IN THE COURT OF APPEAL, MALAYSIA

PUTRAJAYA

[APPELLATE JURISDICTION]

CIVIL APPEAL NO. Q-01-783-2010

Between

1. SUPERINTENDENT OF LANDS AND SURVEYS

KUCHING DIVISION

2. STATE GOVERNMENT OF SARAWAK - APPELLANTS

And

MOHAMAD RAMBLI BIN KAWI - RESPONDENT

[In the matter of High Court at Kuching,

Suit No. 22-88-2002]

Between

Mohamad Rambli Bin Kawi - Plaintiff

And

1. Superintendent of Lands and Surveys

Kuching Division

2. State Government of Sarawak - Defendants

CORAM:

Abdul Wahab Patail, JCA

Balia Yusof Haji Wahi, JCA
Tengku Maimun Tuan Mat, JCA

Date of Judgment: 7th July 2014

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 DISSENTING JUDGMENT OF
ABDUL WAHAB PATAIL, JCA

[1] The Appellants, the Superintendent of Lands and

Survey Kuching Division (1st Appellant) and the State

Government of Sarawak (2nd Appellant) were, together with a

3rd Defendant, the Federal Land Commissioner who did not

appeal, named as Defendants respectively in a civil suit

commenced by a Plaintiff Mohamad Rambli bin Kawi (the

Respondent herein) seeking a declaration that he had acquired

native customary rights over 65 parcels of land totalling about

1010 acres at Loba Rambungan (the said Lands) transferred

from the villagers of Kampong Loba under Surat Perjanjian

Menyerah Tanah Temuda.

[2] Sometime on 12 August 1997, the Appellants

alienated the whole of these lands, described as Lot 300, Block

4 Salak Land District, to the Federal Land Commissioner

under a 99-year Provisional Lease.

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[3] In addition to the declaration, the Respondent sought

other ancillary declarations and reliefs generally as follows:

(a) The original owners and the Respondent had

acquired native customary rights over the said

Lands;

(b) This right precludes the Appellants from

impairing the Respondent's rights;

(c) The issuance of the Provisional Lease infringes or

impairs the Respondent's rights;

(d) The issuance of the Provisional Lease is null and

void;

(e) General, aggravated and exemplary damages to

be assessed;

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 (f) Interest at 8% from the date of issuance of the

Provisional Lease on 12 August 1997 to the date

of judgement to date of realisation;

(g) Any other orders or reliefs this Court deems fit

and just; and

(h) Costs.

[4] On conclusion of the trial, the Respondent's claim was

allowed. The High Court -

(a) declared that the Plaintiff had validly acquired

native customary rights over the 65 parcels of

land;

(b) declared that the issuance of the Provisional

Lease extinguished the Plaintiff’s Native

Customary rights to the 65 parcels of land;

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 (c) ordered that the Appellants pay the Plaintiff

compensation to be assessed in accordance with

the relevant provisions of the Land Code

concerning the extinguishment of native

customary rights and Appellants to pay costs to

the Plaintiff, which sum is to be taxed unless

agreed.

[5] The following broad issues were pursued before us in

the appeal:

(a) Whether, between 1943 and 1948, the

original claimants had lawfully acquired

native customary rights over the subject land

or any part thereof;

(b) Whether, having regard to Section 5(1) and (2)

of the Sarawak Land Code 1958, the

Respondent could lawfully acquire native

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 customary rights over the said land though

sale and purchase agreements;

(c) Whether the Courts can depart from authority

on native customs such as the Native Court of

Appeal of Sarawak and followed by the civil

courts, relating to sale or transfer of untitled

land held under native customary tenure that

declared that native customary rights can

only be transacted between natives in the

same community.

[6] I address these in order of appearance.

Whether, between 1943 and 1948, the original claimants

had lawfully acquired native customary rights over the
subject land or any part thereof

[7] PW2, one Halim bin Bujang testified that he is the son

of the late village headman and he inherited the land from his

late father, and that it was first occupied by his grand-uncle.

Likewise, PW3 testified that he inherited the land as Tanah

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Pesaka from his late father. Similarly, PW4, who like PW2 and

PW3, transferred their rights to the native customary land

under the respective Surat Perjanjian Menyerah Tanah

Temuda.

[8] The High Court considered the evidence of a Penghulu

(village headman) from 1995 to 2002, one Mahlee @ Mahli bin

Salam (PW5) whose father and grandfather were Penghulu

before him. In my view, he was well qualified to testify on the

native customs and their ancestral lands at Kampong Loba.

[9] One Sebi bin Masran (PW6) was also a Penghulu, who

testified on the manner how a person transfers his or her

native customary rights land to another by the use of Surat

Perjanjian Menyerah Tanah Temuda.

[10] Section 101 of the Evidence Act 1950 provides that

whoever desires any court to give judgment as to any legal

right or liability, dependent on the existence of facts which he

asserts, must prove that those facts exist, and the burden of

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proof is said to lie upon that person. Section 102 provides

that the burden of proof in a suit or proceeding lies on that

person who would fail if no evidence at all were given on either

side. It is clear that the burden of proof lies upon the

Respondent herein that the native customary rights to the said

land had been acquired by the original owners whose

descendants transferred their rights to the Respondent by

Surat Perjanjian Menyerah Tanah Temuda.

[11] The standard of proof in civil cases is upon a balance

of probabilities. This balance of probabilities is not the proof

beyond reasonable doubt required in criminal cases. This

balance of probabilities may be visualised as a scale with the

plaintiff placing his evidence on one side and the defendant

likewise on the other. The Court evaluates the evidence as to

the weight it carries. Of course incredible evidence carries no

weight. Denials without evidence to justify the denial likewise

can carry no weight, and hence the term "bare denial". At the

end of the case, the Court determines who, between the

plaintiff and the defendant, has placed such evidence that the

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scale tilts in his favour. Sections 101 and 102 mean that to

succeed, the scale must tilt in his favour. This visualisation

also demonstrates that in the course of a trial, if the plaintiff

succeeds to call evidence worth any weight, the scale may first

tilt in his favour, in which case it behoves the defendant to

adduce some evidence to return the scale to at least a state of

balance, in which case the plaintiff would be said to have

failed to discharge the burden that is upon him. This process

is sometimes described somewhat inaccurately as a shifting of

the burden. Be that as it may, if the defendant provides no

evidence to be placed on his side of the scale the plaintiff who

had done so, regardless how much or how little evidence he

has put on his side of the scale. It is understandable in the

nature of things that an ordinary defendant would profess to

be dissatisfied with the evidence adduced by the plaintiff, but

that is not the measure of whether the plaintiff had succeeded

or not. If the defendant has no evidence, it is important for

the defendant to show that the evidence adduced by the

plaintiff is worth no weight. That it is self-serving is no ground

for rejection as no law prohibits a witness from giving evidence

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on his own behalf. It merely goes to the caution in the

examination and the weight to be accorded.

[12] In this case, the High Court having heard the

testimony of the Respondent's witnesses concluded that the

original claimants to the land had acquired native customary

rights to the land prior to 1.1.1958, i.e. before the Land Code

of Sarawak (Cap 81) came into effect. Their fathers and

grandfathers were adults before 1958 and it is not incredible

that they had the capacity to acquire the claimed native

customary rights then. The cross-examination did not reduce

their testimony to no weight at all. There is no evidence to

show those claims are false. I find no error in the process of

and the finding that the original owners of native customary

rights to the said lands acquired those rights prior to 1958.

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Whether, having regard to Section 5(1) and (2) of the
Sarawak Land Code 1958, the Respondent could lawfully
acquire native customary rights over the said land through
sale and purchase agreements

[13] Given that the native customary rights were acquired

before 1.1.1958, sections 5(1) and 5(2) are of no useful

application to the facts of this case.

Whether the Courts can depart from authority on native

customs such as the Native Court of Appeal of Sarawak
and followed by the civil courts, relating to sale or transfer
of untitled land held under native customary tenure that
declared that native customary rights can only be
transacted between natives in the same community

[14] This very issue has been dealt with in Bisi Jinggot v.

Superintendent of Lands and Surveys Kuching Division &

Ors. [2013] 6 CLJ 805 FC, hereinafter referred to as Bisi

Jinggot. A distinction was drawn between alienated and

unalienated native customary land, where the former is held

transferable and the latter not transferable. In his concurring

judgment, Richard Malanjum CJ (Sabah & Sarawak) described

the native customary rights obtained before 1.1.1958, and

bought by Bisi Jinggot between 1984 (5 Lots), 1990 (2 Lots)

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and 1991 (1 Lot) as held under a license and as mere licensee,

the holder has no title to sell. Suriyadi Halim Omar FCJ,

delivering the judgment of the Federal Court, considered the

Fruit Trees Order 1889 and culminating in the Sarawak Land

Code 1958 (Cap 81), when control on acquisition of native

customary rights over land are further restricted under

sections 5(1) and 5(2), for the view that native customary land

remained as State Land but native customary land held under

individual right may be inherited or passed temporarily by the

owner until his return by tungkus asi, but not sold,

particularly to another not from the same community. But as

evident in the judgment of Suriyadi Halim Omar FCJ, the

fundamental basis of the case was not there, since the

appellant's case rested upon conditional sale and purchase

agreements with the express conditions never having been

fulfilled. Further, while it was pleaded the 8 Lots were located

in native area land, the question pertained to native

communal land. Strictly there was no basis for leave for the

questions sought to be answered.

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[15] Nevertheless, Bisi Jinggot, in my view, represents the

correct law that the starting point in any claim of native

customary right over land is not merely where it is located, but

when it was first acquired. Then the time when that right was

acquired determines the relevant order or law in force which

prescribes the terms upon which the right, if any, was

acquired over State Land under the Brooke administration to

the present day.

[16] In this case, though the witnesses have testified to the

practice of Surat Perjanjian Menyerah Tanah Temuda, and

therefore such transfer by sale is accepted by the ethnic Malay

community of Sarawak, it remains law that in respect of rights

acquired before 1.1.1958 and the Fruit Trees Order 1889

applied, by section 2 thereof, the only land that may be

transferred is alienated land where title has been issued.

[17] In the circumstances, I allow the appeal and set aside

the order of the High Court except in respect of the Lots where

title has been issued.

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[18] This appeal was scheduled to be heard together with

another related appeal No. Q-01-105-2010 between

Superintendent of Lands and Surveys Department Kuching

Division & Anor v. Mohamad Rambli bin Kawi, originating

from Kuching High Court No. 22-84-2002. It was agreed by

parties that the decision in the present appeal will bind the

other above-mentioned appeal.

signed

(DATUK ABDUL WAHAB BIN PATAIL)

Judge
Court of Appeal, Malaysia
Putrajaya

Dated: 7th July 2014

Counsels/Solicitors

For the Appellants:

Datuk J.C. Fong, Mr. Joseph Chioh & Mr. Mohd. Adzul
State Attorney General’s Chambers
15th & 16th Floors, Wisma Bapa Malaysia
Petra Jaya, 93502 Kuching
SARAWAK

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For the Respondent:

Mr. Baru Bian & Mr. Desmond Kho

Messrs Baru Bian Advocates
No. 6, 2nd Floor, Lot 5430, Block G, RH Plaza
Jalan Lapangan Terbang
93350 Kuching,
SARAWAK

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