Court Judgments & Orders

Native Customary Law – Rightful ownership of Native Customary Rights land – Land dispute – Whether the Resident’s Native Court and the District Native Court have erred in principles and/or law to in dismissing the Petitioner/Appellant’s claim. Whether the Petitioner / Appellant who is a non-native, has any locus standi to this action before the Native Courts – Article 161A(6) & (7) of the Federal Constitution –Whether the Petitioner/Appellant was a native when she purchased the disputed land. Whether the Petitioner/Appellant’s filed her appeal within the 30-day period – Section 12(3) of the Native Courts Ordinance 1992 – Whether the Resident’s Native Court had rightfully decided that the Respondents were the rightful owner of the disputed land without considering any of the evidence and documents in the first place

Native Customary Law – Rightful ownership of Native Customary Rights land – Land dispute – Whether the Appellant’s appeal is with merits – Whether the Resident’s Native Court has erred in law and principles in dismissing the Appellant’s case. Whether the Appellant rightfully inherited the disputed land from his mother who allegedly inherited the disputed land from the Appellant’s grandfather – Whether the Respondent and her witnesses’ evidence were more credible than the Appellant and his witnesses – Whether the Respondent had moved from Bintangor to Anap, Tatau and lost his rights to the disputed land – Whether the Appellant pleaded the issue of “pindah” in his Grounds of Appeal

Native Customary Law – Rightful ownership of Native Customary Rights land – Land dispute – Whether the Resident’s Native Court has erred in principles and/or law to interfere with the decision of the lower court – Whether the Resident’s Native Court’s decision in allowing the Respondent’s appeal on the ground that the Respondent has successfully established his Native Customary Rights over the disputed land should be upheld. Whether Resident’s Native Court refusal to re-inspect the disputed land is fatal to the case – Whether the Respondent had warned and prohibited the Petitioner from planting or cultivating any other crops except pepper vines on the disputed land – Whether the Petitioner pleaded the issue of traditional adat and custom of “Bepasuk Menua” in the Resident’s Native Court

In the matter of Section 20(1) of the Native Courts Ordinance, 1992 and Rule 17(3) of the Native Courts Rules, 1993 of application to be identified with the Native Community [Bidayuh] of Kampung Kuap, Kuching, Sarawak and subject to the native system of personal law of such Bidayuh Community

In the matter of Section 20(1) of the Native Courts Ordinance, 1992 and Rule 17(3) of the Native Courts Rules, 1993 of application to be identified with the Native Community [Bidayuh] of Kampung Kuap, Kuching, Sarawak and subject to the native system of personal law of such Bidayuh Community

In the matter of an application to be identified with the Malay Native Community and to be subject to the native system of personal law of such community under Section 20(1), Native Courts Ordinance, 1992 and Rules 17A and 17B(1) and (2), Native Court Rules, 1993

In the matter of an application to be identified with the Bidayuh Community and to be subject to the native system of personal law of such community under Section 20(1), Native Courts Ordinance, 1992 and Rules 17A and 17B(1) and (3), Native Court Rules, 1993

Native Customary Law – Rightful ownership of Native Customary Rights land – Land dispute – Appealed case – Whether the Appellant can produce new evidence and exhibits at the appeal stage – Whether the evidence sought to be tendered would have had an impact on the outcome of the Court below. Whether the Resident’s Native Court as an Appellate Court has the power to hear further evidence – Section 14 of the Native Courts Ordinance, 1992 – Whether the Appellant has applied for special leave from the Native Court to introduce new evidence – Rule 24(2) of the Native Courts Rule, 1993 – Whether the Appellant’s application has met the requirements of Lord Denning’s principle of non-availability, relevance and reliability

Native Customary Law – Rightful ownership of Native Customary Rights land – Land dispute – Appealed case – Whether the Appellant can produce new evidence and exhibits at the appeal stage – Whether the evidence sought to be tendered would have had an impact on the outcome of the Court below. Whether the Resident’s Native Court as an Appellate Court has the power to hear further evidence – Section 14 of the Native Courts Ordinance, 1992 – Whether the Appellant has applied for special leave from the Native Court to introduce new evidence – Rule 24(2) of the Native Courts Rule, 1993 – Whether the Appellant’s application has met the requirements of Lord Denning’s principle of non-availability, relevance and reliability

Native Customary Law – Rightful ownership of Native Customary Rights land – Land dispute – Compensation of land – Sections 5(3) and (4) of the Land Code (Cap. 81) (1958 Ed.) – Whether Defendant’s unconditional withdrawal is an honest act – Whether the Claimant is entitled for damages due to Defendants’ misconduct

Native Customary Law – Rightful ownership of Native Customary Rights land – Land dispute – Whether the witnesses are able to identify the land in dispute – Whether unconfirmed land boundary is within the District Native Court’s jurisdiction – Section 5(3)(c) of the Native Courts Ordinance, 1992 – Whether failure to identify the land in dispute is fatal

Native Customary Law – Rightful ownership of Native Customary Rights land – Land dispute – Whether the Defendant is the rightful owner of the disputed land – Whether being a son-in-law is entitled to the rightful owner of a Native Customary Rights land

Undang-undang Adat Bumiputera – Hak untuk mewarisi di bawah Adat Bumiputera atau di dalam kawasan simpanan komunal – Pertelingkahan Hak Tanah Adat Bumiputera – Hak mendapatkan pampasan tanah - Sama ada Penuntut adalah pewaris yang sah – Sama ada Penuntut mengusahakan tanah dalam pertelingkahan – Seksyen 5(3)(a)(i) dan (ii) Ordinan Mahkamah Bumiputera 1992. Sama ada mahkamah rendah (Chief’s Court) gagal dalam mempertimbangkan kes Penuntut – Sama ada Defendan berjaya membuktikan kes beliau terhadap Penuntut – Seksyen 101 Akta Keterangan 1950

Native Customary Law – Rightful ownership of Native Customary Rights land – Land dispute – Sections 5(1) and (2) of the Land Code (Cap. 81) (1958 Ed.) – Whether the Defendant’s failure to counterclaim against the survey of the disputed land in favour of the Claimant considers as law contravention. Whether there is sufficient control of interference from outsiders on the land – Whether the illegal construction of the access road passing the Claimant’s land by the Defendant affects the Defendant

Undang-undang Adat Bumiputera – Hak untuk mewarisi di bawah Adat Bumiputera atau di dalam kawasan simpanan komunal – Pertelingkahan Hak Tanah Adat Bumiputera – Sama ada penjualan tanah antara Defendan dan anak daripada isteri pertama pemilik asal tanah tersebut adalah sah – Sama ada penjualan tanah oleh bukan pewaris yang dinamakan oleh pemilik asal tanah tersebut adalah sah – Seksyen 5(3)(a)(i) dan (iii), Ordinan Mahkamah Bumiputera, 1992

Native Customary Law – Rightful ownership of Native Customary Rights land – Land dispute – Section 28 of the Native Courts Ordinance, 1992 – Whether the land in dispute falls under the category of a Native Customary Rights land. Section 5(3)(a)(i) of the Native Courts Ordinance 1992 – Whether the disputing parties are Natives of Sarawak – Does the Native Courts of Sarawak have the jurisdiction to hear a claim if one of the disputing parties involves a non-native

Native Customary Law – Rightful ownership of Native Customary Rights land – Land dispute – Whether the parties naturally inherited the land in dispute being the children of the owner of the land – Section 5(3)(a)(iii) of the Native Courts Ordinance, 1992. Compensation of land – Whether the parties are entitled to the compensation amount being paid by the Government for the construction of the road affecting the and in dispute as of right in the event the issue of the inheritance of the land is positive

Native Customary Law – Rightful ownership of Native Customary Rights land – Land dispute – Whether the Claimant’s nature of claim registered in his docket falls under the jurisdiction of a District Native Court – Whether the Court has the inherent powers to allow the parties to orally amend their nature of claim – Rule 39 of the Native Courts Rules 1993. Section 5(3)(a)(iii) of the Native Courts Ordinance, 1992 – Right to inheritance under Native Customary Law – Section 5(1) of the Land Code (Cap. 81) (1958 Ed.) – Whether the Claimant or Defendant has created or acquired Native Customary Rights over the disputed land – Whether the Defendant cultivated the land passed down by his father onto him. Whether the Claimant is entitled for compensation as per his claim – Whether determination of issue of inheritance affects the rights to compensation

Native Customary Law – Encroachment of Native Customary Rights land – Land dispute – Section 20 of the Native Courts Ordinance, 1992 – Whether a non-native has the rights to represent the party in dispute – Article 161A (6)(a) and (7) of the Federal Constitution – Whether the District Native Court has the jurisdiction to hear cases between a native and a non-native

Native Customary Law – Rightful ownership of Native Customary Rights land – Land dispute – Rule 23 of the Native Courts Rules, 1993 – Whether the Claimant had filed and registered his appeal with the Chief’s Superior Court

Native Customary Law – Land dispute – Compensation of land – Mutual consent agreed between parties prior to proceed with the trial – Compensation to be divided equally

Native Customary Law – Rightful ownership of Native Customary Rights land – Land dispute – Untitled NCR land – Whether the disputed land is within the jurisdiction of the district – Whether the location of the disputed land is within the administrative jurisdiction of the sub-district – Section 5(3)(c) of the Native Courts Ordinance, 1992

Native Customary Law – Rightful ownership of Native Customary Rights land – Land dispute – Whether the parties are able to identify the size of the land in dispute – Whether failure to identify the specified period of clearing and/or cultivating the land is deemed as hearsay evidence. Whether the issue of abandonment affects the rights of an individual over a temuda land – Whether failure to clear/re-clear/cultivate the temuda land for a period of more than 10 years meant loss of temuda rights – Section 5(1) of the Land Code (Cap. 81) (1958 Ed.)

Consolidation of cases – Native Customary Law – Rightful ownership of Native Customary Rights land – Land dispute – Whether the lands in dispute are the same land or two different streams and/or lands. Section 14(d) of the Native Courts Ordinance 1992 – Whether the Court should conform to the Order to Retrial by the RNC – Whether there is any new evidence or triable issues arise

Consolidation of cases – Native Customary Law – Rightful ownership of Native Customary Rights land – Land dispute – Whether the lands in dispute are the same land or two different streams and/or lands. Section 14(d) of the Native Courts Ordinance 1992 – Whether the Court should conform to the Order to Retrial by the RNC – Whether there is any new evidence or triable issues arise

Native Customary Law – Rightful Ownership of Native Customary Rights land – Land dispute — Right to inheritance under Native Customary Law – Section 5(1) of the Land Code (Cap. 81) (1958 Ed.). Whether the Claimant has created or acquired Native Customary Rights over the disputed land(s) – Whether the Defendant(s) have concrete evidence of planting of land with fruit trees or cultivation of land over the disputed land – Sections 5(2)(b) and (c) of the Land Code (Cap. 81) (1958 Ed.) – Whether the parties have shown the establishment of Native Customary Rights pursuant to Section 10 of the Land Code (Cap. 81) (1958 Ed.). Whether the Penghulu’s Court decision awarded in favour of the Defendants against the Claimant can be upheld in order to determine the Claimant’s appeal in this case – Section 9(2) of the Native Courts Ordinance 1992 – Section 58 of the Evidence Act 1950

Native Customary Law – Rightful Ownership of Native Customary Rights land – Land dispute — Right to inheritance under Native Customary Law – Section 5(1) of the Land Code (Cap. 81) (1958 Ed.). Whether the Claimant has created or acquired Native Customary Rights over the disputed land(s) – Whether the Defendant(s) have concrete evidence of planting of land with fruit trees or cultivation of land over the disputed land – Sections 5(2)(b) and (c) of the Land Code (Cap. 81) (1958 Ed.) – Whether the parties have shown the establishment of Native Customary Rights pursuant to Section 10 of the Land Code (Cap. 81) (1958 Ed.). Whether the Penghulu’s Court decision awarded in favour of the Defendants against the Claimant can be upheld in order to determine the Claimant’s appeal in this case – Section 9(2) of the Native Courts Ordinance 1992 – Section 58 of the Evidence Act 1950

Native Customary Law – Rightful Ownership of Native Customary Rights land – Land dispute — Right to inheritance under Native Customary Law – Section 5(1) of the Land Code (Cap. 81) (1958 Ed.). Whether the Claimant has created or acquired Native Customary Rights over the disputed land(s) – Whether the Defendant(s) have concrete evidence of planting of land with fruit trees or cultivation of land over the disputed land – Sections 5(2)(b) and (c) of the Land Code (Cap. 81) (1958 Ed.) – Whether the parties have shown the establishment of Native Customary Rights pursuant to Section 10 of the Land Code (Cap. 81) (1958 Ed.). Whether the Penghulu’s Court decision awarded in favour of the Defendants against the Claimant can be upheld in order to determine the Claimant’s appeal in this case – Section 9(2) of the Native Courts Ordinance 1992 – Section 58 of the Evidence Act 1950

Native Customary Law – Rightful Ownership of Native Customary Rights land – Land dispute — Right to inheritance under Native Customary Law – Section 5(1) of the Land Code (Cap. 81) (1958 Ed.). Whether the Claimant has created or acquired Native Customary Rights over the disputed land(s) – Whether the Defendant(s) have concrete evidence of planting of land with fruit trees or cultivation of land over the disputed land – Sections 5(2)(b) and (c) of the Land Code (Cap. 81) (1958 Ed.) – Whether the parties have shown the establishment of Native Customary Rights pursuant to Section 10 of the Land Code (Cap. 81) (1958 Ed.). Whether the Penghulu’s Court decision awarded in favour of the Defendants against the Claimant can be upheld in order to determine the Claimant’s appeal in this case – Section 9(2) of the Native Courts Ordinance 1992 – Section 58 of the Evidence Act 1950

Native Customary Law – Rightful ownership of Native Customary Rights land – Land dispute – Whether a Native Customary Rights land could be lost or extinguished due to timber operation – Whether a compensation sum is considered as a way of recognition of the existence of Native Customary Rights land – Whether the decision by the Chief’s Court reaffirming the boundary line drawn in 1983 is accurate

Native Customary Law – Rightful Ownership of Native Customary Rights land – Section 5(3)(a) of Native Courts Ordinance, 1992 – Whether the Claimant has concrete evidence to support his claim to have created or acquired Native Customary Rights over the disputed land(s) – Section 5 (1) and (2) Land Code Chapter 81 (1958 Edition) – Whether the land created by the parties’ forefathers has been diminished or extinguished by the codification of land laws in 1958. Section 6 of the Land Code Chapter 81 (1958 Edition) – Whether the compensation sum for the cessation of Native Communal Reserves shall be paid in favor of the Claimant’s and Defendant’s community accordingly – Whether the Native Court has the power to review the decision of the Permanent Secretary, Ministry of Resource Planning and Environment made under the said Gazette, which gazette the 2 communities instead on one community, either for Malay community of Kampung Pemukat or Kadayan community of Kampung Patiambun

Native Customary Law – Rightful Ownership of Native Customary Rights land – Section 5(3)(a) of Native Courts Ordinance, 1992 – Whether the Claimant has concrete evidence to support his claim to have created or acquired Native Customary Rights over the disputed land(s) – Section 5 (1) and (2) Land Code Chapter 81 (1958 Edition) – Whether the land created by the parties’ forefathers has been diminished or extinguished by the codification of land laws in 1958. Section 6 of the Land Code Chapter 81 (1958 Edition) – Whether the compensation sum for the cessation of Native Communal Reserves shall be paid in favor of the Claimant’s and Defendant’s community accordingly – Whether the Native Court has the power to review the decision of the Permanent Secretary, Ministry of Resource Planning and Environment made under the said Gazette, which gazette the 2 communities instead on one community, either for Malay community of Kampung Pemukat or Kadayan community of Kampung Patiambun

Native Customary Law – Rightful Ownership of Native Customary Rights land – Section 5(3)(a) of Native Courts Ordinance, 1992 – Whether the Claimant has concrete evidence to support his claim to have created or acquired Native Customary Rights over the disputed land(s) – Section 5 (1) and (2) Land Code Chapter 81 (1958 Edition) – Whether the land created by the parties’ forefathers has been diminished or extinguished by the codification of land laws in 1958. Section 6 of the Land Code Chapter 81 (1958 Edition) – Whether the compensation sum for the cessation of Native Communal Reserves shall be paid in favor of the Claimant’s and Defendant’s community accordingly – Whether the Native Court has the power to review the decision of the Permanent Secretary, Ministry of Resource Planning and Environment made under the said Gazette, which gazette the 2 communities instead on one community, either for Malay community of Kampung Pemukat or Kadayan community of Kampung Patiambun

Native Customary Law – Rightful Ownership of Native Customary Rights land – Section 5(3)(a) of Native Courts Ordinance, 1992 – Whether the Claimant has concrete evidence to support his claim to have created or acquired Native Customary Rights over the disputed land(s) – Section 5 (1) and (2) Land Code Chapter 81 (1958 Edition) – Whether the land created by the parties’ forefathers has been diminished or extinguished by the codification of land laws in 1958. Section 6 of the Land Code Chapter 81 (1958 Edition) – Whether the compensation sum for the cessation of Native Communal Reserves shall be paid in favor of the Claimant’s and Defendant’s community accordingly – Whether the Native Court has the power to review the decision of the Permanent Secretary, Ministry of Resource Planning and Environment made under the said Gazette, which gazette the 2 communities instead on one community, either for Malay community of Kampung Pemukat or Kadayan community of Kampung Patiambun

Native Customary Law – Rightful Ownership of Native Customary Rights land – Section 5(3)(a) of Native Courts Ordinance, 1992 – Whether the Claimant has concrete evidence to support his claim to have created or acquired Native Customary Rights over the disputed land(s) – Section 5 (1) and (2) Land Code Chapter 81 (1958 Edition) – Whether the land created by the parties’ forefathers has been diminished or extinguished by the codification of land laws in 1958. Section 6 of the Land Code Chapter 81 (1958 Edition) – Whether the compensation sum for the cessation of Native Communal Reserves shall be paid in favor of the Claimant’s and Defendant’s community accordingly – Whether the Native Court has the power to review the decision of the Permanent Secretary, Ministry of Resource Planning and Environment made under the said Gazette, which gazette the 2 communities instead on one community, either for Malay community of Kampung Pemukat or Kadayan community of Kampung Patiambun

Native Customary Law – Rightful Ownership of Native Customary Rights land – Section 5(3)(a) of Native Courts Ordinance, 1992 – Whether the Claimant has concrete evidence to support his claim to have created or acquired Native Customary Rights over the disputed land(s) – Section 5 (1) and (2) Land Code Chapter 81 (1958 Edition) – Whether the land created by the parties’ forefathers has been diminished or extinguished by the codification of land laws in 1958. Section 6 of the Land Code Chapter 81 (1958 Edition) – Whether the compensation sum for the cessation of Native Communal Reserves shall be paid in favor of the Claimant’s and Defendant’s community accordingly – Whether the Native Court has the power to review the decision of the Permanent Secretary, Ministry of Resource Planning and Environment made under the said Gazette, which gazette the 2 communities instead on one community, either for Malay community of Kampung Pemukat or Kadayan community of Kampung Patiambun

Native Customary Law – Rightful Ownership of Native Customary Rights land – Section 5(3)(a) of Native Courts Ordinance, 1992 – Whether the Claimant has concrete evidence to support his claim to have created or acquired Native Customary Rights over the disputed land(s) – Section 5 (1) and (2) Land Code Chapter 81 (1958 Edition) – Whether the land created by the parties’ forefathers has been diminished or extinguished by the codification of land laws in 1958. Section 6 of the Land Code Chapter 81 (1958 Edition) – Whether the compensation sum for the cessation of Native Communal Reserves shall be paid in favor of the Claimant’s and Defendant’s community accordingly – Whether the Native Court has the power to review the decision of the Permanent Secretary, Ministry of Resource Planning and Environment made under the said Gazette, which gazette the 2 communities instead on one community, either for Malay community of Kampung Pemukat or Kadayan community of Kampung Patiambun