Another victory for Nor Anak Nyawai

(The story was first published by Free Malaysia Today and is reproduced here for the readers of The Broken Shield).

KUCHING: Native customary land owners Nor anak Nyawai and three others yesterday (4 August) won another round of victory against Tatau Land Sdn Bhd, Superintendent of Lands and Surveys, Bintulu and the State government of Sarawak, when the Kuching High Court allowed their application for an injunction until the disposal of the case.

The disputed land is described at Lots 15 and 16, Block 3 Sangan District respectively in Tatau, Bintulu.

The plaintiffs represented Baru Bian of M/S Baru Bian & Advocates are asking for various declaratory reliefs including a declaration that the issuance of provisional leases is null and void.

Additionally, they are also seeking a prohibitory injunction restraining the first defendant, Tatau Land Sdn Bhd, its servants and agents from entering, clearing and occupying the land over which they (the plaintiffs) claim native customary rights.

The instant application is the plaintiffs’ application for an interlocutory order in relation to the prohibitory injunction which is one of the reliefs the plaintiffs are asking for in the action.

In their affidavit to support their application, the plaintiffs asserted that their ancestors and through to them, have for many generations past until now continued to occupy, cultivate and use the land they are claiming to be entitled to under native laws and custom.

They said that they were neither aware of nor consented to the issuance of the provisional leases to the first defendant, Tatau Land Sdn Bhd which constituted the extinguishment or termination of their native customary rights over land covered under the provisional leases.

Towards the end of November 2010, the servants of the first defendant and the second defendant, the superintendent of lands and surveys, demolished 25 houses within Lot 16 and unless restrained 30 more houses belonging to the plaintiffs would also be demolished and at the same time the physical evidence constituting proof of the plaintiffs’ claim to native customary rights at the trial of the action would be destroyed.

The first defendant resisted the application for interlocutory injunction. The first defendant by an affidavit filed on its behalf admitted to being the registered proprietor of the 650 hectares of land under Lot 16 which was alienated on 23 December 2002 and to be developed into a new township called Samarakan.

The first defendant had though its director, one Ghazali bin Ismail had ascertained from the second defendant that Lot 16 was devoid of any native claims. It was asserted on behalf of the first defendant that a previous action commenced by the plaintiffs in 1999 and finally determined, Lot 16 fell outside the area which had been adjudicated to be land under native customary rights to which the plaintiffs were entitled to.

On 18 December 2008, the first defendant successfully obtained an order of possession granted by the High Court at Bintulu against persons in occupation of Lot 16 and it was conceded by the first defendant that only the fourth plaintiff was a party to those proceedings.

There was no application for stay of the order for possession. The plaintiffs were granted an ex-parte order which prevented the first defendant from proceeding to develop the township and thereby sustained substantial losses caused by the delay to the project, hence the inter-partes hearing of the plaintiffs’ application for interlocutory injunction.

In his ruling, Justice Linton Albert said that he did not think that the decision in the suit commenced by the plaintiffs in 1999 on the extent of their native customary rights over land is of any consequence because the case was in relation to land alienated to Borneo Pulp Plantation Sdn Bhd, the defendant in that case in respect of which the first defendant was not a party.

“It stands to reason, therefore, that the decision in the 1999 case did not exhaustively limit the plaintiffs’ entitlement to and order under native customary rights and preclude the plaintiffs from pursuing what they perceive to be their rightful claim to native customary rights outside the area determined in the 1999 suit which allegedly includes the area alienated under Lot 16.

“Clearly, it did not matter that Lot 16 was outside the confines of the area determined in the 1999 suit.

“Likewise, the fact that the High Court in Bintulu had ruled in favour of the first defendant by granting it an order of possession did not ipso facto extinguish the plaintiffs’ claim because not only were the plaintiffs except the fourth plaintiff, not parties to the proceedings where the first defendant obtained the order of possession, there were also difficult questions concerning complex legal issues involving res judicata and these are matters which could only be effectively determined at the trial,” he said.

Justice Linton allowed the application and costs to be in the cause.

Leonard Shim of Reddi & Co. Advocates, Kuching represented Tatau Land Sdn Bhd, while the superintendent of lands and surveys, Bintulu and the State Government of Sarawak were represented by Joseph Chioh of the State Attorney-General’s Chambers, Kuching.