THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 266 ENGLISH

Voon Choi @ Voon Chai and 11 Others v Abdul Kadir Bin Basri
Suit Number: Civil Appeal No. Q-02(IM)(NCVC)-2206-12/2016  

Litigation & court procedure – Application for an order to strike out amended defence and counterclaim – Whether the defence bona fide – Whether the defence frivolous or vexatious and delaying the process

Land law – Native customary rights - Sections 6 and 209 of the Sarawak Land Code

JUDGMENT

[1] The appellants appeal against the decision of the learned High Court judge who refused the plaintiffs’ application for an order to strike out the 8th to 11th defendants’ (defendants) amended defence and counterclaim.

[2] The learned judge held that the defendants defence is not bona fide and merely contain baseless allegation which are frivolous or vexatious and delaying the process.

[3] The Memorandum of Appeal reads as follows:

“1. The Learned Judge erred in law and in fact in striking out the Amended Defence and Counterclaim pleaded by the Appellants when the proper stage to consider the Amended Defence and Counterclaim pleaded by the Appellants is at the trial.

2. The Learned Judge misdirected herself in failing to undertake a judicial appreciation of the facts and evidence before her when coming to her decision upon the Respondents' application for striking out the Appellants' Amended Defence and Counterclaim.

3. The Learned Judge erred in law and/or in fact in failing to take into consideration or give adequate consideration to the fact that the Appellants' contention that they had Native Customary Rights (NCR) over the said lands and their rights existed prior to the gazetting of the Gazette Notification No. Swk. L. N. 147 ("Gazette") dated 20.8.2012.

4. The Learned Judge misdirected herself in failing to undertake a judicial appreciation of the facts and evidence before her that no Native Customary Land shall be affected by the above declarations made by the Minister or Director of Lands and Surveys, unless any part thereof may subsequently cease to be Native Customary Land.

5. The Learned Judge misdirected herself in failing to undertake a judicial appreciation of the facts and evidence before her that where the area in respect of which a declaration has been made comprises Native Customary Land, such land shall be unaffected by the declarations.

6. The Learned Judge erred in law and/or in fact in failing to take into consideration or give adequate consideration to the fact that the Appellants could show that they have Native Customary Rights in respect of the said lands and that the Appellants and their ancestors have exercised Native Customary Rights in the disputed area.

7. The Learned Judge misdirected herself in failing to undertake a judicial appreciation of the facts and evidence before her that Native Customary Land includes land on which Native Customary Rights (NCR), whether communal or otherwise, have lawfully been created prior to 1.1.1958.

8. The Learned Judge ought to have struck out the Respondents' application against the Appellants having regard to all the circumstances of the case.

9. The Learned Judge ought to have struck out the Respondents' application against the Appellants having regard to all the circumstances of the case.”

[4] The learned judge had written a speaking judgment consisting of 13 pages. To save courts time, we take the liberty to repeat the same and it reads as follows:

“1. Vide Notice of Application dated 23rd May 2016 [Enclosure 113], the Plaintiff applied for an order to strike out the 8th, 9th, 10th and 11th Defendant's Amended Defence and Counterclaim dated 29th July 2015 pursuant to O. 18 r. 19(b), (c) and (d) of the Rules of Court 2012 [RoC 2012] and for Judgment to be entered against the 8th, 9th, 10th and 11th Defendants in terms as prayed for in the Enclosure 1.

2. This application concerned the following three parcels of land:

a. All that parcel of land situated at Kampung Pugu containing an area of 83.4 hectares, more or less and described as Lot 322 Block 4 Gading Lundu Land District [Lot 322].

b. All that parcel of land situated at Kampung Pugu containing an area of 4.206 hectares, more or less and described as Lot 323 Block 4 Gading Lundu Land District [Lot 323].

c. All that parcel of land situated at Kampung Pugu containing an area of 8.792 hectares, more or less and described as Lot 682 Block 3 Gading Lundu Land District [Lot 682].

[Collectively referred to as "the Lands"]

3. Vide the Sarawak Government Gazette Notification No. SwK L. N. 147 dated 20th August 2013, the Lands were declared by the Sarawak Government to be Native Communal Reserve for the exclusive use of the Melayu community of Kampung Pugu, Lundu, for agricultural purposes, with effect from 20th February, 2012.

4. At all material time, the Plaintiff and all the residents of Kampung Pugu are the occupiers of the Lands.

5. The Plaintiff is at all material time the headman ("Ketua Kaum") of Kampung Pugu, Lundu, Sarawak and he brings this action on behalf of himself and all residents of Kampung Pugu, Lundu, Sarawak.

6. The Plaintiff claim that they are the rightful licensee of the Lands by virtue of section 6 of the Sarawak Land Code [Cap 81].

7. The Plaintiff averred that the Defendants had entered the Lands without the knowledge or consent of the Plaintiff and they cleared the land for oil palm plantation. The Defendants are trespasser and are not entitled to occupy and use the Lands without the consent of the Plaintiff.

8. Prior to this, on 12th June 2015, the Court had granted the Plaintiff an ex parte injunction order, and on 13th November 2015 this Court granted an Interlocutory Injunction Order against all the Defendants until the disposal of this action.

9. On 23rd March, 2016, the Court struck out the 1st, 2nd, 3rd, 5th and 6th Defendants' Statement of Defence dated 13th July 2015 and entered judgment against them, jointly and severally, as prayed for in the Amended Statement of Claim.

10. The 8th, 9th, 10th and 11th Defendants' defence is that they had native customary rights [NCR] over the Lands and their rights existed prior to the gazetting of the Gazette Notification No. SwK No. L. N. 147 dated 20th August 2012. ["the Gazette"]. As such, the declaration, vide the Gazette, that the Lands be declared a Native Communal Reserve for the exclusive use of the Melayu community of Kampung Pugu, Lundu, for agricultural purposes, with effect from 20th February 2012 is subject to the Defendants' right.

11. In this connection, the Defendant exhibited the following documents [annexed to their affidavit in opposition in Enclosure 116] to substantiate their claim of NCR, namely:

a. Exhibit JBM-1.

b. Exhibit JBM-2

c. Exhibits JEB-3 to JEB-7.

d. Exhibits JBM-8, JBM-9 and JBM-10.

12. Learned counsel for the 8th, 9th, 10th and 11th Defendants submitted that by virtue of section 4(4) of the Sarawak Land Code, no native customary lands shall be affected by the declaration made by the Minister or Director of Lands and Surveys, unless any part thereof may subsequently ceased to be native customary land. As such, the declaration vide the Gazette does not affect the NCR of the 8th, 9th, 10th and 11th Defendants which existed more than 50 years ago, that is, it was NCR created prior to 1st January 1958.

13. In my view, the Plaintiffs' application in Enclosure 113 should be allowed and my reasons are as follows.

14. Section 6 of the Sarawak Land Code [Cap 81] states:

Section 6. Native Communal Reserves.

(1) The Minister may by order signified in the Gazette declare any area of State land to be a Native Communal Reserve for the use of any community having a native system of personal law and may, by such order or by subsequent order, declare that the customary law of such community in relation to the acquisition, transfer and transmission of rights and privileges in or over land, and in any building or other structure erected therein, shall apply with such modifications as may be specified or provided for in any such order.

(2) Save in so far as the contrary may be specified or provided for in any such order or by this section, rights in any land declared to be a Native Communal Reserve under subsection (1) shall be regulated by the customary law of the community for whose use it was declared to be reserved.

(3) Notwithstanding subsection (2), but without prejudice to subsections (4) to (7) inclusive, at any such land shall continue to be State land, and the native community for whose use it was reserved or any member thereof acquiring any rights therein shall hold the same as a licensee from the Government, and if, by virtue of the provisions of this section (including the provisions of any order made under subsection (1)), any individual native customary rights become established, the issue of any document of title in respect thereof shall be in the absolute discretion of the Director:

Provided that the Minister may of his own motion or upon petition review and confirm or amend any exercise of such discretion.

(7) In any case in which this section applies, the question as to whether any person, whether or not such person is a member of the native community for whose use the reserve is or is deemed to be constituted, may exercise any rights or privileges within such reserve shall be determined by the customary law of such community and by such orders, if any, as may have been made under this section, and, save to the extent that any such person may be able to justify his occupation of any land comprised within such reserve, he shall be deemed to be in unlawful occupation of State land and section 209 shall apply thereto.

15. From my understanding of section 6 of the Sarawak Land Code and in the context of the present case, it can fairly be stated that:

a. Notwithstanding that the Lands had been declared as the Native Communal Reserve via the Gazette, they are still State land.

b. The Melayu community of Kampung Pugu, Lundu, who shall have the exclusive use of the Lands, are licensees.

c. The question as to whether the 8th, 9th, 10th and 11th Defendants are members of Kampung Pugu, Lundu for whom the Lands are declared as reserve, shall be determined by the customary law of Kampung Pugu, Lundu. Unless the 8th, 9th, 10th and 11th Defendants can justify their occupation of the Lands, they shall be deemed to be in unlawful occupation of State land.

Whether the 8th, 9th, 10th and 11th Defendants are Residents of Melayu Community of Kampung Pugu, Lundu?

16. In the light of section 6 of the Sarawak Land Code, the first question to be asked is whether the 8th, 9th, 10th and 11th Defendants are residents of the Melayu community of Kampung Pugu, Lundu. The Plaintiff averred in paragraph 19 of the affidavit in reply [Enclosure 118] that the gazette notification listed all the residents of Kampung Pugu as the legal occupiers of the Lands. This averment is not challenged by the 8th, 9th, 10th and 11th Defendants who, in reply thereto, contended that the Lands as gazetted is subject to the prior rights of the 8th, 9th, 10th and 11th Defendants. As such, the 8th, 9th, 10th and 11th Defendants are deemed to agree that they are not the residents of the Melayu community in Kampung Pugu, Lundu.

17. By reason that the 8th, 9th, 10th and 11th Defendants are not the residents of the Melayu community in Kampung Pugu, Lundu, they do not have the legal right to occupy and cultivate the Lands.

Whether the 8th, 9th, 10th and 11th Defendants have acquired NCR?

18. Notwithstanding that the 8th, 9th, 10th and 11th Defendants are not the members of the Melayu community in Kampung Pugu, Lundu, they contended that they have acquired the NCR and rely on Exhibits JBM-1, JBM-2 and JBM-3.

19. I do not find anything in these three exhibits which are of any assistance to the 8th, 9th, 10th and 11th Defendants' claim that they have NCR over the Lands.

20. Exhibit JBM-2 by Ketua Kaum "mengesahkan" [confirmed, in English] that the 8th Defendant has NCR Land covering six hectares in Stogo, Pugu, Sematan. It is a bare statement without any substantiation which, in my view, does not help the 8th, 9th, 10th and 11th Defendants to establish their claim of NCR over the Lands

21. One might ask: if indeed the 8th, 9th, 10th and 11th Defendants have NCR over the Lands as they have insisted, it is intriguing why the Defendants had never challenged and/or objected to the publication of the Gazette. It is noted that the 8th, 9th, 10th and 11th Defendants also have not filed any action in Court to prove their claim of NCR over the Lands.

22. Exhibit JBM-2 was written by Pemanca Haji Bujang Jally Bin Haji Man some four years after the publication of the Gazette. It is a mere request to the Chief Minister to amend the Gazette to "Khas Untuk Komuniti Melayu Kampung-Kampung Di Sekitar Daerah Kecil Sematan, Lundu" to resolve the disputes by settlers from Kampung Tanah Hitam, Sematan. So far, there is no response or approval from the Chief Minister to the request made in this letter. As such, the Gazette is still valid and lawful and that the Reserve is only for the Melayu community in Kampung Pugu, Lundu.

23. The 8th, 9th, 10th and 11th Defendants relied on Exhibits JBM-3 to JBM-7-licenses from Malaysia Palm Oil Board [MPOB] and receipts from Felda Palm Industries Sdn. Bhd.- to show that consent had been given to them to cultivate oil palm on the Lands before the publication of the Gazette. These exhibits, in my view, are of no assistance to the 8th, 9th, 10th and 11th Defendants' claim of NCR over the Lands. The reason is that MPOB does not have any authority to grant any consent to cultivate on the Lands. The Gazette issued by the State Government has superseded the licenses granted by MPOB.

24. Exhibit JBM-8, a letter from the 11th Defendant dated 7th May 2015 giving authority to the Plaintiff and handing over his right in his NCR land and palm oil garden at Lot 322 to the Plaintiff. This letter does not help the 8th, 9th, 10th and 11th Defendant to create NCR over the land because the land is a State land, no one other than the State Government has the authority to confer the right to occupy and cultivate the land. See section 2 of the Sarawak Land Code referred to in paragraphs 30 and 31 herein.

25. The 8th, 9th, 10th and 11th Defendants averred that the Plaintiff had admitted in his Amended Statement of Claim that the 8th, 9th, 10th and 11th Defendants are the landowners stated in the list of landowners and owners of garden/ plantations at Stogor, Pugu, Sematan and their names are listed at number 4, 6, 3 and 20 in the said list which is attached and formed part of the layout plan marked "A" annexed to the Amended Statement of Claim. The said list is Exhibit JBM-9 annexed to Enclosure 116.

26. The authenticity of Exhibit JBM-9 was challenged by the Plaintiff who denied that it was annexed and formed part of the layout plan marked "A" of the Amended Statement of Claim. The Plaintiffs averred that Exhibit JBM-9 does not have the Court’s verification code on the top of each and every page to prove that the said Statement of Claim and Annexure A have been verified and sealed by the Court marked as Exhibit P-26.

27. I have perused the original Statement of Claim in Enclosure 1 and noted that the verification code reads "13-473761-1228330-1363368" and there was only one annexure attached to the Statement of Claim which is the layout plan marked Annexure A. I have perused the Amended Statement of Claim (Enclosure 11) and observed that the layout plan marked A pleaded in paragraph 2 was not shown in the system. No document whatsoever was filed together with Enclosure 11.

28. The amended Statement of Claim marked as Exhibit P-26 annexed to the Affidavit in Reply 2 (Enclosure 121) bears the verification codes 13-473761­-1611803-1838248 and 13-473761-1243288-1381910 with only annexure A which is the layout plan. There was no list of names annexed to Exhibit P-26.

29. The verification code of Exhibit JBM-9 of Enclosure 116 reads 13-473761­-1571807-1789675, which is completely different from that in Enclosure 1 and Exhibit P26. It is noted that Exhibit JBM-9 comprised not only a lay out map but also a list of names.

30. In view that the Plaintiff had never annexed any name list like JBM-9 to either the original or amended Statement of Claim, and in view of the differences pointed out in paragraphs 27, 28 and 29 above, Exhibit JBM-9 is suspect and its admission is misleading the Court and ought not be relied on to support the 8th, 9th, 10th and 11th Defendants' claim for NCR over the Lands.

31. The 8th, 9th, 10th and 11th Defendants also relied on Exhibit JBM-10 which was a letter by Haji Masli Bin Lotot to the Superintendent of Lands and Surveys stating that the 8th, 9th, 10th and 11th Defendants' father had farmed the Lands since the 1970s and that the their parents had cultivated the Lands exclusively with oil palm. This letter was supported by Tahir Bin Jaya (Ketua Kampung Tanah Hitam, Sematan), Haji Oldie Bin Mid, (Penghulu Daerah Kecil Sematan) and Pemanca Haji Bujang Jally Bin Haji Man. The names in the list of settlers include the 8th, 9th, 10th and 11th Defendants (see paragraph 10 of the Affidavit in Opposition).

32. It needs to be reiterated that the Lands were State land prior to the publication of the Gazette. That being so no one can create a right over it nor possess any right to give consent to others to cultivate the land. This is patently clear from the following provisions of the Land Code which states:

"2. Interpretation

"State land" means all land for which no document of title has been issued and all land which subsequent to the Issue of a document of title may have been or may be forfeited or surrendered to or resumed by the Government, and includes...

(a) the bed of any river, stream, lake or water-course; and

(b) the foreshore and beds of the sea within the boundaries of Sarawak as extended by the Sarawak (Alteration of Boundaries) Order in Council, 1954; [Vol VIp. 1025]

33. The law is patently clear that the State Government is the sole proper authority to give title to State land and no other person enjoys such right. As such, the Plaintiff has no right to grant consent or transfer any right in respect of the Lands to the 8th, 9th, 10th and 11th Defendants prior to the Gazette.

34. Section 5(2) of the Land Code stipulates the manner by which NCR may be created by the natives, namely:

a. the felling of virgin jungle and the occupation of the land thereby cleared;

b. the planting of land with fruit trees;

c. the occupation or cultivation of land;

d. the use of land for a burial ground or shrine;

e. the use of land of any class for rights of way; or

f. any other lawful method ...

35. Exhibit JBM-2 alleged that the ancestors had been cultivating the Lands for more than 50 years. It is a vague assertion which does not state that the ancestors of the 8th, 9th, 10th and 11th Defendants started to clear and cultivated the Land before the cut-off date i.e. 1st January 1958.

36. It is significant to note that other than the pathetic reliance on the letters (Exhibits JBM-1, JBM-2, JBM-3-7, JBM-9 and JBM-10), there is no evidence from the 8th, 9th, 10th and 11th Defendants at all as to how their ancestors acquired the NCR over the Lands. The silence from 8th, 9th, 10th and 11th Defendants on how and when their parents created NCR over the Lands speaks volume as to the bona fide of their claim.

37. Even more significantly, if the 8th, 9th, 10th and 11th Defendants have NCR over the Lands as they insisted, it is intriguing that they have never challenged the Gazette which reserved the Lands for the exclusive use of the Melayu community of Kampung Pugu, Lundu. It appears that they have also not taken any legal action in Court to claim their NCR over the Lands.

38. Section 209 of the Sarawak Land Code states:

Section 209. Unlawful occupation, cultivation, clearing, etc., of State land.

(1) Any person who, without lawful authority-

(a) occupies, or erects any building on, any State land; or

(b) clears, ploughs, digs, encloses or cultivates any such land or part thereof,

shall be guilty of an offence: Penalty, in the case of a first offence, a fine of one thousand ringgit and, for a second or subsequent offences, imprisonment for two years and a fine of five thousand ringgit.

(1A) Any person who aids and abets the commission of an offence under section 32A or subsection (1) shall be guilty of the like offence.

(2) A person shall be deemed to have committed an offence under subsection (1) if it is proved that he has asserted or attempted to assert any right or privilege over State land, or over any land deemed to be State land for the purposes of this Code, and is unable to satisfy the court that he is by law entitled to assert such right or privilege.

(3) When a conviction has been recorded under subsection (1), the court shall, if application is made to it in that behalf by or on behalf of the Superintendent, issue a warrant addressed to all police officers requiring them forthwith to dispossess and remove such person from such land and, on behalf of the Government, to take possession of the land together with all crops growing thereon and all buildings and other immovable property, if any, upon and affixed thereto; and the persons to whom such warrant is addressed shall forthwith carry the same into execution, and any police officer into whose hands the same may come shall proceed forthwith to carry such warrant into execution.

(4) When a conviction has been recorded under subsection (1), the court may, upon application by or on behalf of the Superintendent, inquire into and assess any material damage effected to the Government land unlawfully occupied and may, in addition to imposing a fine, order the same to be paid to the Superintendent on behalf of the Government together with the expense incurred in any survey which was, in the opinion of the court, necessary to establish unlawful occupation, or the extent thereof.

(5) An application under subsection (3) or (4) may be made without further process if made before the court recording a conviction under subsection (1) adjourns but, if not so made, shall be made by summons returnable before the court, and the court shall make no further order unless proof of the service of such summons upon the person convicted is forthcoming.

(6) For the purposes of this Part-

"State land" shall include all land held by or on behalf of the Federal or State Government or a public authority or a statutory authority.

39. In view that the 8th, 9th, 10th and 11th Defendants have not shown that they have NCR over the Lands, their entry, cultivation and occupation of the Lands without lawful authority are unlawful, illegal and ought to be disallowed.

40. Having regard to all the above, it is patently clear that the 8th, 9th, 10th and 11th Defendants' defence is not bona fide, merely contain baseless allegations which are frivolous or vexatious and delaying the process of the Court.

CONCLUSION

41. I, therefore, allow the Plaintiffs' application in Enclosure 113 in terms as prayed with cost of RM4,000.00 to be shared equally by the 8th, 9th, 10th and 11th Defendant.”

[5] We have read the appeal records and the able submission of the learned counsel. After giving much consideration to the arguments of the appellants, we took the view that the appeal had no merits. Our reasons inter alia as follows:

(a) In the instant case, we had the benefit of reading the applications and enclosures as well as the judgment of the learned judge. We found that the learned judge had considered all the issues as well as the laws related to this appeal. We could not find any appealable error, neither was there any perverse reasoning.

(b) This was not a case where we could say that the learned judge was plainly wrong.

(c) We were in total agreement with the reasoning of the learned judge in all aspects.

[6] For reasons stated above, we took the view that the appeal had no merit and the appeal was dismissed with no order as to costs. The deposit was ordered to be refunded.

We hereby ordered so.

Dated: 08 August 2018

Sgd

DATUK DR. HAJI HAMID SULTAN BIN ABU BACKER
Judge
Court of Appeal
Malaysia

COUNSEL

For the Appellants: Mr. Ateng Jeros, Messrs. Ateng Jeros & Co, Advocates & Solicitors, DE 202, 1st Floor, MJC New Township, Jalan Batu Kawa, 93250 Kuching, Sarawak

For the Respondents: Mr. Bong Ah Loi [with Nur’Atiqah binti Nasir], Messrs Suhaili & Bong Advocates, Advocates & Solicitors, P11-1-5(D), Chonglin Park, Jalan Tabuan, 93200 Kuching, Sarawak

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