Federal Court: NCR landowners cannot claim parcels that have been converted into lease-of-state land
KUCHING: Landowners cannot reclaim their Native Customary Rights (NCR) land, which was under provisional lease, after it has been converted into lease-of-state land, the Federal Court has ruled.
Chief Justice Tun Raus Sharif, in his written judgement yesterday, said: “The effect of this conversion is that the disputed lands are no longer provisional leases but a lease proper and are entitled to the protection of Section 132 of the Sarawak Land Code, which title stands good against the whole world.”
The ruling overturned the decisions by the High Court and Court of Appeal in favour of the native owners Tuai Rumah Nyutan Jami, Ganga Guma and Langa Kama, who represented 183 residents in Kampung Lebor, Jalan Gedong, Serian to bring a case against four appellants.
The appellants were TH Pelita Sadong Sdn Bhd and TH Pelita Gedong Sdn Bhd (TH companies), RHB Islamic Bank Bhd, Land Custody and Development Authority (LCDA) as well as the state government.
The judgement was delivered by Federal Court deputy registrar Edwin Paramjothy Michael Muniandy. The Federal Court panel comprised judges Suriyadi Halim Omar, Zainun Ali, Balia Yusof Wahi and Jeffrey Tan.
Raus was quoted as saying that Section 132 of the Sarawak Land Code pertaining to indefeasibility of title remains applicable, even if it could be shown that NCR land had been created over land in the manner prescribed under the same Code.
He said a claim for NCR ‘does not defeat the indefeasibility of title of land, even though the interest stated in the issue document of title is issued after NCR was asserted’.
He added that the NCR landowners are entitled to compensations and damages for infringement or extinguishment of NCR right as provided for under the Sarawak Land Code.
Counsel See Chee How, who was present in court, said following the judgement by the Federal Court, all that it could order was compensation for the disputed area, which has proven NCR over the lease given.
“So it’s a mistake or whatever by the government to give this lease. So go by extinguishment and compensation, that’s it. So it’s deemed extinguished and they will pay compensations,” he said after the delivery of judgement, which lasted more than half an hour. When prompted for further explanation, See said once a lease is issued over the area, the success of proving the existence of NCR does not entitle the NCR landowners to that part of the land.
“The damages to them are the compensations. The indefeasibility of title is immediate, upon the issuance of the lease.”
See (right) speaking to the landowners outside the Courthouse Complex after the judgment was delivered. Photo by Chimon Upon
See, who is also Batu Lintang assemblyman, said the Court of Inquiry would determine the amount of compensation later.According to him, the NCR landowners involved wanted to claim their land, instead of settling for compensations.
“If they wanted compensations, they would have gone to the companies to ask for it instead of coming to court.”
See said he could not believe ‘the kind of policy’ that the state government is implementing, which is issuing provisional leases over almost the whole of Sarawak.
“When they issue the provisional leases, if NCR landowners don’t claim, then they lose the land; and if they (NCR landowners) win (their cases), they get compensations.
“For this case, if they just wanted compensations, they would have approached the companies – they did not need to wait for 20 years,” he said, fearing that this decision might affect over 100 pending cases where NCR lands were converted to lease-of-state land.
He said if the state government continued to pursue in this manner (giving out provisional leases on NCR land), this would warrant the dire need for amendment to the Sarawak Land Code.
“If this is the case, the Land Code needs to be amended because on one hand, you say to respect their (NCR) right but on the other hand, your law is not protecting them,” See pointed out.
Nyutan Jami
When also met outside the Courthouse Complex here, Nyutan – with teary eyes – lamented that they just wanted their land back, rather than being compensated.
He also said NCR landowners would want ‘better solution’ when it involved disputed land cases.
Nyutan said he had inherited those parcels of land from his forefathers and it broke his heart that the land is now gone for good.