Native Courts System

No.

Title

Description

Attachment

IN THE COURT OF A JUDGE OF THE SUPREME COURT

OF SARAWAK, NORTH BORNEO AND BRUNEI

________

T.R. JAMBA (deceased)
thro’s BUBAN ANAK SALLEH	…	…	…	Appellant
versus	…	…	…
T.R. JENAL … … …	…	…	…	Respondent

In the Court of a Judge of the Supreme Court of Sarawak, North Borneo and Brunei at Kuching before Lascelles, J., Datu Bandar, Abang Morni and Dustin Siraw, Assessors.

Civil Appeal Case No. A/34/52.

Date of Judgment: 9th May, 1953.

Land dispute-Res judicata-No written record of judgment of Headmen-Both Headmen dead.

The right to farm in certain land was alleged to have been settled by two Penghulus many years ago. Appellant sought to challenge the right. The two Penghulus have since been dead and there was no record of their judgment. The District Native Court gave judgment for Respondent which on appeal was upheld by the Resident's Native Court. Dismissing the appeal, the Native Court of Appeal held that the Resident's Native Court had decided the matter correctly.

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

This is an appeal against a decision of the Betong Resident's Native Court dismissing an appeal against the Betong District Native Court. The dispute concerns certain farming land. The location and boundary of the land is not disputed. It is alleged by the Respondent that the question of who was to farm this land was settled by Penghulu Biju and Pengarah Dempi many years ago; in other words the matter is res judicata. The Appellant agrees to this but does not agree with the Respondent's version of the judgment given by the Headmen. The situation is complicated by the fact that both Headmen are dead and as only to be expected there is no written record of their judgments; an added difficulty is of course the long lapse of time since the matter was settled by the Headmen.

The District Native Court went into the available evidence very thoroughly and in due course after careful reasoning it made a finding of fact as to what was the actual ruling of the Headmen at the original hearing. On appeal the Resident's Native Court could find no reason for deciding that the finding of the District Native Court could not be supported by the evidence in that Court. I am of the opinion that the Resident's Native Court's decision was correct and this appeal is dismissed.

Appellant shall pay costs no Respondent as taxed by the District Court, Betong.

T.R. Jenal v. Ilang anak Brangom

IN THE COURT OF A JUDGE OF THE SUPREME COURT

T.R. JENAL	…	…	…	…	…	…	Appellant
versus
ILANG ANAK BRANGOM				…	…	…	Respondent

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

Civil Appeal No. A/20/53.

Date of Judgment: 11th August, 1954.

Land dispute-Division of area-Report of Commission appointed by Court-Fair distribution.

In 1953, the District Native Court appointed a Commission consisting of a Native Officer and a Penghulu to examine certain land and make a report. The Commission in effect accepted the division made in 1944 by another Native Officer and another Penghulu as the fairest. The Court therefore made the boundary official between the parties. His appeal to the Resident's Native Court was dismissed. On appeal the Appellant requested the Native Court of Appeal to appoint another Commission to examine the boundary. His request was refused in the light of his attitude.

Held:

(1) There is nothing wrong in the method of arriving at the boundary.

(2) There should be no appeal in such cases beyond the Resident's Native Court.

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

          This is an appeal from the Resident's Native Court, Betong, which in turn had dismissed an appeal from the District Native Court at Betong.

          The facts are simple in the extreme. As the trial Magistrate in the District Court case put it: his task was not to decide between conflicting claims of right but merely to make a fair division of land originally held in common by the two parties.

          It is clear that in 1944, Abang Haji Abdul Raup, Native Officer, Betong, aided by Pengarah Iseh, inspected the area and laid down what he considered a fair boundary. As is often the case neither party was satisfied but the Respondents adopted a reasonable attitude and said they would agree to the division, although still of the opinion they had received less than their fair share, in order to avoid further trouble.

          It would appear, however, that this was merely an attempt to settle the trouble administratively and was not an actual Court case. The matter first came into a duly constituted Court in the Betong District Native Court in 1953. The Court appointed a commission of Native Officer and Penghulu Ulin to examine the land in the presence of both parties and report to the Court.

          On receiving the report of the Commission, which was to the effect that the division suggested by Abang Draup appeared the fairest, the Court adjudged that this was the fairest boundary and was to be the official boundary between the two factions.

          What in effect the Appellant in the present case is asking this Court to do is to appoint a fresh commission to examine the boundary. He makes it quite clear, however, that if the new commission, or indeed any commission, were to decide on a boundary which did not increase his present share to his liking he would not accept its findings.

          What is a fair share is a pure question of fact and a matter which can only be decided on the spot. There is nothing to suggest that there was anything wrong in the method of arriving at this boundary and this Court will not interfere. It is in such cases as this that this Court is of the opinion there should be no appeal beyond the Resident's Native Court, except in certain circumstances to His Excellency the Governor.

          The appeal is dismissed. The deposits ordered by the District Native Court for a period of one year shall continue for a year with effect from to-day.

          Appellant to pay Respondent a total of $40/- costs in this case.

T.R. Manggai v. Government of Sarawak & Anor

IN THE FEDERAL COURT OF MALAYSIA
HOLDEN AT KUCHING

TR.MANGGAI	…	…	…	…	…	Appellant
versus
GOVERNMENT OF SARAWAK
PETER TINGGOM		…	…	…	…	Respondents

Coram: Ismail Khan, C.J. (Borneo); H.T Ong, C.J. (Malaya) and Gill, F.J.

Federal Court Civil Appeal No. X. 30 of 1969.

Appeal from High Court in Borneo at Kuching Civil Suit No. K.168 of 1968.

Date of Judgment: 9th March, 1970.

          Practice and Procedure-Declaration-Application for declaration that the Resident's Native Court was functus officio and that a judgment delivered by it was null and void-Possibility of appeal to Native Court of Appeal-Adequate alternative remedy-Declaration refused.

          The applicant had applied for a declaration, inter alia, that the Resident's Native Court was functus officio and without jurisdiction to hear the case by way of appeal or otherwise, and that the purported judgment delivered by that court was null and void. The applicant did not pursue his right of appeal to the Native Court of Appeal. The High Court refused the application for a declaration and the applicant appealed to the Federal Court.

          Held, dismissing the appeal: as the applicant had not pursued the alternative remedy available to him of an appeal to the Native Court of Appeal, the High Court was right in refusing to make the declaration.

          Cases referred to:-

		(1) Anisminic Ltd. v. The Foreign Compensation Commission (1969) 1 All E.R. 208.
		(2) Dyson v. Attorney-General (1911) 1 K.B. 410.
		(3) Barraclough v. Brown (1897) A.C. 615, 620.
		(4) Pasmore v. The Oswaldtwistle Urban District Council (1898) A.C. 387, 394.
		(5) Wilkinson v. Barking Corporation (1948') 1 K.B. 721, 724.

T.O. Thomas for the Appellant.

          Mohamed Jemuri bin Serjan (Assistant Attorney-General) for the Respondents.

          ISMAIL KHAN, C.J. (BORNEO): I have read the judgment of my brother GILL with which I am in entire agreement. I would dismiss the appeal with costs.

          ONG, C.J. (MALAYA): I agree with the judgment of my brother GILL and for the reasons stated by him I would dismiss the appeal with costs.

          GILL, F.J.: The Appellant in this case, being Plaintiff in the action in the High Court at Kuching from which this appeal has arisen, had a dispute with ex-Penghulu Tawi anak Selaku, the first Defendant to the action in the court below, over some land situate in the district of Simanggang in the Second Division of Sarawak. This dispute was decided in his favour by a judgment of the District Native Court, Simanggang in Civil Case No. 9 of 1967 delivered on 6th November, 1967.

          An appeal lies from the District Native Court to a Resident's Native Court, under section 8(1)(c) of the Native Courts Ordinance (Cap. 43 of the Laws of Sarawak, 1958). Section 7(3) of the Ordinance provides that:-


	"Such appeal shall be made within thirty days of the date of such decision, or within such further time and upon such terms as the court to which appeal lies may in any particular case allow, and may be made either verbally or in writing and either personally or by proxy.

Section 7(2) of the Ordinance provides that the appeal shall be lodged with the District Officer within whose district the Native Court, the decision of which is challenged, exercises jurisdiction, or with such other person or body as may be prescribed by rules made under section 19, and shall state the grounds of appeal. Proviso (a) to that section states that :-


	"where no grounds are stated, the Resident, District Officer or such other person or body with whom the appeal is lawfully lodged shall endeavour within the period allowed for appeal to ascertain and record the grounds upon which the appeal is made;".

The first Defendant indicated to the District Officer, Simanggang, his intention to appeal against the decision of the District Native Court, but despite the District Officer's reminder that he should be quick about getting his appeal lodged, he took no concrete steps to have the appeal brought within the prescribed time.

          After the expiry of the time fixed for lodging the appeal, the first Defendant applied through his advocates, Messrs. Ibrahim & Co., to the Resident, Second Division, for his appeal to be accepted. This application was made by Messrs. Ibrahim & Co. presumably by their letter dated 22nd January, 1968, because on 29th January, 1968 the Resident, Second Division, Mr. William Nais, wrote to them in reply to their letter to say that he was unable to entertain their client's plea for the acceptance of his appeal on the grounds, first, that the appeal was out of time and, secondly, that no request for extension of time had been made during the period of thirty days within which the appeal was required to be lodged. On 7th May, 1968, Messrs. Ibrahim & Co. wrote another letter to the Resident apparently to ask for extension of time to appeal. The Resident by his letter of 13th May, 1968, repeated that he could not approve ex-Penghulu Tawi's request for extension of time.

          On 14th May, 1968 the Resident wrote to the Plaintiff to say that he had given written instructions to the presiding magistrate Don Bosco Biscop to arrange with the assessors in the case to proceed to the disputed land with the survey team to have the disputed land surveyed in his presence and in the presence of Tawi anak Selaku. The Plaintiff paid $200 towards the costs of surveying the disputed land and marking boundaries, and the survey as instructed by the Resident was carried out by officers of the Lands and Survey Department at Simanggang.

          It would appear that at this stage some sort of approach was made regarding the case to the State Secretary, Sarawak, who on 29th June, 1968 wrote to the Resident, Second Division as follows :-


	"It appears that the Appellant is seeking for an order from the Resident's Native Court for an extension of time to appeal. Under section 7(3) of the Native Court Ordinance, the appeal from the District Native Court to the Resident's Native Court may be made verbally. However, you have indicated that the appeal was not acceptable without the grounds being submitted within the prescribed period of 30 days. You will note under section 7(2)(a), the Resident or the District Officer is empowered to assist the Penghulu to ascertain and record the grounds of appeal, but it was not done in this case. According to the affidavit submitted by Ibrahim & Co. (advocates), the Appellant came to seek legal advice and assistance of the advocates for the preparation of the grounds of appeal on 15th January, 1968 and according to the affidavit the grounds were filed on the following day.

You will appreciate that it is difficult for the Appellant to decide on his own what he ought to do There was the question of money and which advocate to see. This took time. It was always difficult to expect the rural people to understand the intricacies of the law. The State Attorney-General is therefore of the view that the whole case should be liberally and reasonably considered and that the present application for an order for an extension of time to appeal should be considered by the Resident's Native Court. He is also of the opinion that since you have expressed and communicated your view on the matter to the advocates in your administrative capacity and in the interest of justice, another Resident should be appointed to sit in the Resident's Native Court to hear this appeal. In view of this I would therefore suggest that the Resident, 3rd Division should be requested among others to constitute a Resident's Native Court to consider this particular case."

On 2nd October, 1968 the Plaintiff received a notice from the Resident's Native Court, Simanggang to the effect that the case between him and the first Defendant had been set down for hearing in that court on 15th October, 1968. Thereupon, the Plaintiff called on Mr. William Nais, the Resident, Second Division, and inquired of him as to the nature of the case set down for hearing on 15th October, 1968. The Resident informed him that it was the case in which he had refused the appeal out of time. The Plaintiff was further informed that any representation in the matter should be addressed to the Resident, Third Division, as the State Secretary had directed the Resident, Third Division to hear the case at Simanggang on 15th October, 1968.

On 9th October, 1968 the Plaintiff sent a telegram to the Resident, Third Division, asking for a postponement of the case for a month as he was unable at short notice to get witnesses and seek legal advice. This was followed by a letter from Messrs. Thomas & Co. asking for information about the nature of the case to be heard and applying for an adjournment to a convenient date to facilitate their preparation of the case. On 28th October, 1968 the Resident, Third Division, Mr. Peter Tinggom, wrote to Messrs. Thomas & Co. to say that their letter had reached his office while he was busy with the re-hearing of the case at Simanggang, that the re-hearing was completed, the appeal allowed and the decision of the District Native Court in Case No.9 of 1967 quashed.

On 25th November, 1968 the Plaintiff commenced this action in the High Court at Kuching against the first Defendant and the Respondents to this appeal as the second and third Defendants respectively for a declaration that:-

		(1) the Resident's Native Court was functus officio and without jurisdiction to hear, by way of appeal or otherwise, Native District Court, Simanggang, Civil Case No. 9/67;
		(2) the 3rd Defendant had not the right/power/privilege to constitute and/or to preside over the Resident's Native Court for the purpose of hearing, by way of appeal or otherwise, Native District Court, Simanggang, Case No.9/67;
		(3) the Resident's Native Court which purported to allow the appeal and quash the judgment of District Native Court, Simanggang, Civil Case No.9/67 was illegally constituted;
		(4) the purported judgment delivered by the 3rd Defendant on the 18th day of October, 1968, claiming to be the judgment of the Resident's Native Court, Simanggang was null and void and of no legal force and effect.

The Plaintiff also claimed damages upon the allegation that the Defendants wrongfully and maliciously conspired and secretly combined amongst themselves to deprive the Plaintiff of the fruits/benefits of the said judgment of the Native District Court, Simanggang Civil Case No. 9 of 1967.

           On 16th December, 1968, the second and third Defendants took out a notice of motion for an order that the Plaintiff's writ of summons and the statement of claim to be struck out. At the hearing of this notice of motion on 10th January, 1969, the Plaintiff's counsel took some objections to the form of the notice and asked that it be dismissed with costs. The learned Judge, however, declined to dismiss the motion out of hand and adjourned the matter to enable the second and third Defendants to file an amended notice of motion. An amended notice of motion was taken out on 27th January, 1969, and the hearing took place on 30th January and 1st February, 1969. On judgment being delivered on 24th February, 1969 an order was made to strike out such paragraphs in the Plaintiff's statement of claim as related to the declarations sought as against the second and third Defendants, with liberty to the Plaintiff to apply for leave to amend the writ of summons and the statement of claim in respect of the conspiracy issue raised therein.

           It is against that order of 24th February, 1969 that the Plaintiff has brought this appeal.

          Although the appeal has been brought on several grounds, it really resolves itself into the question whether, upon the Resident, Second Division, notifying the first Defendant that his appeal was out of time and that there could be no extension of time for him to appeal as no request for such extension was made during the period of thirty days within which the appeal was required to be lodged, the Resident's Native Court in the Second Division at Simanggang was functus officio, so that the order made on 15th October, 1968 by that court as constituted by the Resident, Third Division, was a nullity.

          It was argued by Mr .Thomas on behalf of the Appellant that the decision of the Resident's Native Court dated 15th October, 1968 was a nullity, and that on the authority of the decision of the House of Lords in Anisminic Ltd. v. The Foreign Compensation Commission⁽¹⁾ the declarations sought were the appropriate form of relief. That was a case in which it was held that the words "successor in title" had no relevance whilst the person listed in Annex E as the original owner of the property in question survived, and that when the Respondent commission rejected the Appellant's claim they took into consideration a factor which they had no right to take into account and, accordingly, their decision was a nullity.

          On the basis of that argument it was contended that the status of the third Defendant as Resident in the impugned proceedings was worse than that of the person in the following illustration of Lord Reid in the Anisminic case (at pages 212-13):-


	"A statute provides that a certain order may be made by a person who holds a specified qualification or appointment, and it contains a provision, similar to section 4(4), that such order made by such a person shall not be called in question in any court of law. A person aggrieved by an order alleges that it is a forgery or that the person who made the order did not hold that qualification or appointment. Does such a provision require the court to treat that order as a valid order?"

In other words, on the analogy of the above illustration the contention is that the third Defendant as Resident, Third Division, was not qualified to sit in the Resident's Native Court of the Second Division at Simanggang.

          Before I deal with that point the important question which first arises for determination is whether the Resident's Native Court of the Second Division at Simanggang ever became functus officio in relation to the intended appeal by the first Defendant against the judgment of the District Native Court, Simanggang dated 6th November, 1967 in Civil Case No. 9 of 1967.

          It is to be observed that a Resident's Native Court is constituted under the provisions of paragraph (c) of sub-section (1) of section 8 of the Native Court Ordinance. It consists of "a person for the time being holding or acting in the office of Resident or 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." Under subsection (3) of section 7 it is this court to which the appeal lies, and it is this court which may extend the time to appeal. It follows therefore that a Resident by himself has no power to adjudicate upon any matter relating to an intended appeal to the Resident's Native Court. He is not even the officer who receives the appeal. Mr. Nais, Resident, Second Division, would therefore appear to have misunderstood the provisions of the Ordinance when he took it upon himself to reject the first Defendant's appeal and to decide by himself that the first Defendant's application for extension of time to appeal could not be entertained. The advocates concerned may well have contributed to this misconception by making an application direct to him for extension of time to appeal. It is clear, therefore, that the decision of Mr. Nais to reject the first Defendant's application did not render the Resident's Native Court as such functus officio in relation to the intended appeal.

          It was probably because Mr. Nais chose to decide by himself a question relating to the intended appeal, when he had no power to do so, that the State Secretary, on the advice of the Attorney-General, wrote to him to suggest that another Resident be appointed to sit in the Resident's Native Court to hear the appeal. The State Secretary pointed out to him that, since he had expressed and communicated his views on the matter to the advocates in his administrative capacity, that was the best course in the interests of justice. But as the Plaintiff is at liberty to pursue his claim for damages on the basis of any alleged conspiracy amongst various parties, I would refrain from expressing any opinion as to whether this was an act of interference in the course of justice on the part of the State Secretary.

          It was contended by Mr. Thomas that the third Defendant as Resident of the Third Division had no jurisdiction to sit in the Resident's Native Court in the Second Division at Simanggang. I must say at once that I can find no justification for upholding this contention. As I have already stated, section 8(1)(c) of the Ordinance expressly provides for a person holding or acting in the office of Resident of a Division to constitute a Resident's Native Court, unlike the provision in section 10(1) of the Sabah Native Courts Ordinance (Cap. 86) which says that an appeal from a native court shall lie to the District Officer of the district in which such native court is situate. At all relevant times the third Defendant was a Resident of the Third Division. As a Resident of a Division he had jurisdiction to constitute a Resident's Native Court in any Division of Sarawak. The court constituted by him in the Second Division to hear and determine the first Defendant's application for extension of time to appeal and the appeal itself was therefore properly constituted, so that the decision of that court dated 15th October, 1968 setting aside the decision of the district native court in case No. 9 of 1967 was not a nullity. I say this in view of what I have already said that the Resident's Native Court in the Second Division at Simanggang at no time became functus officio in relation to this appeal prior to the hearing of the appeal in that court on 15th October, 1968.

          Under section 8(1)(d) of the Native Courts Ordinance an appeal, by way of case stated on a point of law or native custom, lies from the decision of a Resident's Native Court to the Native Court of Appeal as constituted by subsection (2) of that section which reads as follows:-


	"(2) There shall be a Native Court of Appeal which shall in each case be presided over by a Judge and shall consist of one or more Judges and of persons qualified to preside in a Native Court or persons who the Governor is satisfied have knowledge of the customary law or of one of the customary laws relevant to the determination of the appeal:

Provided that-

		(a)	the Native Court of Appeal shall be constituted in each case by the Governor after consultation with the Chief Justice and may consist, in the discretion of the Governor exercised after such consultation, of three, five or seven members including the presiding Judge;
		(b)	the majority of the members of each such court shall be natives of Sarawak; and
		(c)	the decision of the majority of the Native Court of Appeal as so constituted shall be the decision of the court."

Section 9(1) of the Ordinance provides as follows:


		"(1) The appellate court may- (a) itself re-hear the case; (b) hear further evidence, or order the lower court to hear further evidence; (c) order are-trial; (d) set aside or vary the decision of the lower court; or (e) make such other order as it may deem just;

Provided that the powers in this section shall be exercised by the Native Court of Appeal only insofar as may be necessary or desirable consequent upon the court's decision on a point of law or native custom."

It is to be observed that the Native Court of Appeal has very wide powers in relation to any appeal brought before it.

It was contended on behalf of the Plaintiff that he was not obliged to go to the Native Court of Appeal, and that he could go straight to the High Court to have the order of the Resident's Native Court set aside and to ask for the necessary declarations. For this proposition he relied on the decision in Dyson v. Attorney-General⁽²⁾ in which it was held that the rules of procedure which enable the court or a Judge to strike out any pleading on the ground that it discloses no cause of action are never intended to apply to any pleading which raises a question of general importance or a serious question of law. It was said in this connection that the Plaintiff's reason for not going to the Native Court of Appeal was that because of the proviso (c) to subsection (2) of section 8 of the Ordinance, the opinion of a Judge as Presiding Officer in the Native Court of Appeal can be overriden by other members of the court. In my judgment there is no substance in any of these arguments. As pointed out by counsel for the Respondents, the real issue here is whether the Plaintiff should not first exhaust his remedy by way of appeal to the Native Court of Appeal.

It is well settled law that the court will not make a declaratory judgment where an adequate alternative remedy is available (see Halsbury's Laws of England, 3rd edition, volume 22, page 749, paragraph 1611). To quote but a few authorities in support of that proposition, Lord Herschell said in Barraclough v. Brown^(3).


	"It was argued for the Appellant that, even if not entitled to recover the expenses by action in the High Court, he was, at all events; entitled to come to that court for a declaration that on the true interpretation of the statute he had a right to recover them. It might be enough to say that no such case was made by the Appellant's claim. But, apart from this, I think it would be very mischievous to hold that when a party is compelled by statute to resort to an inferior court he can come first to the High Court to have his right to recover-the very matter relegated to the inferior court-determined. Such a proposition was not supported by authority, and is, I think, unsound in principle. "

In Pasmore v. The Oswaldtwistle Urban District Council⁽⁴⁾ Earl of Halsbury, L.C. said:-


	" ... The principle that where a specific remedy is given by a statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the statute, is one which is very familiar and which runs through the law."

In the more recent case of Wilkinson v. Barking Corporation ⁽⁵⁾ Asquith, L.J. said:-


	" ... It is undoubtedly good law that where a statute creates a right and, in plain language, gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce the right must resort to that remedy or that tribunal, and not to others:"

In the present case, as I have already stated, an appeal lay from the Resident's Native Court to the Native Court of Appeal. That Native Court of Appeal is presided over by a Judge of the High Court and must therefore be considered a court which is competent to decide any question of law. The fact that the decision of the presiding Judge on a question of law could be overriden by other members of the court is beside the point. The question of crossing that bridge would arise only when the bridge is reached. Insofar as his complaint against the quashing by the Resident's Native Court of the order made in his favour by the District Court was concerned, the Plaintiff should have appealed to the Native Court of Appeal instead of going to the High Court. As regards his right to prosecute such appeal, the Plaintiff, ironically, will now find himself in tile same position as the first Defendant when he failed to appeal to the Resident's Native Court within the prescribed time. The High Court in striking out the portions in his writ of summons and the statement of claim in relation to the declarations sought expressly left it open to the Plaintiff to pursue his Claim for damages on grounds of conspiracy,

For the reasons I have stated, the Plaintiff's action, insofar as it related to his claim for the declarations sought, was clearly misconceived, and the learned Judge in the court below was quite right in making the order for that part of his claim to be struck out. I would therefore dismiss this appeal with costs.

Appeal dismissed.

T.R. Nasat anak Chapi v. T.R. Mandai anak Genging

IN THE NATIVE COURT OF APPEAL

T.R. NASAT ANAK CHAPI	…	…	…	…	Appellant
versus
T.R. MANDAI ANAK GENGING		…	…	…	Respondent

In the Native Court of Appeal at Sibu before Harley, J., Penghulu Umpau and Ignatius Angkin, Assessors.

Sibu Native Court of Appeal Case No. NA 2/61.

Date of Ruling:     29th May, 1962.

          Moving from one area to another-Within the same Penghulu's jurisdiction-Whether loss of customary rights-Temuda-Different considerations apply if land is planted.

          Respondent moved from Sungei Mela to Pala Wong some 30 years ago. Sungei Mela and Pala Wong are within the same Penghulu's jurisdiction. During his absence, the Appellant planted some rubber trees on part of Respondent's land without objection from Respondent. Appellant tried to claim the unplanted part of Respondent's land as well. Both the lower courts ruled that although Appellant could keep the part of land he planted with rubber he could not, however, succeed with other part as Respondent has not lost his customary rights to that part which is still temuda. The Native Court of Appeal upheld the decisions of the lower courts.

          Assessors No. 1 and No.2 express the following joint view.

          "We do not consider that witnesses will assist. Respondent Mandai did move, but NOT outside the same Penghulu area. The point of law is fairly stated by the Resident, and the case must turn on that point: "The point of Native Custom at issue is whether by moving away from SUNGEI MELA to PALA WONG, Mandai (Respondent) lost any claim to customary rights he may have had at SUNGEI MELA." On the facts as found, Respondent would not lose his rights by moving from the one place to the other. Different considerations apply if the land is planted. As regards the temuda awarded to Respondent, Appellant cannot base any claim on customary rights. Mandai has not lost his rights to the temuda, and the decision of the District Native Court, Kapit and of the Resident's Court should stand. Appellant will pay $35.00 to Respondent in respect of costs.

          HARLEY, J.: Our present ruling on the point of Native Customary Law, and its application, are confined to the instance of a man moving from one land to another in the same PENGHULU area. The result in law, in such a case, is much the same in principle as in English law. If the original owner does not use his land, he does not necessarily discontinue possession of it. But time begins to run against such a man if some stranger takes possession of the land adversely by, for instance, running it as a rubber estate for his own benefit. If, in such circumstances, the original owner does not protest, or take action to recover the land within a reasonable period, he will lose his rights by the law of limitation. (Cap. 49 in Sarawak Law). In the instant suit, Respondent moved out of his land 30 years ago. The Courts below have rightly held that the Appellant is entitled to hold on to that part of Respondent's land which he (Appellant) planted with rubber, without objection from Respondent. Appellant has, however, no foundation in law or custom for his claim that the unplanted temuda should also pass from Respondent to Appellant. In consequence this Court follows the Judgment of both the District Native Court and of the Resident's Native Court, by ruling that:


	(1) Appellant may keep that part of the land which he has developed as a rubber estate;

	(2) Respondent has not lost his original rights to that part of his land which is still temuda (secondary jungle).

Tandang anak Nyalingkong v. Sendi anak Nyanggau and Anor (1953) S.C.R. 25

THE SUPREME COURT OF
SARAWAK, NORTH BORNEO AND BRUNEI

TANDANG ANAK NYALINGKONG ...				...	Plaintiff
versus
SENDI ANAK NYANGGAU		...	...	...	1st Defendant
and
PENGHULU TEGONG	...	...	...	...	2nd Defendant

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

No. 2/53.

Date of Judgment: 11th March, 1953.

Native Customary Law-Sea Dayak punas inheritance-Sea Dayak adoption.

Plaintiff claimed to be the adopted son, by Sea-Dayak custom, of one Letan (deceased) and first Defendant, his widow. When Letan died he was survived by first Defendant and by two other adopted children whose adoption first Defendant subsequently cancelled. His estate included three untitled rubber gardens. Two of these were retained by first Defendant but she disposed of the third to second Defendant. Plaintiff claimed a share in all three gardens, first, on the ground that Letan was his uncle and had died punas; secondly, on the ground of his adoption by Letan.

Held:

        (1) That at the time of his death Letan was not punas as he had then two adopted children. The fact that their adoptions were subsequently cancelled by first Defendant could not operate in retrospect so as to create punas rights of inheritance in respect of Letan's estate:

       (2) Even if Letan had died punas Plaintiff would have been excluded by the prior rights of Letan's surviving brothers and sisters:

       (3) Plaintiffs adoption was not a proper one by Sea-Dayak custom since there was no proper begawai.

NOTE:

Punas = without issue.

Begawai = ceremony

The parties in person.

          BLAGDEN, Ag. J.: This is a Sea-Dayak inheritance dispute.
Plaintiff claims a share in 3 untitled rubber gardens-2 of which are in first Defendant's possession and the 3rd in second Defendant's, having been transferred to second Defendant by first Defendant some years ago.

          The relationships between the parties which have been admitted or not challenged are as follows:-

Plaintiff bases his claim to a share in the gardens on two
grounds: -

(1) That they were planted by Letan anak Jelani who is his uncle and that Letan anak Jelani died punas.

(2) That he (Plaintiff) was adopted by first Defendant.

There is considerable dispute as to whether 2 of the gardens were planted by first Defendant alone or by Letan anak Jelani and first Defendant. It is significant that the Rubber Holding Identity Cards (Exhibits "A" & "B") were made out in first Defendant's name and date from. 12th February, 1938. My finding on the conflicting evidence is that these 2 gardens were planted by first Defendant and not by Letan anak Jelani; but that the 3rd garden now in second Defendant's possession was planted by first Defendant and Letan anak Jelani.

         Letan anak Jelani died more than 10 years ago and was then not punas as he had 2 adopted children Rajang anak Dia and Bunsialthough first Defendant subsequently renounced their adoptions. Plaintiff therefore had no claim on these gardens when Letan anak Jelani died. Even if Letan anak Jelani had died punas Plaintiff would still have had no claim being excluded by Payong, Ensingan and the other surviving brothers and sisters of Letan anak Jelani.

          Further I cannot see that the cancellation of Sajang anak Dia and Bunsi's adoptions operated to create punas rights of inheritance in respect of Letan anak Jelani's estate so as to give Payong (f), Ensingan and the other surviving brothers and sisters of Letan anak Jelani any rights of inheritance to Letan anak Jelani's property. A fortiori, Plaintiff acquired no such rights.

          Plaintiff's claim therefore fails under ground (1).

          As to ground (2) despite the admission by all parties that there was an adoption of Plaintiff by first Defendant, I think I am bound to hold that that adoption was not a valid one. Promises were made and there was a presentation of token gifts-1 plate each-to Penghulu Tegong, before whom the promises were made, but there was no proper begawai. Moreover neither Plaintiff nor first Defendant performed their promises.

          I find therefore that Plaintiff was not in fact adopted by first Defendant, but even if he had been I do not see that that would have given him any right to Letan anak Jelani's property acquired long before the purported adoption; and as to first Defendant's own property he could not acquire that, unless she chose to give it to him, until her death. But as I have found that Plaintiff was not adopted by first Defendant I cannot see how he will ever acquire any rights to her property.

          Plaintiff's claim therefore fails under ground (2).

          Plaintiff's claim is dismissed and there must be judgment against Plaintiff for first Defendant with $25.00 costs and for second Defendant with $5.00 costs.

THE ADMINISTRATION OF NATIVE LAW IN SARAWAK: AN OUTLINE HISTORY

THE ADMINISTRATION OF NATIVE LAW IN SARAWAK

AN OUTLINE HISTORY

THE HISTORY of native law administration is an important part of the general history of Sarawak. The story of the transfer of Sarawak from Brunei to the Brooke family has been told elsewhere¹ but one point is worth emphasizing in respect of the treaties and engagements² which established the authority of the "White Rajahs". It is that, while most of the documents involve the transfer of territory, all of them specifically assert a transfer of sovereignty. Three engagements in particular deal wholly with this aspect; the first is the Transfer by Pangeran Muda Hassim of the government of Sarawak dated 1841. It recites the "Transfer of the Government" and goes on to provide that "he [Brooke].... shall be the sole owner of its revenues.... ". In the "Appointment by the Sultan of Brunei of James Brooke to Govern as His Representative" (1842) Brooke covenanted to "observe the... regulations of His Highness" and was also given "sole responsibility" for the affairs of Sarawak. Finally, in 1846, Sultan Omar Ali of Brunei granted the province of Sarawak to Brooke "to be ruled in accordance with the wishes of the Tuan Besar". While the language in these agreements varies, the emphasis in all cases is directed to the transfer of personal sovereignty, This was an idea difficult for the Europeans of the time to accept; the nearest parallel, for the English at any rate, was the acceptance of diwan by the East India Company in 1765³. Brooke himself, however, was under no misapprehensions as to what was intended. He took to himself the grant of personal sovereignty and it formed the basis of his rule and that of his successors.

          "James Brooke, Esquire, governor (rajah) of the country of Sarawak, makes known to all men in the following regulations:-
          1. That murder, robbery, and other heinous crimes, will be punished according to the ondong-ondong (i.e., the written law of Borneo; and no person committing such offences will escape if, after fair inquiry, he be proved guilty.
          2. In order to ensure the good of the country, all men, whether Malays, Chinese, or Dayaks, are permitted to trade or labour according to their pleasure and to enjoy their gains.


           3. All roads will be open, that the inhabitants at large may seek profit both by sea and land; and all boats coming from other parts are free to enter the river and depart, without let or hindrance.

           4. Trade, in all its branches, will be free with the exception of antimony-ore, which the Governor holds in his own hands, but which no person is forced to work, and which will be paid for at a proper price when obtained. The people are encouraged to trade and labour, and to enjoy the profits which are to be made by fair and honest dealing.

           5. It is ordered, that no person going amongst the Dayaks shall disturb them, or gain their goods under false pretences. It must be clearly explained to the different Dayak tribes, that the revenue will be collected by the three Datus bearing the seal of the Governor, and (except this yearly demand from the government) they are to give nothing to any other person; nor are they obliged to sell their goods except they please, and at their own prices.


           6. The Governor will shortly inquire into the revenue, and fix it at a proper rate; so that everyone may know certainly how much he has to contribute yearly to support the government.


           7. It will be necessary, likewise, to settle the weights, measures, and money current in the country, and to introduce doits, that the poor may purchase food cheaply.


           8. The Governor issues these commands, and will enforce obedience to them; and whilst he gives all protection and assistance to the persons who act rightly, he will not fail to punish those who seek to disturb the public peace, or commit crimes; and he warns all such persons to seek their safety, and find some other country where they may be permitted to break the laws of God and man."

In the following years of his reign, Brooke was largely concerned with making good the threat contained in s.8 of his laws. The use of force was constantly necessary to maintain his position but at the same time he did not neglect the gentler art of judicial administration. The following extract, taken verbatim from his Journal⁵ and again emphasizing the personal nature of sovereignty, illustrates the sort of court proceeding feasible at the time:

"I have before mentioned the difficulty of administering justice; and experience teaches me that the risk to myself, on this score, is more to be apprehended than on any other. The forms I have not much alluded to; and the following is as nearly as possible the Malay custom:- The Rajah's brothers and myself sit at one end of the long room in my house; at the sides are the Patingis and Tumangong, and other respectable people; in the centre the parties concerned; and, behind them, anybody who wishes to be present. We hear both parties; question if necessary; and decide-and from this decision there is no appeal. One only condition I insist upon; and that is, that in any intricate case, or whenever I dread confederacy, I do not allow the witnesses to hear each other. The laws of evidence in a free country, prohibit any leading questions being put to witnesses; here, for the purposes of justice, it is indispensable; for the people, being ruled by fear, and apprehensive of consequences often falter before the face of the accused, and their testimony has to be wrung from them. To decide also according to the technicalities of construction would be here ridiculous, and defeat the ends of justice. The people are rude and uncivilised; their oppressors crafty and bold, who have no hesitation about lying, and bringing others to lie for them. Oaths are a farce to them. The aggrieved are timid, vacillating, and simple, and cannot readily procure even necessary evidence; for their witnesses are afraid to speak. Under these circumstances, I look at the leading features of the case, the probability, the characters, the position of the parties, and determine according to my judgment. It is not, indeed, a very difficult task; for the disputes are generally glaring, and, when bolstered up, usually fail in their most important links; and at a touch of cross-questioning, the witnesses, resolved to tell the same story, fall into opposite ones. In one case, about a slave, three witnesses had resolved on the sex; but, questioned separately as to size and age, all disagreed. They were not prepared. One represented her a woman grown and marriagable; another, as high as my walking-stick; the third, a little child .... ".

The events in the years following this description were not such as to make possible the establishment of a settled legal system. For the legal historian the necessary data are almost entirely lacking and Brooke's Journals and Letters provide only fragmentary comments, merely reiterating the passages just cited. It is not until twenty years later, in the comparative stability of the 1860’s, that the history of a legal system in Sarawak can properly be said to begin.

The informality and personal nature of the Rajah's rule were reflected in the laws (called "Orders") promulgated in H.H. The Rajah's Order Books, the source of the present laws of Sarawak, which began in 1863. Although no clear legal policy was ever formulated, it is apparent from the Orders that the Rajahs were concerned to establish a distinct system of law for each racial and religious group. The personal nature and informality of government is again reflected in the Orders, especially in respect of the Native communities.

In the early and more informal period (1863-c.1920), if one may so designate the legal history, inter-racial relations were clearly of the first importance. The Court's Order (1870), which remained in force until 1922, provided in s. III that in cases of murder where a Native was involved "one half, or at least one third, of the jury will be formed of natives." The same section also went on to provide for a separation of Supreme Court jurisdiction by distinguishing a "Native Probate and Divorce section within the Supreme Court's jurisdiction." While the Order was drafted informally, s.IV "trust[ed] .... the Officers in Charge to have the spirit of the Regulations carried out and to adhere to the letter as near as circumstances will permit". Under s. VIII dealing with debts, English law is directed to be applied in cases where a Native and a European were involved; this is the earliest example of a recourse to English law in matters affecting Natives.

The next Order of note is the Marriage Order of 1st May, 1871. It provided rules for the marriage of persons of different religion or of no religion. Validity was dependent upon registration by the Resident; the issue of such marriages were declared legitimate (s.6). The custody of children was a matter of continuing concern and an early Order of 1st March, 1878, provided for compulsory registration of adoption. This requirement was not, however, enforced in the case of children adopted by Natives in accordance with custom.⁶ The offspring of liaisons between Chinese men and Native women were directed to remain in the custody of the maternal parent: claims by a Chinese father for custody would, only be entertained if a relationship of marriage, had been entered into in terms of the Order of 1^st May, 1871, providing for registered marriage.⁷ The custody Order was amended in 1915⁸ providing that when a child reached the age of discretion he or she might apply to the Resident of a Division for permission to adopt the nationality and faith of their Chinese father.

The marriage regulations in respect of Natives in this period were a constant source of difficulty. The Order of 26th September, 1892, attempted to regulate the marriage of Native Christian converts by providing for registration before the religious ceremony. Marriages under this Order could only be dissolved, on grounds of adultery or ill treatment, by the Supreme Court.⁹ Re-marriage was dependent upon such a decree. The Order was cancelled by an Order dated 10th November, 1892 but renewed, with some alteration, by the Order of 4th February, 1898 which added a second paragraph on Muslim marriage. In addition to these Orders, the later Order XI of 1906 provided for intermarriage between Kayans and Davaks. The Order attempted to regulate, by way of registration the marriage of a Dayak male to a Kayan female.

In addition to the difficulty caused by the case of the Native Christian, the case of pagan converts to Islam also necessitated regulation. This was provided for in Order XXIV of 1915 which applied to all pagan peoples in Sarawak. Where such had become Muslims, the Order required them to protect the interests of native heirs by executing an assignment of property or drawing a deed of trust to be administered by the court. This Order was in addition to the general rule stated in the Order of 11th June, 1891 s.6, that succession be determined by custom except where the deceased was a Muslim when Muslim law¹⁰ applied.

In addition to the private law matters just outlined, the early Orders dealt with three matters of public interest involving Natives. First, the question of slavery was regulated by a series of Orders, the first of which was executed on 24th June, 1868, and followed by Orders of 14 November, 1882, and 24 August, 1883. The early Order set the tone for the treatment of slavery by stating in its introduction that "the following regulations are not to be considered at present [i.e., 1868] strictly as law, but may simply afford assistance . . . . . " "Such reforms as are requisite ... had better be quietly and gradually brought about." The Order then went on to define the status of slave and to provide regulations for their treatment; the matters covered included sale, valuation, transmission and ill-treatment, debts, the status of children, marriage and foreign slave debtors. The later Orders of 1882 and 1883 merely elaborated the contents of the first Order. The institution was eventually brought to an end by Order No. S-2 of 1928 as amended by Order No. S-3 of 1930, later cap. 79 of the revised laws of Sarawak, 1948. The latter was repealed in 1958 by s.6 of Ordinance No. 12 of that year, thus bringing to an end the slavery laws in Sarawak.

The second public law matter was revenue. In the Order of 1876 revenue was assessed on Dayaks of named areas to be paid in stated quantities of rice. Later revenue Orders¹¹ made provision for payment in rice, sago and cash, and extended the tax system to cover most of Sarawak. Occasionally, certain groups were relieved of tax, ¹² including those who worked for the government. Tax was eventually commuted to a standard customary payment by Order No. N-4 of 1939. The matter is now regulated by the Native Taxes Ordinance and the Native Tax Rules made under s.3 of the principal ordinance.¹³

Finally, the native Main (sung rituals of various sorts) required special permission and a series of Orders laid down rules for when and how long a Main could be held. Special permission was necessary if His Highness was to be in residence.

It can be seen from this outline that the laws affecting the Native communities of Sarawak were few in number, limited in scope and probably only partially effective. The real administration of Native law was carried on in the Residents’ Offices throughout the state and the law applied was the local customary law (adat). In other words, Native law implementation was an administrative rather than a strictly judicial matter.^13a Under the Courts Orders from 1870¹⁴ onwards, the term "Native Court" referred to a Muslim court rather than to the "Natives" in the sense used in other enactments. This remained true for the Courts Order of 1922 as subsequently amended and also for the Courts Order of 1993.¹⁵ Under the latter, Native laws were dealt with in the Magistrates’ and Residents’ Courts¹⁶ with a right of appeal to the Supreme Court.¹⁷ Thus it is that, while the odd Native case appears in the Supreme Court Reports, the substantive body of Native Case law is to be found in the Residents’ Court Books from each division.¹⁸ Even here, the reports are generally brief; the job of the Resident was (and still is) to administer native disputes attempting in all cases to reach an amicable settlement. It is the emphasis upon a personal administration which really provides the key to understanding Native law of Sarawak.

The increasing complexity of life, including Native affairs, was reflected in an increasing rigidity of Native legal administration. Although the personal touch remained as a legacy from the first two Rajahs, a greater formality in government machinery became inevitable. In addition, the source of law applicable in the courts in Sarawak was placed upon a more formal basis in 1928 with the enactment of the Law of Sarawak Order¹⁹ which provided that the law of England, insofar as it was not modified by Orders of H.H. The Rajah, and so far as it was applicable having regard to native customs, was to be the law of Sarawak.

In the administration of Native law, this formality was embodied in the Native Administration Order of 1940.²⁰ The Order provided for the setting-up of “Native Authorities” under the control of the Officer-in-Charge of the District. The function of the authority was to interpret the government fiat to the local people, to keep public order²¹ and to assist the Officer-in-Charge. The Authority, who was normally the Headman, had powers of arrest.²² The Order was later repealed (see below).

The same year also saw the passing of the Native Courts Order²³ which constituted a series of Native Courts and defined their powers.²⁴ The classes of Native Court were (a) the District Court constituted by a Magistrate of the Second Class, a Native Officer and two assessors; (b) the Court of a Native Officer or Chief constituted by those officials and (c) a Headman's Court consisting of a Headman and two assessors.²⁵ Jurisdiction consisted of power to adjudicate breaches of native law and customs and the first two classes of court could impose both fine and imprisonment whilst the latter could impose a fine only. Rights of appeal went from the most junior to the most senior of the Native Courts and from thence to the court of a Magistrate of the First Class and eventually to the Supreme Court. The fees payable in respect of proceedings under the Order were low, in some cases no fee at all, as befitted their limited jurisdiction.

The formal proceedings imposed by these two Orders was paralleled in the constitutional sphere by the promulgation of the Sarawak Constitution Ordinance²⁶ as amended by the Sarawak Letters Patent of 1946. This not only meant the end of the Rajah's direct rule but introduced Orders (made within the sphere of the new constitutional arrangements) under which the determination of Native law principles became a judicial rather than an administrative matter. Precedent and judicial interpretation of statute rather than administrative practice was now the final determinant of Native law within the state-wide legal system. As if to emphasise this change in attitude, the Native Administration Ordinance was repealed by the Local Authority Ordinance of 1948.²⁷ In 1949 a new Application of Laws Ordinance²⁸ was also promulgated importing the common law, doctrines of equity and statutes of general application, the extent of which, however, is limited by local circumstance and native custom. Thus for example, the Guardianship of Infants Ordinance,³⁰ while introducing principles drawn from English statute, contains special provisions as to native infants. These take the form of allowing the court to invoke the aid of Native assessors.³¹ The definition of "Native" had already been decided as “a race declared to be indigenous to Sarawak “ in the Constitution Ordinance of 1946,³² the first time that this was thought necessary.

In 1955 the formal structure of Native law administration reached its definitive form with the promulgation of the Native Courts Ordinance³³ (and accompanying regulations³⁴) and the Native Customary Laws Ordinance.³⁵ The former is a substantial enlargement of the earlier Native Courts legislation; its most important feature is the creation of a Native Court of Appeal³⁶ presided over by a judge.³⁷ At the same time, the Native Customary Laws Ordinance not only made provision for the keeping of records but gave power to the Governor-in-Council to amend any native system o f personal law.³⁹ Section 5 of the Ordinance, in dealing with the methods by which change under section 3 may be carried out, refers to “authorized versions” Native law.

The last provision raises a very important question of principle affecting Native law in Sarawak.⁴⁰ The increasing formalism of Native law adjudication has made it necessary to settle the form and content of Native law. The judicial process proceeds by way of the creation of general principle, derived from precedent and applied in the specific instance. This was not generally characteristic of past administrative decisions under the Residents, nor is it so at present. The judicial system is formulated in such a way as to make Native law a (distinct) part of an English-derived legal system. Such was not the position under the first two Rajahs where a localized and highly fact-specific administration was the norm. This is still characteristic of the lower levels of the Native Courts as at present constituted, but at the level of the Native Appeal Court the common law legal system demands something else, viz., a body of precedent or an ascertainable body of principle. The need manifested itself in the late 1940’s and early 1950’s with the formalization of the Native law system.⁴¹ The result was the production of codes or fines lists for various groups within Sarawak,⁴² and the incorporation of some of these lists as subsidiary legislation under the authority of the Native Customary Laws Ordinance.⁴³

The trend is, therefore, towards the codification of Native law. There is no doubt that the speed of change in modern times leaves little room for the gradual development of Native law principles by way of precedent. To take only one example: The Land Code⁴⁴ classifies land into three classes as follows: (a) Mixed Zone Land which may be held by any person without restriction; (b) Native Area Land, to be held by Natives only; and (c) Interior Area Land over which, subject to permission, native customary rights may be established in specific areas. This legislation has been criticized by those who see it as being in opposition to Native principles of tenure,⁴⁵ but however true this might be,⁴⁶ the fact remains that land is a state resource which must be utilized for the benefit of the whole population. There is evidence that at the moment the restrictive system of title to land under the Land Code is being evaded⁴⁷ and, as I have pointed out elsewhere,⁴⁸ restrictive classification are incompatible with the full development of a cash economy. The Land Code envisages a static situation but agricultural, economic and social development are all dynamic processes.

This brings us back to the question of the codification of Native law, a far cry indeed from the Orders of the first Rajah. Codification must of course be approached with a good deal of caution and, in the Sarawak case, at least three issues must be kept firmly in view. First, given the great diversity of localized practice in the state and the equally pressing need for some uniformity, an over-rigid style of drafting must be avoided. This can best be done by leaving considerable discretion to the higher Native courts and the Native Appeal Court, coupled with a requirement on all such courts to keep full records.⁴⁹ Given these two conditions some standardized practice could be worked out in a comparatively short space of time. Second, the rather more difficult, the problem of translating concepts from the Native world into a legislative vernacular must be squarely faced. It is not easy to translate such concepts⁵⁰ and one must utilize technical data from such social sciences as anthropology, and so on. Finally, in drafting the provisions of any code, the facts of modern life must be kept in the forefront. The code/s must reflect the changing circumstances of Native life in Sarawak. If it does not it will be ineffective and thus contribute nothing to Native welfare while at the same time bringing the law into disrepute.

The first Rajah concerned himself both with Native welfare and with a cheap and efficient administration of law; he and his successors overcame the problems of their time. There is no reason to suppose that we, with the benefit of hindsight, cannot deal with the problems confronting Native law today, just as successfully.

	M.B. HOOKER
	University of Kent, Canterbury.

FOOTNOTES

1.	See Pringle (1970), Runciman (1960).
2.	Printed in Vol. VI, Revised Laws of Sarawak, 1958.
3.	See Hooker (1969).
4.	Reprinted verbatim in Keppel l846: (i) 267-69 and Mundy 1848: (i) 277-79. The original was in Malay and the translation is that of James Brooke.
5.	In Keppel 1846: (i) 285-287.
6.	See Order VIII, 1902.
7.	Order of 31st May, 1893.
8.	Order XXVII, 1915.
9.	Constituted under the Courts Order of 1870.
10.	Or what was understood as such in Sarawak. See the Undang2 Mahkamah Melayu Sarawak in Vol. VII, Revised Laws of Sarawak, 1958 at p.673.
11.	5th May, 1877, 14th August, 1885, 12th December, 1876, 22nd February, 1877, 25th February, 1889.
12.	Orders of 10th March, 1877 and October, 1863.
13.	Cap. 18, Revised Laws of Sarawak 1948. The Native Tax Rules are in Vol 4, Revised Laws of Sarawak 1948.
13A.	Including, for example, the administration of estates. See s. 17(c) of the Administration of Estates Ordinance, Cap. 80, Revised Laws of Sarawak, 1948 providing for the application of custom. This Ordinance is the successor to the First Administration Order. No. A-5 of 1933.
14.	June, October, November 1870, February, September, December 1871, May, August 1872, February 1873, May 1878, January 1881, September 1882, March 1883, March, April, July 1890.
15.	Order No. C-7. 1933.
16.	S.4 (i).
17.	S.13.
18.	See Appendix where the current holdings are listed.
19.	Order No. L-4, 16th February, 1928.
20.	Order No. N-5. 1st February, 1940, later Cap. 26, Laws of Sarawak.
21.	See s. 15.
22.	See s. 6.
23.	Order No. N-3 of 16th November, 1940, later Cap. 4. Laws of Sarawak.
24.	It is worth pointing out here that the Native Administration and Native Courts Orders of 1940 are rather more elaborate versions of the North Borneo Native Administration Ordinance No.2 of 1937 (G.N. 177 of 1941).
25.	Ss. 3-4 Order No. N-3, 1940.
26.	Replacing the Constitution Order No. C-21 of 24th September, 1941.
27.	No. 12 of 1948.
28.	Now Cap. 2, Revised Laws of Sarawak, 1958.
29.	Section 2.
30.	No. 23 of 1953. Now Cap. 93, Revised Laws of Sarawak, 1958.
31.	Section 22.
32.	First Schedule: “Races now considered indigenous to Sarawak”, See also Cap. 1, Revised Laws of Sarawak, 1958.
33.	No. 2 of 1955. Now Cap. 43, Revised Laws of Sarawak, 1958, replacing the earlier Cap. 4.
34.	Native Courts (Fees) Rules, deemed to have been made under s.19 of the principal ordinance G.N. s.103 of 1952 and s.129 of 1957, Revised Laws of Sarawak, 1958.
35.	No.3 of 1955. Now Cap. 5 l , Revised Laws of Sarawak, 1958.
36.	Section 8(2) of Cap. 43.
37.	Of the High Court of Borneo constituted by the Sarawak North Borneo and Brunei (Courts) Order in Council, 1951. Vol. VI, Revised Laws of Sarawak, 1958.
38.	Section 4 of Cap. 51.
39.	Section 3 of Cap. 51.
40.	And also in Sabah.
41.	To some extent it was also felt in pre-war days. See the collections made by the following: Aichner (1950) on Land Dayak inheritance; Hickling (1954) reviewing ter Haar's Indonesian work; Ward (1961) on Sea Dayak fines 1907-1915; Adams (1933) on Land Dayak Fines Lists; Aikman (1935).
42.	See Richards (1961), (1963), (1964) and n.43 below.
43.	Printed in Vol. VII, Revised Laws of Sarawak, 1958, pp.655f. comprising the following codes:
		Orang Ulu Code of Fines
		Orang Ulu Customary Code of Fines (Belaga sub-district) Order
		Orang Ulu Customary Code of Fines (Fourth Division) Order
		Sea Dayak (lban) Fines
		Tusun Tunggu (Fifth Division) Order
		Tusun Tunggu (Fourth Division) Order
		Tusun Tunggu (Third Division) Order
	In addition, recent papers in the Sarawak Museum Journal add further information. See the following: Aichner (1955): Nyandoh (1955); Geddes (l954): Ward (1961).
44.	Cap. 81. Revised laws of Sarawak, 1958.
45.	Richards 1961:11-12.
46.	It is worth pointing out that almost half the Native lawsuits involve land or land inheritance.
47.	See Porter 1970:220. For land use data see Lee (1968).
48.	Hooker 1976: 120.
49.	This is done as a matter of course in the Native Appeal Court.
50.	See, for example, my discussion of the term “trust” in Malay adat: Hooker 1976: 188.

APPENDIX

LEGISLATIVE AND JUDICIAL SOURCES OF NATIVE LAW IN SARAWAK

These notes are intended as a general guide to basic source material.

A. Legislation
1. “H.H. the Rajah's Order Books

	Vol. I	1863-1890
	Vol. II	1891-1906
	Vol. III	1906-1914
	Vol. IV	1914-1920

Contain handwritten Orders with an alphabetical index to each volume. The Orders deal with all conceivable matters from the most important public laws (e.g., The Courts Order of 1870) to the most trivial (e.g., "pay the corporal of police an extra $2.00 per month").

2. "Printed Volumes of Orders 1893-1916 which have not been cancelled, issued by H.H. The Rajah or with His Sanction" printed by authority in Kuching 1891-1917.

These volumes contain all the issued law for the period 1893-1916. With the omission of the administrative trivia, they are largely a reprint of (1) above and also incorporate new orders.

3. "Orders Issued by H.H. The Rajah" in two parts. Containing orders valid up to 31st October, 1922. Printed (by authority) in Singapore by the Singapore Methodist Publishing House (1923).

          4. State Orders (Green Book) 1933.

Contains the Orders issued prior to 1st July, 1927 and extant on 1st August, 1933. Printed by authority, Kuching (1933).

          5. “ The Laws of Sarawak Sarawak 1927-35 (Red Book)”.

Containing the law in force 1927-35 in one volume. Published by authority in Kuching (1936).

          6. "State Orders" (annual) 1936-41. Published by authority. The volume for 1941 published in 1946.

7. "Laws of Sarawak (revised edition)" 1947.

Published by authority, Government Printer, Kuching. This edition replaced the Green Book and the Red Book and incorporated the Penal Code and the Criminal Procedure Code which had until then been published separately. In 6 volumes (printed 1946-51); volumes 1-3 Ordinances, volume 4 Treaties and Imperial statutes, etc., volumes 5-6 Subsidiary legislation.

8. "Laws of Sarawak (revised edition)" 1958.

Published by authority, Government Printer, Kuching. Replaced the 1947 edition in 12 volumes: volumes I-V Ordinances, volume VI (in three parts) Treaties, Imperial statutes, etc., volumes VII-VIII Subsidiary legislation, volume IX Index, volumes X-XII Local Government legislation, etc.

B. Law Reports

	1.	"Supreme Court Reports" (official reports) 1928-41, 1946-51, 1952-63.
	2.	"Malayan Law Journal" (official reports) 1963-current.
	3.	Residents' Court Books (official administrative/judicial proceedings).

The following books are held in the Sarawak Museum Archives:

	(a)	Second Division Simanggang 27 vols. Sept. 1876-Nov, 1916. Betong (Saribas) 12 vols. 1880-1886, 1884-1930. Pusa (Saribas) 7 vols. 1889-96, 1903-32, 1938-41.
	(b)	Third Division Sibu Criminal Cases 7 vols. 1874-79, 1915-17, 1919-23. Court of Requests (Civil) 4 vols. 1914-22.
	(c)	Fourth Division Baram Criminal Cases. 8 vols. 1882-1908, 1910-1919. Civil Cases 4 vols. 1883-1916.

These are listed here for the sake of completeness but, with the exception of (d), (g)-(h), they provide little material on Native Law. The Case Books are all held in the Sarawak Museum Archives.

	(a)	Police Court Case Books 1887-1892, 1895.
	(b)	Debts Court Cases 1909-11.
	(c)	District Court Fines Book 1926-32.
	(d)	Lower Court Case Books 1887-1904, 1891-94.
	(e)	Police Court Books 1904-05, 1906, 1917-20, 1919-26, 1920-28.
	(f)	Criminal Court Book 1928-31.
	(g)	Court Books 1872-73, 1913-17, 1914-19, 1930-39.
	(h)	Native Court Case Books March-August 1932, April 1936, July 1937.

5. "Land Cases"

Prepared by J.S. Abernethy for the Land and Survey Department, Government of Sarawak. Mimeo 1969. This volume was prepared for internal departmental use and reproduces both published and unpublished judgments about a third of which concern Native land matters.

REFERENCES

ADAMS, P.M., 1933: Land Dayak Fines Lists. Sarawak Museum Journal IV: 175- 185.

AICHNER, P., 1950: Some Customs and Practices Amongst Land Dayaks.Sarawak Museum Journal V: 221-225. No.2.

AICHNER, P., 1955: Adat Begawai Among the Land Dayaks.Sarawak Museum Journal VI: 588-589. No.6.

AIKMAN, R.G., 1935: Fines for Singghi, Serambu, Grogo and Jagoi Land Dayaks. Sarawak Museum Journal IV: 255-256.

GEDDES, DR. W.R., 1954: Land Tenure of Land Dayaks. Sarawak Museum Journal VI: 42-51.

HICKLING, HUGH, 1954: The People and Leviathan (or Adat Law and Sarawak). Sarawak Museum Journal VI: 164-173.

HOOKER, M.B., 1969: The East India Company and the Crown. Malaya Law Review 11: (i) 1-37.

HOOKER. M.B., 1976: Personal Laws of Malaysia. London & Kuala Lumpur: Oxford University Press.

LEE, Y.L., 1968: Land Use in Sarawak. Sarawak Museum Journal XVI: 282-308.

KEPPEL, THE HON. HENRY, 1846: The Expedition to Borneo of H.M.S. Dido... with Extracts from the Journal of James Brooke Esq. (2 vols.) 2nd ed. London: Chapman & Hall.

MUNDY, RODNEY, 1848: Narrative of Events in Borneo and Celebes .... from the Journals of James Brooke Esq .... (2 vols.). London: John Murray.

NYANDOH, R., 1955: Land Dayak Marriage. Sarawak Museum Journal VI: 586-587.

PORTER, A.F., 1970: Land Development in Sarawak. Journal of Administration Overseas 9: 192-204.

PRINGLE, ROBERT, 1970: Rajahs and Rebels. London: Macmillans.

RICHARDS, A.J.N., 1961: Land Law and Adat, Government of Sarawak: Printed by Order of the Chief Secretary.

RICHARDS, A.J.N., 1963: Dayak Adat Law in the Second Division. Government of Sarawak:. Printed by Order of the Chief Secretary.

RICHARDS, A.J.N., 1964: Dayak A dar Law in the First Division. Government of Sarawak: Printed by Order of the Chief Secretary.

RUNCIMAN, STEVEN, 1960: The White Rajahs. Cambridge University Press.

WARD, A.B., 1961: Some Sea Dayak Customs and Fines, 1907-15. Sarawak Museum Journal X: 82-102.

Tiong (f) anak Anju v. Sian (f) anak Buko

IN THE HIGH COURT OF APPEAL

TIONG (F) ANAK ANJU	…	…	…	…	Appellant
versus
SIAN (f) ANAK BUKO	…	…	…	…	Respondent

In the Native Court of Appeal at Sibu before Lee Hun Hoe, J. and Abang Mansor bin Abang Pong and Penghulu Tegong, Assessors.

Appeal No. 1 of 1966.

Date of Judgment: 26th April, 1966.

          Right of widow over her late husband's property-Whether her conduct subsequent to her husband's death disqualifies her right-Iban Customs-Jurisdiction of Chief's Court-Native Courts Ordinance (Cap. 43), section 5-Inheritance-Tusun Tunggu, paragraphs 32(c) and 32(g).

          On her husband's death before the minimum period of widowhood under the Tusun Tunggu, Respondent became a prostitute and was convicted and fined for this breach. She was refused permission to return to her husband's bilek (room). The Chiefs Court further ruled that she and her daughter Bedai were not entitled to the deceased's property because of her conduct. The District Native Court varied this decision to the extent that Bedai should be entitled to deceased's property provided she returned to the bilek within one month and that Respondent was only allowed her own property. The Resident's Native Court in turn varied the decision of the District Native Court and ruled that both Respondent and her daughter were entitled to deceased's property including the bilek. It further held that Respondent and her daughter were entitled to live in deceased's bilek:

          Allowing the appeal, the Native Court of Appeal set aside the decisions of the lower courts and held:-

		(i) that jurisdiction was raised but not considered by the lower courts.
		(ii) that a Penghulu has no power to constitute a Chiefs Court to deal with questions of inheritance but he may help to settle questions of inheritance administratively.
		(iii) that the Tusun Tunggu does not empower the Tuai Rumah and his anakbiaks to compel a widow to stay out of her husband's bilek for conduct committed outside the longhouse.
		(iv) that her moral conduct in no way deprived her of her right to live in her bilek husband bilek and to his property according to customary law of distribution.

          LEE HUN HOE, J.: This is the judgment of the court with which the Assessors agree.

          This is a case stated by the Resident's Native Court on a point of law, that is, whether a widow's conduct subsequent to her husband's death can be regarded as sufficient to disqualify her from taking over property rights to the bilek itself and to other property in the bilek inherited from his parents. It concerns Iban Customary Law.

          On Jubang's death he left certain property, Sian anak Buko was his wife and Bedai was his daughter. According to the Tusun Tunggu under the heading Baht (widowhood), the minimum period of widowhood is three months. It is found as a fact that before the expiry of this period Sian walked the streets in Sibu and was fined 50 mungkul ($50.00) for "muai indu balu mata" which she paid. Consequently, it appeared that she was refused permission by the Tuai Rumah and his anakbiaks to return to her husband's bilek.

It seems that in the Chiefs Court Penghulu Pengabang, apart from imposing various fines on Sian for various breaches of Iban customs, also ruled that Sian and Bedai were not entitled to any property of the deceased because of Sian's conduct. The District Native Court varied the decision of the Chief's Court to the extent that Bedai shall be entitled to all property (utai lama) provided she returns to the bilek within one month, and that all property obtained during the marriage of her parents shall go to her and that Sian shall be entitled to property obtained by Sian herself. The Court further ruled that Sian shall not be allowed to live in the bilek. When claim is made to materials used for constructing a bilek the provisions of paragraph 32(c) of the Tusun Tunggu should not be overlooked. It states "timber or materials of a door may not be dismantled unless the whole longhouse is being dismantled".

The Resident's Native Court in turn varied the decision of the District Native Court and held that Sian and Bedai were entitled to the property and bilek of deceased. It further directed the District Native Court to re-open the case insofar as it concerns certain fines imposed and to make a decision in the matter. The Court also ruled that the Tuai Rumah and his anakbiaks could not chase a person out of the bilek and considered that Sian and Bedai were entitled to live in deceased's bilek and to obtain his property.

First, we would like to mention that there is no written record of the decision of the Chief's Court. This merely appeared in the records of the District Native Court and from what was stated by Tuai Rumah Tuan who was supposed to be one of the Assessors. It is not clear whether Tuai Rumah Tuan save evidence on oath or not. Also, a considerable amount of hearsay evidence was admitted. It is interesting to note that in her written statement Sian did question the jurisdiction of the Penghulu but this point was never considered by the District Native Court. Neither was it considered by the Resident's Native Court. Both Courts assumed that the Chiefs Court was properly constituted.

Secondly, we would like to refer to the relevant provisions of section 5 of the Native Courts Ordinance which reads as follows:--


	"5-(1) Native Courts shall have jurisdiction, concurrent with such other courts as may be empowered to try the same, over-
		(a) cases arising from breach of native law or custom in which all the parties are subject to the same native system of personal law;
		(b) cases arising from breach of native law or custom (including the Malay Undang-Undang) relating to any religious, matrimonial or sexual matter where one party is a native;
		(c) cases arising from the breach of the Malay Undang-Undang or Malay custom of Sarawak in which all the parties are Muslim;
		(d) any civil case, not being a case affecting land, in which the value of the subject matter does not exceed fifty dollars and all the parties are subject to the same native system of personal law;
		(e) any case concerning land to which there is no title issued by the Land Office and in which all the parties are subject to the same native system of personal law; and
		(f) any matter in respect of which it may be empowered by any other written law to exercise jurisdiction:

Provided that it shall be lawful for the Resident, if he consider that any proceedings instituted or about to be instituted under paragraph (b) or (f) or under subsection (2) are likely to prejudi-good relations between different communities or lead to a breach of public order or that, owing to his having formed the opinion that the determination will require the application of more than one native system of personal law, or for any other reason the parties should be left to such remedies as they may have in other courts, to order that such proceedings be stayed or shall not be commenced. In any such case, the Resident shall make a report thereof to the Governor, who may confirm or set aside any such order.

          (2) In cases relating to any matrimonial or sexual matter in which a Native Court has jurisdiction where the parties are of different sex and are not of the same community, or are by virtue of any written law deemed to belong to or be identified with different communities, the Native Court shall, unless the contrary is expressly provided in any written law, be bound by the law or custom of the community of which the woman is or is deemed to be a member:

          Provided that a woman who has embraced the religion of Islam in accordance with the rites prescribed therefor in Sarawak shall be deemed to belong to a Muslim Malay community.

          (3) Subject to the provisions of this or any other written law, every case shall be heard in the lowest court which is competent to try it."

          The Penghulu or other headman may help to settle questions of inheritance administratively. In fact, a Penghulu or other headman is usually a proper person to advise on' such matters. But a Penghulu has no power to constitute a Chief's Court to deal with questions of inheritance which do not appear to fall within any category under subsection (I) of section 5. Questions of inheritance are not proper matters to be dealt with in the Native Courts. Thus if any party is not satisfied with the administrative decision of a Penghulu or other headman on questions of inheritance he or she should initiate proceeding in the appropriate ordinary Court. If the District Native Court and Resident's Native Court had referred to section 5 they would have realised that the Chiefs Court had no jurisdiction. Since there was no record of decision emanating from the Chiefs Court and many matters appeared to have been dealt by it, the District Native Court should be more cautious in its approach. It should have been ascertained what were the matters under appeal as the parties are invariably illiterate.

The decisions of the lower Courts relating to the questions of inheritance are set aside and all the property should be returned to Respondent. If Appellant is dissatisfied she is at liberty to institute proceeding in the appropriate court.

As the point of law raised is a matter of some interest this Court has decided to give its opinion. It should be pointed out that nowhere in the Tusun Tunggu is there any indication that a Tuai Rumah and his anakbiaks could compel a widow to stay out of her husband's bilek: for conduct which was committed outside the longhouse. In fact, paragraph 32(g) of the Tusun Tunggu states:-


	"Anyone driving another out of a longhouse or ordering him out may befined up to half a picul all to Government.
		Disputes will be dealt with by custom and if the Tuai Rumah is at fault
	he may be replaced, but the splitting up of a longhouse should not be allowed after petty disputes".

Her moral conduct may be an embarrassment but there is no provision whereby she could be deprived of her right to live in her late husband's bilek, and her right to his property according to customary law of distribution. Neither is there any provision to deprive a rightful heir, in this case, Bedai, of her right to remain in her late father's bilek, and her right to her late father's estate because of her mother's conduct. Her mother's conduct has nothing to do with her inherent rights to property under customary law.

Udin anak Lampon v. Tuai Rumah Utom

SUPREME COURT

UDIN ANAK LAMPON versus TUAI RUMAH UTOM

Land—Customary land tenure—Extinguishment of rights when Dayaks remove from a river or district.

The District Native Court, Sarikei, held that certain land was communal farming land in the occupation of the Defendant, Tuai Rumah Utom. The Plaintiff had claimed a right of individual occupation by customary tenure. An appeal to the Resident’s Court, constituted in accordance with the Native Courts Ordinance, was dismissed. The Appellant appealed to the Supreme Court.

Held:
	(1) That an Order of the Rajah dated 10th August 1899, was declaratory of the customary law which is still in force. (2) Quaere, whether an individual occupant of land by customary tenure can rely on his rights after permitting the land to be used by non-natives.

BEFORE THE HONOURABLE MR. JUSTICE R.Y. HEDGES, C.J., SITTING WITH THE SECRETARY FOR NATIVE AFFAIRS.

Assessors:	Penghulu Giman.
	T.R Ningkam anak Udut.
13th May, 1949

          The following judgment was delivered.

          HEDGES, C.J.: This is an appeal against an Order of the Resident’s Court, Third Division, constituted in accordance with the Native Courts Ordinance, dismissing an appeal against an Order of the District Native Court dated 7th September, 1948.

          We are satisfied on the evidence in the record that the land in dispute is communal farming land in the occupation of Tuai Rumah Utom. Insofar as the Appellant bases his claim upon the rights formerly enjoyed by one Juing, we are agreed that these rights were extinguished long ago when Juing moved to Binatang.

          By an Order dated 10th August, 1899, the Rajah declared that any Dayak removing from a river or district may not claim, sell or transfer any farming ground in such river or district, nor may he prevent others farming thereon unless he holds such land under a grant. That Order was declaratory of the customary law, and although the Order itself is no longer on the Statute Book the force of the customary law is in no way diminished.

          In the circumstances we are satisfied that there can be no question in this case of any individual occupation by customary tenure within the meaning of section 91 of the Land Ordinance. Even if the Appellant could establish any rights, which is not the case, it is difficult to see how he could rely on them after permitting the land to be used by non-natives (namely Chinese).

          Having come to this conclusion it is unnecessary (and therefore undesirable) for the Court to inquire into the validity of the various propositions concerning customary tenure enunciated in the Courts below.

          It is the unanimous opinion of the Court (including the assessors) that this appeal must be dismissed and the Court orders that it be dismissed accordingly.

Appeal dismissed.

Yabak anak Yaba v. Bangis anak Bamit

IN THE NATIVE COURT OF APPEAL

YABAK ANAK YABA (f)	…	…	…	…	Appellant
versus
BANGIS ANAK BAMIT	…	…	…	…	Respondent

In the Native Court of Appeal at Limbang before B.T.H. Lee, J., Idup Rayun anak Yunin and W.T.K. Sundai anak Basi, Assessors.

Limbang Native Court of Appeal No.2 of 1968. Date of Judgment: 22nd April, 1969.

Land dispute-Temuda rights-Bisayas-Mistaken but honest belief in claiming ownership of land.

Out of three pieces of land one centre piece containing 4.44 acres was really in dispute. Appellant claimed ownership of all three pieces because she thought the area was 12.77 acres and not 8 acres, Respondent representing the Bisayas of Kampong Ranggu claimed temuda rights over the three pieces of land. Documentary evidence clearly supported Respondent's claim. The Native Officer's Court, Limbang, gave judgment in Respondent's favour. The District Native Court set aside that decision which was later restored by the Resident's Native Court.

Dismissing the appeal, the Native Court of Appeal held that:-

		(1) On the facts the Resident's Native Court and the Native Officer's Court decided the matter correctly

		(2) No special point of law arose for determination.
		(3) Appellant mistakenly but honestly believed she owned the centre portion of the land when in fact there was no evidence to support her claim.

B.T.H. LEE, J. delivered the judgment of the Court:-

This was an action brought by the Appellant (Plaintiff) in respect of a piece of land held under Lot No. 921 which Appellant as is here alleged contained approximately 8 acres situated in Luagan Java, Kampong Ranggu (Darat), Ulu Limbang, Fifth Division and the Appellant claims for a declaration that she is and has been the owner of the three pieces of land comprised in Lot No. 921.

The facts are fully set out in the case stated and for the purposes of this appeal require only brief mention.

The piece of land was divided into three sections. The upper portion contained an area of 6.17 acres planted with palm oil, the middle portion contained an area of 4.44· acres was purported to be planted with sago palms by the Appellant. The lower portion of the land contained 0.92 acre.

The Respondent (Defendant) on behalf of himself and the Bisayas in Kampong Ranggu by their defence alleged that the ownership of temuda rights (that is, rights to farm Crown Land cleared by the tribes) over the portion of land containing an area of 4.44 acres vested in the Bisayas of Kampong Ranggu.

Unfortunately, the parties are not represented here nor in the lower Courts, so we have not had the assistance of arguments from both sides.

At the trial by the Native Officer's Court, Limbang on September 8, 1966, where it was first heard, there is clear documentary evidence produced by a Land Officer, Limbang, that Lot No. 921 in fact contained 12.77 acres (and not 8 acres as alleged) and showed beyond any question that the ownership of the middle portion containing 4.44 acres vested in the Bisayas of Kampong Ranggu namely, Bangis anak Meramit, Nyawai anak Silang, J anal anak Keduit, Serarnbit anak Meramit, Yubi ank Yaba, Julang anak Kandawai, Galis anak Meramit and Madai anak Rayun and the court dismissed Appellant's claim.

From this decision the Appellant appealed to the District Native Court which on 24th November, 1966 decided that the ownership of the whole piece of land comprised in Lot No. 921 vested in the Appellant. I venture however to dissent with great respect to the court that the judgment is not only inconsistent with much that was said but is directly in conflict with the real facts and in the face of documentary evidence.

Subsequently, on an appeal by the Respondent on behalf of the Bisayas in Kampong Ranggu the Resident's Native Court allowed the appeal on May 22, 1967.

An appeal was again lodged by the Appellant and the Resident's Native Court stated a case for the opinion of this court in accordance with section 8(3) of the Native Courts Ordinance (Sarawak Cap. 43).

I may state at the outset that the main ground of the Appellant's appeal (it is unnecessary to deal with the other grounds which do not concern this court) is that the ownership of the entire Lot No. 921, i.e., upper, middle and lower portions of the Lot vested in her. Her claim was based on the assumption (apparently erroneous) that Lot No. 921 contained 12.77 acres and not 8 acres as claimed by her and her mother.

The foregoing facts (except the middle portion of Lot No. 921 containing an area of 4.44 acres) have never been at any time in any real dispute and in the circumstances it is not necessary to discuss in detail the evidence by which they were made out.

It is sufficient for our purpose to refer to the judgment of the Resident's Native Court. The Resident summed up his conclusion in these terms.


	"If areas shown in lucegram attached to Ex. "B I RNC', i.e., areas D and E in lucegram (Ref: 57-22-11) are added together the whole area is (0.92 and 6.17 acres) 7.09 acres. This corroborates more or less with the Respondent's mother's statement given in Native Officer's Court, i.e., the area of her land is 8 acres."

And a little further down in his judgment he said:-


	"And taking the above facts into consideration the court is of the opinion that the area "A" "B" "C" "J" "L" "F" "G" (the middle portion of Lot No. 921) does really belong to the Kampong people and can be used by them after they (sic) permission from the Headman of the area (the words underlined and within brackets are mine)."

And then he goes on to say:-


	"Independent witness No. 1 in Resident's Native Court, Boniface Ancheh, informed that the land in dispute was surveyed on 28th July, 1965. After investigation of customary rights over the land had been completely done, it was' found that two areas are D and E in Ex. "B I RNC" with areas of 6.17 and 0.92 acres belonging to Respondent."

          The Bisayas are a small, fragmented tribe inhabiting parts around Brunei Bay.

          In Sarawak, apart from a few in the Lawas and Trusan rivers, the Bisayas inhabit only the upper tidal reaches of the Lirnbang River in the Fifth' Division.

          It appears that the truth of the matter is that the Appellant purported to act under a mistaken but honest belief that she owned the middle portion of the land and her belief has not until hitherto been challenged.

          It is perhaps right that I should observe that it was, in spite of the documentary evidence, urged by the Appellant that Lunak anak Yunai ought to be called to give evidence at the District Native Court.

This witness aged 60 specially called at the request of Appellant is apparently a man of some social position and respectability in that community to justify complaints being referred to the Lunak Committee. And having obtained the evidence Appellant cannot now be heard to complain that this witness's evidence ought to be disregarded since it fell far short of what she had hoped, On the view we take there really was no evidence at all either in the lower Courts or in this Court capable of supporting the Appellant's claim.

We have come to the conclusion that the issue presented to this court is simple and that the Resident's Native Court following the Native Officer's Court had approached, the matter correctly . .I do not know that there is any special point of law which arises for determination in this case and as to the facts I am, as I have already said, satisfied with the opinion of the Resident's Native Court which sets forth the facts very clearly and concisely and on this matter we do not feel it necessary to add anything to what has been said by that court.

It is the unanimous opinion of the court that this appeal must be dismissed and the court orders that it be dismissed accordingly.

Appeal dismissed.