SU’OT TEBARI @ SALI TEBARI [SUING ON BEHALF OF HIMSELF AND 3 OF HIS SIBLINGS] v 1. ) SUPERINTENDENT OF LAND & SURVEY, LIMBANG DIVISION 2. ) STATE GOVERNMENT OF SARAWAK 3. ) LAND CUSTODY & DEVELOPMENT AUTHORITY

Case Significance

Illustrates the evidential burden on a native claimant to prove native customary rights and the principle that, for alienated land, indefeasibility of title prevails over pre-existing NCR — alienation extinguishes the right and bars rectification, leaving only a remedy in damages against the Government.

This Court of Appeal decision, in appeals from the High Court in Sabah and Sarawak at Limbang, concerns a claim to native customary rights (NCR) over land. Three appeals were heard together. The plaintiff, a native suing on behalf of himself and three of his siblings, had claimed NCR over four plots of land in the Trusan Land District of the Limbang Division, one of which had been alienated to the Land Custody and Development Authority under a lease. The first and second defendants were the Superintendent of Land and Survey, Limbang Division and the State Government of Sarawak (together, the Government), and the third defendant was the Land Custody and Development Authority. This appeal was the plaintiff's own appeal against the High Court's decision.

The central issues were whether the plaintiff had proved his NCR over the disputed lands, whether the map he relied on should be given weight, and whether alienation of land extinguishes NCR and bars rectification of the register. The Court of Appeal examined the evidence relied on to establish the customary rights, including the mapping of the claimed plots, and considered the authorities on proof of NCR.

The court concluded that the plaintiff had failed to establish native customary rights over the disputed lands. It also held, following the line of Federal Court authority, that in respect of alienated land the indefeasibility of title prevails over any pre-existing NCR, so that alienation extinguishes NCR and a native who has proved NCR over alienated land cannot obtain rectification of the register, the only remedy being damages against the Government. For the primary reason that NCR had not been established, the court dismissed the plaintiff's appeal with no order as to costs. The judgment illustrates the evidential burden on a native claimant to prove NCR and the effect of alienation on such rights.