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

Case Significance

Illustrates a successful appeal by the State authorities against a native customary rights claim, confirming that NCR must be proved on the evidence and that, for alienated land, indefeasibility of title prevails over pre-existing NCR, which is thereby extinguished.

This Court of Appeal decision concerns one of three appeals heard together, arising from a native customary rights (NCR) claim in the High Court in Sabah and Sarawak at Limbang. The claim had been brought by a native, suing on behalf of himself and three siblings, asserting NCR over four plots of land in the Trusan Land District of the Limbang Division, one plot having been alienated to the Land Custody and Development Authority under a lease. In this appeal the appellants were the Superintendent of Land and Survey, Limbang Division and the State Government of Sarawak — referred to together as the Government — appealing against the High Court's decision, with the native claimant as respondent.

The issues across the appeals were whether NCR had been proved by the claimant, whether the map he relied on should be given weight, whether inadequate reasons by the High Court warranted appellate interference, and whether alienation of land extinguishes NCR and bars rectification of title. The Court of Appeal reviewed the evidence said to establish the customary rights over the four plots, the weight to be given to the claimant's map, and the applicable authorities on the proof of native customary rights and the effect of alienation.

The court concluded that the claimant had failed to establish native customary rights over the disputed lands. It also held, following the Federal Court authorities, that in respect of alienated land indefeasibility of title prevails over any pre-existing NCR, so that alienation extinguishes NCR and precludes rectification of the register, the only remedy being damages against the Government. Having found in the Government's favour on these issues, the court allowed the Government's appeal with costs of RM30,000 here and below. The judgment illustrates the Government's successful resistance to an NCR claim where the customary rights were not proved and the relevant land had in part been alienated.