Edham Bin Sakmad v Kinsamewa Sdn Bhd (S-01(A)-182-03/2022)

The OS 24-84/9 sought to set aside the decision of the 2nd 15 Respondent (Director of Lands & Surveys, Sabah (“the Director”)) dated 13.8.2020, which had in turn: (1) set aside the decision of the 3rd Respondent (Assistant Collector of Land Revenues Kota Belud (“ACLR”)) on 17.4.2018, which held that the Appellant was entitled to an area of 150 acres as claimed by the Deceased and (2) directed the process of 20 alienation of the land, as offered to and accepted by Kinsamewa Sdn Bhd (the 1st Respondent or “Kinsamewa”), to proceed with the issuance of title.

We heard the appeal on 15 July 2025. A draft of this judgment had been forwarded to the Right Honourable Wan Ahmad Farid bin Wan 25 Salleh, CJ and the Honourable Mohd Firuz bin Jaffril, JCA and their Lordships had expressed their agreement with the draft. Our unanimous judgment is set out below. S/N pV2qN/zgOki561rGyboPsA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

The background to this appeal is obtained from the Appeal Record, the Grounds of Judgment (GOJ) of the High Court and the submissions of the parties, both oral and written. 5

At all material times, the Appellant was acting as the Administrator of the estate of his late father Hj Sakmad Bin Hj Muhammad ("the Deceased"). In 1958, the Deceased applied to the ACLR under Land Application No. 224 of 1958 for 150 acres of state land at Kg. Rampayan, 10 Kota Belud (“the land” / “the land in question”) for cattle farming, to be held under a Country Lease. Indeed, the Deceased had entered and cleared the land before 1958 for cattle farming and put up timber posts and barbwire to fence the grazing land. He occupied the land for that purpose until he passed away on 26.11.1993. 15

The Department of Lands & Surveys had carried out survey along the fenced boundary of the land in 1972 which was re-surveyed in 1986 and 2002. Nevertheless, despite the completion of the survey, no offer to alienate the state land was issued to the Deceased and no grant of the 20 land applied for was ever made to him.

The Appellant had continued his efforts in obtaining the issuance of the land title for the land following the demise of the Deceased. Based on the official records (at pages 21 to 31 and 47 to 49 of the Core Bundle 25 Encl. 71), the ACLR and the Director were aware of the Deceased’s occupation and use of the land and the pending issuance of the land title. In May 2008, approximately 16 years later, the Appellant obtained an order S/N pV2qN/zgOki561rGyboPsA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 from the Mahkamah Rendah Syariah, whereby he was appointed as the administrator of the estate of the Deceased.

On 04.02.2009, the Director approved the Deceased's land application and recommended to the Setiausaha Hasil Bumi for the 5 issuance of the land title to the land in favor of the Deceased.

Whilst the issuance of the land title to the Deceased for the land was still pending, Kinsamewa (the 1st Respondent) applied on 20.10.2009 for 720 acres of land in PT.2009031305 in Kg Rampayang. Part of the area 10 of land applied for by the 1st Defendant overlapped with the land applied for by the Deceased.

Pursuant to the 1st Defendant's application, notice under section 13 of the Land Ordinance (Cap 68) (“Land Ordinance” or “the Ordinance” or 15 “Land Ordinance 1930”) was issued. Subsequently, a Letter to alienate Land dated 22.1.2014 was issued by the Director of the Lands and Surveys to the 1st Defendant under section 9 of the Ordinance for the land applied for, the exact boundaries to be determined by the District Surveyor after the survey was duly carried out. The 1st Defendant accepted the 20 offer.

The Appellant became aware of the 1st Defendant's application. It is common ground that in March 2014, the Appellant had objected to the 1st respondent’s authorized surveyor from entering the land to survey the 25 land. As well, the Appellant by way of his letter dated 19.3.2014 to the Director (see page 39 of Common Core Bundle Encl. 71) had objected to the application by Kinsamewa and its subsequent approval by the S/N pV2qN/zgOki561rGyboPsA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 Director. The ACLR’s Land Inquiry [12] On 23.03.2015, the Appellant, as the administrator of the estate of the Deceased, applied to the ACLR (3rd Defendant) for a determination of 5 NCR acquired by the Deceased over the land under sections 12 to 16 of the Ordinance. The ACLR first held a hearing of the Appellant’s objection and claim on 11.1.2016 without making any finding.

Thereafter, a Juruteknik Ukur Rendah from Pejabat Tanah, Kota 10 Belud carried out an inspection of the land in the presence of the Appellant, a resident of Kampung Rampayan Ulu and the staff of Kinsamewa (1st Respondent) on 11.5.2017. The inspection report confirmed the existence of remnants of structures, such as “bekas rumah kediaman (tinggal bekas) seolah olah terbakar’, “bekas kandang binatang 15 ternakan”, “pokok kayu telah hidup berbaris dijadikan pagar untuk kendang binatang fernakan pemohon” “bekas tiang pagar (kayu hidup) berbaris berbentuk putus pada sempadan kawasan’, “telaga”, and “kelapa tinggal 3 pokok”. 20 [14] On 1.2.2018, the ACLR held another hearing of the Appellant’s objection and claim.

On 17.4.2018, although the ACLR (3rd Respondent) found that the area of the land as claimed by the Deceased was once used by the 25 Deceased but had been abandoned, the ACLR decided that the Appellant was entitled to an area of 150 acres as claimed according to Adat, subject to availability and final field survey. Notably, the decision of the ACLR S/N pV2qN/zgOki561rGyboPsA **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 dated 17.4.2028 (at pages 44 to 46 of Encl. 71) shows that the land inquiry was held under sections 14 and 15 of the Ordinance. Proceedings before the Director (the 2nd Respondent) 5 [16] Dissatisfied with the decision of the ACLR, the 1st Respondent appealed to the Director (2nd Respondent) under section 41(1) of the Ordinance.

Upon hearing the appeal, the Director on 13.8.2020, although 10 accepting the fact that the Deceased did acquire, by use of the land claimed, NCR therein, found that any such rights acquired were abandoned as the Appellant had long left the area and had not worked on it, therefore not dependent on the land for livelihood. The Director found that the Appellant had not satisfied the criteria under section 15 (a) to (g) 15 of the Ordinance to entitle the Appellant to hold Native customary rights (“NCR”) in the area of the land claimed. (See paras 18 -19; 27 of GOJ of the High Court).

The Director therefore allowed the 1st Respondent’s appeal, 20 dismissed the Appellant’s NCR claim, set aside the decision of the ACLR and directed the process of alienation of the land as offered and accepted by the 1st Defendant to proceed with the issuance of title.

Aggrieved, the Appellant filed OS 24-84/9 to appeal against the decision of the 2nd Respondent dated 13.8.2020 under section 41 (1) of S/N pV2qN/zgOki561rGyboPsA **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 the Ordinance and order 55A of the Rules of Court 2012. The Appellant sought, inter alia, an order to set aside the decision of the 2nd Respondent (the Director), an order to uphold the decision of the 3rd Respondent (the ACLR) and a declaration that he is entitled to be issued with the document of title in Native title in respect of the land applied for by the Deceased. 5

The central issue for determination by the High Court was whether the land claimed by the Appellant could be said to be still lawfully in his possession under customary tenure within the meaning of section 15(a) of the Ordinance. 10

The learned High Court Judge (“LHCJ”) found as follows:

no offer to alienate land was ever issued by the 2nd Respondent to 15 the Deceased or the Appellant. An application for alienation alone confers nothing; until an offer is made and accepted, the 2nd Respondent was not bound to issue title (Sa-Mal (Sabah) Corporation Sdn Bhd v Director of Lands & Surveys [1994] 3 CLJ 229; [1994] 1 MLRH 571; Lim Fong Tsin v The Assistant Collector of Land [1997] 1 LNS 7; [1997] MLJU 20 484 and Workon Sdn Bhd v. The Director of Lands and Surveys,

evidence showed that the Deceased during his lifetime continuously occupied the 150-acre area for buffalo grazing, erecting timber posts and barbwire fencing. The Deceased therefore did create and acquire 25 customary tenure and held native customary rights by possession thereto under s.15(a) and s.66 Land Ordinance; S/N pV2qN/zgOki561rGyboPsA

although customary tenure arising from possession of the land is heritable and transferable (s.66 of the Ordinance), when the claimant (the Appellant here) inherits from a predecessor (the Deceased here) who acquired it, the claimant (the Appellant here), must still be in continuous occupation or cultivation as required by s.65 to maintain lawful 5 possession. Once acquired, NCR does not automatically continue in perpetuity if the inheritor does not use it;

The customary tenure created by the Deceased was extinguished due to abandonment, as:

the Appellant as the administrator of the Deceased’s estate, 10 had failed to maintain continuous occupation or cultivation of the land as required under s. 65 of the Ordinance. The Appellant’s counsel conceded that there was no evidence of continuous occupation, cultivation, or grazing by the Appellant after the Deceased passed away in 1993;

(ii) no evidence the Appellant had exercised control to prevent strangers from interfering with use after 1993 (Superintendent of Land & Surveys Miri Division & Anor v Madeli bin Salleh (suing as Administrator of the Estate of the Deceased, Salleh bin Kilong) [2008] 2 MLJ 677; [2007] 6 CLJ 509; Ara Binti Aman v 20 Superintendent of Lands and Mines [1975] 1 MLJ 208);

(iii) the Appellant only objected to the final survey by authorised surveyors under the offer to alienate land. This does not constitute sufficient evidence of "exclusive dominance" to establish any measure of control by the Appellant to prevent strangers from 25 interfering with his use of the land; S/N pV2qN/zgOki561rGyboPsA

following the 1st Respondent’s application for alienation of the land, notice under section 13 of the Ordinance was posted on the notice board of the Kota Belud Land Office for one month from 30.6.2020 until 30.7.2010. No one, not even the Appellant, came forward to claim NCR over the 1st Respondent’s application area. The 2nd Respondent was thus 5 entitled to “treat it as no (sic) such native customary rights existed and may dealt (sic) with the 1st Defendant under section 9 of the Land Ordinance (Cap. 68) which the 2nd Defendant did by the issuance to the 1st Defendant of the offer to alienate land.” (Ensui Gudul @ Godol v Suin @ Abdul Samad bin Dongkiris [2011] 3 MLJ 498; [2010] 18 MLRH 10 751);

finally, the decision of the Director allowing the 1st Respondent’s appeal was in substance and effect a decision to alienate State land under s.9 Land Ordinance. That being the case, the Appellant’s appeal is incompetent under s. 41(1)(d) of the Ordinance which bars appeals from 15 any decision of the Director under s.9 (Sa-Mal (Sabah) Corporation (supra); Lee Wah Eng v Ng Kui Fatt [2005] MLJU 117). [22] Premised on the grounds above, the High Court dismissed the appeal of the Appellant with costs. 20 Issues [23] The following five questions arise in this appeal:

whether, notwithstanding the concurrent finding by the 25 Director and the High Court that the Deceased had during his life time created NCR in the land under customary tenure, the S/N pV2qN/zgOki561rGyboPsA Appellant’s failure to continuously occupy or cultivate the land had extinguished the customary tenure created under s. 65 of the

(ii) did the Appellant abandon the land thereby extinguishing the 5 customary tenure in the land acquired pursuant to s. 65 read with s. 66 of the Ordinance;

(iii) whether, even if the land was abandoned in the absence of continuous occupation or cultivation, the High Court had jurisdiction 10 to extinguish the customary tenure in the light of the provisions of s. 36 of the Ordinance;

(iv) whether the Appellant’s NCR in the land is deemed extinguished as if no such rights existed since the Appellant had 15 failed to submit a claim for NCR over the area applied for by Kinsamewa (1st Respondent) within the prescribed timed under s. 13 of the Land Ordinance; and

whether the Appellant’s appeal to the High Court was 20 incompetent under s. 41(1)(d) of the Ordinance which bars appeals from any decision of the Director under s.9 of the Ordinance. Our Analysis 25 Is the Existence and Subsistence of Customary Tenure Dependent on Continuous Occupation or Cultivation? S/N pV2qN/zgOki561rGyboPsA [24] The key findings of the LHCJ in respect of this issue are these:

“Though, the customary tenure arising by the possession of the area of the land claimed from the prescribed activities carried out and held by the Deceased without title is heritable and transmittable to the Plaintiff 5 upon the death of the deceased in 1993, in my judgment, it does not mean that the customary tenure thereto could remain in existence and that the Plaintiff could hold Native customary rights as inherited from the Deceased without the continuous occupation or cultivation thereon as required by the definition of “customary tenure”.” (see para 45 GOJ);

(ii) “I do not agree with the submission of the learned counsel for the Plaintiff that the customary tenure once created by virtue of section 65 of the Land Ordinance (Cap. 68) and merely because it was inheritable and transferable like property would remain in perpetuity and can never be 15 treated as abandoned when the Plaintiff did not use it by continuous occupation or cultivation after the Plaintiff inherited it.” (see para 46 GOJ);

(iii) “In my judgment, even when the claimant had inherited the customary tenure in land from his/her predecessor who acquired and held 20 it without title, the claimant has to be in continuous occupation or cultivation as required by section 65 of the Land Ordinance (Cap. 68) to maintain the lawful possession of the land as required of customary tenure as defined thereunder.” (see para 47 of GOJ); and 25

(iii) “There was no evidence before the 3rd Defendant and the 2nd Defendant that after the Deceased passed away in 1993, the Plaintiff returned to and continued to occupy and carrying on the activities that the S/N pV2qN/zgOki561rGyboPsA Deceased had carried out before on the area of the land claimed which the learned counsel for the Plaintiff has conceded.” (see para 48 GOJ). [25] Learned counsel for the 1st Respondent argued that there are no errors of fact and law in all the above findings of the High Court in 5 interpreting customary tenure created under s. 65 as requiring continuous occupation or cultivation to preserve its validity or existence. [26] In contending to the contrary, learned counsel for the Appellant advanced the following arguments:

NCR is defined in s. 15(a) Land Ordinance to include land possessed by customary tenure. The threshold requirement to qualify as customary tenure under s. 65 of the Ordinance is lawful possession of land by “either continuous occupation or cultivation for three or more 15 consecutive years”. In the present case, it is an accepted fact that the Deceased had been in continuous occupation and use of the land for 35 years since before 1958 to 1993;

the present s. 65 of the Ordinance is the amended version of the 20 previous s. 4 of the Land Rules 1913 defining customary tenure. Likewise, the present s. 15(a) of the Ordinance is the amended version of the previous s. 26 of the Land Rules 1913. Consequential to the amendments to s. 26 and s. 4 of the Land Rules 1913, the abandonment proviso in s.4 and the alternative provision in s. 26 were removed as shown in the new 25 version in s. 15(a) and s. 65 of the Ordinance respectively. Therefore, the “three or more consecutive years” used in s. 65 of the Ordinance cannot S/N pV2qN/zgOki561rGyboPsA be taken as continuous occupation or cultivation after the Deceased had created customary tenure;

customary tenure created under s. 65 without documentary title is recognized as a valid interest in land being an exception to the concept of registration under s. 88 of the Ordinance. A native, such as the Deceased, 5 who has established customary tenure under s.15(a) and s.65 of the Ordinance, acquires an indefeasible interest in the land even if he does not hold a documentary title to it. In addition, the recent amendments to the Land Ordinance introducing a new s. 88A, which came into force on 14.05.2025, affirms the principle of indefeasibility of title or interest upon 10 registration subject to specific exceptions. The newly inserted s. 88A(4)(c) expressly provides that such indefeasibility of title shall not prejudice or prevent the determination of native customary rights (including customary tenure) in land. Until and unless such rights have been extinguished according to law upon payment of compensation, such rights will continue 15 to subsist;

as the holder of a valid interest in the land under customary tenure, the Deceased had a permanent heritable and transferable right of use and occupancy in the land under s. 66 of the Ordinance. And upon his death, such rights have passed on as inheritance under the estate of the 20 deceased by operation of law under ss 66 and 74 of the Ordinance subject only to additional general provisions of Part 1 therein; and

upon a proper reading of ss 15(a) and 65 of the Ordinance, there are no such words or legal requirement that for customary tenure to 25 remain subsisting and valid, there must be continuous occupation or cultivation. The words of s.65 are clear and unambiguous and must be given their natural and ordinary meaning. S/N pV2qN/zgOki561rGyboPsA [27] Section 15 of the Sabah Land Ordinance describes customary rights this way: 15 Definition of customary rights Native customary rights shall be held to be- 5

land possessed by customary tenure;

land planted with fruit trees, when the number of fruit trees amounts to fifty and upwards to each hectare;

isolated fruit trees, and sago, rotan, or other plants of economic value, that the claimant can prove to the satisfaction 10 of the Collector were planted or upkept and regularly enjoyed by him as his personal property;

grazing land that the claimant agrees to keep stocked with a sufficient number of cattle or horses to keep down the undergrowth;

land that has been cultivated or built on within three years;

burial grounds or shrines;

usual rights of way for men or animals from rivers, roads, or houses to any or all of the above. 20 (underline added) [28] We agree with the LHCJ that in view of the Appellant counsel’s concession that there was no evidence that the Appellant was in 25 continuous occupation or cultivation or grazing of the land after the Deceased had passed on, the requirements of section 15(b) to (g) ante, have not been met in the present case. Hence, the question is whether the Appellant lawfully possess customary tenure in the land under s. 15(a). 30 [29] Customary tenure is defined in s. 65 of the Ordinance in these terms: 35 S/N pV2qN/zgOki561rGyboPsA 65 Customary tenure “Customary tenure” means the lawful possession of land by natives either by continuous occupation or cultivation for three or more consecutive years or.by title under this Part or under the Poll Tax Ordinance [Cap 102] or Part IV of the Land Ordinance, 1913." 5 [30] The LHCJ, as alluded to earlier, had expressly concurred with the finding of the Director that during his lifetime, the Deceased had created NCR by customary tenure in the land by lawful possession thereof under s. 65 of the Ordinance. It is also common ground that the Deceased had 10 been in continuous occupation and use of the land for 35 years since before 1958 until the time of his death in 1993. However, we find that the LHCJ has erred in law in finding that the Appellant’s failure to continuously occupy or cultivate the land after the passing of the Deceased had extinguished the customary tenure created under s. 65. We say so for the 15 reasons stated below. [31] Firstly, we accept the Appellant’s contention that the threshold requirement for customary tenure under s. 65 is lawful possession of land by “either continuous occupation or cultivation for three or more 20 consecutive years”. There is no further requirement for continuous occupation or cultivation to preserve the existence and validity of the customary tenure thus created as held by the LHCJ and contended by the 1st respondent. 25 [32] We feel fortified in this view that we take from comparing the original text of the precursor statutory provisions defining native customary rights (NCR) and customary tenure with the extant definition provisions. In respect of customary tenure, we observed that the extant section 65 of the Land Ordinance 1930 is the amended version of section 4 of the Land 30 S/N pV2qN/zgOki561rGyboPsA Rules 1913 defining customary tenure. Whereas the present section 15(a) of the Ordinance is the amended version of section 26 of the Land Rules 1913, which is its precursor. In Rambilin Bte Ambit v Ruddy Bin Awah

BLR 171 at p 186 [22], Ian Chin J explained the amendments by deletion made to the original text of ‘native customary rights’ defined in 5 section 26 of the 1913 Land Rules (precursor section) and to the original text of 'customary tenure' defined in section 4 of the Rules (precursor section) this way: - "[22] Section 15 of the Land Ordinance 1930 defines "native customary 10 rights" in these terms (with the original text of s 26 of the 1913 Land Rules reproduced in black and with strike through to show the omitted text while the additions are shown in bold):

26.15. Native customary rights shall be held to be:

Land possessed by customary tenure; or occupied for residential purposes for the last three years preceding settlement.

…

… 20

…

…

…

… 25 [23] The definition of "customary tenure" was replaced by one under s 65 (with the original text of s 4 of the 1913 Land Rules reproduced in black and with strikethrough to show the omitted text while the additions are shown in bold), viz.: 30 5.4 In this Ordinance the following terms shall, if not inconsistent with the context or subject matter, have the respective meanings hereby assigned to them: … 35

"Customary tenure" means the lawful possession of land by natives either by continuous occupation or cultivation for 3 or more consecutive years or by title under this Part or under the Poll Tax Ordinance, or.Part IV of the Land Ordinance, 1913. provided that failure to cultivate for 3 consecutive years shall be considered to be 40 abandonment." S/N pV2qN/zgOki561rGyboPsA [33] Notably, following from the above amendments to s 26 and s 4 of the Land Rules 1913, the abandonment proviso in s 4 (which reads ‘provided that failure to cultivate for 3 consecutive years shall be considered to be abandonement’) and the alternative provision in s 26 5 (which reads, ‘or occupied for residential purposes for the last three years preceding settlement’) were removed as shown in the new version in s 15(a) and s 65 of the Land Ordinance 1930. We therefore agree with the contention of counsel for the Appellant that the words ‘three or more consecutive years’ used in s 65 of the Ordinance cannot be taken to mean 10 continuous occupation or cultivation after the Deceased had created customary tenure. [34] Secondly, upon a proper reading of ss 15(a) and 65 of the Ordinance, there are no such words or legal requirement that there must 15 be continuous occupation or cultivation for customary tenure to remain subsisting and valid. S 65, in our view, is clear and unambiguous. It is well settled that the duty of the Court is limited to interpreting the words used by the legislature and to give effect to the words used. Where the words of the statute are unambiguous, plain and clear, they must be given their 20 natural and ordinary meaning. [35] This principle is affirmed in AJS v JMH and another appeal [2022] 1 CLJ 331; [2022] 1 AMR 617; [2021] AMEJ 1874; [2022] 1 MLJ 778 at p 800 where the Federal Court said: 25 "It is not the province of the Court to add or subtract any words to a statutory provision which are not there and the duty of the court is limited to interpreting the words used by the legislature and has no power to fill in the gaps disclosed." 30 S/N pV2qN/zgOki561rGyboPsA In the same vein, the Federal Court in Krishnadas a/l Achutan Nair & 93 Ors v Maniyam a/l Samykano [1997] 1 AMR 997; [1997] 1 MLJ 94 at 100 to 101 held: - “The function of a court when construing an Act of Parliament is to interpret the statute in order to ascertain legislative intent primarily by 5 reference to the words appearing in the particular enactment. Prima facie, every word appearing in an Act must bear some meaning. For Parliament does not legislate in vain by the use of meaningless words and phrases. A judicial interpreter is therefore not entitled to disregard words used in a statute or subsidiary legislation or to treat them as 10 superfluous or insignificant. It must be borne in mind that: As a general rule a court will adopt that construction of a statute which will give some effect to all of the words which it contains. (Per Gibbs J in Beckwith v R (1976) 12 ALR 333 at p 33.) 15 See also Commonwealth v Baume (1905) 2 CLR 405 at p 414, per Griffith CJ.” [36] Thirdly, from the rights and obligations of customary tenure 20 stipulated in s 66 of the Ordinance, customary tenure shall confer upon the holder a permanent heritable and transferable right of use and occupancy in his land. S. 66 is reproduced below: 66 Rights and obligations of customary tenure 25 Customary tenure shall confer upon the holder thereunder a permanent heritable and transferable right of use and occupancy in his land subject only, in addition to the general provisions of Part I of this Ordinance to —

the duty of preparing his padi fields and planting padi, cleaning, working and cultivating his garden, orchards or sago lands in such 30 manner as may be prescribed;

the liability to give his labour free, when required by the Collector or Native Chief or Headman, for the performance of such works and duties for the common benefit of himself and neighbouring land holders as may be prescribed. 35 (underline added) [37] In our considered view, the words used in s. 66 are unambiguous, plain and clear and must be given their natural and ordinary meaning that S/N pV2qN/zgOki561rGyboPsA customary tenure confers upon the holder a permanent heritable and transferable right of use and occupancy in the area of land claimed subject only to proviso (a) and (b) of the section itself and the general provisions of Part I of the Ordinance. In our present case, none of the general provisions of Part I or the aforementioned provisos are adverse to the 5 customary tenure rights of the Appellant. [38] We therefore agree with the contention of the Appellant that pursuant to s. 66, customary tenure in the land claimed and possessed by the Deceased conferred on the Deceased as the holder, a permanent 10 heritable right of use and occupancy in the land. This customary right, in our considered view, is a property right which, after the passing of the Deceased in 1993, formed part of the estate of the Deceased and never abandoned. Respectfully, in our judgment, the LHCJ, although accepting that s. 66 confers a permanent heritable and transferable right of use and 15 occupancy in the land, has erred in subjecting such a right to continuous occupation and cultivation by the Appellant. [39] Fourth, customary tenure created under s. 65 without documentary title is recognized as a valid interest in land being an exception to the 20 concept of registration provided under s. 88 and the new section 88A of the Ordinance. S. 88 reads as follows: 88 No title or claim to land valid unless registered No new title and no dealing with, claim to or interest in any land except 25 land still held under native customary tenure without documentary title shall be valid until it has been registered in accordance with the provisions of this Part. (underline added) 30 S/N pV2qN/zgOki561rGyboPsA The applicable provisions of the New section 88A are reproduced below:

(1) The title or interest of any person or body for the time being registered as proprietor of any land, or in whose name any lease or charge is for the time being registered, shall, subject to the following 5 provisions of this section, be indefeasible. …

Nothing in this section shall prejudice or prevent -

… 10

…

the determination of native customary rights. [40] We have no difficulty in accepting the Appellant’s argument that pursuant to the above provisions, a native, such as the Deceased, who 15 has established customary tenure under ss 15(a) and 65 of the Ordinance acquires an indefeasible interest in the land even if he does not hold a documentary title to it. Until and unless such rights have been extinguished according to law upon payment of compensation, such rights will continue to subsist. Respectfully, continuous cultivation and 20 occupation by the native holder of the title is not listed as a factor that would vitiate his or her indefeasible interest in the land. [41] In support of our view that the indefeasible interest in land of the native continues to subsist unless and until extinguished according to law, 25 we rely on the following two appellate decisions:

in TH Pelita Sadong Sdn Bhd & Anor v TR Nyutan ak Jami & Ors and Other Appeals [2018] 1 MLJ 77 FC at pages 98 to 99 (para [45] – [48], the Federal Court held in the context of section 5(3) of the Sarawak Land Code (“SLC”) that: 30 S/N pV2qN/zgOki561rGyboPsA "[45] ... the customary rights may be extinguished, provided that compensation or alternative replacement land with the same rights is made available to any person whose NCR are affected by the direction of the Minister.” (Note: section 5(3) of SLC is similar to the provisions of 5 sections 15, 65 and 16(1) of the Ordinance); and

(ii) in Nikodemus ak Singai & Ors v lndranika Jaya Sdn Bhd 10 [2023] 2 CLJ 403; [2023] 1 LNS 35; [2023] 2 MLJ 486 CA at page 518, which is also a decision on section 5(3) of SLC, the Court of Appeal said: - “[105] Unless and until all the NCR over the land have been surrendered, terminated or extinguished, the NCR over the land 15 subsist side by side the interest of the registered lessee over the same land.” [42] For the foregoing reasons, it is our considered view that no 20 continuous occupation or cultivation is required under s. 65 as a condition to maintaining the customary tenure created by the Deceased. Customary tenure is a permanent heritable and transferable right under s.66, recognized as a valid interest under s.88 and s 88A(4)(c) of the Ordinance. Upon the death of the Deceased such rights have passed on as 25 inheritance under the estate of the Deceased by operation of law under ss 66 and 74 of the Ordinance and cannot be extinguished except in accordance with law. [43] Therefore, in deciding that the Appellant’s failure to continuously 30 occupy or cultivate the land after the death of the Deceased had extinguished the customary tenure created under s 65 of the Ordinance, the LHCJ had erred in law. This is an appealable error within the meaning explained in Ng Hoo Kui & Anor v. Wendy Tan Lee Pheng, S/N pV2qN/zgOki561rGyboPsA Administrator of the Estates of Tan Ewe Kwang, Deceased & Ors [2020] 10 CLJ 1; [2020] 1 LNS 1060. Whether the Appellant had abandoned the land thereby extinguishing the customary tenure acquired under S. 65 read 5 together with S. [44] The LHCJ has accepted the arguments of the 1st respondent and found that the customary tenure acquired by the Deceased was extinguished due to abandonment based on two grounds:

failure to maintain continuous occupation or cultivation purportedly required under s. 65 and

no evidence that the Appellant had exercised control to prevent strangers from interfering with use after 1993. 15 [45] Ground (a) above (first ground) has been considered in the preceding paragraphs. [46] With regard to ground (b) above (second ground), it has been said before that mere non-user without more cannot amount to abandonment 20 and there must be clear and unequivocal conduct demonstrating an intention to permanently relinquish the right (see Tehidy Minerals Ltd and Anor v Norman and Ors [1971] 2 All ER 475 CA at 492-e; [1971] 2 QB 528; [1971] 2 WLR 711 and Re Yateley Common, Hampshire Arnold v Dodd and Ors [1977] 1 All ER 505 at 510-b to 511). 25 [47] The issue of abandonment to be inferred from non-occupation of the land by the claimant was considered in Superintendent of Lands & S/N pV2qN/zgOki561rGyboPsA Surveys Miri Division & Anor v Madeli bin Salleh (suing as Administrator of the Estate of the deceased, Salleh bin Kilong) (supra). In rejecting this argument, the Federal Court said at 694-695: - "[26] On the issue of what is meant by 'occupation', we agree with the 5 view of the Court of Appeal that actual physical presence is not necessary. There can be occupation without physical presence on the land provided that there exist sufficient measure of control to prevent strangers from interfering: see Newcastle City Council v Royal Newcastle Hospital {1959] 1 All ER 734; which was followed by the local case of 10 Hamit bin Matusin & Ors v Superintendent of Lands and Surveys & Anor [1991] 2 CLJ 1524." [48] Likewise, Ian Chin J in Rambilin Bte Ambit (supra) at para [33] to [36], rejected the notion that the non-occupation of customary land by the 15 plaintiff amounted to abandonment. We agree with his Lordship that although physical possession of the land was not required, nonetheless there must be acts of dominance even though the plaintiff was not in physical occupation of the land. The plaintiff in that case had demonstrated the acts of dominance by giving permission to one·Magudar 20 to remain on the land and to evict him and giving permission to one Nulinah to cultivate a portion of the land. Rambilin bte Ambit was affirmed by the Court of Appeal in Magudar bin Ambit v Rambilin bt Amit & Ors [2014] 5 MLJ 873 at para [11]; [2014] AMEJ 341. 25 [49] In the present case, the LHCJ found that the Appellant had only objected to the final survey by authorised surveyors under the offer to alienate land. According to him, this does not constitute sufficient evidence of “exclusive dominance” or “measure of control” to prevent strangers from interfering within the meaning of the Madeli Salleh principle. In effect, the 30 LHCJ first made a finding of fact that the Appellant had only objected to S/N pV2qN/zgOki561rGyboPsA the final survey and then drew from that specific finding of fact the inference of fact that the Appellant had not exerted exclusive dominance or sufficient measure of control to prevent strangers from interfering following the principle in Madeli Salleh. 5 [50] With regard to an inference of fact made by the High Court which does not involve the credibility of a witness, as in the inference of fact drawn by the LHCJ in the present case that there was no exclusive dominance or measure of control to prevent strangers from interfering, we refer to s 69(4) and (5) of the Courts of Judicature Act 1964 (‘the CJA”) 10 which read as follows: Hearing of appeals

….

The Court of Appeal may draw inferences of fact, and give any 15 judgment, and make any order which ought to have been given or made, and make such further or other orders as the case requires.

The powers aforesaid may be exercised notwithstanding that the notice of appeal relates only to part of the decision, and the powers may also be exercised in favour of all or any of the respondents or parties 20 although the respondents or parties have not appealed from or complained of the decision. In Nautilus Tug & Towage Sdn Bhd v Nautical Supreme Sdn Bhd & 2 Ors [2025] 3 MLJ 573; [2025] MLJU 31; [2025] CLJU 194, Wong Kian 25 Kheong JCA (delivering judgment of the court) at paragraph [16] MLJ stated: “By virtue of s 69(4) and (5) CJA, in respect of a factual inference made by a High Court which does not concern the veracity of a witness, the Court of Appeal is in the same position as the High Court and may draw 30 any inference of fact.” [51] His Lordship referred to the cases below which he said supported this position in s 69(4) and (5) CJA: S/N pV2qN/zgOki561rGyboPsA

Mersey Docks and Harbour Board v Proctor [1923] AC 253, at 258 -259 (HL); [1923] ALL ER Rep 134;

in Benmax v Austin Motor Co Ltd [1955] 1 All ER 326; [1955] AC 370; [1955] 2 WLR 418 HL, at 420 to 421, Viscount Simonds in the House of Lords followed Mersey Docks and said as follows:- 5 “It appears to me that these statements are consonant with the Rules of the Supreme Court, which prescribe that ‘all appeals to the Court of Appeal shall be by way of rehearing’ (RSC, Ord 58, r 1), and that ‘the Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought 10 to have been made’ (r 4). This does not mean that an appellate court should lightly differ from the finding of a trial judge on a question of fact, and I would say that it would be difficult for it to do so where the finding turned solely on the credibility of a witness. But I cannot help thinking that some confusion may have 15 arisen from failure to distinguish between the finding of a specific fact and a finding of fact which is really an inference from facts specifically found, or, as it has sometimes been said, between the perception and evaluation of facts. An example of this distinction may be seen in any case in which 20 a plaintiff alleges negligence on the part of the defendant. Here it must first be determined what the defendant in fact did and, secondly, whether what he did amounted in the circumstances (which must also so far as relevant he found as specific facts) to negligence. A jury finds that the defendant has been 25 negligent, and that is an end of the matter unless its verdict can be upset according to well established rules. A judge sitting without a jury would fall short of his duty if he did not first find the facts and then draw from them the inference of fact whether or not the defendant had been negligent. This is a 30 simple illustration of a process in which it may often be difficult to say what is simple fact and what is inference from fact, or, to repeat what I have said, what is perception, what evaluation. Nor is it of any importance to do so except to explain why, as I think, different views have been expressed as to the duty of an appellate tribunal 35 in relation to a finding by a trial judge. For I finding could be founded on the credibility or bearing of a witness, and, on the other hand, no less a willingness to form an independent opinion about the proper inference of fact, subject only to the weight which should, as a matter of course, be given to the opinion of the learned judge. But 40 the statement of the proper function of the appellate court will be S/N pV2qN/zgOki561rGyboPsA influenced by the extent to which the mind of the speaker is directed to the one or the other of the two aspects of the problem.” (Emphasis added)

Sundram v Arjunan & Anor [1994] 3 MLJ 361 at 373 SC; [1994] 4 5 CLJ 300;

Paul Murugesu s/o Ponnusamy (as representative of Nalamah d/o Sangapillay (deceased)) v Cheok Toh Gong & Ors [1996] 1 MLJ 843 at 854 SC;

China Airlines Ltd v Maltran Air Corp Sdn Bhd (formerly known 10 as Maltran Air Services Corp Sdn Bhd) and another appeal [1996] 3 CLJ 163; [1996] 2 MLJ 517, at 527 to 528 FC where the position is succinctly put: “On the other hand, there is a clear authority also from the House of Lords 15 — and followed by the Privy Council — which says that a distinction can be drawn between a finding of a specific fact which depends upon the credibility of witnesses and a finding of fact which depends upon inferences drawn from other facts. In the latter case, an appellate court will more readily interfere with the trial judge’s 20 findings of fact and form an independent opinion than in the case of the former. That authority is the speech of Lord Reid in the House of Lords’ decision in Benmax v Austin Motor Co Ltd [1955] 1 All ER 326, followed later by the Privy Council in the Singapore case of Tay Kheng Hong v Heap Moh Steamship Co Ltd [1964] MLJ 87 at p 94.” 25 (Emphasis added) and

Lim Choon Seng v Lim Poh Kwee [2020] 5 MLJ 587 at [83] FC; 30 [2020] MLJU 1155. [52] Respectfully, we do not agree with the LHCJ on the factual inference he made that there was no exclusive dominance or sufficient measure of control exerted by the Appellant to prevent strangers from interfering in the 35 S/N pV2qN/zgOki561rGyboPsA land. The Appellant’s objection to the 1st respondent’s surveyor from entering to carry out the survey of the land was supported in writing by a strongly worded letter of objection dated 19 March 2014 and addressed to the Director (see page 39 of Encl. 71). For clarity, the full text of the letter is reproduced below: 5 “En. Edham Bin Hj Sakmad Dan 11 Pewaris Kg. Kota Pelandok Kota Belud. 10 19 Mac 2014 Yang Berbahagia Datuk, Pengarah Jabatan Tanah Dan Ukur, 15 Kota Kinabalu PER: BANTAHAN PERMOHONAN DAN KELULUSAN YANG DILULUSKAN KEPADA SYARIKAT KINSAMEWA S/D, OLEH PIHAK JABATAN TANAH DAN UKUR DI KG RAMPAYAN ULU KOTA BELUD. 20 Dengan segala hormatnya dan takzimnya kami mengemukakan bantahan Ini kepada plhak yang berkenaan:

Untuk makluman dan pengetahuan Datuk Pengarah permohonan kami di Rampayan Ulu Kota Belud sejak tahun 1958 lagi sehingga 31hb Mac 25 1998 penarikan bantahan oleh masyarakat kampung yang dahulunya yang telah diluluskan seluas 586 ekar. Sekarang kami hanya mendapat 150 ekar sahaja dan kami pun_telah ukur seperti yang telah diberi kelulusan LUC oleh pihak Jabatan Tanah Kota Belud yang bertarikh 7/3/2008. Semuanya telah dipersetujui oleh pihak Jabatan Tanah dan 30 masyarakat kampung.

Dan di dalam surat LUC tersebut kami hanya menunggu geran dari pihak Jabatan Tanah seperti yang telah dipersetujui. 35

Oleh itu kami mohon kepada kerajaan berilah perhatian kepada masyarakat kampung yang telah sekian lama meneroka tanah tersebut selagi dahulu sehingga orang tua saya meninggal dan hanya inilah 150 ekar yang masih ada. Dan dengan rasa rendah diri sekali lagi kami mohon kepada Datuk Pengarah Tanah dan Ukur 40 S/N pV2qN/zgOki561rGyboPsA kami mengemukakan bantahan kepada Syarikat Kinsamewa S/B agar jangan membuat permohonan tanah yang orang lain telah lama menunggu gerannya sedangkan kamu baru saja memohon dan kami terkilan setelah mendapat tahu Kinsamewa telah mendapat kelulusan di tempat kami pohon di Rampayan Ulu ini.

Dengan tidak mengikut proses yang sebenar dan tidak berpandukan ordinan tanah sesiapa yang telah lebih awal memohon tanah seperti dalam plan pemohon, maka orang yang baru memohon itu tidak boleh di beri PT kerana tanah yang di 10 pohon telah diberi prakuan kelulusan oleh pihak Jabatan Tanah yang berkenaan.

Dengan surat bantahan ini kami sertakan semua dokumen-dokumen yang berkaitan dengan permohonan tanah dan prakuan kelulusan dari 15 daerah hingga dari Pengarah Tanah kesemuanya kami sertakan unutk makluman Datuk Pengarah. Demikian surat bantahan ini kami mohon agar pihak Datuk dan yang lain agar memberi pertimbangan dan perhatian sesuai dengan dasar kerajaan, Rakyat Di Dahulukan Pencapaian Di Utamakan. 20 Sekian dan terima kasih. Yang benar, EN. EDHAM HJ SAKMAD Dan 11 Pewaris Tanah Kota Belud” 25 (Emphasis added) [53] As earlier explained, the LHCJ in his GOJ, in fact referred to the letter above. Notably, other than objecting to the survey, the Appellant in 30 the letter, emphasized, among others, that the Deceased and now him had been in occupation of the land since 1958, that his application for title to the land was approved in 2008 by the Director and merely awaiting the land title, and that the land had been surveyed. He also objected to and remonstrated to the Director that the 1st respondent had applied for land 35 which had already been approved for him. It will be recalled that the letter of offer from the Director to Kinsamewa (1st respondent) to alienate land was dated 22.1.2014. We emphasize that it was the LHCJ’s finding that S/N pV2qN/zgOki561rGyboPsA the Appellant’s objection letter was issued when the Appellant became aware of Kinsamewa’s application. Quite clearly, the Appellant did not delay but acted within reasonable time after he became aware of the issuance of the offer letter to Kinsamewa to raise his objection. In contrast to the finding of fact by the LHCJ, we have no hesitation in drawing from 5 the foregoing undisputed facts (which did not involve the veracity of witnesses) of the act of the Appellant in objecting to the survey and following up with the strongly worded letter of 19 March 2014 within two months of the issuance of the letter of offer to alienate land to the 1st Respondent, the inference that the Appellant had evinced his intention to 10 exert dominance and sufficient control to prevent or stop the interference in the land by the 1st Respondent. This liberty to draw our own inference from the facts proved is grounded in the powers bestowed in the Court of Appeal by s. 69(4) and (5) of the CJA 1964 and on the high authority of the House of Lords and our Apex Court, ante. 15 [54] In addition to the letter of objection of 19.3.2014, learned counsel for the Appellant had brought to our attention that the Appellant had, following the demise of the Deceased, continued his efforts to obtain the issuance of the land title for the land. This is to be inferred from the official records 20 found in Encl. 71 (Agreed Core Bundle) at pages 21 to 31 comprising undisputed communications from 1998 to 2009 between Government officials, namely:

District Surveyor, Kota Kinabalu and Assistant District Surveyor, Kota Belud (dated 27.5.1998 at page 28);

District Surveyor, Kota Kinabalu and the Director (at page 21 dated 20.02.2002, at page 23 dated 16.5.2008, and at page 25 dated 10.7.2008); S/N pV2qN/zgOki561rGyboPsA

Assistant ACLR and the District Veterinary, Kota Belud (at page 30 dated 27.12.2007);

Setiausaha Hasil Bumi and the Director (at page 31 dated 04.02.2009) and

Juruteknik Ukur Rendah, Kota Belud Land Office and 5 Assistant ACLR, Kota Belud dated 11.5.2017 (at pages 47 to 49) enclosing the Inspection Report of the land applied for by the Deceased. Crucially, the Juruteknik Ukur Rendah in his conclusion, put on record that after the passing of the Deceased, the Appellant himself had with persistence and 10 tenacity pursued the application. This is what he said: “CATATAN DAN PANDANGAN Saya berpendapat walau pun beliau [the Deceased] tidak dapat meneruskan usahanya pada Kawasan yang dituntut tetapi ia 15 boleh disamakan dengan usaha yang begitu gigih oleh anak pemohon kepada jabatan yang berkaitan agar Kawasan boleh dimiliki dan dari rekod pejabat yang tersebut diatas pemohon hanya layak diberi pertimbangan hanya pada keluasan 150 ekar daripada keluasan tanah 586 ekar.” 20 (Emphasis added) [55] All the documents above attest to the fact that the Deceased had applied for the land, the application was approved, the land was surveyed 25 and was merely awaiting the issuance of the land title. Although the Deceased had passed away in 1993, the contemporaneous documents show that the officials in the Land Office and other relevant State Departments continued to process the land application by the Deceased until the year 2017 and treated it as pending. And all of this was with the 30 full knowledge of the ACLR and the Director. The irresistible inference is that the Appellant, who had been appointed as administrator of the S/N pV2qN/zgOki561rGyboPsA Deceased’s estate in May 2008, was still actively pursuing the application and exercising dominance and control over the land right to the time the letter of objection was issued on 19.3.2014. It is remarkable that even after the offer to alienate the land was issued to the 1st Respondent on 22.1.2014, the Juruteknik Ukur Rendah and his team had carried out the 5 inspection of the land on 11.5.2017 and the recommendation was still that the applicant’s application for the 150 acres of land should be considered. The Inspection Report at pages 47 to 49 of Encl. 71 is an agreed document being part of the Core Bundle. Hence, the 1st respondent could not dispute the Juruteknik Ukur Rendah’s statement that the Appellant himself had 10 persevered and tenaciously pursued the application to possess the land (“dengan usaha yang begitu gigih”). To our minds, the foregoing strongly indicate that the Appellant had no intention of abandoning the land and was exerting dominance and sufficient control over it. 15 [56] We therefore find that Appellant has not abandoned the NCR land through the lack of any act of dominance or sufficient control to prevent and stop interference from strangers and that the LHCJ has erred in so deciding. 20 Whether the Appellant’s NCR in the land is extinguished due to the failure to submit a claim under Section 13 of the Ordinance [57] With regard to the failure by the Appellant to come forward to make an objection or file a claim for NCR over the area applied for by the 1st 25 respondent within a month of the posting of the s 13 notice at the Kota Belud Land Office, the LHCJ decided that the Director may treat it as if no S/N pV2qN/zgOki561rGyboPsA such NCR existed and may deal with the 1st defendant’s application under s 9 of the Ordinance. Section 13 of the Ordinance reads: 13 Enquiry as to native rights Upon the receipt of any application for unalienated country land it shall be the duty of the Collector to publish a notice calling upon any claimant 5 to native customary rights in such land who is not yet in possession of a registered documentary title to make or send in a statement of his claim within a date to be specified in the notice. If no claim is made the land shall be dealt with as if no such rights existed. 10 [58] The 1st respondent argued that the effect of the failure on the part of the Appellant to submit the Notice of Claim for NCR within the prescribed time is that such right, if any, is deemed to be waived and in any case, extinguished by operation of s 13 of the Ordinance. In support, the case of Ensul Gudul @ Godol (supra) was cited where the High Court 15 held: “Therefore by virtue of s 13 of the Land Ordinance it is presumed that no native customary rights existed over the said land. The purpose behind S. 13 of the Land Ordinance is to ensure that native rights over native customary land are protected but such right must be claimed once the 20 notice under S. 13 is issued. The Defendants failed to do so and it is too late in the day for them to make such a claim now. By failing to make a claim the Defendants are deemed to waive their customary rights over the said land.” 25 [59] We are not persuaded by the 1st respondent’s contention that the NCR of the Appellant in the land is deemed waived and, in any case, extinguished by virtue of s.13 of the Ordinance. [60] First, we agree with the Appellant’s argument that the s 13 notice 30 was not in issue as, notwithstanding that the Appellant had not objected to nor filed any claim for NCR under section 13 of the Ordinance, both the S/N pV2qN/zgOki561rGyboPsA ACLR (see para 16 of the High Court GOJ) and the Director (see para 27 GOJ), found that the Deceased had indeed, by use of the area of land claimed, created customary tenure in the land. Given that both the ACLR and the Director found that the Deceased had created customary tenure in the land, the phrase “as if no such rights existed” in s. 13 was no longer 5 relevant. [61] Second, the notice issued under s 13, in any case, was invalid in law due to non-compliance with the prescribed modes of service provided for in Rule 8 of the Land Rules 1930. Rule 8 was made pursuant to s 10 46(a)(x) of the Ordinance which governs the service of notices issued under the provisions of the Land Ordinance. The s 13 notice was clearly a notice issued under the Land Ordinance. Rule 8 (1) to (8) provide for the means and modes of service of all notices issued under the Ordinance and read as follows: 15 8 (No section Title in Gazette)

The service of all notices or other processes issued under the provisions of the Ordinance or any rules made thereunder may be effected as follows- 20

by delivering to the noticee or his authorised agent a copy of the notice or by sending a copy by registered post if the address of the noticee or his agent be known and there be postal communication with such place;

when the noticee cannot be found and has no agent empowered to 25 accept service on his behalf service may be made on any adult member of the family of the noticee who is residing with him; Explanation. A servant is not a member of the family within the meaning of this rule.

when the serving officer delivers a copy of the notice to the noticee 30 personally, or to his agent, or to an adult member of the family of the noticee residing with him, he shall require as an acknowledgment of service endorsed on the original notice the signature or right thumb mark of the person to whom the copy is so delivered. S/N pV2qN/zgOki561rGyboPsA

If the person to whom such copy is delivered or tendered is unwilling or unable to sign the acknowledgment, or if the serving officer is unable to find any proper person to be effect personal service, the Collector may order service to be effected by affixing a copy of the document to be served in a conspicuous position upon the land (if any) which is affected, 5 or by

affixing a copy thereof upon the house or place of business of the person to be served if such can be found within Sabah, or

affixing a copy thereof or a notice containing full particulars thereof at the mosque, market or other common place of resort in the town or village 10 in which the person to be served usually resides or last resided.

The Collector or Registrar may also, if he shall see fit, make an order for substituted service by advertisement in the Gazette or in any local newspaper.

In cases where notices or other processes have to be served on 15 illiterate natives or posted in districts which are mainly illiterate, the Collector or Settlement Officer shall employ such other methods of publishing the notice as may seem reasonable.

In each of the above cases the serving officer or Collector shall enter on the back of the original of the document to be served a statement 20 of the time, place and manner or method in which the service or publication was effected, or why service was not effects, and shall sign the same.

The officer issuing the notice may require any serving officer to make oath or affirmation as to the truth of any such entry made by him.

Every notice or other process issued under this Ordinance on 25 behalf of any person other than a Collector or Registrar shall be served at the expense of that person.

The expense of any notice or other process issued on behalf of the Collector or Registrar may be treated at the discretion of the Collector or Registrar as costs in the case, and may be made recoverable from any of 30 the parties, if he shall so direct. [62] Based on the above, a wide range of means and modes of service of all notices is provided for in Rule 8 (1) to (8). However, posting the section 13 notice at the notice board of the Kota Belud Land Office is not 35 a permitted or lawful mode of service of notices provided for under Rule

In this regard, we agree with the observation of His Lordship Richard S/N pV2qN/zgOki561rGyboPsA Malanjum J (as he then was) in Ng Kon Yu v Sakim bin Saiking & Ors [2001] CLJU 37; [2001] 1 LNS 37; [2001] 4 MLJ 140 at 158 A-B that: “From the rule on service of notices, I think it was the intention of the framer that by all possible means the targets of the notices should be 5 made aware of them. There is nothing in the Rules to say that it is sufficient if the notices are pasted in the notice board of the ACLR office.” (Emphasis added) 10 [63] Failure to serve notices according to statutory requirements renders the service invalid and of no legal effect (see Ratnawati bt Hasbi Mohamad Suleiman v Superintendent of Lands & Surveys Department, Kuching Divisional Office & Anor [2017] 6 MLJ 1 at pages 14-15 para [41] to [42] and page 18 para [51] CA). In that case, a notice 15 to the appellant under section 49 of the Sarawak Land Code was sent to the wrong address. [64] Given that the s. 13 notice issued by the ACLR dated 30 June 2010 was not served in accordance with Rule 8 and was invalid and of no legal 20 effect, the LHCJ had erred in deciding that the Director may presume that no NCR existed on the land claimed by the Appellant and could proceed to deal with the application of the 1st respondent under s. 9 of the Ordinance. There was also no question of the Appellant having waived any NCR in the land or that such NCR were extinguished by operation of 25 s 13 of the Ordinance. [65] Third, s 13 of the Ordinance cannot be read in isolation. In our view, a s 13 notice posted on the notice board at the Kota Belud Land Office alone cannot extinguish the Deceased’s customary tenure, which, as explained earlier in this judgment, is a permanent and valid interest in land 30 S/N pV2qN/zgOki561rGyboPsA under ss 66 and 88 of the Ordinance. Respectfully, Ensui Gudul (supra) was wrongfully relied on as the High Court in that case did not consider Rule 8 of the Land Rules 1930 and ss 66 and 88 of the Ordinance. In our considered view, Richard Malanjum J (as he then was) correctly stated the position in law in Ng Kon Yu (supra) at page 157H-I when he said: 5 “No doubt the plaintiff argued that there was no objection received after the advertisement of the notices under s 13 of the Ordinance. But to my mind, mere performance of the ritual of putting up the notices would not rectify the shortcomings in the handling of the matter and 10 should not cause the obliteration of all rights that might have been acquired by the defendants or their predecessors. On the contrary it could be said that the defendants or their predecessors had the legitimate expectation that they would be issued with title deeds.” (Emphasis added) 15 [66] To our minds, waiver cannot extinguish the Deceased’s customary tenure in the land acquired under section 65 of the Ordinance without knowledge of the s 13 notice, which was not properly served in accordance with Rule 8. 20 Section 36 of the Ordinance - Jurisdiction and Illegality [67] First of all, learned counsel for the 1st respondent, in our considered view, is precluded from objecting to this issue being argued. This is 25 because they have agreed to allow the Appellant to file an Amended Supplementary Memorandum of Appeal to include the issue of the application of section 36, which is a point of law. [68] That said, we are of the view that this issue has become 30 superfluous. The reason for this being that the question of contravention S/N pV2qN/zgOki561rGyboPsA of section 36 of the Ordinance is predicated on the assumption that the LHCJ was correct in law in holding that the customary tenure created by the Deceased was extinguished due to abandonment on account of the failure of the Appellant to maintain continuous occupation or cultivation of the land. As explained earlier, it is our finding and decision that the LHCJ 5 has erred in holding that there was abandonment or extinguishment of the customary tenure acquired or created by the Deceased. Hence, there is no longer any necessity to consider and determine this issue. Whether the Appellant’s appeal to the High Court was incompetent 10 under Section 41(d) of the Ordinance [69] The LHCJ was of the view that the decision of the Director in allowing the 1st respondent’s appeal was in fact a decision of the Director to alienate state land to the 1st defendant under s 9. This is barred under 15 s 41(1)(d), hence, the Appellant’s appeal to the Director was incompetent. [70] Section 41 (1)(d) of the Ordinance is reproduced below:

Appeal

An appeal shall lie from any order or decision of a Collector, 20 Surveyor or Registrar given under this Ordinance to the Director, and again from any order or decision of the Director, whether original or an appeal, to the Court: Provided that no appeal shall be admitted — 25

after the expiration of thirty days from the date of the order or decision appealed against;

until the prescribed fees shall have been paid;

if it is expressly provided that the order or decision shall be final or if any other form of appeal is prescribed;

from any decision of the Director under section 9 of this Ordinance. S/N pV2qN/zgOki561rGyboPsA Jurisdiction of Courts barred

Except as herein expressly provided, no Court shall exercise jurisdiction as to any claim or question in respect of which jurisdiction is given by this Ordinance to a Collector or the Director. 5 [71] The Appellant has argued that his appeal to the High Court was not within the ambit of s 41(1)(d) of the Ordinance. We accept his contention on this on the following basis:

the application of the Appellant to the ACLR made on 10 23.3.2016 was for a determination of the Deceased’s NCR in the land under ss 12 to 16 of the Ordinance: see the Appellant’s application dated 23.3.2015 at pages 40 to 42 of Encl. 71 showing that the application was made under ss 12 to 16;

the ACLR heard the Appellant’s NCR claim under ss 14 and 15 of the Ordinance in Land Enquiry No. 10 of 2015 (see the Intitulement and para 41(a) of the decision of the ACLR at page 44 of Encl 71);

it must be emphasized that at the land enquiry proceedings, 20 ACLR did not decide and could not have decided the alienation of the land applied for by the 1st respondent under s 9 of the Ordinance (see the Keputusan of the ACLR at paragraphs 89 to 103 of the decision of the ACLR at pages 45 to 46 of Encl. 71). Therefore, the 1st respondent was 25 competent to appeal to the Director against the ACLR’s decision in allowing the Deceased’s NCR claim;

equally important is the fact that there was no decision on the alienation of the land applied for by the 1st Respondent under s 9 of the Ordinance in the Director’s 30 S/N pV2qN/zgOki561rGyboPsA decision. The appeal is not an appeal to the High Court against the decision of the Director on the alienation of land under s 9 of the Ordinance; and

the non-appealable provision under s 41(1)(d) of the Ordinance is not applicable to bar the Appellant’s appeal 5 against the dismissal of the NCR claim of the Appellant. [72] Hence, the LHCJ in our considered view, has seriously misdirected himself in deciding that the appeal was incompetent. 10 Our Decision [73] Premised on the High Court’s errors as explained above, we are constrained to allow this appeal and set aside the decision of the High Court. 15 [74] We enter the following judgment:

The appeal is allowed upon terms as follows:

Hj Sakmad Bin Hj Muhammad (Deceased} had customary 20 tenure in the land contained in land application No.224 of 1958 measuring 150 acres and situate at Kg Rampayan Ulu, Kota Belud, Sabah now held under the estate of Hj Sakmad Bin Hj Muhammad (Deceased);

The Appellant as the Administrator of the estate of the 25 Deceased is entitled to customary tenure acquired in the land held under the estate of the Deceased measuring 150 acres and situate at Kg Rampayan Ulu, Kata Belud, Sabah;

A declaration that the Appellant as the Administrator of the estate of the Deceased is entitled to be issued with document of title 30 S/N pV2qN/zgOki561rGyboPsA to the land held under the estate of the Deceased measuring 150 acres and situate at Kg Rampayan Ulu, Kota Belud, Sabah; and

The 1st Respondent's land application in PT.2009031305 is subject to the customary tenure acquired by the Deceased in the land;

The decision of the High Court is set aside;

The 2nd and 3rd Respondents shall give full force and effect to the terms of the Order (1) above;

The Appellant shall have liberty to apply; and

The 1st respondent shall pay costs of RM30,000.00 here and below 10 to the Appellant subject to an allocator. sgd (SUPANG LIAN) 15 Judge Court of Appeal Malaysia Putrajaya Date: 10 February 2026 20 Counsel: For the Appellant : … Kong Hong Ming together with Kelvin Wong [Messrs Lee & Kong] For the 1st Respondent : … Datin Sa’adah Abdul Aziz 25 [Messrs Lee & Aziz] For the 2nd & 3rd Respondents: … [Jabatan Peguam Besar Negeri Sabah S/N pV2qN/zgOki561rGyboPsA Case(s) referred to: AJS v JMH and another appeal [2022] 1 MLJ 778; [2022] 1 CLJ 331; [2022] 1 AMR 617; [2021] AMEJ 1874 (refd) Ara Binti Aman v Superintendent of Lands and Mines [1975] 1 MLJ 208 5 (refd) Beckwith v R (1976) 12 ALR 333 (refd) Benmax v Austin Motor Co Ltd [1955] 2 WLR 418; [1955] 1 All ER 326; 10 [1955] AC 370 (refd) China Airlines Ltd v Maltran Air Corp Sdn Bhd (formerly known as Maltran Air Services Corp Sdn Bhd) and another appeal [1996] 2 MLJ 517; [1996] 3 CLJ 163 (refd) 15 Commonwealth v Baume (1905) 2 CLR 405 (refd) Ensui Gudul @ Godol v Suin @ Abdul Samad bin Dongkiris & Ors [2011] 3 MLJ 498; [2010] 18 MLRH 751 (refd) 20 Hamit bin Matusin & Ors v Superintendent of Lands and Surveys & Anor [1991] 2 CLJ 1524; [1991] 2 CLJ Rep 677 (refd) Krishnadas a/l Achutan Nair & 3 Ors v Maniyam a/l Samykano [1997] 1 25 AMR 997; [1997] 1 MLJ 94 (refd) Lee Wah Eng And Others v Ng Kui Fatt @ Ng Thau Ming And Others [2005] MLJU 117 (refd) 30 Lim Fong Tsin v The Assistant Collector of Land [1997] 1 LNS 7; [1997] MLJU 484 (refd) Lim Choon Seng v Lim Poh Kwee [2020] 5 MLJ 587; [2020] MLJU 1155 (refd) 35 Magudar bin Ambit v Rambilin bt Ambit & 2 Ors [2014] 5 MLJ 873; [2014] AMEJ 341 (refd) Mersey Docks and Harbour Board v Proctor [1923] AC 253; [1923] All 40 ER Rep 134 (refd) S/N pV2qN/zgOki561rGyboPsA Nautilus Tug & Towage Sdn Bhd v Nautical Supreme Sdn Bhd & 2 Ors [2025] 3 MLJ 573; [2025] MLJU 311; [2025] CLJU 194 (refd) Newcastle City Council v Royal Newcastle Hospital [1959] 1 All ER 734; [1959] AC 248; [1959] 2 WLR 476 (refd) 5 Nikodemus ak Singai & Ors v lndranika Jaya Sdn Bhd [2023] 2 MLJ 486; [2023] 2 CLJ 403; [2023] 1 LNS 35 CA (refd) Ng Hoo Kui & Anor v. Wendy Tan Lee Pheng, Administrator of the 10 Estates of Tan Ewe Kwang, Deceased & Ors [2020] 10 CLJ 1; [2020] 1 LNS 1060 FC (refd) Ng Kon Yu v Sakim bin Saiking & Ors [2001] 4 MLJ 140; [2001] CLJU 37; [2001] 1 LNS 37 (refd) 15 Paul Murugesu s/o Ponnusamy (as representative of Nalamah d/o Sangapillay (deceased)) v Cheok Toh Gong & Ors [1996] 1 MLJ 843 (refd) 20 Rambilin Bte Ambit v Ruddy Bin Awah (2013) BLR 171 (refd) Ratnawati bt Hasbi Mohamad Suleiman v Superintendent of Lands & Surveys Department, Kuching Divisional Office & Anor [2017] 6 MLJ 1 CA (refd) 25 Re Yateley Common, Hampshire Arnold v Dodd and Ors [1977] 1 All ER 505 (refd) Sa-Mal (Sabah) Corporation Sdn Bhd v Director of Lands & Surveys 30 [1994] 3 CLJ 229; [1994] 1 MLRH 571 (refd) Sundram v Arjunan & Anor [1994] 3 MLJ 361 at 373; [1994] 4 CLJ 300 (refd) 35 Superintendent of Land & Surveys Miri Division & Anor v Madeli bin Salleh (suing as Administrator of the Estate of the Deceased, Salleh bin Kilong) [2008] 2 MLJ 677; [2007] 6 CLJ 509 (refd) Tay Kheng Hong v Heap Moh Steamship Co Ltd [1964] 1 MLJ 87; [1964] 40 CLJU 202; [1964] 1 LNS 202 (refd) S/N pV2qN/zgOki561rGyboPsA Tehidy Minerals Ltd and Anor v Norman and Ors [1971] 2 All ER 475; [1971] 2 QB 528; [1971] 2 WLR 711 CA (refd) TH Pelita Sadong Sdn Bhd & Anor v TR Nyutan ak Jami & Ors and Other Appeals [2018] 1 MLJ 77 FC (refd) 5 Workon Sdn Bhd v. The Director of the Lands and Surveys, Sabah & Ors [1999] 1 LNS 40; [1999] 4 MLJ 177; [1999] CLJU 40 (refd) Legislation referred to: 10 Courts of Judicature Act 1964 ss. 69(4), (5) Sabah Land Ordinance (Cap. 68) 1930 ss. 9, 12, 13, 14, 15(a), (b), (c),

(d), (e), (f), (g), 16, 41(1)(d), 46(a)(x), 36, 65, 66, 74, 88, 88A(4)(c) 15 Sabah Land Rules 1913 ss. 4, 26 Sabah Land Rules 1930 rr. 8(1), (2), (3), (4), (5), (6), (7), (8) Sarawak Land Code ss. 5(3), 49 20 S/N pV2qN/zgOki561rGyboPsA