Lot 130 are separated by Sungai Liam. This river runs outside of Lot Rumah Ramba is located at least one kilometre distance away from the nearest boundary point of Lot 130. [45] The map marked “M” is entitled “PETA MENUNJUKKAN SEMPADAN KAWASAN TANAH HAK ADAT BUMIPUTRA (NCR) RUMAH RAMBA, SUNGAI LIAM DAN RUMAH CHABU, LEPONG AJAI, BAKONG, DAERAH MARUDI, BAHAGIAN MIRI, SARAWAK”. The communal map concerned claims for NCR not just by Rumah Ramba but also Rumah Chabu. The “NOTA” shows that “Luas kawasan tanah NCR Rumah Ramba dan Rumah Chabu ialah lebih kurang 3,564.33 hektar” and “ Luas kawasan yang dituntut oleh Rumah Ramba dari Asco Green ialah 876.45.” The defendant admitted, in paragraph 9 of the SOD, to the fact that they had refused the plaintiff’s offer on 6.2. 2015 for ex-gratia settlement upon the same terms as that of Rumah Chabu. Although the defendants pleaded in paragraph 8 that they did not have knowledge of the arrangement made between Rumah Chabu and the plaintiff as regards the amicable settlement, by the admission in paragraph 9 of the SOD, the defendant ought to have knowledge that Rumah Chabu had acknowledged the plaintiff’s ownership of Lot 130 and that there was no claim now by Rumah Chabu that Lot 130 was part of their NCR. [46] We need to point out that while the accuracy of the map marked “M” was not an issue with the plaintiff, the admissibility of the same was 23 objected to by the third parties on the ground that it was not produced or drawn by a land surveyor licensed under the Land Surveyors Ordinance 2001 (Cap. 40) nor was it approved by the Director of Lands and Surveys. The defendants at the other end, raised objection to the learned JC’s reference and reliance on the aerial photographs and the interpretation, saying that they should be tendered through a proper trial. [47] There is no dispute that the map marked “M” was not prepared by a licenced land surveyor. It was prepared as a community map to show the locality of the area claimed by the defendants. [48] However, it must be borne in mind that the learned JC had made reference to and reliance on the communal map in respect of Enclosure 51 and rightly so as the same was an uncontroverted piece of evidence as between the plaintiff and the defendants. [49] With regard to Enclosure 69, the Grounds of Judgment would show that the communal map marked “M” was not considered by the learned JC and did not form part of his decision. It was the aerial photographs that the learned JC had considered and the affidavits filed in relation thereto which again were uncontroverted, as will be seen later in this Judgment. [50] As regards the plaintiff’s claim at paragraph 15.3 of the SOC that the entire area which include Lot 130 was formerly under a Timber Licence with forestry activities since 1994 and the defendant’s plea in paragraph 20 of the SOD that their pulau galau were only logged by the timber company who had obtained permission from the defendants before 24 starting the logging activities, the pleadings in our view do not show there were conflicting allegations of facts. The fact remained undisputed that there were logging activities carried out on Lot 130. [51] Thus far, from a factual perspective, it is apparent that there were no disputed material facts or facts which ought not to have been disputed that would render the application under Order 14A inappropriate. We hasten to add that there was also no issues of fact interwoven with legal issues raised. The undisputed fact about the defendants’ use of Lot 130 as their pulau galau is of great significance because the questions of law posed in Enclosure 51 turned on the issues of whether the defendant as a matter of law could claim NCR over Lot 130 and whether the NCR the defendant is claiming over the pulau galau, even if it is proven, has the force of law in light of the decided cases by our Apex Court. Even the grounds of appeal provide clear indications that there are emplaced pronouncements of law by our appellate courts over the questions of law posed. [52] The questions of law posed by the plaintiff and the third parties are in our view clear cut and definite, discernible from the pleadings. The learned JC had correctly decided that the questions of law posed are suitable for determination without the full trial of the action and such determination would be final as to the entire claim and the counterclaim. [53] We shall now proceed to look at the questions of law posed by the plaintiff. 25 First question: Whether the plaintiff who is the registered proprietor of Lot 130 Block 3 Bakong Land District by virtue of the issue document of title for the Lease of State Land over Lot 130 Block 3 Bakong Land District issued by the Superintendent of Lands and Surveys, holds an indefeasible title? [54] The learned JC answered this question in the affirmative. His Lordship cited the decisions in Nikodemus Singai & Ors v Sibu Slipway Sdn Bhd & Ors [2010] 10 CLJ 383, Narinder Kaur v Deyoh Opong & Ors [1997] 2 CLJ 895, the Federal Court case of Husli Mok v Superintendent of Lands & Surveys & Anor [2014 9 CLJ 733 and the recent Federal Court case of TH Pelita Sadong Sdn Bhd & Anor v TR Nyutan ak Jami & Ors and other Appeals [2018] MLJ 77 to support his conclusion that upon being alienated with the issue of document of title over Lot 130, the plaintiff became a registered proprietor thereof and its title is indefeasible and can no longer be challenged by the defendants’ NCR claims. [55] The ambit and effect of section 132 of the Sarawak Land Code and the indefeasibility of title conferred by the said provision was clearly established by the Federal Court in TH Pelita Sadong (supra). The issues common to all parties in the appeals before the Federal Court in TH Pelita Sadong (supra) are, what is the effect of a claim of NCR on the indefeasibility of title under the Sarawak Land Code and whether the positive finding of the existence of NCR would overrule the indefeasibility of title of land and the interest stated in the issue document of title issued after NCR was asserted, or would indefeasibility of title of the land prevail over such claim of NCR. The Federal Court held that s.132 of the Sarawak Land Code pertaining to indefeasibility of title remains applicable even if it could be shown that NCR had been created over a land in the manner prescribed under the Sarawak Land Code and that a claim for 26 NCR does not defeat the indefeasibility of title of land, even if the interest stated in the issue document of title was issued after NCR was asserted. [56] At the start of his submission, learned counsel for the defendants was magnanimous in conceding before us two important aspects of these Appeals. One was with regard to the issue on indefeasibility of title. Notwithstanding their written submission wherein we were referred to several case law in support of the argument that the indefeasibility of title is a critical issue of fact and law which must be determined at the trial, the defendants did not dispute that indefeasibility of title is no longer an issue in the face of the decision in TH Pelita Sadong (supra). The other was that there was no dispute that Lot 130 was a primary forest. We shall deal with the primary forest issue in a later part of this Judgment. [57] The concession made by the defendants on the issue of indefeasibility only went to show that the learned JC’s findings was in line with the established principles. Fraud was not an issue in the instant case. Fraud was not pleaded either against the plaintiff or the third parties. There was therefore an absence of any vitiating factor to defeat the plaintiff’s right as the registered proprietor of Lot 130. [58] The defendant had not shown that their NCR had been created over Lot 130 in the manner prescribed under section 5 (2) of the Sarawak Land Code. The alienation of Lot 130 to the plaintiff had already taken effect even before the defendants wrote to the Chief Minister vide a letter dated 7.1.2015 to ask for the revocation of the Provisional Lease. The defendants knew of the grant of Provisional Lease granted to the plaintiff since 22.7.2013 but did nothing to assert their NCR then. Despite the 27 defendants’ claim that their NCR over Lot 130 was created and/or acquired prior to the 1.1.1958 and still subsists as such, the defendants were not issued with any title over the land. [59] Even if one is to assume that the defendants had created NCR over Lot 130 in the manner prescribed under the Sarawak Land Code, or had asserted their NCR over Lot 130 before the issuance of title to the plaintiff or the interest stated in the issue document of title was issued after NCR was asserted, on the authority of TH Pelita Sadong (supra), section 132 of the Sarawak Land Code pertaining to the plaintiff’s indefeasibility of title remains applicable and the NCR claim does not defeat the indefeasibility of title of the plaintiff. We agreed with the submission by the learned counsel for the plaintiff that the entire answer to the first question posed can be found to be on all fours with the binding precedent in TH Pelita Sadong (supra). There is no reason why the case must go for trial on this specific issue. Second Question: Whether the defendants who are claiming that native customary rights over the plaintiff’s Lot 130 by virtue of the defendants’ allegation that the same area is their customary forest reserve, does such a custom even if proven, have any force of law against the plaintiff? Third Question: Whether the defendants, who do not have any settlement or cultivation on the plaintiff’s Lot 130 Block 3 Bakong Land District, are entitled as a matter of law to claim native customary rights over the said Lot 130 Block 3 Bakong Land District? [60] The two questions of law abovementioned are related and were taken together by the learned JC. His Lordship answered both questions 28 in the negative. His Lordship opined that both questions could be determined based on the authority of TR Sandah Tabau (supra) where the Federal Court held that NCR Claim by means of pulau galau and pemakai menoa have no force of law. The learned JC accepted TR Sandah Tabau (supra) as a binding precedent which had been applied consistently in many other cases. [61] To recapitulate, the defendants contended that the learned JC had erroneously applied the wrong principles of law in adopting the decision in TR Sandah Tabau (supra) when he should have instead adopted the decision in Nor Anak Nyawai (supra) and Madeli Salleh (supra). [62] It was argued before us that although the outcome of the appeals in TR Sandah Tabau (supra) was a 3:1 majority in favour of the appellants but the Federal Court appeared to be split on the legal enforceability of the Iban customs of pemakai menoa and pulau galau. Learned counsel submitted that the definition of law as held by Raus Sharif PCA (as His Lordship then was) was not correct as Abu Samah Nordin FCJ, despite in agreement to allow the appeal, has held in no uncertain terms that in respect of the respondents’ rights under the common law pursuant to Article 160 of the Federal Constitution (FC), the legal enforceability of the pemakai menoa and pulau galau was not a matter of law but a question of fact to be established by evidence before the court, and for that matter there was no sufficient evidence to support the claims by the plaintiff on the balance of probabilities. Premised as such, His Lordship found it unnecessary to answer the questions posed for determination. Reference was also made to the dissenting decision of Zainun Ali FCJ. 29 [63] It was further argued by learned counsel for the defendants that the legal position on pemakai menoa and pulau galau is far from settled. The Federal Court in Director of Sarawak and 2 Ors v Nicholas Mujah Anak Ason And 2 Ors (Application No. 08-130-03/2014(Q) had on 17.5.2017 granted leave to appeal on a similar question of law as regards the issue of pemakai menoa and pulau galau. Learned counsel mentioned yet another appeal pending before the Federal Court again on similar issues (he did not have the case in the Bundle of Authorities). Both Appeals, according to him, are still pending on the date we heard these present Appeals. [64] It will be observed that the contention by the learned counsel on the so called wrong principles of law handed down by the majority decision TR Sandah Tabau (supra), is nothing new. Similar line of arguments were echoed in previous decisions of this Court in Jeli anak Naga & 4 Ors v Tung Huat Pelita Niah Plantation Sdn Bhd & 3 Ors (and Another Appeal) [2018] 7 AMR 209, in Douglas Ding Jangan & 4 Ors (suing on behalf of themselves and also as representatives of all the residents of Uma Long Bangan) v Government of Sarawak & 5 Ors [2018] 7 AMR 156 and in Government of Sarawak & Anor v Busing Anak Jali & Ors and another suit [2019] MLJU 10. [65] In Jeli anak Naga (supra) this Court speaking through Tengku Maimun Tuan Mat JCA (as Her Ladyship then was), accepted that the decision in TR Sandah Tabau (supra) was a majority decision and by the doctrine of stare decisis, it was a majority decision that the Court should follow. Her Ladyship held at page 221 – 30 “[52] By the doctrine of stare decisis, it was the majority decision that we should follow (see Barat Estates Sdn Bhd & Anor v Parawakan a/l Subramaniam & 335 Ors [2000] 3 AMR 3030; Fawziah Holdings Sdn Bhd v Metramac Corporation Sdn Bhd (dahulunya dikenali sebagai Syarikat Teratai KG Sdn Bhd (No 1) [2006]1 AMR 545;[2006] 1 MLJ 435) and it was our position that the decision of TR Sandah was a majority decision. We were thus not convinced that we should depart from the majority decision of the Federal Court in TR Sandah. Premised on TR Sandah, the learned judge was correct to dismiss the plaintiff’s claim except for the cultivated area of 380 hectares as the plaintiff had no NCR over the balance of Lot 2 which was not cleared by the plaintiffs and/or their ancestors prior to January 1, 1958. As such, we did not see the need to consider the authorities cited on the merits of the plaintiffs’ argument that the custom of “pemakai menoa” and “pulau“ falls within the definition of law in Article 160 (2) of the Federal Constitution.” [66] In Busing Anak Jali (supra) Zaleha Yusof JCA (as Her Ladyship then was) rejected a similar argument that the position was still not clear based on the judgment of Abu Samah Nordin FCJ in TR Sandah Tabau (supra). Her Ladyship held that the Federal Court had dismissed the plaintiffs’ claim in TR Sandah Tabau (supra) based on 3-1 decision. [67] We noted that the Appeal in Nicholas Mujah Anak Ason (supra) is pending before the Apex Court. However, we are of the considered view that TR Sandah Tabau (supra) is the prevailing authority on the issues of pemakai menoa and pulau galau in that such customary practices do not have the force of law. We are also in complete agreement with Jeli anak Naga (supra), Douglas Ding Jangan (supra) and Busing Anak Jali (supra) that the decision in TR Sandah Tabau (supra) was a case of a majority 3- 1 decision and the majority decision was not split. Needless to say, we are bound by the majority decision in TR Sandah Tabau (supra). 31 [68] The central issue in TR Sandah Tabau (supra) is whether the Iban customs of pemakai menoa and the establishment of pulau enable the respondents in the respective cases to claim a valid NCR over the land they claimed and whether they are recognised by the laws in Sarawak. Raus Sharif PCA (as His Lordship then was) explained why the native customs of temuda which is cultivation of land for occupation is recognised in law and why pemakai menoa through the establishment of pulau galau do not have the force of law as can be seen from the following which we think merit reproduction: “[64] With respect we disagree. This is not a case where we are called upon to consider whether such a practice exist 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 in 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. 32 [67] We must not lose sight of an important fact that recognition alone that such custom or practice exist is not enough. Clearly, recognition of the existence of such practice had brought with it regulation and restriction. Our position is consistent with the principle as propounded in the case of Nor Anak Nyawai wherein it was held that the native customary rights claim over land founded upon the concept of continuous occupation does not extend to the areas of forests where the natives or their ancestors had entered into in search of food, jungle produce etc. What is essential as recognised by our courts is the custom of ‘temuda’ which is cultivation of land for occupation. This custom is essential and integral to the Iban culture which would include the custom of clearing, occupying and cultivating an area and included burial grounds and longhouse sites. [77] Based on what we have discussed above, the native customs of ‘pemakai menoa’ through the establishment of ‘pulau’ falls short of the prerequisites as provided for under s 5(2) of the Sarawak Land Code and thus, do not have the force of law as envisaged under art 160 of the Federal Constitution. [79] For reasons adumbrated, we would answer the Question 1 in the negative. We find that the pre-existence of rights under native laws and custom which the common law respects does not include rights to land in the primary forest which natives, like the respondents or their ancestors, had not felled or cultivated but were forests which they reserved for food and forest produce. [80] As to Question 2, our answer is that the High Court and the Court of Appeal are not entitled to uphold a claim for native customary rights to land in Sarawak based on a native custom of ‘pemakai menoa’ and ‘pulau’. What the law of Sarawak had recognised in a claim for native customary rights is the custom or adat of ‘temuda’. [81] As to the Question 3, we would answer it in the affirmative. The Court of Appeal’s decision in Nor Anak Nyawai that the rights of the native is confined to the area where they settled and not where they foraged for food is a correct statement of the law relating to the extent of native of rights to land claimed under native customary rights in Sarawak.” 33 [69] The learned JC has applied the correct law in arriving at his findings that both questions of law could be determined based on the authority of TR Sandah Tabau (supra). [70] It is trite that NCR claims are founded upon the concept of native’s custom of continuous and unbroken occupation and once abandoned, whatever NCR was created or acquired previously over that land would be lost (see Bisi ak Jinggot (supra); Rasha Urud (supra); Superintendent of Lands & Surveys, Bintulu v Nor Anak Nyawai & Ors And Another Appeal [2005] 3 CLJ 555; Douglas Ding Jangan (supra)). The effect of the defendant’s claim that they had consented to forestry activities by timber companies on the said Lot, must be critically examined. Learned counsel for the defendants argued that the Federal Court in Madeli bin Salleh (supra) held that occupation need not be actual occupation and there can be occupation without presence on the land so long as the natives have control over the land through supervision. In this context, the defendants contended that when they consented to the timber company to operate, they had demonstrated some form of control over Lot 130, the extent of which should be a matter for the trial. It is to be observed that Raus Sharif PCA (as His Lordship then was) in TR Sandah Tabau (supra) had dealt with at length with Madeli Salleh (supra). [71] Having considered all evidence and authorities referred by the parties, we are constrained to say that the defendant’s pleadings and affidavits on the purported dealings they had with the timber company, so as to demonstrate the alleged control they exerted over Lot 130, had not made out the case they contended to be. We are not persuaded by the contention that the defendant must be given the opportunity to 34 establish the alleged control at the trial. Whether or not there was occupation, actual or otherwise, or whether such a consent or permission was given to a timber company, could all be ascertained from the pleadings and the affidavits. [72] As we had mentioned earlier, the plaintiff pleaded at paragraph 15.3 of the SOC that Timber Licence No. T/0449 was issued by the Director of Forests, Sarawak in 1994 to Talented Foresight Sdn Bhd until its expiry in 2011. Talented Foresight Sdn Bhd was wound up in 2013 and a liquidator was appointed on 12.11.2013 (see paragraph 12.1 defence to counterclaim). Even though the defendants made no specific mention as to the identity of the timber company they had given permission or consent for logging to be carried out, it is obvious that the timber company meant by them pointed to Talented Foresight Sdn Bhd. This is because nowhere in the pleadings or the affidavits did the defendants name any particular or any other timber company that could have undertaken the logging works and there was no denial to the plaintiff’s reference to Talented Foresight Sdn Bhd having the timber concession from 1994 until 2013. The defendants are bound by the perimeter of their pleadings. [73] As Talented Foresight Sdn Bhd ‘s logging concession expired in 2013, the defendants’ claim in the affidavit in Enclosure 61 that they had even obtained a grant from the Malaysian Palm Oil Board (MPOB) to plant palm oil trees within Lot 130 is a non-starter. MPOB which was constituted under the Malaysian Palm Oil Board Act 1998 (Act 582) was only established on 1.5.2000 (Act 582 came into effect on 1.5.2000). It follows therefore that as the logging operations by Talented Foresight Sdn Bhd 35 ended in the year 2011, any purported attempt by the defendants to plant palm oil would have been in the year 2012 (before the Lot 130 was alienated to the plaintiff in 2013). The plaintiff’s assertion that when the plaintiff came to Lot 130 in the year 2013, there were no planted crops whatsoever therefore stands to reason. This brings to naught the defendant’s contention that the timber company had operated with their consent. [74] Madeli Salleh (supra) does not in our view assist the defendants’ case. Even if we are to weigh in the defendants’ argument that pursuant to Madeli Salleh (supra), their occupation need not be actual occupation and it would suffice as long as the defendants have control over the land through supervision and continual visitation, and even if assuming for a moment that the defendants had acquired NCR over Lot 130, which we say is not the case here, and had consented to timber loggings, undisputedly to Talented Foresight Sdn Bhd, on Lot 130 for over 20 years from 1994 until 2011 and followed by the Provisional Lease to the plaintiff on 15.4.2013, that right would have been lost. The uncontentious fact was that Talented Foresight Sdn Bhd had the benefit of the grant of timber concession that went unchallenged for that length of time. And as it concerned the plaintiff, there was also no legal actions for trespassing against them until the defendants made claim of their alleged NCR sometime in January 2015. Support for this view is found in the decision of the Court of Appeal in Douglas Ding Jangan (supra) where Tengku Maimun Tuan Mat JCA (as Her Ladyship then was) said at page 169 - “[50] In addition, the learned judge found that logging had taken place for over 20 years. The concept of continuous occupation has always been recognised as an essential feature of NCR to land. In Director of Forests, Sarawak & Anor v Racha ak Urud @ Peter Racha Urud & 5 Ors (and 4 Other Appeals) [2017] 4 MLJ 42, the respondents claimed 36 that following the grant by the Director of Forests, Sarawak, of timber licences and licences to plant forests to the four appellants companies, the latter had trespassed onto lands over which the respondents has acquired NCR. The Federal Court held that on the facts, the respondents no longer possessed, planted or maintained their NCR lands in their previous settlements where logging activities by the appellants had been carried out for about 20 years before the commencement of the suit against the appellants. The Federal Court stated that it was inconceivable that the respondents would not have known of the presence of the logging activities on the land for over a period of 26 years had they been in occupation of the land and that the uncontradicted evidence was consistent with “occupation”. [51] Similarly in the instant case. Given the finding of fact by the learned judge that logging had been carried out for more than 20 years, even if the plaintiffs could establish any rights, which was not the case, the plaintiffs’ right would have been lost when the plaintiff permitted the land to be used by Perbadanan Perusahaan Kemajuan Kayu Sarawak, the licensee of Timber Licence Nos. T/3190 and T/4176 and Kastima, the logging contractor who are not natives.” [75] We now turn to the defendants’ contention that the learned JC should have followed the decision in Nor Anak Nyawai (supra) and Madeli Salleh (supra). [76] Nor Anak Nyawai (supra) was decided by Ian Chin J. The decision by Ian Chin J in that case was overturned by the Court of Appeal in Superintendent of Lands & Surveys, Bintulu (supra) where Hashim Yussoff JCA (as he then was) held that the common feature which forms the basis of the claim for native customary rights is the continuous occupation of land and following the decision of the High Court in Sagong bin Tasi & Ors v Kerajaan Negeri Selangor & Ors [2002] 2 CLJ 543 that the claim should not be extended to areas where ‘they used to roam to forage for their livelihood in accordance to their tradition. Such view is logical as otherwise it may mean that vast areas of land could be under 37 native customary right simply through assertions by some native that they and their ancestors had roamed or foraged the areas in search of food’. As the decision in Nor Anak Nyawai was overturned by the Court of Appeal, the defendants’ contention that the decision represents the correct position of law pertaining to claims over NCR land is untenable. [77] We are mindful of the fact that in Nicholas Mujah Anak Ason (supra), one of the questions for the determination of the Federal Court was whether the Court of Appeal’s decision in Superintendent of Lands & Surveys, Bintulu (supra) was a correct statement of the law relating to the extent and nature of rights to land claimed under the NCR in Sarawak. As at the date of hearing of these Appeals, there was no decision handed down by the Federal Court pertaining to the challenge on the said statement of law. [78] The correctness of the Court of Appeal’s decision in Superintendent of Lands & Surveys, Bintulu (supra) however was the subject of Question 3 in TR Sandah Tabau (supra) and the same was affirmed by the majority decision as the passages below show - “[70] The decision of the Court of Appeal in Nor Anak Nyawai was strongly criticised by Mr Baru Bian describing it short of sound legal reasoning. With respect, we disagree. We are of the view that the decision of the Court of Appeal in Nor Anak Nyawai is the correct statement of law. It is not only consistent with decisions of our courts in Adong and Sagong but also with other commonwealth countries that native customary law over land are founded upon the concept of native’s custom of continuous occupation. For example, in Sagong, the proprietary interest of the orang asli in their customary and ancestral land was limited only to the area that forms their settlement but not to the jungle at large where they used to roam to forage for their livelihood in accordance with their custom and tradition. As stated 38 in the preceding paragraphs the position in Nor Anak Nyawai is consistent with the methods of creating customary rights under the Sarawak Land Code vide s