Landmark ruling: Court decides in natives’ favour

SANDAKAN - Sandakan High Court Judicial Commissioner Douglas Cristo Primus Sikayun has delivered a landmark decision in granting a declaration that the alienation of a parcel of land measuring 500 acres at Kampong Ansuan at Telupid by the Department of Lands and Surveys was null and void.

The Court ruled that the Department had failed to give sufficient notice of the land application to natives claiming native customary rights (NCR) under section 13 of the Sabah Land Ordinance.

The Judicial Commissioner declared that the Director of the Department of Lands & Surveys and the State Government of Sabah had a fiduciary duty to the natives of Sabah in safeguarding their native customary land.

Having considered the evidence adduced at the trial, the learned Judicial Commissioner declared that the native defendants had proved the native customary rights on the land claimed by them.

“Under section 13 of the Sabah Land Ordinance, it is specifically provided that upon receipt of any application for unalienated country land, it shall be the duty of the Collector to publish a notice calling upon any claimant to NCR in such land, who is not yet in possession of a registered documentary title, to make or send in a statement of his claim within a date to be specified in the notice,” the Court said. “If no claim is made the land shall be dealt with as if no such rights existed."

As to the sources of NCR, the Judicial Commissioner referred to, amongst others, Article 9 of the British North Borneo Treaties 1881 which provides that “all in the administration of justice to the people of Borneo or to any inhabitants thereof, careful regard shall always be had to the customs and laws of the class or tribe to which the parties belong especially with respect to holding, possession, transfer and disposition of lands and succession”.

In 1995, the Department of Lands & Surveys approved and alienated to Sudi Kembang Sdn Bhd, the plaintiff in this suit, with 500 acres of land at Kampong Ansuan in Telupid and a land title in country lease for 99 years was issued to the company in 2001.

Sometime in 2004 when the company started site clearing and developing oil palm plantation in the land, the company found that a portion of the land measuring about 15 acres was being occupied and cultivated by the defendants’ late father Yahsu Linggis, who was planting oil palm in about 10 acres of the land.

In 2011, Sudi Kembang Sdn Bhd as plaintiff filed this writ action against the defendants Marsius and Alfeus at the Sandakan High Court seeking for an injunction to evict them from the land and claiming damages.

Marsius and Alfeus who are brothers claimed that the land in question had been their ancestral land held under custom from generation to generation for at least four generations known to them since the British colonial administration.

In his judgment, the learned Judicial Commissioner declared that the defendants have proved NCR in the land and further ordered that damages sustained by the defendants be assessed by the court registrar.