NATIVE COURT: CATECHIST FINED ONE PIG FOR DEFAMING VILLAGE CHIEF

 first draft:  Thur 3 Mar 2016

PENAMPANG. A catechist from a semi-remote village here was ordered to pay a customary fine or “sogit” of one pig or in default RM500.00 for defaming his own village chief.

 

District Chief Bryan Matasing together with Native Chiefs Andrew S Lidaun and Woritus Paulus unanimously found after investigating the complaint that the defendant had breached the native adat Part VI, Section 36 of the Native Court Enactment 1992/1995. They gave their verdict also based on admissions by the defendant himself.

 

According to the facts of the case the catechist had accused the plaintiff via SMS that, he had damaged the villagers’  source of living, had lied to several villagers, had lied to the Park’s Rangers and would soon be arrested.

The defendant also told the plaintiff that whatever said via fast messaging system cannot be stored in the cellphone, a statement he admitted not knowing what that meant !

 

When the village chief called him to his house to discuss his messages, he answered that he is too busy carrying wild boar out of the jungle, which was later found to be untrue.

 

The catechist also told members of the church that he will not bother to attend any native court hearing until the third summon is issued.

 

In his defence, he said he was awarded a small contract from the Sabah Parks clearing the boundary but the plaintiff wants half of it. However he could not reply if the plaintiff had demanded or actually took half of the works.  When he denied making some of the statements, the bench also read all the messages he sent to the plaintiff’s cellphone after confirming the phone numbers.

 

In his concluding remark, the District Chief request that village leaders should work together to unite their people while carrying out their separate duties. He reminded both parties that the payment of “sogit” is a peace making process however any party who is not satisfied with the verdict can appeal to the District Native Court within 60 days. The defendant faced 1 month jail if he refused to pay the fine.

 

 

AT THE HIGH COURT- VERDICT OF LAND SCAM ABUSING THE NAME OF CHIEF JUSTICE OF SABAH AND SARAWAK

 first draft:  wed 2nd Mar 2016

KOTA KINABALU. A senior citizen from Kg Hungab Anthony Lojuta 91, successfully sued for the return of his land in Penampang which he was trying to sell for RM1.65 million. He trusted and handed over the original land title to his nephew when told that the buyer was Tan Sri Richard Malanjum, the present Chief Judge of the High Court of Sabah and Sarawak.

 

He was also requested to put his thumb print on a blank white paper for the purpose of processing the payment into his bank account at Donggongon. In Aug 2013 he went to check his bank account and found only RM50 thousand banked in thus making him initiate actions in suing seven defendants for the return of the said land, after he found at the land office that the said land was already transferred to the 1^st defendant whom he never met before for a sum of RM500,000 of which he never received.

 

After three days of trial on 27 Aug 2015 and 22 to 23 October 2015, reading the counsel’s Submissions and clarifications, High Court Judge Ravinthran N Paramuguru delivered his Draft Judgement in Open Court as follows:

 

1.     The 1^st, 2^nd, 3^rd and 4^th Defendants are liable for having committed fraud against the Plaintiff, which resulted in the transfer of the Plaintiff’s Land NT 2131484760 to the 1^st Defendant ;

 

2.   In addition the 4^th Defendant is liable in negligence against the Plaintiff ;

 

3.   There is no finding of collusion or fraud by the 5^th Defendant with the 1^st, 2^nd, 3^rd or 4^th Defendants, however the 5^th Defendant is found liable in negligence in attesting the thumb-print of the Plaintiff based upon the 3^rd Defendant’s assurance;

 

The judge therefore ordered as follows:

 

 (a)    The transfer of the land NT 213184760 registered under memorial no. 2110015957 dated 23 August, 2014 is declared fraudulent and therefore null and void ;

 

(b)   The 1^st Defendant is ordered to surrender the original title deed to the land NT 213184760 to the Plaintiff’s solicitors, within 2 weeks from the service of the sealed Order ;

 

(c)    The 6^th and 7^th Defendants are ordered to expeditiously transfer back the Land NT 213184760 to the Plaintiff ;

 

(d)   The Plaintiff is to refund to the 1^st Defendant RM50,000.00 which was deposited into his account by the 1^st Defendant, upon the re-transfer of NT 213184760 to the Plaintiff ;

 

(e)    The 1^st and 4^th Defendants are ordered to jointly pay to the Plaintiff costs of RM50,000.00 ;

 

(f)    The 2^nd and 3^rd Defendants are ordered to pay costs of RM5,000.00 each to the Plaintiff ;

 

(g)   And the 5^th , 6^th and 7^th Defendants are to pay costs jointly of RM5,000.00 to the Plaintiff.

 

Counsels Marianne and Dominic Ghani for plaintiff will also filed a non-attendance of the 2^nd and 3^rd defendants who did not file any defence.

 

The defendants in order are Clarence Sipain, Edward John Bruno Lojuta @ Tiwot, Avictus @Ronnie Lojuta, Oswald Sipain (lawyer and brother of Clarence), Ali Hussin bin Taha (former Land Supervisor at Penampang), Assistant Collector Land Revenue Penampang and Lands Survey Department.

Bulagang and Co appeared for 1^st and 4^th defendants, while Asiah Mohd Yusof from State Attorney appeared for 5^th, 6^th and 7^th defendants.

 

Present in court during the verdict was the plaintiff’s daughter Ogina while none of the defendants appeared.

 

 

JUSTICE OF PEACE CHIDED FOR IMPROPER ATTESTATION OF STATUTORY DECLARATION

 first drafted:  Mon 29 Feb 2016

PENAMPANG.  The Native Court here chided a Justice of Peace (member of MAJAP) at Kota Kinabalu for not following proper procedure when attesting a statutory declaration where the signatories did not sign before him. As such the document deemed a fake was submitted to the court by a son for purpose of claiming the bank account and some shares of his late father.

 

The bench consisting of District Chief Bryan Matasing together with Native Chiefs Andrew S Lidaun and Woritus Paulus fined the defendant RM250 or in default one week jail for submitting the fake document.

 

According to the facts of the case, his elder brother filed a complaint against him after knowing that his name was missing from the list of siblings in the statutory declaration thus asking the purpose why he was left out. The younger brother had gone to see an Assistant District Officer who refused to attest the document because the signatories did not sign before him, instead the list of names had purportedly signed the document elsewhere.

 

The defendant then went to Kota Kinabalu to see the Justice of Peace and got the same document signed and stamped. He also told the court he was just trying to assist his mother to claim what is left by his late father, and the plaintiff was one brother who was difficult to locate even at his house.

 

The court also ruled that the mother is the correct person to submit the Jadual 3 form to claim her late husband’s bank account and will assist her in the process.

The defendant paid his fine on the spot after the verdict was announced and court adjourned.

 

Native Chief Vs Catechist on charge of insult and slander

 first drafted Thu 4th Feb 2016

PENAMPANG. Two local community leaders from a semi-remote upland here had their day in the native court where their cellphones were checked as part of the evidence.

 

The village chief as plaintiff alleged that a catechist from the same village had uttered insulting and slanderous accusations against him via SMS as follows:-

 

* On 3 Oct 2015 the message said, the village chief had robbed the villagers of their source of living

 

* that he is a liar who had lied to several villagers

 

* that the village chief has lied to the park rangers and soon he will be arrested by the Parks.

 

*  that any message he sent through the fast messaging system cannot be kept or saved in handphones.

 

The village chief said when he called the catechist to his house to discuss what he means in his messages he answered that he is too busy because his friend Gutuk had called him for assistance to carry some wild boar out of the jungle but later on found out this was not true.

 

On 6 Dec 2015 the catechist was alleged to have informed several people at a church that he would not bother attending any court hearing until the third summon and hence did not attend a hearing set on 7 Dec 2015.  The plaintiff added that as far as he knows the defendant has a certificate as a catechist and one of his activities is to lead prayers in the village. Hence he should be assisting me as the village head in uniting the villagers and not otherwise, he said. He pleaded to the court to take action as per the native adat in the hope that he will not repeat the same offence towards himself or others.

 

In response, the defendant said the incident occurred but denied that the intention was to insult and hence some of the allegations were not true. He informed that this is his first time in court so the judges asked him which of the charges were not true.

 

The defendant informed he had obtained a small contract from the Sabah Parks to clear the boundary of the parks and that is all he has for a source of income but the plaintiff asked for half of the job. So the court queried whether the plaintiff only asked or he demanded or seized half of the job but no clear answer was given.

 

He also denied sending a message that the village chief had lied to the people. Hence the bench started reading the text as received in the handphone of the plaintiff and confirmed the number of the sender as belonging to the defendant.

 

Regarding the statement that anything said via fast messaging system cannot be kept in handphones, both the plaintiff and defendant himself claimed not understanding what that meant !

 

When asked why he ignored the village chief request for a meeting making an excuse about the wild boar, the defendant answered he was only joking.

He also confirmed having a certificate as a catechist with activities including leading prayers and giving religious instructions to the faithful. He admitted saying that he will attend the third summons to court but he denied all the rest of the allegations.

 

After the plaintiff and defendant have signed their statements, the bench comprising of District Chief Bryan Matasing, Native Chiefs Andrew S Lidaun and Woritus Paulus set the date of the verdict on 3 March 2016.

 

 

Brothers in dispute over small sum of money in bank account of late father

 first drafted Mon 1st Feb 2016

PENAMPANG. The native court here told two brothers they should always try to avoid unnecessary disputes amongst family members especially when involving small amount of money. Such cases should not even reach the Native Court, said District Chief Bryan Matasing who was hearing the case together with Native Chiefs Andrew S Lidaun and  Woritus Paulus.
 
The elder brother had filed a complaint claiming that his brother had prepared a statutory declaration which did not include his name amongst the sibling. He claimed the defendant had gone to see an Assistant District Officer (ADO) at Penampang who did not sign the document because his name was not listed. The younger brother then went to see a Justice of Peace at Kota Kinabalu and got the same document signed and stamped. The purpose was to claim the bank account and some shares of their late father who passed last year.
The plaintiff also claimed that the defendant also attached the Last Will (wasiat) of their father and question whether the Will is genuine since as far as he knows Wills are kept by a lawyer or the owner of the Will himself and only announced after the person passed and not kept by the defendant. He also claimed the Will is not signed or attested by any Justice of Peace or District Officer and no records to confirm the Will.
He said he made a police report to question why his younger brother had done this and submitted the report to the District Officer who directed the Native Court to investigate. Lastly he claimed the case was initially heard in chamber in December last year but the defendant did not attend.
He pleaded for the court to take action as per the Native Laws.
 
In his statement of defence, the younger brother refuted that the ADO refused to sign but only asked all the siblings to be present. He claimed that it was difficult to look for his brother even in his house even for the three days he was on leave and that is the reason his name was left out.
He also claimed ignorance of the law requiring all members of the family to be present when signing the statutory declaration before a Commissioner of Oaths, Justice of Peace(JP) or District Officer, for the document to be valid.
He also informed that the JP at Kota Kinabalu only asked him to confirm that the signatures were those of his siblings before he signed as witness to the document.
After this, he had submitted the documents to the District Office for the purpose of withdrawing the money from their late father’s bank account which is around RM800.00.
As for the Will, he said it was not relevant to the issue in this dispute and requested it to be excluded. He also challenged the plaintiff’s allegation he did not turn up in the last hearing claiming he did not receive any letter or notice to appear.
 
As the defendant is working in Sarawak, the court allowed him to propose a suitable date for the verdict.  The court then set the verdict to be on 29 February this year.
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AT THE NATIVE COURT - Landmark decision on Land temporary transferred for loan purposes

 drafted:  Tue Jan 19, 2016

A CASE OF IN LAW WHO IS HITCHING A RIDE ON BENEFITS OF WIFES SHARE OF PROPERTY,  YET CLAIM THE WHOLE OF THE LAND IS NOW HIS....

termed as TUMPANG GEMBIRA by the native court.....

PENAMPANG. The Native Court here set a kind of landmark decision for cases where a relative arrange for a land title to be in his/her name for the purpose of getting a loan, only to claim sole ownership of the land later on.

 

The land dispute case was previously heard in chamber via mediation between Joan Andrew Bai and her brother-in-Law Esi Sylvester Libasa over a piece of land at Kg Tanaki, here where it was admitted by both parties the land is an inherited property from the mother of the defendant Joan.

 

Joan maintained her claim on the part of the land where the family home is built, where she had looked after her mother to the very end. She informed that her elder sister Mary Felicity Andrew had requested her mother through her that the whole piece of land be transferred to her for the purpose of a loan for another house for the sister and husband Esi to live.

After the land was transferred to Mary she then transferred the title to her husband for the purpose of getting a loan, where the memorandum of transfer cited “love and affection” as the cost of the land.

Esi admitted that the defendant had only inherited the house but the whole land now belongs to him.

The mediation on 29 Sept 2015 had ordered that the defendant Joan be given the plot of land where the family home is built but the plaintiff challenged the ruling resulting in a full hearing on 9 December 2015.

 

The panel of judges led by District Chief Bryan Matasing and Native Chiefs Andrew S Lidaun and Woritus Paulus announced yesterday that their verdict is made after a thorough investigations of the documents submitted and statements of facts from both plaintiff and defendant coming to a conclusion without prejudice or favouritism.

 

The court ordered that the result of the mediation shall be maintained, defendant Joan shall inherit the family home but now the inherited land shall be divided equally.

 

The decision was also justified with terse comments on several statements made by the plaintiff as follows:

1. Plaintiff claimed he owned the land with a house. The court said there are now two houses on the NT land and that one cannot own a house without a land.

2. Plaintiff claimed his ownership is valid after being transferred by his wife to him. The court commented that the land was not sold to him but transferred for the purpose of a loan so still a heritage land of the late mother.

3. Plaintiff claimed the Memorandum of Transfer proved his ownership.

The court responded that transfer via “love and affection” is through Section 21 of The Administration of Native and Small Estates Ordinance 1941.

4. Plaintiff claimed that the land was passed down to his wife Mary with the consent of her siblings. The court found the document as invalid because it was incomplete. One of the siblings did not sign and the Statutory Declaration was not signed or attested by anyone.

5. Plaintiff claimed that the land is no longer the property the late mother after her death.

The court countered that under the laws of inherited properties, in-laws are not heirs.

6. Plaintiff claimed the relatives have no more rights to the land and request the court to evict them from the land.

The court rebutted the plaintiff has no rights as he is simply “tumpang gembira” or hitching a ride on the inheritance of his wife, instead he should be thankful to the relatives for their love and affection. He has no rights to evict as that power remains with the Native Court.

7. The last statement of the plaintiff was to return the title to his wife as the loan is already paid.

The court said he should so that the wife and her relative can discuss further on the land.

 

The court concluded that any party who is not satisfied with the verdict can appeal within 60 days to the District Native Court. However District Chief Matasing reminded that after the verdict the parties should reconcile to bring back peace to the family.

 

He strongly recommended that if there are family arrangements especially regarding land matters, all verbal agreement should now be put in writing to maintain the family harmony in future.

 

 

AT THE NATIVE COURT OF APPEAL KOTA KINABALU = First case, the native dowry still not paid even after the couple already divorced.

 drafted Fri January 15, 2016

• KOTA KINABALU. The Native Court of Appeal here rejected the plea by a man identified in court only as Ramli who was appealing the decision of both the Native Court and District Native Court of Keningau.  He was ordered by the lower courts to pay the dowry and wedding expense totalling RM13,000 for his son’s wedding to the daughter of Philip, the respondent.

   

  Ramli was pleading to have the amount reduced because according to him many problems had crop up.  The girl was married before and now she is married to another person after she and his son were divorced. As for the non-appearance of the son in the hearing, Ramli said he is currently studying in Kuala Lumpur and he is representing himself and his son. Both the appellant and respondent chose to present their cases without the service of Native Court lawyers.

   

  However, Chief Judge Tan Sri Richard Malanjum presiding together with District Chief William Majimbon (Kota Kinabalu) and Native Chief Cyril Jalong (Keningau) affirmed the views of the Native Court that what happened before and after the time that the couple were married were irrelevant to the case.

   

  The judge also said all the papers were in order and the agreement signed by all parties and the birth certificate of the first child is surnamed after the appellant’s son. He therefore rebuked the appellant saying that the customary “adat” and “berian” shall be taken seriously emphasizing that a daughter is not a vehicle that one can just take out for a test drive.

   

  When the appellant started pleading about his affordability to pay, the court gave him 6 months time to pay even in instalment which was agreed by the respondent. However if Ramli failed and Philip again submit a complaint to the court, the appellant and his son face three months jail time.

   

  The judge concluded the case by advising both families to reconcile and even suggested they share a taxi home.

   

  Meanwhile there were three other cases but were postponed due to different reasons.

  In the first case, the appellant’s lawyer requested time to study the court documents which she claimed only having received around noon when the hearing was set at 2:30 in the afternoon.

  This earned the displeasure of the judge who directed the court officers to create a simple procedure or SOP where the appellant counsel shall prepare the court docket and serve it on the other party well before the hearing date. He added that the time of the judges as well as the parties who came all the way from Tamparuli should not have been wasted.

   

  In the second case, the respondent failed to appear hence the judge again queried the court staff if the summons have been properly served.

   

  The last case involved a District Chief who was submitting an issue which court can hear an appeal regarding the validity of a Native Certificate. Apparently the appeal has been heard in civil court which decided the Native Court is the authority to hear the appeal.

  The judge postponed the case to March this year to give time for all the counsels to study the issue, including the counsel from the State Attorney.