Native Courts System

No.

Title

Description

Attachment

Sheripah Unei & Anor. v. Mas Poeti (f) Anor.

SUPREME COURT

SHERIPAH UNEI (f) AND SHERIPAH TA’SIAH (f)

versus

MAS POETI (f) AND T. ST. JOHN DILKS (Probate Officer)

Adoption – Adoption Ordinance – Malay custom – Hukum Shara – Mohammedan Wills Ordinance.

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

Held:

That adoption is recognized by Malay custom in Sarawak, and if registered in accordance with the laws of Sarawak, the effect of such adoption is that the adopted child stands in the same relation to the adopting parent or parents as would a child born in lawful wedlock, even though this is not in accordance with the Hukum Shara.

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

6^th September, 1949

The following judgment was delivered.

HEDGES, C.J.: This is an appeal against the judgment and Order of the Second Circuit Court dated 5th August, 1949.

There are two main grounds of appeal. In the first place it is contended that the document dated 20th October, 1947 (referred to in the Order of the Circuit Court as Exhibit “X”) is not a valid will. Secondly, it is argued that no provision is made by the Hukum Shara which would permit inheritance by an adopted child.

           As regards the first of these matters, it is clear from the terms of the Mohammedan Wills Ordinance, enacted by the Rajah in 1896, that the use of the form of will therein prescribed is optional. Section 6 provides that the drawing up and division of property shall not necessarily be regulated by the Mohammedan law of inheritance, but shall be in accordance with the desire and wishes of the testator; the proviso to that section is not applicable to the particular circumstances of this case. The contention that the will was invalid is, in my opinion, without substance.

          As regards the second of these mattes, it was proved that Mas Poeti (f) was validly adopted in 1940. Section 3(2) of the Adoption Ordinance provides that an adopted child shall stand in the same relation to the adopting parent or parents as would a child born in wedlock and shall have all the rights and privileges of a legitimate child in respect of the obligations and estate of the adopting parents. This provision is not an accordance with the Hukum Shara, but it is the law of Sarawak, and section 4(5) of the Ordinance imposes on the District Officer, before registering an adoption by a person professing the Mohammedan faith, the duty of explaining that this is so. In the case before me the adoption was registered before the Adoption Ordinance came into operation, but section 12 provides that nothing in the Ordinance shall effect the validity or legal effect of an adoption registered prior to the coming into operation of the Ordinance. Adoption, with the legal consequences that I have indicated was customary among Malays in Sarawak long before the Ordinance of 1941, and was indeed expressly recognized by an Order of the Rajah dated 1^st March, 1878, which later appeared in the “Green Book”. The second contention of the appellants is therefore without foundation.

          Having read the record of proceedings in the Second Circuit Court and the petition of appeal and having heard the parties I order that the appeal is dismissed and the decision of the Second Circuit Court is upheld. I direct that this judgment be read in the Circuit Court at Sibu and that a copy be served on each of the parties.

Appeal dismissed.

Sindon (f) anak Jawa v. Ting Sing Chiew

IN THE HIGH COURT OF SARAWAK, NORTH BORNEO
AND BRUNEI

SINDON (f) ANAK JAWA		.. .	...	. ..	Applicant
		versus
TING SING CHIEW ...	...	.. .	. ..	. ..	Respondent

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

Sibu High Court Civil Case No. 17/6l.

Date of Judgment: 9th March, 1961.

          Declaration as to proper heirs to estate-Marriage between Dayak woman and Chinese man according to Dayak custom-Which customary law to apply in the distribution of property-Chinese or Dayak customary law-Administration of Estates Ordinance. Section 17 (c).

          Ting Kian Tong, a Chinese died in 1960. Be had had three wives, all Dayaks. By the first wife he had a son Ting Sing Chiew, Defendant. By his second wife he had another son, Ting Sing Tien. By his third wife, Plaintiff, he had two daughters, Ting Sing Hung and Ting Sing Lui. The first two wives are dead and third wife survives as do all the children.

          Defendant obtained Letters of Administration at Binatang on 28th December, 1960. Plaintiff commenced action in the High Court seeking for declarations that she and her daughters were the rightful heirs to two pieces of titled land according to Dayak customs.

          Deceased and Plaintiff were married according to the Dayak custom and belah pinang. Deceased considered himself to have masok Iban as he lived among the Dayaks. Penghulu Mamta gave evidence.

          The sons of deceased's former wives claimed that as deceased was of Chinese origin the property should be distributed according to Chinese customary law. Under this custom all the properties would go to the two sons.

          The first question to be decided was which customary law should be applied.

Held by LasceIles, J.:

          (1) That there was no evidence as to what torm of marriage took place between deceased and his first two wives and in view of what took place between Deceased and Plaintiff the fair view to take was that the first two marriages took similar form.


         (2) That the properties should be distributed according to Dayak customs. Plaintiff is entitled to half share of the properties in her own right as pencharian, The other half devolves as the estate of the deceased and as the two sons are still in the family therefore the Plaintiff and the four children share this half equally-agi laok. In brief Plaintiff will get 6/10 share and each child 1/10 share.

LASCELLES, J.: This is an application for a declaration as to who are the proper heirs to the estate of the late Ting Kian Tong, as to what are their proportionate shares in the estate, and as to what constitutes the estate.

The deceased, a Chinese, died towards the latter part of 1960. He apparently had had three wives, all Dayaks. By the first wife he had a son, Ting Sing Chiew, by the second wife another son, Ting Sing Tien, and by the third wife two daughters, Ting Sing Hung and Ting Sing Lui. The first two wives are dead and third wife, Sindon, survives as do all the children. I am satisfied that all the survivors are living together at Sungei Stubah, Binatang.

The eldest son reported the estate for probate and obtained Letters of Administration at Binatang on 28th September, 1960, and I note that in the document he is referred to as the only son of deceased.

The first question which has to be decided is what is the customary law to be applied (Section 17(c) of the Administration of Estates Ordinance). I have heard the evidence of Penghulu Nanta, whose word I accept absolutely, to the effect that he supervised a marriage by Dayak custom, "belah pinang" between the deceased and his third wife, Sindon. He states that at the time the deceased was living with Dayaks and working with them; sometimes he also wore a "chawat" and "ketapu". The deceased himself told him that he had "masok Iban". I am in no doubt that it is Dayak customary law which must be applied.

The sons by the former wives however, claim that it is Chinese customary law which should be applied as their father was a Chinese. Their object in advancing this claim is obvious as under Chinese custom they would get everything and the widow and the daughters would only be entitled to maintenance until death or marriage. No evidence whatsoever has been produced as to what form of marriage took place if any between deceased and the mothers of these two sons but I think it is only fair in view of what took place m the case of Sindon to presume they were marriages by Dayak custom. I find no substance in the claim advanced by the sons.

Sindon and her two daughters are clearly heirs and it remains to consider the position of the two sons.

The eldest son states that his mother died when he was about six years old. The deceased sent him to school but took him out during the occupation. After the occupation he returned to school for two years and then left and worked with his father in farming. In 1959, he went to Simanggang to look for work and returned after his father's death. His brother confirms that he went to Simanggang to try to earn some "belanja'' to payoff his father's debts. On the evidence I am not prepared to find that he had left the family.

The mother of the second son left the deceased when the son was still being breast-fed. For a time he stayed with his maternal grandparents but then according to him he was brought back by the deceased and worked with him. It has been suggested that he only returned after the death of his father but he struck me as being an honest witness and I am prepared to believe him when he says he was brought back while still young and has been running the padi mill.

The eldest son has maintained that the mill and the land at Sg. Stubah was bought with money received from the sale of a rubber garden at Sungei Teku in which the others had no hand. He has produced no evidence of this and in fact Penghulu Nanta says that after the marriage the deceased and Sindon went to Sg. Stubah and only then did he acquire property. There is evidence in the Land Office records which shows that the deceased only became the legal owner of the land at Stubah in 1954 and it was in 1954 that 0.25 of an acre was cut off the original 8.56 acres for the purpose of erecting a rice mill. I cannot believe that the money used was the result of the endeavour of the deceased before he married Sindon approximately 19 years ago. I hold then that all the property held by the deceased at his death falls into the estate. This includes the land held under Crown Lease No. 54110 and Lot No. 41-Seredong Land District together with the mill on it. There are also some cattle, and it has been suggested a certain bandong, although the latter is claimed by the eldest son as his own privately purchased property.

As this property was obtained by the deceased jointly with Sindon in the period of their married life it follows that she is entitled to a half share in her own right as "pencharian". The other half devolves as the estate of the deceased and as I have found the two sons are still with the family the widow and the four children share this half equally-bagi laok, In brief the whole property is inherited in the following shares:

Sindon	6/10 and
The four children	1/10 each

Cost of this action shall be borne by the estate.

Siti (f) anak Bayang v. Seripa anak Engting

IN THE HIGH COURT OF SARAWAK, NORTH BORNEO
AND BRUNEI

SITI (f) ANAK BAYANG	…	…	…	…	Plaintiff
versus
SERIPA ANAK ENGTING	…	…	…	…	Defendant

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

Sibu High Court Civil Case No. 105/6l.

Date of Judgment: 13th October, 1961.

Distribution of property-Dayak customary law--Letters of Administration-Divorce.

Deceased married Defendant and had four children of whom Plaintiff is one. Sometime before the Japanese Occupation deceased and Defendant were divorced. Two of the children went with Defendant. Plaintiff and Mesir followed the deceased. Shortly after, deceased died. In 1961, defendant obtained Letters of Administration to the estate of deceased. Included in the estate were two leases. Defendant sold one to a Chinese. When Mesir was ill she looked after him but he died in 1961 and paid off his debts. Defendant claimed that when the divorce took place it was agreed that one lease was to go to her and the other to deceased. Plaintiff sought for a declaration as to her right to the estate.

Held by Lascelles, J.:

		(1) That since Defendant having been divorced from deceased she had no right to the Letters of Administration which should have been issued to Mesir or Plaintiff.
		(2) One piece of land is under pesaka title. therefore. it cannot be transferred but only inherited.

          LASCELLES, J.: The Defendant in this case was originally married to Bayang, father of the Plaintiff. There were four children of the marriage. Some time before the Occupation, Defendant and Bayang were divorced; two children followed their mother and two, Mesir and Plaintiff followed their father. One can only assume that the property was, in accordance with Dayak adat, divided at the time of the divorce. Later, but still before the Occupation, Bayang died. His death was not reported for probate until 1961 when Defendant obtained Letters of Administration. Included in his estate were two gardens held under Leases 47071 and 43763. The Defendant then sold No. 47071 to a Chinese for $1,000.00. The Plaintiff is now asking for a declaration that she is the heir to Bayang's estate.

          The Defendant claims that when the divorce took place it was agreed that No. 47071 was to go to her and 43763 to Bayang. She further claims, and it is supported by evidence, that Mesir before he died in 1961, had been ill for over a year. During that time she had helped him with money and food; further, he had borrowed money from other people. Just before his death he had told her she could have his garden 43763 to pay off all the debts.

          Having obtained Letters of Administration to Bayang's estate Defendant promptly sold the garden 47071 which she regarded as her own and paid off Mesir's debts. She now regards 43763 as hers.

          In my opinion the Defendant having been divorced from Bayang had absolutely no right to have the Letters of Administration and they should have been issued to Mesir or, if he had already died, to the Plaintiff. Even if it is true Mesir promised No. 43763 it was not all his to give as Plaintiff clearly had a share. I have checked in the Land Office on No. 43763 and it is a pesaka title and section 41 of the Land Code applies. The land cannot be transferred but only inherited. It is quite clear that the Plaintiff is the person who should hold Letters of Administration and I direct that the Probate Officer cancel the Letters of Administration to Defendant and re-issue them to the Plaintiff whom I declare to be the heir.

          Regarding the garden that has been sold it has been purchased by a bona fide purchaser for value and little can be done about it. In any event Mesir was entitled to a share in Bayang's estate and the proceeds have been used in paying his debts.

Sumbang anak Sekam v. Engkarong anak Ajah

IN THE NATIVE COURT OF APPEAL OF SARAWAK

SUMBANG ANAK SEKAM	…	…	…	Appellant
versus
ENGKARONG ANAK AJAH	…	…	…	Respondent

In the Native Court of Appeal at Sibu before Lascelles, L, Hermanus Assan, Temenggong Jugah and Pengarah Banyang.

Native Court of Appeal No. 1 of 1957.

Date of Judgment: 22nd March, 1958.

Customary tenure-Communal rights-Transfer of individual rights-‘’Pindah'' by holder of "termuda" rights.

Held:

		(1) Farming rights can be held communally under the control of the Tuai Rumah;
		(2) Individual farming rights are not transferable by sale or otherwise for value;
		(3) If the holder of individual rights moves from a longhouse but remains within the same Penghulu's district he continues to retain in full those rights provided his move does not take him bevond a reasonable farming distance from the land.

Parties in person.

          LASCELLES, J.: This case has come before this Court by way of a case stated by the presiding Magistrate on the hearing of an appeal in the Resident's Native Court.

          The facts as found by the Resident's Native Court are fully set out in the judgment of that Court and it is unnecessary to set them out here.

          The points of native law or custom on which a decision is required are as follows:-

    (a)
whether land can be held communally and farmed under the supervision of the Tuai Rumah and, if so, in what circumstances and whether and how the circumstances apply to this case;
    (b)
whether individual rights are transferable by sale or otherwise for value; if so,whether Guyu's transfer to Perada was valid and if not what happens to the land disposed of;
    (c)
whether, in the event of an individual customary tenant moving away from a particular longhouse but not out of the Penghulu's jurisdiction, he continues to hold full individual customary rights over land in that longhouse area or whether such rights are modified in any way described in the Resident's Native Court judgment in the paragraph beginning:"With regard to the land over which Perada and her husband by felling created customary rights. …"

I think at this stage it is desirable to quote that paragraph in full and it reads as follows:-

"With regard to the land over which Perada and her husband by felling created customary rights the position, in accordance with a well-recognised Iban custom, is that while the customary rights are not lost by a move to another longhouse some distance away but within the same Penghulu's jurisdiction, they are modified to this extent; if Perada's heirs, that is to say, the Respondent, wish to farm the land in co-operation within the people of the house where the land is situated they must inform the Tuai Rumah of their intention. If they fail to do this the Tuai Rumah is at liberty to allocate the land in any particular year when that area is being farmed to any member of his house. If Perada's heirs return to Rasau they may resume full customary rights over the land felled by Perada."

          The land involved in this case is native customary land situated within the boundary of Mixed Zone. It is not held under any title although it has already been surveyed.

          With regard to the first point (a) this Court is of the opinion that land can be held communally, that is to say, by the longhouse, and the use of that land shall be under the control of the Tuai Rumah who may allocate the use of it to the persons he considers most need it at the time.

           The Court does not feel called upon to set out all the varied circumstances in which such a position would arise but suffice it to say it would arise when the owner of the customary rights had forfeited them either permanently or temporarily. A good example would be when a person died without leaving any heirs. The latter part of this question, namely, whether and how the circumstances apply to this case it will be more convenient to leave until the consideration of the other points.

           In the Court's opinion the first half of the second question before it is a simple one. Individual customary rights are not transferable by sale or otherwise for value.

          The second half of the question has caused this Court some difficulty. This arises because the Court does not consider the Resident's Native Court was justified in finding as a fact that Guyu "sold" the land to Perada (f). It is true that the present Appellant used the word "bought" and this may have misled the Resident's Native Court. It is clear that Guyu moved to Bintulu many years ago and that when he moved he handed over his rights to Perada. In return he received from Perada what is called Tungkus Asi. This is not by any means a purchase price or compensation but can best be interpreted as a customary tanda or token. In former days this was something of little value, supposed to represent a meal which might reach the level of a pig and was usualy handed over in front of the Tuai Rumah. In the opinion of the Court at the time of Guyu's move to Bintulu, years ago as it was, this Tungkus Asi was still at the low level of a token and could not be regarded as sale. In other words this Court considers there was no sale and accordingly as Guyu had received Tungkus Asi from Perada the latter had prior claim to farm that land. If it was not used by Perada then it would be for the benefit of the longhouse at the discretion of the Tuai Rumah. Accordingly it is Perada's heirs who have prior right to apply for a title now the land has become situated within a Mixed Zone.

          Times have however changed since the olden days at any rate in what may be best described as the non-ulu areas. It is the opinion of the Court that in the present day every such case will have to be judged on its own merits. The term Tungkus Asi may now well be misused and disguised what is really in fact a sale. If for example the Tungkus Asi was to consist of, say $500.00 cash or a $1,000.00 outboard engine then this would be a sale and invalid. In such a case the land would revert to the longhouse and come under the disposition of the Tuai Rumah.

The opinion of the Court regarding the third point is that if the holder of customary farming rights moves from a particular longhouse but remains within the same Penghulu's jurisdiction, he continues to retain in full such farming rights provided his move does not take him beyond what can only be described as "reasonable farming distance" from the land. 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 awav from the longhouse than in former days. If a person moves to a distance from which he cannot reasonablv farm the land then the Tuai Rumah may allocate the use of that land to others in the longhouse until such time as the holder decides to farm the land himself. In this present case the Court does not consider that a move from Engkalat to Rasau is a move beyond reasonable farming distance-Appellant states 1¹/₄ hours approximately by outboard-and accordingly the heirs of Perada still hold full customary farming rights.

          The notice of appeal submitted by the Appellant was rightly treated by the Resident's Native Court as a requirement by the Appellant, Sumbang, to state a case for the opinion of this Court. Paragraph 4 of that notice of appeal raised a point which the Resident's Court Magistrate held to be irrelevant directly to these proceedings although he considered it was important to the litigants. With due respect we consider it was relevant. As we see it the root of these proceedings is the desire of the Appellant not only to be declared the holder of the customary rights but also to obtain a Mixed Zone title to the land. In our opinion this Court has no jurisdiction to say that any title should be issued. That is a matter for the Land and Survey Department. We would make it abundantly clear that a holder of customary rights even although the land, as in this case, is situated within the boundary of a Mixed Zone area is in no position to insist on a title. It is a question of Government policy and it may well be, for example, that in view of future agricultural development Government might not in certain cases consider it desirable to issue titles to such land.

          In this present case the Court considers that the customary rights over all the land in dispute belong to the heirs of Perada, namely, Jawi, UIas and Guan. In view of the lengthy and continued quarrelling over this land and the desirability of putting an end to litigation the Court recommends to the Superintendent of lands and Surveys that a title to the land which has already been surveyed be issued to Jawi, UIas and Guan, but, and this is considered to be most important, a condition should be attached to the title prohibiting the sale or subleasing of the land to anyone but a Dayak of that particular district.

          Finally the Court again wishes to emphasize that this case must not be treated as a precedent by any Dayak who applies for a title to his customary tenure land situated in a Mixed Zone area. If on grounds of public policy such a title is refused this case must not be cited to support an argument of niki nibong niki pinang.

          It is ordered that the Respondent pay costs of $30.00 to the Appellant.

T.K. Nyanding anak Budik v. T.K. Maok anak Ngalu

THE NATIVE COURT OF APPEAL

T.K. NYANDING ANAK BUDIK	...	...	...	Appellant
versus
T.K. MAOK ANAK NGALU ...	...	...	...	Respondent

In the Native Court of Appeal at Kuching before Briggs, J. (President), Datu Bandar and Dato Abang Morni.

Civil Appeal No. 1/61.

Date of Judgment: 11th August, 1961.

Court not properly constituted-Administrative Officer not sitting-Effect-Retrial-Native Courts Ordinance, Section 8(3) and (4).

On appeal the Native Court of Appeal found that the Resident's Court was not properly constituted as an Administrative Officer was absent.

HeId:

          (1) That the proceedings before the Resident's Court were a nullity.

          (2) That the case be retried before different members of the Court.

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

          This is a case stated under section 8(3) and (4) of the Native Courts Ordinance. The record of the case which accompanies the case stated clearly proves that when evidence was taken on January 10th, 1961, in this case, and when judgment was given on the same day, the Resident's Court was not properly constituted because Abang Kamaludin, a Probationary Sarawak Administrative Officer was not sitting on that day.

          This means that the proceedings before the Resident's Native Court in this case are a nullity.

          This Court orders that case No. 2 of 1960 in the Resident's Native Court, Serian entitled T.K. Maok anak Ngalu on behalf of Kampong Bidak versus T.K. Nvanding anak Budih on behalf of Kampong Retoh (Taup) be retried by the Resident's Native Court, Serian. And we further order that such Court shall be constituted by persons other than those who heard the appeal in respect of which this case has been stated.

T.R. Ajie v. T. R. Jawa

IN THE NATIVE COURT OF APPEAL

T.R. AJIE versus T.R. JAWA

In the Native Court of Appeal at Simanggang before Briggs J., Pengarah Montegrai and Penghulu Sanggat, Assessors.

Native Court of Appeal Case No. 1/59.

Date of Judgment: 7th January, 1960.

Case stared-Case decide on correct custom-Reversal improper.

On an appeal the Resident's Native Court reversed the decision of the District Court. On a case stated the Native Court of Appeal held:-

		(1) That as the District Native Court decided the matter in accordance with correct custom it was wrong for the Resident's Native Court to disturb the decision.
		(2) The appeal is allowed the decision of the District Native Court restored.

The Court met and examined the records of the case and the case stated by the Resident's Native Court.

It is apparent that T.R. Jawa and T.R. Dangih are close relatives.

Pengarah Montegrai considers the decision in the District Native Court was correct and that it was reversed by the Resident's Native Court for the wrong reason. And the judgment of Abang Abdulkarim in the District Native Court was correct and based on correct custom, whereas the decision in the Resident's Native Court was not based on correct custom. Penghulu Sanggat agrees with this. And the President of the Court concurs.

Findings:

BRIGGS, J.: The Court therefore reverses the decision of the Resident's Native Court and restores the decision of the District Native Court for the reasons given above.

The sum of $25.00 per day for 3 days per Assessor must be paid from public fund.

T.R. Gawan v. Penghulu Manggol

IN THE COURT OF A JUDGE OF THE SUPREME COURT

T.R. GAWAN	...	...	...	...	...	Appellant
versus
PENGHULU MANGGOL		...	...	...	...	Respondent

In the Court of a Judge of the Supreme Court at Kuching before Lascelles, J., Datu Bandar and Abang Morni and James Muda Esq., Assessors.

Civil Appeal No. A/18/54.

Date of Judgment: 25th November, 1954.

          Boundary dispute-Award of compensation beyond jurisdiction of District Native Court-Appeal heard in the absence of Appellant who was aware of hearing.

          A dispute arose over the proper boundary dividing the farming land in the Ulu Niah between two longhouses represented by Appellant and Respondent. The District Native Court held that the boundary laid down in 1948 must be followed. This was upheld by the Resident's Native Court. On appeal the Native Court of Appeal held that the appeal was frivolous and that if was clear that the Respondent's land was fixed at the Sungei Tema on the true right bank of the Batang Niah and Appellant had no right to farm below that point.

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

          This is an appeal from a judgment of the Resident's Native Court, Miri, dismissing in part an appeal from the District Native Court, Niah.

           The trouble arose over a dispute as to farming land in the Ulu Niah between the Appellant, Tuai Rumah Gawan, and the Respondent, Penghulu Manggoi. In the District Native Court it was held that the boundary laid down in 1948 must be followed and the Appellant was ordered to pay certain compensation.

          The Resident's Native Court dismissed that part of the appeal relating to the boundary but set aside the award of compensation as being beyond the jurisdiction of the Lower Court. The Appellant is now appealing against that part of the decision involving the boundary.

          The Appellant did not appear but the Respondent was present and the first thing this Court had to decide was whether or not to proceed in the absence of the Appellant.

          On the 29th of September, a memorandum was sent to the Honourable the Resident, Miri, asking for his assistance to inform both parties that owing to difficulty in constituting the Court the appeal would be heard in Kuching and the date had been fixed for hearing on the 25th of November. He was also asked to inform them that they need not attend if they did not wish to do so and that the Court was prepared to consider any arguments they might wish to submit. On the 20th of November a telegram was received from the Resident, Miri, confirming that both parties proposed to appear at Kuching on the 25th of November.

          The Respondent stated that he left the Ulu Niah on the 11th of November and that the Appellant, who lives upriver from him, three days before that. He further stated that on arrival at Niah he was informed that the Appellant had already left. He did not meet the Appellant at Miri and apparently the latter had not approached the Government Authorities there.

          On the 24th of November, a letter was received from the Appellant setting out certain facts and submitting arguments in support of his case. In this letter he referred to the memorandum dated the 29th of September from the Supreme Court in Kuching.

The Court was satisfied that the Appellant was aware of the date for hearing and had had ample time in which to appear. Accordingly, the Court decided to proceed with the hearing of the appeal in the absence of the Appellant.

Having heard the Respondent, considered the petition of appeal and the arguments of the Appellant, and studied the record of the case the Court is of the opinion that this is an entirely frivolous appeal. It is quite clear from the memoranda exhibited in the case that the upriver boundary of the Respondent's land was fixed at the Sungei Tema on the true right bank of the Batang Niah and the Appellant had never had any right to farm below that point. His land is clearly that between Sungei Tema and Sungei Gurap which is upriver from Sungei Tema. The Court rejects absolutely the submission of the Appellant that he was never aware of this boundary decision of 1948. The Court dismissed the appeal with costs. After hearing the Respondent costs are taxed at $450.

It is suggested that arrangements be made to place some form of boundary mark at Nanga Tema to show beyond doubt where the boundary is and thus avoid any further possibility of misapprehension on the part of the Appellant.

T.R. Gembar v. T.R. Janting

IN THE NATIVE COURT OF APPEAL

TR. GEMBAR	...	...	...	...	...	...	Appellant
versus
T.R. JANTING	...	...	...	...	...	...	Respondent

In the Native Court of Appeal at Simanggang before Silke, J. (President), Penghulu Sangat ak. Uyut and Sumping Bayang.

Civil Appeal No. NA 1 of 1968.

Date of Judgment: 26th September, 1968.

Land Dispute-Between members of two Ionghouses-Decision of Penghulus in 1950-Records no longer in existence-No appeal but decision appeared to be disregarded by one longhouse-1950 decision followed by Penghulu's in 1966-District Native Court defining new boundaries-Resident's Native Court defining new boundaries.
As a result of a dispute between two individuals over their rights to plant padi in certain land a decision was made in 1950 by the Penghulu's Court not on the rights of the individuals but instead on communal rights of two longhouses. The decision appeared to have been disregarded by members of Respondent's longhouse. The matter came up again in 1966 at the suit of Appellant. The Penghulu's Court decided to follow the 1950 decision. Respondent appealed. The District Native Court did not seem to uphold the 1966 decision as an entirely new boundary line more favourable to Appellant. Naturally, Respondent appealed. The Resident's Native Court allowed the appeal on ground that the 1950 decision was wrongly decided as requisites of Iban custom were not observed and the two longhouses were not properly represented. New boundaries were drawn up. Appellant in turn appealed. Dismissing the appeal the Native Court of Appeal held:-

		(1) That the Resident's Native Court was correct in reversing the 1966 decision which followed the 1950 decision.
		(2) That in 1950 a dispute as to individual rights the decision was on communal rights, the parties were not properly represented by their respective Tuai Rumahs.
		(3) That although technicality may be overlooked it should be pointed out that the composition of the [966 Court exceeded the number laid down in paragraph (c) of subsection (1) of section 4 of the Native Courts Ordinance.
		(4) That the 1950 decision was a nullity as the Court had no power to make the decision it did.
		(5) That the land does not belong to either party but merely the customary communal rights on the area delineated.

          SILKE, .T. delivered the judgment of the Court:-

          This is an appeal to the Native Court of Appeal constituted by His Excellency the Governor under the provisions of para (a) of the proviso to subsection (2) of section 8 of the Native Courts Ordinance Cap. 43 and consisting of us Mr. Justice Silke, Presiding Judge; Penghulu Sangat ak. Uyut: Member; Sumping Bayang, S.A.O.: Member. The appeal is by way of case stated by the Resident, Second Division, under the provisions of subsections (3) and (4) of section 8 of the Ordinance. At the hearing the first question posed by the Resident was amended by the court pursuant to para (a) of subsection (5) of section 8 and a direction was given that a copy of the amendment be sent to the State Attorney-General.

          The questions the court has to consider are now "(1) Whether the Resident's Native Court could overrule the decision of a Penghulu’s Court held seventeen years ago and which decision was upheld by a Penghulu's Court on the 28th February, 1966, in respect of the same land in which' the parties were the same Rumahs as at present, there being no appeal from the original Penghulu's decision? (2) If the answer to the above question is in the affirmative, whether the maxim res judicata would apply."

          We have treated the argument advanced by both parties as being one covering the general issue raised by the two questions and will give our judgment as one single decision covering both questions for they are fully intermingled.

          It is necessary to set out at some length that which has gone before in this long-standing dispute. Tuai Rumah Gembar, whom we shall call the Appellant for ease of reference, has his longhouse on the Luboh Antu Road and his communal land takes in an area, undisputed, bounded in part by the Sungei Seruan, and Tuai Rumah Janting, subsequently referred to as the Respondent, has his longhouse in the same area with his communal land, undisputed, bounded in part by the Sungei Spaoh. The area now in dispute is that part between Sungei Seruan and Sungei Spaoh closed at one end by the Sungei Menjawa and at the other by Bukit Kempah and Bukit Buloh Lachau. There are other longhouses in the area but these have no relevance to this dispute other than the reference to them in the Penghulu's decision of 1950 and, as records of the trial and judgment of that Court no longer exist, that reference must necessarily be drawn from the evidence on records that do exist and what has been said before us.

          In 1950, one Ain went to plant padi near the Sungei Seruan and this was objected to by one Putit which resulted in Penghulu Inggol, who had jurisdiction over Putit's longhouse, pressing a case in the Penghulu's Court. This court consisted of Penghulu Intang, Penghulu Imong and, Penghulu Inggol and it went on to make a decision, not on the bilek rights of Ain and Putit, but on the issue of what land was communal to Rumah Gembar and to, what is now, Rumah Janting, the latter longhouse not being represented before it by its then Tuai Rumah, father of the Respondent. As we have said no records exist but it would appear that Rumah Gembar, Rumah Nyambar and Rumah Melintang were all involved in the AinIPutit dispute but we hear no more of Rumah Nyabar and Rumah Melintang;

          For the next seventeen years the Respondent's anakbiaks who refused to accept the 1950 decision, continued to plant padi in the disputed area without hinderance from the Appellant. It is however noticeable that rubber was planted only from Rumah Janting up to Sungei Spaoh and not communally, into the disputed area.

          In 1966, the matter again came before a Penghulu's Court apparently at the suit of the Appellant and that court consisted of Penghulu Jinggong anak Ajong, Penghulu Intang, Penghulu Lamoh, Penghulu Imong and Penghulu Inggol-three members being the same persons who constituted the 1950 court: Intang, Imong and Inggol. Judgment was given thus: and from this we gain some knowledge of the 1950 decision: “I am following the original finding that of Penghulu Intang, Penghulu Imong and Penghulu Inggol. This is my judgment. The land is to be shared. The land runs from Pulau Agkong, Brunai and then to Kempah. The rubber trees are to be destroyed. I have to follow the previous judgment when I heard the case I have called for them." We take this last to mean the Penghulu's.

          The Respondent was dissatisfied and appealed to the District Native Court, Engkilili, which gave judgment on the 22nd June, 1966, as follows, having set out a summary of the case: "In view of the above facts, Court dismissed the appeal of T.R. Janting and delivered judgment in favour of the Respondent (T.R. Gembar) which means that their boundary was defined as follows: - As this court has the opinion in order to prevent their further dispute over the said land court rule that on the left bank of Sg. Spaoh as we proceed upriver for T.R. Gembar and his anak biaks and on the right bank for Tuai Rumah Janting." This decision did not uphold the 1966 Penghulu's decision but drew an entirely new boundary even more favourable to the Appellant herein and overruled that part of the lower court's decision which said the land was to be shared.

          The Respondent remaining dissatisfied appealed to the Resident's Native Court which court, in its judgment delivered on the 4th March, 1967, set aside the decision of the District Court mainly on the grounds that the 1950 decision was an improper one as the requisites of Iban custom were not observed, and the two Rumahs properly represented: apparently taking the view that the real decision being appealed from was the basic 1950 decision upon which several changes had been grafted by subsequent courts without altering its essential character. The Resident's Court had heard evidence and had inspected the land and finally in its judgment went on to delineate new boundaries thus: "The boundary which is considered fair and reasonable and now as the boundary is from Bukit Beram to Tebiang Manding or Pulau Batu Mayau, then down the Menjawa river to Nanga Seruan then follow the Seruan stream up to the source at Bukit Taba then follow the ridge to Bukit (Buloh) Lachau". It gave no compensation to Janting for the rubber trees cut down by T. R. Gembar's anakbiaks which destruction incidentally would appear to have triggered the 1966 case.

          Then T.R. Gembar, in effect, appealed and the matter eventually came on for hearing before us.

          We are or the unanimous opinion that the Resident's Native Court was correct in reversing the 1966 decision and, in turn, the 1950 decision for the following reasons. The 1950 case started as a dispute as to individual rights and not communal rights but in its course its nature was altered so that its decision was on communal rights. Without the parties being properly represented, that is, by their respective Tuai Rumahs who litigate on behalf of their anakbiaks-for it must be remembered that it is the Tuai Rumah who holds in trust, if we may use that expression, the communal rights on behalf of his anakbiaks-then the decision is of no binding effect. The 1966 decision without apparently going into the matter very thoroughly, merely followed the 1950 one, the Court basing its opinion on the memory of its members. It is noted that the composition of the 1966 Court exceeded the numbers laid down in para (c) of subsection (I) of section 4 of the Ordinance but in view of the provisions of subsection (4) of section 7 of the Ordinance we do not pay undue regard to the technicality-had the numbers been less then another view might well be taken.

          Further from 1950 to 1960 the Appellant herein continued to farm the disputed area. The Respondent has answered this by saying that this was permitted with the proviso that by so doing no rights should be gained by the Appellant. We think little of this argument for were this truly shared land then the Respondent and his anakbiaks would be entitled to a share in its produce, but no attempt was ever made to extract this share.

          We note there was no appeal from the 1950 decision but accept that this was due to late information being given to the Appellant's forerunner, his father, and in view of what we have said this decision was in any event a nullity the 1950 Court having no power, for the reasons given, to make the decision it did.

          We therefore answer the first question in the affirmative and find it unnecessary to make separate answer to the second question.

          Having so decided, heard the parties in argument and considered the evidence adduced in the lower Courts we are of the opinion that it is both necessary and desirable consequent upon our decision that we should now go on to make such order as we deem just on this dispute as a whole without further going into evidence. We feel that the boundary as set out by the Resident's Native Court to be the proper one in all the circumstances and we therefore, under the provisions of para (e) of subsection (1) of section 9 of the Native Courts Ordinance, bearing in mind the proviso thereto confirm that boundary which is: The land of T. R. Gembar shall be divided from the land of T.R. Janting by a line drawn from Bukit Baram direct to Pulau Batu Mayau which line shall then run at right angles down the Sungei Menjawa to its junction with Sungei Seruan, it. shall then run at right angles along the left bank of the Sungei Seruan to its source at Bukit Taba, and it shall then run along the top of the ridge from Bukit Taba to Bukit Buloh Lachau where it will stop short of the source of Sungei Spaoh.

          It must be emphasised that the land itself does not belong to either party but merely the customary communal rights on the area delineated.

          We affirm the order for no compensation for rubber trees destroyed.

T.R. Jabeng anak Empaling v. T.R. Chabu anak Kendawang

IN THE COURT OF A JUDGE OF THE SUPREME COURT

T.R. JABENG ANAK EMPALING	…	…	Appellant
versus
T.R. CHABU ANAK KENDAWANG	…	…	Respondent

In the Court of a Judge of the Supreme Court at Kuching before Lascelles, J.

Civil Appeal No. A/2/55.

Date of Order: 31st January, 1955.

Appeal-Within 30 days of decision-Oral or in writing-Appeal fee paid-Grounds not submitted-No power to extend time for appeal-Reasonable diligence-Native Court Ordinance, s.7.

Although his appeal fees was paid within time, Appellant only submitted his petition of appeal against the decision of the Resident's Native Court some eight months after delivery of judgment. The Court seems to have no power to extend time for appeal.

Dismissing his appeal held:-

	(1) Appellant must realise that once notice of appeal has been given he should not sit back and do nothing until the spirit moves him, but must pursue the matter with reasonable diligence.
	(2) The petition submitted has no substance.

          LASCELLES, J.: On the 7th of December, 1954, T.R. Jabeng submitted a petition of appeal against a decision of the Resident's Native Court, Betong. The decision of the Resident's Court was delivered on the 12th of April, 1954.

         Section 7 of the Native Courts Ordinance lays down that an appeal from a decision in a Native Court shall be made within thirty days of the decision complained of and may be made verbally or in writing.

          The Appellant paid his appeal fee on the 13th of April, 1954, but after that has done nothing until the 7th of December. I am of the opinion that the fact that the Appellant paid his appeal fee must be regarded as giving notice of appeal. The Ordinance, however, does not lay down any time within which the grounds of appeal must be submitted, although it may be argued that when the Ordinance states "such appeal shall be made" this must include the submission of the grounds of appeal. As the Ordinance gives no power to extend the time for appeal I am not prepared to construe the words in such a strict sense as it is obvious when one considers the type of people involved in the vast majority of these cases that such construction would work considerable hardship and injustice.

          On the other hand would-be Appellants must be made to realise that once having given notice to appeal they are not then to sit back and do nothing further until the spirit moves them. They must pursue the matter with reasonable diligence.

          The grounds submitted by the Appellant in the case before me now may be set out briefly as follows:-

	(a)	When he paid his fee the Court clerk did not tell him there was any time limit within which he must lodge his petition.
	(b)	A sickness and a death in his family delayed his actions.
	(c)	He is ignorant of the law.
	(d)	He lives about two days' journey away from Betong.
	(e)	He waited until he had enough money to take his petition personally to Kuching.

The Appellant has already had the experience of appealing to the Resident's Court from the District Court and before that he appealed from the Lower Court. He can hardly claim that he does not know the procedure of appeal. I have considered all the circumstances of the case and I am not prepared, in view of the dilatory attitude of the Appellant, to consider further this appeal. I may also add that the petition submitted by the Appellant does not in fact contain any ground of appeal with any substance.

The appeal fee paid by the Appellant shall be refunded to him.

T.R. Jaing v. T.R. Kedit

IN THE NATIVE COURT OF APPEAL OF SARAWAK

T.R. JAING	…	…	…	…	…	…	Appellant
			versus
T.R. KEDIT	…	…	...	…	…	…	Respondent

In the Native Court of Appeal of Sarawak at Kuching before LascelIes, J., Edward Jerah and Abang Haji Mustapha.

Native Court of Appeal No.1 of 1958.

Date of Judgment: 13th October, 1958.

Constitution of Resident's Native Court-Power of Resident-Appointment of Magistrate to preside over Resident's Native Court-Native Courts Ordinance, 1955, s.8(1)(c).

The Resident, Fourth Division, considering that he was empowered under section 8(1)(c) of the Native Courts Ordinance, 1955 appointed a Magistrate of the First Class to preside over the Resident's Native Court. On a case stated the Native Court of Appeal held:-

	(1) The Resident's interpretation of section 8(1)(c) of the Native Courts Ordinance was clearly wrong as he had no power of appointment but must himself preside.
	(2) Although the word "constituted" in section 8(2) could be construed to mean "appointed", such meaning could not be so attributed to the word "constituted" on section 8(1)(c) as is clearly shown by the relationship of the words "sitting with" immediately after the words "Resident of the Division."
	(3) The proceedings before the Magistrate were null and void. The appeal should be heard before a properly constituted Resident's Native Court.

          LASCELLES, J.: This matter has come before this Court by way of case stated by the Resident, Fourth Division.

          The point of law raised is a short one and concerns the constitution of a Resident's Native Court. The relevant section of the Native Courts Ordinance, 1955, namely 8(1)(c) reads as follows:-"from the District Court to a Resident's Native Court which shall be constituted by a person for the time being holding or acting in the office of Resident of a Division sitting with a Native Officer or Chief and two assessors being persons whom the Resident has reason to believe are versed in the customary law relevant to the determination of the appeal;"

          In this case the Resident held that the words "constituted by a person for the time being holding or acting in the office of Resident of a Division" empowered him to appoint another Magistrate of the First Class to sit in and preside over the Resident's Native Court and he duly appointed Datu Abang Morni.

          Mr. Pike, the Attorney-General, who appeared before this present Court by virtue of his power under section 8(6), has submitted that the Resident's interpretation of section 8 (1)(c) was clearly wrong, and that the Resident had no power of appointment but must himself sit. This Court is of the same opinion.

It is true the word "constituted" also appears in section 8(2) where it is quite clearly given the meaning of "appointed", but in our opinion such meaning cannot be attributed to the word "constituted" when it appears in section 8(1)(c). This is quite clear from the context in which appear the words "sitting with" immediately after the words "Resident of a Division." Further confirmation of the interpretation is provided by section 8 (5)(a) which empowers the Native Court of Appeal to require the "Resident" to amend the case stated.

It follows therefore that the proceedings before Datu Abang Morni were a complete nullity and the decision being ultra vires is set aside. The appeal from the District Native Court should now be heard by the Resident's Native Court duly constituted in accordance with the opinion expressed by this Court. The Court does this with regret, having read the record of the proceedings, but considers it the only proper course open to it.