Asia

Malaysia: Sabah and Sarawak High Court reaffirms native customary rights of indigenous peoples

The judiciary in Malaysia have been attempting to set the standards on the rights of indigenous peoples. On 9 July 2007, Justice Datuk Ian H.C. Chin of the High Court of Sabah and Sarawak issued a series of directions/orders in favor of Rambilin Binti Ambit, a Dusun indigenous woman of Kampung Gailun Salimpodon in the district of Pitas in Sabah province of Malaysia, in a civil suit and two related judicial reviews. By all yardsticks, the ruling is far-reaching and is expected to set a landmark authority over court cases involving claims to Native Customary Rights in Sabah.

The facts of the case were as follows: -

In 1982, Rambilin Binti Ambit bought two plots of land measuring a total of 15 acres at her village at Kampung Gailun Salimpodon in the district of Pitas in Sabah. She bought the plots of land from Sharif Osman bin Sharif Murah (“Osman”) for RM12,500 and Sharif Endun bin Sharif Ading (“Endun”) for RM2,000. Upon their entering into the land in 1982, Rambilin and her husband cleared the land, built a house as well as erected a boundary fence. They had developed the land by planting coconut and fruit trees and laid water pipes. However, Rambilin did not stay on the land continuously as she had to live wherever her husband, then working in the Agriculture Department, was posted, which at the relevant time was Kudat.

While Rambilin was away, Ruddy Awah, in connivance with Magudar Bin Ambit, brother of Rambilin, one of the land sellers Endun, the office of the Assistant Collector of Land Revenue (“ACLR”) and the office of the Registrar of Titles of Pitas district entered into Rambilin's 15 acres land and took possession of the same. On April 2000, Rambilin commenced a Suit being No.K22-71 of 2000 in the High Court of Sabah and Sarawak against Ruddy seeking for, inter alia, possession of the said land and damages on ground of trespass by Ruddy. Meanwhile, in November 2001, the office of the Assistant Collector of Land Revenue (ACLR) and the office of the Registrar of Titles of Pitas district issued the titles to the land namely NT233105729 and NT233105710 to Ruddy. In 2002, Rambilin filed two applications for leave to apply judicial review. The first was Judicial Review No.JR-K25-02 of 2002 while the second was Judicial Review No.K24-240 of 2002 and Rambilin was granted leave in both. 

Issues involved in the suit No.K22-71 of 2000

While hearing the petition, the High Court framed the following issues:

1.         Did Rambilin acquire any rights by purchase?

2.         Was Rambilin in possession of the land?

3.         Whether an action in trespass is maintainable?

4.         Whether Ruddy committed trespass?

In his judgement of 9 July 2007, Justice Datuk Ian H.C. Chin of the High Court of Sabah and Sarawak, Malaysia passed the following orders-

In Rambilin's suit claim against Ruddy

1.         It is declared that Rambilin is entitled to possession and/or to recover possession of the land;

2.         It is ordered that Ruddy whether by himself or his servants or agents do forthwith vacate the land, and forthwith deliver possession of the land to Rambilin;

3.         It is ordered that Ruddy whether by himself or his servants or agents or otherwise howsoever from being or remaining on or entering or using the land upon and subsequent to the delivery of possession of the land to Rambilin;

4.         It is also ordered that Ruddy pay Rambilin mesne profit at the rate of RM500.00 per month from the 31st of December 1996 until possession of the land is delivered up to Rambilin;

5.         It is also ordered that Ruddy pays to Rambilin special damages of RM66,500.00 and statutory interest of 8% per annum thereon from 31st of December 1996 until the date of Judgment;

6.         Interest of 8% per annum on the adjudged sums under Prayers (4) and (6) from the date of Judgment to the date of full payment.

As for exemplary and aggravated damages which award is justified by the fraudulent scheme of Ruddy in dispossessing Rambilin, a sum of RM10,000 should be sufficient as Ruddy had been ordered to pay mense profit. Ruddy is therefore also to pay RM10,000 to Rambilin as exemplary and aggravated damages. Costs to Rambilin.

Issues involved in the Judicial Reviews

1.         Judicial Review No.JR-K25-02 of 2002 for an order of mandamus to direct the ACLR to deliver a decision in respect of Rambilin's application for native customary rights for which a land enquiry, No. 3/2000, was conducted and

2.         Judicial Review No.K24-240 of 2002 for an order of certiorari directed against the Director to quash his decision to issue a title to the land to Ruddy before a decision in land enquiry no. 3/2000 was delivered.

The orders made in the judicial review actions are-

1.         The ACLR shall within 90 days hereof deliver his decision in land enquiry no. LE 3/2000 in respect of land application nos, 89230296 and 96230318;

2.         It is declared that the alienation of the land by Native Title No. 233105729 and Native Title No. 233105710 is unlawful, null and void;

3.         The decision of the Director to alienate the land constituted by Native Title No. 233105729 and Native Title No. 233105710 is hereby quashed;

4.         The decision of the ACLR and Registrar of Titles to register Native Title No. 233105729 and Native Title No. 233105710 is quashed;

5.         The Director, the ACLR and the Registrar of Titles and all officers acting under them shall be prohibited from further processing land application no. 96230318, land application no. 97230158 and land application no. 9620350 until after the final determination of land enquiry no. LE 3/2000 and Rambilin's land application no. 89230296; and

6.         Cost to Rambilin.