Yahya Bin Timbon v Kumpulan Parabena Sdn. Bhd. (Q-02(A)-537-03/2018)

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1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. Q-02(A)-537-03/2018

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(ii) Contradictions in the defendants’ evidence as to when the land was cleared. Haslan and Mahari said they were told by their late fathers it was before the Japanese occupation but Yahya said it was after the Japanese occupation.

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(iii) Yahya’s evidence of the existence of a 100 years old jackfruit tree on the land was later admitted by him in cross-examination to be outside the disputed land and he was also unable to plot the position of the said tree on the map tendered by the defendants as Exh. D3 at the trial [see page 259 of the Appeal Record Volume 3 – Part C (Amended))]. We pause to note that the three defendants have used this map to plot the areas cleared by their ancestors – Haslan drawing a red line to indicate so but Mahari and Yahya indicated the whole two lots as their cleared area which the learned JC said was not reasonable for as noted by His Lordship the total acreage of the two lots is about 1,000 acres or 489.5 hectares. 7

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(iv) Acceptance by the learned JC of the evidence of the plaintiff’s witness, Eric Dexter Ridu (PW2) an Assistant Surveyor with the Land and Surveys Department who testified that from the aerial photographs of the land in 1951 and 1961, only 1.7 hectares of the two lots was cleared and the rest were primary forest. The cleared area, according to PW2 could be logging tracks. His report on the interpretation of the aerial photograph is at pages 220 to 227 of Appeal Record Volume 3 – Part C (Amended).

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(ii) the Federal Court decision in Director of Forest, Sarawak & Anor v TR Sandah Tabau & Ors And Other Appeals [2017] 3 CLJ 1 is no longer good law;

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(iii) The plaintiff’s title to the land is defeasible. 11 Establishment Of NCR [10] In order to put the arguments of the parties herein in a better perspective and before delving into the merits of the appeal, it is best that we first mention that as at the date when we heard the appeal and delivered our decision, the methods upon which NCR are created as statutorily provided under Section 5 (2) of the Land Code are as follows: “(a) the felling of virgin jungle and the occupation of the land thereby cleared;

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(2) Any claim under subsection (1) shall be made to the Superintendent in such form as may be provided by the Director with all evidence in support of such claim: Provided always any area claimed as native territorial domain shall not exceed five hundred hectares;

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(3) If the Director approves the claim, the Superintendent shall issue a native communal title, describing the area as a native territorial domain, which shall be used exclusively by the native community for agricultural purpose or such other purposes as may be approved by the Majlis Mesyuarat Kerajaan Negeri and subject to any other terms and conditions that the Director may imposed: 13 Provided that the native communal title shall –

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(4) In the event that the Director rejects the claim, any person aggrieved by his decision may within thirty days from the date when the decision of the Director is conveyed to him, appeal to the Minister who shall consider the appeal.

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(5) Where any question shall arise as to whether any person is a member of the native community named in the native communal title issued under subsection (3), the person or body of persons in whose name the native communal title is issued shall refer the same to the District Native Court for a decision, and such reference shall be instituted and dealt with in accordance with rules made under the Native Courts Ordinance, 1992 [Ord. No. 9/92].

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(6) Any claim for a native territorial domain shall not be made or allowed in respect of any area or land where, before the coming into force of this section, there is a final decision by a court of competent jurisdiction that no usufructuary rights have subsisted or have been lost or abandoned by members of the native community making that claim.”. 14 [13] The said Bill was gazetted on 6/8/2018 but as at the date of the hearing of the appeal before us, it has yet to be enforced. The Amendment Ordinance only came into force on 1/8/2019 and the determination of this date was done pursuant to section 1 (2) thereof which clearly states that: “(2) This Ordinance shall come into force on such date as the Minister may, by notification in the Gazette, appoint, and the Minister may appoint different dates for the coming into force of different provisions of this ordinance.” [14] Other than their collective oral evidence on the establishment of their village, cultivation and usage of the land, the defendants have, as we had mentioned earlier, tendered the 1951 letter. They have also produced as evidence the birth certificates of Hazlan [at page 144 of Appeal Record Part C (Amended)], a fellow villager named Juita (page 145) and Juhani (page 146) which shows their respective dates of birth as 25/6/1962, 19/10/1959 and 4/10/1960 and place of birth as Kampung Sungei Baluboh and Sungai Baluboh, respectively. [15] Also produced at the trial are official correspondences with Land and Survey Department on the villagers’ application for recognition of their right and usage of the land dated 5/11/1980, 26/11/1993, 8/7/1995, 15 30/10/1995, 21/3/1996 and 16/5/2012 (at pages 147 to 151 and 153 respectively of the same Appeal Record) which have all been agreed as to authenticity only. Nonetheless, given that these are official documents issued by the Government (both Federal and State) we do not think there is any reason to doubt the correctness of their contents – that the above-named persons were born in the said village and there had been attempts made, since 1980, to have the defendants’ village officially recognised by the State Government. Admittedly, the birth certificates tendered especially that of Juita which shows her year of birth as 1959 is quite close to the cut-off date of 1/1/1958 but still these dates still do not correspond with the said cut-off date. As for the 1951 letter, obviously that would be the best documentary evidence to show the existence of the village before the said cut-off date but unfortunately for the defendants and as held by the learned JC, there is no evidence to support that this Hj. Sakiria was the headman of their village. Such corroborative evidence is required in this case because as shown in the said minute Hj. Sakiria was listed as the headman of “Luak” and paragraph 8.1 (at page 30 of the Appeal Record Volume 1 – Part 4) states the location of the village graveyard as Jalan Bakam. The 1951 letter in fact listed one Usop as the Ketua Kampung of Bakam. Further, the undisputed evidence is that the location of the plaintiff’s two leases are in Lambir Land District. Therefore, it behoves upon the defendants 16 to lead evidence that Bakam, Lambir Land District and Luak are all not just part and parcel of the same area but more importantly the connection of these named places to their village. [16] Adding to the unsatisfactory evidence adduced by the defendants which had contributed to the failure in the assertion of their claim is the learned JC’s questioning of the credibility of the defendants as witnesses at the trial which we could find no good reason to disagree with. We had mentioned these evidence earlier but wish to reiterate the same again now. The first of it is the rather incredulous evidence of Mahari and Yahya, given the combined huge acreage of the land covered by the two leases that the whole acreage had been cleared by their ancestors and them. The second is Yahya’s evidence where he referred to a 100 years old jackfruit tree on the disputed land being planted by his ancestor as proof of their occupation of the said land but later agreeing in cross-examination that the said tree was outside the two leases. Then there is the evidence of Mahari in cross-examination that he himself does not know if his ancestor cleared the land before 1958 or after. As was held by the Federal Court in a recent decision on NCR, to wit, Director of Forest & 2 Ors v Nicholas Mujah Anak Asou & 2 Ors (Civil Appeal No. 01(f)-30-06/2017 (Q): 17 “[73] Only in a case where it has been shown to the satisfaction of the appeal tribunal that the impugned decision has been one that is plainly wrong, would the appeal tribunal weigh in and invoke its appellate power in order to right a wrong decision in plain sight. The well entrenched principle on appellate intervention of a trial court’s decision has been consistently applied by the appellate courts and was reiterated by the apex Court in the case of Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441. In citing Gan Yook Chin v Lee Ing Chin [2005] 2 MLJ 1, the apex Court also adverted to the case of UEM Group Bhd v Genisys Integrated Engineers Pte Ltd [2010] 9 CLJ 785, where it was stated that “a plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of the evidence.” The English House of Lords’ decision in the case of Watt v Thomas [1947] AC 484 was cited, inter alia, in support thereof. In fact, as relatively recently as in 2014, the English Supreme Court in Henderson v Foxworth Investments Ltd and Another [2014] 1 WLR 2600 (“the Henderson’s case”) considered and explained the ‘plainly wrong’ test as follows: “62. Given that the extra Division correctly identified that an appellate court can interfere where it is satisfied that that criterion was met in the present case, there may be some value in considering the meaning of that phrase. There is a risk that it may be misunderstood. The adverb “plainly” does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty that the appellate court considered that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.”” (emphasis added) 18 [17] Applying the above principle in this appeal, we are unable to say that the learned JC had come to ‘a plainly wrong decision’ and was guilty of no or insufficient judicial appreciation of the evidence adduced before him at the trial. On the contrary His Lordship had, in our view correctly considered the evidence before him, though to the detriment of the defendants. [18] As for the photographic evidence of the village graveyard and tombstones of the villagers reproduced at pages 242 to 251 of the Appeal Record Volume 3 Part C (Amended), these could not be corroborative evidence of the defendant’s claim because the dates of the demise shown on the tombstone were not before or as at the all-important cut-off date. On this consideration and the fact as stated earlier on the location of the graveyard at Jalan Bakam, we cannot fault the learned JC’s reliance and acceptance of the evidence of Perk Sian Khiaw Soon (PW1), the plaintiffs’ manager at that material time, who said the graveyard is actually outside the leases. [19] Even if we were as equally wrong as the learned JC to consider the above issue against the defendants and to disregard the said evidence of PW2 that the cleared area was probably logging tracks which as submitted by learned counsel for the defendants was without 19 any supporting evidence of its own, we are still unable to make a contrary finding because firstly, the burden is on the defendants to prove their NCR over the disputed land and not for the plaintiff to prove otherwise. Secondly, even if we agree that the cleared area shown on the aerial photograph represents the defendants’ village, we are still prevented from giving effect to that evidence by reason of a Federal Court decision on indefeasibility of title. Indefeasibility Of Title [20] The Federal Court decision which binds us and militates against the granting of the reliefs claimed by the defendants in their counter-claim is TR Nyutan’s case (supra). It was held in the said case that once title to the land has been issued, the said title is indefeasible under section 132 of the Land Code. Even though the Federal Court agreed (in paragraph 32 of the judgment) that it should not been issued over land encumbered with NCR unless they have been extinguished but once issued, indefeasibility of title sets in. The pertinent paragraphs 39 – 41 of the judgment reads: “[39] For the reasons adumbrated above, we propose to answer the questions of law posed in the first and second defendants’ and in the interveners’ appeals in the following manner: The statutory provisions under s 132 of the Sarawak Land Code pertaining to indefeasibility of 20 title remain applicable even if it can be shown that NCR had been created over land in the manner prescribed under the Sarawak Land Code. A claim of NCR does not overrule the indefeasibility of title of land in a situation where the interest stated in the issued document of title was issued after NCR was asserted. Based on the facts, indefeasibility of title of the land prevails over a NCR claim. It is not a question of whether a claim for NCR overrides indefeasibility of title. Both these legal concepts exist side by side. [40] It is our judgment that a NCR claim without title should not be put on a better footing with differential treatment (Bato Bagi & Ors v Kerajaan Negeri Sarawak and another appeal [2011] 6 MLJ 297; [2011] 8 CLJ 766). A claim for NCR and indefeasibility of title exist side by side. Based on the facts of this case, the disputed land were converted to registered entities even before the plaintiffs succeeded in their NCR claim. [41] In the absence of the vitiating factors under s 132 of the Sarawak Land Code, the first and second defendants’ rights as leaseholders, and the first and second interveners as proprietors and the third intervener as chargee cannot be defeated by the plaintiffs’ NCR.” [21] Learned counsel for the defendants have also referred us to the judgment in Busing Jali v Government of Sarawak [2014] 1 LNS 623 which declared that a lease issued without extinguishment of NCR over the alienated land was null and void. With respect, the said decision is one of the High Court and is also distinguishable on the fact in that the lease in the said case was only a provisional one, unlike those in the appeal before us. Nonetheless, we say that what the learned JC (as 21 His Lordship then was) said in the cited case that the Land and Survey Department should make an investigation on the ground on the existence of NCR over the area identified before issuing the said lease makes perfect good sense. This, in order to avoid any further or potential dissatisfaction and trouble rising on the ground. Foraging Area [22] As stated earlier, the defendants also claimed that the other areas covered by the leases, aside from that occupied and cultivated by them and the villagers they represent, were also a place where they foraged and hunted for food and livelihood. Regrettably for the defendants, this very concept of usufructuary right over the land by the natives of Sarawak has been conclusively determined by the Federal Court in Director of Forest, Sarawak & Anor v TR Sandah Tabau & Ors And Other Appeal 2017] 3 CLJ 1. The Federal Court held that such a usage, that is the right to forage, under the custom called pemakai menoa dan pulau galau (for the Ibans in that case) is not one which has force of law for it fell short of the prerequisites as provided for under the said section 5 (2) of the Land Code whereas that of ‘temuda’ which is the custom of felling or clearing virgin jungle and cultivating the same does. This was what Raus Sharif, PCA said in the majority judgment at the relevant paragraphs 64 – 67 thereof: 22 “[64] With respect, we disagree. This is not a case where we are called upon to consider whether such a practice exists or otherwise. Rather, what is pertinent here is whether the practice which exist has any force of law. In art. 160(2) of the Federal Constitution, “law” is defined as follows: Law includes written law, the common law in so far it is in operation the Federation or any part thereof, and any custom or usage having the force of law. [65] The words “having the force of law” in art. 160(2) of the Federal Constitution are highly important as these words qualify the types of customs and usages which could come under the definition of law. These important words “having the force of law” must be taken to mean not all customs or usages come within the definition and implies that there are customs and usages which do not have the force of law and hence not within the definition of law. [66] In the present appeals, the courts below should take into account the definition of customary laws under Sarawak State Laws which has been defined to mean “customs which the laws of Sarawak recognise”. This must be taken to mean existing customs which have the force of law. Put simply, there are customs which the laws of Sarawak does not recognise and hence do not form part of the customary laws of the natives of Sarawak and remain merely as practices or usages of the native. They are not integral to the particular community in question and remain incidental. As such they do not come within the definition of law under art. 160(2) of the Federal Constitution. [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 23 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 good, 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.” [23] We are obviously bound by the above decision by the principle of stare decisis and in this regard the decision of the Federal Court in Dato’ Tan Heng Chew v Tan Kim Hor & Another Appeal [2006] 1 CLJ 583 is instructive: “[2] ... It is axiomatic to state that the doctrine of stare decisis has become the cornerstone of the common law system practised in this country. It is fundamental to its existence and to the rule of law. It has attained the status of immutability. In Public Prosecutor v Datuk Tan Cheng Swee & Anor [1980] 2 MLJ 277, Mr. Justice Chang Min Tat had occasion to restate the doctrine in words which are poignantly clear when he said: It is ... necessary to reaffirm the doctrine of stare decisis which the Federal Court accepts unreservedly and which it expects the High Court and other inferior courts in a common law system such as ours to follow similarly. [3] Judicial hierarchy must be observed in the interests of finality and certainty in the law and for orderly development of legal rules as well as for the courts and lawyers to regulate their affairs. Failure to observe judicial precedents would create chaos and misapprehensions in the judicial system. This fact was certainly borne in mind by the Court 24 of Appeal in Periasamy s/o Sinnapan & Anor v Public Prosecutor [1996] 2 MLJ 557 wherein Gopal Sri Ram JCA said: We may add that it does not augur well for judicial discipline when a High Court judge treats the decision of the Supreme Court with little or no respect in disobedience to the well-entrenched doctrine of stare decisis. We trust that the occasion will never arise again when we have to remind High Court judges that they are bound by all judgments of this Court and of the Federal court and they must, despite any misgivings a judge may entertain as to the correctness of a particular judgment of either court, apply the law as stated therein. [4] The observation is but a stark reminder to judges of the importance of adhering to the doctrine. ...” (emphasis added) Thus, based on the above apex court’s decision, there is no way the defendants could claimed the non-cleared area covered by the said leases. Amended Law [24] Learned counsel for the defendants urged us to take cognizance of the Amendment Ordinance which we had reproduced earlier as it in effect gives statutory recognition to this very concept of pemakai menoa and pulau galau under the term ‘territorial domain’. Much as we are heartened by this development of the law which puts to rest the thorny aspect of NCR claim in Sarawak, a glaringly obvious fact which prevented us from using it as justification not to follow the principle of 25 stare decisis is the fact that the Amendment Ordinance has no retrospective effect. As we had stated earlier, the said Ordinance only came into effect on 1/8/2019. That being so, we could only apply the law as it exist at the time of the hearing and not after. In saying this we are guided by the Federal Court’s decision in Ireka Engineering & Construction Sdn Bhd v PWC Corp Sdn Bhd and other appeals [2020] 1 MLJ which held as follows: “[42] ...The trite general principle is that an Act of Parliament is not intended to have a retrospective operation unless a contrary intention is evinced in express and unmistakable terms or in a language which is such that it plainly requires such a construction. Another principle of statutory interpretation which applies with equal force is that legislation to regulate human conduct ought to deal with future acts and ought not to change the character of past transactions carried on upon the faith of the existing law (Thornton: Legislative Drafting, 4th Ed at p 135). [43] There is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used, or unless a contrary intention appears (Yew Bon Tew & Anor v Kenderaan Bas Mara [1983] 1 MLJ 1; Tenaga Nasional Bhd v Kamarstone Sdn Bhd [2014] 2 MLJ 749). In other words, there is, so to speak, a presumption that legislation speaks only as to the future (West v Gwynne [1911] 2 Ch 1). [44] As a necessary reminder, lest we forget, in construing a statute, it is also relevant to consider our own interpretation statute namely Act 388 in particular sub-s 19(1) which provides: 26 19(1) The commencement of an Act or subsidiary legislation shall be the date provided in or under the Act or subsidiary legislation or, where n date is so provided, the date immediately following the date of its publication in pursuance of section 18. (Emphasis added.) [45] The requirement of the aforesaid provisions is further made clear and reinforced by sub-s 43(a) of Act 388 which states in peremptory terms that:

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(3) PART I shall not apply where there is –

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(1) TH Pelita Sadong Sdn Bhd & Anor v TR Nyutan Anak Jami & Ors & Other Appeal [2018] 1 MLJ 77;

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(2) Ladd v Marshall [1954] 1 WLR 1489;

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(3) Lau Soo Sun v Goverment of Malaysia [1970] 2 MLJ 70;

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(4) Powerscan Company Ltd. v Nuctech Company Ltd & Anor [2018] MLJU 58;

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(5) Director of Forest, Sarawak & Anor v TR Sandah Tabau & Ors And Other Appeals [2017] 3 CLJ 1;

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(6) Director of Forest & 2 Ors v Nicholas Mujah Anak Asou & 2 Ors (Civil Appeal No. 01(f)-30-06/2017 (Q);

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(7) Busing Jali v Government of Sarawak [2014] 1 LNS 623;

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(8) Director of Forest, Sarawak & Anor v TR Sandah Tabau & Ors And Other Appeal 2017] 3 CLJ 1;

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(9) Dato’ Tan Heng Chew v Tan Kim Hor & Another Appeal [2006] 1 CLJ 583;

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(10) Ireka Engineering & Construction Sdn Bhd v PWC Corp Sdn Bhd and other appeals [2020] 1 MLJ.