Native Courts System

No.

Title

Description

Attachment

IN THE COURT OF A JUDGE OF THE SUPREME COURT

KELEMAN ANAK ASA	…	…	…	…	Appellant
versus
LINANG ANAK TAWI	…	…	…	…	Respondent

In the Court of a Judge of the Supreme Court at Kuching before Lascelles, J. (President); L.K. Morse Esq. (Resident, First Division), Abang Morni and James Muda Esq., Assessors.

Civil Appeal No. A/21/53.

Date of Judgment: 11th August, 1954.

Land dispute-Customary tenure-Farming rights of descendants of original claimant.

Many years ago, Sabit had acquired customary tenure of farming rights over certain land at Sungei Plasoh. He had two daughters, Nari and Jawai. Sungei Plasoh is separated from Sungei Sempadi by a ridge which serves as a tinting (boundary). Jawai and her husband moved to Sempadi. However, both Plasoh and Sempadi are under the same Penghulu. Appellant is a direct descendant of Nari and Respondent of Jawai. Appellant is now in control of the Sungei Masoh. While Respondent, like other heirs of Jawai, may have right to farm in Plasoh they must first consult with Appellant. Both the Resident's Native Court and the District Native Court dismissed Appellant's appeal from the decision of the Native Officer's Court. Dismissing the appeal it was held:-

That any descendant of Jawai who wish to farm land in Plasoh inherited from Sabit may do so but must aum with Appellant first.

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

This is an appeal from the Resident's Native Court, Simanggang, which had in turn dismissed the appeal from the District Native Court which in its turn had dismissed the appeal from the Native Officer's Court.

The land concerned is clearly the land at Sungei Plasoh over which many years ago a certain Sabit had customary tenure farming rights.

Sabit had two daughters Nari (f) and Jawai (f). The Appellant is the direct descendant of Nari and Respondent of Jawai. Jawai and her husband moved to Sungei Sempadi (Rh. Tawi). Nari remained in the Plasoh (Rh. Kasi). There is apparently a tinting boundary i.e., a ridge separating the Sempadi area from the Plasoh area, but they are both under the same Penghulu .

In 1940, the Datu Abang Mohd. Zin held a case in connection with this land and in his judgment referred to cases held in 1899 and 1910. The Datu quite clearly laid down that regarding the land in Sungei Plasoh Kasi was the ketua di atas mempekat beruma and Tawi-father of Respondent-was fined pemalu and certain costs.

It appears clear therefore that the Appellant who has taken over from Kasi (Gasi) the reins is now the "ketua di aras mempekat beruma" in that area in Sungei Plasoh over which Sabit had estalished customary rights. Jawai (f) by moving to Sungei Sempadi did not forfeit her right to farm this land and her heirs naturally have also this right. It should be made clear, however, that other inhabitants in Sungei Sempadi who are not descendants of Jawai have not this right.

This Court agrees also with the opinion of Penghulu Linggoh in the Resident's Court that any such members of the descendants of Jawai from Sempadi who wish to farm land in Plasoh inherited from Sabit may do so but must aum with Appellant first.

It is apparent that the Appellant in the original case in the Native Officer's Court claimed that Respondents had no rights at all in this land. This is quite clearly not so and his present appeal must fail.

No order for costs is made. It is disgraceful that the dispute over this land should continue for so long. The only final solution would appear for the land to be divided up now by a board of arbitrators mutually agreed upon under Government supervision and for the boundary to be surveyed.

Kukuok anak Dingun & 5 Ors. v. Tingang anak Opieng

IN THE SECOND CIRCUIT COURT AT SIBU

KUKUOK ANAK DINGUN & 5 ORS.	Defendants / Appellants
versus
TINGANG ANAK OPIENG … …	Plaintiff / Respondent

In the Second Circuit Court at Sibu before Lascelles, J.

Civil Case No. 67 / 50.

Date of Judgment : 13^th November, 1950.

Jungle land-Title issued-Temuda rights.

Respondent obtained title to a piece of land at Engkalat, Sibu in 1939. When the title was issued surveyors reported that the land was primary jungle. Without obtaining permission Appellants felled the jungle and farmed the land during the Japanese Occupation.

Held dismissing the appeal by Lascelles, J:

	(1) That when Respondent obtained his title the land was primary jungle so Appellant could not claim any temuda rights.
	(2) That the question of division of farming land among Dayaks insofar as allocating any area to any particular house is an administrative decision. There is nothing illegal in the issue of land title.

          LASCELLES, J.: It is not denied by anyone that at the time Respondent made his application the land in question was old jungle. I have examined the Land Office records and the surveyor’s field book confirms this. Thus the Appellants cannot claim any so called temuda rights.

          The question of division of farming land among Dayaks insofar as allocating any particular area to any particular house is an administrative question. The Assistant Superintendent of Lands in 1939 issued Respondent with a title to this land and I can find nothing to show that there is anything legally wrong with that title. It may be that from the point of view of the Administration an Engkalat man should not be allowed to take up land in an area apparently regarded by the Penasu people as reserved for their present and future use; it may be that such an act may provoke ill-feeling between the two areas. Nevertheless the fact remains that the land was under old jungle and was not in any formal way reserved for Penasu man. The Assistant Superintendent of Lands issued a legal title and accordingly this appeal must fail.

          It appears to me however that the basis of the Appellants’ claim is that the Land Office had no right to issue such a title. In other words they are aggrieved by the decision of the Land Officer and the appeal against that decision must go to the Resident.

          I should point out here that the proper course for the Plaintiff in the original action was to have either taken action for trespass or else applied for an injunction to restrain the Defendants from farming on that land.

          In my opinion the Lower Court should have made it clear to the Appellants that their proper course was to appeal to the Resident against the decision of the Land Officer, accordingly I order that the Court fees paid in connection with the Appeal to the Circuit Court shall be refunded.

The Appeal is dismissed.

Laga v. Uging & Anor.

IN THE HIGH COURT IN BORNEO

LAGA	...	...	...	...	...	...	...	Plaintiff
	versus
UGING & ANOR			...	...	...	...	...	Defendants

In the High Court in Borneo at Sibu before Lee Hun Hoe, J.

Civil Suit No. 63 of 1964.

Date of Judgment: 30th August, 1965.

          Land-Lease of Crown land-Indefeasibility of title-Dayak Customary Law-Tusun Tunggu.

          The Plaintiff sought a declaration that the land held by the first Defendant under lease of Crown Land belonged to him by virtue of the fact that his late father held the said land under Occupation Ticket. The Plaintiff was unable to show that the piece of land was the one held by his father. He alleged that the Land Office had made a mistake but did not allege fraud on the part of the first Defendant.

Held:


          The first Defendant's title was indefeasible except in the case of fraud and as the Plaintiff did not dispute the first Defendant's title and did not allege fraud on his part, the declaration sought must be refused.

          Consideration of Dayak custom and whether land held under title by a Dayak may be disposed of by him.

Case referred to:-

          (1) Sat anak Akum & Anor. v. Randong anak Charareng (1958) S.C.R. 104, 108.

S. Sahathevan for the Plaintiff.

J.V. Nayar for 1st Defendant.

          LEE HUN HOE, J.: This is an unusual case. Plaintiff is asking for a declaration that the land held by the first Defendant under Lease of Crown Land situate in the Maradong Land District and known as Lot No. 386 containing 3.35 acres (hereinafter referred to as Lot 386) belongs to him (Plaintiff) by virtue of the fact that his late father Tunjan alias Kunjan held the said land under Occupation Ticket No. 10555 (hereinafter referred to as O.T.).
          The O.T was issued to Tunjan on 27th July, 1928 under Land Regulations, Order No. VIII, 1920. He was allowed an area of 3 acres rent free at Bukit Grupkan, Sungai Gumuan, true left bank. The land was not surveyed. The following conditions were attached: -


          "(i) A bona fide commencement to bring the land under cultivation must be made within three months from the date hereof;

          (ii) The area specified above shall be brought under cultivation within a period of . . . .

          (iii) As soon as the above area has been cleared, or immediately after completion of planting, application to be made for survey;

          (iv) Boundaries should be kept clear, failing which, cost of clearing at survey will be borne by occupant;

          (v) The lease (or licence) will run for twenty years, renewable at occupant's option, for such term and at such rent as the Government may determine at the expiration of each term;

          (vi) No encroachment to be made on other occupant's land or reserves, or on public paths."

Tunjan died during the Japanese Occupation. Plaintiff said that he and his mother then worked on the land which is now occupied by first Defendant. After Tunjan died Plaintiff's mother kept the O.T. for some four years before she handed it to Plaintiff. No survey had ever been carried out. The O.T. expired in 1948. It seems that when Tunjan died no Letters of Administration had ever been applied for.

           Strangely enough it was some time in 1963 that Plaintiff became aware that the said land was occupied by first Defendant and he lodged a report with the District Officer, Binatang. The matter was eventually referred to the Land Office, Sibu. An investigation was carried out. At the same time a caveat was lodged on the said land under section 182 of the Land Code. Plaintiff was advised to institute proceedings in this court to establish his claim.

          The O.T. was cancelled by virtue of the Instrument of Reversion of Title under Instrument No. L.3116/64 and was registered on 30th October, 1964, after second Defendant had entered appearance. I do not think Plaintiff can complain about the action taken by the Land Office for the simple reason that the title was registered in the name of Tunjan. Neither Plaintiff nor his mother had ever taken out any Letters of Administration. There is a sharp distinction in respect of land held under title by a Dayak and land held by a Dayak under customary tenure for which no title is usually involved. I shall say something more about this later.

           Nanta anak Jati, first Defendant’s father, died some ten years ago. After his father died First Defendant worked on his father's Iand. He explained that his father divided the land into two parcels-one for planting rubber and the other for padi. First Defendant obtained Occupation Ticket No. 30501 for the parcel of land for planting rubber. In 1960, he applied for a title to the other parcel of land. The land was surveyed in 1962 and a title was issued to him in 1963 for the land known as Lot 386. This is the land now in dispute.

           The onus is on the Plaintiff to establish on the balance of probability that the land in dispute was one held by his father under the O.T. before the court is prepared to exercise its discretion to make any declaration.

           Tuai Rumah Intan and Tuai Rumah Rimond corroborated the Plaintiff's evidence that the land in dispute was the land held by Tunjan under the O.T. Tuai Rumah Intan said that he had helped Tunjan to farm on the land.

           On the other hand Tuai Rumah Embuyang corroborated first Defendant's evidence substantially. He said that he knew Nanta anak Jati cultivated the land in dispute and that when Nanta died, first Defendant continued to cultivate the said land. He was most emphatic that Tunjan and Plaintiff had never cultivated the said land. He pointed out that the said land is nearer to his longhouse. This is supported by the plan (Exhibit P.4) which indicated that Rumah Embuyang is about a mile away from Lot 386, while Ruman Intan and Rumah Rimond are both over two miles away from Lot 386. Further, his evidence that he has jurisdiction over the area where the land in dispute is situated has never been challenged.

          Having seen and heard these witnesses I find that Tuai Rumah Embuyang is a more reliable witness than Tuai Rumah Intan and Tuai Rumah Rimond. I find Tuai Rumah Embuyang to be an honest and truthful witness. On the other hand Tuai Rumah Rimond certainly admitted that part of what he said came from what he heard from others. Both Tuai Rumah Intan and Tuai Rumah Rimond tried to persuade me to believe that their longhouses are nearer to Lot 386. The plan (Exhibit P.4) suggests otherwise. Is it possible that they are thinking of another piece of land and not Lot 386? At any rate they have the grace to refrain from saying that they have jurisdiction over the area in which the land in dispute is situated. I form the impression that they were merely doing their best to support Plaintiff, for reasons known to themselves. In my view they are not sincere and truthful witnesses.

          Mr. Kong Yu Tsan, the Land Officer, was subject to penetrating cross-examination and had come out well. He explained that there was no record to show that the land held under the O.T. had ever been surveyed. Plaintiff was unable to satisfy the Land Office as to the exact parcel of the land claimed. It was not disputed that certain land was allocated to Tunjan. However, it was not known whether Tunjan actually occupied the land after he had obtained the O.T. According to Mr. Kong, when a person obtained an Occupation Ticket for land which was not surveyed he should approach the Land Office when he had worked on the land and had his land surveyed. It is not the responsibility of the Land Office to locate the land unless it had previously been surveyed. The true location of the land held under the O.T. is unknown. At any rate, following Plaintiff's report to the District Officer, Binatang, an investigation was carried out to pinpoint the location of the land held under the O.T. However, the Land Office was not satisfied that the land held under the O.T. is the same piece of land held under Lease of Crown Land known as Lot 386. I find Mr. Kong's evidence most helpful. I have no reason to disbelieve him.

          One thing is clear, that is, first Defendant's title is indefeasible except in the case of fraud, see section 132 of the Land Code. Mr. Sahathevan,counsel for Plaintiff, indicated that first Defendant's title is not disputed and fraud is not alleged. But he submitted that the Land Office had made an error in this case. It is, of course, for Plaintiff to show the court wherein lies the error. Mr. Kong had pointed out that the person who wanted the land surveyed had to point out the location to the Land Office presumably to the surveyor. Tunjan, during his lifetime, had never taken the trouble to have his land surveyed. This dispute would not have arisen had he done so as soon as he had worked on the land.

          It is not disputed that Tunjan owned a piece of land under the O.T. It is also not disputed that the land would go to Plaintiff eventually in accordance with the Dayak Customary Law of inheritance. When Tunjan died Plaintiff's mother was probably holding the land in trust for Plaintiff who was then still a minor. The question is "where is the exact location of that piece of land?"

          Unlike real property not held under title, real property held under title by a Dayak may be disposed of by him without restriction.

For authority I refer to Sat anak Akum & Another v. Randong anak Charareng (1) where Lascelles, J. in his judgment at page 108 said this:-



          "No one has argued that a Dayak may not dispose of his own property, real or personal, during his lifetime. By this I mean property he has acquired himself during his lifetime and which is not restricted in any way. A Dayak, for example, who is the registered owner of a rubber garden with an unrestricted title can certainly dispose of it during his lifetime without any hindrance by adat and I see no reason whatsoever why he should not do so by will, even if he does leave it to someone who would not on intestacy inherit it by customary law."
          In the case of untitled property the position is explained in the Tusun Tunggu which applies to the Dayaks of the Third, Fourth and Fifth Divisions. The Tusun Tunggu was the result of an attempt to codify the adats which prevail among the Dayaks of these Divisions. At page 22 of the Tusun Tunggu in respect of the Third Division the following is recorded:-


          "7. 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.

          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.

          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 the right."

          It is not disputed that when a Dayak dies his property will be distributed according to the Dayak custom of inheritance. The rights of the beneficiaries are defined by customary law. But there is nothing to exempt Dayaks from the Administration of Estates Ordinance (Cap. 80) (The Laws of Sarawak 1948 Revised Edition).

          In my judgment on the evidence I hold that plaintiff has not discharged the onus that the land known as Lot 386 is the same piece of land which was held by Tunjan under the O.T. In any event Plaintiff has no claim against first Defendant since he did not dispute the latter's title and did not allege fraud on the part of first Defendant. In the exercise of my discretion I therefore decline to make the declaration asked for. Accordingly, Plaintiff's application for declaration against both Defendants is refused and his claim for an order of revocation against second Defendant is dismissed with costs to be taxed.

Liaw v. Blikas

IN THE HIGH COURT IN BORNEO

LIAW	…	…	…	…	…	…	…	Plaintiff
versus
BLIKAS	…	…	…	…	…	…	…	Defendant

In the High Court in Borneo at Sibu before Lee Hun Hoe, J.C.

Civil Suit No. 23 of 1964.

Date of Judgment: 9th January, 1965.

Probate and Administration-Grant of probate and Letters of Administration by Probate Officer-Application for revocation of grant-Procedure-Power of Probate Officer to revoke grant-Administration of Estates Ordinance (Sarawak Cap. 80 of 1948 Revised Edition) ss 9 and 32.

Native Law and Custom-Dayak customary law-Lanting-Application of Laws Ordinance.

          This was an application for the revocation of Letters of Administration granted to the Defendant. The Probate Officer had granted Letters of Administration to the Defendant as it appeared that Defendant looked after the deceased's bilek and was solely responsible for the funeral feasts.

Held:


          (1) there would appear to be no provision for challenging the decision of the Probate Officer by way of appeal to the courts and the Plaintiff should have applied to the Probate Officer to revoke the grant;

          (2) in any case the Plaintiff had failed to establish that the Probate Officer had granted the Letters of Administration to the wrong person in this case, as on the evidence the Defendant had shown that she was entitled to the property according to Dayak customary law.

Cases referred to:-

          (1) Foo Sam Tek v. Probate Office, Simanggang (1960) S.C.R. 17, 18.

          (2) Re Chew Siew Khim (1964) M.L.J. 412.

          (3) Li Khoi Chin v. Su Ah Poh (1950) S.C.R. 17.

          (4) Chan Bee Neo & Ors v. Ee Siok Chao (1947) S.C.R. 1.

          (5) Sat anak Akum & Anar. v. Randong anak Charareng (1958) S.C.R. 104.

          George Seah for the Plaintiff.

          Defendant in person.

LEE HUN HOE, J.C.: Originally Plaintiff prayed for (a) the revocation of the Letters of Administration granted to Defendant, (b) a declaration that Plaintiff should be entitled to that parcel of land described as J.O.T. No. 1625 of about 1.25 acres, and (c) an order that Plaintiff should be granted Letters of Administration. At the hearing Mr. Seah for Plaintiff informed the Court that he was abandoning (b) and (c). So the only matter for the court to decide is (a).

Deceased, Liat anak Belayong died some years ago at Rumah Jana, Sarikei. He had three sons and three daughters. Ganing is the eldest son. Plaintiff is the 2nd son and Gayai the youngest son. The three daughters are called Jaliah, lsi and Amih. As soon as his children were married they lived separately from deceased. Jaliah is now dead. She had a son, Adau who married Defendant. Adau had passed away. Since her marriage Defendant had been in deceased's bilek (room (i.e., the family household unit) and still remains there. On 22nd November, 1963, at the request of Ganing and with the agreement of Tuai Rumah Jana the Probate Officer, Sarikei, granted Letters of Administration to Defendant because it was represented to the Probate Officer that Defendant looked after deceased's bilek and was solely responsible for the perantu (the last feast for the dead).

In Sarawak it seems the grant of probate and Letters of Administration is in the hands of the administration and there does not appear to be any provision for challenging the decision of the Probate Officer by way of appeal to the courts. It is not clear to me how an administration action may be brought before the courts in Sarawak. It seems to me that by asking the court to revoke the grant of Letters of Administration Plaintiff is in effect challenging the decision of the Probate Officer. It is therefore questionable whether this is the proper procedure for doing so. Further it is questionable whether Defendant should have been made a party since the action has nothing to do with Defendant's duty as an administratrix. In Foo Sam Tek v. Probate Officer, Simanggang (1) and Re Chew Siew Khim (2) the decision of the Probate Officers were challenged by way of certiorari and mandamus. Procedural difficulty is clearly expounded in the former case when Ainley,C.J. said:-

"There is no doubt that the Probate Officer had jurisdiction to pass over the Appellant if in his opinion the Appellant was unfit to act. He had discretion in the matter which of course he was bound to exercise in a just and proper manner. The Appellant however says that the Probate Officer has shown, by his order, that he was not acting in a proper manner. His difficulty has been to find an effective method of challenging the Probate Officer's decision in the courts, and here I have sympathy with him. It is a peculiarity of our law that the grant of probate and administration is not in the hands of officers of the court, but has been placed in the hands of officers from whose decision no channel of appeal is apparently available. Indeed I find it difficult to understand how an administration action could properly be brought before the courts of this country. However the Appellant faced with these difficulties, adopted the expedient of instituting proceedings by way of certiorari and mandamus, and he followed the English procedure as he was entitled to do by virtue of section 24(6) and (7) of the' Crown Proceedings Ordinance. In short he applied to the High Court for leave to apply for the orders sought. The learned Judge dismissed the application and without seeking leave to appeal the Appellant appealed to this court. His authority for doing so lies in the English practice, and I have no quarrel with the Appellant on this ground."

          The Defendant was not represented by counsel and I therefore have no opportunity of hearing legal argument on points of law from her. Mr. Seah for the Plaintiff submitted that the procedure he adopted is correct and that the Court may revoke such grant. He referred me to paragraph (f) of section 24 of the Courts of Judicature Act, 1964 and cited the case of Li Khoi Chin alias Li Chi Nyon v. Su Ah Poh (3). In that case Letters of Administration were granted to Defendant who was unable to prove her marriage to deceased and also Defendant did not fall within those categories of person mentioned in section 8 of the Administration of Estates Ordinance. The court set aside the Letters of Administration and directed that the estate should vest in and be administered by the Bau Probate Officer. There the court did not raise the question of procedure. Also in that case the parties were Chinese and the Court was not concerned with the question of native law and custom.

          I think the procedure adopted is highly irregular as there is no clear indorsement on the writ to indicate the nature of the action. In my view the irregularity is not curable under Order 70 rule 1 and the Plaintiff's claim should be dismissed.

          However I have decided to hear the parties as my view on the question of procedure may be wrong. Mr. Seah argued that the Probate Officer granted the Letters of Administration to the wrong person. He contended that the grant to the Defendant was not according to law. In my opinion "according to law" means the law recognised by the courts. By virtue of section 2 of the Application of Laws Ordinance, Dayak Customary Law is recognised and in force in Sarawak. I find support in the case of Chan Bee Neo & Others v. Ee Siok Choo (4). In the course of his judgment Hedges, C.J. stated at page 3:-

The effect of the Law of Sarawak Ordinance is that the law of England, insofar as it is not modified by Sarawak Ordinance, and insofar as 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 was repealed by the Application of Laws Ordinance. The fact that Sarawak is now part of Malaysia has not in any way altered the native law and custom.

Tuai Rumah Jana (D.W. 2) gave evidence for the Defendant. He said some four years ago a perantu was held in connection with the death of deceased. Dayaks from some 13 (thirteen) longhouses were invited to the feast which involved the killing of many pigs and fowls and possibly the supply of tuak (Dayak rice wine). Therefore, the holding of a perantu meant someone had to foot the heavy bill. In this case Defendant did so. According to D.W. 2 a perantu is only held when a deceased Dayak had left lanting, that is, property reserved for the purpose. During the perantu D.W. 2 and other Tuai Rumahs present apparently considered that parcel of land described as J.O.T. No. 1625 to be lanting and decided that it should be given to Defendant. The reason was that Defendant looked after deceased and his bilek and was also solely responsible for the perantu. D.W. 2 testified that all the children of deceased including Plaintiff agreed that the said property should go to Defendant. Consequently Ganing, deceased’s eldest son, and D.W. 2 and Defendant approached the Probate Officer and Defendant was granted Letters of Administration.

Lanting does not necessarily go to the heir. For authority I would refer to the case of Sat anak Akum and another v. Randong anak Charareng (5) where Lascelles, J. delivered the main judgment of the Court of Appeal said at page 110:--

"It has been a long established custom among the Dayaks that a person may set aside certain property as lanting to go to someone-not necessarily an heir-who has looked after him in his old age and who will be responsible for his funeral. However this is only if the heirs agree; in this present case the heirs certainly do not agree."

Plaintiff said he had never agreed to the property going to Defendant. He said he had contributed to the perantu. On the other hand Defendant said Plaintiff had agreed and all his brothers and sisters also agreed to her having the property. Tuai Rumah Jana (D.W. 2) corroborated Defendant substantially. None of the other chilrden of deceased was called by either party to give evidence on this matter. It is also significant that none of the deceased's children, except Plaintiff, come forward to claim the property.

          Plaintiff did not impress me as a sincere and truthful witness. On the other hand both Defendant and Tuai Rumah Jana (D.W. 2) convinced me that they were telling the truth. In particular, I am very much impressed with the manner D.W. 2 gave evidence. He was cross-examined at some length but was not shaken in any way. He certainly knew what he was talking about regarding their various customs. Accordingly I would regard him as an expert.

          Mr. Seah said he would only confine himself to the question of law and would call evidence on that issue. However I consider that Defendant should not be prevented from establishing her right under the Dayak customary law in view of Plaintiff's pleading which has not been amended in any way. I hold that on the evidence she has satisfied me that she is entitled to the property according to the Dayak customary law.

          It would appear that next to Ganing Plaintiff stood next amongst the male heirs entitled to grant under section 8 of the Administration of Estates Ordinance. Ganing did not exercise his right to obtain the grant because apparently he considered Defendant had the right under their custom to the property. Under section 9(1) of the said Ordinance a Probate Officer has a very wide discretion to grant probate or Letters of Administration to any suitable person who may be willing to act if he considered the person entitled to act under section 8 is unfit to act. Section 9( 1) reads:-

"If, in the opinion of the Probate Officer, the person or persons entitled to probate or Letters of Administration is or are unfit to act, he may issue the grant to the person or persons next entitled, or to any suitable person or persons who may be willing to act.

The expression "unfit to act" is very wide indeed. I can only assume that the Probate Officer must have decided that the children of the deceased had renounced their rights in favour of Defendant who appears to be deceased's nearest female relative and therefore they were "unfit to act". I would suggest that if persons who have prior rights to the grant renounced their rights then a Probate Officer should endeavour to get those persons to put their renunciations in writing. The Probate Officer was also the District Officer of Sarikei. As an Administrative Officer he knew or should know more about native customary law than other civil servants. I do not think he would pass over the children of the deceased and grant the Letters of Administration to Defendant without any good reason. Extracts from the proceedings before the grant was made show that Ganing, the eldest son of deceased requested that Defendant be granted Letters of Administration because she looked after deceased's bilek and was also responsible for the perantu. Tuai Rumah Jana (D.W. 2) agreed with the request. As Tuai Rumah Jana is the head of a longhouse, he is a respected authority in that longhouse. The extracts also confirmed that Defendant looked after deceased's bilek and was responsible for the perantu. I hold that Plaintiff has not shown me that the Probate Officer was acting in any way in an unjust or Improper manner under the circumstances or that he was acting without jurisdiction. On the evidence I hold that Plaintiff, has failed to establish that the Probate Officer had granted the Letters of Administration to the wrong person.

Another reason why I refuse to make the order prayed for is because Plaintiff has not exhausted the remedy provided under the Administration of Estates Ordinance. Under section 32 of the said Ordinance a Probate Officer has been given a discretion to revoke his grant of probate or Letters of Administration at any time on good cause being shown. In my opinion Plaintiff should only come to this court as a last resort, at least, until he has exhausted that remedy provided by the said Ordinance.

For reasons given Plaintiff's claim is dismissed with costs to Defendant. I assess costs at $120.

Madi anak Lenggai v. Lulai (f) anak Lenggai

SUPREME COURT

MADI ANAK LENGGAI

versus

LULAI (f) ANAK LENGGAI

Inheritance-Custom of the Sebuyau Dayaks-“Lanting”-property set aside by husband to provide for second wife and her children.

The facts of this case, so far as they are relevant, are set out in the judgment.

Held:

	(1) That according to Sebuyau Dayak custom property owned by the deceased husband at the time of his first wife’s death is inherited by the offspring of the first marriage.

	(2) That a custom is recognized among the Sebuyau Dayaks whereby a husband may set aside certain properly to make provision for his second wife and her children; that such property is normally movable (e.g., a gun, or a gong); and that the setting aside must be in public and in the presence of the leaders of the community.

BEFORE THE HONOURABLE MR. JUSTICE R.Y. HEDGES, C.J.

Accessors:   A.J.N. Richards, Esq., Magistrate of the Second Class.

                   Orang Kaya Juma’at.

                   Mr. S.G. Gaweng.

                   Mr. Edward Jerah.

26th April, 1949

          The following judgment was delivered.

          HEDGES, C.J.: This is an appeal against an Order of the First Circuit Court dismissing an appeal against an order of the District Court, Kuching, dated 15th January, 1949.

          The case arose out of the distribution of an estate some twelve years ago when the Appellant was only a small child. It is hardly necessary to say that very strong evidence would be necessary after the lapse of so many years.

          Lenggai died testate on 22nd March, 1937. Lulai (f) agreed to pay all the debts of the deceased. The estate was distributed, Madi (the Appellant) receiving a share, but the present dispute concerns only a rubber garden of some ten acres.

          The Native Officer and an experienced assessor advised the Circuit Court that property owned by the deceased husband at the time of his first wife’s death is inherited by the offspring of the first marriage. The Appellant admitted that the garden in question falls within that category. The parties are Sebuyau Dayaks and his contention is that the deceased set aside the rubber garden for himself. This is lanting and, in the event of his second marriage and sub-sequent decease, helps to provide for his second wife and her children.

          I have been fortunate in having the assistance of four assessors. Mr. Richards is a Magistrate of some years’ standing who is well versed in Dayak custom. Mr. Jerah claims partial Sebuyau descent and a lifetime in Government service during which he has been interested in collecting and comparing customary laws. Orang Kaya Juma’at and Mr. Gaweng are Sebuyau and claim experience of the adat.

          The assessors are unanimous in their opinion that there is no such term as lanting among Sebuyau Dayaks. The arrangement whereby property may be set aside in the way claimed by the Appellant does exist but the term lanting is usual only in Simanggang and the Rejang. If such setting aside is done it must be in public and in the presence of the leaders of the community; some sort of ceremony would be held to mark the event. There is no evidence that it was done in this case and such evidence would have to be of an exceptionally strong nature after such a lapse of time. Further, the assessors advice me that the property normally set aside in such cases is movable; a gun, a gong, or something the widower could readily carry with him.

          The appeal is dismissed with costs. Costs may be taxed by the Registrar and will include $10 expenses to Penghulu Snabong. The assessors are thanked for their services, and those who are not Government officers will receive a fee of $5 each from the Treasury.

Appeal dismissed.

Mandi anak Kerbau v. Tima anak Landa

SUPREME COURT

(Constituted in accordance with the Native Courts Ordinance)

MANDI ANAK KERBAU versus TIMA (f) ANAK LANDA

          Native Courts Ordinance-Matters which Native Courts are competent to try-Inheritance.

          The facts of this case are of little interest. The following revisional order was made by the Chief Justice (Dr. R.Y. Hedges) sitting with the Secretary for Native Affairs (D.C. White, Esq.) and two assessors.

          The petition in this case will be treated as an application for revision under section 10 of the Native Courts Ordinance (Cap.4).

          Section 5(1) of the Native Courts Ordinance provides that the cases which Native Courts are competent to try shall be as follows:-

	(a)	cases arising from the breach of native law or custom in which all the parties are natives;

	(b)	cases arising from the breach of native law or custom relating to any religious, matrimonial or sexual matter where one party is a native; provided that the District Native Court may forbid the institution of such proceedings shall submit a report in that behalf to the Court to which an appeal lies under section 8;

	(c)	cases arising from the breach of the Malay Undang-Undang or Malay custom of the Colony in which all the parties are Mohammedans;

	(d)	civil cases the value of the subject matter whereof does not exceed fifty dollars in which all the parties are native;

	(e)	any case concerning land to which there is no title issued by the Land Officer and in which all the parties are natives.

          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 no accept his decision resort should be made to the ordinary Courts.

          IT IS HEREBY ORDERED that the order of the District Native Court dated the 7^th day of December, 1950, and the order of the Resident’s Court dated the 19^th day of December, 1950 are set aside and the suit may be instituted in the appropriate Court constituted under the Courts Ordinance (Cap. 3).

          IT IS FURTHER ORDERED that the appeal fee shall be refunded to the petitioner.

Orders set aside and directions given.

Men binti Lockman v. Dan bin Dol

THE SUPREME COURT OF SARAWAK, NORTH BORNEO
AND BRUNEI

MEN (f) BINTI LOCKMAN			...	...	...	...	Plaintiff
versus
DAN BIN DOL	...	...	...	...	...	...	Defendant
In the High Court at Kuching before Bodley, J.
Civil Case No. C/107/52.
Date of Judgment:		18th October, 1952.

Intestate succession under Malay Law and Custom (Hukum Shara)-Varied by local Custom (Pencharian):-

In 1942 Dol bin Bujang, a Malay, who was the grandfather of the Plaintiff and the father of Defendant died intestate leaving the following property:-

	(1)	two rubber gardens registered in deceased's name at L.O.T. 1474 and 2566;
	(2)	200 rubber trees; and
	(3)	9 engkabang trees.

The deceased had four wives, Timah, Lehah, from whom he was later divorced, Jija and Simah, but only the latter survived him. Timah had two children by the deceased but they died before the latter. Lehah had three daughters by the deceased namely Iba, Sna and Bueui and a son, Lockman. Bueui died before the deceased. Jija had no issue whilst the remaining wife, Simah, had only one child namely the Defendant. Iba, Sna and Bueui each had three children whilst Lockman had only one child namely the Plaintiff. Both Lockman and Simah died after the deceased's death and before the deceased's estate was administered. Lockman, however, was given his share of his father's estate during his father's lifetime.

The land held under L.O.T. 1474 was acquired by the deceased as the result of the joint efforts of his wife, Lehah, and of himself, whilst the land held under L.O.T. 2566 was acquired as the result of the joint efforts of himself and his wife, Simah. When Lehah and the deceased were divorced L.O.T. 1474 was awarded to the deceased.

Plaintiff claimed that she was entitled to a share in the deceased's estate whereas the Defendant, who was the administrator of the estate, claimed that he was the sole heir to the said estate.

Held:

	(1) that the intestate estate of a deceased Malay should be distributed in accordance with the Malay Law and Custom known as Hukum Shara;
	(2) that according to Hukum Sahara, if a Malay dies intestate, his surviving wife, sons and daughters are entitled to succeed to his estate: that if any sons and daughters have died before deceased leaving issue the latter are not entitled to a share in the deceased's estate: and that the issue of any surviving son or daughter who has since died are entitled to inherit their deceased parent's share:
	(3) that L.O.T. 1474 was the sole property of deceased:
	(4) that according to the local custom known as Pencharian, half of L.O.T. 2566 was the property of the Defendant's mother, Simah, and should pass to the Defendant:
	(5) that the remaining half of this land was the property of deceased and
	(6) that though Lockman had received a share of the estate of the deceased during the latter's lifetime he was nevertheless entitled to a share in the deceased's estate.

          Both parties in person.

          BODLEY, J: - As I understand the plaint, the Plaintiff seeks a declaration that she as the grand-daughter of one, Dol bin Bujang, who died about 1942, is entitled to a share in the deceased's estate. The Defendant who is the son of the deceased and the administrator of the deceased's estate, denies that the Plaintiff is entitled to any share and contends that he alone is entitled to succeed to the deceased's estate.

          It is common ground that the deceased left surviving him his wife Simah, two daughters, Iba and Sna, and two sons Lockman and the Defendant; that Iba and Sna each had three children; that Lockman had only one child viz. the Plaintiff; that the Defendant is the only child of Simah; and that the deceased left the following property:-

A	rubber	garden	L.O.T.	1474,
A	rubber	garden	L.O.T.	2566,
200	rubber trees, and
9 engkabang trees.

The parties disagree as to the manner in which the two rubber gardens were acquired, but I am satisfied from the evidence of the Defendant that L.O.T. 1474 was acquired by the deceased as the result of the joint efforts of his wife, Lehah, and of himself, and that L.O.T. 2566 was acquired as the result of the joint efforts of his wife Simah and of himself, and that after the deceased and Lehah were divorced, L.O.T. 1474 was awarded to the deceased.

According to the law in force in this Colony, intestate estates of Malays are distributed according to Malay Law and Custom. As the parties to this action hold divergent views as to the manner in which this estate is to be distributed, this Court found it necessary in the interests of justice to call an expert on the Malay Law and Customs relating to intestate succession.

This expert after having had the genealogical tree appertaining to this case and the facts as found by this court put to him was of the opinion that the deceased's estate should be distributed as follows and I accept his evidence which stands practically unchallenged:-

(a)	that L.O.T. 1474, 200 rubber trees and 9 engkabang trees should be distributed as follows: - a 14/48 share to each of deceased's sons, Lockman and defendant; a 6/48 share to Defendant's mother; a 7/48 share to each of deceased's daughters, Iba and Sna:
(b)	that as Lockman is dead, his 14/48 share should pass to his daughter, the Plaintiff;
(c)	that as Defendant's mother is dead, her 6/48 share should pass to Defendant making his total share 20/48;
(d)	that half of L.O.T. 2566 should be distributed as follows:14/48 to each of deceased's sons; 6/48 to Defendant's mother; and 7/48 to each of deceased's two daughters;
(e)	that the remaining half of L.O.T. 2566, being Defendant's mother's half share in L.O.T. 2566 during her life time, should pass to the Defendant making his total share in the whole of L.O.T. 2566 equal to 68/96;
(f)	that Lockman's 14/48 share of half of L.O.T. 2566 should pass to his daughter, the Plaintiff, making her share in the whole of L.O.T. 2566 equal to 14/96.

I accordingly grant judgment in favour of the Plaintiff and declare that she is an heir to the above estate and that she is entitled to a share in the deceased's estate as set out hereinbefore.

I also order that costs in the sum of $50/- be paid to the Plaintiff out of the deceased's estate.

Mentu Tapu & Ors. v. Lobang Batu & Anor.

IN THE HIGH COURT AT SERIAN
MENTU TAPU AN OTHERS	…	…	…	Appellants
versus
LOBANG BATU AND ANOTHER		…	…	Respondents

In the High Court at Serian before Smith, Acting Chief Justice and Abang Haji Abdulrahman, First Class Magistrate.

Civil Case No. A/1/52.
Date of Judgment: 9th February, 1952.

Land dispute-Involving two groups of villages-Customary tenure-Leave to call further witnesses-Original felling of jungle-Native Courts Ordinance, section 8(1)(d).

Two groups of villages claimed right of customary tenure to farm in certain land. After two abortive trials the matter was finally decided in favour of the Respondents by the District Native Court. An appeal to the Resident's Court was dismissed. On appeal to the Native Court of Appeal leave was granted to Respondents to call further witnesses. Dismissing the appeal it was held that:-

	(1)	Much of the evidence was shadowy as was to be expected in this type of case.

	(2)	There was no valid legal grounds to interfere with the decision of the District Native Court.

	(3)	As the dispute does not concern individuals in their personal capacity there would be no order as to costs.

          SMITH, Acting Chief Justice, delivered the judgment of the Court:-

          The Appellants in this land dispute case are three villages in the Serian District of the First Division, known as Mentu Tapu, Mentu Mawang and Mentu Pondok. These villages are referred to collectively as Mentu Tapu. Mr. Nyando anak Kadir is the accepted spokesman on behalf of Mentu Tapu and presented the petition of appeal. The Respondents are two villages in the same area known as Lobang Batu and Lobang Kirun referred to jointly as Lobang Batu. Mr. Ta'ing anak Dungom represented the Respondents at the hearing of the appeal. The area of land in dispute is described by the trial magistrate, Mr. D.C. Walker, as follows; "All the land above the mouth of Sungei (River) Mahau and drained by the rivers Mahau, Silih, Kuru, Mukong and Para." It is delineated on a plan drawn by N.O. William Veno dated 13th August, 1950, and attached to the record of the proceedings before the magistrate and marked "A". The actual boundaries of the area are not in dispute. The issue is whether the customary tenure of this farming land should vest in Mentu Tapu or in Lobang Batu. The District Officer at Serian, Mr. D.F.A.E.D. Morgan, assures us that the boundary is well-known locally and that there is no dispute about it, but suggests that it would be advisable to have the line pegged by the Survey Department as soon as possible since this case has now been decided. We recommend that this should be done.

          This land dispute has had a chequered career. It began as early as the 16th August, 1950, and subsequently two new trials were ordered for reasons which are not now material. For our purpose the case begins with the trial which began on the 23rd January, 1951, before Mr. D.C. Walker, a Second Class Magistrate, sitting in the District Native Court of the Serian District. Mr. Walker walked over the ground, inspected land marks, and heard fifty-six witnesses. We are indebted to him for an exhaustive, painstaking and conscientious inquiry into a troublesome dispute. The learned magistrate decided two issues. The first related to the ownership of the padi crop. This is not now in issue. The second related to the question whether the customary tenure of the land in question should vest in Mentu Tapu or Lobang Batu. The magistrate considered the conflicting evidence judicially and came to the conclusion that the "strong balance of probability" was in favour of Lobang Batu's claim. He therefore gave judgment in their favour. An appeal to the Resident's Court at Serian was dismissed on the 28th September, 1951. A second appeal-the case we are considering now-was lodged and comes before us under the provisions of section 8(1)(d) of the Native Courts Ordinance, Cap. 4 of the Laws.

          Mr. Nyando on behalf of the appellants relied on the petition of appeal dated the 19th October, 1951. He specifically said that he did not wish to go outside the terms of this petition since it included the grounds upon which he rested his first appeal to the Resident's Court. The petition was drafted by a practised hand on Mr. Nyando's behalf and he was prepared to rely on it as it stood. He was quite unable to elaborate the points raised and did not seem to see the necessity of doing so. For instance, he says at the top of page 3 of the petition: "The evidence in this case showed that the land was originally felled by a small group of Mentu Tapu ancestors about four generations ago. The Respondents admit this." Mr. Ta'ing strongly denies that the Respondents admit this and Mr. Nyando was unable to point to any evidence of this alleged admission. Again Mr. Walker qualified his reference to Mentu Tapu’s tenure by the words "if it ever existed", but Mr. Nyando disregards this important reservation. During the course of the hearing Mr. Nyando abandoned his attempt to elaborate the points raised in the petition and asked leave to call further witnesses. This was granted lest Mr. Nyando should feel aggrieved that he was being deprived of a full hearing. As both these witnesses could have been called before the magistrate we feel we were unduly favourable to the Appellants in granting the application and overriding Mr. Ta'ing's objection. The first witness was Sadi anak Daram. He finished his evidence just before the luncheon recess and said nothing about the original felling of the jungle. At the resumed hearing in the afternoon Mr. Nyando asked for this witness to be recalled. He was recalled and he told us that an ancestor named Klu felled the jungle and that he had learned this from Pamancha Baud. But Pamancha Baud gave evidence before the magistrate and said nothing about the original felling of the jungle. The name Klu was not even mentioned in the lower Court proceedings. Such evidence is useless.

The second witness Latip anak Rino said that the land had been lent to Lobang Batu and asked that the land should be shared between Mentu Tapu and Lobang Batu. Mr. Nyando, in his final remarks to the Court, seemed to abandon his claim to the whole area and asked that we should order the land to be shared. We strongly favour settlements of disputes of this kind by mutual agreement; in fact Mr. Nyando and Mr. Ta'ing conferred in private, at our suggestion, before the commencement of the hearing of this appeal with a view to settlement. Mr. Ta'ing, however, contends that he is entitled to a judicial decision dismissing the appeal. We have gone through the voluminous record carefully and considered the points raised in the petition of appeal. We realise that much of the evidence was shadowy, as one would expect in a case of this kind, but we are firmly of the opinion that there are no valid legal grounds for varying Mr. Walker's decision. The appeal will be dismissed. The second assessor also thought that the appeal should be dismissed, but the first assessor was in favour of dividing the land.

As to costs, we realise that Mr. Ta'ing and his party have been put to considerable trouble and expense, and the general rule is that a successful party gets his costs. There was, however, a genuine dispute here and the magistrate believes that both claims were put forward in good faith. The dispute concerns villages, not individuals in their personal capacity. It seems inappropriate to us to order costs in this case. There will be no costs.

Mohamed Ibrahim & Ors. v. The Trustees of the Indian Mosque

SUPREME COURT

MOHAMAD IBRAHIM AND OTHERS

versus

THE TRUSTEES OF THE INDIAN MOSQUE

(C.J. 761/1940)

Power of Mosque Trustees-Application of Islamic law-Application of mosque funds for educational purposes.

The Trustees of the Indian Mosque, Kuching, proposed to expend certain of the mosque funds on the religious education of Indian Mohammedan children. There was no trust deed in existence. The Plaintiffs contended that Islamic Law prohibited mosque trustees from expending trust funds on purposes other than the salary of the Iman or the actual mosque building and fabric. The Grant of land on which the mosque stood was endorsed “for religious purposed only.”

Held:

          That the trustees were entitled to expend mosque funds for the purposed of religious education as they proposed.
BEFORE THE JUDICIAL COMMISSIONER.

          Application by the Plaintiffs for an order to restrain the trustees of the Indian Mosque from expending the mosque funds except for certain purposes.

February 5th, 1941

          The Plaintiffs and Defendants in person.

          The following judgment was delivered.

          THE JUDICIAL COMMISSIONER : In this case the Plaintiff, Mohammed Ibrahim, appears on behalf of about one hundred fellow Muslims and asks this Court to rule that the Trustees of the Indian Mosque in Gambier Road have caused and are causing an unlawful expenditure of the funds of the Mosque by reason of their maintaining a religious Maderasah in connection therewith. It was the Plaintiff’s case that such expenditure was contrary to Islamic law and must be stopped. He told me that, while he approved in theory of religious instruction, he objected to the funds of the Mosque being used for this purpose. He further asserted that Islam only permitted such funds to be expended under three heads which were :-

	(1) The salary of the Imam or Imams.

	(2) Repairs to the building and fabric.

	(3) The re-building of the Mosque.

          2.   When asked by me whether in his view it would be wrong to employ any surplus funds of this nature for purely charitable purposes, he told me that according to his reading of the Islamic Law this would be wrong. The Mosque funds belonged to Allah and their disbursement upon any purpose except that of the Mosque itself would be displeasing in the sight of God. In support of this remarkable doctrine I had called before me an Arab of the Yemen, who admitted that he was not an Imam, and that he had himself only attended a Maderasah in the Yemen for a short period. This witness produced a book published in Egypt which purported to set out instruction on the conduct of prayers, ablutions and other observances of the Islamic faith but which had no direct bearing upon the matter before the Court. He further admitted that this book was concerned with the special observances of the Sha’afi sect of Islam. Questioned by me as to the authority of the Qur’an in such a matter, he said that all teaching emanated from that book which was the revealed word of God. He then said that he thought here was a ruling in the Qur’an in support of the Plaintiff’s contention and quoted a text which ran: “Those persons, who look after and take care of the Mosques, are those of the greatest faith and true believers. “Pressed by myself to find me any text which related quite specifically to the matter before the Court, he quoted three or four texts which, read in an English version of the Qur’an, had no conceivable bearing of the point under consideration.

          3. The next witness was an Indian gentle man who produced a work of fiction in Urdu which was supposed to contain an authoritative reference to the matter before the Court but this evidence was not admitted.

          4.   I called for the original grant under which the Mosque was built and upon the face of that document are the words "for religious purposed only.” It might be right to mention here that both parties agreed that the school, the matter of dispute in this action, was directed solely to the imparting of religious instruction and had no secular side.

          5.   The Mosque was registered on the 2^nd December, 1929, as a corporate body. A letter accompanying the application for registration set out the purposed for which the association was being set up. I find therein these purposes defined from this document what the intentions were of the persons who were at that time the representatives of the Mosque. For the Defendants Haji Yussuf bin Haji Abdulrahman Shabli gave evidence from his personal knowledge of conditions in Mecca. He told me that the great Maderasah Solatiah in that town was supported by funds sent by certain Indian Mosques.

          6.   Mohammad Shariff, the Senior Trustee of the Mosque, giving evidence, said that this particular school in one form or another had been in existence for at least thirty years and that until about four years ago no complaint had ever been raised in respect of it. Questioned by me as to the condition of the Mosque’s fabric, he said that upon the whole it was in good repair and that to do all that was wanted to put it in perfect order would not cost more than from $400 to $500, but that it had been the intention of the Trustees, when the repair was over, to raise funds to put up an entirely new building. He produced a Bank slip which proved that the Mosque Funds at the moment amount to something in excess of $11,000 from which it is clear to my mind that no question of neglecting the Mosque and its services in order to support this school can arise.

          7.    I further had the advantage of hearing the evidence of the Datu Hakim who, speaking as a Moslem but not connected with this particular Mosque, told me that the Faith was of greater importance than the Mosque itself and that teaching was a fundamental principle of Islam. He declared that the Prophet himself was a teacher before any Mosque had been built and added that in his view it was inconceivable that any one of the four heads of the Islamic faith in Mecca could be found to endorse the Plaintiff’s contention. His final comment was to the effect that it was for the Plaintiff to produce some authority from the text of the Qu’ran itself.

          8.    I have listened to all the evidence which the Plaintiff and his friends have been able to put before me, and it is right that I should put it on record that, just over a month ago and in this same Court, I warned him that I should require very precise and definite evidence of the most unimpeachable character before I could, as a matter of law, seriously consider his application. In spite of that warning which was uttered with a view, if possible, to averting unnecessary litigation the Plaintiff has brought this action. During the course of it I have endeavoured with such patience as I possess to listen with care to everything which he has wished to say to me. I have more than once during the course of this hearing indicated that I am sitting here in a purely judicial capacity and with no intention of deciding any point connected with Islamic Law. As a Court of Law requires a Plaintiff to prove his case, so the onus has been throughout upon the Plaintiff to satisfy me in this matter as a matter of law. He has failed completely to do anything of the kind. In my view the answer is clear whether the matter be regarded from the legal point of view or from the religious. I am going to rule that the Trustees have not only acted rightly but have done that which it was their duty to do in the circumstances. They could not properly have done less than they have done and I am satisfied that they have acted in accordance with the wishes of the great majority of the worshippers in this Mosque. I have only listened at such great length to a plea which to my mind from the very first had no shadow of foundation in law because I am unwilling, in a country where litigants do not have the advantage of professional guidance and assistance, to put any obstacle in the way of any man who desires his point of view put before the Court. I have now heard all that he has to say. There will be judgment for the Defendants with such costs as may be properly allowed by the Registrar.

Application dismissed.

Nyalong anak Bungan v. The Superintendent of Lands & Surveys, Second Division

IN THE HIGH COURT IN BORNEO

NYALONG ANAK BUNGAN ...				...	...	...	Plaintiff
versus
THE SUPERINTENDENT OF
LANDS AND SURVEYS,
SECOND DIVISION,
SIMANGGANG	...	...	...	...	...	...	Defendant

In the High Court in Borneo at Kuching before Silke, J.

Civil Suit No. K.12 of 1966.

Date of Judgment: 31st May, 1967.

Dayak Customary Law-"Berimba" land-“Temuda" rights-Inheritable rights-Claimant having no dealings with land for over 15 years-Whether abandonment of customary rights.

The Plaintiff sought for a declaration that he was the lawful, rightful owner of a piece of land under customary right "by virtue that the first person to berimba the jungle and farm the land was his father followed by himself and his family." During the course of the proceedings the original claim was amended to add two alternative claims, namely a claim that he acquired the land in his own right by the clearing of the jungle and cultivation by himself, and a further claim that he had acquired in his own right by customary tenure that portion of the land which he had cleared and cultivated himself.

The Defendant denied the claim (i) on the ground that the Plaintiff's father was a Chinese by race, (ii) that both the father and the Plaintiff moved away from the district thus losing all rights, (iii) that the land had been abandoned by the Plaintiff for a period of over 15 years and thus he had lost all rights, and (iv) that the land was never in fact cleared at all.

          The evidence was to the effect that sometime prior to the Japanese Occupation his father, whom the Plaintiff admitted to having had a Chinese father and an Iban mother, cleared a portion of the land in question. After his father's death the Plaintiff with the help of some friends and neighbours cleared the rest of the land and padi was planted twice producing two harvests. At that time he was living in Kampong Skra about 1 ^1/2 hours from the land by boat. From then on until five years ago the Plaintiff said he did nothing to the land but visited it on many occasions just to look at it. There was evidence that for years past the said land have been used by the people of the area as common land from which wood for building purposes had been gathered and also for firewood.

Held:

          The culminating and decisive factor in this case was the non-user of the land for a period of over 20 years by the Plaintiff. By having no dealings with the land for a period of 20 years and allowing without objection the user of others of the land the Plaintiff had abandoned any customary rights which he might have acquired by himself or in any other manner over the land.

Per Curiam :

          The basis of temuda rights by a single family over land is based on the fact of the family belonging to the community and on the continuous occupation of that land. When occupation ceases the family may have a "preference" against other people over the land but if it makes no attempt to exercise any right at all over the land and allows, either by default or by acquiescence, other persons or a community different to its own to use the land then that family loses any rights it may have had over the land.

Cases referred to:

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

(2) Keteng bin Haji Li v. Tua Kampong Suhaili (1951) S.C.R. 9.

(3) Sigip anak Majan v. R. an unreported Criminal Appeal No. 26/54.

          Plaintiff absent by leave.

          Abernethy for the Respondent.

SILKE, J.: This is a claim by the Plaintiff, Nyalong anak Bungan, for a declaration that the Plaintiff is the lawful rightful owner of that parcel of land situate at Simanggang / Serian Road containing an area of eight acres, more or less, under customary right "by virtue that the first person to berimba the jungle and farm the land was his father Bungan anak Awan followed by himself and his family.

During the course of the proceedings the original claim was amended to add two alternative claims, namely a claim that he had acquired the land in his own right by the clearing of the jungle and cultivation by himself, and a further claim that he had acquired in his own right by customary tenure that portion of the land which he had cleared and cultivated himself.

          The Defendant denies the claim firstly on the grounds that the father of the Plaintiff was Chinese by race. secondly, that both the father and the Plaintiff moved away from the district thus losing all rights,
thirdly that the land has been abandoned by the plaintiff for a period of over 15 years and that he has thus lost all rights and, finally, that the land was never in fact cleared at all.

          The somewhat confused evidence of the plaintiff, he was unrepresented, was to the effect that sometime prior to the Japanese occupation his father, Bungan Anak Awan, whom he admits to having had a Chinese father and an Iban mother, cleared a portion of the land in question. It is not in dispute that the land is that portion marked in pink and shown on map reference W56-2-14 produced by the defendant. Having cleared a portion he then died. After his death the plaintiff with the help of some friends and neighbours cleared the rest of the land and padi was planted twice producing two harvests. This again was all prior to the Japanese occupation. At the time he planted he was living in Kampung Skra about 1^½hours from the land by the boat. The land itself is at Kg. Gamang which is within the jurisdiction of a different Penghulu from the Penghulu at Kg. Skra.

          From then on until about five years ago the plaintiff says he did nothing to the land but visited it on many occasions just to look at it.

          It is quite clear from the evidence of other of his witnesses thet the plaintiff’s father was a Chinese and was looked upon as such until he was adopted by Penghulu Sidu at Kg. Tarok and married an Iban wife. It also appears from the evidence of these witnesses, in particular Ugah anak Bansi a very old man and previously Tuai Rumah at Kg. Skra, that plaintiff’s father was at Kg. Tarok when, if at all, the lands was cleared and that is was only after this that the plantiff moved to Kg. Skra and from there went to Kg. Gamang to continue to clear the land. I am in no doubt, despite the evidence of the defence witnesses, that some of the land in dispute was cleared by Bungan and some cleared and planted by the plaintiff. I am in considerable area however if the entire eight aeres were cleared and planted. Eight aeres of padi is a very considerable area and one which would be well known to people living in in the area. I think the truth of the matter is that some small pertion was cleared and planted and that it is possible, this being over twenty years ago, memories of it are somewhat dim.

          Further from the evidence produced by the defence I am satisfied that for years past this land has been used by the people of the area as common land from which wood for building purposes has been gathered and also for firewood.

Prior to the Japanese Occupation section 9 of the Land Ordinance (Cap. 81) did not exist and the position was governed by Order L-2 of 1931, sections 90 and 91, which defined "Native" as being persons belonging to the tribes listed as Native in Schedule B to Order L-2. That the father of the Plaintiff became identified with and subject to the Native system of personal law then existing within the jurisdiction of Penghulu Sidu when the Penghulu adopted him I find to be fact. But pre 1st January, 1958-the date of commencement Cap. 81-this would appear not to permit him under the land laws to raise customary rights by berimba of the land.

Further even if such rights could have been raised the decision in Udin anak Lampon v. Tuai Rumah Utom⁽¹⁾ contained in the compendium Volume 1928-41, 1946-51 of the Reports, where it was held that: the Order of the Rajah dated 10th August, 1899, declaring 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', to be declaratory of customary law would be against the Plaintiff in the circumstances here claiming by virtue of inheritance. He did after the first clearing by his father of the land move out of the district into the jurisdiction of another penghulu and there was no grant.

The culminating and in my view decisive factor in this case is the non-user of the land for a period of over twenty years by the Plaintiff. 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 there for whomsoever recleared it. Here having left the district in which his father had berimba land the PIaintiff returned and created at a later stage, he says temuda rights by his own actions and he then failed to deal with the land and over which communal rights have been exercised, without opposition, for a period of twenty years by persons resident in the Gamang district.

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. When occupation ceases the family may have a ‘preference’ against other people over the land but if it makes no attempt to exercise any right at all over the land and allows either by default or by acquiescence, other persons or a community different to its own to use the land then that family loses any rights it may have had over the land.

This land has not been cultivated twenty years by the Plaintiff: the community in Simanggang in general and Kampong Gamang in particular have collected timber for building and for firewood from the land without let or hindrance from the Plaintiff. 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.

In Keteng bin Haji Li v. Tua Kampong Suhaili⁽²⁾ His Honour Judge Digby said: "If a person abandons his legitimate occupation of such land he does so at his peril". That case was not of the same nature as the present one but I think the principle remains.

Further in Sigip anak Majan v. R.⁽³⁾an unreported Criminal Appeal No. 26/54, where the Appellant had been convicted of mischief in that he and other members of Kampong Petag had felled the jerambe or secondary jungle which was claimed by the inhabitants of Kampong Rituli to be jerambe over which they have farming rights, Lascelles, J. said in the course of his judgment dismissing the appeal against conviction, that the court could take judicial notice of the effect of felling jerambe and that the value of the land, in farming dry padi, lies in the growth on the land and the longer the jungle is allowed to grow the better the land becomes for the purpose of farming. And again "the question of when jerambe can be considered to have been abandoned is in my opinion governed by the common law"-the common law being the common law of Sarawak. The learned Judge went on to mention cases in which he had dealt tracing inheritable rights back as far as 1889.

Here Nyalong might have acquired inheritable rights over that portion of the secondary jungle cleared by his father had he not moved to another jurisdiction after his father's death. He did gain rights in his own name to that portion which he himself cleared-as I have said I do not accept that this was the whole eight acres-but by having no dealings with the land for a period of twenty years and allowing without objection the user of others of the land I hold that he abandoned any customary rights which he may have acquired either by himself or in any other manner over the land.

For this reason I refuse the declarations asked for and dismiss the Plaintiff's claim with costs that I assess at $75.00.

Claim dismissed.