Nikodemus Ak Singai & Ors V Indranika Jaya SDN BHD

486 Malayan Law Journal [2023] 2 MLJ
A
Nikodemus ak Singai & Ors v Indranika Jaya Sdn Bhd
COURT OF APPEAL (PUTRAJAYA) — CIVIL APPEAL

B
NO Q-02(NCvC)(W)-1563–07 OF 2018
LEE SWEE SENG, SUPANG LIAN AND GUNALAN MUNIANDY JJCA
10 JANUARY 2023
Land Law — Trespass — Native customary rights (‘NCR’) over land C

— Respondent as registered lessee of land was granted injunction and awarded
nominal damages against appellants — Whether NCR of appellants over land
may co-exist with interest of respondent — Whether appellants’ NCR over land
had been surrendered, terminated and extinguished — Whether nominal
damages for trespass should be set aside — Whether injunction should remain D
— Whether court may declare title issued to be null and void for non-compliance
with law
In 2007 the natives Iban in Nikodemus ak Singai and others (‘the natives’) in
a representative action filed a suit in the High Court seeking reliefs of various E
declarations, inter alia, that they had native customary rights (‘NCR’) over the
disputed land and that the alienation of the disputed land to the companies
named in the suit and, in particular for the purpose of this appeal, to the
respondent ie Indranika Jaya Sdn Bhd (‘Indranika Jaya’), was unlawful and that
the issuance of the provisional leases were unlawful and null and void and the F
relevant entries of the registration of the subject land in the company’s name be
expunged (‘the Nikodemus NCR 2007 Suit’). At the time the natives filed the
Nikodemus NCR 2007 Suit, the leases issued were provisional leases over the
subject land and subsequently these were converted into final State leases.
Indranika Jaya had entered into possession of the subject land being issued with G
a title in 2003 and had planted and cultivated an oil palm plantation on the
subject land which had been bearing fruits for several years. After the decision
in the Nikodemus NCR 2007 Suit in which the High Court decided in the
natives’ favour, the natives entered upon the subject land and sought to
blockade the lorries from entering and exiting the oil palm plantation. The H
natives maintained that they had a right to remain on the subject land as they
had NCR over the whole of the disputed land which included the subject land
and which NCR had not been properly terminated nor had it been
extinguished and as yet, there had been no assessment of damages paid to them.
Indranika Jaya filed a suit in the High Court (‘the Indranika Jaya trespass 2016 I
Suit’), claiming damages for trespass and an injunction restraining the natives
from blocking the lorries from so entering and exiting the oil palm plantations
and from trespassing on the subject land. The injunction was granted and
nominal damages of RM20,000 was awarded. Hence, this appeal by the natives
[2023] 2 MLJ (Lee Swee Seng JCA) 487
A and cross-appeal by Indranika Jaya. The issues for consideration were:

(a) whether the NCR of the natives over the land may co-exist with the interest
of the registered lessee in the provisional lease and later State lease; (b) whether
the natives’ NCR over the subject land had been surrendered, terminated and
extinguished under the law; (c) whether the sum of RM20,000 assessed as
B nominal damages for trespass should be set aside; (d) whether the injunction
should remain; and (e) whether there may be circumstances where the court
may declare a title issued to be null and void for non-compliance with the law
by the State and its agencies.
C Held, allowing the appellants’ appeal and dismissing respondent’s cross-appeal:

(1) The three titles to the three provisional leases were issued on 14 March
2008 and the final State leases were issued on 12 October 2009 even
without the completion of a survey. As stated in the amended s 28(4) of
D the Sarawak Land Code (‘the SLC’) it was unless and until both
conditions were fulfilled ie that the final survey was completed to the
satisfaction of the Superintendent and a State lease in Form B was issued
that the title became indefeasible for otherwise the benefit of
indefeasibility under s 132 of the SLC did not follow nor flow from what
E was essentially a provisional lease still since it was subjected to the
completion of the survey. An NCR over the subject land may not defeat
indefeasibility of the State lease but that did not mean that the holder of
the State leases had been conferred an automatic right to claim for
trespass over natives who had NCR over the subject land. The express
F restriction and special conditions attached to the land as found in the
final State lease was such that the indefeasibility of the lease was not
absolute but qualified and in any event the natives had been found by the
High Court to have been legally on the land even before 1 January 1958
and that they had not abandoned their NCR land. As both NCR and
G benefits of indefeasibility may exist side by side over the disputed land
and more particularly the subject land for the discussion of this appeal on
Indranika Jaya’s trespass suit, neither could sue the other for trespass. As
such, the lessee of the State lease, Indranika Jaya, could not maintain an
action for trespass against the natives (see paras 45, 51 & 86–89).
H (2) Unless and until damages in the form of compensation was paid, the
NCR over the disputed land had not been extinguished. It would be
detrimental and unfair to the natives to take the date of extinguishment
of their NCR to be anything earlier than the final disposal of their rights
in the Federal Court. When the Indranika Jaya’s trespass 2016 Suit was
I before the High Court, the natives’ NCR over the disputed land had not
been extinguished with the result that both rights, subsisting and
co-existing, Indranika would not be able to mount and maintain an
action in trespass against the natives. The case of Busing ak Jali & Ors
v Kerajaan Negeri Sarawak & Anor and other appeals [2022] 2 MLJ 273
was not being read as laying down the proposition that in every case the A
court would have to say to the natives that it was too late for them to
assert any NCR over the land and must be content with just awaiting
compensation whilst private enterprise had already monetised the land
by using it as a security for loans (see paras 110, 112–113 & 115).
B
(3) As a cause of action in trespass could not be had against the natives as they
had NCR over the subject land subsisting and co-existing side by side the
registered lease interest of Indranika Jaya as the lessee, it would mean that
no liability could be found against the natives. Any damages, even
nominal damages, was not justified. Unless and until compensation was C
paid out and in the absence of a declaration as to when their NCR rights
had been extinguished, any finding of trespass and an award of damages,
even nominal, would aggravate the anomaly and aberration in the
granting of a State lease before the NCR over the subject land had been
lawfully surrendered, terminated or extinguished (see paras 118 D
& 124–125).
(4) While the natives’ NCR over the land had not been lawfully surrendered,
terminated or extinguished, it would nevertheless not be conducive for
peace and the orderly conduct of business if the injunction granted was
E
not continued as there might be a breach of the peace. What the
appellants suffered as a result of their NCR over the land not having been
lawfully terminated and extinguished would have to be taken up in the
damages claim against the State and its agencies and for at the same time
being deprived of being able to exercise their NCR over the land while
F
waiting for compensation to be assessed and paid out (see
paras 126–127).
(5) There would be circumstances where the court would not shrink from
declaring a title issued not in compliance with its own procedure was
ultra vires the relevant Land Code. To say in that circumstance that the G
title issued to a third party, being indefeasible, could not be touched,
tinkered with and much less impugned and rectified, and that all that the
traumatised proprietor could do was to await compensation from the
State would be cold comfort and more so when the State had an exit route
endorsed on the State lease. Likewise, it would be unconstitutional for a H
State to alienate any NCR land without payment of compensation. The
subsequent order for payment of compensation by the court did not
make the act of the State in depriving the appellant of their NCR land
without payment of compensation a constitutional act (see paras 130
& 137–138). I
[Bahasa Malaysia summary

Pada tahun 2007 orang asli Iban melalui Nikodemus ak Singai dan lain-lain
(‘orang asli’) dalam tindakan perwakilan memfailkan saman di Mahkamah
A Tinggi memohon relif pelbagai pengisytiharan, antara lain, bahawa mereka

mempunyai hak adat anak negeri (‘HAAN’) ke atas tanah yang dipertikaikan
dan bahawa pemberian tanah yang dipertikaikan kepada syarikat yang
dinamakan dalam saman itu dan, khususnya untuk tujuan rayuan ini, kepada
responden iaitu Indranika Jaya Sdn Bhd (‘Indranika Jaya’), adalah menyalahi
B undang-undang dan bahawa pengeluaran pajakan sementara adalah menyalahi
undang-undang dan terbatal dan tidak sah dan penyertaan berkaitan
pendaftaran tanah subjek atas nama syarikat akan dihapuskan (‘Saman
Nikodemus HAAN 2007’). Pada masa orang asli memfailkan Saman
Nikodemus HAAN 2007, pajakan yang dikeluarkan adalah pajakan sementara
C
ke atas tanah subjek dan seterusnya ini telah ditukar kepada pajakan Negeri
muktamad. Indranika Jaya telah memasuki pemilikan tanah subjek dengan
hakmilik pada tahun 2003 dan telah menanam dan mengusahakan ladang
kelapa sawit di atas tanah subjek yang telah berbuah selama beberapa tahun.
D Selepas keputusan dalam Saman Nikodemus HAAN 2007 di mana
Mahkamah Tinggi memutuskan untuk memihak kepada orang asli, orang asli
memasuki tanah subjek dan berusaha untuk menyekat lori daripada masuk
dan keluar dari ladang kelapa sawit. Orang asli bertegas bahawa mereka
mempunyai hak untuk kekal di tanah subjek kerana mereka mempunyai
E HAAN ke atas keseluruhan tanah yang dipertikaikan termasuk tanah subjek
dan HAAN belum ditamatkan dengan betul dan tidak dihentikan dan setakat
ini, terdapat tiada taksiran ganti rugi yang dibayar kepada mereka. Indranika
Jaya memfailkan saman di Mahkamah Tinggi (‘Saman pencerobohan
Indranika Jaya 2016’), menuntut ganti rugi untuk pencerobohan dan injunksi
F yang menghalang orang asli daripada menghalang lori masuk dan keluar dari
ladang kelapa sawit dan daripada menceroboh tanah subjek. Injunksi itu
dibenarkan dan ganti rugi nominal RM20,000 telah diberikan. Oleh itu,
rayuan ini oleh orang asli dan rayuan balas oleh Indranika Jaya. Isu-isu untuk
pertimbangan adalah: (a) sama ada HAAN orang asli ke atas tanah mungkin
G wujud bersama kepentingan pemajak berdaftar dalam pajakan sementara dan
kemudiannya pajakan Negeri; (b) sama ada HAAN orang asli ke atas tanah
subjek telah dikalahkan, ditamatkan dan dihentikan di bawah
undang-undang; (c) sama ada jumlah RM20,000 yang dinilai sebagai ganti
rugi nominal untuk pencerobohan perlu diketepikan; (d) sama ada injunksi
H harus kekal; dan (e) sama ada terdapat keadaan di mana mahkamah boleh
mengisytiharkan hak milik yang dikeluarkan sebagai terbatal dan tidak sah
kerana tidak mematuhi undang-undang oleh Negeri dan agensinya.
Diputuskan, membenarkan rayuan perayu dan menolak rayuan balas

I responden:
(1) Tiga hakmilik kepada tiga pajakan sementara telah dikeluarkan pada
14 Mac 2008 dan pajakan Negeri muktamad telah dikeluarkan pada
12 Oktober 2009 walaupun tanpa penyiapan ukur. Seperti yang
dinyatakan dalam pindaan s 28(4) Kanun Tanah Sarawak (‘KTS’) ia
adalah melainkan dan sehingga kedua-dua syarat dipenuhi iaitu ukur A

muktamad telah disiapkan untuk memuaskan hati Penguasa dan pajakan
negeri dalam Borang B telah dikeluarkan bahawa hakmilik menjadi tidak
boleh disangkal kerana jika tidak kepentingan ketakbolehsangkalan di
bawah s 132 KTS tidak diikuti atau mengalir daripada apa yang pada
asasnya adalah pajakan sementara kerana ia tertakluk kepada penyiapan B
ukur. Satu HAAN ke atas tanah subjek mungkin tidak mengalahkan
ketakbolehsangkalan pajakan negeri tetapi itu tidak bermakna bahawa
pemegang pajakan negeri telah diberikan hak automatik untuk
menuntut pencerobohan ke atas anak negeri yang mempunyai HAAN ke
atas tanah subjek. Sekatan nyata dan syarat khas yang dilampirkan pada C
tanah seperti yang terdapat dalam pajakan Negeri muktamad adalah
sedemikian rupa sehingga ketakbolehsangkalan pajakan itu tidak mutlak
tetapi layak dan dalam apa jua keadaan orang asli telah didapati oleh
Mahkamah Tinggi adalah secara sah di atas tanah itu walaupun sebelum
1 Januari 1958 dan bahawa mereka tidak meninggalkan tanah HAAN D
mereka. Memandangkan kedua-dua HAAN dan faedah
ketakbolehsangkalan boleh wujud bersama di atas tanah yang
dipertikaikan dan terutamanya tanah subjek untuk perbincangan rayuan
ini mengenai Saman pencerobohan Indranika Jaya, kedua-dua pihak
tidak boleh menyaman antara lain atas pencerobohan. Oleh itu, pemajak E
pajakan Negeri, Indranika Jaya, tidak dapat mengekalkan tindakan
menceroboh anak negeri (lihat perenggan 45, 51 & 86–89).
(2) Melainkan dan sehingga ganti rugi dalam bentuk pampasan dibayar,
HAAN ke atas tanah yang dipertikaikan belum dihentikan. Adalah F
memudaratkan dan tidak adil kepada orang asli untuk diambil tarikh
pemberhentian HAAN mereka sebagai sesuatu yang lebih awal daripada
pelupusan terakhir hak mereka di Mahkamah Persekutuan. Apabila
Saman pencerobohan Indranika Jaya 2016 dihadapkan ke Mahkamah
Tinggi, HAAN orang asli ke atas tanah yang dipertikaikan tidak G
dihentikan dengan keputusan bahawa kedua-dua hak, wujud dan wujud
bersama, Indranika tidak akan dapat melakukan dan mengekalkan
tindakan pencerobohan terhadap orang asli. Kes Busing ak Jali & Ors
v Kerajaan Negeri Sarawak & Anor and other appeals [2022] 2 MLJ 273
tidak dibaca sebagai meletakkan cadangan bahawa dalam setiap kes H
mahkamah perlu mengatakan kepada orang asli bahawa sudah terlambat
bagi mereka untuk menegaskan mana-mana HAAN ke atas tanah dan
mesti berpuas hati dengan hanya menunggu pampasan sementara
perusahaan swasta telah pun menghasilkan wang dengan tanah dengan
menggunakannya sebagai jaminan untuk pinjaman (lihat I
perenggan 110, 112–113 & 115).
(3) Oleh kerana kausa tindakan pencerobohan tidak boleh dibuat terhadap
orang asli kerana mereka mempunyai HAAN ke atas tanah subjek yang
wujud dan wujud bersama dengan kepentingan pajakan berdaftar
A Indranika Jaya sebagai pemajak, ini bermakna tiada liabiliti boleh

didapati terhadap orang asli. Sebarang ganti rugi, malah ganti rugi
nominal, adalah tidak wajar. Melainkan dan sehingga pampasan dibayar
dan tanpa adanya pengisytiharan tentang bila hak HAAN mereka telah
dihentikan, sebarang penemuan pencerobohan dan award ganti rugi,
B walaupun nominal, akan memburukkan lagi keganjilan dan
penyelewengan dalam pemberian pajakan Negeri sebelum HAAN ke atas
tanah subjek telah secara sah diserahkan, ditamatkan atau dihentikan
(lihat perenggan 118 & 124–125).
C (4) Walaupun HAAN orang asli ke atas tanah itu tidak secara sah diserahkan,
ditamatkan atau dipadamkan, namun ia tidak sesuai untuk keamanan
dan kelancaran perniagaan jika injunksi yang diberikan tidak diteruskan
kerana mungkin berlaku pelanggaran kedamaian. Apa yang ditanggung
oleh perayu akibat HAAN mereka ke atas tanah yang tidak secara sah
D ditamatkan dan dihentikan perlu diambil kira dalam tuntutan ganti rugi
terhadap Negeri dan agensinya dan pada masa yang sama dihalang untuk
melaksanakan HAAN atas tanah sementara menunggu pampasan dinilai
dan dibayar (lihat perenggan 126–127).
E (5) Akan ada keadaan di mana mahkamah tidak akan mengelak daripada
mengisytiharkan hakmilik yang dikeluarkan tidak mematuhi
prosedurnya sendiri adalah ultra vires Kanun Tanah yang berkaitan.
Untuk mengatakan dalam keadaan itu bahawa hakmilik yang
dikeluarkan kepada pihak ketiga, tidak boleh disangkal, tidak boleh
F disentuh, dikaji dan lebih-lebih lagi disangkal dan diperbetulkan, dan
bahawa apa yang boleh dilakukan oleh pemilik yang mengalami trauma
adalah menunggu pampasan daripada Negari adalah tidak mencukupi
dan lebih-lebih lagi apabila Negeri mempunyai laluan keluar yang
disahkan pada pajakan Negeri. Begitu juga, adalah menyalahi
G perlembagaan bagi sesebuah Negeri untuk memberikan mana-mana
tanah HAAN tanpa bayaran pampasan. Perintah berikutan pembayaran
pampasan oleh mahkamah tidak menjadikan tindakan Negari
melucutkan tanah HAAN milik perayu tanpa bayaran pampasan sebagai
tindakan berperlembagaan (lihat perenggan 130 & 137–138).]
H
Cases referred to
Busing ak Jali & Ors v Kerajaan Negeri Sarawak & Anor and other appeals [2022]
2 MLJ 273; [2022] 3 CLJ 1, FC (refd)
Director of Forest, Sarawak & Anor v TR Sandah ak Tabau & Ors (suing on behalf
I of themselves and 22 other proprietors, occupiers, holders and claimants of native
customary rights (‘NCR’) land situated at Rumah Sandah and Rumah Lanjang,
Ulu Machan Kanowit) and other appeals [2017] 2 MLJ 281; [2017] 3 CLJ 1,
FC (refd)
Frazer v Walker and Others [1967] 1 All ER 649, PC (refd)
Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ A
1, FC (folld)
Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors [2005] 6 MLJ 289, CA
(refd)
Mok Deng Chee v Yap See Hoi & Ors [1981] 2 MLJ 321, FC (refd)
Nikodemus ak Singai & 2 Ors v Superintendent of Lands and Surveys, Samarahan B
Division & 2 Ors (Civil Appeal No 01(f )-32–10 of 2019(Q)) (unreported)
(refd)
Nikodemus Singai & Ors v Sibu Slipway Sdn Bhd & Ors [2010] MLJU
2212; [2010] 10 CLJ 383, HC (refd)
Nikodemus Anak Singgai v Sibu Slipway Sdn Bhd [2015] MLJU 646; [2016] 1 C
CLJ 618, HC (refd)
Shayo (M) Sdn Bhd v Nurlieda bt Sidek & Ors [2013] 7 MLJ 755, HC (refd)
TH Pelita Sadong Sdn Bhd & Anor v TR Nyutan ak Jami & Ors and other
appeals [2018] 1 MLJ 77, FC (refd)
Uptown Properties Sdn Bhd v Pentadbir Tanah Wilayah Persekutuan & D
Ors [2012] 8 MLJ 713; [2012] 3 CLJ 271, HC (refd)
Legislation referred to
Federal Constitution art 13
National Land Code s 92 E
Land Code (Cap 81) ss 4, 5, 5(3), (7), 6, 6A, 15(1), 28, 28(1), (2),
(3), (4), 132, 197, First Schedule, Forms B, C
Appeal from: Indranika Jaya Sdn Bhd v Nikodemus ak Singai & Ors [2018] 11
MLJ 281 (High Court, Kuching) F
Dominique Ng Kim Ho (with Berrylin Ng Phuay Lee and Cherishe Ng Phuay

Hui) (Dominique Ng & Assoc) for the appellant.
Peter Hii Din Chiang (Loke, King, Goh and Partners) for the respondent.
G
Lee Swee Seng JCA (delivering judgment of the court):
[1] This is yet another case where before the native customary rights (‘NCR’)
over the land have been properly and legally surrendered or terminated or
extinguished and compensation made, the Sarawak State and its agencies had H
issued a lease of the land to private companies. This judgment explores the
rights of the natives under the Sarawak Land Code (‘the SLC’) vis a vis that of
the new registered lessee when a proper survey of the land has not been
completed and compensation paid to the natives affected before the issuance of
a State lease title over the land. I
[2] The situation here is especially grievous and disturbing as at the time the
natives Iban in Nikodemus and others in a representative action filed the suit in
2007 in Suit No 22–208 of 2007-I in the High Court of Sabah and Sarawak at
A Kuching (‘Nikodemus’ NCR 2007 Suit’), seeking a declaration from the High
Court that they have NCR over the disputed land, the leases issued were
provisional leases over the subject land and subsequently these were converted
into final State leases before the High Court decided in the natives’ favour.
B [3] The Nikodemus’ NCR 2007 Suit is different from and yet very much
related to the current Suit No KCH-23NCvC-1/2 of 2016 in the High Court
of Sabah and Sarawak at Kuching (‘Indranika Jaya’s Trepass 2016 Suit’),
essentially a suit for damages for trespass brought by Indranika Jaya Sdn Bhd
(‘Indranika Jaya’) against Nikodemus and others, against which decision in
C
favour of Indranika Jaya the natives in Nikodemus and others had appealed to
this court.
[4] To understand the under-currents and overtones of this appeal, one

D would need to appreciate the issues that first arose in the Nikodemus’ NCR
2007 Suit which spilled over to the Indranika Jaya’s Trespass 2016 Suit against
the backdrop of a supervening legislative amendment effected by the Sarawak
Land Code (Amendment) Ordinance of 2018 which came into force on
1 August 2019. So, wade through the waters we must.
E
[5] The disputed land was at and around Kampung Spaoh, Kampung Menat
Ulu and Kampung Menat Ili at Gedong in the district of Simunjan, Sarawak,
measuring some 8,001 hectares.
F [6] There were initially six defendants in the Nikodemus’ NCR 2007 Suit
where Nikodemus and others sued in a representative capacity representing the
Iban natives against the defendants in the following order from the first to the
sixth defendants:
(a) Sibu Slipway Sdn Bhd — the holder of Forest License No 8393;
G
(b) Limbang Sinai Mas Sdn Bhd — the holder of two leases described as Lot
226 Block 4 Sedilu-Gedong Land District and Lot 1 Block 9
Sedilu-Gedong Land District;
(c) Indranika Jaya Sdn Bhd — the holder of a provisional lease described as
H
Lots 164, 162 and 173 of Sedilu-Gedong Land District;
(d) the Superintendent of Lands and Surveys;
(e) the Director of Forest; and
I (f) the Sarawak State Government.
[7] The natives, in the Nikodemus NCR 2007 Suit, sought reliefs of various
declarations inter alia that they have NCR over the disputed land in question
and that the alienation of the disputed land to the companies named in the suit
and, in particular for the purpose of this appeal, to Indranika Jaya, is unlawful A
and that the issuance of the provisional leases are unlawful and null and void
and that the relevant entries of the registration of the subject land in the
company’s name be expunged.
[8] The Government of Sarawak and its agents were aware of the pending B
Nikodemus’ NCR 2007 Suit as they were named as defendants and they even
applied for the Suit to be struck out but was unsuccessful. However, the private
entities who were granted either a forest license (as in the first defendant) or a
provisional lease (as in thesecond and third defendants) applied successfully for
the suit to be struck out. C
[9] The decision is reported in Nikodemus Singai & Ors v Sibu Slipway Sdn
Bhd & Ors [2010] MLJU 2212; [2010] 10 CLJ 383 (‘Nikodemus 1 case’), a
decision of Justice Rhodzariah Bujang with respect to the applications filed by
D
all the defendants, which are the three companies and the Sarawak State and its
agencies, to strike out the suit.
[10] Based on the fact that the titles issued to the private companies or forest
licence as the case may be, are indefeasible, the High Court allowed Indranika E
Jaya and the two other companies to strike out the suit against them.
[11] With that the natives in Nikodemus and others in a representative

action were left to pursue against the fourth to the sixth defendants who were
the Superintendent of Lands and Surveys, the Director of Forest and the F
Sarawak State Government respectively.
[12] The Nikodemus’ NCR 2007 Suit went for trial with witnesses being
called and at the end of the trial, on the strength of the evidence presented,
including expert evidence, Justice Lee Heng Cheong J (now JCA) held on G
11 August 2014 that the plaintiffs as natives of the land, have NCR over the
disputed land in question in that they had successfully proved that they had
acquired, created and/or inherited NCR over the disputed land prior to
1 January 1958 over an area of 8,001 hectares. These are the areas over which
forest timber license had been issued and leases had been issued. See the H
reported judgment in Nikodemus Anak Singgai v Sibu Slipway Sdn Bhd [2015]
MLJU 646; [2016] 1 CLJ 618 (‘Nikodemus 2 case’).
[13] As Justice Rhodzariah J (now FCJ) had earlier in the Nikodemus 1 case
struck out the suit against the first to the third defendants in the Nikodemus’ I
NCR 2007 Suit including against Indranika Jaya as the third defendant there,
Justice Lee Heng Cheong, upon clarification with the parties, then made an
order on 10 September 2014 for assessment of damages over the whole of the
8,001 hectares over which both the timber licence and the State leases had been
A issued, for the natives had lost their NCR over the disputed land for which
provisional leases had been granted. His Lordship also deleted an earlier order
made in declaring that the issuance of the forest license and the issuance of the
provisional leases over the land was null and void.
B [14] On appeal by the Government of the State of Sarawak and its agencies
in the fourth to the fifth defendants in the Nikodemus’ NCR 2007 Suit to the
Court of Appeal, the Court of Appeal reduced the area over which the natives
have NCR over the disputed land to just 300 hectares of cultivated mosaic
which is the agreed temuda. This is because the Court of Appeal was bound by
C the decision of the Federal Court in Director of Forest, Sarawak & Anor v TR
Sandah ak Tabau & Ors (suing on behalf of themselves and 22 other proprietors,
occupiers, holders and claimants of native customary rights (‘NCR’) land situated at
Rumah Sandah and Rumah Lanjang, Ulu Machan Kanowit) and other
appeals [2017] 2 MLJ 281; [2017] 3 CLJ 1 (FC) (‘TR Sandah 1’) that had held
D that the areas held under Pemakai Menoa and Pulau Galau do not constitute
land held under NCR.
[15] By the time the appeal reached the Federal Court in Federal Court Civil
Appeal No 01(f )-32–10 of 2019(Q) between Nikodemus ak Singai & 2 Ors
E
v Superintendent of Lands and Surveys, Samarahan Division & 2 Ors (Civil
Appeal No 01(f )-32–10 of 2019(Q)) (unreported) (‘the Nikodemus FC NCR
Appeal’) and which concerns the same disputed land, there had come into force
the Sarawak Land Code (Amendment) Ordinance 2018 (‘SLC 2018
Amendments’). The SLC 2018 Amendments which came into effect on
F
1 August 2019 recognise the customary practice of Pemakai Menoa and Pulau
Galau and reinstated it as part of the customary law that the court would give
effect to.
G [16] The Federal Court, in a special panel constituted and chaired by Justice
Abang Iskandar bin Abang Hashim CJ (Sabah and Sarawak), heard the
Nikodemus FC NCR Appeal together with five other appeals as follows:
(a) 01(f )-31–10 of 2019(Q) — Busing ak Jali & Ors v Government of
Sarawak & Anor;
H
(b) 01(f )-32–10 of 2019(Q) — Nikodemus ak Singai & Ors v Superintendent
of Lands & Surveys & Ors;
(c) 01(i)-33–10 of 2019(Q) — Ramba ak Bungkong & Ors v Unus bin Tambi
& Ors;
I
(d) 02(f )-76–10 of 2019(Q) — Yahya bin Timbon & Ors v Kumpulan
Parabena Sdn Bhd;
(e) 02(f )-77–10 of 2019(Q) — Busing ak Jali & Ors v Empire Plantation Sdn
Bhd; and
(f) 02(i)-79–10 of 2019(Q) — Ramba ak Bungkong & Ors v ASCO Green A

Sdn Bhd.
[17] The combined decisions were delivered on 24 November 2021 and

reported in the case of Busing ak Jali & Ors v Kerajaan Negeri Sarawak & Anor
and other appeals [2022] 2 MLJ 273; [2022] 3 CLJ 1 (‘Busing Jali’s FC case’) B
and the Nikodemus FC NCR Appeal was referred to as Case B in the
judgment.
[18] The common issues were whether the Federal Court’s decision in TR C
Sandah case in respect of Pemakai Menoa and Pulau Galau is still good law and
also with respect to TH Pelita Sadong Sdn Bhd & Anor v TR Nyutan ak Jami &
Ors and other appeals [2018] 1 MLJ 77 (‘TR Nyutan’s case’) on indefeasibility of
provisional leases vis a vis NCR over the land.
D
[19] The Federal Court in Busing Jali’s FC case held that effect must be given
to the statutory recognition of Pemakai Menoa and Pulau Galau for all pending
cases before the courts unless they had been disposed of in the apex court before
1 August 2019. The Federal Court also held as follows:
E
[162] Upon our due perusal of the grounds of judgment of the Court of Appeal, we
found that there was no assessment made on the finding of facts, such that the
severance of 300 hectares of Temuda from the claimed 8001 hectares was based on
TR Sandah 1. As stated earlier, the Court of Appeal was right then to make such an
order based on the then prevailing ruling of TR Sandah 1.
F
[163] However, with the coming into force of s 6A, we are of the view that this
appeal ought to be sent back to the Court of Appeal for a finding of fact specifically on
the area where Pemakai Menoa and Pulau Galau are situated within the 8,001 hectares
considering a maximum of 500 hectares or 1,000 hectares of Pemakai Menoa and Pulau
Galau accordingly as allowed under s 6A. Any such finding would be relevant for the G
purpose of compensation under s 197 of the SLC to the appellants who might have been
deprived of their rights by reason of alienation of the lands to third parties. (Emphasis
added.)
[20] As at the decision of the Federal Court in Busing Jali’s FC case on H

24 November 2021, no damages had been assessed and paid to the natives
under the representative action arising out of the Nikodemus’ NCR 2007 Suit.
In fact, the Federal Court ordered the matter to be remitted to the Court of
Appeal for determining the affected area and an assessment of damages arising
out of that. The Federal Court observed as follows: I
[164] Undoubtedly, the Federal Court can and is legally entitled to make such
assessment, however, by doing so, the parties are deprived of an avenue to appeal
further on the matter of assessment.
A [21] Meanwhile Indranika Jaya has entered into possession of the subject
land upon being issued with a title in 2003 and had planted and cultivated an
oil palm plantation on the subject land and which has been bearing fruits for
several years. After the decision of Justice Lee Heng Cheong in the Nikodemus’
NCR 2007 Suit on 11 August 2014, the defendants here, being the natives who
B as plaintiffs had succeeded in obtaining a declaration that they have NCR over
the disputed land, entered upon the subject land and it was alleged that they
sought to blockade the lorries from entering and exiting the oil palm
plantation. The natives maintained that they have a right to remain on the
subject land as they have NCR over the whole of the disputed land which
C
includes the subject land and which NCR had not been properly terminated
nor has it been extinguished and as yet, there has been no assessment of
damages paid to them.
D [22] Indranika Jaya filed this suit, the Indranika Jaya’s Trespass 2016 Suit,
claiming damages for trespass and an injunction restraining the natives from
blocking the lorries from so entering and exiting the oil palm plantations and
from trespassing onto the subject land. The injunction was granted pending
the disposal of the suit and after the disposal of the suit Justice Dr Lim Hock
E Leng JC (now J) on 26 June 2018 awarded nominal damages for trespass of
RM20,000 and interest thereon at the rate of 5%pa from the date of judgment
to the date of full payment, and costs of RM30,000 subject to payment of the
allocatur fee.
F [23] A permanent prohibitory injunction was also given after the trial and
the learned judge observed as follows:
[99] The evidence is overwhelming that the defendants and their 60–70 followers
have trespassed onto the plaintiff ’s subject land. It appears that the defendants are still
trying to assert proprietary rights over the subject land although there is no appeal against
G the decision in the High Court on 18 January 2010 by which the plaintiff ’s titles were
held to be indefeasible. The notice of motion for leave to appeal to the Federal Court,
as explained earlier, does not concern the decision of the High Court on 18 January
2010. There is no lawful justification for the presence of the defendants and their
followers on the subject land between 29 January to 6 February 2016, to which the
H plaintiff did not give consent and to which it objected.
[100] The defendants have not given up their claim of proprietary rights and assert
through DWS-1 and their counsel that the claim is still a live issue in the Federal
Court, although that is clearly not the case. It appears that the defendants will
continue to trespass onto the plaintiff ’s subject land as they throughout the trial
I maintained that they had existing farms there. Further, PW1 gave evidence that the
defendants had returned to the plaintiff ’s subject land after 6 February 2016.
(Emphasis added.)
[24] Justice Dr Lim Hock Leng above seemed to have taken the stand that as
Indranika Jaya’s titles on the subject land are indefeasible, that trumps and A
triumphs over whatever may be the natives’ NCR over the same subject land.
There seemed to have been some miscommunication on pursuing the appeal
from Justice Rhodzariah’s decision in Nikodemus 1 case in striking out the
Nikodemus’ NCR 2007 Suit against Indranika Jaya and two other private
entities. The long and short of it was that there was no valid appeal from that B
decision to the Court of Appeal as a subsequent application filed to extend the
time to appeal had been dismissed.
[25] Justice Dr Lim Hock Leng did not seem to have considered if a claim for
trespass against the natives by Indranika Jaya could be maintained when the C
natives had been legally and validly occupying their ancestral land even before
1 January 1958 and as vindicated by Justice Lee Heng Cheong in the
Nikodemus NCR 2007 Suit’s decision handed down in 2014 in Nikodemus 2
case.
D
[26] The issue of whether the natives’ beneficial interest in their NCR over
the subject land could exist side by side with Indranika Jaya’s leasehold interest
in the registered leases was not considered by the High Court below. Likewise,
whether and when the natives’ NCR over the subject land had been
surrendered, terminated or extinguished did not feature at all in His Lordship’s E
grounds of judgment against the backdrop of assessment of damages not
having been done and much less, paid to the natives. In our considered view
these would be relevant and pertinent issues in what appear to be a
contestations of interests in the subject land by two parties; the natives who had
acquired NCR in perpetuity over the subject land even before a provisional F
lease was issued to Indranika Jaya.
[27] Nikodemus and others have appealed to this court against the said
decision of the High Court in the Indranika Jaya’s Trespass Suit. This Court of
G
Appeal in deciding the appeal has the benefit of insight and hindsight arising
out of the Federal Court’s case in Busing Jali’s FC case of which Nikodemus’
NCR 2007 Suit was part of the decision at the Federal Court (referred to as
Case B) and also the interpretation of ss 5, 6 and 6A of the SLC as amended by
the Sarawak Land Code (Amendment) Ordinance 2018 which came into force
H
on 1 August 2019 giving statutory footing to the customary practice of
Pemakai Menoa and Pulau Galau with respect to NCR claims over land.
[28] The parties shall be referred to as the natives as appellants who were the
defendants in the High Court below and Indranika Jaya as the respondent who I
was the plaintiff in the High Court below.
A Whether the NCR of the appellant over the land may co-exist with the interest of the
registered lessee in the provisional lease and later State lease pending a final survey
and subject to the special conditions endorsed on the title
[29] At the time when Nikodemus filed his claim in a representative capacity
B in the Nikodemus’ NCR 2007 Suit in the High Court, only provisional leases
had been issued. See para [1] of Nikodemus Singai & Ors v Sibu Slipway Sdn Bhd
& Ors [2010] MLJU 2212; [2010] 10 CLJ 383 as found by Justice
Rhodzariah JC (now FCJ). The subject land in the provisional lease issued to
Indranika Jaya and held under provisional lease 1229 measuring approximately
C 1,717 hectares was issued on 8 September 2003 for a premium of RM858,500
by way of ten instalment annual payments. The lease was for 60 years. A charge
was created over it in favour of CIMB Islamic Bank Bhd for RM26,826,062.96
on 29 November 2007.
D
[30] It is not disputed that the subject land in the Indranika Jaya’s Trespass
2016 Suit was later held under three provisional leases and subsequently
converted to three State leases in 2009 are the same pieces of land which form
part of the disputed land, in the Nikodemus’ NCR 2007 Suit.
E
[31] Being a provisional lease, it was subject to the following
‘RESTRICTIONS AND SPECIAL CONDITIONS’ endorsed on the title:
(i) Upon the completion of a proper survey of the land the holder of this provisional
lease will be given a lease in accordance with the provisions of the Land Code and
F subject to the following express conditions and restrictions:
(a) …
…
(d) The holder of this provisional lease shall not be entitled to a lease of an area equal
to the area above stated but only to such an area as the survey shows to be available.
G (Emphasis added.)
[32] Subsequently the following provisional leases were issued on 14 March

2008 in place of provisional lease 1229 and they are Lot 164 Block 10, Lot 162
H Block 10 and Lot 173 Block 16 of Sedilu-Gedong Land District.
[33] Lot 162 of approximately 69.1 hectares had a premium of

RM25,141.80 payable in five equal annual instalments payments.
I [34] The premium for Lot 164 of approximately 1,563 hectares was stated to
be RM568,692.20 payable in five equal annual instalments payments.
[35] Lot 173 of approximately 67.6 hectares has a premium of RM24,596

also payable in five equal annual instalments payments.
[36] The charge in favour of CIMB Islamic created on 29 November 2007 A

was also reflected on the three provisional leases.
[37] Likewise the ‘RESTRICTIONS AND SPECIAL CONDITIONS’ in

the continuation provisional lease of State Land in the three provisional leases
has the following endorsed on the titles: B
(i) Upon the completion of a proper survey of the land the holder of this provisional
lease will be given a lease in accordance with the provisions of the Land Code and
subject to the following express conditions and restrictions:
(a) … C
…
(iii) The holder of this provisional lease shall not be entitled to a lease of an area
equal to the area above stated but only to such an area as the survey shows to be
available. (Emphasis added.)
D
[38] This is consistent with and indeed is required under s 28 of the SLC and
in particular s 28(1), (2) and (3) as follows:
Section 28 Survey required before alienation.
E
(1) No State land shall be alienated under this Code unless and until the survey of the
land has been completed to the satisfaction of the Superintendent:
Provided that, when the immediate survey of any State land is impracticable, the
Superintendent may order that a provisional lease in Form C in the First Schedule
be executed in favour of the person entitled. F
(2) Every provisional lease shall specify the approximate extent and area of the land
included therein but shall not entitle the holder to a grant or lease of the whole of the
area specified.
(3) Notwithstanding the payment by him of any rent in respect of the area stated,
the registered proprietor of any provisional lease shall have no right to registration of G
a lease in Form B in the First Schedule for an area equal to the area stated to be alienated
if on survey such area is found not to be available. (Emphasis added.)
[39] The amended s 28 of the SLC amended by the Sarawak Land Code
(Amendment) Ordinance 2018 reads as follows: H
28 Survey required before alienation
Provided that, when the immediate survey of any State land is impracticable, the I
Superintendent may order that a provisional lease in Form C in the First Schedule be
executed in favour of the person entitled.
(2) Every provisional lease shall specify —
(a) the approximate area of the land to be held thereunder;
A (b) the annual rent payable;

(c) the period or term of the provisional lease;
(d) the special conditions imposed thereon by the Superintendent
(e) that any land held under native customary rights created under section 5 or
B native territorial domain under section 6A shall be excluded from the area
covered by the provisional lease; and
(f) that the term for the lease issued after the survey under subsection (1) has
been completed, shall be for the remainder of the term or period stated in
C the provisional lease.
(3) Notwithstanding the payment by him of any annual rent in respect of the area
specified in the provisional lease, the registered proprietor thereof shall not be entitled
to the registration of a lease in Form B in the First Schedule for an area equal to the area
specified in the provisional lease if upon completion of the survey referred to in
subsection (1) any such area is unavailable for reason that —
D
(a) the land is already held under native customary rights created in accordance
with section 5 or native territorial domain under section 6A; or
(b) the land is required for any of the purposes as stated in section 46.
(4) Until the survey required under subsection (1) has been completed and a lease in
E
Form B of the First Schedule has been registered in the name of the registered proprietor,
the provisions of section 132(1) shall not apply to a provisional lease.
(5) Save as provided in subsection (4) all other provisions of this Code affecting
leases or documents of title shall apply equally to provisional leases and references to
a lease or document of title shall include a provisional lease. (Emphasis added.)
F
[Sub. Cap. A179/2019.]
[40] Indeed the format and express words in the provisional lease as provided
for in Form C of the First Schedule reads:
G … whereas a lease in accordance with the provisions of the Land Code, cannot be
given because the immediate survey of the land has not yet been practicable now
therefore I, the said Superintendent, hereby agree to the said … entering into
possession of the said land and holding it as tenant from the … day of 19 … subject to
the payment therefor of the annual rent of ringgit … or to the payment of such
H revised rent as may hereafter be determined under section 30 of the Land Code, and
subject also to the following terms and conditions:
(1) Upon the completion of a proper survey of the land the holder of this
provisional lease will be given a lease in accordance with the provisions of
the Land Code, and subject to the following express conditions and
I restrictions (including any modifications of implied conditions and
restrictions) …
(2) The term of years for which any such lease shall be granted shall be the
balance then remaining of the term of … years from the date of this
provisional lease.
(3) The holder of this provisional lease shall not be entitled to a lease of an area A
equal to the area above stated but only to such an area as the survey shows to be
available.
In witness whereof I the said Superintendent have hereunto set my hand and seal of
… (Emphasis added.)
B
[41] The SLC 2018 Amendments which came into force on 1 August 2019
makes explicit what was implicit in the unamended version of s 28 of the SLC.
Generally, indefeasibility does not attach to provisional title. The old s 28(1)
reads as follows with respect to land which survey has not been completed: C
Section 28 Survey required before alienation.
Provided that, when the immediate survey of any State land is impracticable, the
D
Superintendent may order that a provisional lease in Form C in the First Schedule
be executed in favour of the person entitled. (Emphasis added.)
[42] Before the decision to strike out the suit by Nikodemus and others
against the first defendant to the third defendant was delivered on 18 January E
2010, the final State leases had been issued to Indranika Jaya on 12 October
2009 corresponding to the three provisional leases as follows:
(a) Lot 160 Block 10 (carried from Lot 162, Block 10);
(b) Lot 159 Block 19 (carried from Lot 164, Block 10); and F
(c) Lot 157 Block 16 (carried from Lot 173, Block 16), all of Sedilu-Geong
Land District.
[43] Under the ‘RESTRICTIONS AND SPECIAL CONDITIONS’ for all G

the three ‘Lease of State Land’ titles, were endorsed with the following:
(iv) The lessee shall not be entitled to a lease for an area equal to the area stated to
be alienated if, upon completion of a survey, such an area is not found to be available for
any reason including that required to implement local plan. (Emphasis added.)
H
[44] Generally a final State lease is not issued until a final survey is completed
or done on the land. Here as may be surmised from the above
‘RESTRICTIONS AND SPECIAL CONDITIONS’ in (iv) above, the final
survey still had not been completed and so one wonders why the rush to issue
I
the final State lease title when even with the provisional leases Indranika Jaya
had no issue monetising it and using it as a security for a loan of
RM26,826,062.96 from CIMB Islamic Bank Bhd for which charge a was
created on 29 November 2007.
A [45] The three titles to the three provisional leases were issued on 14 March
2008 and the final State leases issued on 12 October 2009 even without the
completion of a survey as disclosed in ‘RESTRICTIONS AND SPECIAL
CONDITIONS’ (iv). Surely the State must avoid any perception that it was in
a rush to speed up the issuance of a final State lease in prioritising commercial
B interest of private developers of the State leases to the often fragile and
fragmented rights of the natives asserting their claim to NCR land over an
amorphous area.
C
[46] As they say for some people, perception is reality. We are only raising
questions that we are troubled by and as the State and its agencies are not before
us in this appeal, we make no findings on why the State leases were issued
before the Nikodemus’ NCR 2007 Suit was concluded in the High Court with
a finding that the disputed land is encumbered with NCR.
D
[47] We can only hope that no final State leases are issued in the future when,
as it is, the case was still before the High Court for a determination of the
natives’ NCR over the disputed land. The 2018 SLC Amendments clarified the
concept of deferred indefeasibility of title for provisional lease as the legislative
E response and assurance to the controversial issue of indefeasibility of title and
the question of extinguishing NCR resulting from the decision of the Federal
Court in TR Nyutan case. The Minister in charge in tabling the SLC 2018
Amendments highlighted as follows:
The recent Federal Court case of TR Nyutan & Others v TH Holdings & Others
F
(2017) also had adverse implications on native customary rights to land in Sarawak.
The issue in TR Nyutan case involved claim of Native Customary rights within an
area over which a Provisional Lease had been issued to a private company. The
Court ruled that while claims of native customary rights are proven, the rightful
claimants are only entitled to be paid compensation but could not claim back the
G land since the Provisional Lease was later registered as a lease in the Land Office,
thereby conferring indefeasibility of title on the registered owner thereof.
To address the problem arising from TR Nyutan case, the proposed amendment also
introduces the principle of deferred indefeasibility for any Provisional Lease issued
under Section 28 of Land Code. This amendment will further safeguard the
H interests of the natives over native customary rights land and rights over native
territorial domain to ensure that land held under such rights of the natives would
not be included in any area intended to be covered by a Provisional Lease.
It is thus proposed that Section 28 of the Land Code be amended, so that upon
completion of a final survey of the land covered by a Provisional Lease, land held by
I native customary rights or within a native territorial domain must be excluded from
the Provisional Lease. In other words, the Provisional Lease does not enjoy the statutory
protection of the principle of indefeasibility of title under the Torrens Land System, until
and unless:
(a) a final survey of the land to be alienated has been completed; and
(b) all land held by natives under native customary rights by virtue of Section A
5 of the Land Code and/or land under a native territorial domain have
been excluded. (Emphasis added.) (see paragraph [126] of Busing Jali’s FC
case.
[48] The Minister might be forgiven for forgetting to remember that in the B
Nikodemus’ NCR 2007 Suit, the State proceeded with all due diligence to
issue final State leases in place of the provisional leases even when the case was
already filed and pending in the High Court. More than that the State and its
agencies tried to strike out the suit but were unsuccessful.
C
[49] The SLC 2018 Amendments would only be as good and as effective if
the State can choose to restrain itself from issuing a final State lease when there
are pending matters before the court. If the State chooses to succumb to
unknown pressure then the SLC 2018 Amendments would be toothless and be D
for decorative purposes only.
[50] Even in the then unamended s 28(1) of the SLC, until and unless a final
survey is completed to the satisfaction of the Superintendent, at most only a
provisional lease may be issued. However, what we have in the final State leases E
is a hybrid lease — final and yet subject to a survey being completed. It appears
to us to be a creature unknown in the SLC.
[51] As stated in the amended s 28(4) of the SLC it is unless and until both
conditions are fulfilled ie that the final survey is completed to the satisfaction of F
the Superintendent and a State lease in Form B is issued that the title becomes
indefeasible for otherwise the benefit of indefeasibility under s 132 of the SLC
does not follow nor flow from what is essentially a provisional lease still since it
is subject to the completion of the survey.
G
[52] It was unfortunate that the final title to the State lease of 60 years was
quickly issued until it was difficult, if not impossible, to challenge the
indefeasibility of the alienated leasehold land to Indranika Jaya or the
subsequent charge to CIMB Islamic.
H
[53] With the amended s 28(4) of the SLC, we must remain optimistic and
hopeful and we draw further inspiration from the Federal Court’s observation
in Busing Jali’s FC case as follows:
[127] The 2018 amendments therefore prohibit alienation of State land before a I
completion of a survey, which shall allow exclusion of NCR under s 5 or NTD under s
6A from the area covered by the provisional lease and denial of registration of a lease
proper if the area is already held under NCR or NTD respectively. Consequently,
anyone holding a provisional lease shall not be entitled to an indefeasibility of title
under s 132 of the SLC. (Emphasis added.)
A [54] In fact even in this case, in spite of the issuance of a final State lease,
there was no obstacle to rectifying what could not have been alienated for the
‘RESTRICTIONS AND SPECIAL CONDITIONS’ (iv) expressly allowed
such an area to be excluded and excised off if it is not found to be available for
any reason, which must include areas encumbered by NCR.
B
[55] We hear that Indranika Jaya is as clean and clear as a tabula rasa — no
stain of any improper or oblique motive — other than an application for a State
lease to be alienated for the purpose of the cultivation of oil palm.
C
[56] While there is profit to be made by any private enterprise being awarded
a State lease for 60 years for use of the combined lease area of 1,699.7 hectares
of agriculture land for the planting of oil palm, one would expect the State not
to proceed to issue a final State lease until the matter is decided by the court for
D otherwise it would be at the expense of the natives whose very livelihood is
inextricably tied to the land and whose claim in NCR over the land is already
before the High Court for trial and decision.
[57] We appreciate that nothing is to stand in the way of the State’s plan to
E develop its economy and more so when there is a presumption under s 5(7) of
the SLC that:
(7) Whenever any dispute shall arise as to whether any native customary rights exists
or subsists over any State land, it shall be presumed until the contrary is proved, that
such State land is free of and not encumbered by any such rights. (Emphasis added.)
F
[Ins. Cap. A42; Am. Cap. A59.]
[58] Cap A 42 came into force on 15 January 1997 and Cap A 59 came into
force on 1 January 1999.
G
[59] It is of course a rebuttable presumption as indicated by the qualifying
words ‘until the contrary is proved’ in s 5(7) of the SLC but one would have
thought that as the State has a fiduciary duty to promote, protect and preserve
NCR over native customary land, it would be farcical to proceed to issue final
H
State lease titles for land which NCR claims by the natives are already before
the court.
[60] Even though the State and its agencies are not before us in this appeal
I which does not involve them, we cannot help but make some observations
without making any definitive findings; all these against the backdrop of
Indranika Jaya strenuously stressing that they have no control over how the
State and its agencies may want to process and proceed with their application
for a lease of State Land.
[61] It is simple for the State to say that the worst that can happen if it is A
proved wrong in that there is actually NCR claims over the land for which final
State lease titles have been issued, is merely to pay damages to be assessed.
However, that must be viewed against the disruption and displacement of a
whole native group whose forebears had before 1 January 1958 cultivated,
foraged and lived on the land. There is the uncertainties and anxieties that B
come with such dispossession and displacement of a whole society.
[62] It is true that the Federal Court in Busing Jali’s FC case made an order
for the Court of Appeal to determine the area under NCR for the disputed land
and damages to be assessed under s 197 of the SLC. That section was more a C
concession made rather than a certified option arising out of genuine mistakes
and not so much a ‘mistake’ that could easily have been avoided by not falling
to the temptation to issue a final State lease when the matter is already before
the court in the Nikodemus NCR 2007 Suit and even before a final survey is
completed. D
[63] Section 197 of the SLC reads as followed:

197 Compensation for loss
Any person who is deprived of any land, or of any estate or interest therein, by E
reason of any of the provisions relating to indefeasibility contained in sections 132,
133 and 134 and who is by reason thereof barred from bringing an action against
the registered proprietor for possession, or other action for the recovery of that land,
estate or interest, may bring an action against the Government for recovery of
damages.
F
[64] The State may find assurance in the court merely ordering damages to
be paid against the indefeasible interests acquired by the private enterprise and
the financier bank for apparently, they are clueless of any assertion of NCR by
the natives over the subject land. Their interest, it would seem, would be too G
sacrosanct to be tinkered with, having attained immunity from challenge by
any third parties including the natives.
[65] As yet the damages have not been assessed and paid to the natives in this
case and we do not know when it would be though this case was filed in 2007 H
and in the meantime Indranika Jaya had proceeded to plant oil palm and
monetise the State leases with a loan of some RM26.8m from the bank with
premiums to be paid to the State over five instalment payments annually. The
natives meanwhile have been displaced and dispossessed from their source of
livelihood. They have to fend for themselves for their NCR over the disputed I
land, including the subject land and their usufructuary rights have been taken
away.
[66] Section 4 of the SLC defines ‘usufructuary rights’ as follows:

A means the rights or privileges exercised or enjoyed by a native community over a

native territorial domain to:
(a) forage for food, including fishing and hunting;
(b) enjoy such rights or privileges exercisable by a native community in a
B communal forest constituted under Part III of the Forests Ordinance,
2015 [Cap. 71]; or
(c) carry out such activities which are expressly authorized in the native
communal title issued under section 6A(3) or a permit issued under
section 10(3) but subject to the terms and conditions specified therein.
C
[67] The State may say that legally because of the presumption in its favour
under s 5(7) of the SLC, it is perfectly entitled to proceed to issue a final State
lease titles over the disputed land. However, the State’s willingness to take such
D a risk may not be reconcilable with its fiduciary duties to uphold the rights of
the natives under their NCR over the land.
[68] The nature of the State’s fiduciary duties was explained by the Court of
Appeal in Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors [2005] 6
E MLJ 289 (‘Sagong Tasi’s case’) as follows:
[51] There is nothing startling in the trial judge holding the first and fourth
defendants to be fiduciaries in public law. In a system of Parliamentary democracy
modelled along Westminster lines, it is Parliament which is made up of the
representatives of the people that entrusts power to a public body. It does this
F through the process of legislation. The donee of the power — the public body —
may be a Minister of the Crown or any other public authority. The power is
accordingly held in trust for the people who are, through Parliament, the ultimate
donors of the power. It follows that every public authority is in fact a fiduciary of the
power it wields. Sometimes the power conferred is meant to be exercised for the benefit of
a section or class of the general public, as is the case here. At other times it is to be
G
exercised for the general good of the nation as a whole, that is to say, in the public
interest. But it is never meant to be misused or abused. And when that happens, the
courts will intervene in the discharge of their constitutional duty. (Emphasis added.)
H
[69] The Court of Appeal in Sagong Tasi’s case further declared as follows:
[58] I have given this part of the case anxious consideration and have arrived at the
conclusion that the learned judge erred in not holding against the first defendant in
respect of the ungazetted portion of the land. In my judgment after having correctly
held:
I (a) that the plaintiffs’ customary communal title attached itself to the first
defendant’s radical title; and
(b) that the first and fourth defendants were under a fiduciary duty ‘to protect
the welfare of the aborigines including their land rights, the trial judge
ought to have included the ungazetted area in question for purposes of
compensating those settled there for the deprivation of their property rights. A
[59] In my judgment, it was open to the judge to have made a finding that the failure
or neglect of the first defendant to gazette the area in question also amounted to a breach
of fiduciary duty. Here you have a case where the first defendant had knowledge or
means of knowledge that some of the plaintiffs had settled on the ungazetted area. It
was aware that so long as that area remained ungazetted, the plaintiffs’ rights in the B
land were in serious jeopardy. It was aware of the ‘protect and promote’ policy that
it and the fourth defendant had committed themselves to. The welfare of the
plaintiffs, on the particular facts of this case, was therefore not only not protected,
but ignored and/or acted against by the first defendant and/or the fourth defendant.
These defendants put it out of their contemplation that they were ones there to C
protect these vulnerable First Peoples of this country. Whom else could these
plaintiffs turn to? In that state of affairs, by leaving the plaintiffs exposed to serious
losses in terms of their rights in the land, the first and/or fourth defendant
committed a breach of fiduciary duty. While being in breach, it hardly now lies in
their mouths to say that no compensation is payable because of non-gazettation
which is their fault in the first place. I am yet to see a clearer case of a party taking D
advantage of its own wrong. For these reasons, the plaintiffs were plainly entitled to
a declaration that they had customary title to the ungazetted area which is more
clearly demarcated in the plan exh P1 and marked in green and yellow. The strip of
land that was excised out of the whole area runs across the portions marked green
and yellow as well as the gazetted portion marked in orange. It is the former area in E
respect of which compensation must be paid in accordance with the 1960 Act. This
part of the cross-appeal must therefore be allowed. (Emphasis added.)
[70] In Sagong Tasi’s case the plaintiffs are the aboriginal peoples of the
Temuan tribe and are the first peoples of the States of Malaya. They settled and F
built on the land in question in Bukit Tampoi, Dengkil and cultivated it with
crops. They also exercised rights of usufruct over the surroundings in that they
foraged and fished in that area.
[71] The first defendant is the State Government of Selangor. Under the G
National Land Code (‘the NLC’) it is the owner of all unalienated land within
its geographical boundaries, including the land settled upon by the plaintiffs.
As the acquiring body, the Selangor State Government in March 1996 acquired
some 38,477 acres of land running through the gazetted aboriginal reserve, as
well as other lands they customarily occupied. It was acquired for the purpose H
of the construction of a portion of a highway to the Kuala Lumpur
International Airport. The second defendant, United Engineers (M) Bhd, was
the contractor engaged to construct the highway. The third defendant,
Lembaga Lebuhraya Malaysia (Malaysian Highway Authority), is a statutory
body that supervised and executed the design construction and maintenance of I
the highway. The fourth defendant, the Federal Government, was the
decision-maker in the construction of the highway.
[72] The Court of Appeal in Sagong Tasi’s case found the second and third
A defendants liable for trespass even though the second and third defendants had
argued that they were in lawful possession with the permission of the first and
fourth defendant. This is what the Court of Appeal said:
[62] So far as the second and third defendants are concerned, their complaint that
they ought not to have been found guilty of trespass by the judge is utterly devoid
B of any merit. The land they entered upon was not theirs. They had no title to it. If
they were seeking to rely on any permission granted them by the first and/or fourth
defendants, then that was equally worthless because these defendants were not the
absolute owners of the land. They were only nominal owners of the radical title. The true
beneficial owners were the plaintiffs and they had given no consent. Accordingly, I
C would uphold the learned judge’s finding of trespass against the second and third
defendants. So far as the extent of the trespass is concerned, I would include, for the
purpose of assessing damages under this head, the trespass committed upon those
settled on the ungazetted green and yellow portions marked on the plan exh P1.
(Emphasis added.)
D
[73] As the High Court, speaking through Justice Lee Heng Cheong, has
held that the natives here have NCR over the subject land, it must mean that
they did not enter upon the land illegally but that instead they are the true
beneficial owners of the land under NCR though no physical communal title
E has been issued.
[74] Much like in cases of tenancy coupled with equity, by way of analogy,
the equity in their beneficial interests in the NCR land can only be satisfied
with payment of compensation which has not been paid in this case. See the
F Federal Court case of Mok Deng Chee v Yap See Hoi & Ors [1981] 2 MLJ 321
at p 323 where it was held that:
The principle is also known as equitable estoppel, because the landowner whose
conduct has raised an expectation of his tenant of being allowed to stay on and
thereby inducing him to spend money in respect of the tenancy is prevented from
G taking any action contrary to that expectation.
In the development of our law this principle was recognised as long ago as 1916 in
the case of MPRL Karuppan Chetty v Suah Thian (1916) 1 FMSLR 300. It was
applied by Chang Min Tat J, as he then was, in Devi v Francis [1969] 2 MLJ 169
Finally it became a settled law as a result of decision of the Federal Court in Yong
H Tong Hong v Siew Soon Wah & Ors [1971] 2 MLJ 105 (FC), which decision was
subsequently confirmed by the Privy Council (7) Its practical application was
demonstrated in the decision of Syed Othman J, whose judgment was confirmed by
the Federal Court in Tan Swee Ho Company Limited v Ali Hussein Bros [1980]
1 MLJ 89; [1980] 2 MLJ 16 and in the decision of Abdoolcader J in Wong Yon Lin
I v Liew Tham Soon & Ors [1980] 2 MLJ 99.
[75] A mere notice to terminate would generally not be sufficient and much
less in a case where, as here, the High Court had held that the natives have NCR
over the disputed land which is a statutory right recognised under the SLC
which gives the natives a licence in perpetuity to occupy and be in possession of A

the land to forage for food, to fish and to plant and build their homes and bury
their dead.
[76] It goes without saying, like in those cases of tenancy coupled with
equity, until the equity is satisfied, with a proper notice of termination and B
compensation paid, the registered proprietor cannot obtain vacant possession
of the land and much less sue for trespass.
[77] If a beneficial interest cannot be terminated without payment of C

compensation, what more of statutorily recognised rights under the SLC for
which there are clear express provisions to be followed for a proper surrender or
termination or extinguishment of NCR over the disputed land. See ss 5 and 6
of the SLC.
D
[78] The word ‘indefeasible’ is not defined in the SLC nor in the NLC. The
meaning of indefeasible was explained by the Privy Council in Frazer v Walker
and Others [1967] 1 All ER 649 as ‘immunity from attack by the adverse claim
to the land or interest in respect of which he is registered, which a registered
proprietor enjoys’. As Lord Wilberforce held in the Privy Council case at p 652 E
that ‘indefeasibility’:
… is a convenient description of the immunity from attack by adverse claim to the land
or interest in respect of which he is registered, which a registered proprietor enjoys.
This conception is central in the system of registration. It does not involve that the
F
registered proprietor is protected against any claim whatsoever … there are provisions by
which the entry on which he relies may be cancelled or corrected, or he may be
exposed to claims in personam. These are matters not to be overlooked when a total
description of his rights is required; but as registered proprietor, and while he remains
such, no adverse claims (except as specifically admitted) may be brought against him.
(Emphasis added.) G
[79] What it means is that one’s title or interest is immune from attack by
third parties. It does not correspondingly mean that one can maintain a cause
of action in trespass against a third party on one’s land. That would very much H
depend on whether that third party had entered the land validly or whether his
licence or tenancy or equitable interest or NCR over the subject land has been
lawfully terminated or extinguished as the case may be.
[80] There is no statutory right to claim for trespass that flows from having I
an indefeasible interest on the land. The word ‘trespass’ does not appear and is
not used in the SLC. An action in trespass is a common law action. NCR over
land is statutorily recognised and more so when it has been proved in a court of
law.
A [81] Generally when one has a registered interest on land it would mean the
following as may be seen by way of comparison with s 92 of the NLC when
spoken of in terms of the rights of the holder of an indefeasible title or interest
on the land as follows:
92 Indefeasibility of final title, and rights of dealing, etc.
B
(1) The alienation of State land to any person or body under final title shall confer
on that person or body a title to the land which shall be indefeasible as provided in
Part Twenty.
(2) The rights exercisable by any person or body to whom State land has been
C alienated under final title shall include the following:
(a) the right (subject to the provisions of this Act and to any restriction in
interest to which the land is for the time being subject) to subdivide or
partition the land, or amalgamate it with other land, in accordance with
the provisions of Chapters 1 to 3 of Part Nine;
D
(b) the right (subject as aforesaid) to subdivide any building thereon in
accordance with the provisions of Chapter 4 of Part Nine;
(c) the right (subject as aforesaid) to effect transfers, leases, charges, surrenders,
and any other dealings permitted under Division IV; and
E
(d) the right (subject as aforesaid, and subject also to the provisions of his
personal law and of any other law for the time being in force relating to the
disposition or devolution of property on death) to dispose of the land, or
any undivided share therein, by will. (Emphasis added.)
F
[82] There is no reason why the natives’ NCR over the same subject land
cannot co-exist or exist side by side with the registered lessee’s leasehold interest
which is itself subject to ‘such an area is not found to be available for any reason’
after the completion of the survey as endorsed in the State leases until
G compensation is paid to the natives.
[83] The registered lessee is entitled to deal with the lease by way of transfer
or charge. Indeed, a charge had been created over all the three provisional leases
on 29 November 2007 before the State leases were issued in 2009.
H
[84] As was found by the High Court after trial in the Nikodemus’ NCR
2007 Suit, the natives have established and acquired their NCR over the land
prior to 1 January 1958. The High Court having made that declaration, the
I court does not make the declaration in vain.
[85] The Federal Court in TR Nyutan’s case had no problem reconciling

conceptually NCR over land subsisting and existing side by side the interest of
a registered lessee when it explained as follows:
[39] For the reasons adumbrated above, we propose to answer the questions of law A
posed in the first and second defendants ‘and in the interveners ‘appeals in the
following manner: The statutory provisions under s 132 of the Sarawak Land Code
pertaining to indefeasibility of title remain applicable even if it can be shown that
NCR had been created over land in the manner prescribed under the Sarawak Land
Code. A claim of NCR does not overrule the indefeasibility of title of land in a B
situation where the interest stated in the issued document of title was issued after
NCR was asserted. Based on the facts, indefeasibility of title of the land prevails over
a NCR claim. It is not a question of whether a claim for NCR overrides
indefeasibility of title. Both these legal concepts exist side by side.
[40] It is our judgment that a NCR claim without title should not be put on a better C
footing with differential treatment (Bato Bagi & Ors v Kerajaan Negeri Sarawak and
another appeal [2011] 6 MLJ 297; [2011] 8 CLJ 766). A claim for NCR and
indefeasibility of title exist side by side. Based on the facts of this case, the disputed land
were converted to registered entities even before the plaintiffs succeeded in their NCR
claim.
D
[41] In the absence of the vitiating factors under s 132 of the Sarawak Land Code,
the first and second defendants ‘rights as leaseholders, and the first and second
interveners as proprietors and the third intervener as chargee cannot be defeated by the
plaintiffs’ NCR.
The third and fourth defendants’ appeal E
[42] We now address the third and fourth defendants ‘appeal. Since it was our earlier
finding (in the first and second defendants and the interveners appeals) that
indefeasibility of title and a claim for NCR exist side by side, we must now consider the
appropriate remedy for the plaintiffs in the instant case. Given that the issue of
proof of the plaintiffs ‘NCR is not an issue, we propose to only deal with the F
appropriate remedy for the infringement of the plaintiffs’ rights’. (Emphasis added.)
[86] An NCR over the subject land may not defeat indefeasibility of the State
lease but that does not mean that the holder of the State leases has been
conferred an automatic right to claim for trespass over natives who have NCR G
over the subject land.
[87] The express restriction and special condition attached to the land as
found in the final State lease is such that the indefeasibility of the lease is not
absolute but qualified and in any event the natives have been found by the High H
Court to have been legally on the land even before 1 January 1958 and that
they have not abandoned their NCR land.
[88] What that means is that, as both NCR and benefits of indefeasibility
may exist side by side over the disputed land and more particularly the subject I
land for the discussion of this appeal on Indranika Jaya’s Trespass 2016 Suit;
neither can sue the other for trespass. It is a most uncomfortable co-existence
because it was something that, if done properly by the State and agencies,
should not have happened.
A [89] As such this court is of the considered view that the lessee of the State
lease, Indranika Jaya, cannot maintain an action for trespass against the natives
who had been declared by the High Court in the Nikodemus’ NCR 2007 Suit
to have NCR over the subject land which rights were acquired earlier, even
before 1 January 1958, than the lease interest of Indranika Jaya.
B
Whether the appellants’ NCR over the subject land has been surrendered,
terminated and extinguished under the law in the circumstances of this case
[90] The Federal Court allowed the natives’ appeal and upheld the learned
C High Court judge’s finding that the appellants had established NCR over their
Pemakai Menoa and Pulau Galau over the disputed land as follows:
[162] Upon our due perusal of the grounds of judgment of the Court of Appeal, we
found that there was no assessment made on the finding of facts, such that the
severance of 300 hectares of Temuda from the claimed 8,001 hectares was based on
D TR Sandah 1. As stated earlier, the Court of Appeal was right then to make such an
order based on the then prevailing ruling of TR Sandah 1.
[163] However, with the coming into force of s 6A, we are of the view that this appeal
ought to be sent back to the Court of Appeal for a finding of fact specifically on the area
where Pemakai Menoa and Pulau Galau are situated within the 8,001 hectares
E considering a maximum of 500 hectares or 1,000 hectares of Pemakai Menoa and Pulau
Galau accordingly as allowed under s 6A. Any such finding would be relevant for the
purpose of compensation under s 197 of the SLC to the Appellants who might have
been deprived of their rights by reason of alienation of the lands to third parties.
[164] Undoubtedly, the Federal Court can and is legally entitled to make such
F assessment, however, by doing so, the parties are deprived of an avenue to appeal
further on the matter of assessment.
…
[174] … each party to bear their own cost …
G [175] Mention date for case B … at the Court of Appeal … is fixed within 14 days
from today.
[91] The answer to that question is best answered by asking when would the
natives’ NCR over the land be terminated and extinguished if the NCR land
H has been lawfully acquired by the State. As the High Court and finally the
Federal Court have confirmed the appellants have NCR over the land, the
proper procedure must be by following the procedure as laid down under s 5(3)
of the SLC. Section 5 of the SLC reads:
5 Native customary rights
I
(1) As from the first day of January, 1958, native customary rights may be created in
accordance with the native customary law of the community or communities
concerned by any of the methods specified in subsection (2), if a permit is obtained
under section 10, upon Interior Area Land. Save as aforesaid, but without prejudice
to the provisions hereinafter contained in respect of Native Communal Reserves
and rights of way, no recognition shall be given to any native customary rights over A
any land in Sarawak created after the first day of January, 1958, and if the land is
State land any person in occupation thereof shall be deemed to be in unlawful
occupation of State land and section 209 shall apply thereto.
(2) The methods by which native customary rights may be acquired are
B
(a) the felling of virgin jungle and the occupation of the land thereby cleared;
(b) the planting of land with fruit trees;
(c) the occupation or cultivation of land;
(d) the use of land for a burial ground or shrine; C
(e) the use of land of any class for rights of way; or
(f) any other lawful method:
Provided that
D
(i) until a document of title has been issued in respect thereof—
(a) no rent shall be charged by the Government on the land which shall
continue to be State land; and
(b) any native lawfully in occupation thereof shall be deemed to hold
E
by licence from the Government and his rights over the land may,
upon the date of coming into force of this paragraph, be inherited,
acquired or purchased by or transferred or sold or disposed of to or
dealt with another native; and
[Sub. Cap. A166]
F
(ii) the question whether any such right has been acquired or has been lost or
extinguished shall, save in so far as this Code makes contrary provision, be
determined by the law in force immediately prior to the first day of
January, 1958.
(3)(a) Any native customary rights may be extinguished by direction issued by the G
Minister which shall be —
(i) published in the Gazette and one newspaper circulating in Sarawak; and
(ii) exhibited at the notice board of the District Office for the area where the land,
over which such rights are to be extinguished is situated, and on the date
specified in the direction, the native customary rights shall be extinguished and H
the land held under such rights shall revert to the Government:
Provided that where such rights are extinguished in pursuance of this section
compensation shall be paid to any person who can establish his claims to such rights in
accordance with paragraphs (b) and (c); or other land over which such rights may be
exercised may be made available to him with or without the payment of additional I
compensation whether for disturbance, or for the costs of removal, or otherwise.
(b) Any person who desires to make any claim for compensation must submit his claim
with evidence in support thereof to the Superintendent, in a form to be prescribed by
him, within such period as may be stipulated in the direction issued by the Minister
A under paragraph (a), provided that the period so stipulated shall not be less than
sixty days from the date of publication or exhibition thereof.
(c) No claim for compensation for extinguishment of native customary rights shall
be entertained by the Superintendent unless such claim is submitted within the
period stipulated in paragraph (b).
B
[Sub. Cap. A42.]
(4)(a) Any person who is dissatisfied with any decision made by the Superintendent
under subsection (3) on the ground that —
(i) his claim to native customary rights has been rejected or not recognised by
C the Superintendent;
(ii) the allocation of land over which such rights are to be exercised, is
inadequate or inequitable; or
(iii) the amount or apportionment of compensation is inadequate, unfair or
D unreasonable,
may within twenty-one days from the date of receipt of the decision of the
Superintendent, by notice in writing addressed to the Superintendent, require the
matter to be referred to arbitration in accordance with section 212.
(b) Upon receipt of the notice of arbitration, the Superintendent shall direct that any
E
compensation payable to the person who desires to have his claim or matter referred to
arbitration, to be deposited in the High Court, pending the outcome of such
arbitration proceedings.
[Sub. Cap. A42.]
F (5) Subsection (3) shall apply whether the land over which the customary rights are
exercised is required for a public purpose or the extinction of such rights is expedient
for the purpose of facilitating alienation, but shall have no application to cases in
which the Forests Ordinance [Cap. 126 (1958 Ed.)], the National Parks and Nature
Reserves Ordinance, 1998 [Cap. 27], or any other written law, including Part V,
G makes other provision for the extinguishment thereof.
[Ins. Ord. No. 2/74.]
(5A) Any inheritance, acquisition, purchase, transfer, sale or disposal of or other
dealing in land over which native customary rights subsist made or occurring prior
to the date of coming into force of paragraph (i) of the proviso in subsection (2), and
H which —
(a) has not been invalidated or declared unlawful or null and void by a Court
of competent jurisdiction; or
(b) is not the subject matter of any proceeding pending in such Court shall
I have effect as if such inheritance, acquisition, purchase, transfer, sale or
disposal of or other dealing in land had been made or occurred pursuant to
the provision thereof.
[Add. Cap. A166]
(6) The Majlis Mesyuarat Kerajaan Negeri may make rules for the assessment of A
compensation payable for extinguishment of native customary rights under this
section and section 15.
[Am. Cap. A59.]
(7) Whenever any dispute shall arise as to whether any native customary rights exists
B
or subsists over any State land, it shall be presumed until the contrary is proved, that
such State land is free of and not encumbered by any such rights. (Emphasis added.)
[Ins. Cap. A42; Am. Cap. A59.]
[92] However since this had not been followed as the State and its agencies C
proceeded as if the disputed land is State land, only to be proved wrong up to
the Federal Court, the question then is, if it had followed the proper procedure,
when would the natives’ NCR over the land be extinguished?
[93] Surely it cannot be that if the proper procedure had been followed then D
compensation must have been paid before the NCR are extinguished whereas
if no proper procedure had been followed, the same NCR over the land is
extinguished upon the court’s order for compensation to be paid. That would
be to create an anomaly and aberration where the State would gain more by not
E
following the law on extinguishing NCR over land for the State can still collect
the premium first by allowing private enterprises to pay it by instalments but to
issue the final State lease over the NCR land as soon as possible even though
there is a pending suit for a declaration on the status of the land before the
courts and no final survey has been completed yet. F
[94] That may result in injustice and as can be seen from the cases that have
come before the courts in the contestations of rights between NCR and
registered State lease, the courts have consistently held that it is too late to cry
over spilt milk once the titles are registered in the private enterprise’s name. G
[95] We thus have this anomaly and a likely miscarriage of justice when the
natives who had been dispossessed and deprived of their NCR over their native
customary land are still not compensated whereas as in this case, even before
2007 when they filed their suit in court, the private enterprise has entered into H
possession of the land and cultivated it and reaped profits from it with the help
of bank loans secured over the subject land in question.
[96] Such a state of affairs cannot be allowed to continue when the State itself I
suffers no sanction by disregarding the NCR over land claimed by the natives.
It would be a case of if we are proved wrong in that the land is NCR land after
all, then compensation will be paid as ordered by the court but not until then.
A [97] There is no incentive for the State to wait for the court’s decision in
pending cases. The proper procedure under s 5(3) of the SLC is only for the
State to follow if they are satisfied that it is NCR land to begin with and if they
are not, they do not have to follow the way of notification to the parties
affected, gazette, hearing those objecting to the extinguishment exercise and
B payment of compensation.
[98] It is further next to impossible for the natives to prove that the State is
conniving with private enterprises to have prime land alienated for logging or
C
agriculture purpose. Surely the State cannot be said to be acting in less than
good faith merely because it chooses to rely on the presumption that all land is
State Land and then should it be found to have misjudged the situation, all that
it needs to do is to pay the natives compensation as may be assessed by the
court.
D
[99] It is a predictable outcome which does not sanction the State in any way
for not having followed the legally prescribed procedure under s 5(3) of the
SLC to extinguish native customary land of its NCR.
E [100] Unless and until all NCR lawfully created over State land have been
surrendered or terminated or provisions for compensating those natives
affected have been made, such land shall not be alienated as clearly declared
under s 15(1) of the SLC as follows:
F 15 Protection of native customary rights
(1) Without prejudice to sections 18 and 18A, where native customary rights have
been lawfully created over State land and land which has been issued with native
communal title under section 6A, such land shall not be alienated or be used for a
public purpose until all native customary rights have been surrendered or terminated or
G provision for compensating the persons entitled thereto have been made in accordance
with section 5(3) and (4).’(Emphasis added.)
[101] A State that does not make compensation to the natives but
dispossessed them of their NCR over the land, even in a case that has been later
H vindicated by the court, would have committed an unlawful and illegal act and
more than that an unconstitutional act.
[102] The constitutional protection of no acquisition without compensation

is even more imperative for the natives who often have to battle with the State
I and its agencies and private enterprises in a David and Goliath battle, with only
their sling and five stones picked perhaps from the river, in a case where they
have been dispossessed and others have come to occupy their land.
[103] Article 13 of the Federal Constitution declared in comforting words the

adequate compensation that the State must be committed to as follows: A

13 Rights to property
(1) No person shall be deprived of property save in accordance with law.
(2) No law shall provide for the compulsory acquisition or use of property without
adequate compensation. B
[104] The Federal Court in TR Nyutan’s case was fully conscious that
compensation had not been paid to the affected natives, being Ibans, whose
NCR land had been taken from them, when it held that payment of
compensation has to be made if the alienation of the state land was to have the C
effect of extinguishing or infringing native rights as follows:
[43] As stated earlier, learned state counsel appearing for the third and fourth
defendants highlighted to us that in a situation where the state land is encumbered by
NCR, no alienation thereof shall take place, until all NCR have been surrendered or D
terminated or provision for compensating the persons entitled thereto in accordance with
the Sarawak Land Code is complied with (Bisi ak Jinggot @ Hilarion Bisi ak Jenggut v
Superintendent of Lands and Surveys Kuching Division & Ors [2013] 5 MLJ 149;
[2013] 6 CLJ 805). However, if the alienation of the state land has the effect of
extinguishing or infringing native rights, the government has to, in accordance with s 15
of the Sarawak Land Code, make payments of compensation to the affected natives. E
Section 15 of the Sarawak Land Code provides …
…
[44] The above section is further safeguarded by s 5(3) and (4) of the Sarawak Land
Code which provides: … F
…
[45] Based on the foregoing, and looking at the scheme of the provisions of the
Sarawak Land Code, the Code does provide statutory safeguards with regard to the
extinguishment of native customary rights. It is crystal clear, from a reading of s 5(3)
of the Sarawak Land Code, that the customary rights may be extinguished, provided G
that compensation or alternative replacement land with the same rights is made
available to any person whose NCR are affected by the direction of the Minister.
(Emphasis added.)
[105] Unless and until all the NCR over the land have been surrendered, H
terminated or extinguished, the NCR over the land subsist side by side the
interest of the registered lessee over the same land. The Federal Court was
careful to underscore that as follows:
[39] … A claim of NCR does not overrule the indefeasibility of title of land in a
situation where the interest stated in the issued document of title was issued after I
NCR was asserted. Based on the facts, indefeasibility of title of the land prevails over
a NCR claim. It is not a question of whether a claim for NCR overrides
indefeasibility of title. Both these legal concepts exist side by side.
[40] … A claim for NCR and indefeasibility of title exist side by side. Based on the facts
A of this case, the disputed land were converted to registered entities even before the
plaintiffs succeeded in their NCR claim.
[41] In the absence of the vitiating factors under s 132 of the Sarawak Land Code,
the first and second defendants ‘rights as leaseholders, and the first and second
interveners as proprietors and the third intervener as chargee cannot be defeated by the
B plaintiffs’ NCR.
The third and fourth defendants’ appeal
[42] We now address the third and fourth defendants ‘appeal. Since it was our earlier
finding (in the first and second defendants and the interveners appeals) that
indefeasibility of title and a claim for NCR exist side by side, we must now consider the
C appropriate remedy for the plaintiffs in the instant case. Given that the issue of
proof of the plaintiffs ‘NCR is not an issue, we propose to only deal with the
appropriate remedy for the infringement of the plaintiffs ‘rights’. (Emphasis added.)
[106] To begin with and as has been stated before, what had happened was
D something that should not have happened if the State had waited for the court
to decide the pending declaration for NCR status over the disputed land.
Having taken the risk of a court’s decision which may be against its stand, the
State cannot then say that it is just too bad that the natives who are declared to
have NCR over the disputed land are now being sued by the registered lessee of
E the State lease for trespass.
[107] The registered lessee had derived their title from the State that had been
found out not to have properly and lawfully extinguished all the NCR over the
disputed land.
F
[108] In fact the State has pre-empted any claim against them from registered
lessee with the following ‘RESTRICTIONS AND SPECIAL
CONDITIONS’ endorsed on all the three ‘Lease of State Land’ titles as
G follows:
be alienated if, upon completion of a survey, such an area is not found to be available for
H [109] The expression ‘if … such an area is not found to be available for any
reason’ would include its unavailability because the radical title of the State is
found to be attached with NCR over the land. The State and its agencies would
be able to tell the registered lessee that it had taken the lease for 60 years
knowing full well the express ‘restriction and special conditions’ endorsed in
I capital letters on the State lease. So too the Bank that took a charge over the said
three State leases.
[110] It was thus open to the Federal Court in Busing Jali’s FC case, if it had
wanted to in the exercise of its discretion, order the land to revert to the State
with the NCR over the land intact and rightly recognised by the State. A
However, as the Federal Court had exercised its discretion to order damages to
be assessed instead, then the only reasonable inference to be drawn is that
unless and until damages in the form of compensation is paid, the NCR over
the disputed land has not been extinguished such that Indranika Jaya cannot
validly sue for trespass against the natives. Both rights, that of NCR and B
interest of a registered lessee, co-exist with each other, however unhappy and
incongruent it may be, in a situation like this which should not have happened
in the first place if the State had not jumped the gun in issuing a final State
lease, albeit subject to a final survey to be done.
C
[111] Even if we were wrong as to the point in time when the natives’ NCR
over the disputed land has been extinguished, we would say that in the absence
of an express declaration as to when the NCR over the land is extinguished, the
earliest point in time for saying that it has been extinguished is when the
D
Federal Court confirmed the order of the High Court for damages to be paid to
the natives for until then both parties were still pursuing their appeals through
until the Federal Court; the State and its agencies to the Court of Appeal and
the natives to the Federal Court.
E
[112] Surely it cannot be that a decision has become final just because at the
High Court it was in one’s favour for in the Court of Appeal it may be reversed
or varied and on further appeal to the apex court in the Federal Court, the
rights of the parties are resolved once for all. It would be detrimental and unfair
to the natives to take the date of extinguishment of their NCR to be anything F
earlier than the final disposal of their rights in the Federal Court.
[113] The important thing is that when the Indranika Jaya’s Trespass 2016
Suit was before the High Court, the natives’ NCR over the disputed land had
not been extinguished with the result that both rights, subsisting and G
co-existing, Indranika Jaya would not be able to mount and maintain an action
in trespass against the natives as defendants in the High Court below.
[114] The Federal Court in Busing Jali’s FC case said the SLC is silent on the
effect of a title issued in disregard of NCR on the land. We realised that this is H
a vexed area of the law in cases where there are the innocent parties in the
natives, the State and its agencies and the private enterprise now having an
indefeasible title to the land.
[115] We do not read Busing Jali’s FC case as laying down the proposition that I
in every case the Court would have to say to the natives that it is too late for you
to assert any NCR over the land and must be content with just awaiting
compensation whilst the private enterprise had already monetised the land by
using it as a security for loans.
A [116] As the Federal Court in its decision has exercised its discretion that the
area be determined by the Court of Appeal and that there be assessment of
damages, the appellants would have to settle for that where their NCR over the
subject land is concerned.
B Whether the sum of RM20,000 assessed as nominal damages for trespass should be
set aside in any event
[117] The learned High Court judge in Justice Dr Lim Hock Leng made a
finding of fact as follows:
C
[55] The Plaintiff has not proven on the balance of probabilities that it has suffered losses
as a result of its plantation workers being prevented from harvesting FFB during the
trespass period and from rotten FFB. The Plaintiff has failed to show a causal link
between the Defendants ‘trespass and the alleged losses, …’ (Emphasis added.)
D
[118] As we have already found that a cause of action in trespass cannot be had
against the natives as they have NCR over the subject land subsisting and
co-existing side by side the registered lease interest of Indranika Jaya as the
lessee, it would mean that no liability can be found against the natives as
E defendants below for trespass.
[119] We would make reference to the same case as that referred to by Justice
Dr Lim Hock Leng as follows:
F [83] In this regard, reference is made to Guan Soon Tin Mining Company v Wong
Fook Kum [1969] 1 MLJ 99 where Ong Hock Thye FJ held:
The respondent, as plaintiff, of course had to discharge the burden of proving
both the fact and the amount of damages before he could recover. Where he succeeded
in proving neither fact nor amount of damage he must lose the action or, if a right was
G infringed, he would recover only nominal damages. Where he succeeded in proving
the fact of damage, but not its amount, he would again be entitled to an award
of nominal damages only. (Emphasis added.)
[120] Even assuming for a moment that we had been wrong, having found the
H losses not proved, or the fact of the loss not proved as stated in para [55] of the
High Court’s grounds of judgment in the Indranika Jaya’s Trespass 2016 Suit,
the proper order would have been to dismiss Indranika Jaya’s claim for damages
for trespass.
I
[121] The trespass if there was one was only for a period of eight days with no
loss being proved. The learned High Court judge held as follows:
[35] From the evidence, it would seem clear that the defendants and their 60–70
followers were trespassing on the subject land from 29 January 2016 (starting
between 6am and 2pm) to 6 February 2016 (early morning). That would mean the A
trespass took place over a period of about eight days.
[122] His Lordship Justice Dr Lim Hock Leng decided the matter on 26 June
2018 probably without the benefit of the refinement of law as propounded by
the Federal Court in TR Nyutan’s case which laid down the principle that B
conceptually NCR over the subject land may exist side by side the registered
interest of the other. Though handed down on 13 October 2017, it was only
reported in [2018] 1 MLJ 77, and did not appear to have been referred to the
High Court by learned counsel and certainly not by the learned High Court
C
judge in his grounds of judgment.
[123] There were no rights of Indranika Jaya that had been infringed seeing
that the rights under the NCR of the natives exist side by side that of Indranika
Jaya and no court as at the date of the alleged infringement had declared that D
the NCR over the subject land had been validly terminated or extinguished.
[124] In the peculiar circumstances of the case where the NCR of the natives
had not been properly terminated or extinguished by the State that took the
stand that the subject land was not NCR land and now that they had been E
proved wrong finally in the Federal Court in Busing Jali’s FC case, we do not
think any damages, even nominal damages, is justified. Had compensation
been paid out to the natives or at least into court in a case of lawful termination
and compulsory surrender of the natives’ NCR over the subject land, it may be
argued that they no longer could exercise any NCR over the subject land. F
[125] Unless and until compensation is paid out and in the absence of a
declaration as to when their NCR rights had been extinguished as the case
trudges through the three tiers from the High Court, to the Court of Appeal
and then to the Federal Court, any finding of trespass and an award of damages, G
even nominal, would aggravate the anomaly and aberration in the granting of
a State lease before the NCR over the subject land has been lawfully
surrendered, terminated or extinguished.
Whether the injunction should nevertheless remain in the circumstances of the case H
[126] While the appellants’ NCR over the land has not been lawfully
surrendered, terminated or extinguished, it would nevertheless not be
conducive for peace and the orderly conduct of business if the injunction
granted is not continued as there might be a breach of the peace. I
[127] What the appellants suffer as a result of their NCR over the land not
having been lawfully terminated and extinguished would have to be taken up
in the damages claim against the State and its agencies and for at the same time
A being deprived of being able to exercise their NCR over the land while waiting
for compensation to be assessed and paid out. It is for the appellant to make out
a case for exemplary damages if the State has no good reason not to wait for the
decision of the High Court and instead, proceeded full-steam ahead even
without a final survey being done, to speedily grant a final State lease,
B disregarding its own procedure as required under the law.
[128] To say that it is less than the ideal situation would be to put it too mildly
for in fact it is most prejudicial to the natives for they are left high and dry, their
source of livelihood being snuffed out while fighting for their NCR over their
C
ancestral land. Meanwhile Indranika Jaya has already started to monetise the
State lease with the loan taken of some RM26.8m and are beginning to harvest
and process the oil palm fruits. The State would have received whatever is the
premium to be paid by instalments and the annual rent on the there State
D leases.
[129] Indranika Jaya may well say that is the largesse of the State and that the
natives have no right to be annoyed if the State chose to be generous in granting
them a State lease to cultivate the subject land that can only contribute to
E economic growth and development in the State. No one is saying that the State
cannot prioritise economic growth and the overall uplifting of the lives of the
people but certainly it has to be done un an orderly manner and in compliance
with the law and always and at all times, taking into consideration the plight of
dispossession and deprivation of natives from the ancestral land to which their
F very existence is inextricably linked in the daily sustenance and support by
Mother Earth.
Whether there may be circumstances where the court may declare a title issued to be
null and void for non-compliance with the law by the State and its agencies
G
[130] There would be circumstances where the court would not shrink from
declaring a title issued not in compliance with its own procedure is ultra vires
the relevant Land Code. Such was the case in Uptown Properties Sdn Bhd
H v Pentadbir Tanah Wilayah Persekutuan & Ors [2012] 8 MLJ 713 at
p 725; [2012] 3 CLJ 271 at p 282 where Justice Prasad Abraham held as
follows:
[19] … The issuing of a computerised title to the fourth defendant as a registered
proprietor when the original title to the said land continued to be in possession of
I the plaintiff was ultra vires as it contravened the provisions of the National Land
Code (Amendment Act 1992 (Act 832 of 1992) s 5A and the 14th Schedule therein
and the same was a contravention of s 340(2)(c) of the National Land Code. It
follows therefore any instrument executed by the director of the fourth defendant
would be void and insufficient per se (see s 340(2)(b) NLC).
[131] The above dicta of Justice Prasad Abraham in the Uptown case must be A
understood in the context of what was a bizarre and mind-blowing
circumstance where a registered proprietor of a piece of land may wake up one
day, only to find that he has been deprived of his land in that his name is no
longer in the Register Document of Title (‘RDT’) to his land. In other words,
his name has been removed from the RDT and that the title is no longer his. B
[132] In Shayo (M) Sdn Bhd v Nurlieda bt Sidek & Ors [2013] 7 MLJ 755
where a Computer Printed Issue Document of Title (‘IDT’) was issued in the
name of the first defendant despite the existence of Manual IDT in the name of C
the plaintiff, His Lordship Harmindar J (now FCJ) has no difficulty in holding
that such a title is null and void and observed at p 769 as follows:
[32] In the instant case, there were now two titles. Obviously, as noted earlier, the
second title in the name of D1 ought not to have been issued. This much was
conceded by DW10, giving evidence for D8–D12, that the original manual IDT in D
the plaintiff ’s possession was the valid title. He confirmed that the plaintiff ought to
have been named as the proprietor of Lot 14942 in the SPTB. Learned senior
federal counsel for D8–D12 candidly admitted in his submission that only the
plaintiff had the valid title.
[33] The issuance of the second title was without doubt due to a grave failure by E
D8–D12 to adhere to the strict mandatory provisions set out in the 14th Schedule of the
NLC. There was no notification to the plaintiff as proprietor of Lot 14942 to take
delivery of the Computerized IDT in exchange for the manual IDT in the plaintiff ’s
name and in its possession. There was also no cancellation or destruction of the manual
IDT in the name and possession of the plaintiff proprietor. The plaintiff was never issued F
with the title in Computerized IDT in its name as a title in continuation as was required
under the 14th Schedule.
[34] The issuance of a Computerized IDT in the name of D1, being a breach of the
provisions of the 14th Schedule, of the NLC, was ultra vires and unlawful. Clearly, the
plaintiff was deprived of its land in violation of art 13(1) of the Federal Constitution
G
which states: ‘No person shall be deprived of property save in accordance with law’.
It must follow that the IDT issued in the name of D1 was a nullity and void with the
effect that any other instruments executed thereon must also be void and liable to be set
aside at the instance of the rightful registered proprietor.
[35] I would also add for the avoidance of any doubt that in view of the void title at
its inception subsequent bona fide purchasers for value cannot avail themselves to H
the protection as afforded by the proviso to sub-s (3) of s 340 of the NLC.
Admittedly, this appears to go against the principle of the conclusiveness of the
register of titles under the Malaysian Torrens System. However, as maintained
earlier, this was really a case of a clash of titles, the second of which was issued ultra vires
the NLC rendering it unlawful. An unlawful title cannot provide the basis for I
conclusiveness. (Emphasis added.)
[133] The matter gets trickier when it is a case of a claim of NCR over land
which has not been issued with any communal title and the State is relying on
A the presumption that it is State Land under s 5(7) of the SLC. It is now made
very clear by the SLC 2018 Amendments that a provisional lease does not enjoy
indefeasibility under s 132 of the SLC. Section 28(4) of the SLC provides as
follows:
(4) Until the survey required under subsection (1) has been completed and a lease in
B
Form B of the First Schedule has been registered in the name of the registered
proprietor, the provisions of section 132(1) shall not apply to a provisional lease.
[134] Even after the issuance of a final State lease as in this case, all the Lease
C titles are subject to the ‘RESTRICTIONS AND SPECIAL CONDITIONS’
that are enforced on the State leases. The only saving grace to issuing a final
State lease even before the completion of a survey is that of condition (iv) of the
‘RESTRICTIONS AND SPECIAL CONDITIONS’ which reads:
D be alienated if, upon completion of a survey, such an area is not found to be available for
[135] No one should have to suffer the trauma and tragedy of waking up one
E
day to find he has been stripped of registered proprietorship of his land and
house built thereon all because some procedure with respect to the issuance of
computerised land title has not been followed and he is still holding the issue
document of title in his name!
F [136] If city folks would invariably say that cannot and must not happen in a
Torrens system of land registration where title is everything then it is no
different for the natives who do not have a physical title to their NCR land but
whose rights are recognised under the law, to wake up one day to forage for
food and to fish in the rivers, only to find that their NCR land has been
G occupied by other private enterprises and upon further checking, to have found
out, that State leases had already been issued and registered in the name of a
private enterprise.
[137] To say in that circumstance that the title issued to a third party, being
H indefeasible, cannot be touched, tinkered with and much less impugned and
rectified, and that all that the traumatised proprietor can do is to await
compensation from the State would be cold comfort and more so when the
State had an exit route endorsed on the State lease as above-stated.
I [138] Likewise, it would be unconstitutional for a State to alienate any NCR

land without payment of compensation. The subsequent order for payment of
compensation by the court does not make the act of the State in depriving the
appellant of their NCR land without payment of compensation a
constitutional act. The State’s decision to go ahead and issue a final State lease
when the case is pending before the court may well attract a claim for A
exemplary damages and more so in the context of breach of fiduciary duties
owed by the State to its natives. See Sagong Tasi’s case at para [67].
[139] After all the State is committed, as it said it would, when tabling the
2018 Amendment Bill to the SLC, to preserve, protect and promote their B
NCR over their ancestral land, they being the more vulnerable members of our
society who often would have no voice or whose voice may hardly be heard in
the cacophony of voices from vested commercial interests.
DECISION C
[140] The concept of indefeasibility has to be read harmoniously with the

principle of NCR status over the subject land in that whilst there is nothing
preventing Indranika Jaya as registered lessee from dealing with the land, they
cannot sue for trespass as the natives as appellants had been there with lawful D
justification under their NCR over the subject land long before titles were
issued to the respondent.
[141] Until and unless the NCR over the land has been extinguished with
E
payment of compensation as damages, the NCR exists and co-exists side by
side the interest of the respondent as registered lessee. One cannot sue the other
for trespass.
[142] Where mutual co-existence is not possible because of past antecedents F

as in this case, the court would have to reluctantly maintain the prohibitory
injunction for fear of the breach of peace for emotions may well run high when
one is propelled to defend one’s very right to remain and live on the land —
fighting for one’s very survival. Their very existence and survival is inextricably
tied to and wrapped round the land. G
[143] We therefore maintain the words in the prohibitory injunction and

affirm it without prejudice to the rights of the appellants to apply for the
necessary easement if they can so prove their need for it.
H
[144] We are of the considered view that the trial judge in the High Court had
been plainly wrong in failing to consider that the natives’ NCR over the subject
land may exist side by side the registered leasehold interest of Indranika Jaya
and more so when the NCR had not been properly and lawfully extinguished
under the law. I
[145] Following the principle of appellate intervention enunciated in Gan

Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1,
we had therefore allowed the appellants’/defendants’ appeal and set aside the
A order of the High court for nominal damages of RM20,000 plus interest and
costs of RM30,000. The cross-appeal of the respondent/plaintiff for damages
for trespass was correspondingly and consequentially dismissed.
[146] We ordered costs of RM30,000 here and below to the appellants subject
B to allocator.
POSTSCRIPT
[147] To deprive the natives of their NCR over the land without
C
compensation being paid to the natives whose forbears had been on the land
under their system of customary laws long before anyone of us set foot on the
soil, should be unheard of after nearly 60 years of statehood.
D [148] We are conscious of the fact that money is only as useful as the thing you
exchange it for. Of what use could they put the compensation sum to, as and
when it is assessed and paid out to the natives? The lifestyle of the natives is such
that they live off the land and are one with the land in a dynamic and balanced
ecosystem that ensures the protection of the rich fauna and flora life of the
E jungle and forest. Who are we to say that our lifestyle is superior to theirs? Isn’t
the stature of statehood measured by how one treats the most vulnerable in
society whose rights are protected both under the Federal and State
Constitution and the SLC?
F [149] We now have a system of land law where NCR land may be disregarded
by the State under the presumption that all land without a title issued is State
Land under s 5(7) of the SLC and a final title issued that is indefeasible to an
enterprise, whether it be for them to log for timber, to plant and harvest oil
palm or for any development. They can in turn charge the final titles to the
G
bank for financing and immediately monetise the land alienated to them and
all we can do is to say to the natives: ‘Sorry but there is nothing else we can do
other than to order damages to be paid to you. More than that you risk being
sued for trespass if you continue to remain on the land. You must get out of the
H land now! We shall talk of compensation later’.
[150] There is something grievously wrong with the equation. There would
be no incentive for the State to wait for the courts to adjudicate on pending
claims before issuing a provisional lease or State lease to a third party. In fact, to
I speak of incentive for the State is a misnomer for the State is under a fiduciary
duty to preserve, protect, promote and indeed to defend the rights of the
indigenous and native people of the land against deprivation of their livelihood
which is inextricably tied to the land.
[151] To be deprived of their NCR land is traumatic enough; to have to vacate A

the land without compensation or damages being paid as their case meanders
its way through the process of the courts would be to rub salt on open wounds.
The Malay proverb may resonate with us in describing the plight of the natives:
‘Sudah jatuh ditimpa tangga’ which translated literally would mean ‘Having
fallen, one is being hit by a falling ladder!’. B
[152] In Sagong Tasi’s case the Court of Appeal expressed its ardent hope that
the rights of the first people of this nation would not be seized from them and
they be dispossessed of it in future in this wise:
C
[69] … But this is nevertheless a sad case. Sad, because of the treatment that the
plaintiffs received in the hands of the defendants. Here you have a case where the
very authority — the State — that is enjoined by the law to protect the aborigines
turned upon them and permitted them to be treated in a most shoddy, cruel and
oppressive manner. It is my earnest hope that an H episode such as this will never be
repeated. D
[153] Judging by the number of cases that have come before the courts, the
contestations between NCR land and an indefeasibility of titles issued
subsequently to private enterprises, we are not hopeful that this will be the last
case after the SLC 2018 Amendments. We can only hope we are wrong. E
Appellants’ appeal allowed and respondent’s cross-appeal dismissed.
Reported by Ahmad Ismail

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486 Malayan Law Journal [2023] 2 MLJ

COURT OF APPEAL (PUTRAJAYA) — CIVIL APPEAL

Land Law — Trespass — Native customary rights (‘NCR’) over land C

A and cross-appeal by Indranika Jaya. The issues for consideration were:

C Held, allowing the appellants’ appeal and dismissing respondent’s cross-appeal:

[Bahasa Malaysia summary

A Tinggi memohon relif pelbagai pengisytiharan, antara lain, bahawa mereka

Diputuskan, membenarkan rayuan perayu dan menolak rayuan balas

adalah melainkan dan sehingga kedua-dua syarat dipenuhi iaitu ukur A

A Indranika Jaya sebagai pemajak, ini bermakna tiada liabiliti boleh

Dominique Ng Kim Ho (with Berrylin Ng Phuay Lee and Cherishe Ng Phuay

[4] To understand the under-currents and overtones of this appeal, one

[11] With that the natives in Nikodemus and others in a representative

(f) 02(i)-79–10 of 2019(Q) — Ramba ak Bungkong & Ors v ASCO Green A

[17] The combined decisions were delivered on 24 November 2021 and

[20] As at the decision of the Federal Court in Busing Jali’s FC case on H

[32] Subsequently the following provisional leases were issued on 14 March

[33] Lot 162 of approximately 69.1 hectares had a premium of

[35] Lot 173 of approximately 67.6 hectares has a premium of RM24,596

[36] The charge in favour of CIMB Islamic created on 29 November 2007 A

[37] Likewise the ‘RESTRICTIONS AND SPECIAL CONDITIONS’ in

A (b) the annual rent payable;

[43] Under the ‘RESTRICTIONS AND SPECIAL CONDITIONS’ for all G

[63] Section 197 of the SLC reads as followed:

[66] Section 4 of the SLC defines ‘usufructuary rights’ as follows:

A means the rights or privileges exercised or enjoyed by a native community over a

which gives the natives a licence in perpetuity to occupy and be in possession of A

[77] If a beneficial interest cannot be terminated without payment of C

[85] The Federal Court in TR Nyutan’s case had no problem reconciling

[102] The constitutional protection of no acquisition without compensation

[103] Article 13 of the Federal Constitution declared in comforting words the

adequate compensation that the State must be committed to as follows: A

I [138] Likewise, it would be unconstitutional for a State to alienate any NCR

[140] The concept of indefeasibility has to be read harmoniously with the

[142] Where mutual co-existence is not possible because of past antecedents F

[143] We therefore maintain the words in the prohibitory injunction and

[145] Following the principle of appellate intervention enunciated in Gan

[151] To be deprived of their NCR land is traumatic enough; to have to vacate A

Appellants’ appeal allowed and respondent’s cross-appeal dismissed.

Reported by Ahmad Ismail

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