Land Law in Sarawak

ISBN: 978-983-3519-27-9

Author: Nasser Hamid and Prof Salleh

Binding: Hardcover 930 pages

Publication Price: MYR 400.00

The law is stated as of February 15, 2011

Preface

Table of Cases

Table of Statutes

Chapter 1

INTRODUCTION

LAND LEGISLATION IN SARAWAK

Pre Brooke Sarawak

The Transfer of Sovereignty over Sarawak from Brunei to the Brooke Family

The Brooke Era - 1841 to 1946

Land Regulations of 1863

The Land and Survey Department – 1918

Land Order 1920

State Land – Meaning of - Land Order 1920

Land Order 1920 and Cultivation of Land

Land Regulations under Land Order of 1920

Application of English Law

Creation of ‘Native Land Reserves’

Occupation Ticket

Laws of Sarawak Ordinance 1928

Land Order 1931

Native Customary Rights - Secretariat Circular No 12/1939

The Rajah’s Orders

The Japanese Occupation

1946 To 1963

The Sarawak Constitution Ordinance 1946

Laws of Sarawak (Revised Edition) 1948

Land (Classification) Ordinance No 19 of 1948

The Land Code (Sarawak) (Cap 81)

THE SARAWAK LAND CODE

English Law & English Equitable Principles

Sarawak - Administration

Land Code (Sarawak) (Cap 81) – Challenge to Constitutionality of Provisions - Statutory

Interpretation

Land Code (Sarawak) (Cap 81) - Restrictive Interpretation

Absence of Local Precedents – Reliance on Cases decided under the Land Transfer Act 1952

Foreign Precedents and the Land Code (Sarawak) (Cap 81)

New Zealand Precedents - Land Transfer Act 1952

Rule against Perpetuities

Land Code (Sarawak) (Cap 81) - Land Code (Amendment) Ordinance 2000

Land Code – Amendments - The Land Code (Amendment) Ordinance 2005

THE TORRENS SYSTEM

The Torrens System

Proprietary Estoppel – Torrens System

FRAUD AND INDEFEASIBILITY

Fraud

Evidence of Fraud

Burden of Proving Fraud

Proof of Fraud

Proof of Fraud - Question of Fact

Proof of Fraud – Absence of Honest Belief in Truth of Statements

Standard of Proof

Concept of ‘Indefeasibility’

Fraud & Indefeasibility - Land Code (Cap 81)

Fraud

Fraud – Meaning of Fraud – Sections 132 and 134 of the Land Code (Sarawak) (Cap 81)

Actual Fraud

Fraud – Pleadings

Fraudulent Transfer of Land

Fraud – Allegations of Fraud - Grant of Title

‘Persons Defrauded’ - Section 134 of the Land Code

Registration procured by Fraud - Document of Title – Wrongful Issue of Document of Title

Immediate Indefeasibility

Indefeasibility - Possession – Recovery of Possession of Land

Indefeasibility and Fraud – Rectification

Fraud and Indefeasibility – Effect of Decision in Adorna Properties Sdn Bhd v Boonsom Boonyanit

Indefeasible Title and Order for Specific Performance

INTERPRETATION OF STATUTES

Federal System of Law

Interpretation of Federal Constitution

Interpretation of Statutes

Statutory Interpretation - Construction of Statutes

Modification of Statute

‘According to Law’

‘Document’ – Meaning of

‘Instrument’-Meaning of

‘Law of Sarawak’- Meaning of

‘May’

Prescribed Time – Interpretation of

Rules under the Sarawak Land Code

LAND CLASSIFICATION

Classification of land

Native Communal Reserves

Government Reserves

Doubts as regard classification of land

Chapter 2

REGISTRATION

Introduction

The Land Code & Torrens System

Torrens System and the Register

Registration of Title

Pre Registration - Equitable Principles

Interests in Land - Exercise of Jurisdiction in Personam and In Rem

Estate and Interest Land

Registration of Titles – Recognition of Equitable Estates and Rights

Obtaining Legal Estate

Registration – Sarawak

The Land Registry Office – Historical Notes

The Land Registry Office -Primary Function

Title to Land - Established System – Defects

The Registrar

Duties of Registrar 100

Certified Copies 101

Preparation of instruments 101

Additional powers of the Registrar 101

Keeping Books 102

Registration of New Titles 103

Withdrawal of Instruments before Registration 104

Alteration of Instruments 104

Special Conditions 105

Duties of Divisional Registrar 106

APPEALS 106

Right to Appeal 106

Notice to Registrar 107

Registrar’s Refusal to ‘Register’ 107

Hearing of Appeal 107

Procedure 107

Stating a Special Case for the Federal Court 108

Methods of Effecting Service 108

Registration 109

Registration of Instruments 110

Registration – Particulars 110

Description of Land 111

The Register 111

Registration of Instrument of Dealing 112

Entries in Register - Schedule of Alienated Land 113

Entries in Register – Disputes over Land 113

Dual and Multiple Instruments 114

Execution and Attestation of Instruments 114

Execution by Corporation 115

Legal Representatives 116

Attestation by Attendance 116

The Register - Types of Register 117

When Instruments deemed to be Registered 118

Provision for Counterparts 118

Issue of Additional Copies of Leases and Instruments 119

Registered Proprietor 119

Registration – Registered Proprietors - Eligibility of Persons who can be registered as registered

proprietors or who can deal with registered interest. Section 13(5) and Section 13A are relevant 119

Restriction on Associations of More than 20 Members 121

Priority of Registration 121

Issue Document of Title 122

Particulars to be Endorsed on Issue Documents of Title 124

Issue of Certified Documents of Title in Form F 124

Delivery of Issue Documents of Title 125

Mutilated Title – Replacement 125

Production of IDT for Registration of Dealings 125

Instrument not Effectual until entry in the Register 125

Stay of Registration 129

Issue of Order 130

Mode of affixation of Order 130

Delivery 130

Informal Instrument not to be Registered 130

Issue of new Documents of Title in case of Loss 130

Register of Loss of Title 131

Prescribed Forms 132

Register to be open for Search 132

Searches 132

Application – Issue of Authority for Search 133

Issue of Extracts of Title 133

Trust Instruments not open to Search 134

Arrears of Rent to be paid before Registration 134

Registrar may Dispense with IDT or Charge 134

Issue Document of Title – Dispensation 135

Registration in the name of Deceased Persons 135

Stamp duty 135

Instrument Requiring Correction 136

Certified copies 136

New IDT for lost original 136

Co-Proprietorship 137

Partition - Co-Proprietors 138

Co-proprietors - Transfers by way of Exchange 138

Joint tenants 138

No Adverse Possession of Alienated Land 138

Indefeasibility of Title 141

Indefeasibility of Title – Meaning of 141

Registration – Corresponding Provisions of the National Land Code 1965 142

Estate or Interest in Land - Priority 151

Misdescription 151

Conditions in Document of Title – Restriction in Interest -Contravention – Forfeiture 152

Easements 153

Easement – Characteristics 153

Easements – General Principles 153

Easement – Definition 154

Easements & Indefeasibility 157

Easements – Land Code (Cap 81) 157

Sarawak Land Code & Easements – Inapplicability of English Common Law, Rules and Equity 157

Creation of Easement - Approval 158

Easement – Existence – Determination of 158

Removal of Easement 161

Extinguishment of Easement 161

Determination and Extinguishment of Easements 161

Extinguishment of Easement - Express Release or Surrender 162

Extinguishment by other than effluxion of Time or Merger 162

Doctrine of Notice not to Apply 163

Torrens System & Doctrine of Notice 163

Effect of Fraud 166

Registration of Titles & Fraud 167

Rectification of the Registrar 171

Amendments of Names due to Error 174

Registrar may require Proprietor to Deliver up Title for certain Purposes 175

No Alteration without Authority 176

Land (Control of Sub-division) Ordinance (Sarawak Cap 82) – Register - No Alteration without

Authority – Extent of Prohibition 176

ICT and electronic land dealings 177

Powers of Attorney 177

Capacity 178

Registration of Powers of Attorney 179

Determination or Revocation of Power of Attorney 180

Receipt of Notice of Revocation Procedure 181

Receipt of Notice of Revocation Procedure 181

Power of Attorney Index 182

CHAPTER 3

ALIENATION OF STATE LAND 183

Property vested in the Government 183

Alienated Land 183

Discretion to Alienate State land 183

The Director of Land and Survey 184

Alienating Reverted Land 185

Grant or Lease of State Land 185

Registered Proprietor – Bankrupt 186

Forms of Title 186

Foreign Acquisitions 187

Protection of Native Customary Rights 189

Surrendered, Reverted or Resumed Land 190

Acquisition of Property through State Action 190

Special Condition for Alienation of Town Land 190

Town Land 191

Idle suburban land 191

Grants to Natives 191

Alienation of State Land to Native 192

Leases in Development Area 193

Limitation of Ownership 194

Form of Grant and Lease 194

Leased Land 195

Provisional Lease Register 195

Payment of Rent and Premium 196

Sub-Division of Land 196

Sub-Division 196

Partition subject to Approval - Subdivision 197

Title – Sub-Division 197

No Automatic Right to Renewal 197

No Compensation for Improvements 198

Survey before Alienation and Issuance of a Provisional Lease 198

Provisional Lease 198

Leases 198

Provisional Lease 199

Provisional Leases 200

Provisional Leases - Director of Forests, Forests Department 201

Temporary Licences 202

Revision of Rent 204

Restrictions on Transfer 205

General Implied Conditions affecting Alienated Land 205

Rock material 206

Re-Entry because of Breach or Default 208

Re-Entry of Land within Special Development Area 209

Right of Way 210

Powers & Duties of Superintendent of Lands and Surveys 211

Right of Neighbouring Owners to Drainage and Irrigation 212

Right to Prospect for Minerals 213

Government’s Implied Right of Drainage 213

Government Reserves 214

Cultivation 215

Sago land 216

No Adverse Possession against Government 217

DEVELOPMENT AND SUB-DIVISION 221

Meaning of ‘Development’ 221

Development Plans 223

Sub-Division 224

State Planning Authority 225

No Sub-Division and Development without Approval 226

Compensation in Respect of Approved Sub-Division 226

Issue of New Documents of Title 227

OFFENCES AND SANCTIONS 227

Unlawful Occupation of State land 227

Power of Arrest 228

Power of Eviction and Seizure 229

Forfeiture of Things Seized 229

Recovery of Costs 232

Power to Compound Offences 232

Miscellaneous Offences 233

Offences by Corporation 234

Public Prosecutor 234

CHAPTER 4

DEALINGS 235

Disability – Effect of 235

Forms Used In ‘Dealings’ 236

1.TRANSFERS 236

Transfers 236

Transfer - Agreements for Sale and Purchase 236

Transfers - Consideration 237

Transfer by Registered proprietor 237

Transfers -Land Holdings - Restrictions on size of Land Holdings 238

Transfers to Co-Proprietors 238

Land subject to a Charge 238

Transfer of Charges and Subleases 239

Implied Obligations of the Transferee of Sublease 239

Removal of Easement 240

Transfer Lost or not Executed 240

Court may Declare Rightful Person to be registered as Proprietor 240

2.CHARGES 241

Charge – Deposit of Document as Security 242

Charges & Indefeasibility 242

Collateral Charges 242

Charges - Guarantors 243

Charges to more Persons than one – Co-Chargees 243

Memorandum of Charge – Non payment of Correct Stamp Duty – Effect of 243

‘Created by a Company’ – Whether Meaning includes ‘Executed’ or ‘Signed’ by Company 243

Forms of Charges 244

Charges – Form 245

Implied Covenants and Conditions 245

Redemption 246

Altering the Terms of the Charge 247

Variation of Charge – Section 146 – Form 247

Sub-Charges 247

Issue Document of Title to be Delivered to Chargee 248

Second Charges 248

Chargee’s Remedies when Chargor Defaults 248

Charge – Order for Sale 248

Remedies Available to Chargee 249

Remedies under Section 148(2) – Whether Mutually Exclusive 250

Memorandum of Charge – Position of Transferee 268

Application of Purchase Money 269

Procedure - No Sale 270

Discharge of Charge 273

Discharge of Charges – Section 154 273

Repayment when Chargee cannot be Found 274

Charge cancelled following Resumption of Land 274

3.SUBLEASES 275

Form and Effect of Sublease 276

Monthly Tenancy – Assignment – Requirement of Registration 276

Tenant's Interest & Indefeasibility 277

Sublease for less than 1 year 277

Subleases – Term not Exceeding One Year 278

Subleases – Term Exceeding One Year 278

Subleases – Term 279

Subleases – Form 279

Lease – Rent 280

Lease - Undivided Shares not Registrable 280

Lease – Sub- Lease of Part of Land 280

Sublease of part of Land in Development Area 280

Sublease of Charged Land 280

Extension or variation of Sublease 281

Determination of Sublease 281

Sublease - Re-Entry by Sublessor 282

Sublease - Re-entry by the Government of Sarawak 282

Implied Terms in Subleases (Duties of Sublessee) 283

Implied Powers of the Lessor 283

Other Implied Terms in a Sublease (Duties of the Lessor) 284

Extension or Variation of a Sublease 284

Surrender of a Sublease 285

Re-entry by Lessor 285

TRANSMISSIONS AND VESTING ORDERS 286

Meaning of ‘Transmission’ 286

Application to be registered as Proprietor, Chargee or Sublessee 287

Transmission – Registration 288

Change of Name 288

Application 288

Court may declare rightful person to be registered as Proprietor 289

Vesting orders 291

Vesting order - Transfer of Property 291

Production of Certificate of Transmission 292

Chapter 5

NATIVE CUSTOMARY RIGHTS 293

Introduction 293

Native Peoples’ Rights - Native Title 293

Principles of Native Titles 294

Rights Embodied in Native Title – Rights to Property 295

‘Property’- Meaning of – Article 13 of the Federal Constitution 296

Native Customary Rights – Right to Livelihood 296

Rights Embodied in Native Title – Rights of Disposition 297

United Nations Declaration on the Right of Indigenous Peoples 297

Aboriginal Rights to Land – Malaysia 299

Nature of Crown’s Rights over Native Customary Rights 300

RECOGNITION OF NATIVE CUSTOMARY RIGHTS IN SARAWAK 301

Pre-Existence of NCR 301

The Brooke’s View of Native Customary Rights 303

Brooke’s Honouring of Customary Rights & Laws 303

Native Rights – Pre- Existing System of Law 304

Land Orders - Declaratory of Dayak Native Rights 306

The Rajah Order (No xxix of 1921) & Acquisition of Native Customary Rights 308

Acquisition of Native Customary Rights - Rajah Order (No xxix of 1921) 308

Government’s Power to Except Land from the Operation of the Rajah Order (No xxix of 1921) 309

Secretariat Circular No 12 of 1939 – Prohibition of Excessive Requirements – Relevance in Today’s

Context 315

Dayak Customary Law 316

Dayak Customary Law and ‘Progress’ 317

Statutory Recognition of Native Customary Rights in Sarawak 318

Common Law Recognition of Native Customary Rights in Sarawak 319

Decisions on Native Customary Rights in Sarawak 322

Recognition of Native Customary Rights over Land - New Concept of Development on Native

Customary Rights (NCR) Land’ 324

NATIVES 325

Native – Meaning of 325

Who is a ‘Native’ in Sarawak? 325

‘Dayak’ – Meaning of 327

The Penan 327

Natives – Malays 328

Native Status & Native Communal (Agriculture) Reserve Orders 328

‘Non-Native’ 329

Non-Native - Statutory Prohibition 329

Prohibition on Non- Native Entity Entering into Development Agreement with Natives 329

Legality of Joint Venture Agreement with Non-Native – Conditional Agreement 333

Lawful Acquisition by Non-Natives 337

NATIVE CUSTOMARY RIGHTS OVER LAND 337

Evolution of System of Native Customary Rights 337

Native Customs & Land 338

Native Customary Laws of Sarawak 338

‘Customary Laws’ - Meaning of 339

Native Customs v Native Customary Laws 340

Customary Laws Affecting Natives 341

Administration of Native Law 342

Policy and Legislation Affecting Native Customary Rights over Land 343

CREATION OF NATIVE CUSTOMARY RIGHTS OVER LAND 345

Native Customary Right – Meaning of 345

Native Customary Rights Acquired Prior to 1 January 1958 346

Native Customary Rights pertaining to Land 348

Creation of Native Customary Rights – The Law 350

Acquiring Native Customary Rights over Land 350

Native Customary Rights over Land – Principles 351

Native Claims to Land – The Concept of Native Claims to Land 352

Native Customary Practices - Creating Rights Over Land 352

Acquisition of Native Customary Rights – Pre-1958 – Post 1958 353

NCR over Land Acquired Prior to 1.1.1958 – Application of Section 5 of the Land Code 354

Nature of Customary Title 356

Customary Rights over Land - Issue of Title to Land – Jurisdiction of Native Court of Appeal 356

Native Customary Rights over Land - Communal Land or Communal Rights 357

Native Customary Land – Definition - Sarawak Land Code (Cap 81) 357

Native Customary Land – Categories of Native Customary Land 358

Native Customary Rights over Land – Extent of Exercise of Rights - Section 10(3) of the Land Code

(Sarawak) (Cap 81) 358

Registration of Native Rights 359

Transfer of Native Rights over Land 360

Remedies 361

Effect of Registration 361

Occupation of State land – Conditions 361

Occupation of State Land – Legality of Occupation 363

Creation of Native Customary Rights - Native Communal Reserve Orders 364

Nature of Native Customary Rights over Native Land and Native Communal Reserve in Sarawak 366

Extinguishment of Native Customary Rights created by Native Communal Reserve Orders 367

Customary Rights over Land – Non User 368

Alienation of State Land to Native 368

Native Customary Rights over Native Customary Land – Recognition by Common law 369

Native Customary Rights – Enjoyment and Use over Land – Restrictive Construction 373

Native Customary Rights over Interior Area Land - Land (Classification) (Amendment) Ordinance

1955 374

Native ‘Owning’ Land 374

Gratuitous Licensee 375

Native Customary Rights and Titled Land 375

Untitled Land - Temuda Land –Land Code 376

Creation of Native Customary Rights – Succession 377

Creation of Native Customary Rights in Mixed Zone Land - NCR - Declaration of Land as Mixed Zone

Land – Effect on Native Area Land or Interior Area Land - Section 4 (1) of the Land Code 377

Government Reserve & Native Customary Rights 380

Recognition of Native Holdings 381

Land Tenure Customs 382

IBAN CUSTOMARY LAND TENURE 383

Value and Importance of the Land to the Natives of Sarawak 383

Adat Law commonly practiced by the Natives 384

Who is an Iban? 384

Native Customary Laws of the Iban - Adat Iban Order 1993 - Sarawak Land Laws and Adat 1961 385

Adat Iban – Primary Functions 386

Adat Iban 1993 386

Tusun Tunggu 387

Iban Customary Land Tenure 388

Native Customs of Ibans 389

‘Pemakai Menoa’/ Pemakai Menua) – Pulau – Temuda - Meaning of 390

Pemakai Menua - Meaning of 392

Customary Tenure- Communal Rights 394

Land Dispute- Customary Tenure- Farming Rights of Descendants of Original Claimant 395

TEMUDA 396

Temuda - Meaning of 396

Primary Jungle - Claim for Temuda Rights 397

Berimba land — Temuda Rights 398

Temuda Rights or Temuda Land 398

Temuda Rights - Division of Farming Land 400

Boundaries 400

Temuda Rights – Agreement as to Boundaries between Parties 400

Administrative Boundaries – Effect on Temuda Rights 401

Pindah - Customary Tenure- ‘Pindah’ by Holder of ‘Temuda’ Rights – Effect on Individual Customary

Rights over Land 402

Orders Relating To ‘Pindah’ or ‘Removing from River District 403

Temuda Land - Dayak Removing to another District - Loss of Rights in Land 408

Temuda – Abandonment 409

Abandonment - Non-User of Land 409

Temuda & Disposal 411

Sale of Temuda Land – Legality 412

Iban Acquiring Rights over Land – Occupation 413

Disposal of Titled Land Belonging to a Dayak 413

Customary Tenure -Transfer of Individual Rights 415

Transfer of Iban Customary Rights over Land 416

Transfer of Native Customary Land to Non-Native 418

Transfer of Native Customary Rights by way of Instruments 419

Transfer of Native Customary Rights over Lun Bawang Land 421

Farming and Cultivation Rights - Recognition of 423

Iban Fruit Trees Rights 423

Iban Customary Rights - Farming Land Rights & Abandonment 424

CAVES 424

PW 7 429

PW 8 430

PW10 430

Native Customary Rights Over Caves and Edible Bird’s Nests 430

‘Rights to Birds’ Nests is the Right to Harvest Birds’ Nests conferred on Owners of Caves who have

Customary Rights’ 432

Native Customary Rights Over Caves and Edible Bird’s Nests - Uncodified 432

Regulations and Orders 432

Establishing Rights over Caves 433

Native Customary Rights Over Caves and Edible Bird’s Nests - Extinguishment 433

Ownership of Caves 435

Application for Licence to Collect Bird’s Nest 435

Licence to Collect Edible Birds’ Nests 436

Ownership of Caves and Locus Standi to Bring Action 438

Native Fishing Rights – Legislation 439

Native Hunting Rights 440

Native Right to Fell Timber - Land Orders 441

Native Rights over Jungle Produce – Land Orders 442

IBAN CUSTOMARY RIGHTS & INHERITANCE 443

Land and Descendants 444

Dayaks – Rights of Disposition of Property - Dayak Custom of Inheritance 444

Dayaks – Rights of Disposition of Property – Tusun Tunggu 445

Inheritance – Penghulu’s Power 446

Dayaks – Rights of Disposition of Property – Untitled Property 447

Dayaks – Rights of Disposition of Property - Real Property held under Title 448

‘Bilek’ and Inheritance - Concept of Bilek Property in Iban Customary Law 449

Second Marriage & Intestacy 453

Adopted Child - Inheritance 454

Punas 454

Punas - ‘Barang Lama’- ‘Barang Bahru’ 455

‘Barang Bahru 457

Expert Evidence - Distribution of Estate of Iban dying intestate - Punas Inheritance - Distribution of

‘Barang Lama’ and ‘Barang Bahru’ 460

‘Perantu’ 461

Disposition of Property – ‘Lanting’ 461

Inheritance - ‘Menyadi Ambu’ 463

Pesaka Land 463

Land Code – Protection of ‘Pesaka’ Land 464

Utai Pesaka 465

Temuda – Inheritance 466

Caves – Native Customary Rights over Bird’s Nest Caves – Inheritance of Caves 466

Land Tenure Customs of the Kelabit and the Penan 470

Communal Ownership and Communal Lands and Activities 471

Individual Rights to Land and Resources 472

Penan Land Tenure Customs 474

Centrality of Forest 474

Community boundaries 475

Management of and Claims to Resources 475

Native Customary Rights – Penans 476

Lum Bawang Native Rights over Land - ‘Gawal’ and ‘Nuduk’ 476

MALAY CUSTOMARY RIGHTS 477

Customs and Practices of the Malays - The Transfer Agreement of 1841 477

Creation of Malay Native Customary Rights over Land 477

Malay Native Customary Practices 479

Acquisition of Native Customary Rights over Land – Malay Customary Rights - Surat Perjanjian

Menyerah Tanah Temuda 480

Acquisition of Malay Native Customary Rights – ‘Serah’ 482

Constitutional Protection of Rights of Disposition of Malays in Sarawak 486

PROOF OF NATIVE CUSTOMARY RIGHTS 487

Introduction 487

Native Customary Land – Creation – Meaning of 487

Common Law Recognition of Native Customary Rights 488

Common Law Recognition of Native Customary Rights - Malaysia 488

Recognition of Native Customary Rights 489

Custom – Abolishment and Extinguishment by Act of Parliament 489

Proof of Existence of Customary Rights over Land or Proof of Creation of Customary Rights over Land

489

Native Customary Rights over Land in Sarawak – Proof of 490

Recognition of Native Customary Rights - Land Code (Cap 81) 490

(1) Living Witnesses 491

Existence of Customs & Usage –Proof of - Testimony of Witnesses 492

(2) Opinion Evidence 492

Evidence of Native Customs – Opinion Evidence 492

Evidence of Native Customary Rights – Relevancy of Hearsay & Opinion Evidence 493

Claims & Evidence 494

Native Customary Rights – Discharge of Burden of Proof 494

Failure to Discharge Burden 494

Evidence – Equal Probabilities 495

Determination of Acquisition of Native Customary Rights – Summary Procedure – Order 14A

Application 495

Judicial Notice - Dealings with Tuai Rumah 496

Oral Histories of Practices, Customs & Traditions of Aboriginal Societies 497

Aboriginal Claims -Evidence – Special Nature of Proving Native Customary Rights 503

Evidentiary Difficulties in Adjudicating Aboriginal Claims – Appropriate Approach 503

Unique Nature of Proving Native Customs - Absence of Formal Record of Native Customary Practice -

Absence of Written Records 505

Special Approach – Appellate Intervention 506

Inheritance of Native Land – Special Evidential Rules 506

The Call to Amend the Evidence Act 1950 506

WITNESSES 510

Witness – Surveyor 513

Evidence – Cross-Examination - Unchallenged Testimony 514

Impeachment of Witnesses Testimony 515

Expert Evidence 515

Expert Evidence – Location of Bird’s Nest Caves 516

DOCUMENTARY EVIDENCE 519

MAPS 519

Proof of NCR over Land - Maps – Accuracy of 519

Maps – Accuracy of Maps - Competency of Mapper 520

Maps – Rule against Hearsay 521

Community Mapping 521

Aerial Photographs – Evidence of – Proof of Existence of NCR over Land 525

Aerial Photographs – ‘Document’ – Meaning of 525

Documentary Evidence – Maps – Aerial Photographs – Rule against Hearsay 526

Reliance on Aerial Photographs 526

Admissibility of Aerial Photographs – Delay or Authenticity 526

NCR created by Pemakai Menua – Inadequacy of Aerial Photographs 527

Veracity of Evidence of Aerial Photographs 528

Creation of NCR Land – Evidence of Cultivation – Evidence of Land Clearance - Aerial Photographs

529

Mutual Discovery of Relevant Documents 530

Photographs as Exhibits – Evidence of – Compliance with O 41 r 11of the Rules of High Court 1980

531

Documentary Evidence - Exhibits- Hearsay Evidence 532

Extrinsic Evidence 532

Production of Documents 533

Boundaries 533

Dispute over Native Customary Land – Evidence of Boundaries of NCR Land 533

Proof of Acquisition Native Customary Rights – Documents Issued by Statutory Bodies 534

Proof of Acquisition of Native Customary Rights – Evidence of Age of Trees 535

Existence of Village – Proof of - Validation by Defendant 535

OCCUPATION 536

Creation of NCR - ‘Occupation’ – Meaning of 536

Native Customary Rights – ‘Occupation’ 537

‘Occupation’ - ‘Control’- ‘Continuous Occupation’ 539

Occupation – Control 540

Occupation - ‘Jerame'- Creation of NCR 542

RIVER BANK RESERVE 543

Creation of NCR over Land - River Bank Reserve – Whether Land within River Bank Reserve 543

Whether Land within River Bank Reserve - Period of Time when Determination is to be Made 545

Burden of Proof that Lands were within River Bank Reserve 546

Whether Land was Within River Bank Reserve 547

River Bank – Bank – Meaning of 549

Determination of River Boundary – Land Survey - Photogrammetric Mapping - Mean High Water

Mark – Tidal Data 549

EXTINGUISHMENT OF NATIVE CUSTOMARY RIGHTS 551

Introduction 551

Power of State Government to Extinguish Native Customary Rights 552

Extinguishment – Amendments to Land Code (Cap 81) 553

Extinguishment – Interpretation of Statutes 554

Extinguishment – Administrative Action 555

Purpose of Extinguishment – Public Purpose 558

Challenging the Extinguishment of Native Customary Right 559

Extinguishment – Effect of 563

Extinguishment- Effect of 563

Extinguishment - Effect of the 1921 Order 565

Challenge to Extinguishment 569

Extinguishment - Procedural Fairness – Meaning of 569

Challenging the Extinguishment of Native Customary Right – Procedural Fairness – Feasibility

Postulate 571

Extinguishment of Native Customary Rights- Review of Ministerial Decision 572

COMPENSATION 573

Extinguishment of Native Customary Right - Compensation 573

Procedure for Claims of Compensation for Extinguishment 575

Native’s Entitlement to Compensation 575

Extinguishment - Mechanism for Compensation 581

Extinguishment of Natives Customary Rights - Adequate Compensation 585

Extinguishment of Native Customary Rights – Principle of Compensation – Potentiality 587

Extinguishment of Native Communal Reserve - Compensation – Validity of Claim –Non-native Joint

Venture Company 590

Effect of Illegal Joint Venture Agreement – Extinguishment of Native Communal Reserve - Recovery

of Damages and Compensation 593

Extinguishment – Compensation - Aggravated and Exemplary Damages 595

Extinguishment of Native Communal Reserve – Replacement Land - Compensation 596

Extinguishing Native Customary Rights - New Concept of Development on Native Customary Rights

(NCR) Land’ 598

Extinguishment of Native Title - Alienation to Third Party 598

CHAPTER 6

CAVEATS 599

Introduction 599

Caveat – Meaning of 599

Caveats 600

Classes of Caveat 601

Caveats by Private Persons 601

Private Caveats 601

System of Private Caveats – Purpose 602

Nature of a Caveat 603

Sarawak – Divisibility of Caveats 604

Effect of Caveat 605

Interests to be protected by Caveat 606

LODGMENT OF CAVEAT 607

Second Caveats 611

Caveating a Part of the Land 612

Lodging a Caveat – Section 173(a) – ‘Unregistered Agreement’ - Interpretation of 612

Lodging a Caveat – Section 173(a) – ‘Other Instrument’- Interpretation of 613

‘Interest’ – Meaning of - National Land Code 615

‘Entitled To’ and ‘Beneficially Interested’ – Paragraph (a) of Section 173 of the Land Code -

Interpretation of 615

Lodging a Caveat – Requirements of Section 174(1) of the Land Code (Cap 81) 618

Lodgement of Caveat – Particulars to be Stated 619

Caveating Own Land 620

Registered Proprietor – Caveating Own Land 620

Person ‘Claiming to be entitled to’ Land – Interpretation of 621

Application for Lodgement of Caveat – Duty of Registrar 624

Entry of Private or Lien-Holder's Caveat 626

Notice of Lodgement by Registrar 626

Effect of Lodgment 627

The Effect of a Private Caveat 627

Registrar’s Refusal to Lodge Caveat – Land Code (Cap 81) 628

Appeal against Decision of Registrar – NLC 629

Time of Entry of Caveat 630

Delay in Lodgment of Caveat 631

Withdrawal of Caveat 631

Lapse of Caveat 632

Procedure for Removal after Lapse 633

CAVEATABLE INTEREST 637

'Any Right to Such Title or Interest' - Caveatable Interest – Interpretation of Section 323 of the NLC

640

Caveatable Interest – Beneficial Interest – Claim for Specific Performance 641

Caveatable Interest – Whether a ‘Serious Issue to be Tried’ amounts to Caveatable Interest 644

Caveats – Registrable Interest – Trustee and Beneficiary Trust Property 644

Matrimonial Property - Caveatable Interest 652

REGISTRAR’S CAVEAT 656

Trusts & Caveats 657

Entry of Registrar's Caveat 659

Nature of Registrar's Caveat 659

Registrar's Caveats - Registrar's Functions 661

Registrar's Exercise of Discretion 661

Registrar’s Caveat – Prevention of Fraud or Improper Dealing 661

Interests of the Government 663

‘Interests’ – Meaning of 663

Registrar’s Refusal to Enter a Registrar's Caveat – Remedy -NLC 666

Registrar’s Refusal to Cancel Caveat – Appeal 667

REMOVAL OF CAVEAT 668

Private Caveat –Application for Removal - Principles Applicable 668

Application for Removal of Caveat - Preservation of Caveat 671

Removal of a Private Caveat – NLC 671

Aggrieved Person – NLC 672

Removal of Caveat – Onus on Caveator 673

Removal of Caveat – Onus on Caveator – Land Code (Cap 81) 674

Application for Extension or Removal of a Caveat – Approach 674

Procedure for Removal of Caveat 675

Removal of Caveat - Failure to establish Caveatable Interest 679

Balance of Purchase Price 680

Removal of Caveat – ‘Frivolous and Vexatious’ 680

Removal of Caveat – ‘Aggrieved Person’ 680

Application for Removal of Caveats - Onus upon Caveator 682

Application for Removal of Caveat - Duty of Court 683

Removal of Caveat - Exercise of Judge’s Discretion 683

Standard of Proof – Application to Remove Caveat 684

Removal of Caveat – Locus Standi 685

Endorsement of Power of Attorney on Document of Title – Removal of Caveat 687

Defective or Invalid caveat – Power of Court to Amend 696

CHAPTER 7

RESUMPTION 697

Introduction 697

Resumption of Alienated Land 697

Resumption– Provisions of the Land Code (Sarawak) (Cap 81) 697

Resumption of Land – Provisions of the Land Code (Cap 81) - Amendments 698

Surrender of Alienated Land 699

Surrender of Land – Surrender subject to Approval of Superintendent 699

Surrender & Re-Alienation 699

Purposes of Resumption 700

Power to Enter and Survey 701

Resumption - Power to Enter and Survey - Interpretation of Section 47 of the Land Code (Sarawak)

(Cap 81) 702

Declaration by Minister that Land is required for a Public Purpose 703

Notices and Claims 704

Power to Require Further Information and Particulars 705

Proceedings and Award by the Superintendent 705

The Award 706

Taking Possession of the Land 707

Entries to be made to the Register 707

Resumption of Non-Titled Land 707

Adjustment of Compensation after Final Survey 708

Reference to Court 708

Superintendent’s Statement to the Court 710

Duty of the Court 710

Matters to be considered in Determining Compensation 711

Matters to be Disregarded in determining Compensation 712

Rules as to the Amount of Compensation 714

Assessor’s Fees 714

Award 715

Costs 715

Appeal to the Court of Appeal 716

Payment of Interest on Excess Compensation 716

Payment of Compensation 716

Alternative Arrangement in Lieu of Compensation 717

Payment of Interest if Compensation is not Paid 717

Temporary Occupation of Waste or Arable Land 717

Service of Notice 718

Wilful Obstruction or Opposition 719

Liberty to Withdraw from Resumption 719

Setting Aside Award 720

Extinction of Native Customary Rights 720

VALUATION 721

Valuation - Reference to Cases decided under the Land Acquisition Act 1960 of West Malaysia 721

Land Valuation – Principles 722

Valuation of Acquired Land – Recognised Methods of Valuation 725

Comparison Method – Comparable Sales – Comparable Awards 726

Valuation - Comparative Sales Method 728

Valuation – Previous Acquisition Awards 729

Factors to be considered in Valuation 730

Valuation – Diminution in Value – Severance & Injurious Affection 731

Market Value 732

Relevant Date to Determine Market Value 735

Award Contrary to Section 60(1) (a) of the Code – Effect of 738

Valuation - Appreciation & Impression - Element of Local Knowledge 740

Valuation – Land & Potentialities 742

DELAY 744

Resumption – Delay in Making Award 744

Several Declarations under Section 48 – Delay – Whether Serious Injustice Caused 746

Adjustments 750

Land Acquisition - Quantum of Compensation – Dispute – Land Reference 750

Award – Appeal – Proper Procedure 751

CHAPTER 8

SETTLEMENT 753

Introduction 753

Procedure relating to Settlement of Land under the Land Code 753

Powers of the Settlement Officer 756

Settlement Notification 756

Settlement Officer – Duties of Inquiry 758

Settlement Notification – Exercise of Discretion of Director 759

Settlement Notification - Publication of a Settlement Notification 760

Notice by Settlement Officer - Preliminary Notice of Intended Survey 763

Issuance of Settlement Order – Function of Settlement Officer 764

Settlement – Competing Claims 765

Settlement of Alienated Land 766

Document of Title – Replacement Document of Title 768

Settlement of State land 768

Exclusion of Native Communal Reserves 769

Government Rights to Unclaimed land 770

Appeal against Decision of Settlement Officer 770

Limitation and Adverse Possession – Appeal under Section 102 of the Land Code (Sarawak) (Cap 81)

772

Arbitration 773

Settlement Operation 773

Types of Titles issued following Settlement Operation 774

Pending Settlement - Restrictions of Dealings Pending Settlement 774

Compensation - Barred Claims 774

SURVEY 775

Right of Entry and to Information 775

Powers of Surveyor and Settlement Officer 776

Notice of Intention to Survey 777

Compliance with Land and Survey Department's requirements 777

Compliance with requisition by the Director or any officer authorized by him 777

Securing Attendance 778

Clearing Boundary Lines 778

Compensation for Injury done by Clearance 779

Setting out the Boundary Mark 779

Survey and Boundary Marks 779

Re-Erect and Repair Boundary Marks 780

Removal or Interference with Survey and Boundary Marks 780

Chapter 9

ACTIONS FOR RECOVERY OF LAND AND RIGHTS OVER LAND 781

Introduction 781

Representative Proceedings 781

Limitation 782

Application for Possession of Land 782

Conflict of Affidavit Evidence – Approach of Courts 783

Litigation - Tuai Rumah - Communal Rights 784

Defence of ‘Confession and Avoidance’ 784

Rights to Property – Declaratory Relief 784

Declaration - Public Body – Fiduciary Position 785

Declaration & Certiorari 785

Native Customary Rights over Land – Proprietary Rights – Public Law 787

Native Customary Rights – Claims – Pleadings 787

Deprivation of Customary Rights in Land – Remedies 787

Native Customary Rights – Assertion of 789

Assertion of Exercise of Customary Rights Over Land 789

Denial of Native Customary Rights 790

Title – Issuance of Title – Grievance – Proper Course of Action 791

Encroachment into Native Customary Land - Proper Course of Action 791

Infringement of Native Customary Rights over Land - Judicial Review 792

Purpose of Order 53 of the Rules of the High Court 1980 793

Judicial Review – Order 53 of the RHC 1980 – Amendments to Order 53 794

Judicial Review - The Rule in O’Reilly v Mackman 795

Exceptions to the Rule in O’Reilly & Ors v Mackman & Ors 795

Judicial Review – Abuse of Process 800

NATIVE COURTS 803

Native Courts 803

Native Courts – Appeals 804

Resident's Native Court 804

Jurisdiction of High Court over Native Courts 804

Native Customary Rights – Ownership of Land - Decision of Native Court 806

Jurisdiction of High Court – Declaratory Relief as to Native Customary Rights 807

Arbitration 807

Land Dispute – Arbitrators 809

TRESPASS 809

Trespass & Injunction 809

Trespassing - Dayak Cemeteries and Burial Grounds 809

Trespass – Limitation 812

Trespass over Native Land – Claim for Damages 812

Trespass over Native Land – Counterclaim for Damages 813

INJUNCTIONS 815

Application for Interlocutory Injunction 815

Application for Interlocutory Injunction – The Applicable Law 816

Technical Grounds against Grant of Interlocutory Injunction 817

Trespass over Native Land – Mandatory Injunction 820

Technical Objection – Seeking Declarations - Section 41 of the Specific Relief Act 1950 821

Blockade by Natives Application for Interlocutory Injunction – Merits of Application 821

Application for Interlocutory Injunction – Serious Questions to be Tried 822

Application for Interlocutory Injunction – Justice of the Case 825

Erinford Injunction 830

Interim Injunctions – Appeals 831

Permanent Injunctions against Government, Government Departments and Government Servants

832

Action for Recovery of Land against Sarawak State Government – Liability of State Government 834

Damages - Liability of Sarawak State Government 836

COMPENSATION FOR LOSS 839

Compensation 839

Notice of action 840

Recovery of compensation 841

Government not Liable in Certain Cases 841

Measure of Damages 842

LAND CODE Chapter 81 (1958 Edition) List of Amendments as From 1st January 1973 843

Explanatory Notes for Prescribed Forms 845

Subject Index 851