In allowing natives to use a writ of summons instead of judicial review to stake their claims on native customary land, the Court of Appeal has shown it understands the predicament they face, says Baru Bian.
The Court of Appeal at Kuching, presided by Y.A. Dato’ Sulaiman bin Daud, HMR, Y.A. Dato’ Sri Haji Mohamed Apandi bin Haji Ali, HMR and Y.A. Datuk Wira Mohtarudin bin Baki, HMR on 15 February 2012 unanimously dismissed the appeal of the State Government in the case of Superintendent of Lands and Surveys, Samarahan Division & 2 Ors v James Jagah ak Nyadak & 12 Ors; Superintendent of Lands and Surveys, Samarahan Division & 1 Or v Abas ak Naun & 5 Ors; Jangkar Plantation Sdn. Bhd. v Abas ak Naun & 5 Ors and Poliga Sdn. Bhd. & James Jagah ak Nyadak & 12 Ors.
The Court of Appeal was posed with the main legal issue of whether it was proper for the native Plaintiffs to seek a declaration of their Native Customary Rights over provisional leases and timber licences granted by the Superintendent of Land and Survey and the State Government of Sarawak by way of an ordinary Writ of Summons or whether they should have applied by way of a very stringent mode, judicial review.
The appellants had submitted that Native Customary Rights claims must be filed by way of judicial review as these involved elements of public law and the challenging of public authorities such as the Superintendent of Land and Surveys and/or the Director of Forests Sarawak in exercising their power under the laws of Sarawak in issuing provisional leases and timber licences.
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It was argued on behalf of the native plaintiffs (respondents in this appeal) that NCR claims involve issues of law and of facts and therefore their claims against the appellants must be filed by ordinary writ, which allows oral evidences to be adduced at the proper trial.
The learned Court of Appeal judges decided that NCR landowners claiming their rights over their NCR land are entitled to file their claims in the civil court by way of a writ of summons and that judges should be slow to close the door on plaintiffs who are claiming such rights over their NCR lands, which are also their proprietary rights enshrined and protected under the Federal Constitution.
The decision by the learned Court of Appeal judges comes as a great relief to many NCR landowners as there had been an increase in interlocutory applications by timber and palm oil companies lately, to strike out NCR claims based solely on the grounds that their claims should have been filed by way of judicial review.
This of course was intended to oust the natives’ claims from reaching the courts should judicial review be the proper mode of commencing their claims, as judicial review requires that such claims must be filed within 40 days of the date of issuing the lease or timber licence.
This would in most cases be impossible as the issuance of provisional leases and timber licences are normally done ‘behind the back’ of the natives. The interlocutory applications by the companies and the State Attorney General have substantially delayed many trials to date.
This latest decision by the Court of Appeal is a sign that the Court is indeed pragmatic and just in dealing with NCR claims, understanding as they have demonstrated, the predicament in which many natives of Sarawak find themselves when faced with such intrusion of their NCR lands by lessees and timber companies.
Their Lordships ordered costs of RM10000 each against the three Appellants. The native respondents were represented by Mr. Baru Bian and Mr. Simon Siah Sy Jen.