewing when Rambilin's land application in 1989 to the ACLR was rejected on the basis that the land applied for overlapped with that applied by one Liong Sham when in fact there was no such application.
Rambilin was not even told of the rejection of her land application.
Various parties were involved in applying for lands that were overlapping each other. Rambilin had even written in to object because she had submitted her application for the lands earlier.
Subsequently, the authorities issued the two titles to Ruddy and another person.
"In the face of the fraudulent conduct of all those characters..I find it inhumane on the part of the authorities to say that nothing more should be done because parts of the land had been alienated to Ruddy and Endun," the judge said.
Chin commented that the decisions of the director of land and survey to issue those titles were procured by fraud or collusion between the various parties.
"Such decisions which aggrieved Rambilin could not stand and certiorari should be issued to quash them," he added.
The director had no right to exercise a discretion as to take away the right of Rambilin without due process of law and the process of law has yet to be completed as the ACLR has not yet delivered his decision and by alienating the land before the ACLR decides in the yet-to-be-completed land enquiry.
Entitled to possession
The judge, therefore, declared that the plaintiff is entitled to possession and/or to recover possession of the land, and ordered Ruddy or his servants or agents to vacate the land and deliver possession to Rambilin..
He also ordered Ruddy pay Rambilin mense profit at the rate of RM500 per month from Dec 31,1996 until possession of the land is delivered to Rambilin as well as pay to Rambilin special damages of RM66,500 and statutory interest of 8% per annum from Dec 31,1006 until the date of the judgment and interest of 8% on the adjudged sum until full payment.
The judge also ordered Ruddy to pay mense profit RM10,000 for exemplary and aggravated damages, saying this is justified by the fraudulent scheme, with costs to Rambilin.
The judge also ordered the assistant collection for land revenue to deliver his decision in the land enquiry regarding the land application made by Rambilin.
Kong Hong Ming appeared for the plaintiff/applicant and Chan Wai Ling appeared for the defence, while state counsel from the state Attorney-General's Chambers Mohd Hanafiah Mohd Kassin appeared for the respondents.
In a statement after the decision, local non-governmental organisation Pacos said the Kota Kinabalu High Court's decision clearly reaffirmed that native customary rights on land had not been extinguished under any legislation in the state.
It represented the first step for the return of NCR lands that had been given to outsiders back to their rightful owners, the natives of Sabah.
The higher-up authorities and elected representatives should on the basis of the court's decision respect native customary rights on land.
The land authorities should also inform the people of their native customary rights to their land.
The natives should stand firm and defend their NCR for the sake of future generations, Pacos spokesperson Galus Ahtoi said.
In a judicial review application by local NCR landowner Rambilin Ambit against the director of land and survey, Sabah, assistant collection for land revenue (ACLR), Pitas and registrar of titles, Justice Ian H C.Chin also ordered the decision of the director of land and survey to alienate the land constituted by Native Title No 233105729 and Native Title No 233105710 be immediately quashed.
He also ordered the decision of the ACLR and the Registrar of Titles to register the two native titles be quashed.
The judge also ordered the director, the ACLR and the registrar of titles and all officers acting under them to be prohibited from further dealing with the land applications connected with the case until and after the final determination of a land enquiry and the plaintiff Rambilin's land application.
He ordered costs to the plaintiff.
Rambilin claimed possession of the land from Ruddy Awah, who in November 2001, was issued the titles to the two lots of land, and she therefore sought a judicial review of that decision.
The two lots of land were bought by Rambilin and her husband sometime in 1982 from one Sharif Osman Sharif Murah for RM12,000 and from Sharif Endun Sharif Ading for RM2,000.
After this, the couple took up occupation of the land.
Ruddy, the defendant, claimed the sale and purchase agreement was null and void, saying the two lots were then state land and that the subsequent occupation by the plaintiff did not confer her any right whatever to the land.
The judge went through various land legislation with specific reference to the customs and laws of the natives relating to land, beginning with the period from Nov1, 1881 when a charter was granted by the British government to the British North Borneo Company to take over the grants of lands to British North Borneo Provisional Association Limited by the Sultan of Brunei and the Sultan of Sulu and to rule over the inhabitants in those lands.
Though it was established that land was the property of the state, it did not mean that the native rights to the land could not co-exist, he said.
Customary tenure
The judge went on to say that under the 1913 Land Rules, 'Customary tenure' had been defined to mean 'the possession of land by natives by the continuous residential occupation or cultivation for three or more consecutive years, provided that failure to cultivate for three consecutive years shall be considered to be an abandonment.'
He said there are clear legal provisions that native rights to land or native customary rights continue to subsist unless the settlement exercise had been completed for the whole of the state.
"There is no evidence that this had been done and therefore in areas where there was no section 66 notification, such rights can still be claimed because until those claims had been extinguished through an exercise under s 66, they continue to subsist."
Even after the Land Ordinance came into force on Dec 13, 1930, it is recognised that native customary rights shall be held to be land possessed by customary tenure, land planted with fruit trees, when the number of fruit trees amounts to 50 and upwards to each hectares, isolated fruit trees, sago, rotan or other plants of economic value, among others.
"This means that native customary rights which included the right to enter state land for the purpose of establishing it still subsists until today," the judge pointed out.
The judge went on to say that this meant the occupation of the land by Rambilin was not unlawful within the meaning of the Land Ordinance 1930.
"Does this not mean, it may be asked, that a native can enter any land in Sabah and then attempt to establish a claim to native customary right? Yes, it does but the government could easily immediately proclaim the whole un-alienated land in Sabah for settlement since after all some of the claim to be successful must have been in existence for three years prior to the date of the settlement," he added.
Osman and Endun from whom Rambilin had acquired the land were natives who had occupied the land under customary tenure.
Section 88 was cited as preventing Rambilin from acquiring any interest in the land as to be able to assert possession to support her action.
After Rambilin and her husband had entered the land in 1982 after procuring them from Osman and Endun earlier, the husband cleared the land for planting and in 1983 built a house as well as erecting a boundary fence.
They had also planted coconut and fruit trees. Water pipes were laid as well as the pole to lead electricity supply to the house.
Overlapping application
In coming to his conclusion based on the facts of the case, as adduced in court, the judge said there was definitely something sinister brewing when Rambilin's land application in 1989 to the ACLR was rejected on the basis that the land applied for overlapped with that applied by one Liong Sham when in fact there was no such application.
Rambilin was not even told of the rejection of her land application.
Various parties were involved in applying for lands that were overlapping each other. Rambilin had even written in to object because she had submitted her application for the lands earlier.
Subsequently, the authorities issued the two titles to Ruddy and another person.
"In the face of the fraudulent conduct of all those characters..I find it inhumane on the part of the authorities to say that nothing more should be done because parts of the land had been alienated to Ruddy and Endun," the judge said.
Chin commented that the decisions of the director of land and survey to issue those titles were procured by fraud or collusion between the various parties.
"Such decisions which aggrieved Rambilin could not stand and certiorari should be issued to quash them," he added.
The director had no right to exercise a discretion as to take away the right of Rambilin without due process of law and the process of law has yet to be completed as the ACLR has not yet delivered his decision and by alienating the land before the ACLR decides in the yet-to-be-completed land enquiry.
Entitled to possession
The judge, therefore, declared that the plaintiff is entitled to possession and/or to recover possession of the land, and ordered Ruddy or his servants or agents to vacate the land and deliver possession to Rambilin..
He also ordered Ruddy pay Rambilin mense profit at the rate of RM500 per month from Dec 31,1996 until possession of the land is delivered to Rambilin as well as pay to Rambilin special damages of RM66,500 and statutory interest of 8% per annum from Dec 31,1006 until the date of the judgment and interest of 8% on the adjudged sum until full payment.
The judge also ordered Ruddy to pay mense profit RM10,000 for exemplary and aggravated damages, saying this is justified by the fraudulent scheme, with costs to Rambilin.
The judge also ordered the assistant collection for land revenue to deliver his decision in the land enquiry regarding the land application made by Rambilin.
Kong Hong Ming appeared for the plaintiff/applicant and Chan Wai Ling appeared for the defence, while state counsel from the state Attorney-General's Chambers Mohd Hanafiah Mohd Kassin appeared for the respondents.
In a statement after the decision, local non-governmental organisation Pacos said the Kota Kinabalu High Court's decision clearly reaffirmed that native customary rights on land had not been extinguished under any legislation in the state.
It represented the first step for the return of NCR lands that had been given to outsiders back to their rightful owners, the natives of Sabah.
The higher-up authorities and elected representatives should on the basis of the court's decision respect native customary rights on land.
The land authorities should also inform the people of their native customary rights to their land.
The natives should stand firm and defend their NCR for the sake of future generations, Pacos spokesperson Galus Ahtoi said.
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