Luang Anak Entiyang & 16 Ors v United Teamtrade Sdn Bhd & 3 Ors (Q-01(W)-290-08/2017)

LUANG ANAK ENTIYANG

IGAT ANAK BIJU

SINGA ANAK UNSIT

AJAH ANAK GUNYA

ALAN ANAK SULANG

MADELY ANAK NAMBA

MULU ANAK SUGA

AROH ANAK JEBENG

MELILI ANAK JAGAK

TONI ANAK PUGIM

GILl ANAK TEKONG (NRIC NO: 650102-13-5093) Page 2 of 15 12. NYALU ANAK TAMPA

MANCHA ANAK SANG

BRANGKAANAKSAWENG

SAMAD ANAK JUNNA

MUSIT ANAK NGAWING

ROSE ANAK UTAK (NRIC NO: 640830-13-5664) … PLAINTIFFS

UNITED TEAMTRADE SDN BHD (Company No.: 765831-W) No. 88 Pusat Pedada Jalan Pedada 96000 Sibu, Sarawak

MEMAJU JAVA SDN BHD (Company No.: 812386-W) 1st Floor, Lot 8712, No. 6, Shoplot 11

3.

SUPERINTENDENT OF LANDS AND SURVEYS, SAMARAHAN DIVISION … DEFENDANTS] CORAM UMI KALTHUM BINTI ABDUL MAJID, JCA ABDUL KARIM BIN ABDUL JALIL, JCA STEPHEN CHUNG HIAN GUAN, JCA Page 3 of 15 JUDGMENT OF THE COURT The appeal: background facts [1] In this appeal, the appellants and the respondents will be referred to as the plaintiffs and defendants respectively as they were referred to in the High Court suit. The plaintiffs brought this action on their own behalf as well as on behalf of the residents of fifteen villages namely, Kampung Menyang “A" Tanah Mawang, Kampung Tapang Maong, Kampung Sungai Linsat, Kampung Krangan Sungai Katak, Kampung Krangan, Kampung Semukoi, Kampung Krangan Trusan, Kampung Tekalong, Kampung Krangan Jaya, Kampung Krangan Baru, Kampung Simpang Melikin, Kampung Danau Melikin B, Kampung Emperan Melaban, Kampung Kranji Atas and Kampung Kranji Baruh, all situated in Melikin, Balai Ringin, Serian District, Sarawak. [2] The plaintiffs claimed that their ancestors had cleared, occupied, cultivated and gathered jungle produce from a wide area of lands and the surrounding lands of the villages which they have occupied until today, in accordance to the traditions and customary practices of the Iban. They claimed that they have acquired and inherited the native customary rights (NCR) lands from their ancestors, which are delineated and particularized in a map marked “M1”, “M2”, “M3”, “M4” and “M5” which were annexed to their statement of claim. [3] They pleaded that sometime in 2010, they found that the 1st and 2nd defendants, their employees, servants, agents and or contractors had trespassed and encroached upon their NCR lands to carry out logging and land clearing works, claiming to have been granted Page 4 of 15 provisional leases of state land namely Lot 2985, Lot 2986 and Lot 261 over their lands, in particular part of Sungai Puteh, foot of Bukit Bedegum, Bukit Peniki Guwek, Ulu Sungai Pawang, with bulldozers and lorries, destroying and damaging their lands and their crops. The plaintiffs claimed that these actions caused pollution and silting of the rivers which they depended for their water supply and fishing. The plaintiffs claimed that there was no prior extinguishment of their NCR over the said lands nor any compensation paid for their NCR lands. The plaintiffs contended that the alienations of the provisional leases by the 3rd and 4th defendants to the 1st and 2nd defendants were unlawful, null and void. [4] The plaintiffs prayed inter alia for (i) a declaration that they have native customary rights over the lands; (ii) a declaration that the issuance of the provisional leases to the 1st and 2nd defendants in so far as they impaired the plaintiffs' NCR lands was null and void; (iii) a declaration that the 1st and 2nd defendants, their agents or servants had trespassed and continue to trespass their NCR lands; (iv) an injunction restraining the 1st and 2nd defendants, their agents or servants from trespassing, entering or using their NCR lands; and (v) damages to be assessed. The defendants denied the plaintiffs’ claims. [5] After a trial, the learned Judge dismissed the plaintiffs’ claims and 1st and 2nd defendants’ counterclaim. This is the plaintiffs’ appeal against the judgment. There is no appeal by the 1st and 2nd defendants. Page 5 of 15 The plaintiffs’ submissions [6] It was submitted that the learned Judge had erred in construing and applying the principle in respect of the representative action. The claims by the plaintiffs for the villagers, even though there were opposing factions, did not in any way limit the representative capacity of the plaintiffs under O.15 r.12 Rules of Court 2012 and all that was required was for the plaintiffs to show that there was a common grievance and a common interest amongst the plaintiffs and those they sought to represent and that the reliefs were beneficial to all if successful. As to the reliefs beneficial to all, it would be of benefit to all the villagers that their proprietary rights over the lands be given affirmation by the court via the declarations sought. [7] The plaintiffs submitted that the learned Judge had erred in finding that the maps produced by the plaintiffs were inaccurate and unreliable and that the mistakes admitted were typographical mistakes made when recording the data. It was submitted that these mistakes did not affect the accuracy of the GPS coordinates recorded and did not render the maps unreliable and inaccurate. The learned Judge had unreasonably rejected the veracity of the plaintiffs’ maps. [8] It was the plaintiffs' submission that the Balai Ringin Protected Forest gazetted as early as 1935 had not in fact extinguished any of the plaintiffs’ NCR if any. A careful scrutiny of the Gazette showed that there was no direction for any rights that came under the Protected Forest to be extinguished and also no directions for anyone to make a claim of their rights. In fact all other Gazettes of extension and excision of areas under the Balai Ringin Protected Forest up until the 1984 Gazette Notification did not contain any direction for any Page 6 of 15 rights to be extinguished or for any rights affected to be claimed. It was submitted that up until January 2010, the plaintiffs’ NCR had in fact subsisted. [9] The plaintiffs submitted that we should revisit the decision of the Federal Court in the case of Director of Forest, Sarawak & Anor v TR Sandah Tabau & Ors and Other Appeals [2017] 3 CLJ 1 (TR Sandah case). It was submitted that that decision was not decisive on the question of law posed namely, whether the custom of “pemakai menoa” and “pulau” comes within the definition of “law” in Article 160(2) of the Federal Constitution and therefore ‘having the force of law’ in Sarawak because the Court was equally divided 2-2. [10] Lastly, it was submitted that on the balance of probabilities the plaintiffs had proven their NCR claims against the defendants, relying on the Court of Appeal decision in Abu Bakar bin Pangis & Ors v Tung Cheong Sawmill Sdn Bhd & Ors [2014] 5 MLJ 384 and that the learned Judge had erred. The defendants’ submissions [11] We shall deal with the submissions of the defendants together because the submissions of the 1st and 2nd defendants were similar to those of the 3rd and 4th defendants. It was submitted that by a Government Gazette Notification No. 1416 dated 18th November, 1935, the purported NCR lands claimed by the plaintiffs or part thereof were in fact a protected forest known as the Balai Ringin Protected Forest and only ceased to be a protected forest with effect from 20th February, 1984 by virtue of section 39 of the Forest Ordinance (Cap 126). Based on the Gazette Notification, the plaintiffs' purported NCR Page 7 of 15 land claims were wrongful and as they are not the persons identified as having rights to occupy the said area as set out in Schedule II of the said Gazette Notification. [12] The defendants submitted that the decision of the government in constituting the Balai Ringin Protected Forest was never challenged by the plaintiffs and or their ancestors. Further, they did not claim any rights within the time prescribed in the proclamation pursuant to sections 26, 27, 28 and 29 of the Forest Ordinance 1934. [13] It was submitted that the lands claimed by the plaintiffs were within the Balai Ringin Protected Forest which reserved certain rights and privileges within the area belonging to the timber workers and Malays of Gedong. Any clearing, gathering of jungle produce, and cultivation within the area by the plaintiffs were illegal. [14] It was submitted that the plaintiffs have no rights over the said lands and hence the question of extinguishment and compensation as alleged did not arise and were not entitled to any compensation. The defendants contended that the plaintiffs have not created nor acquired or inherited any NCR on the lands and have no legitimate expectation over the lands claimed. [15] The defendants submitted that the plaintiffs were unable to produce any documents that they had been elected or authorized to represent the villagers from the 15 villages in this action. It was submitted there were two factions and that the plaintiffs were in the minority and had no right to file this representative action on their behalves. Page 8 of 15 Our decision [16] On the first issue, in respect of the representative action, it was argued that only three tuai rumah (TR), the head of a longhouse, gave evidence on behalf of the plaintiffs whereas seven others testified for the defendants. It was submitted that since the majority of the TR testified for the 1st and 2nd defendants, the plaintiffs did not have the consent and blessings of the villages cited in the suit. It was submitted that the defendants’ witnesses testified that they did not authorize the plaintiffs to commence the action on their behalf as well on behalf of the villagers. [17] In suing a representative action, it has been held that it is enough that the plaintiff has a common interest with those whom he claims to represent. The test is that of ‘the same interest’ in the cause and there must be an express statement for whose benefit the action is being brought. If the plaintiff is claiming on behalf of himself and others, he may proceed without the consent of the members of the class. The fact that there are two opposing factions within a native community does not prevent an action from being a representative action, but it is desirable to obtain their consent or to exclude them if they objected: see Jok Jau Evong & Ors v Marabong Lumber Sdn Bhd & Ors [1990] 3 MLJ 427; Datuk Bandar Kuching Utara v Kuching Plaza Sdn Bhd & Ors [2001] 2 MLJ 10. [18] It was not in dispute that there are two factions within the community and the majority of the TR and villagers did not support the representative action. Most of them had moved and relocated from the areas claimed by the plaintiffs within the provisional leases and had been paid compensation by the 1st and 2nd defendants for vacating Page 9 of 15 the areas. Based on the name list, there were only seventeen plaintiffs who agreed to participate in the representative action. The plaintiffs should therefore exclude the others who did not wish to participate in the suit and should not have filed the suit on their behalf. There is nothing to prevent the seventeen plaintiffs to file this suit for themselves against the defendants. [19] On the next issue, since there was a pending application in the Federal Court to review the decision in TR Sandah case, it was not appropriate to revisit nor to comment on the TR Sandah case in this appeal. That should be dealt with in the apex court in that review application. [20] In this appeal, the plaintiffs are Iban and natives of Sarawak. Under native customs, a native can create and acquire NCR over land by clearing virgin jungle, cultivating and occupying the cleared land or inheriting the native customary land from their ancestors. These customs have been recognized and codified in legislations in Sarawak, including the Adat Iban Order 1993. [21] Section 2 of the Sarawak Land Code (SLC) defines “native customary land” to include land in which native customary rights, whether communal or otherwise, have lawfully been created prior to January 1, 1958, and still subsist as such. Under section 5(1), as from January 1, 1958, NCR may be created in accordance with the native customary law of the community concerned by any of the methods specified in section 5(2), if a permit is obtained from a Superintendent of Lands and Surveys under section 10: see Superintendent of Lands and Survey Miri Division and Anor v Madeli bin Salleh [2007] 2 MLJ Page 10 of 15 390; Bisi ak Jinggot @ Hilarion Bisi ak Jenggut v Superintendent of lands and Surveys Kuching Division & 3 Ors [2013] 5 MLJ 149; Ranggong ak Jenau & 11 Ors v BLD Resources Sdn Bhd & 2 Ors (and Another Appeal) [2017] 5 MLJ 700. [22] The burden was on the plaintiffs to prove by cogent evidence when and how they acquired or inherited NCR over the lands claimed, the exact location and the size of the lands and that their NCR still subsist. Bare assertions would not be sufficient: see SOP Plantations (Suai) Sdn Bhd v Ading ak Layang & 5 Ors [2004] 4 MLJ 180; Jusy ak Mesin & 2 Ors v Pembinaan BLT Sdn Bhd & 2 Ors [2013] 9 MLJ 543. [23] We referred to the evidence. The 3rd plaintiff (PW2) testified that he was born in 1954 at Kampung Melikin Lama, now known as Tembawai Melikin. He testified on the history of the settlements of the Remun Iban in the Melikin region dating back to the times of the Brunei Sultanate which was told to him by his father. He said his ancestors occupied and cultivated the NCR lands since the time of Orang Kaya Daka of the Remun Iban. During the Japanese Occupation, they moved upriver. After the Occupation, Tuai Engkiang led the people to settle at Tanah Mawang. In or about 1957, they moved upriver again to settle at Tembawai Sungai Binong and in 1959 they moved back to Tanah Mawang. In 1963 some families moved to set up another village at the present site of Kampung Menyang “A” Tanah Mawang. [24] He said when he was about 9 to 10 years old, he started to follow his father for hunting, fishing and farming in the areas including Bukit Lelengau, Bukit Ninding and Bukit Keranchek. He said it took about two hours to walk from Kampung Simpang Melikin to Bukit Lelengau. Page 11 of 15 He said his family has 15 parcels of land inherited from his father. He referred to photographs of their lands, crops and the tembawai. In May, 2011 he discovered that the 1st defendant trespassed into their lands and the land of Jimbai ak Dunggat at Ensebang Plale. He said they asked PW1 to assist them to survey their NCR lands to prepare community maps delineating the perimeters of their NCR lands and they brought him to numerous places including the tembawai, pendam and kebun during the surveys. The 1st, 4th, 5th, 9th, 12th, 13th, 14th, 16th and 17th plaintiffs and PW13, who is not a plaintiff, gave similar evidence on the history of their settlements and their claims to the NCR lands delineated in maps M1, M2, M3, M4 and M5 prepared by PW1. [25] PW1, from the Sarawak Dayak Iban Association (SADIA, a non-government organization) and a former Deputy President of the Majlis Adat Istiadat Sarawak, was called to testify as an expert witness on the Adat of the Iban in Sarawak pertaining to NCR. He was also asked to survey their NCR lands. He used handheld GPS devices to record the waypoints of their landmarks such as tembawai, pendam, and the perimeters of the NCR lands pointed out to him by some of the plaintiffs as belonging to them during the surveys spread over 12 days. We bore in mind that PW1 had no personal knowledge of the NCR lands claimed by the plaintiffs and that the topographic maps and software used by him in preparing the maps were not produced in court. Although he testified as an expert on Adat of the Iban, he was not an expert in map-making. He was not certified as such by an authoritative body, nor was he a qualified surveyor nor a cartographer. Jimbai ak Dunggat did not testify as a witness. The maps should be treated with caution. Page 12 of 15 [26] Based on M1, the plaintiffs claimed 3633.52 hectares of land referred to as Kawasan Tanah Hak Adat A and 3681.39 hectares referred to as Kawasan Tanah Hak Adat B. These two areas were not delineated in M 1. Similarly, M 1, 2, 3, 4 and 5 did not delineate the individual parcels of land claimed by the plaintiffs as their NCR lands. [27] We were also referred to two maps prepared by DW1 based on aerial photographs taken of the areas, covered by the provisional leases, which was referred to as the area of interest. The area of interest was smaller than the areas claimed by the plaintiffs. In the first map (Appendix A), based on aerial photographs taken in 1950 and 1951, and shaded in green, the area of interest was covered by primary or virgin jungle except for a cleared area shaded in yellow of 83.4 hectares. The learned Judge found that this cleared area was outside the areas claimed by the plaintiffs. The second map (Appendix B), based on aerial photographs taken in 1963, 1971 and 1974, shaded in green, showed that the area of interest was then still covered by primary jungle except for cleared areas shaded in yellow amounting to 293.9 hectares. [28] DW3 testified that the areas claimed by the plaintiffs were within the Balai Ringin Forest Reserve which was gazetted on 18.11.1935. These facts were not in dispute. The Gazette supported the interpretation of DW1 that the area of interest, within the protected forest, was primary jungle in 1950 up to 1974. These contradicted the plaintiffs’ claims that their ancestors since time immemorial had cleared, cultivated and occupied the lands as their NCR lands. The learned Judge accepted the evidence of DW7 and DW8 that the villagers of Kampung Kranji originated from Lubok Antu and came and Page 13 of 15 cleared their lands in the 1970s. The credibility of a witness is primarily a matter for the trial court to decide: China Airlines Ltd v Maltran Air Corp Sdn Bhd [1996] 2 MLJ 517. [29] Based on the evidence that only 293.9 hectares were cleared after January 1, 1958, which was the cut-off date, the plaintiffs could not have cleared and claimed more than 8,000 hectares of land as their NCR lands prior to January 1, 1958. The plaintiffs did not produce any permit from the Superintendent of Lands And Surveys under section 10 of SLC to create and acquire NCR after January 1,

[30] The Balai Ringin Forest Reserve in Melikin was constituted a protected forest in 1935. Under the Sarawak Forest Ordinance 1934, no one was to enter or trespass a protected forest nor to clear, cultivate or occupy any part of it or to gather jungle produce inside except with a permit or that they had acquired rights as recognized and set out in Schedule II of the Gazette. If the plaintiffs and their ancestors had acquired NCR over the lands, Schedule II of the Gazette did not recognize nor reserved any rights to them or their ancestors. They claimed that they were not aware of the proclamation and were not informed that they could claim. However, the timber workers and Malays of Gedong were able to and had made claims which were recognized and reserved in Schedule II of the Gazette. [31] If the plaintiffs were staying in the areas as they claimed, they should know or were aware that the protected forest had been constituted and no NCR could be created or acquired within the area. Since 1935 until 2011, when the Balai Ringin Forest Reserve ceased Page 14 of 15 to be a protected forest from 18.2.2010 via Gazette Notification G.N. 1525 dated 17.3.2011, they did not claim nor sued the Sarawak State Government or the timber workers or the Malays of Gedong for trespassing their NCR lands nor for any compensation thereto. The plaintiffs only filed the suit in 2017. This again raised doubts on their claims that they have acquired or inherited NCR over the lands, which included the areas outside the areas of the provisional leases or area of interest. [32] On the appeal record, there was ample evidence for the learned Judge to rule that ‘The exact location and the boundary of the land which were cleared for the purpose of cultivation and planting were not proven by way of specific evidence. There was no evidence specifically adduced on the clearing or the use of the alleged tembawais, pendams or inherited NCR lands, some of which could not be located in the maps “M1” to “M5”’, (see page 7 of Supplementary Record of Appeal). The learned Judge found that the plaintiffs have failed to prove on a balance of probabilities that they have created or acquired NCR over the lands. [33] On this point, there are many case authorities which have dealt with the burden of proof and the balance of probabilities: see sections 101 to 104 of Evidence Act; International Times & Ors v Leong Ho Yuen [1980] 2 MLJ 86; Hong Yik Trading v Liziz Plantation Sdn Bhd [2017] 5 MLJ 398. It was not necessary to address these cases except to say that the grounds of judgment in the case of Abu Bakar bin Pangis & Ors v Tung Cheong Sawmill Sdn Bhd & Ors (supra) should be read with caution in the light of the authorities. Page 15 of 15 [34] For the reasons given, the learned Judge was not plainly wrong and we find there was no appealable error which required appellate intervention. At the end of the appeal we had dismissed the appeal with costs of RM5,000.00 each for the 1st and 2nd respondents, and RM5,000.00 for the 3rd and 4th respondents together. Dated: 8th July, 2019 signed STEPHEN CHUNG HIAN GUAN (delivering judgment of the court) Court of Appeal Judge Putrajaya For Appellants : Joshua Baru Messrs Baru Bian Advocates For 1st and 2nd Respondents : Hii Din Chiang Messrs Loke, King, Goh & Partners For 3rd and 4th Respondents : Mcwillyn Jiok, Lonie Anak Pinda