draft: Tue 13 Dec 2016
KOTA KINABALU. In a landmark case yesterday, the High
Court here dismissed a judicial review application against the Native Court
with regards to a native land dispute originating from Penampang.
Judge Ravinthran Paramaguru in his decision held that the
judicial review action sought by Clarence Sipain Mojingol should be dismissed on
two issues in his open court judgement;
·
The Native Court as first respondent has acted
well within its jurisdiction hence no reason for the judicial review
·
The second respondent who was the plaintiff at
the Native Court Villette@Mathilda Azulu had made a proper application within
the court process.
Sadly Villette was only represented by her sister in law
during the verdict as she has passed away on 4th May and her only brother
as sole heir to her properties, had decided to continue her case.
Close relatives and friends are sure her multi appearance
in court after two appeals in native court, one eviction hearing at session
court and the judicial review had taken a toll on her health even though she
had effectively won in five out of six hearings.
The court hearings began in 2013. A relative Celestina Gilong who had built a
house on lot 2 of a land in Ramaya Penampang was suddenly given an eviction
notice even though she had been staying there for 20 years with full permission
of the owner. Villette and another
cousin were to inherit Lot 2 while lot 1 was given free of charge to a cousin
Stephen Sipain in return for processing the subdivision of the land. However
the cousin had been holding the land title all these while as he needed the
whole title for a housing loan.
The name in the land title was changed to Stephen for the
purpose of the loan and lot 2 was supposed to be returned after subdivision. All agreements were verbal based on family
trust as per native customs years ago. When the parents of Villette died,
Stephen transferred the land to his son Clarence and applied for a new title so
names of former owners are no longer seen.
On realising what had happened to the land, Villette
filed a summon at the Native Court with Clarence Mojingol as defendant and the
hearing begun in September 2013. On 15
Nov 2013 the Native Court decided in her favour ruling that Lot 1 belongs to
Clarence while Lot 2 shall be returned to the rightful owners.
The defendant filed an appeal to the District Native
Court presided by the District Officer.
While waiting for the verdict of this court in 2014, the defendant has
already sold the land to a third party and was able to remove the caveat put on
the land title. Later the District Native Court decision was made affirming the
decision of the Native Court.
The defendant then filed an appeal to the Native Court of
Appeal at Kota Kinabalu. Villette
presented her own case without a lawyer and in August 2015, the Native Court of
Appeal dismissed the appeal without requiring any rebuttal from Villette. Hence she thought it was all over only to be
given a notice of Judicial Review as second respondent. This was followed with more trips to KK High
Court until she passed unexpectedly in May.
Meanwhile from 2014 onwards she became good friends with
Ms Ogina who was also fighting for her father’s land against the same group of
adversaries and hence both ladies frequently appeared in court together.
Ogina and her father also won their case.
In July this year while waiting for the Judicial Review
to be settled, the lawyers acting for Clarence attempted to evict Celestina
from Lot 2 across the main road by sending a court bailiff and a house moving
truck. Her son refused to entertained them saying he is waiting for a reporter
before giving any answers. The eviction team went away leaving just the
eviction notice from a different session court hearing.
After the dismissal of this Judicial Review, Villettes
family are waiting another two weeks if they have to continue fighting up to
the Courts of Appeal. Meanwhile the “new
owner” of lot 2 has already started building workers quarters on the land that
for years have not been returned to the rightful owners.
Counsels Richard Vitales appeared for Villette, Gilbert Bulagang for Review Applicant and State Attorney for Native Court.
Photo 1: Late
Villette and Ogina outside the KK High Court in October 2015
Photo 2: Lot 2 on left and Lot 1 (right) of the land at
Ramaya.
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