via New Sabah Times, 26th July, 2011

KOTA KINABALU: The Federal Court allowed the application from five natives for leave to appeal against a Court of Appeal’s decision which affirmed a High Court ruling to dismiss their suit relating to their Native Customary Rights (NCR) claim over land in Tongod, Kinabatangan.

Yesterday, the courtroom was packed with over 100 villagers eagerly waiting for the court to deliver its decision after hearing arguments from all parties.

The decision was pronounced by a three-man panel comprising Chief Judge of Malaya Tan Sri Arifin Zakaria, Federal Court Judge Tan Sri Md Raus Sharif and Tan Sri James Foong Cheng Yuen in respect of four questions of law.

First is on whether the High Court has the originating jurisdiction or jurisdiction to determine Native Customary Rights under common law and/or the constitutional provisions of Federal Constitution under Articles 4, 5, 8, 13, 153 and 161A (5).

Secondly, whether Sections 14, 15, and 41 of the Sabah Land Ordinance 1930 exclude the jurisdiction of the High Court to determine claims of Native Customary Rights under common law and/or under the said Articles.

The third question is on whether the relevant provisions of the Land Ordinance 1930 preclude the jurisdiction of the High Court to grant declaratory relief with respect to Native Customary Rights under common law and/or under the constitutional protection provided under the said Articles.

Finally, on whether the Assistant Collector of Land Revenue (ACLR) has the jurisdiction under Sections 14 and 15 of the Sabah Land Ordinance to determine Native Customary Rights over alienated titled country land.

Apart from that, the court also allowed the plaintiffs’ application to stay the decision of the Court of Appeal which ordered the ACLR to conduct a public inquiry to determine the plaintiffs’ NCR claim under the Sabah Land Ordinance.

The leave to appeal was brought by Darinsok Pangiran Apan, 83, Kayah Unto, 44, Wilster Lewrince, 49, Jaafar Dorong, 51, and Jaimon Darinsok, 44.

They are suing on behalf of themselves and all other proprietors, occupiers, holders and claimants of NCR land at Kampung Maliau, Kampung Minusoh, Kampung Liupampang, Kampung Namukon, Kampung Mananam, Kampung Napagang, and Kampung Lanung in the Kinabatangan district (collectively referred as “Tongod region”).

The plaintiffs were represented by counsels Datuk Kong Hong Ming and Mary Lee Chung Ching and named Hap Seng Consolidated Bhd as first defendant, Asiatic Development Bhd as second defendant as well as Tanjung Bahagia Sdn Bhd, Director of the Department of Lands and Surveys Sabah and the government of the state of Sabah as third, fourth and fifth defendants respectively.

Hap Seng Consolidated Bhd was defended by Counsel Datuk Simon Shim while counsel Michael Denis Tan represented the second and third defendants and State counsel Julita Gumpil represented the fourth and fifth defendants.

Earlier, Kong and Mary told the court that the seven criteria in Section 15 of the Sabah Land Ordinance were very narrow and had limited scope.

They submitted that the plaintiffs’ claim is based on the common law of NCR which extend beyond the seven criteria and that the claim is founded on the protection provided under the Federal Constitution in respect of fundamental liberty of the native people as well as the duty of the government to safeguard the welfare of natives in Sabah.

They further submitted that the common law of native title and constitutional protection are outside the jurisdiction of the ACLR.

Kong said the plaintiffs were seeking the court’s assistance to determine their NCR because the land in question is no longer state land.

Meanwhile in rebutting the submission, Simon told the court that the Sabah Land Ordinance excludes the originating jurisdiction of the High Court to determine NCR because according to the Land Ordinance, only the ACLR is empowered to determine NCR.

Based on the sequence of events, on Oct 11, 2002, the plaintiffs commenced a writ action at the High Court claiming NCR over their ancestral land on the basis of common law as well as protection under the Federal Constitution and under statutory laws including the Sabah Land Ordinance.

On Nov 30, 2002, the plaintiffs applied for an injunction under Order 29 Rule 1 of the Rules of the High Court 1980 with certificates of urgency.

On March 18, 2004, the first, second and third defendants raised preliminary objection on jurisdiction at the commencement of hearing of the plaintiffs’ application for injunction under the said Order.

On June 20, 2008, the High Court Judicial Commission upheld the preliminary objection raised by the defendants that the High Court had no originating jurisdiction to hear NCR claimed by the plaintiffs.

The plaintiffs then appealed against the High Court decision and on June 9, this year the Court of Appeal upheld the decision of the Judicial Commissioner and decided that the High Court had no originating jurisdiction to hear the plaintiffs’ claim on NCR.

It further made a consequential order directing that the Collector (ACLR) should conduct a public enquiry to hear the plaintiffs’ claim on NCR within 60 days from the court’s decision.

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