Native Courts System

No.

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Attachment

Galau anak Kumbong v. Penghulu Imang & 30 Ors.

IN THE NATIVE COURT OF APPEAL

           GALAU ANAK KUMBONG
           BUNKONG ANAK TARANG
           RENTANG ANAK UMBANG and
           SERIT ANAK NUING

(Appellants on their own behalf and
On behalf of all Ibans of Ulu
Pasai Siong Kiba) ... ... ...	...	...	…	Appellants
versus
PENGHULU IMANG and 30 others	...	...	...	Respondents

In the Native Court of Appeal at Sibu before Williams, J. and Penghulu Jinggut anak Penghulu Atan and Anyaw anak Bakit, Assessors.

Sibu Native Court of Appeal No.3 of 1966.

Date of Judgment: 10th December, 1966.

Boundary dispute-Temuda rights-Whether Dayaks in one administrative district could farm in another administrative district under different Penghulus.

As a result of the construction of a new road a dispute arose as to temuda rights of certain land, necessitating the ascertainment of the proper boundary of the two groups of Ibans. The question was whether the Ibans in ayah Administrative District could hold temuda rights in the Sibu Administrative District. The District Native Court decided that ordinary customary principles must apply, that is, whoever fell the primary jungle and cultivated thereon would establish a customary right. The Resident's Native Court upheld this decision holding that administrative boundaries were not germane to the issue. On appeal by way of case stated the opinion of the Native Court of Appeal was sought on two matters.

Held:-

	(1) That administrative boundary as such has no relevance to the creation and holding of temuda land.

	(2) That a Native Court has jurisdiction to decide questions of rights over land by reference to an agreement between parties or their predecessors defining the boundary between two communities.

Cases referred to:-

	(1) Udin anak Lampon v. Tuai Rumah Utom (1949) S.C.R. 3.

	(2) Sumbang anak Sekuam v. Engkarong anak Ajah (1958) S.C.R. 95.

	(3) Sat anak Akum and Another v. Randong anak Charareng (1958) S.C.R. 104.

	(4) T.R. Bujang anak Gunter v. T.R. Tanjong anak Usat (Sibu Native Court of Appeal No. 2 of 1966).

Chew Peng Cheng Esq. For Appellants.

Respondents in persons.

          WILLIAMS, J. delivered the judgment of the Court:-

          This case has arisen out of dispute as to the temuda rights bordering along the boundary between Sibu District Area and Mukah District Area in the Third Division; rights which are affected it seems by the construction of a new road.

          It is not clear how the matter came before the District Native Court where it was first heard but it appears that what started out as an enquiry into the rights over an individual area of temuda land became a general action, the crux of which was whether the Oyah Iban under the jurisdiction of Penghulu Imang could farm temuda land under the jurisdiction of Penghulu Poh. Or, in other words, whether the Iban whose houses are in the Oyah Administrative District could hold temuda rights in the Sibu Administrative District, and particularly the UIu Pasai Siong.

          The whole dispute between the two groups of people involved turns on whether there was an agreement entered into during the Japanese Occupation between Penghulu Kaya of the Sibu Iban and Penghulu Imban of the Oyah Iban which demarcated their respective areas along the line dividing the two Administrative Districts. The effect of this agreement so say the Sibu Iban is that any rights then held by the Oyah Iban in their area were abandoned, or forfeited, and thus no temuda land in the Sibu Administrative Area can now be theirs.

          The Oyah Iban deny any such agreement and claim that as their ancestors felled the original jungle and farmed the land, the temuda rights thus created are theirs.

          The District Native Court decided that, (a) the administrative boundary as such was of no relevance in that of itself it created no legal bar against anyone; and (b) that there was no sufficient evidence of any agreement between the two Penghulus delimiting the land which could be farmed by their respective communities. The court then decided that in these circumstances ordinary customary principles must apply. Those principles were set out as follows:-

"It is always recognised under native customs that whoever fells the primary jungle and cultivates thereon, established a customary right. Therefore following this custom all those who felled the primary jungle and cultivated thereon regardless of where they came from have a customary right over the temuda or '''respective temuda,"

          From this decision the Sibu Iban appealed to the Resident's Native Court. That Court dismissed the appeal and in particular held that (a) administrative boundaries were not germane to the issue, and (b) that the law relating to the creation and holding of temuda is as set out by the lower court.

          Subsequently, on an appeal being again lodged, the Resident stated a case for the consideration of this Court.

          The points of Native custom upon which an opinion is sought are as follows:-

	(a)	whether the administrative boundary between Sibu and Mukah Districts has any relevance in determining native customary rights over land;

	(b)	whether a Native Court has jurisdiction to decide questions of customary rights over land by reference to an agreement between the parties or their predecessors (should one be proved to exist) defining the boundary between the two communities,

          As at present advised this Court is unanimous in the opinion that the administrative boundary as such has no relevance to the creation and holding of temuda land. It is not clear how these boundaries first came into being but that they can be changed is not to be denied. It is difficult to see therefore why rights over land should be created or lost thereby. That they may be, indeed are, used as useful guides by Iban communities is another matter.

          The answer to the first question then is, no,

          The second point raised is one which has caused considerable difficulty. The two Native members of the Court, Penghulu Jinggut, M.P. and Mr. Anyau, are quite adamant that the answer is in the affirnative. In other words they are firmly of the opinion that the Ibans may delimit the areas in which they, as members of anyone cornrnunity, may hold temuda rights over land. They are equally adamant that such an agreement when made may extinguish existing rights.

          That there are territorial areas within which rights may be held, or rather retained, cannot be doubted. Indeed Penghulu Imang, the representative of the Oyah Iban, admitted that such an agreement, as here claimed, if made could prevent the creation of new temuda. (He disputed however that temuda rights already created could be lost thereby).

          There is ample judicial authority to this effect. The leading case is that of Udin anak Lampon v. Tuai Rumah Utom.⁽¹⁾ In that case Hedges, C.J. said:-

"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. The 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."

Then there is the case of Sumbang anak Sekuam v. Engkarong anak Ajah.⁽²⁾ where, inter alia it was decided that if the holder of individual rights moves from a 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 a "reasonable farming distance" from the land.

In the case of Sat anak Akum and Another v. Randong anak Charareng,⁽³⁾ a decision of the Court of Appeal, Lascelles, J., a man much versed in Iban law and custom, had this to say:-

"The next question to consider is that of temuda land. To put it as simple as possible these temuda rights are rights to farm over Crown Land and are a form of customary tenure; the holders are mere licensees of the Crown, but it has been my experience that this is difficult to explain to Dayaks in general and they regard it as land owned by them. Temuda rights are created only for the use of the original worker, his heirs and descendants. They certainly cannot be transferred for value. If the "owner" leaves the distict the land reverts to the longhouse for communal use under the authority of the Tuai Rumah who can allocate the land to anyone in the house who he considers most needs the land. This of course only applies if there are no heirs remaining in the district. If such do remain then they take over the use of the land. If ever the "owner" returns to the district he can resume the use of the land. The "owner" leaving the district without any heirs to take over the land may arrange for someone else to have the prior right to farm that land by taking from him what is called "tungkus asi", which is some form of token to bind the agreement. It may not be anything of value, which would invalidate the transaction, but may consist of as much as a pig. The rights taken over by the person paying the "tungkus asi" are inheritable by the heirs of that person but revert to the original owner if he returns, or to his heirs if they return."

          A further and important case is that of T.R. Bujang anak Guntor v. T.R. Tanjong anak Usat.(4) It is important in that there it was recognised that longhouse communities can agree to boundary lines which will prevent members from acquiring temuda rights in each other's area.

          That these decisions are not exhaustive of the law is clear. They must necessarily have been governed by the particular facts before the court and the form of the questions posed for consideration. But the constant reference to district, river and Penghulu's jurisdiction and to the creation and loss of rights is abundant authority for the point at issue.

          There is no direct authority for the proposition that temuda rights once established may be lost by the drawing of a boundary. Indeed the case of T.R.Bujang anak Guntor v. T.R. Tanjong anak Usat, supra, may appear to be somewhat against such a possibility But in that the land in question was within the jurisdiction of one Penghulu, a point very material to the decision, it may be inferred that the rights in question may well have been lost if as here the area involved was within the jurisdiction of another Penghulu. The view of this Court is that the temuda rights could have been so adversely affected.

          The answer to the second question posed therefore is, yes.

          What rights a Sibu Iban could have over temuda abandoned or forfeited, by the Oyah Iban remains a moot point. If such person cannot establish any rights over that land by virtue of the agreement itself or by any other customary usage it remains of course unencumbered State Land and there cannot be any question of his having any claims to compensation from Government, a point very much in the mind of both parties.

          This Court feels that on the evidence there is a strong possibility that there was some agreement between Penghulu Kaya and Penghulu Imban and that further evidence should be sought thereon. The terms of such agreement would of course have to be clearly established particularly the terms of any provision providing for the loss of temuda rights already in existence.

          However from what has been said it is clear that each claim must be considered separately and in that that was not done here there is no point in ordering a retrial.

         This Court therefore makes no further order and each claim to temuda land must be dealt with on its merits, but with regard to the answers here given to the questions posed by the Resident's Native Court.

          It should be noted that the Court has confined itself in this case to a consideration of the rights to farm temuda land. Different consideration apply to the right to receive the benefit of fruit and rubber trees. Both Penghulu Jinggut and Mr. Anyaw are adamant that no agreement between communities could deprive an individual and his heirs to their property in such trees. Those trees remain his until they wither and die.

Guideline on Law And Procedure of the\ Native Courts

The Guideline is aim to help the officers dealing with the administration and management of Native Courts matters.

H.H. The Rajah v. Dunggaw & Anor.

SUPREME COURT

H.H. THE RAJAH versus 1. DUNGGAW

2. UNJAR

(C.J. 371/1934)

Criminal law-Depredation under section 126 of the Indian Penal Code-Illegal conviction-Jurisdiction in murder-Section 7 of the Criminal Procedure Code-Common law-Head-hunting.

The accused were convicted in the Resident’s Court, Third Division, of depredation on the Territories of a foreign Power at peace with His Majesty under section 126 of the Indian Penal Code, and sentenced to seven years’ imprisonment.

The case was set down for revision in the Supreme Court.

Held:

	(1) That section 126 of the Indian Penal Code was not part of the Law of Sarawak as it had not been applied by section 25 of Order No. 1-1 (Interpretation) 1993 and that the convictions were therefore illegal and must be quashed.

	(2) That as the crime alleged took place outside Sarawak, a Sarawak Court had, under section 7 of the Code of Criminal Procedure, no jurisdiction to try the accused for murder.

	(3) That on the facts alleged the common law offence of head-hunting was disclosed and that the accused must be tried by the Resident’s Court on this charge.

BEFORE THE CHIEF JUSTICE

Revision of proceedings in Resident’s Court, Third Division, under section 296 of the Code of Criminal Procedure.

            Notice of the proceedings was served upon the Government Secretary but there was no appearance for the Crown.

            The facts appear in the judgment of the Chief Justice.

March 23^rd, 1934

            The Court quashed the convictions for depredation under section 126 of the Indian Penal Code and ordered that the prisoners should be tried in the Resident’s Court, Third Division, for the common law offence of head-hunting.


March 24^th, 1934

The following judgment was delivered.

THE CHIEF JUSTICE: This is a case in which two Dayaks have been convicted under section 126 of the Indian Penal Code of committing depredation and sentenced to seven years’ imprisonment. As the convictions were prima facie illegal I called for the record and the case therefore comes before me by way of revision. I gave notice of the proceedings to the Government Secretary asking if he wished to support the convictions and, if so, on what ground. No answer was received and no one appeared in support at the hearing. I assume therefore that the Crown do not wish to defend the convictions. This does not, however, entitle me to quash the convictions unless I am satisfied that they cannot stand.

          2. The Indian Penal Code was originally applied to Sarawak by the Courts Order, 1922, but not the authority is the Interpretation Order, 1933. By section 25(a) it is clear that section 126 of the Code is not applied, and it is therefore not part of the law of the State.

           3. There would seem therefore to be no doubt that the convictions are illegal, but before definitely so deciding it is necessary to examine certain matters in the case. The acts charged are alleged to have been committed in Kanto in Dutch Borneo in July, 1932, and were reported by the Dutch authorities who asked that the offenders should be arrested and surrendered

          4. After some delay, one of the present accused, Dunggaw, was arrested in November, 1932. It was apparently proposed to surrender him at one to the Dutch, but he was ultimately held-and illegally held-under arrest until March, 1933, when it was proposed to surrender him and the Dutch were actually so informed. There was then, however, a proposal that a peace-making should be held and Dunggaw was therefore further detained in custody. Subsequently, the second accused, Unjar, was arrested, but the date on which his arrest was effected is not state. It appears to have been within the last few months.

          5. The suggestion for a peace-making was unsuccessful and on August 29th, 1933, the present Resident, Third Division, when Acting Government Secretary, wrote a minute to the Acting Resident, Third Division, a copy of which he enclosed with his letter to me of March 12th, 1934. This is in effect a direction that the accused were to be tried and were to be sentenced to imprisonment for seven years. Afterwards they were to be released when they have served six months.

          6. Although this minute was written in August the trial did not take place till March-over six months later. The delay is explained party by the fact that the aum was not held until November 3rd, and partly because some sort of negotiations were carried on with the accused through a Dayak headman. Finally, in January, the headman came to Kuching when a definite offer was made based on the suggestions in the minute of August 29th, namely, that if the accused surrendered they would be imprisoned for six months.

          7. Actually, the instructions in the minute have not been carried out, e.g., there is no mention in the record that the full board of Dayak assessors mentioned in paragraph 2(iii) was summoned. Moreover, there is nothing in the minute which indicates that the accused are to be tried under section 126. Murder is mentioned in paragraph (i), possibly because the effect of section 7 of the Criminal Procedure Code was not realized that there was no power to punish for murder committed in Dutch Borneo, but the accused were not tried for murder. Further, if murder were to be the charge it is not easy to see how the Court can be directed to give a sentence of seven years.

          8. This minute contained many objectionable features upon which I do not wish to enlarge. Two things in particular are most unfortunate: the direction to the Court to convict as it clearly prejudges the case, and the suggestion (which was afterwards definitely held out as an inducement to the accused) that the sentence of seven years was to be imposed merely as a matter of form and was afterwards to be commuted. This was done, according to the minute, so that the sentence actually imposed by the Court should satisfy the Netherlands Indian Government. I can hardly think that it will have this effect.

          9. The Resident, Third Division, at first refused to send the record on the ground that “it was considered unnecessary. “As the record was called for under a statutory power the Resident had clearly no authority to refuse to send it and his action besides being improper was also ill-advised as no good purpose can be served by concealing what was done. In any case proceedings were, or ought to have been, held in public. If they were not held in public the convictions are bad for that reason alone unless the public were excluded for some special reason under section 6 (ii) of the Criminal Procedure Code. If this were done the reason should have been recorded, but there is nothing in the record to show that any such order was made.

          10. It is fortunately not necessary to consider these points in detail as on the main question I have no doubt. The minute of the Acting Government Secretary cannot on any view be regarded as an authority to convict for conduct, which however objectionable, is not a crime by the law of the State. It is therefore abundantly clear that I have no option but to quash the convictions.

11. The question remains what is the proper action to be taken. I think there is no doubt that head-hunting has always been a punishable offence in Sarawak since the days of the first Rajah and as such It may properly be regarded as an offence sui generis against the common law. The convictions under section 126 will therefore be quashed and there will be a direction to the Resident’s Court to try the accused for the common law offence of head-hunting. In the circumstances, I think the trial should be with assessors. As far as is possible it should be explained to the accused that they might have been charged with and tried for murder in Dutch Borneo, but that instead they are being dealt with more mercifully and are being tried for head-hunting which has always been forbidden. They cannot be expected to understand the fundamental importance of the point involved, but this does not affect the issue. It is essential to establish the principle that a person can only be punished for conduct which is made criminal by the law, whether statute law or common law. On any other view rule by law is replaced by caprice, and the fundamental right of the liberty of the subject is destroyed.

	Convictions under section 126 of the Indian Penal Code quashed:
	Re-trial in Resident’s Court, Third Division, ordered on a charge of head-hunting under the common law.

Haji Mohidi bin Ana v. Spiah binti Haji Samat

FIRST CIRCUIT COURT

HAJI MOHIDI BIN ANA

versus

SPIAH (f) BINTI HAJI SAMAT

Malay intestacy-Nature and effect of ‘’certificates of transmission’’-Sarawak Malay Customs.

The facts of the case are set out in the judgment.

Held:

	(1) That the “certificate of transmission” relied on by the appellant/defendant was bad-
	(a) because it was not signed by “Probate Officer”: and
	(b) because it purported to transfer the whole of the estate of the intestate to the defendant/respondent:
	(2) That the correct distribution of the estate of the intestate was (a) one-third and one-quarter of the remaining two-thirds to the defendant / respondent, (b) subject to baital-mal the remaining three-quarter to two-thirds to the sons and daughters of persons who were brothers of the deceased by the same father.

BEFORE HIS HONOUR JUDGE K.H. DIGBY AND THE HONOURABLE THE DATU BANDAR.

Both parties in person.

20th January, 1951

          The following judgment was delivered.

          DIGBY, J.: This appeal is concerned with the distribution of the estate of one Sunus bin Lamit who appears to have died very many years ago. That estate is said to have consisted of one small rubber garden only, and it is merely the recent increase in the price of rubber which has brought this dispute before the Courts. No steps were taken to wind up the deceased’s estate until 1948 when the Appellant obtained a “certificate of transmission” to the whole property. He bases his case on the fact that he is the grandson of the deceased’s widow, who, he says, must be taken to have inherited the whole of the deceased’s estate. In support of this contention he relies strongly on section 41 of the Undang-Undang Melayu but that section makes it perfectly clear that a divorced wife or surviving widow is not entitled to the whole of her husband’s estate but only to a part thereof. The Respondent bases her claim on the fact, which was sufficiently proved in the District Court, that she is a niece of the deceased. In her plaint she asked in effect for the ‘certificate of transmission” to be set aside, and in effect she succeeded, although it is not wholly clear from the judgment of the District Court in what manner that Court intended that its decision should be enforced.

          The so-called “certificate of transmission” was bad for two reasons. Such a “certificate” provides a short and simple procure, sanctioned by practice rather than by express provision of law, for the transmission of landed property to heirs in cases where the Probate Officer has a assumed the administration of the estate under the provisions of paragraphs (b) or (c) of section 3 of the Administration of Estates Ordinance. A “certificate of transmission” has no further or other validity than that. The Probate Officer in respect of Malay estates in the District of Kuching is the District Officer. The “certificate of transmission” in question was signed by a Native Officer who has never held the position of District Officer, Kuching, and who clearly had no authority to intermeddle with the estate in any way. It is of the greatest importance that when powers are conferred on a District Officer by law they should be exercised by a person answering to that description, and should be exercised by a person answering to that description, and should not be delegated to any subordinate unless there is express power so to do. The “certificate of transmission” in this case, not having been signed by the Probate Officer, is bad on the face of it.

It is also bad because it is perfectly clear that the Appellant was not entitled to inherit the whole of the estate of the deceased. According to Sarawak Malay custom he inherited through his grandmother only one-third of the deceased’s estate plus one-quarter of the remainder. The remaining three-quarters of two-thirds of the whole estate are divisible between the sons and daughters of persons who were brothers of the deceased by the same father, subject to the legitimate claims of baital-mal. The Respondent says that she has no cousins falling within this description. The Appellant says that she has. As there is no evidence in the District Court record on this disputed question of fact this Court is unable to arrive at a final conclusion with regard to the distribution of the estate after the share of the Appellant has been deducted therefrom.

This appeal therefore fails insofar as the decision of the District Court, that the Appellant was not entitled to inherit the whole of the deceased’s estate and that the Respondent was entitled to a share therein, is concerned. It fails also insofar as that decision implies.

Order of District Court varied.

Haji Mohidi v. Zulkipli bin Ana & Ors.

IN THE NATIVE COURT OF APPEAL

HAJI MOHIDI BIN ANA	…	…	…	…	Appellant
versus
ZULKIPLI BIN ANA
JULAIHI BIN ANA
RAMLAH BINTI ANA
JAUYAH BINTI ANA	...	...	…	…	Respondents

          In the Native Court of Appeal at Kuching before Silke, J. (President), Yuan Haji Morshidi and Abang Haji Adenan.

          Native Court Civil Appeal No. NA 3 of 1968.

          Date of Judgment: 19th February, 1969.

          Land dispute-Children of owner of land-Distribution according to Muslim customary law-Deed of transfer-Sale.

Norani owned considerable land. One piece known as Lot 26 the subject-matter in dispute was also previously owned by her. Ana bin Lani married one of Norani's daughters. With Norani's blessing Ana built his house on Lot 26. At the time of his death in 1931 Ana left surviving him six children of which five, Appellant and Respondents are before the Court. Appellant is the eldest son. On 26th October, 1931 he applied for Letters of Administration to deceased's estate. In support of his application he swore an affidavit describing the only asset but without mentioning the Respondents as heirs. On 1st December, 1931 he obtained the Letters of Administration. In 1935, there being no title issued to native communal land Appellant caused his name to be registered on the Register of Lots. The estate does not seem to have wound up. Although 2nd Respondent, Julaihi admitted to signing a deed of transfer he denied receiving any money from the sale. By Muslim customary law children are entitled to their proportionate shares of the estate of their parents. The Native Court of Appeal upheld the decisions of the lower courts.

Held:

That Lot 26 is divisible among the heirs in accordance with Muslim customary law irrespective of whatever gains certain heirs may have made elsewhere.

           SILKE, J. delivered the judgment of the Court:

          This is an appeal from the Resident's Native Court on a case stated under the provisions of subsections (3) and (4) of section 8 of the Native Courts Ordinance and the question of law is as follows: (a) whether having regard to the evidence the decision of the Resident's Native Court is correct and can be supported in law; and (b) if the answer to (a) is in the negative who should be held to be entitled to the rights over the land in dispute.

          The facts are set out in the case stated, paras. 1 to 4, and we do not think it necessary to go into them in any great detail here. We are concerned only with that which became known as Lot 26 in 1935. At the time of his death in 1931 Ana bin Lani left surviving him six children, of which five are now before this Court, with the Appellant herein, Haji Mohidi bin Ana, the eldest son. On the 26th October, 1931, the Appellant swore out an affidavit in support of an application for Letters of Administration to the estate of his deceased father. In that affidavit no mention is made of four of the heirs of Ana and the only asset described is "atap belian house at Kg. No. 1, Kuching, valued by Appellant (Haji Mohidi) at $350". It is common knowledge that in 1931 as there were no lot numbers applicable to the land, land itself was not declared but, by Muslim customary law, where the land is family land as here Ana and his wife held the land and their children would be entitled to distribution. Letters were granted on 1st December, 1931.

          It would appear that originally Norani, who first married Pa' Kassim and later Salleh and of whose issue Samsuddin bin Salleh was one, owned all the land in the area. Ana married one of Norani's daughters and would appear by 1931 to have built his house on the land, now known as Lot 26, with the blessings of Norani. On the land settlement in 1935 the Appellant's name was entered on the Register of Lots, there is no title issued to native communal land, because he was living in his father's house on the land. He was still administrator of his father's estate, indeed the estate does not seem to have been wound up at any time. He had a fiduciary relationship with his brothers and sisters but does not seem to have paid much heed to his duty in this respect.

          The matter of Lot 27 has no real relevance but we trunk that we should comment to this extent that we do not fully believe Respondent No.2, Julaihi, when he says he signed the deed of transfer in respect of that lot without receiving any money for its sale.

          We ask ourselves why should the Appellant apply for Letters of Administration to an estate of Ana, if, as was argued before us, the land really belonged to Norani. We feel that the decisions of the District Native Court and the Resident's Native Court were correct on the evidence and that they can be supported in law.

          It has been urged upon us that if we came to that conclusion then we should alter the share distribution of Ana's estate to allow for whatever gain the first two Respondents have made from their ownership and sale of Lot 27. With this submission we regret we do not agree. If, as we say it is, Lot 26 is divisible between the heirs as a proper customary division of the estate of a deceased then each is entitled to his customary share irrespective of their gains elsewhere.

          In the event we answer question (a) in the affirmative and therefore question (b) does not arise.

          The effect of this is that the appeal will be dismissed and the decision of the Resident's Native Court upheld. This is the unanimous judgment of the court.

Hii Tiong Yew v. Budual anak Laju & 4 Ors.

IN THE HIGH COURT OF SARAWAK, NORTH BORNEO AND BRUNEI

HII TIONG YEW …	…	…	…	…	Appellant
versus
1. BUDUOL ANAK LAJU	…	…	…	…
2. RADING ANAK LAJU	…	…	…	…
3. LIANG ANAK LAJU	…	…	…	…	Respondents
4. JAMBAN ANAK BANTAU	…	…	…	…
5. MULAI ANAK ENGGOH	…	…	…	…

In the High Court of Sarawak, North Borneo and Brunei at Sibu before Harley, J.

          Sibu High Court Civil Appeal No. 9/62.

          Date of Judgment: 12th September, 1962.

          Trespass to land-Damages-Customary rights over land-Dayak cemetery-Land Code, Sections 5(1) & 136-Survey not properly carried out before title issued-Customary rights not properly extinguished-Rectification.

Plaintiff owned a piece of land at Bukit Penyan, Sibu for which he obtained a title in 1957. In April, 1962, he engaged some labourers to fell the trees in the land. While the labourers were doing so Defendants stopped them from felling and took away the axes, claiming customary rights over the land. Penghulu Pilang gave expert evidence on Dayak customs as to burials and penalty. Dayak burial ground is regarded as sacrosanct. The cemetery was used by three longhouses. Three graves were found within the land held by Plaintiff under the lease. The Sibu District Court held that the three graves were there at least seven years and that the land had been used as burial ground and consequently they had acquired customary rights over the land and such rights had not been extinguished. Rectification was a matter for the Registrar under section 136 of the Land Code. That Defendant had a good defence against trespass by establishing the exercise of a legal right recognised by law.

	Held dismissing the appeal by Harley, J:
		(1) That the learned Magistrate was right in his finding of facts and exposition of
	the law of trespass.
		(2) That when the title was issued to Plaintiff the customary burial rights had not
	been properly extinguished for two reasons, namely. Plaintiff's title was subject to easement and error on the part of the Superintendent of Lands and Surveys in delineating the boundaries did not extinguish prior existing rights.

HARLEY, J.: The learned Magistrate who tried this case took the trouble to walk over the jungle land, the subject of this suit, went closely into the facts and the law, and gave very full and able consideration to the problem before him. I may say at once that I agree generally with his view and finding of the facts, with his exposition of the law of trespass, and with his conclusion.

          I have ascertained that the Plan X produced and considered in this Court of Appeal was handed in to the Court below together with the Notebook (Ex. D). We have thus three plans or sketches of the land in dispute:

          (a) on the back of the formal Lease (Ex. 1);

          (b) in the Survey Officer's notebook No. D.6888;

          (c) Plan X itself.

It seems to me that when the Surveyors excised from the grant to Plaintiff a portion of land to be reserved as an Iban cemetery, they fell into the error of drawing too narrowly the boundaries of that cemetery on the Plans. The learned Magistrate on the evidence very properly held that the three graves shown inside the present boundaries of Plaintiff's land were in fact in existence when the Lease was granted, and were also within the limits of the land already intended and used as burial ground. The question which arises is whether the formal assignment of the land (including part of the burial ground) to Plaintiff extinguishes the customary burial rights. In my view such rights are not extinguished for at least two reasons:

	(a)	Plaintiff's title would in law be subject to subsisting easements (S.132 (1)(f) Land Code). I think that the right to bury one's dead in adjoining ground can and docs constitute an easement, even though such a right may not before have been explicitly recognised in the English cases (See RE ELLENBOROUGH PARK 1955 2 AER 38 at page 42). In the instant case, off the bottom or the Plans is Iban land with longhouses on it. That lban land constitutes a dominant tenement; the neighbouring jungle (the cemetery), accommodating that dominant tenement, is the servient tenement.
	(b)	If the Superintendent of Lands and Surveys, contrary to his own intentions or by inadvertence, makes an error in delineating the boundaries, he does not thereby extinguish prior existing rights.

Since Mr. Wong, with his customary ability, has set forth three succinct grounds of appeal,· I feel that I should deal with them specifically:

Ground 1

"The learned trial Magistrate was wrong in law in holding that the existence of 3 graves in a jungle is sufficient to confer customary right on the Defendants, without considering the possibility of someone burying the dead inadvertently outside the limits of the customary burial ground (cemetery)."

          My answer to this Ground is that the 3 graves did not exist in isolation but were alongside and in fact part of the rest of the cemetery. The learned trial Magistrate was justified in holding that they were not without, but within, the customary burial ground.

          Ground 2

          "The learned trial Magistrate misdirected himself by wrongly interpreting the significance of the bottle of arrack and two fowls, as such requirement by the workers was consistent with an act of propitiation for carrying out work on land adjoining a cemetery for work might damage the graves nearby in the next lot of land. It could not be consistent with working on the burial ground (cemetery) because such act would be prohibited by customs and punishable by customary law by which the workers (being Ibans) were bound."

          It would not seem very material whether the labourers took the one view or the other of the significance of the "act of propitiation". Those labourers wanted to guard against the risk of a tree falling on any grave. During his visit to the land, the learned trial Magistrate found that in fact one of the trees had fallen, or been felled, on top of one of the graves.

          Ground 3

          "The learned trial Magistrate while correctly stating the law regarding the indefeasibility of title was wrong in making it defeasible by introducing extraneous matters not adduced in evidence. He ought to have held that whatever customary right that might be on the said land it was extinguished by implication by the grant of title to the Plaintiff. "

          I agree with the view of the learned trial Magistrate that the Iban customary rights of burial were not extinguished by the grant of title to the Plaintiff.

          In conclusion, I would quote the following paragraph from the judgment of the learned trial Magistrate (p. 3):

          "There is no doubt in my mind that investigation was not fully carried out by the Lands and Surveys Department before granting the lease to Plaintiff. The very presence of a Dayak cemetery in the vicinity should have been sufficient to alert any reasonable person investigating the land to be careful. It is doubtful if the existence of the three graves were known the Lands and Surveys Department would have granted Plaintiff the said lease without first ascertaining if the customary right had been extinguished. It is appreciated that as the land was covered with primary jungle investigation would be rendered difficult. But this should not be regarded as sufficient reason for not investigating fully in view of the proximity of a Dayak cemetery. At least inquiry should have been made from the Dayak community using the cemetery. The Registrar has the power of rectification of the register under section 136 of the Land Code. It is a matter for him to decide. This Court has no jurisdiction to order rectification."

This present Court of Appeal will also make no order of rectification because none has been asked for. It would seem appropriate, however, for the Registrar, preferably in combination with a Penghulu and / or with a more senior officer of the Administration, to re-survey this land and determined the proper limits of the cemetery boundaries.

The Appeal is dismissed with costs, which are assessed at $50.00 ($10.00 to each Respondent). (For reasons of expense, Respondents have not been called on to be present to-day, but it is open to them, if they should so desire, to dispute the amount of costs awarded them).

Indun v. Dendang

THE SUPREME COURT OF
SARAWAK, NORTH BORNEO AND BRUNEI

INDUN (f) ANAK UGU	…	…	…	…	Plaintiff
versus
DENDANG (f) ANAK SAING		…	…	…	Defendant

In the High Court at Binatang before Blagden, Ag. J.:

Civil Case No. 3/53.

Date of Judgment: 20th March, 1953.

          Native Customary Law-Sea-Dayak punas inheritance-Distribution of barang lama and barang bahru.

          A Sea-Dayak, Nuli, died punas leaving surviving him a widow, a child by a previous marriage which had been dissolved, and two sisters.

Held:

(1) The barang lama passes in equal shares to Nuli's sisters:

(2) The barang bahru belonged eqally to all persons, including Nuli himself and his infant child living in his bilek at the time of his death.

(3) Nuli's own share of the barang bahru, amounting in this case to a one-fifth share, would normally pass to his widow for the purpose of erecting a monument to him, but as in this case she had erected no monument and had, in fact, married again, that share now falls for distribution between his two sisters.

NOTE:

          Barang lama = "old property", i.e., property acquired before the marriage.

          Barang bahru = "new property", i.e., property acquired during the marriage.

          Punas = "without issue".

          Bilek = "room", i.e., the family household unit.

The parties in person.

BLAGDEN, Ag. J.: Plaintiff claims Nuli's share of barang bahru acquired by Nuli during his marriage with Defendant. It is not disputed that Nuli died punas and the relationships between the parties are also admitted as follows:-

Defendant does not dispute Plaintiffs right to Nuli's barang lama but it is to be noted that Plaintiff must share this barang lama with her sister, Manyi (f). Defendant's first marriage to Ensali, by whom she had Sulaw, was dissolved. She then married Nuli. When Nuli died there were living in the bilek, Nuli, Defendant, Saing, Pia (f) and Sulaw (who was, and still is, a minor). In my view these 5 persons each enjoyed a 1/5 share in the barang bahru acquired during the time they were all living together. I cannot agree that Sulaw, being a minor, did not acquire an equal share with the others. The question for decision is who inherits Nuli's 1/5 share?

In my view the Dayak custom where a husband dies punas is that his widow takes his share of the barang bahru provided she stays on in the bilek and does not re-marry.

The real object of her receiving that share is that she shall use it in erecting a monument to her deceased husband. If she does that, his heirs and relatives will have no claim on that share, even if she subsequently re-marries. But if she does not do that, and if she subsequently re-marries or leaves the bilek, then her husband's heirs and relatives are entitled to claim her husband's share of the barang bahru.

That in fact is precisely what has happened here. There is no evidence that Defendant has erected any monument for Nuli and she has quite recently married Dali anak Guma. She has no longer any right to Nuli's 1/5 share of the barang bahru which accordingly reverts to Nuli's heirs, Plaintiff and Manyi (f) who must divide this 1/5 share between them.

	Judgment is given in the form of the following declaration:
	(1) That Indu anak Ugu (Plaintiff) and her sister Manyi (f) are entitled to equal shares in the barang lama of Nuli, the deceased;
	(2) That Dendang anak Saing (Defendant), Saing, Pia (f) and Sulaw anak Ensali are each severally entitled to one-fifth share, and that the said Indun anak Ngu (Plaintiff) and her said sister Manyi (f) are entitled jointly to one-fifth share in the barang bahru of the said Nuli, the deceased.

The actual mode of division of the property must be settled amongst the parties but in default of their agreement will be referred to the district Penghulu for decision.

Injing v. Tuah & Anor.

IN THE NATIVE COURT OF APPEAL

INJING	...	...	...	...	...	...	...	Appellant
versus
TUAH and ANOR	...	...	...	...	...	...	...	Respondents

In the Native Court of Appeal at Sibu before Seah, J., Ali Majang and Penghulu Pengabang, Assessors.

Native Court of Appeal, Civil Appeal No. 1 of 1970.
Date of Judgment: 23rd October, 1970.

Native Customary Law-Dayak Customary Law-Temuda land-Owner of land under customary rights emigrating elsewhere in Sarawak-Whether he loses rights in the land-Whether person subsequently using the land acquires right in it-Land Code (Cap. 81) s. 5-Native Customary Law Ordinance (Cap. 51).
s.

In this case one Tamboh had owned certain land under Dayak Customary Law in the Third Division, Sarawak but he had emigrated to the Fourth Division without assigning the land to anyone. The Appellant claimed to be the cousin and adopted brother of Tamboh. The Respondents had made use of the said land with the permission of the Penghulu. The Resident's Native Court had allowed an appeal by the Respondents against the judgment of the District Native Court and had thereafter stated a case for the determination of the Native Court of Appeal. The case stated dealt with three short points of Dayak Customary Law as follows:-

	(a)	Is it right under Dayak Customary Law of the Third Division of Sarawak that once the owner of land under customary rights had emigrated elsewhere in Sarawak, he thereby forfeits all rights and interests in the land he leaves behind?
	(b)	If the answer to (a) is in the affirmative who is entitled to the rights and interests over such land?
	(c)	Whether having regard to the evidence, the decision of the Resident's Native Court is correct and can be supported in law?

Held, dismissing the appeal:

	(1) Under Dayak Customary Law of the Third Division of Sarawak the owner of land under customary rights forfeits all rights and interests in the land if he has emigrated elsewhere in Sarawak.
	(2) As the Respondents had made use of the land with the permission of the Penghulu, who had control over the said land, they have acquired a right and interest in the land.
	(3)The decision of the Resident's Native Court was therefore correct in law and could be supported by both the Native Customary Laws and the evidence produced before the courts.

(EDlTORlAL NOTE: Reference may be made to Abang v. Saripah (1970) 1 M.L.J. 164).

Cases referred to:
(1) Sumbang anak Sekam v. Engkarong anak Ajah (1958) S.C.R. 95.
(1) (1958) S.C.R. 95.

Daniel Tajem for the Appellant.

Joseph Tang for the Respondents.

SEAH, J. delivered the judgment of the Court:-

This is an appeal by way of case stated from the decision of the Resident's Native Court, Third Division, Sarawak, dated the 22nd August, 1969 when they allowed an appeal by Tuai Rumah Tuah anak Singalang and Ngindang anak Sengalang against the judgment of the District Native Court holden at Sibu, Sarawak. This appeal raises three short points of Dayak customary law and they are:-

	(a)	Is it right under Dayak Customary Law of the Third Division (of Sarawak) that once the owner of land under customary rights had emigrated elsewhere in Sarawak, he thereby forfeits all rights and interests in the land he leaves behind?
	(b)	If the answer to (a) is in the affirmative who is entitled to the rights and interests over "such land"?
	(c)	Whether having regard to the evidence, the decision of the Resident's Native Court is correct and can be supported in law?

The history of the case may be briefly summarised as follows:

	(i) The disputed temuda land is situated at the 13th Mile, Oya Road, Sibu, Sarawak and is held under Dayak Customary Law. It is therefore untitled land.
	(ii) It has been admitted that the disputed temuda land originally belonged to one Dayak named Tamboh, who emigrated with his family to Bintulu in the Fourth Division, some fifty years ago and there was no evidence that he assigned the customary rights in the land to Injing anak Kunbang or his father in the form of gift.
	(iii) It has not been disputed that before leaving the district, Tamboh had not handed over his customary farming rights in the land to another Iban of the same longhouse or residing under the same Penghulu's jurisdiction by means of tungkus asi which must be performed publicly, preferably before a Tuai Rumah and sealed with a customary tanda or token which may consist of a meal, pig or other chattel except money. It is to be noted that tungkus asi confers on the person a limited right only, viz., the right to farm for one particular season. It does not entitle the person "the tight to farm for an indefinite period.
	(iv) The Resident's Native Court rejected both the claims of Injing anak Kunbang that he is the cousin as well as the menyadi ambu or adopted brother of Tamboh on the ground that they had not been proved. Dealing with the Dayak custom of menyadi ambu, the Resident's Native Court held that menyadi ambu would only get the chattel such as gong, jar used for that purpose and would not be entitled to claim for equal share of the adopting parents' property including land.
	(v) The Resident's Native Court found as a fact that Tuai Rumah Tuah anak Singalang and Ngindang anak Sengalang have not been making use of the disputed temuda land since Tamboh's departure from the district and ordered that it should be reverted to them despite the fact they had entered into a void and invalid agreement to purchase the disputed temuda land from Tamboh in or about 1964, for the sum of $150.00 (dollars one hundred and fifty only).
	(vi) Against that finding, Injing anak Kunbang lodged his objection and acting under the provisions of section 8(1)(d) of the Native Courts Ordinance (Cap. 43) the Resident's Native Court stated a case containing the three abovementioned questions for the determination of the Native Court of Appeal.

Before dealing with the substantive questions, the court would like to refer to the provisions of section 5 of the Land Code (Cap. 81) and the relevant sub-section (2) reads:-

"(2) The methods by which native customary rights may be acquired are-

(a) the felling of virgin jungle and the occupation of the land thereby cleared;

(b) the planting of land with fruit trees;

(c) the occupation or cultivation of land;
(d) the use of land for a burial ground or shrine;

(e) the use of land of any class for rights of way; or

(f) any other lawful method:

	Provided that until a document of title has been issued in respect thereof such land shall continue to be State land and any native lawfully in occupation thereof shall be deemed to hold by licence from the State and shall not be required to pay rent in respect thereof unless and until a document of title is issued to him.
	Provided further that the question whether any such right has been acquired or has been lost or extinguished shall, save insofar as this Code makes contrary provision, be determined by the law in force immediately prior to the commencement thereof."

It is clear from the authorities that this disputed temuda land is governed by the Native Customary Laws, which are contained in Vol. 7 of the Laws of Sarawak. Appendix "A" on page 631. That the Dayaks in the Third Division of Sarawak are subjected to these native customary laws is implicit from the headnote which reads:-

	"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."
	Paragraph 7 provides, inter alia, that-
	"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."

This is because theoretically all untitled land whether jungle or cleared for padi farming is the property of the State. It or understood that-

"No Dayak is allowed to sell, purchase or lease (by way of demanding rent either in kind or in cash) untitled land."

So-

"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 the right."

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."

In Sumbang anak Sekam v. Engkarong anak Ajah^{(1) Lascelles, J. in delivering the judgment of the Native Court of Appeal said at page 97:-}

^{" .... 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 a 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."}

^{A fortiori, if the owner of such customary farming rights not only moves out of the longhouse but also leaves the same Penghulu's district and emigrates to another Division in Sarawak with his family, it is the opinion of the court that he shall be deemed to have abandoned his temuda land and lost all his customary rights to it. In which event, the abandoned land shall be known as tanah orang pindah or as is commonly known as tanah pindah in the Second Division.
Applying the law to the facts of the instant case, and in the opinion of the court the answer to question (a) would be in the affirmative.
The answer to question (b) must be confined to the specific finding of facts by the Resident's Native Court. Theoretically, when a Dayak abandons his temuda land by moving to another Division in Sarawak, his customary rights are extinguished and the land reverts back to the State. If another Dayak from the same longhouse or same Penghulu's district makes use of the land with the permission of the Tuai Rumah or the Penghulu, who has control over the said land, the user acquires a right to the land. This is expressly provided in the last sentence of clause 4 of paragraph 7 of the Native Customary Laws, VoL 7 on page 636 which reads: " .... In such a case, the original owner has no right to prevent others from making use of the land and the user acquires the right." In the present case, the Resident's Native Court found that Tuai Rumah Tuah anak Singalang and Ngindang anak Sengalang had made use of the disputed temuda land since the departure of Tamboh from the district apparently without interruption, as there was no evidence adduced to the contrary. There was also the evidence that when the Public Works Department wanted to occupy the disputed temuda land about six years ago, permission was given by Tuai Rumah Tuah and Ngindang. Furthermore, when fruit trees on it were cut down, compensation was paid to and received by them. On the other hand, no evidence had been produced by Injing anak Kunbang that he had been using the disputed temuda land at any time. Under the circumstances, it follows that both Tuai Rumah Tuah anak Singalang and Ngindang anak Sengalang have acquired a right and interest in the disputed temuda land.
Having regard to the evidence adduced in the lower courts, this court comes to the conclusion that the decision of the Resident's Native Court was correct in law and could be supported by both the Native Customary Laws and the evidence produced before the courts. The judgment of the Resident's Native Court is hereby affirmed and this appeal is dismissed with costs.}

Ismail bin Abang Sleh v. Regina

IN THE NATIVE COURT OF APPEAL

ISMAIL BIN ABANG SLEH ...					...	...	...	Appellant
versus
REGINA	...	...	...	...	...	...	...	Respondent

In the Native Court of Appeal at Sibu before Harley J., Abang Haji Latip bin Abang Haji Abdul Hamid and Ibrahim bin Rambli, Assessors.

Sibu Native Court of Appeal Case No. NA. 1/62.

Date of Judgment: 12th June, 1962.

Sexual offence-Relationship of parties-Incest-section 50(2) of the Malay Undang-Undang.

On the morning of 10th February, 1961, the accused asked his niece aged about 13 years to join him to collect wild vegetables at Teku Road, Sibu. He told her mother that others would be joining them so she permitted her daughter to go. In fact no one joined them. While the girl was collecting wild vegetables the accused came and dragged her into the bush and had sexual intercourse with her. Because of her unusual behaviour that evening her mother managed to learn of what happened. The police eventually came to know of the matter and the accused was prosecuted. He was charged before the Native District Court and tried by a magistrate and two assessors. He was found guilty of incest and sentenced to one year's imprisonment. He appealed but the Resident's Native Court dismissed his appeal. However, the Resident stated a case for the Native Court of Appeal on one point of law, namely, whether the complainant's evidence was corroborated.

Dismissing the appeal, it was held that there was ample corroboration in fact.

Assessor 1:	"There is no error of Native Law here and there is corroboration of the girl's evidence."
Assessor 2:	"I agree."

HARLEY, J.: This appeal is dismissed. In my view this case has been most fairly, properly and efficiently tried from start to finish. The Honourable Resident stated the case succinctly, and the point of law. Without going into the question whether corroboration is essential in law-because we are prepared to assume that it is we consider that there is ample corroboration in fact. The Resident's finding gave four points of corroboration-he might also have found a fifth-namely, that accused induced complainant to go with him alone, and her mother (P.2) to give permission, by stating falsely that "there were a lot of people joining."

We agree with the Resident's judgment.

Sahathevan requests leave to say a word on sentence.

Leave given:

"He has been in suspense-not in gaol-over a long period. Sentence 1 year is maximum."

Court consents with Assessor:

HARLEY, J.: "We all three see no reason to interfere with the sentence."

KATA PENDAHULUAN

KATA PENDAHULUAN

Setelah menyusun sebuah buku yang bertajuk "Cases on Native Customary Law in Sabah (1953-1972)" bagi Kerajaan Negeri Sabah untuk keperluan Ketua-Ketua Masyarakat dan pegawai-pegawai pentadbirnya, maka banyak sahabat-sahabat saya, terutama sekali, Yang Amat Arif Ketua Hakim Negara, Tun Mohamed Suffian, menggalakkan supaya saya juga menyusunkan sebuah buku yang serupa untuk Negeri Sarawak. Memandangkan ada kekurangan pengesahan dalam perkara ini, maka peluang ini diambil untuk memasukkan dalam rangkaian ini satu Garis Sejarah Pentadrian Undang-Undang Bumiputera di Negeri Sarawak.

Kes-kes dalam rangkaian ini telah pun dipilih dan dikesan daripada rekod-rekod yang tersimpan dalam Mahkamah-mahkamah di Sarawak, lapuran-lapuran Mahkamah Besar Sarawak, Borneo Utara dan Brunei, dan Jernal Undang-Undang Malaya (Malayan Law Journal). Dalam kes "T.R. Manggai v. Government of Sarawak and Anor (I970) 2 M.L.J. 41", Mahkamah Persekutuan telah mengendalikan segala aspek mahkamah-mahkamah bumiputera mengikut acara yang tertentu. Kes ini juga merupakan satu pengesahan untuk cadangan bahawa di mana satu statut atau undang-undang mengwujudkan sebuah tribunal atau badan pengadilan yang khusus untuk menguatkuasakan mana-mana hak tertentu, maka kemudian itu, satu pihak yang memerlukan hak itu dikuatkuasakan, mestilah memohonkannya kepada badan pengadilan itu dan bukan kepada pihak yang lainnya. Saya juga telah memasukkan kes "H.H. the Rajah v. Dunggaw and Unjar (1934) S.C.R. 37" untuk menunjukkan bahawa memotong kepala tidak lagi dianggap sebagai satu adat semenjak zaman Raja yang Pertama, tapi sudah dianggap sebagai satu kesalahan sui generis yang bertentangan dengan undang-undang biasa (common law). Ianya juga menunjukkan bahaya yang bersangkutan bahawa pada zaman dulu, seorang pegawai pentadbir terpaksalah mendengar pembicaraan satu kes jenayah yang penting kerana dia ada1ah tertakluk kepada paksaan daripada pegawai atasannya untuk campurtangan dalam pentadbiran keadilan yang sempurna. Keadaan sosial dan pembangunan ekonomi akan menyebabkan perubaan-perubahan yang tidak ternampak kepada undang-undang di segi adat. Tapi, pada keseluruhannya, undang-undang di sisi adat sedikit saja berubah walaupun ada perubahan-perubahan di sisi perlembagaan.

Adat istiadat merupakan satu perkara yang misteri dan tidak tetap. Bagi kita yang selalu menguruskan adat istiadat apabila mentadbirkan undang-undang, berasa bahawa kita dapat membuat sedikit sebanyak keyakinan dan sedikit misteri. Adat istiadat itu sudah pasti tidak beku, dan ianya sentiasa tetap. Adat istiadat mestilah berkembang dan berubah apabila masyarakat maju dan bertambah memandangkan perubahan-perubahan sosiaI dan pembangunan ekonomi yang pesat dalam negeri. Kalau tidak, ianya akan Ienyap. Upacara dan pantang-Iarang adalah sebahagian daripada adat istiadat bagi kebanyakan masyarakat. Di mana ianya tidak lagi memberi apa-apa faedah atau mendapat penghormatan daripada masyarakat yang didampinginya, maka barulah ianya diketepikan. Dengan lenyapnya istiadat dan pantang-larang itu ianya bukan mengurang malah menambahkan nilai adat sejati yang masih ditinggalkan itu.

Seperti undang-undang biasa, bahawa undang-undang adat bumiputera juga dibentuk mengikut susunan tertentu bagi segala prinsip yang luas dan diterima pada amnya. Namun begitu, terdapat beberapa perbezaan adat yang mustahak dari sebuah daerah ke sebuah daerah, dan kadang-kadang pula dalam sebuah daerah itu sendiri. Perbezaan-perbezaan itu lebih ternyata dalam aspek undang-undang yang tertentu, iaitu dalam perkara pengambilan anak angkat, perkahwinan dan warisan.

Dalam rangkaian ini adalah wajar bahawa kebanyakan kes-kes itu mengenai adat istiadat kaum Iban kerana mereka merupakan golongan bumiputera yang terbanyak sekali dalam negeri Sarawak. Serupa juga dengan kes-kes di Sabah yang berkenaan dengan adat istiadat kaum Dusun yang mananya merupakan golongan yang ramai sekali dalam negeri Sabah.

Sarawak lebih bernasib daripada Sabah kerana sebilangan besar dari kes-kes yang berkaitan dengan undang-undang adat itu ada tercatit dalam Lapuran-Lapuran Mahkamah Tinggi Negeri Sarawak, Borneo Utara dan Brunei dan hanya sedikit tercatit dalam Jernal Undang-Undang Malaya (Malayan Law Journal) semenjak terbentuknya Malaysia. Juga, di bawah perundangan yang berkaitan dengan Undang-Undang Adat Bumiputera, ianya lebih lengkap, terutama sekali undang-undang kecil, seperti Undang-Undang Mahkamah Melayu Sarawak, Tusun Tunggu dan Kanun Denda-Denda Adat Orang Ulu. Undang-undang kecil ini dibuat di bawah Ordinan Adat Istiadat Bumiputera (Native Customary Laws Ordinance) (Bab. 51) yang terdapat dalam Undang-Undang Sarawak tahun 1958, Jilid VII (Bab. 51). Untuk kemudahan rujukan, maka saya ada menyampaikan undang-undang berkenaan dan kertas-kertas yang berkaitan kepada berbagai-bagai lampiran.

Adalah diharapkan bahawa rangkaian kes-kes ini akan memberi minat dan bantuan bukan hanya kepada ketua-ketua kaum, penghulu, pemanca, temenggong dan pegawai-pegawai pentadbir yang menguruskan hal-hal yang berkaitan dengan undang-undang adat, tapi juga kepada penuntut-penuntut dalam mata pelajaran ini.

Saya sangat berterimakasih kepada Encik M.B. Hooker, University of Kent, di Canterbury kerana sudi menuliskan Garis-Garis Sejarah mengenai Pentadbiran Undang-Undang Bumiputera dalam Negeri Sarawak. Saya juga menyampaikan terimakasih kepada Setiausaha saya, Puan Valerie Goh, kerana telah berusaha payah menaip naskah, menyusun serta menyelesaikan segala masaalah berhubung dengan rangkaian ini.

TAN SRI DATUK LEE HUN HOE,

(P.M.N., S.P.D.K., P.G.D.K., P.N.B.S., A.D.K.)

KUCHING,
SARAWAK, MALAYSIA.