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MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK
AT SANDAKAN
5 SUIT NO. S 21 – 28 OF 2007
BETWEEN
JAIPIN BIN MOHIGAL [NRIC NO 500510-12-5403] … 1st PLAINTIFF
10 MAODI BIN MADILOH [NRIC NO 340102-12-5287] … 2nd PLAINTIFF
SALIPAT BIN KINDAWAN [NRIC NO 381007-12-5327]…3rd PLAINTIFF
AND
1. CONSERVATOR/
15 DIRECTOR OF FORESTRY DEPARTMENT …1st DEFENDANT
2. PIUS PRIMUS …2nd DEFENDANT
3. THE GOVERNMENT OF THE STATE OF SABAH …3rd DEFENDANT
JUDGMENT
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1. BACKGROUND
[a] The Plaintiffs had on 17.11.2008 amended their Writ of Summons
and Statement of Claim by withdrawing their claims against the
25 Assistant Collector of Land Revenue Beluran, Sabah and the Director
of Land and Surveys Department as the 3rd and 4th Defendants.
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[b] At the commencement of the trial the Plaintiffs filed a Notice of
Discontinuance against the 4th and 5th Defendants herein and the
Plaintiffs’ claim now is effectively against the Conservator/Director of
Forestry Department of Sabah who is the 1st Defendant, Pius Primus,
the alleged tortfeasor who is 5 the 2nd Defendant herein and who is an
servant or agent of the 1st Defendant and the Government of State of
Sabah who is the 3rd Defendant herein.
[c] The Plaintiffs’ claims are grounded on their contentions that they
10 were inter alia at all material times the owners in occupation and
having exclusive possession of parcels of various parcels of land
contained and described under their land applications.
[d] The Plaintiffs’ claims against the 1st, 2nd and 3rd Defendants jointly
15 and severally are as follows:
[1] an injunction against the 1st, 2nd and 3rd Defendants and/or
their agents/servants including any third surveyors from
harassing threatening them and/or evicting the Plaintiffs from
20 the said land;
[2] an order that an Enquiry should be held/conducted by the 1st
and/or 3rd Defendants giving the Plaintiffs a fair hearing
pertaining to their native Customary Right/Tenure;
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[3] a declaration/order that the 1st and/or 2nd Defendants’ action
to destroy and/or demolish their household items mentioned
under paragraph 22 herein is illegal.;
[4] special damages 5 for their loss of their houses including
household items and/or for the illegal acts/harassments/false
imprisonment.
[5] other consequential reliefs.
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[e] The 1st, 2nd and 3rd Defendants’ defence inter alia is that the
various parcels of lands occupied and applied for, by the Plaintiffs are
part of the duly gazetted Paitan Forest Reserve and that various
notices to leave the said Forest Reserve were served on the Plaintiffs
15 and others.
2. THE PLAINTIFFS’ AND THE 1ST,2ND AND 3RD DEFENDANTS’
PROPOSED ISSUES TO BE TRIED
20 [a] The Plaintiffs and the 1st, 2nd and 3rd Defendants have their own
proposed issues to be tried.
[b] The Plaintiffs’ proposed issues to be tried are as follows:
25 [1] Whether or not the Plaintiffs’ land is within the Paitan Forest
Reserve?
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[2] Whether or not the burning of the Plaintiffs’ houses and
destruction of crops are/were illegal?
[3] Whether or not the Defendants are liable to pay for the
5 loss/damages suffered by the Plaintiffs?
[4] Is the letter of direction dated 9/9/98 [exhibit at page 13 of
PBD] from the Jabatan Hasil Bumi to the Lands and surveys
Department amounts to a direction to alienate the said land to
10 the Plaintiffs pursuant to the provisions under the Sabah Land
Ordinance?
[5] Whether or not the Plaintiffs are trespassers?
15 [c] The 1st, 2nd and 3rd Defendants’ proposed issues to be tried are as
follows:
[1] Whether or not the Plaintiffs are trespassers in the Paitan
Forest Reserve?
20 [2] Whether or not the burning of the Plaintiffs’ houses and
destruction of crops were illegal?
[3] If the answer is affirmative whether the Plaintiffs are entitle
to be paid for loss/damage suffered by the Plaintiffs?
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[d] An analysis of the Plaintiffs’ and the 1st, 2nd and 3rd Defendants’
proposed issues to be tried, will reveal that the proposed issues are
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substantially the same except for the Plaintiffs’ proposed issues [3]
and [4]. In the light of the aforesaid, my consideration of all the
Plaintiffs’ proposed agreed issues to be tried, shall cover all the
proposed agreed issues to be tried of both the Plaintiffs’ and the 1st,
5 2nd and 3rd Defendants’.
3. CONSIDERATION OF THE PROPOSED ISSUES TO BE TRIED
[1] Whether or not the Plaintiffs’ land is within the Paitan Forest
Reserve?
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[a] It is not in dispute that the Paitan Forest Reserve was duly
gazetted on 15/12/1961 vide North Borneo Government Gazette No.
17 and is more particularly delineated and shown on Plan No. 14208
deposited in the office of the Director of Lands and Surveys and
15 containing an area of approximately 272 square miles.
[b] From the pleadings and evidence of the Plaintiffs, they are
contending that the said lands that they are occupying, on which their
houses were constructed, are not within the Paitan Forest Reserve
20 and that they were on unalienated state land since the mid 1980’s.
They also relied on their land applications which were accepted by
the Assistant Collector of Land Revenue Beluran. The Plaintiffs
further stated that by a letter dated 10th January, 1998, the District
Surveyor Sandakan confirmed with the 3rd Defendant that the said
25 land applied by the Plaintiffs under PT 96082535 – 2552 are not
within the Paitan Forest Reserve.
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[c] The Plaintiffs also relied on inter alia a letter dated 10/1/1998 from
the District Surveyor, Sandakan confirming to the 3rd Defendant that
the said Lands applied by the Plaintiffs under PT 96082535 to PT
96082552 are not within the Paitan Forest Reserve [refer to pages
7,8 and 9 of Bundle PBD] and 5 that the said Lands was an loggedover
area and submitted that as such, the said Lands therefore
cannot be part of the Paitan Forest Reserve. The Plaintiffs further
submitted that there was no notice from the Defendants that Plaintiffs
were trespassers for about 20 years since the Plaintiffs entered and
10 cultivated the said Lands in 1988.
[d] Since it is the Plaintiffs’ contentions, they bear the legal burden of
proving their case, pursuant to sections 101, 102 and 103 Evidence
Act 1950. Other than the testimonies of the Plaintiffs and their own
15 witnesses, there was no other evidence from other sources to
substantiate their case. It is my considered view that the Plaintiffs
have to prove that the actual location of the said Lands on which their
houses were constructed on the ground and that they are in fact
outside the Paitan Forest Reserve. They could have easily done so
20 either by calling the relevant staff of the Lands and Survey
Department of Sabah, or obtaining the services of qualified surveyor
and/or produced the relevant Global Positioning System readings
and/or grid references of their said lands, to prove that the said lands
are in fact outside the Paitan Forest Reserve but they have failed
25 and/or omitted to do so. It is one thing to say their houses on the said
lands were outside the Paitan Forest Reserve and another to prove it.
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[e] It is possible that the Plaintiffs could have settled at the wrong
place or location. Throughout the trial there was no evidence on why
the Plaintiffs settled at the location, that they did and whether it was
as a result of a proper land survey.
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[f] On the other hand the 1st, 2nd and 3rd Defendants have produced
various maps to prove that the Plaintiffs’ said lands on which their
houses were constructed, well inside the Paitan Forest Reserve and
as such they were trespassers. In support of their contentions the 1st,
10 2nd and 3rd Defendants relied on Exhibits D1 and D2 which are Road
Network Map of FMU2: Paitan & Sugut Forest Reserves and Peta
Lokasi Cerapan GPS: Kedudukan Rumah/Pondok Yang
Dimusnahkan (Bakar) Dalam Hutan Simpan Paitan, both maps
produced by Pengarah Pemetaan Negara Malaysia. As Exhibits D1
15 and D2 are official maps, there is a presumption in the Section 83
Evidence Act 1950 which reads as follows;
“83. Presumption as to maps or plans made by the authority of
Government.
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(1) The court shall presume that maps or plans purporting
to be made by the authority of the Government of
Malaysia or the Government of any State were so made
and are accurate.”
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[g] In the light of the above, I find that Exhibits D1 and D2 are
accurate and that the Plaintiffs have not shown that they are
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inaccurate and unreliable. The Plaintiffs merely contend that Exhibits
D1 and D2 were prepared in the years 2005 and/or 2007 and that
such maps had no retrospective effect as the Plaintiffs entered and
occupied the said Lands in the 1980’s. I find that this contention is
wholly without merits as the 5 Paitan Forest Reserve was constituted
and gazetted on 15/12/1961, some 19 years before the Plaintiffs
entered and occupied the said Lands and it matters not when Exhibits
D1 and D2 were prepared as the purpose of Exhibits D1 and D2 is
inter alia to determine the boundaries of the Paitan Forest Reserve in
10 accordance with the relevant Gazette and the location of the
Plaintiffs’ houses on the said land. Exhibits D1 and D2 clearly showed
that the Plaintiffs’ houses on the said Lands are clearly within the
Paitan Forest Reserve.
15 [2] Whether or not the burning of the Plaintiffs’ houses and
destruction of crops are/were illegal?
The finding of this issue will very much depend on whether the
Plaintiffs’ houses and crops were planted within the Paitan Forest
20 Reserve and on my findings in Issue [1] above. In the light of my
finding in Issue [1] above, I find that the burning of the Plaintiffs’
houses and destruction of crops were not illegal as the 1st, 2nd and 3rd
Defendants have powers pursuant to Section 21 Forest Enactment
1968 to destroy any buildings erected in a Forest Reserve. Section
25 21 Forest Enactment 1968 states as follows:
“21. Any building, fence or enclosure erected or maintained in
a Forest Reserve contrary to the provisions of this Enactment
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shall vest in the State, and the Director may destroy the same
or otherwise dispose of them as he may think fit.”
[3] Whether or not the Defendants are liable to pay for the
5 loss/damages suffered by the Plaintiffs?
In the light of my findings in Issues [1] and [2], I hold that the 1st, 2nd
and 3rd Defendants are not liable to pay for the damages suffered by
the Plaintiffs.
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[4] Is the letter of direction dated 9/9/98 [exhibit at page 13 of PBD]
from the Jabatan Hasil Bumi to the Lands and Surveys Department
amounts to a direction to alienate the said land to the Plaintiffs
pursuant to the provisions under the Sabah Land Ordinance?
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[a] I find that the said letter of direction dated 9/9/98 does not amount
to a direction to alienate the said land to the Plaintiffs and pursuant to
section 9 (1) of the Sabah Land Code, only the Minister concerned
can give general or special directions to the Director of Lands and
20 Surveys Department. In any event I hold that my finding on this issue
is academic because the Assistant Collector of Land Revenue and/or
the Director of Lands and Surveys Department are not before the
Court and this Court cannot make any order especially orders which
are adverse to party which are not before the Court. The declaration
25 and remedies herein sought by the Plaintiffs, if granted, would
adversely and directly affect the interests, powers and duties of the
Assistant Collector of Land Revenue and/or and the Director of Lands
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and Survey of Sabah who under the Sabah Land Code has various
powers and duties, as state land could easily and without notice to
the Assistant Collector of Land Revenue and/or the Director of Lands
and Survey Department, become native customary land or alienated
lands. It is only fair, just and 5 proper that all affected parties be
brought and given a fair hearing and an opportunity to present their
case.
[b] There is absolutely no special circumstances why the Assistant
10 Collector of Land Revenue and/or the Director of Lands and Survey
Department of Sabah should not have been made parties to this case
since the declaration sought by the Plaintiffs, if granted, will directly
and adversely affected the interests of the Assistant Collector of Land
Revenue and/or the Director of Lands and Survey Department of
15 Sabah. In support, I refer and rely on the Federal Court case of
Kheng Chwee Lian v Wong Tak Thong [1983] 2 MLJ 320 and the
Court of Appeal case of Abdul Rahim Bin Aki v Krubong Industrial
Park (Melaka) Sdn Bhd & Ors (1995) 3 MLJ 417 where Gopal Sri
Ram JCA said at pages 423 and 424 as follows:-
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“We think that the answer to the Appellant’s contention that
the action is properly constituted and may proceed
notwithstanding the non-joinder of the alleged defalcating
director is to be found in the following passage in the speech
25 of Viscount Maugham in London Passenger Transport
Board v Moscrop [1942] AC 322 at p 345:
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I also think it desirable to mention the point as to parties in
cases where a declaration is sought. The present appellants
were not directly prejudiced by the declaration and it might
even have been thought to be an advantage to them to submit
to the 5 declaration, but, on the other hand, the person really
interested were not before the court, not a single member
of the Transport union was, nor was that union itself,
joined as a defendant in the action. It is true that in their
absence that they were not strictly bound by the
10 declaration, but the courts have always recognized that
persons interested are or may be directly prejudiced by a
declaration made by the court in their absence, and that,
except in very special circumstances, all persons
interested should be made parties, whether by
15 representation orders or otherwise, before a declaration
by its terms affecting their rights is made. In the chancery
division, in which this case started, the rule would seem to be
almost invariable, and the well-established practice in actions
by shareholders and debenture holders may be mentioned as
20 instances of the rule. With the greatest respect for the Court of
Appeal, I think that the amended declaration pronounced by
that court, even if the section were applicable, ought not to
have been made. (emphasis added)”
25 [c] Further in the Federal Court case of Kheng Chwee Lian v Wong
Tak Thong [1983] 2 MLJ 320, Seah FJ said at page 323 as follows:-
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“In our judgment, the court below has no jurisdiction
inherent or otherwise, over any person other than those
properly brought before it, as parties or as persons treated
as if they were parties under statutory provisions [Brydges
v Brydges & Wood 5 [1909] P 187 Re Shepard [1920] P 71 and
Coleman v Coleman (1933-34) 61 IA 115]. The terms
“judgment “ and “order” in the widest sense may be said to
include any decision given by a court on a question or
questions at issue between the parties to a proceeding properly
10 before the court [see para 501 of Halsbury’s Laws of England
(4th ed.) Vol. 26 at page 237]. And at para 550 the following
passage appear:-
“Subject to appeal and to being amended or set
15 aside, a judgment is conclusive as between the
parties and their privies and is conclusive against all
the world of its existence, date and legal
consequences.” (emphasis added)
20 We are constrained to agree with the submission of learned
counsel for the interveners that the order of the learned judge
was wholly irregular insofar as it purports to affect the
registered title, share and interest of the said interveners in the
said land when they had not been made parties or given a full
25 opportunity of taking part in the proceedings in the court below.”
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[d] Based on the Plaintiffs’ pleadings and prayers, it is clear that the
Plaintiffs’ claim is related to land rights or matters and the plaintiffs
ought not have amended their Writ and Statement of Claim, removing
the Assistant Collector of Land Revenue and the Director of Lands
and Surveys Department as a party 5 to this action. In the absence of
the Director of Lands and Surveys Department which is the proper
party to obtain remedies relating to land matters, this Court cannot
entertain any claims relating to land matters for inter alia the simple
reason that this Court cannot make any orders especially adverse
10 orders against a party who is not before the Court.
[5] Whether or not the Plaintiffs are trespassers?
In the light of my finding in Issue [1] above, I find that the Plaintiffs are
15 trespassers as they were occupying lands which are inside the Paitan
Forest Reserve.
4. ORDER
In the light of the aforesaid I therefore dismiss the Plaintiffs’ claim with
20 costs.
Dated this 4th day of June, 2010.
……………………………………….
25 Y. A. TUAN LEE HENG CHEONG
Judicial Commissioner
Sandakan, Sabah
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Plaintiffs: Mr Seibing Gunting
Of Messrs Seibing & Co
Kota Kinabalu
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Defendant: Puan Nor Asiah Mohd Yusof
State Attorney General Office
Kota Kinabalu.
Notice: This copy of the Court's 10 Reasons for Judgment is subject to formal
revision.
