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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