Fri Dec 30, 2016
An attempt to challenge the integrity of the Native Court
this year by means of judicial review failed when Kota Kinabalu High Court
Judge Ravinthran Paramaguru dismissed the application citing two main issues in
his oral judgement.
The Native Court as first respondent has acted well
within its jurisdiction when hearing a land dispute case on a native titled
land where the parties were natives.
The plaintiff at the native court as second respondent
had made a proper application within the court processes.
The case centred on ownership of land which has been
transferred to a relative to apply for a housing loan, in return for
subdividing the land later into two lots where the lot with the house will be
his while the other will be returned to the original owner. It takes a few
years to pay a loan and meanwhile the verbal agreement got forgotten and many
believed the name that appears on the land title is the legal owner of the
land. The Native Court instead relies on the facts of the case and although
there was no written agreement, several witnesses were still alive with
consistent testimonies as well as documentary proof such as an application for
subdivision already registered with the Land and Survey Department. The defendant
claimed his father has bought the land for a pittance of 500 ringgit with a
hand written receipt but the date was prior to the application for subdivision
which defied plain common sense.
The Native Court ordered the smaller lot belong to the
defendant while the larger lot belongs to the plaintiff citing “what was
borrowed should be returned”. The
defendant appealed to the District Native Court right up to the Native Court of
Appeal but was summarily dismissed. Worthy to note the defendant never cited
the jurisdiction of the Native Court during his two appeals but only after
exhausting the native court was this issue raised in the Judicial Review.
Either his lawyer was just trying his luck or never read Sabah State laws.
The Land Ordinance (Sabah Cap. 68) on sub-division of
titles Section 40 (3) clearly states, “In the absence of agreement between the
parties the question of partition shall be decided, in the case of Native
Titles by the Native Court and in other cases by the Collector in accordance
with rules hereunder.”
There are many other state ordinances that empower the
Native Court on their jurisdictions while at the Native Court of Appeal in
2015, High Court Judge Douglas Primus as presiding judge told a lawyer that “If
the Native Court had decided that a native land belongs to so and so, the Civil
Court or any other court has no business
interfering with that decision”.
The plaintiff, a retired female clerk for this landmark
case sadly passed in May 2016 missing the decision in her favour but the heir
to her estate had vowed to continue fighting for her, just in case the
defendant keeps appealing to the highest court of the land
This case also triggered similar cases being filed in the
Native Court. Another homestead by the
bank of Moyog river was also transferred to a brother in law for the purpose of
loan but later on claim the whole piece now belongs to him while a sister in
law only owns the old family home but not the site of the building. The land
belongs to the mother and according the native custom, the inheritance should
pass on to the sisters. The husband of
one sister trying to be the lord of the land irked the Native Court that the
bench told him he was only “tumpang gembira” or enjoying the benefits of his
wife’s inherited land. In chamber mediation, he was told to give just the piece
on which the house is built but refused. In the full hearing, the Native Court
instead decided that the land must be equally divided in half and chided the
man saying there is no such thing as a house without a land.
Court staff also informed that appealing for the sake of
appealing would incur further penalty as they claimed there is a precedence
where the greedy ended up losing all his share of the land.
These land dispute cases show the Native Court will be
more relevant in future since the natives are growing in number while the size
of land is the same or decreasing, hence there will be tendencies even for
close relatives to swindle land from their own family. The court judges had therefore kept reminding
the natives to put into writing any agreement or even small arrangement and be
witnessed by the Village Chief to be recognised by the Court.
The Native Court is expecting similar cases to be filed
as publicising these cases had opened a can of worms.
Relating to land, the Native Court had decided that it is
illegal to sell houses built on native village reserve as the land does not
belong to the house owner but the trustees who are Village Chief, District
Chief and the District Officer. Village reserves are meant for natives who
really have no land to build a home and subject to the approval of the trustees
and conditions as stated in government gazette.
There were two prominent case of matrimonial offences
where both the offending couples were fined a total sogit (customary penalty)
of RM17,000.00 in monetised value setting a record. The offences committed in
both cases were really similar. The wife and lover not only had illicit
intercourse or “mianu-anu” resulting in another baby but the lovers were also
guilty of enticing and taking away another man’s wife. The Native Courts
Enactment 1992/1995 Section 10 for mianu-anu exact a penalty 3 buffaloes while
Section 18 for taking away another man’s wife will incur another 3 buffaloes.
The children from the legal couple must also be given a sogit such as a pig
valued around RM500 and court cost is RM1000.
With the price of one buffalo in Penampang at RM2500 each, the readers
can carry out their own simple arithmetic.
The court ended in the year with an amusing case. Another proposed subdivision of land of about
5 acres amongst eight siblings both male and female ended up in open hearing
but the defendant, an elder brother kept refusing to come to court at least 4
times. The court was at a point of
issuing a warrant of arrest for him to appear in court. On 14th
December, the defendant who was accused of not signing the proposed subdivision
for unknown reasons finally appeared in court. In the dock he was chided for
not respecting the court but was let off after giving several lame excuses. The
court then showed him a copy of the proposed subdivision plan prepared by a
surveyor submitted by his siblings. After examining the plan quietly he then
informed the judges that he agreed with the proposal, thus giving an
anti-climax to the hearing.
The District Chief then reminded the whole family present
to maintain family harmony and with the quick settlement of their case, they
should have the most joyful Christmas party this year.
