08/07/2011 (Borneo Post) - The High Court here dismissed with costs a suit brought by a group of natives against the state government and four other defendants, seeking RM500 million over the alleged denial to their customary rights to a 5,000-acre land planted with oil palm in Semporna.

Judge Datuk Abdul Rahman Sebli yesterday dismissed the suit brought by Arasad Kibtiani, Abdul Rasul Ibnu Hassan, Ramlee Saraman, Abdul Hamzah Julkayani, Marasal Danial @ Mohd Salleh and Nurillah Imam Lauhari, who also acted for 125 residents.

In his reserved judgement, Rahman held that he agreed with the counsel of the defendants that the court has no original jurisdiction to determine or make an order that the plaintiffs are the native customary rights (NCR) owners of the land in dispute.

Rahman said he was bound by the recent decision of the Court of Appeal in the case of Darinsok Pangiran Apan & Ors v Hap Seng Consolidated Bhd & Ors where it was held that the High Court does not have the original jurisdiction to hear a claim of this nature.

“I do not see how the ratio decidendi in that case has no application to the facts and circumstances of the present case.

“It is clear to me that the Court of Appeal was making a general pronouncement of law applicable in all cases involving claims for native customary rights,” Rahman held.

The plaintiffs, who were represented by counsel Yunof Maringking, filed the suit at the High Court here on Jan 22, 2010, and named Syarikat Kerjasama Perkembangan Tanah Pagagau Berhad, the state government, the director of Lands and Surveys Department, Suruhanjaya Koperasi Malaysia Negeri Sabah and Syarikat P.J Nagus Sdn Bhd as first, second, third, fourth and fifth defendants respectively.

Counsel Rakhbir Singh acted for first defendant, senior state counsel Nor Asiah Mohd Yusof represented the second and third defendants while counsel Ahmad Rahman and Connie Willie for the fourth and fifth defendants respectively.

The RM500 million being sought by the plaintiffs is for general, aggravated and exemplary damages from the defendants for the alleged breach of trust, cheating and fraud and/or humiliation, distress, mental anguish and trauma which the plaintiffs’ families respectively suffered due to inhuman acts accorded to them by the defendants.

The background facts stated that in 1966 Pegagau Anak Negeri Co-operative (PANC) and another applied for state land and their respective applications were approved by the second defendant through a letter dated Jan 19, 1966 for 5,000 acres each either under Country Lease or Native Title Terms.

As PANC was not a registered society, no title deed was issued for the 5,000 acres it had applied but pursuant to the approval, the plaintiffs or their predecessors cultivated the land under native customary right without objection by anyone.

However in 1992, the first defendant applied for the land while the ACLR Semporna did not serve notice as required under Section 13 of the Land Ordinance to the plaintiffs.

Although notice was not served on them, the plaintiffs objected to the said land application.

The ACLR, Semporna informed the second and third defendants that it had received objection from the plaintiffs who requested for the portion of the land they had cultivated to be excluded from the said land application by the first defendant, thus subsequently the third defendant stopped the surveying of the land.

However, in 1994 the first defendant destroyed all the plaintiffs’ crops on the land and thus some of the plaintiffs applied for an injunction but it was dismissed.

They discovered sometime in mid 2009 that the land was alienated to one of the companies and were told that they or their predecessors had no legal right to the land.

Thus, the plaintiffs brought this suit against the defendants, inter alia, for conspiracy to cheat or fraud to deprive the plaintiffs of the said land and seeking a declaration of their rights on the land.

Meanwhile when met outside the court, Yunof said he had received instruction from the plaintiffs to appeal against the decision to the Court of Appeal as well as to request the Semporna Assistant Collector of Land Revenue (ACLR) to determine the native customary right on the land.