Government of Sarawak, Superintendent of Lands & Surveys Mukah Division v Busing Anak Jali, Lai Anak Jali, Nggai Anak Liyom, Burai Anak Enseriban, Bunyie Anak Guha, Bunta Ak Mamut dan Marsar Anak Aping (NO. Q-01-79-03/2014 Bersama-sama NO.Q-02-524-03/2014)

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SUPERINTENDENT OF LANDS & SURVEYS MUKAH DIVISION …

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MARSAR ANAK APING … RESPONDENTS (IN THE MATTER OF SUIT NO. 21-9-2010 IN THE HIGH COURT IN SABAH AND

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MARSAR ANAK APING … PLAINTIFFS (All of care of Tanjong Pedada, 96400 Mukah, Sarawak) 2

… 1st DEFENDANT C/O Attorney General, Tingkat 15 & 16, Wisma Bapa Malaysia Petra Jaya, 93502 Kuching Sarawak.

SUPERINTENDENT OF LANDS AND SURVEYS, MUKAH DIVISION … 2nd DEFENDANT Tingkat 3-5, Menara Pehin Setia Raja 96400 Mukah, Sarawak.

… 3rd DEFENDANT 1st Floor, No. 42 Jalan Keranji 96000 Sibu, Sarawak. (Dicided by The Honourable Judicial Commissioner Yang Arif Datuk Douglas Cristo Primus Sikayun on the 3rd February 2014). HEARD TOGETHER WITH IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. Q-02-524-03/2014 … APPELLANT 1st Floor, No. 42 Jalan Keranji, 96000 Sibu, Sarawak. BUSING AK JALI … 1st RESPONDENT LAI AK JALI … 2nd RESPONDENT NANGGAI AK LIYOM … 3rd RESPONDENT BURAI AK ENSERIBAN … 4th RESPONDENT BUNYIE AK GUHA … 5th RESPONDENT … 6th RESPONDENT MARSAR AK APING … 7th RESPONDENT All of care of Tanjong Pedada, 96400 Mukah, Sarawak (In the matter of Suit No. 21-9-2010 in the High Court in Sabah and Sarawak at Sibu) 3 BUSING AK JALI … 1st RESPONDENT LAI AK JALI … 2nd RESPONDENT NANGGAI AK LIYOM … 3rd RESPONDENT BURAI AK ENSERIBAN … 4th RESPONDENT BUNYIE AK GUHA … 5th RESPONDENT … 6th RESPONDENT MARSAR AK APING … 7th RESPONDENT All of care of Tanjong Pedada, 96400 Mukah, Sarawak

… 1st DEFENDANT C/O Attorney General Attorney General’s Chamber Tingkat 16, Wisma Bapa Malaysia Petra Jaya, 93502 Kuching Sarawak.

SUPERINTENDENT OF LANDS AND SURVEYS, MUKAH DIVISION … 2nd DEFENDANT Tingkat 3-5, Menara Pehin Setia Raja 96400 Mukah, Sarawak.

… 3rd DEFENDANT 1st Floor, No. 42 Jalan Keranji 96000 Sibu, Sarawak. CORAM Tengku Maimun binti Tuan Mat, JCA Zaleha binti Yusof, JCA Abdul Karim bin Abdul Jalil, JCA 4 JUDGMENT [1] These two appeals were against the decision of the High Court at Sibu in Suit No. 21-9-2010 (the said suit), in allowing the plaintiffs’ claims for the following orders: a) A declaration that the Plaintiffs have acquired and/or created individual or communal NCR (Native customary rights) over the said land now covered by Provisional Lease lot 11 but limited to only 1,391.42 acres as surveyed by PW5 and mapped by PW6 in exhibit 23 of PBOD. b) A declaration that the rights precluded any one or more of the defendants from acquiring, impairing, abridging or extinguishing the Plaintiffs’ rights in the said land. c) A declaration that the provisional lease to the extent of the said 1,391.42 acres is bad in law and/or null and void. d) The Plaintiffs be given forthwith vacant possession of their native customary land. e) An order that the said land in so far as it is affected by the said provisional lease shall be excised out from the said provisional lease. f) A mandatory injunction against the 3rd Defendant to cease all operations and remove all structures, equipments etc. from the said land. 5 g) Exemplary damages to be assessed by the Deputy Registrar/SAR. h) Getting up costs of RM 75,000 with interest of 5% to be paid to the Plaintiffs and be equally borne by all the defendants. The appellants in Appeal No. Q-01-79-03/2014 were the 1st and 2nd defendants respectively in the said suit while the appellant in Appeal No. Q-02-524-03/2014 was the 3rd defendant in the said suit. The respondents in these 2 appeals were the plaintiffs in the said suit. For convenience, parties shall be referred to as they were in the High Court. BRIEF BACKGROUND FACTS [2] The plaintiffs are Ibans and natives of Sarawak. They are residents of Rumah Mawar, Tanjong Pedada, Mukah, Sarawak. They claim that since time immemorial, their ancestors, their descendants and now they themselves have long acquired and created individual and/or communal native customary rights over the lands at Sg. Kenyana, Mukah, Sarawak consisting of an area of 580.1 hectares more or less, together with the forests, streams and rivers there on (the said lands). [3] The 1st defendant is the State Government of Sarawak while the 2nd defendant is the Superintendent of Lands and Surveys, Mukah 6 Division, Sarawak. The 3rd defendant is a company incorporated under the Malaysian Companies Act 1965. [4] On or about 17.9.1998, the 2nd defendant had issued a provisional lease for Lot 11, Mukah Land District to the 3rd defendant which the plaintiffs claim to have encroached part or covered almost the entire part of the said lands. [5] On 30.11.2010 the plaintiffs filed this action and pleaded that their native customary right (“NCR”) pre-exist the Sarawak Land Code, (Cap 81) and had never been extinguished in accordance with law. They also pleaded that the said provisional lease is inequitable, illegal, oppressive, an abuse of power and unconstitutional. This action was brought by the plaintiffs for themselves and not on behalf of all the residents of Rumah Mawar. [6] The learned Judicial Commissioner (JC) after hearing the witnesses, especially PW1 (the 3rd plaintiff) and PW3 (the 1st plaintiff) who were born in 1928 and 1956 respectively, was satisfied that the plaintiffs had proven the creation and acquisition of NCR by way of Pemakai Menoa, Temuda and Pulau Telu. Although the action was brought by the plaintiffs for only seven of them and not for the whole community, the 7 learned JC found this to be insignificant as he opined that section 2 (a) of the Cap 81 allows the creation and/or acquisition of the NCR either “communal or otherwise” which means that individual NCR can also be acquired on the said lands by all the plaintiffs. His Lordship was also of the view that the 2nd defendant had failed to investigate the existence of any NCR over the said lands, the result of which the legal rights of the plaintiffs in the form of NCR were ignored and denied by the 1st and 2nd defendants. Hence their rights to natural justice were denied which vitiate the whole process of issuing of the said provisional lease. Hence the learned JC concluded that the provisional lease is illegal, null and void. There was also an issue of limitation raised by the defendants but was dismissed by the learned JC on the ground that a limitation period for a claim for NCR would only begin to run after such right had been clearly extinguished by the relevant authority i.e the 1st and 2nd defendants in this case. Since the 1st and 2nd defendants had never extinguished such right, there is therefore no limitation date to trigger the limitation period for the plaintiffs to commence this action. His Lordship therefore allowed the plaintiffs’ claim with costs, hence the appeals.

(i) Whether the plaintiffs have created or acquired NCR over the said lands. 8

(i) Whether the plaintiffs have created or acquired NCR over the said lands. [7] This is the most pertinent issue in these appeals. The plaintiffs’ claim was for the area of 580.1 hectares more or less. The learned JC had found that the plaintiffs had proven that they had created or acquired NCR over the said lands covered by the provisional lease but limited to only 1,391.42 acres (equivalent to 563.088 hectares) as surveyed by PW5, a community surveyor and mapped by PW6, the Director of Programme and Community Mapping Coordinator of Borneo Resources Institute in Miri, Sarawak. [8] As alluded to earlier, the learned JC had relied on the evidence of PW1 and PW3 that their ancestors and themselves had settled on the land at Sungai Kenyana before 1928 and had been carrying on farming activities on the said lands. 9 [9] He rejected the defendants’ submission that the plaintiffs cannot claim to have acquired NCR over the said lands as based on evidence only a small portion of the whole area claimed by the plaintiffs totalling 23 hectares was cleared area in 1950 and 1954 and even in 1959. His reason was, “clearing of land or temuda is only part of the NCR lands. There are other practices such as pemakai menoa, pulau telu, pendam and rubber which have existed before 1958 and still subsist on the said lands”. His Lordship had concluded that the plaintiffs for themselves “have proved the NCR over the pemakai menoa or pulau telu over the said lands”. We note that the learned JC had relied heavily on the decision of the High Court in Usang ak Labit & 3 ors v Rosebay Enterprise Sdn Bhd, High Court Sibu Suit No. 21-1-2010. [10] Before us, En. Saferi, the Deputy State Attorney General Sarawak, who appeared for the 1st and 2nd defendants submitted that based on the decision of the Federal Court in Director of Forest, Sarawak & Ors v TR Sandah Ak Tabau & Ors & Others Appeals [2017] 3 CLJ 1, the decision of the learned JC was, with the greatest respect, wrong. We were told that the appeal before us was deferred pending the outcome of the Federal Court in TR Sandah, supra. En. Saferi submitted that the plaintiffs cannot claim under pemakai menoa or pulau telu as the decision 10 of the Federal Court in TR Sandah, supra, is obviously clear that the High Court and the Court of Appeal are not entitled to uphold a claim for NCR to land in Sarawak based on a native custom of pemakai menoa and pulau. What the law of Sarawak recognises in a claim for NCR, he further submitted, is the custom or adat of temuda. To reinforce his point, in his written submission, En. Saferi quoted the following excerpts from the decision of his Lordship Raus Sharif PCA (as he then was) in TR Sandah, supra: “[67] We must not lose sight of an important fact that recognition alone that such custom or practice exist is not enough. Clearly, recognition of the existence of such practice had brought with it regulation and restriction. Our position is consistent with the principle as propounded in the case of Nor Anak Nyawai wherein it was held that the native customary rights claim over land founded upon the concept of continuous occupation does not extend to the areas of forests where the natives or their ancestors had entered into in search of food, jungle produce etc. What is essential as recognised by our courts is the custom of “temuda” which is cultivation of land for occupation. This custom is essential and integral to the Iban culture which would include the custom of clearing, occupying and cultivating an area and included burial grounds and longhouse sites. 11 [68] As stated earlier, what the laws of Sarawak had recognised is the custom or adat of “temuda” which was subsequently incorporated into “Tusun Tunggu”. What is stated in “Tusun Tunggu” read as follows: Theoretically all untitled land whether jungle or cleared for padi farming (Temuda) is the property of the Crown. The fact that Dayaks do clear a portion of virgin land for the site of their padi farms confers on them restricted rights of proprietorship over the land thus cleared. Once the jungle has been cleared it becomes “temuda”. It is a recognised custom that “temuda” is for the use of the original worker, his heirs and descendants. This is the only way Dayaks can acquire land other than by gift or inheritance. [69] The above declaration in “Tusun Tunggu” has been confirmed by the Federal Court in Bisi Jinggut v Superintendent of Lands & Surveys Kuching Division & Ors [2013] 6 CLJ 805, where Suriyadi Halim Omar FCJ speaking for the court said: [37] From the totality of evidence and authorities referred in the course of the hearing, we are satisfied that the creation of native customary land and rights acquired by a native of Sarawak, is conditional upon the adherence to custom or common practice of his community. For an Iban, it has the customary concept of Tusun Tunggu whereby NCR could be acquired by two mode namely clearing untitled virgin jungle en route to the creation of what is locally 12 described as temuda and the other by receiving the temuda as a gift or inheritance. For the first mode, the common thread is that the acquisition of NCR starts with the clearance of the said untitled virgin land or jungle by a native, followed by the occupation of the cleared land and thereafter not allowing the land to be abandoned. Once abandonment whatever NCR was created or acquired previously over the land would be lost. If the original owner abandons the land without more the community takes over (emphasis added). [70] The decision of the Court of Appeal in Nor Anak Nyawai was strongly criticised by Mr Baru Bian describing it short of sound legal reasoning. With respect, we disagree. We are of the view that the decision of the Court of Appeal in Nor Anak Nyawai is the correct statement of law. It is not only consistent with decisions of our courts in Adong and Sagong but also with other Commonwealth countries that native customary law over land are founded upon the concept of native’s custom of continuous occupation. For example, in Sagong, the proprietary interest of the orang asli in their customary and ancestral land was limited only to the area that forms their settlement but not to the jungle at large where they used to roam to forage for their livelihood in accordance with their custom and tradition. As stated in the preceding paragraphs, the position in Nor Anak Nyawai is consistent with the methods of creating customary rights under the Sarawak Land Code vide s.

13 [71] The principle propounded in Nor Anak Nyawai and Bisi Jinggut is parallel to the position under the Sarawak Land Code. Section 5(1) of the Sarawak Land Code provides as follows: 5(1) As from the 1st day of January, 1958, native customary rights may be created in accordance with the native customary law of the community or communities concerned by any of the methods specified to subsection (2), if a permit is obtained under section 10, upon Interior Area Land. Save as aforesaid, but without prejudice to the provisions hereinafter contained in respect of Native Communal Reserves and rights of way, no recognition shall be given to any native customary rights over any land in Sarawak created after the 1st day of January, 1958, and if the land is State land any person in occupation thereof shall be deemed to be in unlawful occupation of State land and section 209 shall apply thereto. [72] Under sub-s. 2, the methods by which native customary rights may be created are:

(a) the felling of virgin jungle and the occupation of the land thereby cleared;

(b) the planting of land with fruit trees;

(c) the occupation or cultivation of land; 14

(d) the use of land for a burial ground or shrine;

(e) the use of land of any class for rights of way; or

(f) any other lawful method: Provided that:

(i) until a document of title has been issued in respect thereof, such land shall continue to be State land and any native lawfully in occupation thereof shall be deemed to hold by licence from the Government and shall not be required to pay any rent in respect thereof unless and until a document of title is issued to him; and

(b) Land from time to time comprised in a reserve to which section 6 applies; and

(c) Interior Area Land upon which native customary rights have been lawfully created pursuant to a permit under s. 10.” 18 [16] For the purpose of this appeal, we are concerned with the definition in paragraph (a) as it is the plaintiffs’ contention that the NCR over the said lands had been lawfully created prior to 1.1.1958 and still subsist as such. [17] We are aware that the issue of NCR claim has been discussed in many cases that it is no more a novel issue. The burden to prove their claim is always on the plaintiffs, the natives, even though the law gives recognition to NCR claim by customary tenure. Hence the plaintiffs need to convince this Court that they had acquired or created NCR over the said lands. [18] It was contended by the plaintiffs that they and their ancestors had settled in the said lands before 1928 and although PW1 is currently staying in Bintulu, his wife and children are staying is the longhouse in the said lands and PW1 returns to his longhouse over weekend. As such, he had proven continuous occupation based on the decision of the Federal Court in Superintendent of Land and Surveys Miri Division and Anor v Madeli Salleh [2007] 6 CLJ 509. 19 [19] Having read plethora of cases on this issue, we found that the position of our apex court has always been consistent in that the NCR claim over land founded upon the concept of continuous occupation does not extend to areas where the natives used to roam to forage for their livelihood. [20] This has been emphasised by the majority decision of the Federal Court in TR Sandah, supra which endorsed the decision of this Court in Superintendent of Lands and Surveys, Bintulu v Nor Anak Nyawai & 3 Ors [2005] 4 AMR 621 wherein this Court had earlier followed the decision in Sagong b Tasi & 6 Ors v Kerajaan Negeri Selangor & 3 Ors [2002] 2 AMR 169. Therefore we are of the view that the learned JC erred when he held that clearing of land or temuda is only part of the NCR lands and that other practices such as pemakai menoa and pulau telu must also be included. [21] The argument of learned counsel for the plaintiffs that the position is still not clear based on the judgment of Abu Samah Nordin FCJ in TR Sandah, supra, in our view, does not hold water. The Federal Court had dismissed the plaintiff’s claim in TR Sandah, supra, based on 3 – 1 decision. Out of the 3 majority decision, 2 had confirmed the proposition that “what is essential as recognised by our courts is the custom of temuda 20 which is cultivation of land for occupation. This custom is essential and integral to the Iban culture which would include the custom of clearing, occupying and cultivating an area and included burial grounds and longhouse sites.” [22] Further, there was evidence of the defendants’ expert, DW6, which was not challenged by the plaintiffs that almost the entire area claimed by the plaintiffs which is 580.1 hectares more or less, which is so huge, were covered with primary forest in 1950 and 1954 and even in 1959. Only a small portion of the whole area claimed by them which is totalling 23 hectares was cleared area in 1950 and 1954 and even in 1959. Except for PW1’s & PW3’s mere assertion, we found no other evidence to support the plaintiffs’ claim. [23] Yew Jen Kie J (as she then was) in Everly Bajut ak Poh & 24 others v The State Government of Sarawak & 2 Ors, Sibu Civil Suit NO. 22-26 – 2008 had held as follows: “In my judgment, the Plaintiffs have only adduced bare statement from PW1. i.e. the 1st Plaintiff that they have acquired native customary right over the alleged NCL under Iban customs and traditions i.e. through clearing cultivation and occupation of the areas throughout three generations. Not only there is 21 no corroboration to their claim, their claim has been totally demolished by the aerial photographs taken in 1947 and 1962. They showed that the alleged NCL were still vast virgin jungle. Furthermore, a virgin jungle, once cleared, will take a hundred years to grow back to primary forest. Hence, it is my finding that the Plaintiffs have failed to prove on the balance of probability that they have acquired native customary right over the alleged NCL.” [24] We agree with the defendants that the same principle above ought to be applied in the present appeals that other than the plaintiffs’ mere assertion, the plaintiffs had failed to prove they had acquired NCR over the said lands. As shown by Appendix A and Appendix B, the vast area of the said lands is a primary forest. There was also no evidence to show it was the plaintiffs’ ancestors who had actually cleared and cultivated the said lands. [25] Now learned counsel for the plaintiffs had urged this Court, if the Court prefers the approach of His Lordship Raus Sharif PCA (as he then was), to exclude pulau telu and confine the plaintiffs’ claim to plots 1 to 8 as surveyed by PW5 totalling 720.48 acres, more or less. With due respect, for us to agree with this suggestion, the issue that has to be 22 answered is, had the plaintiffs discharged their burden of proof that they had acquired NCR over the said 8 plots? [26] As alluded to earlier, we found that the plaintiffs’ assertion that they had acquired the NCR was their bare assertion. Their evidence was self serving as being the plaintiffs, they were witnesses with interest. We do no better but to quote the decision of David Wong Dak Wah J (as His Lordship then was) in Agi Bungkong & Ors v Ladang Sawit Bintulu Sdn Bhd & Ors (2010) 1 LNS 114, as follows: “… It can be said that the evidence of the witnesses whom I have mentioned earlier are self serving as they are what I call witnesses with interest as they are the Plaintiffs. For me to determine whether their evidence is credible I look for objective evidence in the form of documents and evidence from witnesses with no interests, in that they do not gain from the outcome of this case. What I have set out are evidence of independent witnesses and documentary evidence which, in my view had corroborated the Plaintiffs’ case. These evidence are good corroborative evidence which have been defined by Raja Azlan Shah FJ (as His Highness then was) in Karthiyayani & Anor v Lee Leong Sin & Anor [1974] 1 LNS 61, [1974] 1 MLJ 119 as follows (at p.120): 23 In my judgment the finding of the learned judge shows that certain salient features of this aspect of the evidence were missed or were not properly appreciated. It is settled law that a person cannot corroborate himself but it would appear that s. of the Evidence Act enables a person to corroborate his testimony by his previous statement. The section adopts a contrary rule of English jurisprudence by enacting that a former statement of a witness is admissible to corroborate him, if the former statement is consistent with the evidence given by him in court. The rule is based on the assumption that consistency of utterance is a ground for belief in the witness’s truthfulness, just as inconsistency is a ground for disbelieving him. As for myself, although the previous statement made under s. 157 is admissible as corroboration, it constitutes a very weak type of corroborative evidence as it tends to defeat the object of the rule that a person cannot corroborate himself. In my opinion the nature and extend of corroboration necessary in such a case must depend on and vary according to the particular circumstances of each case. What is required is some additional evidence rendering it probable that the story of the witness is true and that it is reasonably safe to act upon it. If a witness is independent, ie, if he has no interest in the success or failure of a case and his evidence inspires confidence of the court, such evidence can be acted upon. A witness is normally to be considered independent unless he springs from sources which 24 are likely lo he (sic) tainted. If there are circumstances tending to affect his impartiality, such circumstances will have to be taken into account and the Court will have to same to a decision having regard to such circumstances. The court must examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. [27] Further there was this evidence of 2 penghulus DW3 and DW4 which we felt was relevant. DW3 had informed the Court that his great grandmother by the name of Senia and his uncle Anji had a rubber tree farm in the said lands until today. According to DW3, there are 32 other long houses under his jurisdiction, which may have better claim, over the said lands. [28] Hence, we agree with the defendants that if the basis of the plaintiffs’ claim is pemakai menoa and pulau, then it must be for the whole community and cannot be for the seven (7) plaintiffs only. The Court should not allow other claimants, if any being deprived of the area claimed simply because they did not come to the court or were not together with the plaintiffs. See Sanabung ak. Sampai & 2 Ors. v Hydroflow Sdn. Bhd. [2014] 7 MLJ 429, Binglai Anak Buassan & 9 Ors. v Entrep Resources Sdn Bhd, Kuching High Court CS NO. 22-199/10-2011) and 25 Matu Tugang v Shin Yang Foresting Sdn Bhd Director of Forest, Sarawak, the State Government of Sarawak [2017] 2 CLJ 82. [29] As submitted by the defendants, the Court only recognises temuda as NCR. Nonetheless, for the purpose of this case we cited those cases to show that, even if there is such practices of pemakai menoa and pulau, the above authorities will show that, the plaintiffs’ claim ought to have been rejected. [30] As we have found that the plaintiffs have failed to prove they have acquired NCR over the said lands, the second issue as to whether the said provisional lease for Lot 11 is illegal, null and void, in our view, has become superfluous and does not require any further determination. [31] On the last issue of limitation again we feel that that the issue will be very pertinent if the plaintiffs could prove that they have acquired NCR over the said lands. Limitation, if proven, would definitely defeat their NCR’s claim even when shown that it had been created or acquired. In the instant appeals, we have opined that the plaintiffs have failed to prove that they have created or acquired NCR over the said lands. Hence, like the 2nd issue, we will not labour on this 3rd issue as well. 26 CONCLUSION [32] In the upshot, we found merit in both appeals. We therefore allowed both appeals with costs of RM5,000 for each set of the appellants subject to allocator. The order of the High Court was set aside. There was no deposit for Appeal No. Q-01-79-03/2014. For Appeal No. Q-02- 524-03/2014, we ordered the deposit to be refunded to the 3rd defendant. t.t Dated: 14 January 2019 (ZALEHA BINTI YUSOF) Judge Court of Appeal Malaysia For The Appellants: Saferi Bin Ali Evy Liana Binti Atang Jabatan Peguam Besar Negeri Sarawak Tingkat 15 & 16, Wisma Bapa Malaysia Petra Jaya 93502 Kuching, Sarawak. For The Respondent: Mekanda Singh Sandhu Paul Raja Messrs. Sagau Raja & Co. Lot 59, 1st Floor BDA-Shahida Commercial Centre Jalan Abang Galau 97000 Bintulu, Sarawak. 27 For The Appellants: Siti Norashidah Binti Dollah Danny Huang Dung Po Messrs. Huang & Co No. 53 & 55, 1st Floor Jalan Tuanku Osman 96000 Sibu, Sarawak. For The Respondent: Mekanda Singh Sandhu Paul Raja Messrs. Sagau Raja & Co. Lot 59, 1st Floor BDA-Shahida Commercial Centre Jalan Abang Galau 97000 Bintulu, Sarawak.