[2017] 6 MLRA 455

Federal Court, Putrajaya
Raus Sharif CJ, Suriyadi Halim Omar, Zainun Ali, Balia Yusof Wahi, Jeffrey Tan FCJJ
[Civil Appeals No: 01(f)-5-02-2016(Q), 01(f)-6-02-2016(Q), 01(f)-8-02-2016(Q) & Q-01(f)-9-02-2016(Q)]
7 October 2017

Land Law : Native customary rights - Encroachment - Defendants' development of oil palm plantation - Whether resulted in plaintiffs being deprived of their native customary rights - Federal Constitution, arts 5, 13 - Land Code (Cap 81) (Sarawak), s 8 - Whether the relevant Principal Deed and the Joint Venture Agreement had violated s 8 Sarawak Land Code

Land Law : Native customary rights - Exercise of - Whether a native, whose native customary land was within a Development Area declared under s 11 Land Custody and Development Authority Ordinance (No 4 of 1981) (LCDA Ordinance) was entitled to claim to land under native customary rights - Whether defendants ought to surrender land back to plaintiffs - Whether s 11(4) LCDA Ordinance in breach of art 13 Federal Constitution - Whether compulsory acquisition of the NCR lands made without compensation pursuant to s 15 LCDA Ordinance - Whether declaratory reliefs granted by High Court were proper and legal having regard to ss 11(4) and 15 LCDA Ordinance

Judgment : Whether tenor and language used by High Court Judge in judgment was injudicious, disparaging and offensive - Whether words used accounts to any error, defect, or irregularity which fell foul of s 72 Courts of Judicature Act 1964

The plaintiffs (the respondents), filed a claim at the High Court in Kuching against Lembaga Pembangunan Dan Lindungan Tanah (LCDA), Pelita Holdings Sdn Bhd (PHSB), Tetangga Akrab Pelita (Pantu) Sdn Bhd (TAPSB), and the State Government of Sarawak (1st, 2nd, 3rd and the 4th appellants). The facts showed that within an area earmarked and gazetted for development, there were consenting Native Customary Rights (NCR) Owners, who had agreed that their NCR lands be merged and consolidated for development. The Consenting NCR Owners then entered into a Principal Deed with the State Government of Sarawak (the 4th appellant) and PHSB (2nd appellant). For the development of the plots of land, the 2nd appellant, as trustee of the Consenting NCR Owners, entered into a Joint Venture Agreement (JVA) with a joint venture company ie the 3rd appellant incorporated by the 2nd appellant and Tetangga Akrab Sdn Bhd (TASB). TASB was not a party to this suit. The area for development, was a State Government sanctioned development project, described as "The Sungai Tenggang NCR Land Development Area (the Development Area) declared vide the Land Custody and Development Authority Order 2006 (Development Order)". An oil palm plantation project was also undertaken, established and on-going in that Development Area. The Development Order was made under s 11(1) of the Land Custody and Development Authority Ordinance (No 4 of 1981) (LCDA Ordinance), and duly published in the Sarawak Gazette. The respondents were neither parties to the Principal Deed nor the JVA. The respondents claimed that they were the original title holders or NCR owners of the lands within the Development Area and had never surrendered, abandoned, lost or waived their NCR rights. There was also no prior or proper extinguishment of their rights according to law and no provision was made for any compensation to them. The respondents also alleged that the Principal Deed, the JVA with non-natives and the activities on their NCR land were invalid. In their defence, the appellants denied that the oil palm plantation project undertaken, established and on going in the Development Area, had encroached the respondents' alleged NCR land. The High Court allowed this respondents' claim and ruled against the appellants. The High Court held that the respondents were entitled to their claim to lands under NCR in the Development Area, that the destruction of the respondents' NCR lands by the appellants was unlawful, and accordingly ordered damages to be assessed by the Deputy Registrar The appellants were ordered to surrender vacant possession of the respondents' NCR plots of land. The appellants were also restrained from entering, occupying, clearing or in any way carrying out works in the respondents' NCR lands. The 1st, 2nd, 3rd and 4th appellants appealed to the Court of Appeal together with the relevant interveners. The Court of Appeal dismissed the appeals and affirmed the decision of the High Court. The appellants successfully applied for leave to appeal to the Federal Court. The crux of the questions of law posed in all the appellants appeals relate to the issues of whether the respondents' alleged NCR lands were within the Development Area and whether the declaratory reliefs granted by the High Court were proper and legal having regard to ss 11(4) and 15 of the LCDA Ordinance. Furthermore, the leave questions required the Federal Court to decide whether the Principal Deed and the JVA had violated s 8 of the Sarawak Land Code.

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