Jeli Anak Naga dan 4 Lagi v Tung Huat Pelita Niah Plantation (Q-01-94-03/2014 Heard Together with Q-02-485-03/2014)

JELI ANAK NAGA

JOING ANAK BUAU

RAJIT ANAK AMBAS

JAMBAI ANAK JALI

EDWARD EKAU ANAK SIMBENG (NRIC NO: 570602-13-5397) [Suing on behalf of themselves and on behalf of all the residents of the longhouse known as Rumah Jeli Anak Naga, Rumah Rajit Anak Ambas, Rumah Jambai Anak Jali, Rumah Edward Ekau Anak Simbeng and Rumah Duat Anak Kalom and/or all other proprietors, occupiers, holders or claimants of Native Customary Rights Lands situate at or around Sungai Sibuti, Sungai Bakas and Sungai Kelitang, Sibuti, Sarawak]. C/o Rumah Jeli, Sungai Merah, Bekenu, 98150, Sibuti, Sarawak. … APPELLANTS

TUNG HUAT PELITA NIAH PLANTATION

LAND CUSTODY AND DEVELOPMENT

SUPERINTENDENT OF LAND AND SURVEYS,

GOVERNMENT OF THE STATE OF SARAWAK … RESPONDENTS Civil Appeals No. Q-01-94-03/2014 & Q-02-485-03/2014 2 [In the Matter of Suit No. MR-21-5-2011 In the High Court in Sabah and Sarawak at Miri jointly tried with Originating Summons No. 24-44-2010(MR)

Jeli Anak Naga (Nric No: 350314-13-5275)

Joing Anak Buau (Nric No: 551110-13-5549)

Rajit Anak Ambas (Nric No: 600128-13-5297)

Jambai Anak Jali (Nric No: 690530-13-5457)

Edward Ekau Anak Simbeng (Nric No: 570602-13-5397) [Suing on behalf of themselves and on behalf of all the residents of the longhouse known as Rumah Jeli Anak Naga, Rumah Rajit Anak Ambas, Rumah Jambai Anak Jali, Rumah Edward Ekau Anak Simbeng and Rumah Duat Anak Kalom and/or all other proprietors, occupiers, holders or claimants of Native Customary Rights Lands situate at or around Sungai Sibuti, Sungai Bakas and Sungai Kelitang, Sibuti, Sarawak]. C/o Rumah Jeli, Sungai Merah, Bekenu, 98150, Sibuti, Sarawak. … Plaintiffs And

Tung Huat Pelita Niah Plantation Sdn Bhd (Company No: 808153-P)

Land Custody And Development Authority

Superintendent Of Land And Surveys, Miri Division

Government Of The State Of Sarawak … Defendants] Civil Appeals No. Q-01-94-03/2014 & Q-02-485-03/2014 3 HEARD TOGETHER WITH

ALLI (A) ALI MAT BIN HAJI DOLLAH

KHO TENG CHOON @ KHO GEOK CHOON

KHO THIAN JAN @ KHO HAN CHOON

NOBLE DOMINANCE SDN BHD

RICO SENTIASA SDN BHD (COMPANY NO: 624212-K) … APPELLANTS AND TUNG HUAT PELITA NIAH PLANTATION SDN BHD (COMPANY NO: 808153-P) … RESPONDENT [In the Matter of Originating Summons No. 24-44-2010 (MR) in the High Court of Sabah and Sarawak at Miri jointly tried with Suit No. MR-21-5-2011 Between Tung Huat Pelita Niah Plantation Sdn Bhd (Company No: 808153-P) … Plaintiff And

Alli (A) Ali Mat Bin Haji Dollah (Nric No: 530930-13-5197)

Kho Teng Choon @ Kho Geok Choon (Nric No: 470819-13-5525)

Kho Thian Jan @ Kho Han Choon (Nric No: 5012208-13-5269) Civil Appeals No. Q-01-94-03/2014 & Q-02-485-03/2014 4

Noble Dominance Sdn Bhd (Company No: 230186-T)

Rico Sentiasa Sdn Bhd (Company No: 64212-K)

Foh Kim Jin (Nric No: 440506-13-5295

Terra Star Sdn Bhd (Company No: 724115-W) … Defendants] CORAM TENGKU MAIMUN TUAN MAT, JCA ZALEHA BINTI YUSOF, JCA ABDUL KARIM ABDUL JALIL, JCA JUDGMENT OF THE COURT Introduction [1] There were two (2) appeals before us arising from the decision of the High Court at Miri in a joint trial of a Civil Suit and an Originating Summons (OS). Appeal No. Q-01-94-03/2014 (Appeal No. 94) was filed by the appellants/plaintiffs in the Civil Suit whereas Appeal No. Q-02-485-03/2014 (Appeal No. 485) was filed by the appellants/OS defendants. [2] In the Civil Suit, the native plaintiffs, sued Tung Huat Pelita Niah Plantation Sdn Bhd (Tung Huat), Land Custody and Development Authority (LCDA), Superintendent of Lands and Surveys, Miri Division and the Government of the State of Sarawak as the first to the fourth defendants respectively. The plaintiffs claimed for inter alia a declaration that they have Civil Appeals No. Q-01-94-03/2014 & Q-02-485-03/2014 5 native customary rights (NCR) over an area of land situated at Sibuti, which included an area under a provisional lease (PL) issued to Tung Huat. [3] In the OS, Tung Huat as the plaintiff filed an action against the non-native defendants for vacant possession under Order 89 of the Rules of the High Court 1980 (now Rules of Court 2012). [4] We had dismissed both appeals. We now give our reasons and for ease of reference, in this judgment, the appellants in Appeal No. 94 will be referred to as the plaintiffs while the respondents will be referred to as the defendants. The appellants in Appeal No. 485 will be referred to as the OS defendants, while the respondent will be referred to as Tung Huat. The Background Facts [5] On 7.2.2006, a parcel of land measuring more or less 3,361 hectares described as Lot 2 Block 9 Bukit Kisi Land District (Lot 2) was alienated to Tung Huat under a PL of State Land. Prior to Lot 2 being alienated to Tung Huat, it was first alienated to LCDA. [6] In the Civil Suit, the plaintiffs claimed that they are Iban and natives of Sarawak. They filed the suit on behalf of themselves and the residents of five longhouses in Sibuti against the defendants claiming that they had acquired NCR over the land; that their NCR had not been extinguished and that they had not been compensated when the land was alienated to Tung Huat. [7] The plaintiffs sought for inter alia a declaration that they had acquired the NCR over lands in the Map marked “M” attached to the statement of Civil Appeals No. Q-01-94-03/2014 & Q-02-485-03/2014 6 claim, and for a declaration that the issuance of the PL to LCDA and the subsequent transfer of the land to Tung Huat is null and void. [8] Tung Huat filed the OS claiming for possession of the land under Order 89 of the Rules of the High Court 1980 on the premise that the OS defendants had illegally occupied part of the land without Tung Huat’s license, consent and/or permission. [9] The OS defendants claimed that the plaintiffs who held NCR over the whole of Lot 2 had sold, transferred and/or assigned various lands within Lot 2 to the first OS defendant, which lands were then developed into palm oil plantation by the other OS defendants. The OS defendants thus opposed Tung Huat’s application for possession on the ground that they had legally purchased or acquired or had been assigned NCR land within Lot 2. Proceedings in the High Court [10] In the High Court, the plaintiffs claimed that they have acquired and/or inherited NCR over an area of land which is shaded in yellow in the map marked as “M” attached to the statement of claim (exhibit P2). [11] The first plaintiff, Jeli anak Naga (PW1) testified that since the predecessors of the plaintiffs move into the area, they had acquired NCR over Sg. Sibuti, Sg. Kelitang, Sg. Klad and Sg. Bakas where they planted padi, fruit trees and rubber trees. According to PW1, each longhouse had their pemakai menoa which encompassed an area of land belonging to their longhouse, their farms, gardens, fruit groves, cemetery, water and forest within a defined boundary (garis menoa). It was also the evidence of PW1 Civil Appeals No. Q-01-94-03/2014 & Q-02-485-03/2014 7 that they foraged the jungle within their pemakai menoa for jungle produce such as rattan, wild vegetables, wild fruits and herbal medicine and that from time to time, they would open up new temuda (area of land cleared and cultivated). [12] The other plaintiffs repeated the same evidence where they had also described the boundary of their pemakai menoa. Esentially, their evidence revealed that the pemakai menoa included the temuda, the tembawai (old longhouse sites) and pulau being their virgin forest which is kept as a reserve providing the community with forest produce for domestic use and future use to allow for population growth of the longhouse. [13] The plaintiffs made reference to the Sarawak Gazette, December 31, 1956 (exhibit P84) and the Sarawak Museum Journal No. 67 (New Series) December 1994 (exhibit P13) to support their contention that their ancestors had migrated and settled in the Sibuti area since 1930s. [14] The plaintiffs also led evidence through Yusuf bin Abdullah @ Sanggong anak Bungu (PW12) who went to the ground to survey the location or land mark of the boundary of the land. The location or boundary was pointed out by the land owners. PW12 collected the data using a GPS or compass which he then recorded into the GPS memory and in his field book. Upon completing the survey, PW12 passed the data and the information collected to Mark Bujang (PW15) in BRIMAS to produce a map of the pemakai menoa of the community concerned in the survey. [15] The map exhibit P2 was produced by PW15 based on the data stored in the GPS equipment and field book recorded by PW12. PW15 plotted the Civil Appeals No. Q-01-94-03/2014 & Q-02-485-03/2014 8 data on a detailed locality plan purchased from the Lands & Surveys Department, to show the location of Sungai Serunggut, the NCR land and Lot 2 claimed by the plaintiffs within the perimeter outlined in red and a proposed Native Communal Reserve in the map. PW15 also prepared the maps exhibits P3, P4 and P88. Both exhibits P2 and P3 showed the size and perimeter outlined in red of the NCR land claimed by Rumah Jeli, Rumah Duat, Rumah Edward Ekau, Rumah Jambai and Rumah Rajit. The maps further showed that the claimed NCR land has been divided into two halves along a line running from Kubur Selungut to Wong Kelat. [16] For the defendants, Roslan bin Mohamad Ramli (DW3) prepared a plan based on aerial photographs and aerial surveys over the area covered by Lot 2 and claimed by the plaintiffs. Based on the aerial photographs and surveys in 1951 and in 1963, DW3 prepared a report (exhibit D39). [17] The aerial photographs and surveys in 1951 showed that Lot 2 was covered with primary forest of approximately 3436 hectares and there was a cleared area of approximately 13 hectares. The aerial photographs taken in 1963 showed that the primary forest inside Lot 2 was approximately 3053 hectares and the cleared areas had increased to approximately 380 hectares. [18] The evidence further revealed that due to the disputes between the parties in the OS and the civil suit over the NCR land in Lot 2, a fact-finding visit was made on 11.3.2010 organized by the Resident Office, Miri, which included representatives from the Miri Resident’s Office, Polis Diraja Malaysia, Miri Land & Surveys Department, MPOB, LCDA, Sub-District Office of Sibuti, Tung Huat and the owners of the oil palm gardens or Civil Appeals No. Q-01-94-03/2014 & Q-02-485-03/2014 9 plantations within Lot 2. This team visited Rumah Jambai, Rumah Rajit, Lot 2 and the palm oil estates belonging to some of the OS defendants. [19] Based on the visit and fact-findings, the team concluded that approximately 1,471.47 hectares of the land inside Lot 2 have been cleared and farmed by the residents of Rumah Rajit, Rumah Jambai, Rumah Duat and Rumah Jeli and some of the land had been sold to the OS defendants. The team found that the residents of these four longhouses commenced planting of oil palm in 1982 with subsidies given by the Agriculture Department and that the OS defendants commenced planting oil palm in

There was no other evidence to contradict the findings of the team. [20] Nicholas Bawin anak Anggat (PW16), an Iban and a former Deputy President of the Majlis Adat Istiadat Sarawak testified that in the past, when native families intended to clear virgin forest area, they would perform a ritual ‘panggul menoa’ before clearing the virgin forest for settlement and farming. The felled area and the forest would thereafter became their pemakai menoa. [21] It was further the testimony of PW16 that the rights to NCR lands are inheritable, passing from one generation to generation within the family. The rights to parcels of land is lost if it is transferred to another person for example, a sibling, a cousin or a relative and the transferee must provide ‘tungkus asi’ for the land given or transferred. The right is also lost if the person moves to another district or to a different Penghulu’s jurisdiction through a marriage or migration. Civil Appeals No. Q-01-94-03/2014 & Q-02-485-03/2014 10 [22] By twenty seven (27) agreements entered into between the first OS defendant and the residents of Rumah Tinggi, Rumah Balau, Rumah Rajit (formerly known as Rumah Assap) and Rumah Jambai (formerly known as Rumah Barau) from 9.11.1988 to 1.10.2005 (exhibit D6), the residents of the four (4) longhouses agreed to assign their NCR land of various sizes ranging from 6 acres to 240 acres for consideration of payment of money ranging from RM6,000.00 to RM235,000.00 to the first OS defendant. Findings of the High Court [23] Based on the testimony of PW1, Kudai anak Umeh (PW2), Jambai anak Jali (PW4), Joing anak Buau (PW5), Edward Ekau anak Simbeng (PW6) and Rajit anak Ambas (PW9) and the two publications (exhibits P13 and P84), the learned judge found that the plaintiffs’ ancestors or predecessors have migrated and settled in the area claimed since 1930s. On a balance of probabilities, the learned judge found that the plaintiffs have acquired or inherited NCR over an area of land at Sibuti area. The question that remained for determination by the learned judge was, which and what area, and the size of the NCR land have the plaintiffs acquired or inherited. [24] The learned judge observed that the map exhibit P2 cannot be accurate or correct because it was based on the survey carried out by PW12 on hearsay of some of the residents of the longhouses and on the points or landmarks shown to PW12 by some of the residents who did not testify. PW12 did not verify these points when he took the GPS readings. He did not take many GPS points on the perimeter of the claimed land nor the perimeter of Lot 2. Civil Appeals No. Q-01-94-03/2014 & Q-02-485-03/2014 11 [25] From the aerial photographs and report made by DW3, the learned judge found that in 1951, the ancestors and/or the plaintiffs had not cleared the virgin jungle in Lot 2 except for the area of 13 hectares which were cleared for shifting cultivation and situated on the western perimeter of Lot 2, nearer to the present Rumah Edward Ekau, previously known as Rumah Anggon. [26] The learned judge considered the aerial photographs taken in 1961 and 1962 where his Lordship found that in 1963, the size of the cleared areas within Lot 2 had increased to 380 hectares. DW3 was not able to pinpoint the dates on these clearances. However, according to the learned judge, this meant that the 380 hectares were cleared between 1951 and 1962. [27] On a balance of probabilities, the learned judge found that the plaintiffs have acquired NCR over 380 hectares of the land inside Lot 2 as shown in exhibit D42. The plaintiffs’ claim was allowed to the extent that the plaintiffs have NCR over 380 hectares of the land. These 380 hectares were to be excluded and excised from Lot 2. The learned judge made an order that the exact perimeter and area of the 380 hectares in Lot 2 were to be confirmed by a ground survey to be jointly carried out by the plaintiffs and the defendants. The plaintiffs’ prayers (i), (ii), (iii), (iv), (v), (vi) (vii), (viii) and (ix) in terms as set out in the statement of claim were refused. [28] In respect of the OS, the learned judge found that the OS defendants had not adduced any evidence that they had entered and occupied the land within Lot 2 with the license or consent of Tung Huat or that of its predecessors in title. The OS defendants therefore had no right to occupy the land within Lot 2. Tung Huat being the registered owner of Lot 2 was Civil Appeals No. Q-01-94-03/2014 & Q-02-485-03/2014 12 entitled to recover and have possession of Lot 2, except the 380 hectares shown in exhibit D42. The learned judge allowed the OS and granted possession of the land to Tung Huat minus the 380 hectares. The Appeal [29] The OS defendants filed an appeal against the whole order of the High Court allowing Tung Huat’s application for possession under O. 89 of the Rules of the High Court 1980. The plaintiffs filed an appeal against the whole decision of the learned judge in dismissing the plaintiffs’ claim as per prayers

(i) to (ix) of the statement of claim. Tung Huat filed a cross-appeal in respect of the learned judge’s order that the plaintiffs have NCR over 380 hectares within Lot 2. [30] The learned judge had accepted that the plaintiffs and their ancestors were in occupation of the land claimed and had acquired or inherited NCR over an area of land at Sibuti area. The learned judge however restricted the plaintiffs’ claim to only cleared areas based on the aerial photographs. [31] In Director of Forest, Sarawak & Anor v TR Sandah Tabau & Ors and Other Appeals [2017] 3 CLJ 1 (“TR Sandah”), the Federal Court was called upon to determine inter alia the following question of law: “whether the pre-existence of rights under the native laws and customs which the common law respects include rights to land in the virgin/primary forests which the natives, like the respondents and their ancestors (who are Iban by race), had not felled or cultivated but were forests which they have reserved for food and forest produce.” Civil Appeals No. Q-01-94-03/2014 & Q-02-485-03/2014 13 [32] The question was answered in the negative by a majority. [33] Before us, learned counsel for the plaintiffs submitted that the decision of the learned judge ought to be overturned on the following grounds:

(i) NCR claims by pemakai menoa and pulau galau is valid at law; and

All this showed that the plaintiffs failed to prove that they had cultivated the PL area before 1.1.1958 or that they had their pemakai menoa or pulau galau over the PL area prior to 1.1.1958. Civil Appeals No. Q-01-94-03/2014 & Q-02-485-03/2014 16 [41] In respect of the cross appeal, it was submitted for the first and second defendants that the decision of the High Court to award 380 hectares within the PL to the plaintiffs based on the aerial photographs in year 1963 was wrong. It was submitted that it was more likely that the clearing was done by the residents of Rumah Anggon, now Rumah Edward Ekau. However, as the plaintiffs’ claim of NCR was communal instead of individual, all of the plaintiffs’ claim must fail. Further it was submitted that the plaintiffs suffered a lack of representative authority to bring their communal NCR claim for and on behalf of their respective longhouses. [42] For the State Government (the third and the fourth defendants), it was submitted that there was no reason for appellate intervention. The learned judge had found as a fact that the plaintiffs had not discharged the burden of proof that they had NCR over Lot 2 except for the 380 hectares of cleared area. The law is quite clear that any creation of NCR must be before 1.1.1958 and based on the majority decision of the Federal Court in TR Sandah, NCR does not extend to areas of forests where the natives or their ancestors had entered into in search of food and jungle produce. [43] For Appeal No. 485, the OS defendants’ case was that they were sold, transferred and/or assigned various lands within Lot 2 by the plaintiffs. The OS defendants stated that the 27 agreements (exhibit D6) executed between the first OS defendant and the various residents of Rumah Tinggi, Rumah Balau, Rumah Rajit (formerly Rumah Asap) and Rumah Jambai (formerly Rumah Barau) were not sale and purchase agreements but assignment agreements. Civil Appeals No. Q-01-94-03/2014 & Q-02-485-03/2014 17 [44] It was submitted that the plaintiffs have the right to assign their NCR lots to the first OS defendant in accordance with their customs as is practiced today and in consonance with the continuous practice of the Iban in their community. The OS defendants relied among others on the decision of David Wong Dak Wah J (as he then was) in Mohamad Rambli Kawi v Superintendent of Lands Kuching & Anor [2010] 8 MLJ 441 where his Lordship stated that he saw no reason why natives should not possess such rights of disposition of their native customary land as non-natives have in titled land. Our Findings [45] The plaintiffs relied on map “M” to seek inter alia a declaration that the plaintiffs have acquired NCR over the land shaded in yellow in the map exhibit P2. As observed by the learned judge, in relation to the map exhibit P2, the plaintiffs’ claim was only in respect of Lot 2 and not over the area claimed within the perimeter outlined in red in exhibit P2. Hence, our concern was whether the plaintiffs had created or inherited NCR over areas within Lot 2. [46] Section 5(1) of the Sarawak Land Code provides: “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 Civil Appeals No. Q-01-94-03/2014 & Q-02-485-03/2014 18 State land any person in occupation thereof shall be deemed to be in unlawful occupation of State land and section 209 shall apply thereto.”. [47] It was the case of the first and the second defendants that the plaintiffs had failed to prove on the balance of probabilities that they had acquired NCR over the whole of Lot 2 prior to 1.1.1958 communally and/or individually; that even if the native plaintiffs had acquired any NCR within Lot 2 prior to 1.1.1958, it was only 13 hectares based on the aerial photographs taken in 1951; that further and/or alternatively, even if the native plaintiffs had acquired any NCR within Lot 2 prior to 1.1.1958, it was confined to 380 hectares based on the aerial photographs taken in 1963 and that the native plaintiffs had no NCR over the balance of Lot 2 except the 13 hectares and/or the 380 hectares. [48] For the third and fourth defendants, it was submitted that the learned judge was not wrong in dismissing the plaintiffs’ claim except for the 380 hectares of cleared land. [49] We were not satisfied that the learned judge was plainly wrong in his decision as to warrant our appellate intervention. His decision could not be said to be so unreasonable that no reasonable tribunal would have come to that conclusion. There was ample evidence to support the findings of the learned judge. Hence, it cannot be said that his Lordship had so fundamentally misdirected himself that we had a duty to intervene (see Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395; China Airlines Ltd v Maltran Air Corp Sdn Bhd & Another Appeal [1996] 3 CLJ 163; Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 Civil Appeals No. Q-01-94-03/2014 & Q-02-485-03/2014 19 MLJ 1; and Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 CLJ 453). [50] In concluding that the plaintiffs had NCR over 380 hectares, the learned judge relied on the maps based on aerial photographs and aerial surveys over Lot 2 produced by DW3. The report of DW3 was exhibited as D39. The 1963 aerial photograph in Appendix B of D39 showed that the area in Lot 2 was covered by primary forest except for approximately 380 hectares that was cleared. The learned judge further found that there was no dispute nor challenge by the plaintiffs to this fact. [51] Further, the learned judge’s decision that the plaintiffs had only acquired NCR over the 380 hectares of cleared land and not the rest of Lot 2 which was virgin/primary forests, not felled and cultivated prior to 1.1.1958 was consistent with the majority decision of the Federal Court in TR Sandah. [52] By the doctrine of stare decisis, it was the majority decision that we should follow (see Barat Estates Sdn Bhd v Parawakan a/l Subramaniam [2000] 4 MLJ 107; Fawziah Holdings Sdn Bhd v Metramac Corp Sdn Bhd [2006] 1 MLJ 435) and it was our position that the decision of TR Sandah was a majority decision. We were thus not convinced that we should depart from the majority judgment of the Federal Court in TR Sandah. Premised on TR Sandah, the learned judge was correct to dismiss the plaintiffs’ claim except for the cultivated area of 380 hectares as the plaintiffs had no NCR over the balance of Lot 2 which was not cleared by the plaintiffs and/or their ancestors prior to 1.1.1958. As such, we did not see the need to consider the authorities cited on the merits of the plaintiffs’ argument that the custom Civil Appeals No. Q-01-94-03/2014 & Q-02-485-03/2014 20 of pemakai menoa and pulau falls within the definition of law in Article 160(2) of the Federal Constitution. [53] As regards appeal No. 485, the issue was (if at all the plaintiffs had NCR over the area claimed in Lot 2), whether they could sell, transfer or assign those parts of the land to the first OS defendant. [54] In an action for vacant possession under Order 89, it must be proven that the occupier of the land has occupied the land without the license and consent of the owner or its predecessor (see Bohari bin Taib v Pengarah Tanah dan Galian Selangor [1991] 1 MLJ 343; Shaheen bte Abu Bakar v Perbadanan Kemajuan Negeri Selangor [1996] 1 MLJ 8250). [55] The only defence to Tung Huat’s action under O. 89 was that the OS defendants had the right to occupy the various portions of the land within Lot 2 because those lands were NCR lands which were assigned to the first OS defendant by the various longhouse occupants occupying Lot 2. [56] In Bisi Jinggot (supra), the Federal Court were invited to determine two

(a) upon establishment of the same as law under s. 2 of the Fruit Trees Order 1889, of the Rajah; and/or

(b) upon the subsequent repeal of the said Rajah’s Order?” Civil Appeals No. Q-01-94-03/2014 & Q-02-485-03/2014 21 [57] Suriyadi Halim Omar FCJ stated at pg. 827: “[38] … The tungkus asi is a form of token (tanda) symbolizing the transfer of rights of the cleared land to the new owner. This token is customarily of little value, perhaps fetching the value of a pig, usually handed down over the front of the head of the community. The appellant, though an Iban, will fail to qualify as a legitimate recipient of the temuda from the vendors as he is not a native of that community. … [40] With the ineligibility of the appellant to inherit or acquire through the tungkus asi procedure, let alone the litany of case laws, inclusive of Sat ak akum & Anor v Randong anak Charareng (supra) and Sumbang anak Sekam v Engkarang anak Ajah (supra), establish that individual customary rights are not transferable by sale or otherwise for value thus invalidating the S&Ps, the position of the appellant is tenuous. With the S&Ps being in contravention of customary land law in force immediately prior to 1 January 1958, the answer to questions 1(a) and (b) therefore must be in the negative.”. [58] In the light of the Federal Court decision in Bisi Jinggot which held that except for tungkus asi, the sale, assignment or transfer of NCR land through modern instruments of conveyancing was not permissible, the OS defendants’ reliance on the judgment of the High Court in Mohamad Rambli Kawi (supra) was misplaced. [59] It must be emphasized that the first OS defendant is not an Iban from Sibuti or nearby Lot 2 area nor a member of the community that had cultivated Lot 2 prior to 1.1.1958. Therefore the first OS defendant could not have inherited the NCR through the adat tungkus asi. Civil Appeals No. Q-01-94-03/2014 & Q-02-485-03/2014 22 [60] The agreements executed by the first defendant OS were sale and purchase agreements where money had changed hands and the assignors had relinquished their rights over their respective lands in favour of the first OS defendant. [61] Even if the agreements executed by the first OS defendant were assignment agreements, the OS defendants were still not entitled to possession of those lands because they ran foul of the adat tungkus asi as the agreements were signed for valuable consideration. Under the law, it is clear that NCR cannot be sold, transferred or assigned for valuable consideration. On the authority of Bisi Jinggot, it was illegal for any NCR lands to be sold or assigned to the first OS defendant. The OS defendants have also failed to show that they had the license or consent of Tung Huat or its predecessor to occupy the various portions of the land within Lot 2. [62] The learned judge was therefore correct to rule that the plaintiffs could not have sold, assigned or transferred the land within Lot 2 to the first OS defendant and that the OS defendants did not have the license and consent of Tung Huat to occupy the lands within Lot 2. The plaintiffs had not acquired or inherited NCR over the land within Lot 2 except for the 380 hectares which were cleared previously prior to 1958. The plaintiffs therefore had no NCR and could not sell, transfer or assign the land within Lot 2 to the OS defendants. Consequently, we agreed with the learned judge that the occupation of the OS defendants of various parts of Lot 2 was illegal. [63] For the above reasons, we unanimously dismissed both the plaintiffs’ appeal and first and the second defendants’ cross appeal in Appeal No. 94 Civil Appeals No. Q-01-94-03/2014 & Q-02-485-03/2014 23 with no order as to costs. We also dismissed the OS defendants’ appeal in Appeal No. 485 with costs. Dated: 5th October 2018 signed (TENGKU MAIMUN BINTI TUAN MAT) Judge Court of Appeal Counsel/Solicitors : For the Appellants: Baru Bian (Joshua Baru with him) Messrs. Baru Bian Advocates For the Respondents: Mohd Adzrul bin Adzlan (for the 2nd and 4th Respondents) Jabatan Peguam Besar Negeri Sarawak Rajesh Jethi (for the 1st and 3rd Respondents) Messrs. Jethi & Associates