Warrant of Arrest for Defendant who failed to appear in court three times.

 FIRST DRAFTED THU, 4 JUN 2015

PENAMPANG. The Native Court here will issue a warrant of arrest of a self employed from Kg Bidangbidang Babagon for failing to appear in court after being summoned three times.

 

District Chief Bryan Matasing, leading the panel of judges said in court that this will be done if the defendant has no reasonable excuse for his absence which is deemed contempt of court.

 

Court document shows that a third summon had been delivered through the village chief and the defendant had signed acknowledging receipt.

 

According to the plaintiff, the man from Kg Bidangbidang had allegedly sold him a plot of land of which he was paid RM6000. However no such plot existed and he refunded only RM1500.

Hence the plaintiff came to court seeking for the refund of the remaining sum owed to him.

 

The hearing was then adjourned to a later date after the missing defendant has been dealt with.

CASE of girl marrying at JHEAINS without the fathers knowledge

 FIRST DRAFTED ON TUE, 26 MAY 2015

PENAMPANG. A father from Kg Togop here, testified before the Native Court that a man and his family from Menumbok have failed to honour the terms of the engagement between the man and his daughter.

 

However, he failed to remember the dates of the meetings between the two families to discuss the marriage proposal except 27 September 2014 as shown in the engagement form which was signed by both parties and witnesses. However the local village chief did not sign and certify the form because the potential fiancé and family were not ready as they came empty handed.

 

He claimed that the man has agreed to the dowry of RM1500, one buffalo and RM10,000 for the wedding celebration cost but sometimes afterwards came back with only RM 1500 which he did not accept on the advice of his village chief.

 

He had given them reminders of their promises but came back with many excuses. He made a police report on 11 March 2015 when the daughter came home and was already pregnant as a result of the couple staying together at Putatan.

 

He alleged that the couple had got married at JHEAINS (Sabah Islamic Affairs Department) and changed the daughter’s religion without his knowledge.

 

The plaintiff summed up by telling the court that he has no objection of their marriage at the JHEAINS as long as the traditional adat of the Kadazan is respected beforehand.

 

When the man as first defendant took his turn to make a statement, he agreed with the plaintiff except his allegation that he had converted his daughter. He declared that she became a muslim by choice on 10 Aug 2010 long before their liaison.

 

He refuted suggestion that he had married the girl at JHEAINS to avoid the native adat but did so to avoid having an illicit relationship at the same time he cannot afford the cost as stated in the form. He did not mention his present job.

 

He countered the plaintiff’s allegation that during the first meeting he was told to initiate the engagement, while the second meeting was supposed to be the engagement but the village head was not present.

Their “sijil nikah”(marriage certificate) was dated 19 Jan 2015 and the bride’s younger sister named as Sharon was inform to tell the father about the “nikah”, a fact he admitted as improper.

He confirmed that the girl is pregnant as a result of their marriage.

 

When asked by the court, he claimed that his family has come to negotiate on the wedding cost but the girl’s family were angry after drinking and getting drunk.

 

When the daughter entered the witness box for her statement, she surprised the court by declaring that she converted in 2010 when she married her first husband but are officially divorced before marrying again. Her present husband was also married before but also divorced. Both of them produced copies of divorce certificates from JHEAINS. She however confirmed that her latest “nikah” was done without the knowledge of her father.

 

When asked whether it was an offence to stay together without a proper marriage, she answered yes under the adat but not in Islam. When asked to confirmed she changed her statement that it is wrong both under the adat and also in Islam.

She also stated that during a meeting to discuss the dowries, she was at work and got a message through her phone that the suitor’s family were detained at her father’s house.

Her mother-in-law was allowed by the court to clarify on her statement but she confirmed that the so-called detention was not by force nor had criminal intent.

Hence the court exempted her from being subpoena as a witness to testify on the detention.

 

After all the statements were signed, the panel of judges led by District Chief Bryan Matasing together with Native Chief Andrew S Lidaun and Village Chief Rita John set the date of verdict on 23 June 2015.

TARDINESS BY DEFENDANTS AT NATIVE COURT PENAMPANG.

 First drafted Thu. 30 April 2015

 

 

PENAMPANG. The native court here led by District Chief Bryan Matasing postponed the hearing to 26 May 2015 because after the third call at 9:30 am the two defendants have failed to appear.

The case was filed by a man from Kg Divato Ramaya whose daughter has married her lover without going through their own native “adat”. He informed the court that he himself delivered the court summon to her daughter’s husband but did not manage to meet him and get his signature but handed the letter to his sister. Hence the court deemed the summons have not been properly served.

 

However, after the hearing was adjourned and the judges have left the courtroom, both defendants appeared outside the courtroom at 9:50 am with reasons for their tardiness unknown.

 

Another case in the previous day was also postponed due to the defendant writing to the court claiming of being sick.

CASE OF MAN who thought being separated means already divorced.

 Drafted Fri: 24th April 2015

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.

18 YEARS UNABLE TO USE NATIVE LAND 2 APRIL 2015

TUARAN.  The District Native Court here ended a retiree’s 18 years dilemma of being unable to use his one-third share of an NT land he bought in 1996 at Kg Tambalang, because one of the co-owners refused to sign the subdivision offer from the Lands and Survey Department. The appellant who wished to be identified as David Leo was unable to enter his plot via the access road as proposed in the subdivision.

The District Officer A.M. Ibnu Hj. A.K. Baba who led the panel with two other Native Chiefs found that all the documentations including land surveying for subdivision were valid and were already approved by the Lands Department. The court therefore ordered the respondent to comply with the subdivision.

During the hearing, respondent Mr Pangandai, also a retiree said he agreed with the subdivision and the provision of an open space but disagreed with the location of the access road because he was not part of the earlier agreement including the surveying of the land. However the court found this court statement as contradictory to his earlier written statement and gave him a chance to withdraw which he did.

Another reason he gave was that lots of fruit trees are found along the proposed access road and requested for alternative however the court also rejected this as there is no alternative access road available.

The bench also said only common vehicles would be entering the land and not armoured trucks.

The respondent then said because of the access road and the fruit trees he will be willing to go to any other courts.

The panel of judges then inform that their decision here is final however if the respondent is not satisfied, he can find a lawyer and then appeal at the Native Court of Appeal at Kota Kinabalu within 60 days during which the appellant will have to wait before he can take further action.

The case was decided within 20 minutes overriding  an earlier decision by the Native Court here with a panel of three native chiefs on 10 January 2013 which amongst others decided that: -

a) The case should be referred to the civil court

b) The case is not under their jurisdiction because no customary laws were involved

c)  The dispute should be settled via mutual consent.

 

Leo’s predicament begun on 9^th Sept 1996 when he bought the one-third share of the 3 acre land from one of the shareholders and proceeded to have the land subdivided under Section 40(3) of Land Ordinance Sub 68, with the agreement of the others. The cost of the surveying for the subdivision was shared by all the owners and by 21 Jan 1999, the Lands and Survey Department have issued them an approval.  Meanwhile one of the shareholders died and the property was claimed by her son Mr Pangandai. In November 2011 the Lands office at Tuaran invited all the shareholders of the land to sign the offer letter of subdivision but one refused to sign.

After receiving the verdict from the Native Court in 2013, Leo went to the Civil Court registrar only to be told that his case should be heard by the Native Court.  He also received a letter from the Lands and Survey Department dated 6 May 2013 saying that the authority to hear this case is the Native Court in accordance with Section 40(3) of the Sabah Land Ordinance thus starting the run-around.

Leo expressed relief that the District Officer of Tuaran has finally ended his merry-go-round quandary but still have to wait another 60 days for the final solution while contemplating how to recover his losses over the years.

 

 

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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.