ANOTHER NCR LAND DEVELOPMENT FAILURE

KUCHING:  Sarawak Chief Minister Abdul Taib Mahmud’s new land development concept ‘Konsep Baru’ to develop native customary rights (NCR) land under a JV hit another major failure when the Sibu High Court granted the return of the land to the owners last week.

Five landowners - Kadam ak Embuyang, Genta ak Saka, Bartholomew Aji Lanyau, Rimong ak Jantan and Laja@ Meris ak Augustine Igoh - representing 163 other claimants of NCR land situated at Sg. Kelimut, Kanowit, Sarawak had sued Pelita Holdings Sdn Bhd (subsidiary of LCDA), Superintendent of Lands & Surveys, the State Government of Sarawak, and Boustead Pelita Kanowit Sdn Bhd, the investor of the scheme.

Baru Bian, who represented the plaintiffs, described the ‘victory’ as another judgment in favour of the indigenous Ibans which was handed down by Her Ladyship Puan Yew Jen Kie, High Court Judge Sibu on the April 30, 2012.

“This victory yet again proves that native customary rights (NCR) land cases are gaining legal recognition and sanction in Sarawak.

“Unlike the other 200 NCR land cases now pending in all the High Courts in Sarawak, this case is unique in a sense, because the plaintiffs’ NCR lands are recognized by the State Government of Sarawak to be developed jointly by the State Government through its statutory development arm of Land Custody Development Authority (LCDA), under a scheme termed as ‘Konsep Baru’ which is  the ‘brainchild’ of the Chief Minister of Sarawak.

“The ‘Konsep Baru’ would have its equitable shareholding in the Joint Venture (JV) Company with LCDA holding 40% (10% for LCDA and 30% in trust for the native landowners) and the investor holding 60%,” said Bian at a media conference.

The Ba’Kelalan Assemblyman and Sarawak PKR chief said that the landowners would be deemed to have paid their shares of 30% through the surrendering of their NCR lands for the scheme.

He said that the official launching was on August 19, 1996 by the Chief Minister himself, apparent from the booklet on the official launching adduced in the trial of the case.

He said that on January 14,  2002, a Principal Deed was signed between the Plaintiffs and Pelita Holdings Sdn Bhd which described the terms and conditions of the Konsep Baru and the operation of the JV company.

Bian said: “The plaintiffs claimed that Pelita Holdings Sdn Bhd and/or the Superintendent of Lands & Surveys, or the State Government of Sarawak, and/or their servants or agents had represented to the plaintiffs and/or promised, and guaranteed to the plaintiffs that in consideration of the Plaintiffs assigning absolutely to Pelita Holdings Sdn Bhd, as trustee, their respective interests, rights, shares and estate in the said NCR Lands at Sg Kelimut, the Plaintiffs will benefit or profit through the development of the said NCR Lands into an Oil Palm Plantation, the said profits or benefits to be received after four years of planting oil palm on the said NCR Lands.

“The plaintiffs claimed that the said Pelita Holdings Sdn Bhd and/or the Superintendent of Lands & Surveys, or the State Government of Sarawak, had failed, neglected and/or were in breach of the trust given them by the Plaintiffs as the development program of the said NCR Lands was a total failure with no foreseeable opportunity of making money or bringing benefits or profits to the plaintiffs,” he said.

The plaintiffs together with their lawyer Baru Bian had attended a briefing at the District Office Kanowit, with the officers of Pelita Holdings Sdn Bhd and the investor, and were informed by the officers of the investor that the joint-venture with Pelita Holdings Sdn Bhd to date had never achieved any profits at all.

In fact, the joint venture involving the plaintiffs’ NCR Lands was losing more than RM100 million up to the time of filing the writ in this case. 

The plaintiffs in the circumstances claimed that they had suffered loss and damage as a consequence of the negligence and breach of trust on the part of Pelita Holdings Sdn Bhd, the Superintendent of Lands & Surveys, and the State Government of Sarawak.

Alternatively, the plaintiffs claimed that Pelita Holdings Sdn Bhd, the Superintendent of Lands & Surveys, and the State Government of Sarawak had fraudulently misrepresented to the plaintiffs that such joint venture with Pelita Holdings Sdn Bhd and the State Government of Sarawak would reap profits for the plaintiffs.

Bian said: “Having knowledge of the fact that the said JV would in all likelihood not be profitable, the defendants represented to the plaintiffs that after four years of planting, the plaintiffs would receive their shares of dividends from the said JV.

“The planting of oil palm on the said NCR Lands in fact started in 1996 or 1997 but to date there is no evidence that the said joint venture is making money.

“Having the knowledge that Pelita Holdings Sdn Bhd does not have the status of a native under the Land Code, all the defendants or their servants or agents advised the plaintiffs to sign the said Agreement in order to lure the plaintiffs to part with their rights and interest in the said NCR lands for the defendants’ benefits, when in fact this transaction is unlawful under the provisions of the Sarawak Land Code,” he said.

The PKR leader said that in the middle of 2009, Pelita Holdings Sdn Bhd made some ‘dividend payment’ to the plaintiffs when the JV in fact had made no profit. The Plaintiffs claimed that such payment was not dividend from the profit but borrowed sum from somewhere with the intention of pacifying the plaintiffs’ anger towards the defendants.

“In the circumstances the plaintiffs alternatively, claimed that the said Principal Deed dated January 14, 2002, as between the plaintiffs and Pelita Holdings Sdn Bhd, and other agreements pursuant to this Principal Deed or joint-venture involving the plaintiffs are null and void and of no legal effect vis-à-vis section 8 of the Land Code (Cap.81) and/or on ground of fraud.

“The Plaintiffs claimed that in view of the non-possibility of Pelita Holdings Sdn Bhd, and its joint-venture partner steering the joint-venture business to a profitable enterprise, the said NCR Lands should be given back to the plaintiffs forthwith with no order as to costs of any sort.

“In the light of the above facts the Honourable Judge granted most of the plaintiffs ‘reliefs against all the defendants amongst which are that the Principal Deed dated  January 14, 2002, the basis of the ‘Konsep Baru’  to develop NCR lands, is null and void or illegal vis-à-vis section 8 of the Sarawak Land Code.

“The said NCR lands were therefore handed back to the natives. There was also an injunction order against the defendants and their servants to vacate the said NCR Lands. The full details of the judgment are not yet available to us and as such I am not able to disclose the other details of the Court’s order.

“We will make available on our website the full written judgment of the Court once we have it,” he said.

Bian said that the decision appeared to be the second such judgment against this ‘Konsep Baru’ project, which had been nullified by the Court.

The first was that of Masa Nangkai & Ors v. Lembaga Pembangunan Dan Lindungan Tanah & Ors [2011] 1 LNS 145, a case that came from Sg Tengang, Sri Aman, where Judge Datuk Albert Linton (now Judge of Court of Appeal) said that such agreement (Principal Deed) had been ‘cleverly devised with legal mechanism and legalistic language which are mere fig leaves too scanty to conceal their violations of Articles 5and 13 of the Constitution’.

 In His Lordship’s opinion, ‘the sum total of the rights of the landowners, to put it crudely, and for want of a better word, is zero. They have been deprived of their native customary rights land, which is a source of their livelihood and lost the rights to their property, which are violations of Articles 5and 13 of the Constitution’.

Bian said that that decision could have had some bearing on the present case.