NATIVE LAND DISPUTE INVOLVING ADOPTED SONS 26 MAR 2015

PENAMPANG. The Native Court here referred to the Adoption Ordinance 1960 of Sabah which stated that the status of an adopted child is the same as biological children in their decision regarding a land dispute. The views of a former District Officer of Keningau, a lawyer from the State Attorney, a former District Chief of Putatan and a paper by prominent Kadazan lawyer Tan Sri Herman Luping on “Harta Pesaka” (inherited properties) and “Harta Pencarian” (acquired properties) were also studied as basis of their verdict passed in an open court.

 

The dispute centred on a 2.59 acres of Native Title land at Kg Hungab which was heard in chamber since May 2012. Two brothers, both adopted had applied to inherit their late adopted father’s land at the Native Court via the “Jadual 1” form and a one month public notice process. However one uncle had challenged the application arguing that the harta pesaka should be inherited by the biological relatives, also raising the issue that his late brother and wife were separated. The couple had married in church but had no children of their own and no formal divorce was carried out.

 

The adoption papers of the two brothers were properly registered however a written will by their adopted father was only signed by himself  but not properly registered.

 

During the first chamber hearing a proposal to share the land amongst the claimants was submitted to the court with the largest share going to the brothers but smaller lots were given to 6 other relatives. However court records showed another three mediatory hearings failed to get the parties to come to an agreement where an uncle kept coming up with new proposals and arguments.

 

The Native Court led by District Chief Bryan Matasing, Native Chief Andrew S Lidaun and Village Chief Rita John unanimously decided that the original proposal was the best solution to their disputes. The parties were informed that they can appeal the verdict within 60 days to the District Native Court if not satisfied.

 

After the reading of the verdict was completed the court allowed both parties to make their last statement. One of the brothers as plaintiff now disagreed with the verdict because the others have been given a chance, offered a fair share and yet refused even made some defamatory remarks and now they are not willing to share the land. In response the uncle as defendant said every solution came from disputes and every discussion have problems. He is happy with the verdict of the court and hoped the plaintiff will also accept the verdict.

After recording these last statements,  Matasing ended the hearing by advising both parties to think carefully and consider the harmony of their family relations before deciding on their next course of action as this court has made its decision.

CASE OF INDON MAID ABLE TO BUY NATIVE LAND 19 MAR 2015

PENAMPANG. The Native Court here was told that an Indonesian maid was able to buy a quarter share of an NT land whole size about one acre, at Kg Limbanak for around RM23 thousand in 1990 and the transfer of the share was recorded at the Penampang Lands Office. A Court document shows a letter from the National Registration Department dated in 2013 stating that the maid was holding a blue IC beginning with the letter H and stating her race as Indonesian.

One of the four brothers who owned another quarter share of the same land as plaintiff told the court that he was unaware when his eldest brother sold his share to a woman named Darmi Lambirtus and neither does he know her.

He claimed receiving an unexpected summon to appear at the Civil Court at Kota Kinabalu on a date he now cannot remember, from another woman who had bought the quarter share of the said land from Lambirtus, and is now the defendant in this hearing. He said that he had lost the case at the Civil Court and was fined RM7,500 of which he had paid one thousand and the rest he had applied to pay by instalment.

He is now asking the Native Court’s help if the sale of the land to a person whose native status is suspected can be considered valid. During his verbal testimony, the bench ticked him off for coming to court unprepared and answering with “I do not know or cannot remember” on pertinent matters.

His two other brothers whose name still appear on the land title were present in court as observers.

 

In response, the defendant informed the court that the quarter share of the said land she had bought for an undisclosed amount from Lambirtus is yet to be registered in her name because the plaintiff had refused to surrender the original title to the Lands Office. That is why she had summoned him to the civil court and won. She said she works as a teacher and is fully qualified to buy the land being a Sino-Kadazan, born and lived at Kg Limbanak and got her letter of confirmation as native on 10 May 1974 from the Native Court of Penampang.

“When Darmi offered to sell the quarter share of the land, I bought it due to sentimental value. The land is adjacent to my mother’s land and we used to plant vegetables and padi seedlings there with agreement from the late father of the four brothers.” she said mentioning the nickname of the father.

She asked through the court why the plaintiff did not do anything since 1990 and now she is the victim in this matter.

The court decided to subpoena Darmi Lambirtus and asked if the defendant can assist in locating her. She replied she can try since it was a long time since she had met her. It was not mentioned if the brother who initially sold his share would also be summoned.

The panel of judges led by District Chief Bryan Matasing, Native Chief Andrew S Lidaun and Village Chief Michael Bejuet then set the next hearing on 22^nd April 2015.

 

 

DAILY EXPRESS SUNDAY FORUM LETTER: Reflects badly on our native courts

I read with interest in Daily Express the native court case (4th April, 2015) regarding a land case of 19 years in the matter of subdivision of land between two individuals. First, I must admire the appellant in this case for his persistance and patience in pursuing this case for those 19 years before reaching settlement.
  
In the first instance, I wonder how this simple case could drag on for such a long period as it was stated that all the documentation, land surveying for subdivision were valid and approved by the Land and Survey Department. The only argument being that the defendant refused to sign the land offer issued and approved by the Land and Survey Department.    It is quite awful and unacceptable to note that the decisions made by the native court with reasons on judgment given are totally out of context and should be very hard to swallow by the appellant as he seems fully understood that the case shall have settled in the native court via Land and Survey Department’s letter stated that the authority to hear the case is the native court in accordance with Section 40(c) of the Sabah Land Ordinance. To this, I have the same opinion and agree to the points and reasons raised by one writer published in your Sunday Forum not very long ago, most probably month of September 2014 or so, citing unfit native officers appointed due to politics.     To this peculiar land case, it is obvious that the native court officers do not probably possess the required qualification in terms of knowledge and schooling and presumably they have not seen or read the native court enactments and procedures. To this end, their decisions only caused dilemma and hardship to the native people seeking justice in the native courts.     It is quite fortunate to note that the appellant has appealed to district native court for another hearing but how many will follow this type of procedure. I only wish that the Pejabat Hal Ehwal Anak Negeri Sabah can hire more qualified native chiefs and do some recommendation on this issue. One land case can only be solved in 19 years what more if they have 3 or 4 cases? FO

My Comments:

I don't think this forum writer really read or understood the news as written.  Or he purposely exaggerated the problems faced by the appellant at the native court lasted only 2 years, not 19 years.

The 19 years started when he purchased the land and has to undergo subdivision.  The Native court was only referred when one of the three (not two) shareholders refused to sign the subdivision offer.

MR FO,  I bet the appellant asked you to write this letter but please get your facts correct.

CASE OF woman who did not know she will become Wife No. 2

First hearing date: 10. 3. 2015 CASE NO. 56/15

Plaintiff:  Judith of Terawi

First Defendant:  Raphael of Kinarut
Second Defendant: Johanna

Plaintiff open hearing Testimony:

The court asked, what is her purpose to come to court?
To ask the court for decision because her husband had married again, she did not know why and when and only knew through "facebook".

She did not have any documents as proof of her contention but somehow she had submitted a "surat berian" to the court.
Since he married the other woman, he did not come home or contacted me.
For 2 years he never came home or telephone.
We never have any serious problems before this apart from him always not at home.
We don't have any children.

Now I am working in a legal firm in KK and before that I had worked for a hardware shop at Jln Penampang Bypass.

Since then he never gave me any financial maintenance and neither did I ask.

I summoned him because I am still the legal wife to claim my rights as per the Native Adat of Penampang and afterwards seek for a divorce. As for other matters, I leave that to the wisdom of the court.

(Signed her statement as recorded by the bench)

Defendant No. 1:

The court asked the usual question, "did you understand the complaint against you and do you agree or disagree? "

He answered in Kadazan " Kalati om Otopot nakasavo zou vagu"
meaning " I understood and true I have married again"
We are already married for nearly 2 years.

There was a problem with my first wife. She left home of her own accord even before the 100 days after my mother died. She just left taking her personal belongings including clothes, TV and a fan.

Did you tell your first wife your intention to marry again?
How can I when she had already disappeared from home.

Why did you take the short cut and get married without solving your first marriage? 
I did not know or understand the native adat (hmm, a kadazan who does not know his own traditions, he he)

Our first marriage was done at St Michael's Church and the second one at the Native Court Penampang on 1 Jan 2014.

As for my first wife request for a divorce, I will sign the divorce papers now.
But the court said, you must do it at the JPN or Jabatan Pendaftaran Negara where his marriage certificate is recorded in accordance with the processes set out by JPN.

The bench asked, anything else you want to add?

How much would be my fine, I like to have a clue since I am only a driver who makes a living by accepting charters from people who needs transport.


Defendant No. 2 in the witness box.

When asked by the court she confirmed being married to defendant 1 in January 2014 and now have a baby boy whom they named as Randel and is being looked after by parents at Kinarut.

I was already pregnant and only then my husband told me that he is still not formally divorced from first wife. Whatever happens, he said he will take full responsibility.
If I had known he has not settled the divorce yet, I would not have married him yet.

I am a Dusun from Keningau where both my parents are also Dusun.

I am now just a housewife and would like to ask why she waited so long and only after 2 years then summon in court.

The Native Chief from the bench responded by saying, she is sitting infront of you now, just asked her !!

====

After all the statements were signed, the bench which was led by Ketua Daerah Bryan Matasing, KAN Andrew S Lidaun and KK Michael Bejuet set the date for the verdict on 9 April 2015 at 9 am sharp.

Before adjourning the hearing, the KD or District Chief reminded that for any divorce proceeding, the parties must go back to the authority that conducted and registered their marriage and follow the procedures set out by this authority.

If the marriage is registered with JPN, then they must go there to seek for a divorce.

The Native Court can only approve a divorce that was previously conducted at the Native Court.

====================================

To be continued after the verdict.

THE VERDICT WAS passed on 24 April 2015 because on 9 April, the court had to ask extra questions to the defendant because of the complication that he has two different marriage certificate both valid at the same time, from JPN and from Native Court.

------------------------------

PENAMPANG. A man from Kinarut who married again without formally divorcing his first wife paid a customary fine totalling RM 3,000 at the Native Court here. He had claimed ignorance of the native “adat” and assumed that being separated for nearly two years meant they were divorced.

The panel of judges District Chief Bryan Matasing, Native  Chief Andrew S Lidaun and Village Chief Michael Bejuet concurred that he had breach the native customary law of “lapau” (bigamy or polygamy) for which the fine is one buffalo (RM1500) which is payable to the first wife, under Section 20 (1)  of the Native Court Enactment 1992/1995.

He escaped paying further “sogit” to children since there was no child with the first wife.

He and his second wife also have to pay one buffalo (RM1500) as appeasement to the village of the first wife to be administered by the village chief.

According to the facts of the case, the defendant testified that his marital problem started when his wife left their home on her own accord with all her personal belongings including clothes, TV and a fan, less than 100 days after his mother had passed away. He claimed to have contacted her to come home with no avail hence had no objection if his wife initiate the divorce proceedings at the National Registration Department as they have previously married in church. He took the second wife via the Native Court on 10 January 2014.

In passing the verdict, the court has taken into account that the second marriage has already resulted in a baby boy now aged 6 months and the defendant and his first wife have mutually agreed to proceed with their divorce.

However, in accordance with the formality of the court, any of the parties can appeal the verdict to the District Native Court within 60 days or the fines to be paid with 14 days, in default the husband face 3 months jail and the second wife face 1 month jail if the fines were not paid.

When the court asked them for their final say, the man announced he wished to pay the fines after the hearing is concluded. Meanwhile his second wife asked the court if she can sue back the first wife if she continues talking about her or the case, but was rebuked by the judges saying their case is now settled and both parties should now move on happily ever after.

 

Meanwhile for Native Chief Lidaun, despite the passing of his younger brother, his sense of duty still brought him back to the court in the morning after which he rushed home to attend the requiem mass at a chapel in his village of Kobusak, Nosoob.

CASE OF SISTER IN LAW REFUSING TO SIGN NATIVE LAND SUBDIVISION DOCUMENT

Hearing date: 27 January 2015

Plaintiff:  Ian Culey
Defendant:  Tenjain

PENAMPANG. The Native Court here postponed the hearing of a case summoned by a British Expatriate who had lived in Sabah for 50 years with a permanent resident status until he has satisfied his eligibility to appear in the native court.

 

District Chief Bryan Matasing who led the bench with Native Chiefs Andrew S Lidaun and Woritus Paulus informed the plaintiff that the Native Court was established to hear cases from natives only however non-natives must first make a police report followed with an endorsement from the District Officer to enable them to present a case.

 

The expatriate was representing his daughter who is an Anglo-Kadazan currently residing in Kuala Lumpur to claim the share of a land at Kg. Bantayan Inanam belonging to her late mother who passed in 2013 and is a native Kadazan. One of her auntie who has a share in the land refused to sign the subdivision documents for reasons yet to be heard in court.

 

Another obstacle was discovered when the plaintiff assumed that his children would automatically be considered as natives since their mother is a native. However the court explained that the present requirement is for the children of mixed marriages to present a Letter of Confirmation as natives issued by the Native Court after a full hearing. The plaintiff informed that he had a letter of confirmation from the “Majlis Hal Ehwal Anak Negeri Sabah”or MHEANS however the court told him this body is an administrative body and not a Court hence the letter is not valid.

 

The expatriate has three children, one son and two daughters and all of them will be required to apply for the Letter of Confirmation as natives from the Native Court in order for any inheritance of Native Titled land can be processed.

 

After the hearing was adjourned, the expatriate who can now speak fluent Kadazan and Bahasa Malaysia said they have no choice but to comply with all the administrative requirements where all the children will have to be present in person at the Native Court to obtain the Letter of Confirmation as natives.

KG TIMPANGO CASE OF SHOOTING 3 BUFFALOES

First Native Case in Penampang for year 2015
Date 22 January 2015

Plaintiff:  Padan
Defendant:  Jongujis

PENAMPANG. A farmer from Kg. Timpango here, finally agreed to pay RM1000 which is the balance of his fine for shooting three buffaloes last year.

The case was first heard in chamber on 15 May 2014 where the plaintiff who owned the 3 buffaloes had claimed compensation. The defendant had counterclaimed for damages to his crops when the buffaloes had strayed into his land before being shot.

 

After the damaged crops were evaluated, the Native Court had determined the defendant still had RM1000 to pay including RM500 for the peace of the village. However, until yesterday the defendant had yet to pay the balance of the fine prompting the plaintiff to summon him back to court. When asked why, the defendant claimed that the remaining buffaloes owned by the plaintiff were still running wild on his land.

This excuse earned him a rebuke from the bench and he was told not to mix and confuse new issues with the previous decision of the court. He can submit fresh complaints on new issues.

 

When the defendant promised to pay be the “end of next month” the court set February 27 ( Friday) as the settlement date.

 

The panel of native judges was led by District Chief Bryan Matasing together with Native Chiefs Andrew S Lidaun and Woritus Paulus disposed the case within 30 minutes. After both parties have signed their statements, Matasing summed up by reminding both parties on the meaning of “sogit”.

After it is paid, both parties should reconcile since sogit means “to cool down” in the local dialect which help maintain the peace in their village. He also said a gun is called firearm and fire is hot. He hoped that this incident will not happen again and reminded the defendant that even pointing an empty or unloaded gun without reason is a serious offence.

 

Outside the court, one Native Chief explained that domesticated buffaloes should be caught and compounded so the owner can be fined for letting them loose and not shot because farmers are given licence to own a shotgun to protect their crops against dangerous or wild animals only.

Case 332/13 Follow up - Banjar Jailed 6 months for not paying sogit and contempt of court

PENAMPANG. The Native Court here ordered a 25 year old Bajau to be imprisoned for 6 months under Clause 10 (1) (iii b) of the Native Courts Enactment 1992/1995, for failing to pay any of the “sogit” or customary penalty imposed on him since February this year. The imprisonment shall commence from the date of his arrest by the Police.

The panel of judges consisting of District Chief Bryan Matasing, Native Chief Andrew S Lidaun and Village Head Rita John made the unanimous decision from the bench taking into account that the defendant was in contempt of court for purposely not attending the hearing today, Thursday 4th Sept 2014.

 

The plaintiff informed the court that the defendant had arrived earlier outside the courtroom and after offering to hold the baby for a while, he immediately disappeared with the baby and later sent an SMS to the baby’s mother that said, “either you listen to them or to me”. A copy of this SMS was taken by the court as evidence.

 

According to the facts of the case, the 25 year old man who is unemployed but sometimes sells cloths, was fined RM5300 for “mianu-anu”(illicit intercourse) under Clause 10(1) and another RM3000 under Clause 21 (1) for taking away a daughter without the consent of the parents, in a verdict passed by the same court in February. He was also ordered to return the 21 year old girl to her family and the baby from the illicit affair would be raised by her as a single mother.

Instead he managed to blackmail the girl to come back to him without paying any of the fines and honouring any of the promises he had made in the past.

This forced the girl’s mother as plaintiff to return to the court for further actions and assistance.

 

Meanwhile the girl as the co-accused was grateful to her parents for paying to the court her RM700 sogit for “mianu-anu”, otherwise she would face one month jail sentence. She promised before the judges not to go back to the man but to return to her parents, claiming that he had beaten her while they were together. She will also make a police report to get her baby back.

 

In summing up the case, District Chief Matasing gave the girl a long counselling to understand and comply with her own “adat” (native custom) in order to protect herself, and not to hesitate in making a police report if the man threatens her again.

 

Outside the court, the girl’s father informed that the man even made fun of the native adat saying there are no such things in his community. Maybe his race is lawless and have no civilised customs, he added.

BLOGGER NOTE:  This was reported in Daily Express under heading "Offender is jailed 6 months in absentia" on 5th Sept 2014.

However due to paperwork processes and also the brother of the offender came to beg for leniency and time to pay at the native courts, the Bajau was only sent to jail on 6 November at Kepayan.

He would be held for six months while the girl jailed for one month. I wonder who is looking after their kids, but maybe the parent of the girl.