KOTA KINABALU. case from Penampang : Azulu Vs Mojingol land dispute

 DRAFT:  FRI  7 AUG 2015

KOTA KINABALU. A 53 year old Kadazan from Penampang lost his final appeal at the Native Court of Appeal at Kota Kinabalu on Thursday before presiding judge Datuk Douglas Primus Sikayun, Native Chief Woritus Paulus (Penampang) and District Chief William Majimbun (Kota Kinabalu).

 

Clarence Sipain @ Clarence Mojingol was appealing against the decisions of both the Penampang Native Court and the District Native Court of Appeal, that declared the 0.76 acre of land at Kg Nambazan belongs to Sipain and a relative Villette @ Mathilda Azulu.

 

During a hearing on 9 July the appellant applied for postponement while seeking a lawyer as the reason, however the judge advised him two focus only on two issues for his appeal to succeed.

 

In the final hearing, the appellant contended that the first witness village head of Kg Ramayah was not appointed yet as the head when the transfer of the land title was done in 1964 therefore his testimony cannot be relied. Also cited was a conflict of interest as the father of the appellant had married the sister of the village chief as his second wife. To this the learned judge retorted, “What’s wrong with marrying two?”.

 

The second issue was on the proposed subdivision of the land where Lot 1 was supposed to given to Sipain while Lot 2 was supposed to be returned to the family of Azulu. The appellant contended that the proposal does not prove the land belongs to the Azulu family because it is subjected to survey and whether the parties wish to continue with the subdivision. Another adjacent land was implicated into the matter by the appellant whereas records from the Native Court has deemed it as irrelevant. As the subdivision was not completed it was implied the land now totally belongs to the appellant.

 

The counsel of the appellant also submitted that the high court had decided in favour of the appellant in an eviction order for two people currently occupying lot two of the same land,  reversing another earlier verdict by a session court. To this the judge asked if the ruling was correct in view of the decision of the Native Court. When the counsel was unsure, the judge said if there is an earlier ruling by the Native Court that a land belongs to so and so, the civil or high court has no business challenging that decision.

 

When the respondent stood up ready to present the rebuttal, the court told her it was not necessary and proceeded to announce their unanimous verdict rejecting the appeal.

 

Counsel Wendy Lee appeared for the appellant while the respondent Azulu chose to represent herself.

 

The appellant now faces the consequences since he had sold the land on 5 September 2014 before the decision of the District Court of Appeal on 20 October 2014 without the knowledge of co-owner. After Azulu had made a police report in November 2014,  Sipain had appeared before a magistrate court in January this year charged with selling the land without permission of co-owner where a Chinese buyer had already paid RM240,000 as advance payment. He is currently on bail of RM4000 while waiting for the ownership issue to be finally settled in the Native Court of Appeal.

 

Photo:  Villette @ Mathila, cousin Angeline (3^rd left) and two aunties outside the court after the verdict.