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| 1 | Abang Ali bin Abang Haji Anis v. Datu Patinggi Abang Haji Abdillah | SUPREME COURT
In Re Estate of Datu Bandar Abang Haji Mohamed Kassim :
ABANG ALI BIN ABANG HAJI ANIS
versus
DATU PATINGGI ABANG HAJI ABDILLAH
Mohammedan law—Wakaf—Removal of mutawali.
The Datu Bandar Abang Haji Mohamed Kassim died on 18th July, 1921, and probate of his will was granted on 28th December, 1921. Certain property was declared to be wakaf and certain arrangements were made among the beneficiaries as to which property should be so treated. This action was brought on behalf of five beneficiaries of the estate who were not satisfied with the administration of the estate by the Datu Patinggi, who was the executor. Held:
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| (1) That where property is wakaf the Court may remove a mutawali for misconduct or may accept his resignation. | | | (2) That in appointing a new mutawali the Court must have regard to the founder’s expressed wishes and ceteris paribus will prefer a member of the founder’s family. | | | (3) That Order No. A-3 (Ancestral Worship). 1930, has no application to Malay estates. |
BEFORE THE CHIEF JUSTICE.
The appellant in person.
Abang Bisunei for the respondent
2nd September, 1946
The following judgment was delivered.
HEDGES, C.J.: This is an appeal against a decision of the Resident’s Court Magistrate (Mr. K.H. Digby). The Appellant represents five beneficiaries of the estate of the late Datu Bandar Abang Haji Mohamed Kassim. The Respondent, the Datu Patinggi Abang Haji Abdillah, is the executor and trustee of the estate.
The late Datu Bandar died on 18th July, 1921, and Probate was granted on 28th December, 1921. The will declares that certain property is to be wakaf, but the construction of the will on this point is by no means easy. There is evidence, however both oral and documentary, that the beneficiaries came to certain arrangements among themselves as to which property should be treated as wakaf. Having read the parties, I am satisfied that there was sufficient evidence to warrant the finding by the learned Magistrate that the property now in dispute is wakaf and must be so treated. I am also bound to agree with the learned Magistrate that “the Datu Patinggi has administered the property in dispute in such a manner that he has forfeited the confidence of his relatives, the Plaintiffs, and that the time has come for new arrangements to be made.”
Unfortunately we have no statute in the Colony, such as the Waqf Commissioners Ordinance of Kenya, providing for cases of this kind, and it is necessary to fall back on general principles of Mohammedan Law. The Court may remove a mutawali for misconduct (even the founder himself), but apparently for no other reason. The Court may also, after the founder’s death, accept the resignation of a mutawali and appoint a new one. In this case the Datu Patinggi is prepared to retire in favour of others. In appointing new trustees the Court must have regard to the founder’s expressed wishes, and ceteris paribus will prefer a member of the founder’s family, but had been said that these preferences are to be interpreted in the spirit rather than the letter. The judgment of the learned Magistrate, in my view, does no violence to any principle of Mohammedan Law, and the appeal must fail.
At the hearing before me it was contended by the appellant that any continuation of the process of tying up the estate in question is contrary to the provisions of Order No. A-3 (Ancestral Worship) 1930. I said then, and I repeat in my judgment, that I am unable to accept this contention. Section 2 of that Order provides that no per may-- | | dispose of any property which, or the income from which, is to be used to perform the religious rites of ancestral worship in such manner that the said rites shall be performed for any longer period than twenty-one years from the date the disposition takes effect, or, if by will, from the date of death of the testator. |
This Order applies to a community such as the Chinese where ancestral worship is practised, but it has no application to the Malay community. Indeed it has been said that it is of the essence of a wakaf to be a perpetuity.
Appeal dismissed. Decision of the
Resident’s Court, Kuching, upheld. | | | 2 | Abang bin Sebeli v. Wakil T.K. Hj. Anis | IN THE NATIVE COURT OF APPEAL | ABANG BIN SEBELI | … | … | … | … | … | Appellant | | versus | | | | | | | | WAKIL T.K. HJ. ANIS | … | … | … | … | ... | Respondent
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In the Native Court of Appeal at Kuching before Williams, J. (President), Tuan Haji Yusuf Shibli and Abang Haji Kiprawi.
Native Court Criminal Appeal No. 1 of 1966.
Date of Judgment: 3rd March, 1967.
Illicit sexual intercourse-Relationship of parties-Denial by parties-Subsequent change of evidence by one party-Change of native officers during trial due to transfer-Order of retrial-Effect-Exceptional circumstances-Sarawak Malay Court Ordinance, Section 50(2)-Criminal Procedure Code, Sections 180 and 206-Evidence Ordinance, Section 1(2).
Appellant and his sister-in-law, Respondent, were jointly charged for having illicit sexual intercourse. Both denied the charge. Subsequently, Respondent changed her story and alleged that Appellant was the father of her child. During the course of the trial one officer who was an Assessor went on transfer and was substituted by another Native Officer. By a majority the District Native Court convicted the Appellant. On appeal the Resident's Native Court considered the change of Assessors to constitute a defect of procedure resulting in the trial being regarded as null and void. A retrial was ordered. Appellant appealed. A case stated was drawn up. In quashing the conviction the Native Court considered that there should be no retrial. It was held:·-
| (1) That the presiding magistrate is the adjudicating body, the others being merely advisors on finding of fact and law.
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| (2) That the mere change of the Court might well affect the propriety of the verdict but would not necessarily vitiate the whole proceedings.
| | (3) That Native Courts are more inquisitorial than accusatorial. |
| (4) That counsel appearing before Native Courts have to be more careful than usual in the presentation of their cases as they are dealing with different system of law.
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| (5) That the Evidence Ordinance applies to Native Courts presided by magistrates by virtue of their office. |
| | Mr. T.O. Thomas for Appellant.
| | | Mr. C.J. Millar for Respondent.
| | | WILLIAMS, J. delivered the judgment of the Court:- |
This case was originally heard before the District Native Court on the 8th June, 1965. The Appellant, Abang bin Sebeli, and one, Siti binti Awang Salleh, were charged with the following offence namely;
| "That you, Abang bin Sebeli and Siti binti Awang Salleh, today sued by Government, that you, Abang bin Sebeli, was found to have committed Illicit Sexual Intercourse with your sister-in-law, Siti binti Awang Salleh, and for this reason you had committed an offence punishable under section 50(2) of the Sarawak Malay Court Ordinance." |
To this charge both pleaded not guilty. The trial proceeded and six witnesses were called for the prosecution.
Both accused gave evidence at the conclusion of which they were told to submit to a blood test. After a delay of some nine months the trial was resumed. Perhaps not surprisingly one of the original persons comprising the Court, Tuanku Mahadzar, a Native Officer, had been posted elsewhere. His place was taken by another Native Officer, Abang Haji Mohamad Taufek.
The result of the blood test was submitted to the Court, how it is not clear; it was neutral. At this stage, however, Siti changed her story and said that she had not had intercourse with soldiers as previously stated but that the Appellant was the father of her child. The Appellant continued, as he had done throughout the trial, to deny that he had had intercourse with Siti, his sister-in-law.
In the event one Assessor expressed the view that Siti was an unreliable witness and that no conviction could be founded on her evidence. Another Assessor and the Native Officer expressed the view that the Appellant was guilty.
The magistrate agreed with the majority view and whilst acknowledging that there had been much hearsay evidence. accepted Siti's allegation against the Appellant as conclusive.
In the event the Appellant was sentenced to one year's imprisonment.
The Appellant then through his counsel, Me Thomas, filed four grounds of appeal in the Resident's Native Court. Those grounds read as follows:-
| | (1) Miscarriage of justice. |
| (2) There was no evidence at all against the Appellant except the uncorroborated and inconsistent evidence of the second accused. |
| (3) The evidence of the second accused that she was having sexual intercourse with soldiers (even five times one night with two soldiers, one after the other non-stop) and never with the Appellant should have been accepted | | (4) The Appellant should not have been convicted on the uncorroborated evidence of a self-confessed liar-the second accused. |
| That trial was a nullity in that the court that convicted the Appellant was different from the court that tried him. |
Having heard Mr. Thomas elaborate briefly on the grounds of appeal the Resident considered that the change of Assessors had constituted a defect of procedure or breach of substantial justice and declared the trial null and void. He ordered are-trial.
The Appellant then appealed by way of case stated to this Court.
The substantive reasons for his actions were set out by the Resident as follows:-
| "That first four grounds were not considered by the Court since I formed the opinion that the last ground was sufficient for me to order a re-trial of the case. I did not consider that the irregularity warranted the quashing of the conviction since section 7(4) of the Native Courts Ordinance specifically allows Native Courts to ignore technical breaches in procedure. Since the new trial will be before an entirely new magistrate and new assessors I do not consider that the accused will be unduly prejudiced by the previous trial." |
The end result of this is that whilst this Court was satisfied that there was something wrong with the trial it was not too clear as to the point of law upon which it was to express an opinion.
Clearly the appeal had been allowed by the Resident's Native Court on a ground submitted by the Appellant. Mr. Thomas however was not able to satisfy this Court whether he had put the ground forward as one of real merit or not or even whether he had argued it or not. The position remained confused.
This Court, with Mr. Thomas's agreement, ultimately formed the opinion that the point of law was whether in the circumstances the Resident's Native Court was correct in finding that the trial was a nullity, and if not, what was to be done in the event.
Mr. Thomas felt himself able-in the overall interest of justice to argue that the Court below was wrong; and in the same spirit this Court allowed him to do so. Mr. Millar, who appeared on behalf of the State Attorney-General supported this view.
The question is not an easy one. It bristles with difficulties. In the first instance are the assessors on a par with the presiding magistrate as are the members of this Court with the presiding Judge. Again to what extent if at all is the presiding magistrate bound by the findings of the assessors or a majority of them and is the Native Officer an Assessor.
This Court has come to the conclusion that the presiding magistrate is the adjudicating body, the others being merely advisers on findings of fact and law. It has come to this conclusion for the following reasons (i) the assessors are appointed by the presiding officer, in this instance a magistrate of the First Class; (ii) the set-up of the court on a basis of equality could lead to a deadlock; there is no provision for a majority finding with if necessary a casting vote, and (iii) those constituting the court are not referred to as members as are the members of this Court.
This we think is material to this case as it goes to the question of Nullity.
The use of the word 'nullity' is perhaps unfortunate but as generally used, and as we are satisfied it was used here, it means that there was no trial at all, e.g., where a criminal prosecution is launched without the necessary approval of the Public Prosecutor. Here that situation does not arise the Court was properly constituted and a change was properly before it. The mere change in the constitution of the Court might therefore well affect the propriety of the verdict but would not necessarily vitiate the whole proceedings. On this point Mr. Thomas drew the attention of this Court to the provisions of the Criminal Procedure Code. The relevant section of that code are section 180 which provides for a Judge to continue hearing a case with remaining assessors, and section 206, which provides for the continuation of a trial after the change of a magistrate. It is true that the Criminal Procedure Code does not apply to proceeding in a Native Court but it is a code founded upon high principles of justice and to that extent haspersuasive power. This Court however hastens to add that as the Native Court are more 'inquisitorial' than 'accusatorial' in nature the point cannot be pursued too far. Be that as it may and whilst this Court has every sympathy with the Resident who presided over the Resident's native Court it must come to the conclusion that his finding was wrong in law.
This Court is only too conscious that what it in truth has been done is to allow a successful Appellant to appeal against the very success of his appeal. The circumstances here are however exceptional. The Court would however caution counsel who appear before Native Courts to be more careful than usual in the presentation of their cases. What they say can carry a weight greater that it otherwise might or perhaps, in view of the very different system law which is being administered from that in which they were trained, greater than it should.
The question now arises as to what is to be done in the event Mr. Thomas argued that no court could have convicted on the evidence before the District Native Court in this instance. He pointed out to the many inconsistencies in Siti's evidence and to the lack of corroboration. Mr. Millar too, in accordance with the usual high principle of his department, argued eloquently to the same effect, even pointing out that in view of the wording of section 50(2) of the Sarawak Malay Court Ordinance Siti should not have been an accused at all and therefore that much of the evidence that was admitted against her would have been inadmissible in any event. It is true that the trial magistrate was aware of the danger of hearsay evidence but in the way the trial was run there is no guarantee that either he and most certainly not the assessors grasped this point. It is perhaps relevant here to mention that by virtue of section 1 (2) of the Evidence Ordinance the provisions of that Ordinance apply to Native Courts presided over by magistrates by virtue of their office. This Court does not wish to comment upon the difficulties that this may cause particularly as there appears to be no one responsible for marshalling and presenting evidence for the consideration of such a court. But in view of the penalties that such courts can inflict. as in this case. there is some merit therein.
In the event and especially having regard to the long delay in the hearing of the case this Court orders that the conviction be quashed. There is to be no re-trial.
| | | 3 | Abang Haji Zaini v. Abang Haji Abdulrahim | SUPREME COURT
_______
ABANG HAJI ZAINI
versus
ABANG HAJI ABDULRAHIM (Probate Officer for Native Estates)
&
ABANG HAJI JAYA
Mohammedan Wills Ordinance—Construction—Mohammedan law of inheritance—Bequests to an heir.
The facts of this case appear in the judgment.
Held:
| (1) That a will executed by a Mohammedan in accordance with English law and disposing of property in accordance with the Mohammedan law of inheritance is valid.
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| (2) That the phrase “Mohammedan law of inheritance” in the Mohammedan Wills Ordinance means Mohammedan law as adopted in the Colony and as modified by native customary law and by the provisions of local Ordinances.
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| (3) That a bequest to an heir may be valid if the heirs consent to it and, semble, the time when such consent is give is immaterial.
| | (4) Quaere, whether a Mohammedan who executes a will according to English law may depart in its terms from the Mohammedan law of inheritance, and if so to what extent. |
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| Cases referred to:-
| | (1) Sheripah Unei (f) & Sheripah Ta’Siah (f) v. Mas Poeti & T. St. John Dilks (Probate Officer). (1949) S/C/R/ 5, distinguished. | | (2) Siti binti Yatim v. Mohamed Nor Bin (1928) F.M.S.L.R. 135, followed. |
BEFORE THE HONOURABLE MR. JUSTICE R.Y. HEDGES, C.J.
(Assessor The Honourable the Datu Bandar).
Aikwan Zaini for the Appellant.
The Respondents in person.
Mr. D.C. White, Secretary for Native Affairs as amicus curiae.
15th October, 1951
The following judgment was delivered:
HEDGES, C..J.: This is an appeal against the judgment of the First Circuit Court, holden at Kuching on 21st August, 1951, dismissing an action in which it was sought to obtain an order setting aside a grant of probate in respect of the will of the late Haji Hassim bin Haji Arif, Datu Bentara of Sarawak.
The will was attacked on two grounds: (a) that it was not executed in accordance with the provisions of the Mohammedan Wills Ordinance (Chapter 81), and (b) that it purported to devise property otherwise than in accordance with Mohammedan law.
The Mohammedan Wills Ordinance was enacted by the Rajah in 1896. It provides in a schedule a form of will which may be used by persons of the Mohammedan religion. By section 3 the use of the form of will prescribed-which requires three witnesses, two of them being Native Chiefs of the Mohammedan religion and one a senior Government Officer-is made optional; and persons who prefer to draw up wills before other witnesses according to the Mohammedan law of inheritance are permitted to do so and such wills may be recognized as legal and valid. Section 6 provides as follows:--
| "The drawing up and division of property shall not necessarily be regulated by the Mohammedan law of inheritance, but shall be in accordance with the desire and wishes of the testator:
| | Provided that the three witnesses shall, in the event of the testator willing all his property away to others than those of his own family, advise such alteration being made with the consent of such testator as they think fair for the children, wife or wives, concubine or concubines, and that should the testator refuse to give his consent to such alteration, such will may be refused." |
In both sections 3 and 6 the phrase "Mohammedan law of inheritance" is used. This can only mean Mohammedan law as adopted in the Colony of Sarawak , and as modified by native customary law and by the provisions of local Ordinances. Statutory modifications are to be found not only in the Mohammedan Wills Ordinance, but also in the Adoption Ordinance (Chapter 76) which expressly acknowledges in section 4(5) that its provisions are not in accordance with Hukum Shara.
The learned Circuit Judge did not consider it necessary to inquire into the question whether or not the will devised property otherwise than in accordance with the Mohammedan law of inheritance, taking the view that he was bound by the Supreme Court judgment in the case of Sheripah Unei (f) & Sheripah Ta'Siah (f) v. Mas Poeti & T. St. John Dilks (Probate Officer)(1). That case was concerned mainly with adoption and the passage which refers to the will does little more than summarize the provisions of the Mohammedan Wills Ordinance. The will in that case was executed in accordance with English law and not in accordance with the provisions of the Ordinance. In that respect the present case and the case reported are similar, but they are distinguishable, in that in the reported. case the will did not purport to leave property otherwise than in' accordance with the Mohammedan law of inheritance, as defined above, whilst in this case it is alleged that the will does purport to do so. If the passage in the judgment in Sheripah's case(1) which quotes section 6 of the Ordinance, without further explananation, is understood to suggest that there is no distinction in law between the two classes of cases, then the observation is at most obiter dictum.
I am of opinion that the question whether a Mohammedan who executes a will according to English law may depart in its terms from the Mohammedan law of inheritance, and if so to what extent, has not yet been decided.
In the case before me, the late Datu Bentara, Haji Hassim bin Haji Arif, died intestate with regard to most of his property, but by a will dated 20th December, 1943, he left his residence at Kampong Patingan to his third son, Abang Haji Jaya, who is one of the respondents in this appeal. This will was executed in accordance with English law. If the devise is in accordance with the Mohammedan law of inheritance, the validity of the will, as respects both form and content, is established: otherwise a further point of law must be decided.
The Secretary for Native Affairs, Mr. D.C. White, who appeared at the hearing of the appeal as amicus curiae, argued forcefully that a Muslim can only depart from the form of will in the Ordinance if he keeps to the Mohammedan law of inheritance. There is much force in this argument and it may well be that he is correct, but for reasons which will appear later in this judgment I think it is unnecessary, and therefore undesirable, that I should express any opinion on the point.
The general rule is that when a Muslim dies, his debts and funeral expenses are to be paid first, and only one-third of the residue may be disposed of by will. A further limitation on testamentary capacity is frequently expressed in the maxim: "No bequest to an heir". The term "bequest" is usually employed in works on Mohammedan law in a wide sense, and is not restricted to movable property. This maxim is said to be based on a passage in the Prophet's Last Sermon on the day of the Farewell Pilgrimage: "God hath verily given to everyone his due, therefore there shall be no bequest to one who is entitled to inherit."
Nevertheless a bequest to an heir may be valid if the heirs consent to it. The learned Imam of the Malay Mosque, Abang Haji Bahaudin, who gave expert evidence at the hearing, assured the Court that that is a correct statement of his religious law. The proposition is also supported by the Malayan case of Siti binti Yatim v. Mohamed Nor Bin,(2) where it was held that the will of a Muslim which attempts to prefer one heir by giving him a larger share of the estate than he is entitled to by Mohammedan law is wholly invalid as to such bequest without the consent of the other heirs.
Both Respondents contended that in the present case the bequest to Abang Haji Jaya was consented to by the other heirs, and I gave leave to call evidence. There is clear evidence, both oral and documentary, that the heirs did in fact consent to the bequest in the will. The Appellant's son, who represented the Appellant, drew up both the will which the Appellant now contests and the document upon which reliance was placed by the Respondents. Apart from any inference which might be drawn from that, there is clear evidence that all the heirs consented .
The question arises: When must such consent be given? According to the books it would seem that in Sunnite law such consent must be obtained after the testator's death, but in Shiite law the time when the consent is obtained is immaterial and it may be obtained either before or after the death of the testator. The assessor appointed to advise the Court advises me that in Sarawak the time when consent is obtained is immaterial. I would be prepared to accept that advice but the evidence in the present case warrants a finding that consent was given both before and afterwards and I so find as a fact.
The provisions of the will were in accordance with the Mohammedan law of inheritance, and in the result therefore the appeal must fail. I have reached the same result as the learned Circuit Judge but for different reasons.
Appeal dismissed.
| | | 4 | Abang v. Saripah | IN THE NATIVE COURT OF APPEAL ABANG
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| Appellant
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| SARIPAH
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| Respondent
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In the Native Court of Appeal at Sibu before B.T.H. Lee, J., William Hardin and Anyau anak Bakit, Assessors.
Civil Appeal from the Resident's Native Court at Sibu No.1 of. 1969.
Date of Judgment: 6th November, 1969.
Native Customary Law-Temuda Land-Dayak removing to another district-Loss of rights in land-Native Customary Laws Ordinance (Sarawak, Cap. 51).
Land Laws-Temuda land-Dayak removing to another district-Loss of rights in land.
In this case the Appellant and the Respondent claimed a piece of temuda land. The land in question was originally occupied by the Respondent but she had moved out of the land to Sibu district more than twenty years ago. The Appellant alleged that the land had been sold to him by the brother-in-law of the Respondent. The Resident's Native Court, on appeal, held that as the Respondent had moved to another District, she had lost her rights to the land. Further she had no power to alienate it. The land in dispute must therefore be declared as tanah orang pindah and left for the benefit of the people in the area.
Held, dismissing the appeal: | (1) The Resident's Native Court was correct in its decision that the Respondent had by removing to another district lost her rights to the land and that she had no right or power to alienate it: | | | |
| (2) Upon the facts in this case neither the Appellant nor the Respondent has any claim to the land under customary rights.
|
| (1) Udin anak Lamport v. Tuai Rumah Utorri (1949) S.C.R. 3. | | | |
| (2) Nyalong v. The Superintendent of Lands and Surveys. Second Division. Simanggang (1967) 2 M.L.J. 249. | | | | | | (3) Sumbang anak Sekam v. Engkarong anak Ajah (1958) S.C.R. 95. |
Parties not represented.
B.T.H. LEE, J. delivered the judgment of the Court:-
This was an action brought by the Respondent in respect of a piece of temuda land (i.e., customary land) situate at Sungei Bemban, Pati Sg. Mador, Binatang.
The facts are fully set out in the case stated and for the purposes of the case stated under the Native Courts Ordinance (Sarawak Cap. 43) require only brief mention.
The land in question was originally occupied by Saripah anak Unting, the Respondent, an Iban woman who for sometime felled the jungle. She then moved out of the land to Sibu district more than twenty years ago. She claimed the land belongs to her.
In the meantime the Appellant, also an Iban, alleged that the land was sold to him by Layan, brother-in-law of the Respondent, sometime ago. He also claimed that the land belonged to his parents.
Unfortunately, the parties are not represented here nor in the lower courts, so we have not had the assistance of arguments from both sides.
At the trial by the Native Officer's Court, Binatang on October 12, 1967 where it was first heard, the court dismissed the Respondent's claim on the ground that temuda was sold to the Appellant.
From this decision the Respondent appealed to the District Native Court which on 5th January, 1968 upheld the lower court's decision.
Subsequently, on an appeal by the Respondent the Resident's Native Court made the following findings:-
| "According to our inspection of the land on the spot that the disputed land is a paya and little portion hill land planted with young rubber. From the position of the longhouse of Respondent which is away from another longhouse of Rh. Muling where the disputed land is about half a mile, it is clear that there is reason for appeal in this case. | | | | | | On the other hand, Appellant has moved to another district and therefore has lost her right of the land. Alternatively, if as recorded that her brother-in-law had sold the land to Respondent or his parents, this then is contravening the Iban Tusun Tunggu of Third Division. Respondent has no right to receive sua or tasih temuda from anybody. This is the opinion of this appellate court which led to the dispute of ownership. In view of the above findings the appeal is allowed and the decision of the lower court is set aside. The land in dispute is therefore declared as tanah orang pindah and is left there for the benefit of the people in the area, to be more definite and clear for the benefit of those who have not enough farming land in the nearby longhouse, that is Rh. Muling and possibly another nearby longhouse." |
An appeal was lodged by the Appellant and the Resident's Native Court stated a case for the opinion of this court in accordance with section 8(3) of the Native Courts Ordinance (Sarawak Cap. 43).
The law is quite clear as to the question raised and was laid down as long ago as 1949 by the Supreme Court at Sibu and was merely declaratory of the existing law (as to which I shall deal later).
I would quote a passage from the judgment of Hedges,C.J. in Udin anak Lampon v. Tuai Rumah Utom(1) His Lordship said:-
| "Insofar as the Appellant bases his claim upon the rights formerly enjoyed by one Juing, we are agreed that these rights were extinguished long ago when Juing moved to Binatang.
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| By an order dated 10th August, 1899, the Rajah declared that any Dayak removing from a river or district may not claim, sell or transfer any farming ground in such river or district nor may he prevent others farming thereon, unless he holds such land under a grant. That order was declaratory of the customary law and although the order iself is no longer on the Statute Book the force of the customary law is in no way diminished."
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The law on this subject was recently considered in somewhat similar circumstances by Silke, J. in Nyalong v. The Superintendent of Lands and Surveys, Second Division, Simanggang.(2): Silke, J. merely reiterated what was said by Hedges, C.J. in Udin anak Lampon v. Tuai Rumah Utom already quoted.
I desire to say however that having regard to the law which will be referred to in a moment, the last sentence of the learned Judge, i.e., "That order was declaratory of the customary law, and although the order itself is no longer on the Statute Book the force of the customary law is in no way diminished" is not altogether correct.
The provision of the law in the Statute Book has apparently been overlooked hitherto, in more quarters than one.
Equally explicit is the observation of Lascelles, J. in the case of Sumbang anak Sekam v. Engkarong anak Ajah(3) at page 96:-
"Individual customary rights are not transferable by sale or otherwise for value."
Again at page 97 Lascelles, J. said:-
| "The opinion of the court regarding the third point is that if the holder of customary farming rights moves from a particular longhouse but remains within the same Penghulu's jurisdiction he continues to retain in full such farming rights provided his move does not take him beyond what can only be described as 'reasonable farming distance' from the land."
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I do not find it necessary to discuss the point at great length.
The law is to be found in the following passage from Native Customary Laws Ordinance (Cap. 51) Vol. VII Sarawak Laws Appendix 'A' para. 7 at page 636:-
| "Theoretically all untitled land whether jungle or cleared for padi farming (temuda) is the property of the Crown. The fact that Dayaks do clear a portion of virgin land for the site of their padi farms confers on them a restricted right of proprietorship over the land thus cleared. Once the jungle has been cleared it becomes temuda. It is a recognised custom that temuda is for the use of the original worker, his heirs and descendants. This is the only way Dayaks can acquire land other than by gift or inheritance. In former days there were no restrictions on anyone felling jungle provided that he did not destroy valuable commercial trees such as gutta, jelutong and engkabang. But it is not so now. Since the introduction of the Forest and Erosion Ordinance no one is allowed to fell jungle without permission from the proper authority. |
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| No Dayak is allowed to sell, purchase or lease (by way of demanding rent either in kind or in cash) untitled land. It would be an infringement of the right of the Crown if they did so, and they may be prosecuted in view of the fact that selling of untitled land is prevalent in this division, and Dayaks seem to forget this custom. |
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| There are no other ways in which Dayaks can part with possession of untitled land other than by gift or on death. When a Dayak abandons his land temuda and moves to another district he loses all his rights to it. The land that has been farmed by him reverts to the Crown (as legally it is Crown Land) and it is usually set aside for the benefit of the general community or to help those who are otherwise lacking in land. In such a case the original owner has no right to prevent others from making use of the land and the user acquires. |
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| This was made clear by the Rajah's order dated 10th August, 1899 Land Tenure Act, which states that, 'Any Dayak removing from a river or district may not claim, sell or transfer any farming ground in such river or district nor may he prevent others farming thereon unless he holds such land under grant.' ". |
There is therefore no doubt whatsoever upon the facts that neither the Appellant nor the Respondent has any claim to the land held under customary rights.
On the view we take there really was no evidence at all either in the lower courts or in this court capable of supporting the Respondent's claim.
We have come to the conclusion that the issue presented to this court is straightforward. We can find no reason for upsetting the Resident's Native Court's decision. Indeed so far as the authorities go, the court came to a right decision in point of law. In the result we think the finding of that court was right.
It is the unanimous opinion of the court that this appeal must be dismissed and the court orders that it be dismissed accordingly.
Appeal dismissed.
| | | 5 | Alot anak Rantai & Anor v. Nara anak Giman (f) | IN THE DISTRICT COURT AT SIBU ALOT ANAK RANTAI AND ANOR
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| Plaintiffs
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| | | | | | NARA ANAK GIMAN (f)
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| Defendant
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In the District Court at Sibu before Lee Hun Hoe, Magistrate.
Sibu Civil Case No. 135 of 1962.
Date of Judgment: 11th August, 1962.
Land dispute-Marriage-Divorce-Lawful heirs-Payment of "permaian anak"-"Tembang"-lban Customary Law-. Tusun Tunggu-Property acquired during marriage-How distributed.
Rantai died in 1954 leaving certain properties. By his first wife he had three sons. Later, he married a widow, Jelani. Defendant claimed she was adopted by Rantai. As a result of Defendant obtaining a Certificate of Transmission she disposed of two pieces of land for a total amount of $1,750.00. Plaintiffs, therefore, sued Defendant for damages.
| Dismissing the claim, the Court held:- | | | | | | (1) That on the evidence "permain anak" had been given to deceased's three sons so Plaintiffs could have no claim on the two pieces of land; | | | | | | (2) That Plaintiffs' claim must fail as the two pieces of land were acquired during the second marriage and on deceased's death. Jelani was entitled to such property and not by children of his first marriage. | | | | | | Cases referred to:- | | | | | | (1) Sat ank: Akun and another v. Randong anak Charareng (1957) S.C.R 52 @ 54 | | | | | | (2) Egah anak Igu v. lnggol anak Jegong (1953) S.C.R. 55. |
LEE HUN HOE: On 7th August, 1959 Defendant swore an affidavit before the Sibu Probate Officer in order to obtain a Certificate of Transmission. The affidavit stated that Rantai anak Imbang died in 1954. As a result she obtained a Certificate of Transmission and disposed of two pieces of land described as Occupation Tickets No. 29135 and No. 29136 to Wong Tieng Heu for $400.00 and Wong Liang Chai for $1,350.00, respectively. By a memorandum of transfer No. L.2179/60 Wong Tieng Heu transferred his land to Ting Ai Houng (f) for $1,000.00.
On 10th October, 1961 Plaintiffs through their counsel wrote to the Sibu Probate Officer complaining that Letters of Administration was granted to Defendant without their knowledge or approval. The Plaintiffs were advised to sue Defendant. Hence the present action for damages.
The relationship of the parties may be seen by the following family trees:-
I find the following facts proved or admitted:-
| (1) | Rantai anak Imbang married Suda (f) and had three sons, namely, Ajot (2nd Plaintiff), Alot (1st Plaintiff) and Ta. Rantai divorced Suda (f) as a result of the latter's adultery. | | | | | (2) | After his divorce Rantai married Jelani (f), a widow, in Baram. Later they settled down in Sibu. | | | | | (3) | Lumpang (f) was the wife of Blon anak Ena (D.W. 3) and the daughter of Jelani and the step-daughter of Ratai. | | | | | (4) | Kuyoh (f) is the daughter of Lumpang (f) and the wife of Tua Rumah Giman. Nara (f) (Defendant) is their daughter. | | | | | (5) | Rantai died in Baram. |
Plaintiffs claim that as they are the lawful heirs of Rantai they are entitled to damages for the two pieces of land sold by Defendant. They disputed that they had been paid "pemaian anak",
Defendant did not dispute that she obtained Letters of Administration and disposed of the two pieces of land. She claimed that she was requested by Jelani (f) and Lumpang (f) (D.W. 2) to do so and that she had sent the money less expenses to Lumpang in Baram for use in connection with Rantai's grave. She alleged that Plaintiffs had been given "permaian anak" by Rantai when Rantai divorced Suda.
Both parties are agreed that if the Court finds that "permaian anak" had been paid, Plaintiffs would have no claim.
Defendant claimed that the planting on the said two pieces of land were done by Rantai and Jelani and others but not by Plaintiffs who claimed otherwise.
Aus (P.W. 3) stated that he used to visit Rantai's house at Sg. Langup, Sibu, when Plaintiffs were still bachelors. He had also met Suda in Sibu. But he did not know about the divorce. From appearance I do not think he could be as old as Ajot (2nd Plaintiff). Aus's knowledge appears to be rather sketchy and should be treated with caution.
Defendant claimed that she was adopted by Rantai. But there is no clear evidence to indicate this. I find that this claim is not substantiated.
Lumpang (f) (D.W. 2) came from Bintulu to give evidence. She corroborated Defendant on many substantial points. She said that Plaintiff had been paid "permaian anak" which she described as "Tembang", She said the two pieces of land were sold by Defendant on her instruction and the money had been sent to her. She stated that Rantai died in Baram in Rumah Ambau in her bilek (room). She was responsible for Rantai's burial and cementing of his grave. She alleged that Plaintiffs were not present at all at Rantai's burial.
On the other hand Plaintiffs alleged that Rantai died in 1st Plaintiff's bilek (room), and that the 1st Plaintiff and his two sons were responsible for Rantai's burial and cementing of the grave.
Both versions cannot be true. Having seen the witnesses I accept the evidence of Lumpang on this point.
Blon (D.W. 3) claimed to know Rantai well being of the same bilek (room). He said Rantai divorced Suda in Bintulu and had settled his fines. After his divorce Rantai married Jelani, a widow. Jelani was Blon's mother-in-law. They stayed in the same bilek. Later, they moved to Sibu. Four years later, Rantai acquired a piece of land at Bukit Nibong. The following year Rantai acquired another piece of land at Sg. Langup. Defendant appeared to have been brought up by Rantai and lived in his bilek when she married. Some years later when Rantai was sick he moved to Baram and stayed with Lumpang (f). Before Rantai went to Baram he instructed Defendant to look after his property. When he died Jelani (f) and Lumpang (f) instructed Defendant to dispose of two pieces of land and to send the money to them.
The position of Dayak customary law has been explained very clearly by Bodley, J., in Sat anak Akun and another v. Randong anak Charareng (1) when he said in the course of his judgment:-
| "I also agree with the proposition that by virtue of the proviso to section 2 of the Application of Laws Ordinance No. 27 of 1949, Dayak customary law is in force in Sarawak and if any authority is required for that proposition, I would refer to the case of Chan Bee Neo and Another v. Ee Siok Choo S.C.R. 1947 page 1 in which case Hedges, C.J. dealt with the effect of the Law of Sarawak Ordinance, the provisions of which have been repealed and replaced by the Application of Laws Ordinance, No. 27 of 1949. In his judgment at page 3 Hedges, C.J. held as follows:- |
| | | 'The effect of the Law of Sarawak Ordinance is that the law of England, insofaras it is not modified by Sarawak Ordinances andinsofaras it is applicable to Sarawak "having regard to native customs and local conditions" is the law of Sarawak. The Supreme Court has interpreted this Ordinance, if not expressly at all events by implication, as meaning that native law and custom will be respected and in a proper case must be applied. But "native custom" means the custom of natives of Sarawak, and the natives of Sarawak must belong to one of the races considered indigenous to the Colony and enumerated in the Schedule to the Interpretation Ordinance. The Chinese are not indigenous to this country and "Chinese customary law is not 'native custom' ". The law of Sarawak Ordinance uses the words 'native customs and local conditions', but I am not prepared to believe that it is the intention of the words 'and local conditions' to open the door wide for Chinese (or for that matter Hindu) customary law.'''. |
The Application of Laws Ordinance is now to be found in Laws of Sarawak Vol. I, page 43.
At page 55, His Lordship in the same case stated:-
| | It is most unfortunate that there is no written and codified version of the Tusun Tunggu in force in the Second Division as there is in the Third, Fourth and Fifth Divisions. I have referred to the English version of the Tusun Tunggu in force in the Third Division in the hope that it might throw some light on the very difficult questions which I have to decide. It is, however, not very helpful and merely reads as follows:- |
| | 'Wills are not known amongst Dayaks, but rules of descent or inheritance do regulate the transmission of (a) real property i.e., land or (b) personal property i.e., chattels from one generation to the next, both male and female. These principles are sometimes modified by the wishes of the original owner, who has some power ofverbal testamentary disposition'." |
Although the Tusun Tunggu did not shed much light on the question of will it did indicate that the owner of property would by verbal testamentary disposition cause the modification of the rules of descent or inheritance. There is evidence that Rantai ordered Defendant to deal with his property.
About three years ago, 1st Plaintiff came from Bintulu and approached Blon, (D.W. 3). He wanted to claim Rantai's property. He asked for various things and Blon advised Defendant to give whatever 1st Plaintiff wanted to prevent quarrel arising. The matter was settled before Penghulu Chad (D.W. 4).
Penghulu Chad (D.W. 4) testified that about two years ago Plaintiffs, Defendant and others came to see him in his house. Alot (1st Plaintiff) asked for several things. D.W. 4 asked if he had any other request. 1st Plaintiff said that he had no more claim as the two pieces of land had been sold and that he was satisfied with one piece of land at Bukit Nibong. After being assured by 1st Plaintiff, D.W. 4 then prepared a document (exh. D.8) which 1 st Plaintiff thumbprinted and witnessed by D.W. 4.
1st Plaintiff did not strike me as a witness of truth. 2nd Plaintiff seemed to rely very much on 1st Plaintiff and did not appear to know much about the matter. Plaintiffs claimed that Rantai died in 1st Plaintiff's bilek. Why did they not apply for Letters of Administration on Rantai's death? My view is that they did not know of Rantai's death until some time later, possibly after Defendant had disposed of the two pieces of land.
On the other hand I am very much impressed by the sincerity of Defendant, Lumpang (f), Blon and Penghulu Chad and the manner they gave evidence. I am satisfied that Defendant has established on the balance of probability that Rantai had settled "permaian anak" with Suda. The result is that since "permaian anak" had been given to Rantai's three sons through Suda, Plaintiffs' claim must fail.
Another reason why Plaintiffs' claim must fail is that it would appear that the two pieces of land were acquired after Rantai married Jelani. On Rantai's death Jelani was entitled to the property. The case of Egah anak Igu v. lnggol anak Jegong(2) is an authority for saying that immovable property acquired by a person during his second marriage is not inheritable on intestacy by the child of his first marriage.
Assuming that the Letters of Administration was wrongly granted to Defendant there is evidence that 1st Plaintiff had indicated his satisfaction with the barangs. (things) he obtained from Defendant before. Penghulu Chad had indicated that he would make no further claim. It is arguable whether Defendant could rely on estoppel as a defence to any claim for damages.
Had this case been decided on English law of intestacy alone I would have decided the matter in favour of Plaintiffs. The damages I would award them would be the prices of the two pieces of land i.e., $400.00 plus $1,350.00-less funeral expenses $49.25 and other expenses I would assess at $250.
For reasons given I would therefore dismiss Plaintiffs' claim. $30.00 costs to Defendant.
NOTE:
Appeal lodged and fee paid. But no grounds of appeal was ever lodged. Appeal registered as High Court-Sibu. Appeal Civil Case No. 10/62. Appeal seems to have been abandoned. |  | | 6 | Ara binte Aman & 16 Ors. v. Superintendent of Lands & Surveys, Second Division | IN THE HIGH COURT IN BORNEO AT KUCHING
ARA BINTE AMAN & 16 OTHERS
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| Appellants
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| SUPERINTENDENT OF LANDS & SURVEYS,
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| SECOND DIVISION
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| Respondent
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In the High Court at Kuching before B.T.H. Lee, J. Civil Appeal No. K.9 of 1972.
Date of Judgment: 17th December, 1973.
Native Customary Law-Sarawak-Customary rights over land-No evidence of occupation-No proof of custom-Land a Government reserve-Customary Rights cannot be exercised over it-Difference in Customary Law applicable to Second Division from that applicable to Third Division-Land Settlement Ordinance, (Sarawak Cap. 28) s.66-Land (Classification) Ordinance, 1949, s.8Land Code (Sarawak Cap. 81), s.10(2)-Lands Ordinance (Cap. 27Sarawak Revised Laws 1946), ss.91(1), 108.
In this case the Appellants appealed against the decision of the District Court, Simanggang, which had dismissed their claim of customary rights over certain lands.
Held, dismissing the appeal: | (1) On the facts there was no reliable evidence of occupation of the land and the learned magistrate was right in rejecting the claim. | | | | | | (2) As the land was Government reserve land. no customary rights could be exercised over it. |
Cases referred to:-
| (1)
| Nyalong v. Superintendent of Lands and Surveys. Second Division Simanggang (1967) 2 M.L.J. 249. .
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| (2)
| Injing v. Tuah & Anor (1971) 1 M.L.J. 115.
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| (3)
| Sumbang anak Sekan v. Engkarang anak Ajah (1958) S.C.R. 95.
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| (4)
| Maqbul Ahmad v. Oukar P.N. Singh A.I.R. (1935) P.C. 5.
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| (5)
| Newcastle City Council v. Royal Newcastle Hospital (1959) 1 A11 E.R. 734.
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| (6)
| Keteng bin Haji Li v. Tua Kampong Suhaili (1951) S.C.R. 9.
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| (7)
| Sijip anak Majan v. Reg. (1954) S.C.R. 40.
| | (8) | Local Government Board v. Arlidge (1915) A.C. 158. |
D. Tajem Esq. for the Appellants.
D.J. Morris Esq. (Legal Adviser, Lands and Surveys Department, Kuching) for the Respondent.
B.T.H. LEE, J.: This is an appeal from a judgment of the District Court, Simanggang, given on the 4th September, 1972.
The Appellants (17 in all) alleged that they are claiming customary rights over the land, the subject matter of this appeal.
On behalf of the Appellants a number of grounds were raised.
To my mind the main question upon which this appeal turns is simply one of the fact.
I do not propose to recapitulate in detail the evidence that was given by all the 17 Appellants. But it would be expedient to set out shortly the evidence which bears on the question of customary rights over the land of which they lay claim.
That all the Appellants in this case failed to discharge the burden of proof which lay upon them to prove that at the time of Settlement they were entitled to the parcels of land is plain enough.
Their evidence has been proved to be uncorroborated, unconvincing, contradictory, and based partly on hearsay evidence.
Insofar as identification of the land is concerned the Appellants had no means of identifying the land. Their evidence as it stood seemed vague, unsatisfactory and unreliable.
I will deal first with the evidence of T.R. Marim (P.W. 5) and John Shim ( P.W.19). | T.R. Marim (P.W.5) called in support of Omar's (Appellant No.4) claim said he was' only 13 when the jungle was felled and only visited the land once subsequently i.e., 40 years later. On that occasion he knew it was Omar's land because Omar himself told him so. |
John Shim (P.W.19) merely raised speculations. He said :- | | "It is impossible to miss customary rights," and earlier he said:- |
| | | "I do not think there was any surrender." |
The following witnesses could speak as to matters only by hearsay. | Appellant No.3 said her father and mother told her about this land i.e., that her father felled the jungle | | | | | | Appellant No. 7 said his father felle the jungle on the land. He did not know when. His father told him that he felled. |
The evidence of identification of the parcels of land is hardly convincing:- | “Witness No.1 (Appellants No. 1) said in cross-examination she cannot point out the piece of land on the map but she can show the site of the land. | | | | | | Appellant No.3 said she visited the land once when she was 8 years old and then twice when she was 32 years. | | | | | | The land was not cultivated in the meantime but her husband is able to point out the boundaries to the surveyor | | | | | | Appellants No. 6, 10 and 11 did not point out their boundaries to the surveyor at the time of survey, but allowed their neighbours to do it. | | | | | | T.K. Abu Talip (Appellant No.17) was supposed to have ‘verified’ a lot of the boundaries, but in cross-examination it was revealed that he did not actually visit the lands. He admitted he could not actually be sure of the boundaries. “ | | | | | | Some of the reasons given in evidence carried little conviction:- | | | | | | "Appellant No. 8 says he regularly farmed this land. He filled in a from claiming this land during the settlement but omitted to mention this vital fact. When asked in re-examination the reason, he said he forgot i.e., he forgot he had been regularly farming the very piece of land he was claiming. | | | | | | Appellants No. 9 says he has not farmed the land since the Japanese Occupation because he had no title. But this factor did not stop him farming before the Japanese Occupation. | | | | | | Appellants No.11 and 12 say they often visit the lots they are claiming just to look at them. | | | | | | Almost all the Appellants say they want to make use of the land, but have not done so for 25 years. | | | | | | Appellant No.16 has not used the land he is claiming since 1946 or 1947 because no one has made use of the surrounding land.'' |
It is I consider worth noting that no evidence was adduced to show that the land was allowed to fallow. Quite clearly the Appellants had in their evidence offered some other reasons.
Some of the evidence can scarcely be called evidence at all. | | "Appellant No. 7 says his father gave him the land. His father told him he felled the jungle. He does not know if his father ever cultivated the land." |
The Appellants contradict themselves:- | | "Appellant No. 6 says he applied for this land in 1960 but found it to be a Government reserve. |
| | He later says he was not told it was a Government reserve. |
| | He then said he had no intention of relinquishing his rights, but acknowledges the existence of occupation by others without objection." |
The only observation that I would make is why should Appellant No.6 apply for what he claims always belonged to himself:- | | "Appellant No.9 said that he did not own any other pieces of land in Simanggang Town. However in cross-examination he admitted he owned other land under title. | | | | | | Appellant No.1 in her anxiety to deny knowledge of everything said she was not called to the Government office, was not told of the Settlement, and did not submit a claim to the land." |
However a claim sheet signed by her was produced in evidence by the Settlement Officer. She managed to lodge an appeal against this settlement of which she know nothing about:- | | "Similarly Appellant No. 11 did not know of these lands being declared State land, but he managed to lodge an appeal against the Settlement order declaring it to be State land." |
It is to be observed that no expert evidence had been adduced to show what if any is the native custom which entitled these claimants to assert their rights to the land.
Of interest is the case of Nyalong v. Superintendent of Lands and Surveys, Second Division, Simanggang.(1)
Penghulu Geringau was called in Nyalong's case although the testimony of persons likely to know about it would be relevant and admissible under sections 48 and 59 of the Evidence Act, 1950.
It seems the only evidence on record is that of Donald Bhuma, the Settlement Officer, the witness for the Respondent (hereinafter referred to as "the Settlement Officer") an Iban from the Second Division who is familiar with local adat. His evidence was as follows :- | | "It is possible to lose rights if they abandon cultivation for more than 10 years." |
Indeed, this piece of evidence stands on the record uncontradicted.
It is quite clear from the above evidence that the testimony of the Appellants were unreliable and unworthy of credit and the learned Magistrate has accordingly rejected them.
The issue in this case was one of fact and as the trial Magistrate has based his decision on the opinion he formed as to the reliability of the witnesses whom he had seen and heard the Appellate Court could not interfere, unless the finding of fact is manifestly wrong.
Even assuming that there is some evidence of occupation of customary rights, they have clearly been lost by reason of non-user since the Japanese Occupation, non-user having been admitted by the Appellants.
I would dismiss the appeal solely on this ground for the reasons which I have stated. Since a number of other points has been canvassed I will briefly express my views about them.
The land according to the Settlement Officer is a Government Reserve-over which all customary rights had been surrendered before they were gazetted. The Gazette of which the court can take judicial notice are:- | GN | 1338 dated 23.10.1953 | | | | 1443 dated 6.11.1953 | | | | 540 dated 20.4.1956 | | | | 1598 dated 19.10.1956 | | | | 501 dated 5.4.1957 | | | | 1768(1) dated 13.12.1957 |
and were set out in the claim sheets.
Section 10(2) of the Land Code (Cap. 81) provides:-
| "No person whether a native or a non native may occupy any Native Customary Land or any Reserved Land save under and in accordance with the conditions applicable thereto by virtue of this or any other written law, and any person in occupation thereof shall be deemed to be in unlawful occupation of Crown Land .... " |
The land being Government Reserve, it is abundantly clear that no person can exercise customary rights over it.
There seems to be little doubt that some notice were given in as much as five parcels of customary rights were surrendered and one parcel of alienated land was surrendered.
One observation I think it right to make and it is this. That all the time when the Reserve was gazetted, no customary rights existed. The land were still virgin jungle or have already been acquired.
No customary rights could have been acquired because there were no:- | | (a) fruit trees; | | | | (b) no continuous occupation or buildings; | | | | (c) no burial grounds or shrines; and | | | | (d) no right of way. |
(See section 66 of Land Settlement Ordinance (Cap. 28).
Section 66(b) provided that customary rights shall be recognised in respect of land that is in continuous occupation or has been cultivated or built on within three years.
In the case before the court there is no evidence of continuous occupation and in fact no effective occupation at all (as to which I will say something presently).
The Settlement Officer, could not serve any of the claimants notice and pay compensation inasmuch as his investigations revealed the land to be State Land and prior to this they were virgin jungle" and there was no occupation or user for 25 years.
But none of the 17 Appellants gave evidence to show that they were allowing the lands to fallow in accordance with a cycle of maximum fertility for the land. Nor at the trial did the court have the benefit of the opinion of an expert in such matters from the Appellants.
Reference was made to Secretariat Circular No. 12/1939 on the subject of Native Land Tenure.
I will quote the relevant paragraphs (I am omitting the irrelevant passages) : -
| "1. The Land Orders recognise native customary rights to land but give little guidance on the subject: the law of customary tenure is wrapped up with that of inheritance and neither has yet been adequately codified. It is the aim of Government to record and protect these customary rights and to prevent the various communities from impoverishing themselves by disposing lightly of their rights to others, whether alien or native. The following notes are the first step towards a better appreciation of the position and it is expected of every officer that he will study the subject and assist the Secretary for Native Affairs and the Superintendent of Lands and Surveys by suggestion and constructive criticism. | | | 2 ..... | | | 3. All natives of Sarawak follow Indonesian adat to a greater or lesser degree and that adat, as regards the customary tenure of land, is briefly as follows:- |
| (i) The right to cultivate cleared land vests in the community with priority to the heirs of the original feller of big jungle. This right must be exercised in accordance with a cycle compatible with the preservation of the maximum fertility of the land (and no longer) by methods of cultivation within the reach of the community. The cycle is, in their eyes, not a matter for rule of thumb but for expert native opinion. | | (ii)-(iii) ..... |
| (iv) No community or individual may hold up land in excess of requirements and, the extreme case, removal to another district automatically extinguishes all rights of user. The old Order (a) dated 10.8.99 is an excellent exposition of this principle. " |
It seems clear from the case in Nyalong, supra, a case in the same Division (of which this is one) namely Second Division, Simanggang, the court in the course of its judgment said at page 251 paragraph A-C:-
| | "The whole basis of temuda rights by a single family over land appears to me to be based on the fact of the family belonging to the community and on the continuous occupation of that land .... The right which the Plaintiff may have created by his original clearing and cultivation, is a restricted one and it can be lost by abandonment." |
and at the same page paragraph H:-
| "Penghulu Geringan who was called as a witness by the Plaintiff said in evidence that abandonment for a period of ten years meant loss of temuda rights on the logical basis that after ten years the land had reverted to virgin jungle and was therefore whomsoever recleared it." |
This evidence incidentally is relied upon as supporting and coincides with the evidence of the Settlement Officer, a native of the Second Division, to the effect that ten years non-user results in loss of rights.
For the Appellants, counsel has sought to rely on the case of lnjing v. Tuah & Anor.,(2) which cited the case of Sumbang anak Sekan v. Engkarong anak: Ajah(3) for the proposition of "reasonable farming distance" from the land. The passage read:-
| " .... if the holder of customary farming rights moves .from a particular longhouse but remains within the same Penghulu's jurisdiction, he continues to retain in full such farming rights provided his move does not take him beyond what can only be described as 'reasonable farming distance' from the land. This of course would have to be pure question of fact and naturally in modern times with outboard engines people are often enabled to farm further away from the longhouse than in former days." |
The court there referred to Volume 7 of the Laws of Sarawak. Appendix "A" at page 631 which is in these terms:-
| "A guide to Judges, Magistrates and others on adoption, divorce, the acquisition and disposition of property as practised amongst Sea Dayaks of the Third Division, ratified at the Penghulus' Conference, held at Sibu on 15th July, 1952." |
That case seems to me with utmost respect to be applicable to the Third Division only. We are here dealing with a matter concerning the Second Division of Sarawak, Simanggang and accordingly has no application to the determination of the question before this court.
But assuming for a moment that customary rights had not been lost by non-user, the publication of the land as a Government Reserve, in my judgment, effectively terminates them by virtue of section 108 of the Land Ordinance (Cap. 27) which reads:-
| "108. Any person who shall be found unlawfully occupying any Crown Land reserved for a public purpose .... shall be guilty of an offence against this Ordinance .... " |
To challenge the validity of the Government Reserve is in my view too late at this distance of time.
The investigation of the Settlement Officer shows that the Appellants had no such interest in the land as would entitle them, and even assuming that they ever had such interest, the claims are now barred in equity by the acquiescence of the Appellants and at law by the Public Authorities Ordinance (No. 19/1948) and Items 110-112 of the Schedule to the Limitation Ordinance (Sarawak Cap. 49).
Here I would quote and adopt a passage in the case of Maqbul Ahmad v. Onkar P.N. Singh,(4) where it was held that there is no general judicial jurisdiction outside the Limitaion Act enabling a court to relieve a suitor from the provisions of the Act on the ground of hardship and a court cannot override the provisions of the Limitation Act on equitable considerations.
It may be here pointed out that the procedure as such pursued by the Appellants appear to me in the circumstances to be quite inappropriate.
Turning to the question of ocupation, there is, in my opinion, no evidence to establish occupation in the present case.
It will I think be useful to refer to what. Lord Denning said in Newcastle City Council v. Royal Newcastle Hospital (5) on the meaning of "occupation":-
| | "Occupation' is matter of fact and only exists when there is sufficient measure of control to prevent strangers from interfering. " |
Section 91(1) of the Land Ordinance (Cap. 27) (Revised Edition of the Laws Ordinance, 1946-Vol. 1) reads:-
| | "Native land reserves may be made in the discretion of the Superintendent by demarcation for the communal use of Malay Kampongs and native houses, and natives may also occupy land individually by customary tenure, in both of which no ownership of the land shall vest in the natives and in which only such crops as padi,· vegetables, pineapples, sugar-canes, bananas, yams and similar cultures shall be planted. Such reserves shall not be subdivided and shall be occupied free of all charges, and shall he in addition to the native holdings permitted under section 90. Where possible, claims to fruit groves and farming lands shall be registered in the Land Office in each district." |
The law on this point is also covered by section 8 of the Land (Classification) Ordinance 1949 (see 1949 Supplement to the Laws of the Colony of Sarawak).
Section 8 reads as follows:-
| | "8(1) No person may occupy any Mixed Zone Land or Native Area Land unless a documentary title is still subsisting in respect of such land. | | | | | | (2) No person may occupy any Native Customary Land or Reserved Land except as is provided by or under the law governing such land. Natives who are in lawful occupation of Native Customary Land are licensees of Crown Land." |
There are however three cases in the books on this point.
The first is the case of Keteng bin Haji Li v. Tua Kampong Suhaili's(6) where Digby J. in the course of his judgment said:-
| | "In Sarawak, a person can be said to 'own' land only if there is a Land Office title subsisting in respect of that land. If there is no such title the land is Crown Land; the occupier is at best a mere licensee; and he has no legal interest which he can either charge or transfer. That is so whether for the purposes of the Land (Classification) Ordinance the land is Native Customary Land; Reserved Land or Interior Area Land. If a person abandons his legitimate occupation of such land he does so at his peril." |
To the same effect is the second case decided three years later in Sijip anak Majan v. Regina.(7) The headnote reads: - .
| | "Persons in lawful occupation of jerame are licensees of Crown Land and hold the land by customary tenure." |
In the final case of Nyalong v. The Superintendent of Lands and Surveys, Second Division Simanggang(1) the court expressed itself thus at page 251 :-
| | "The right which the Plaintiff may have created by his original clearing and cultivation is a restricted one and it can be lost by abandonment. |
| | It must be remembered that a person can be said to own land only if there is a Land Office title subsisting in the land and if no such title exists the occupier is a mere licensee of Crown Land." |
Presentation of Claims to Crown Land and investigation of claims to Crown Land are set out in sections 93 and 94 of the Land Code (Sarawak Cap. 81):-
| | "93.-( 1) All claimants to Crown Land in the block shall appear at such time and such place as the Settlement Officer may, by notice under section 88, direct. | | | | | | (2) Claimants may appear in person, or by advocate, or by any representative approved by the Settlement Officer and shall produce to the Settlement Officer all documents held by them, or under their control, affecting the Crown Land which they claim. A claimant who fails to appear may submit to the Settlement Officer a statement of his claim in writing. | | | | 94.- (1) The Settlement Officer shall investigate publicly all claims to Crown Land, whether based upon documentary evidence, native customary tenure or otherwise, and shall have power to determine in whose favour the rights to such land shall be shown in the Settlement Order made under section 95 or may, in the case of conflicting claims, permit the parties to refer the determination of the same to arbitration under the Arbitration Ordinance." |
It was contended on behalf of the Appellants that the Settlement Officer had not inquired as he ought to have done. He ought to have given fair opportunity to make representations before he acted as such.
I am of opinion that no judicial duty is laid on the Settlement Officer in the discharge of these statutory duties, and that the only question is whether he has complied with the statutory directions set out in section 94.
True the Settlement Officer had to inquire, and no doubt he did, in his administrative capacity, but he had not to conduct anything in the nature of a judicial or quasi-judicial inquiry.
On the other hand if it is contended that his duties are quasijudicial in nature, there was sufficient compliance by the Settlement Officer of the procedure and he gave due notice, the Appellants having been given the opportunity to present their claims, which in fact they did.
The material before him did not satisfy him that there was customary rights, a view with which I fully agree.
I can find nothing irregular or unlawful in the proceedings whereof complaint is made by the Appellants.
As was said by Lord Shaw of Dunfermline in Local Government Board v. Arlidge(8) of the authority there concerned it:-
| | "must do its best to act justly and to reach just end and by just means. If a statute prescribes the means it must employ them. If it is left without express guidance it must still act honestly and by honest means." |
It seems to me that the Settlement Officer acted very properly and fairly. No exception can be taken whatever to what he has done.
But where there is a rehearing by way of evidence de novo before the District Court in the presence of the Appellants or their representatives, I do not think that it lies in the mouth of the Appellants to say that there was a denial of natural justice, assuming however in favour of counsel for the Appellants that there was defect at the earlier stage. Such defect, if any, has, in my judgment been cured by the later proceedings.
For these reasons I am in full agreement with the Magistrate both in his findings of fact and in his conclusions of law. There is no substance whatever in the other grounds and this appeal fails and is accordingly dismissed with costs.
| | | 7 | Belang anak Umpang | IN THE HIGH COURT OF SARAWAK, NORTH BORNEO
AND BRUNEI
In the matter of the Estate of Belang anak Umpang and In the matter of a reference to Court under Section
29 of the Administration of Estates Ordinance
(Cap. 80 Revised Law)
Sibu High Court Civil Case No. 16/60.
Date of Judgment: 16th March, 1960.
Probate Officer acting on a Penghulu's decision-Native Courts Ordinance, Section 5(1)-Administration of Estates Ordinance, Section 29.
On 16th March, 1960, Temah anak Idas (f) filed an affidavit with the Probate Officer, Sibu in connection with her husband's estate stating that he died in 1954. The estate involved a rubber garden. The Probate Officer assumed administration and on the same date issued a Certificate of Transmission purporting to transmit the estate to Amoi anak Aing (f) and Temah anak Idas (f) in equal undivided shares. He relied on the decision of Penghulu Poh as there was no appeal against the decision. From the recorded statement of Penghulu Poh it seems clear that Amoi herself was not present at the hearing although her son was. Later Penghulu Poh told Amoi of his decision and she indicated that she was not satisfied.
Held on a reference by Lascelles, J.:
| (1) In Mandi ak. Kerban v. Timah ak. Landa held that questions of inheritance did not fall within any of the categories specified under section 5(1) of the Native Courts Ordinance. Such matters are not to be dealt with in Native Courts. | | | | (2) That Amoi never accepted the Penghulu's decision. The Probate Officer was wrong to treat the Penghulu's decision as a judgment. | | | | (3) The Certificate of Transmission is to be set aside and the whole matter referred back to the Probate Officer for further investigation. |
Case referred to:-
| | (1) Mandi ak. Kerban v. Timah ak. Landa (1950) S.C.R. 3. |
LASCELLES, J.: From the record submitted by the Probate Officer the facts appear as follows:--
On March 16th, 1960, Temah (f) anak Idas flied an affidavit with the Probate Officer, Sibu, in connection with her husband's estatehe is reported to have died some time in 1954. The estate contained a rubber garden Stencil No. B.5537 and this garden is the one involved in the present dispute.
The Probate Officer assumed administration of the estate and by a Certificate of Transmission dated 16th March, 1960, transmitted the garden to Amoi (f) anak Aing and Temah (f) anak Idas in equal undivided shares.
His reasons for doing this were apparently that Penghulu Poh had informed him that he had settled the dispute in this way of division, and that no one had appealed against that decision. It is clear, however, from the recorded statement of Penghulu Poh that Amoi (f) herself was not present at the hearing of the case although her son was, and that later when Penghulu Poh told her of his decision he told him she was not satisfied.
In the Supreme Native Court case Mandi ak. Kerban v. Timas (f ) anak Landa (1), the Court held, in reference to the categories set out in Section 5(1) of the Native Courts Ordinance as being cases triable by the Native Courts that:-
| "Questions of inheritance do not fall within any of the categories specified and they are not proper matters to be dealt with in the Native Courts. No doubt the Penghulu or other headman is the proper person to give advice on such matters and to settle the matter administratively. But if the parties do not accept his decision resort should be made to the ordinary Courts." |
It is quite clear here that Amoi (f) never accepted the Penghulu's decision, and the Penghulu informed the Probate Officer to that effect.
In my opinion the Probate Officer was not entitled to treat the Penghulu's decisionas a court judgment and, because there had been no proper appeal, issue the transmission order which he did.
Accordingly the Certificate of Transmission is set aside and the intestacy is referred back to the Probate Officer, Sibu, for further investigation as to the claims of Temah (f) and Amoi (f) and action in accordance with the decision he reaches.
The costs of this application shall abide the result of the Probate Officer's decision.
| | | 8 | Braoh anak Padang v. T.R. Kana anak Kayan | IN THE NATIVE COURT OF APPEAL | BRAOH ANAK PADANG | … | … | … | … | Appellant | | versus | | | | | | | T.R. KANA ANAK KAYAN | … | … | … | … | Respondent |
In the Native Court of Appeal at Sibu before Harley, J., Temonggong Jugah and Michael Pilo, Assessors.
Sibu Native Court of Appeal Case No. NA 3/6l.
Date of Judgment: 28th May, 1962.
Claim to have right to share of timber-Assessors influenced by doubtful evidence.
Respondent claimed to have right to a share in timber. He failed in the Kanowit District Court but succeeded in the Resident's Native Court. During the hearing of the appeal the Native Court of Appeal heard additional evidence not before the Resident's Native Court. Allowing the appeal the Native Court of Appeal held:-
| | (1) That the Assessors in the Resident's Native Court were unduly influenced by the existence of activities of a deceased person of which there was no evidence. | | | | | (2) That the judgment of the Kanowit District Native Court presided by Magistrate Peter Tingum be restored. |
HARLEY, J.: Both Assessors ask me to record their joint opinion as follows:
| | "The witness MOND ANAK JALAYAN was telling the truth. KANA made no objection until at the last minute he saw a chance to make a claim. He (Respondent KANA) has no right to any share of the timber." |
Judgment (delivered orally, but without mention in the oral judgment of costs. Judgment reduced by me into writing immediately after termination of the case, and question of costs dealt with).
Additional evidence was called in this Appeal, which the Resident's Native Court did not have the advantage of considering. I have nothing to add to the joint Opinion of the Gentlemen Assessors, with which I fully agree, except to say that in the Resident's Native Court an alleged grandfather (deceased), of whose existence or activities there was no evidence, managed to figure in the Opinions of the Assessors expressed in that Court. From the Case stated it would appear that this phantom grandfather had an undue influence on the Assessors and the consequent Judgment.
This Appeal is allowed-by a unanimous Court-and the Judgment of the Kanowit District Native Court (Magistrate PETER TINGUM) is restored. Further, Respondent is to pay to Appellant the costs (Court Fee $15.00 plus travelling expenses $5.00) of the present hearing plus costs in the Resident's Native Court (assessed at $15.00) making a total of $35.00. | | | 9 | Egah anak Igu v. Inggol anak Jegong | THE SUPREME COURT OF SARAWAK,
NORTH BORNEO AND BRUNEI
__________ EGAH ANAK IGU …
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| INGGOL ANAK JEGONG
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| Respondent
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In the High Court at Baram before Blagden, Ag. J,:
Civil Case No. 4/53. Date of Judgment: 6th May, 1953.
Native Customary Law-Sea Dayak inheritance-Land property acquired during second marriage not inheritable on intestacy by child of first marriage.
A Sea-Dayak, Jegong, had married one Renap at Simanggang and had, as son, the Respondent. Subsequently Jegong left Renap and Respondent at Simanggang and went to live in Baram. Whilst he was there Renap died and Jegong married Likah and adopted as son one Igu who was the father of the Appellant. Subsequently Jegong acquired a 1.87 acre garden in Baram. Appellant and Respondent both claimed this garden on Jegong's decease intestate.
Held:
| Respondent had obtained no rights to the 1.87 acre garden and Appellant was entitled to be registered as the sale proprietor of it. |
The Appellant in person.
John Muda for the Respondent.
BLAGDEN, Ag. J.: This case comes before the High Court as an appeal from the Baram District Native Court where it was dealt with as an appeal from a Penghulu's decision. As the case concerned titled land and its inheritance it should not have found its way into the Native Courts. Penghulu Maoh's decision can only be regarded as an administrative one and not binding upon the parties. The dissatisfied party should have commenced an action in the District Court. In fact when the District Native Court sat on this case it may not have been properly constituted as there was only one assessor recorded. It was however properly constituted as a District Court and to save sending it back for re-trial I have dealt with this case as an appeal from the Baram District Court sitting under the mistaken title of the Baram District Native Court. As the Baram District Court in its mistaken guise was also purporting to sit in its appellate jurisdiction it did not receive evidence to the same extent as it would have done if it had appreciated that it really ought to have been sitting as a Court of first instance. I have therefore considered it desirable to take this appeal as are-hearing.
The facts which I have found proved or admitted are as follows.
The parties are related to one another in accordance with the following family tree:
 Jagong's first wife was Renap (f) whom he married in Simanggang and by whom he had Respondent as son. Subsequently Jegong left Renap (f) and Respondent at Simanggang and moved to Baram. Whilst at Baram he married his second wife. A good deal of the evidence in this case has been directed to establishing whether or not Jegong had divorced Renap (f) but I am satisfied from the evidence taken on commission at Simanggang that there was no divorce but that Renap (f) died and it" was after her death that Jegong married Likah (f).
On the 4th of September, 1917 Jegong and Likah (f) adopted Igu (See Exhibit "A"-Adoption Certificate No. 29). Some time after that Jegong acquired the 1.87 acre garden at Lubok Nibong, Padang Kerbau, Marudi, which is the subject of this action. The garden is now held under Baram Lease No. 1003 dated 1st May, 1939. It is still in Jegong's name and is expressed to be in replacement of Rubber Garden Registration Certificate No. 555 dated 22nd July, 1925. I think there is little doubt that Igu assisted Jegong in the planting of it.
Some time before the Japanese Occupation Jegong returned to Simanggang with Likah (f) leaving the 1.87 acre garden in charge of Igu and Igu's son, Appellant (Egah). Jegong never returned to Baram. He died intestate in Respondent's bilek in about 1938. Likah (f) died later in Stumbin. The 1.87 acre garden continued to be managed by Igu and Appellant. About 1950 Igu died and Appellant endeavoured to get the garden registered in his own name but his application was opposed by John Muda on behalf of Respondent's interests.
The matter came before Penghulu Maoh who ruled that the garden belonged to Respondent but as Respondent was returning to Simanggang it should revert to Appellant on payment by Appellant to Respondent of $200. The proceedings before the Baram District Court followed and result in a decision that the 1.87 acre garden be divided into 3 shares:-
1 share to Appellant;
1 share to Respondent;
1 share to Likah (f)'s relations.
In addition Appellant was ordered to pay $1,872 to Respondent and $1,872 to Likah (f)'s relations representing their shares in the rubber tapped from the time of Jegong's death (estimated as 1934) during the periods 1934-1941 and 1946-1951. It is from this decision that Appellant appeals.
I have already found as a fact that Renap (f) died before Jegong married Likah. In this I accept the evidence of Penghulu Rengkang taken on commission at Simanggang. All the evidence points to Jegong and Renap (f) never having been divorced and I cannot conceive of Jegong's returning to Simanggang with Likah (f) whom he did, during the lifetime of Renap (f), without Renap (f) or some of her relations-in particular Respondent-making some sort of complaint. It is unfortunate that a small typographical error in the commission to take evidence in Simanggang reproduced Renap's name as "Rentap"; none of the Simanggang witnesses knew of anyone of that name and consequently the specific question dealing with Renap's death was unanswered.
Appellant claims that Renap (f) was still alive when Jegong returned to Simanggang. John Muda goes further and says that he actually saw her in Simanggang in 1946. For the reasons I have given however, I think they are mistaken. I find that Renap (f) died before Jegong married Likah (f).
The position in regard to the 1.87 acre garden then is that Jegong obtained it when he was living with Likah (f) his wife and Respondent his adoptd son Renap (f) was dead and Respondent played no part in the acquisition or planting of this garden, and the material time was not in the technical or the actual sense in Jegong's bilek. He can therefore, in my view, notwithstanding the somewhat contradictory views of my advisers, obtain no rights to the 1.87 acre garden at all. That belonged to Jegong, Likah (f) 's shares on their decease. Upon Igu's decease the garden was inherited by Appellant.
This appeal must be allowed. The judgment of the Baram District Court is set aside and there is substituted therefor a declaratory judgment that Appellant is entitled to be registered as the proprietor of the 1.87 acre garden at Lubok Nibong held under Baram Lease No. 1003. Appellant is awarded $50 costs to include costs of action before Baram District Court and this appeal. | | | 10 | Entinggi anak Bano v. Dri anak Ambok | THE SUPREME COURT OF SARAWAK, NORTH BORNEO AND BRUNEI ENTINGGI ANAK BANO
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In the High Court at Sarikei before Blagden, Ag. J. Civil Case No. 3/1953. Date of Judgment: 26th February, 1953. Native Customary Law-Sea Dayak adoption-Division of property on adopted child leaving the bilek.*
Plaintiff adopted Defendant as his daughter by Sea Dayak custom. Defendant subsequently married one Dalan. Plaintiff and his wife, Defendant and Dalan, all lived in one bilek. Differences arose, partly the fault of all parties, which culminated in Defendant and Dalan leaving the bilek. On the question of how the bilek property should be distributed.
Held:
| (1) The Sea Dayak custom regarding the distribution of property between adopting parents and adopted child in circumstances where the break-up may be regarded as the fault of both parties (or of neither) is that the adopted child is entitled to share equally with each parent and any other entitled person living in the same bilek in all property acquired by the bilek from the commencement of adoption up to the time the child left the adopting parents: | | | | (2) Defendant's husband, Dalan, having lived in the same bilek must be considered an entitled person to share equally with Plaintiff, his wife, and Defendant in any property acquired during the effective period of adoption. |
NOTE:
* Bilek = "Room", i.e., the family household unit.
Plaintiff in person.
Dalan anak Empeni for Defendant.
BLAGDEN, Ag. J.: Plaintiff adopted Defendant as his daughter by Dayak custom. Subsequently, Defendant married Dalan anak Empeni who has represented her in these proceedings.
For some considerable time Defendant and Dalan anak Empeni lived in Plaintiff's bilek together with Saon anak Labi, Plaintiff's wife, but relationships were not harmonious. Defendant and Dalan anak Empeni threatened to move out and eventually did so.
The matter came before Penghulu Liman who made an administrative decision regarding the division of the bilek property between the parties. Dissatisfied with the Penghulu's decision Plaintiff made application (wrongly designated in the Case Record as an "appeal") to the Sarikei District Native Court for it to be set aside. At the hearing Defendant announced her desire and intention to continue living with Plaintiff and Saon anak Labi (f), and the District Native Court therefore made an order setting aside Penghulu Liman's administrative decision.
Apparently, however, relationships did not improve and Defendant left Plaintiff and his wife. Plaintiff now brings this present action claiming certain property which he alleges Defendant removed from his bilek: During the hearing reference has been made to rather more property than that allegedly removed by Defendant and in particular, it appears that Plaintiff and his wife own some 4 rubber gardens and 2 pepper gardens. I regard this case as requiring decision on the ownership and disposal of all the Plaintiff Saon anak Labi (Plaintiff's wife) bilek property and not merely those items which Defendant is supposed to have removed.
It seems to me clear that unless Plaintiff and his wife intentionally and actively drove Defendant away from them the only property of Plaintiff and his wife in which Defendant can possibly have any interest is property acquired by Plaintiff and his wife during the period of Defendant's adoption.
On the evidence before me I find that the following items of property were acquired by Plaintiff and his wife from the time Defendant was adopted to the time she finally left the Plaintiff and his' wife's bilek.
Land.
| | (a) 1 4-acre rubber garden of 800 trees at Rantau Kanpayang, Pakan. | | | | | | (b) 1 pepper garden of 140 vines at Rantau Kanpayang, Pakan. | | | | | | (c) 1 pepper garden of 140 vines at Rantau Kanpayang, Pakan. |
| | Chattels. | | | | 1 Labu Kenditamaga. | | | 1 Engkromong. | | | | 1 Bebendai. | | | | 1 Tajau. | | | | 4 Lampit. | | | 2 Tinchin. | | | | 4 Buah Paoh. | | | | 30 Marik perak. | | | | 3 Marik mas. | | | | $1,100. | | | 1 Injin Gittar. | | | | 20 Tikai. | | | | 40 Eko manok. | | | | 2 Babi. | | | | 1 Lampu gas. |
It is Plaintiff's case that Defendant left quite voluntarily or in other words deserted him, but Defendant alleges that she was driven out by Plaintiff and his wife. Having listened to the evidence I have come to the conclusion that Defendant cannot be said to have left Plaintiff and his wife quite voluntarily. I do not think she was literally driven out but Plaintiff and his wife made conditions very difficult for her so that ultimately the only sensible course was for her to leave. I do not think- she really wanted to leave and for that matter I do not think Plaintiff and his wife really wanted her to leave either. I think there were faults on both sides and as a result Defendant and her husband, Plaintiff and his wife just could not get on together. What is the Dayak custom regarding the distribution of property between adopting parents and adopted child in these circumstances where in fact the break-up may be regarded as the fault of both the parties or of neither? In my view I think it must be construed as this: the adopted child is entitled to share equally with each parent and any other entitled person living in the same bilek in all property acquired by the bilek from the commencement of adoption up to the time the child left the adopting parents.
In this case apart from Plaintiff, Plaintiff's wife and Defendant the only other person living in the bilek according to the evidence who may be considered to be an entitled person is Dalan anak Empeni. I do not accept Dalan anak Empeni's absurd contention that he has lived in the Plaintiff and his wife's bilek for 20 years i.e., throughout Defendant's adoption-but by marrying Defendant, by moving into the Plaintiff and his wife's bilek and by living there for a substantial period of time-as I am satisfied he has-I consider he is entitled to' share equally with Plaintiff, his wife and Defendant in the adoption period acquired property.
In these circumstances I give judgment in the form of a declaration as follows:-
It is declared that Plaintiff, Defendant, Plaintiff's wife and Defendant's husband are each entitled to 1/4 share in the following property:
| Land. | | | | | | (a) 1 4-acre rubber garden of 800 trees at Rantau Kanpayang, Pakan. | | | | | | (b) 1 pepper garden of 140 vines at Rantau Kanpayang, Pakan. | | | | | | (c) 1 pepper garden of 140 vines at Rantau Kanpayang, Pakan. |
| | Chattels. | | | 1 Labu Kenditamaga. | | | 1 Engkromong. | | | 1 Bebendai. | | | 1 Tajau. | | | 4 Lampit. | | | 2 Tinchin. | | | 4 Buah Paoh. | | | 30 Marik perak. | | | 3 Marik mas. | | | $1,100. | | | 1 Enjin Gittar. | | | 20 Tikai. | | | 40 Eko manok. | | | 2 Babi. | | | 1 Lampu gas. |
formerly held in the bilek of the Plaintiff (Entinggi) and his wife (Saon).
Parties to pay their own costs of action.
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