Sarawak natives lose bid to reclaim 474ha of ancestral land

PUTRAJAYA: Twenty-four Sarawak natives have failed in their bid to reclaim 474 hectares of ancestral land in Saratok after the Court of Appeal ruled that they had failed to prove their native customary rights (NCR) over the disputed land.

The three-member bench, comprising Justices Datuk Wong Kian Kheong, Datuk Dr Alwi Abdul Wahab and Datin Evrol Mariette Peters, unanimously dismissed the appeal, upholding the High Court's dismissal of the lawsuit.

However, the appellate court found that the High Court had erred in ruling that it lacked jurisdiction to hear the dispute.

In her written grounds of judgment, Peters said the appellants had relied heavily on oral accounts of their ancestors clearing forests, building longhouses and cultivating rice, without sufficient evidence to establish their NCR claims.

"The appellants were required to do more than merely adduce the oral testimonies of several witnesses recounting their version of events.

"They bore the burden of producing cogent physical evidence to corroborate their oral evidence.

"The fatal flaw in the appellants' case was that their witnesses gave vague and generalised accounts of ancestral activities.

"They failed to provide any specific, verifiable details about when, where, and for how long the alleged cultivation and settlement took place on the particular NCR Land they now claim," she said.

Peters said aerial photographs taken before and after 1958 also failed to substantiate claims that the appellants' ancestors had settled on or cultivated the land.

"While we have every sympathy for the appellants' plight, we were constrained to agree entirely with the trial judge's findings on the insufficiency of the oral evidence adduced through the appellants' witnesses," she said.

The suit was filed by Edward Gella Baul, Desmond Reynold Jemeni, Tatol @ Katol Anak Tutom and Lengkong Anak Aba on behalf of themselves and 20 others.

They claimed their ancestors had established NCR over 474 hectares near Sungai Geruyu or Sungai Ruyu, a tributary of Sungai Krian, before Jan 1, 1958.

They alleged that the state government had wrongfully included the land in a larger parcel leased to Kenyalang Resources Sdn Bhd.

The land was later registered under THP Saribas Sdn Bhd, which became the owner of a 1,039-hectare parcel known as Lot 21 in 2014.

However, Peters said the appellants had failed to prove that their claimed land fell within Lot 21.

The court also upheld the rejection of their RM51.76 million damages claim, which Peters said had been calculated using total revenue rather than profit, without accounting for production costs.

In a supporting judgment, Wong said Section 5(3)(a) of the Native Courts Ordinance 1992, which requires certain disputes between natives to be heard by the Native Court, did not apply.

He said the dispute also involved THP Saribas, a non-native company, and challenges to state-issued land titles. There was no evidence that the state government had granted the company native status under the state Land Code, he added.