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Extracted From Malaysiakini
Another victory for native land rights
Jul 6,
The
Court of Appeal said that a Malay family exercised native customary rights
(NCR) over a piece of land that was part of the Miri Shell Concession area and ordered
that they be compensated for the extinguishment of such rights.
In the April 1 decision, the appellate court allowed the
appeal of Madeli Salleh and quashed a
This is the second such decision handed down by the court
involving NCR claims following the landmark case brought before High Court
judge Ian Chin by Tuai Rumah Nor anak Nyawai against two paper-and-pulp
companies and the Bintulu superintendent of Lands and Surveys.
In the 38-page judgment, Kuching High Court judge Clement
Skinner, sitting together with Abdul Kadir Sulaiman and Tengku Baharudin Shah
Tengku Mahmud, said the appellant's main grounds of appeal were that the earlier
judgment has erred in law.
According to the three-member appellate court, the
judicial commissioner adjudicating the case in the High Court had failed to
appreciate the legal consequences that flowed from the respondents adopting a
plea of confession and avoidance.
(Pleas in confession and avoidance are those which admit
the averments in the plaintiff's (in this case Madeli) declaration to be true,
and allege new facts which obviate and repel their legal effects.)
The appellant (Madeli) had argued that since the
respondents adopted a defence of confession and avoidance, they took upon
themselves the evidential burden of proving that the six-acre land remained
within the Shell Concession Area until January 1958 ‘so as to avoid the legal
consequences of their admission that the appellant had acquired native
customary rights to the land before January 1, 1958.’
Appellant did
not live on land
Mekabda Singh Sandhu, who is counsel for the appellant,
further contended that once the judicial commissioner had come to a finding
that the land was excepted from the Shell Concession Area as early as 1954, he
(the judicial commissioner) should have given effect to that finding by
entering a judgment in favour of the appellant.
Skinner said: “In an attempt to extricate themselves from
the consequences of having adopted such a plea, counsel for the respondents
contended before us, as he did before the judicial commissioner, that the
particular paragraph of the defence was not a plea of confession and avoidance.
“Instead, he contended that the whole of the respondents'
defence should be read, which will show that there was no admission of the
appellant's claim, but a complete denial and dispute of the appellant's claim
to have acquired or creative customary rights over the land.”
The Court of Appeal also said that just because the
appellant did not live on the land does not mean he was no longer in control of
it or did not occupy it.
“In fact, he visited the land once a month and even
corresponded with the government over it, requesting to be issued with a title
to it.”
The High Court in its findings had come to the conclusion
that the appellate's family had no native customary rights over the land.
However, Skinner said he and his fellow judges did not
concur with the finding of the lower court.
“It must also follow from what we have said that the
finding of the judicial commissioner that the appellant was in unlawful
occupation of state land while it was part of the Shell Concession Area cannot
be supported,” said Skinner.
The counsel for the respondents was the senior legal
officer Thomas Akin Jelimin of the state Attorney-General's Chambers. The
respondents have applied for leave to appeal to the Federal Court.