DIRECTOR’S DECISION TO DENY VILLAGERS OF NCR OVER LAND QUASHED

Director’s decision to deny villagers of NCR over land quashed

KOTA KINABALU August 27, 2011: The High Court here yesterday quashed the decision of the Land and Survey Department to deny a group of people of their Native Customary Rights (NCR) over a land in Kampung Lakang, Paitan, Beluran.

Judge Datuk Abdul Rahman Sebli yesterday allowed an application for judicial review by Jastin Sansalu, Asyu Na’ang, Sanyuah Na’ang, Nawas Induk, Induk Mayabing, Rasiduh Rasmin, Rasuni Na’ang, Paulus Iduk and Naang Samintar against the director of the department and one Chua Hee Hung who were the first and second respondents respectively.

In his ruling after hearing arguments from both parties, Abdul Rahman granted an order sought by the nine applicants to quash the decision of the first respondent dated April 8, 2011 which set aside the decision of Assistant Collector of Land Revenue (ACLR) dated July 19, 2010, in ruling that the applicants have the NCR over the land

He also granted a declaration that the entire proceedings in Director Land Enquiry and the decisions made by the director were wrong in law and hence null and void.

Apart from that, the court also granted an order of Mandamus to order the first respondent to hear and deliver his decision on the appeals of the second respondent dated August 18, 2010 against the ACLR’s decision in land inquires and an Order of Prohibition prohibiting the first respondent whether by himself or persons authorized by him from processing, issuing and/or registering the land title to the second respondent’s land application at Kampung Lakang, Paitan until the final disposal of the said appeals.

The other reliefs granted by the court were an order to quash the director’s decision to issue and/or register the land title in Chua’s land application and an order to restrain Chua whether by himself, his servants, agents, appointees and/or independent contractors from entering or trespassing or carrying out any site clearing and planting activities in the land in dispute pending the disposal of his appeals.

In their affidavit, the applicants claimed that they and their forefathers have been in possession, occupation and cultivation of the respective parcel of land at Kampung Paitan for at least six generations since before the colonial government of North Borneo.

They claimed the first respondent’s decision to issue to the second respondent the Letter of Offer to Alienate Land for a piece of land measuring 500 acres at Kampung Lakang had encroached the customary land of the native community of the village, including the respective land of the applicants.

They also claimed that the second respondent had commenced site clearing and planting activities on the land in dispute even before the director approved and issued the letter of offer to alienate land on December 2, 2010.

The applicants also claimed that while the appeals of the second respondent were pending and before the director decided to conduct Director Land Enquiry, the director had wrongfully approved and issued the letter of offer to the second respondent.

The first respondent, they claimed, had acted wrongfully and in breach of his duty to issue the offer to alienate land to the second respondent when both respondents had actual knowledge of the disputes and objections of the native community at Kampung Lakang to the land trespassed by the second respondent since 2008.

Furthermore, they claimed, there was no ground to support the decision of the director in Director Land Enquiry in setting aside the decision of the ACLR.

Consequently, they said the director had acted arbitrarily and capriciously and/or in bad faith to invoke Section 42 of the Land Ordinance in holding the Director Land Enquiry in the absence of any exceptional circumstances or miscarriage of justice or any other justifiable ground for revision.

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