22-13-2005 (BTU) Racha ak. Senen & 5 others vs.

Sykt Sebangun S/B & 2 others

1 MALAYSIA

2 IN THE HIGH COURT IN SABAH & SARAWAK AT BINTULU

3 [CIVIL SUIT NO. 22-13-2005 (BTU)]

4 BETWEEN

5 RACHA AK. SENEN & 5 OTHERS ... PLAINTIFFS

6 AND

7 SYARIKAT SEBANGUN SDN. BHD. 1ST DEFENDANT

8 SUPERINTENDENT OF LANDS & SURVEYS 2ND DEFENDANT

9 GOVERNMENT OF SARAWAK 3RD DEFENDANT

10

11 BEFORE THE HONOURABLE JUDICIAL COMMISSIONER, MR. JOHN

12 KO WAI SENG

13 Via Video-Conferencing

14

15 RULING

16 Court: The 2nd and 3rd Defendants had filed an application under

17 Order 33 rules 3 and 5 to have 2 preliminary issues of law to

18 be tried before the trial. A Mining licence had been issued to

19 the 1st Defendant by the 2nd and 3rd Defendants which is

20 challenged by the Plaintiffs by reason that it affected their

21 exercise of their native customary rights. The 2 issues of law

22 being raised for consideration under Order 33 rules 3, is it

23 proper for the Plaintiffs to challenge this and whether

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 22-13-2005 (BTU) Racha ak. Senen & 5 others vs. Sykt Sebangun S/B & 2 others

24 Plaintiffs claimed is barred by the Public Authorities

25 Protection Act 1948.

26

27 Upon reading:

28 Enclosure 210 Summons In Chambers by 2nd & 3rd

29 defendants.

30 Enclosure 211 Affidavit in support by Awang Baki bin

31 Awang Bakeri affirmed on 3.12.2010.

32 Enclosure 215 Affidavit in opposition of Racha ak. Senen

33 affirmed on 7.12.2010

34 Enclosure 217 Affidavit in reply of Awang Baki bin Awang

35 Bakeri affirmed on 23.12.2010.

36 Enclosure 220 Affidavit in reply II affirmed by Yap khan

37 Kee affirmed on 4.3.2011

38 Enclosure 221- Notice of intention to use affidavit for 2nd and

39 3rd Defendants.

40 Bundles

41 Enclosure 222 Submission of 2nd & 3rd Defendants.

42 Enclosure 223- 2nd and 3rd Defendants Bundle of

43 Authorities.

44 Enclosure 224- 2nd and 3rd Defendants Supplementary

45 Bundle of Authorities.

46 Enclosure 225- Plaintiffs submissions

47 Enclosure 226- Plaintiffs Bundle of Authorities.

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 22-13-2005 (BTU) Racha ak. Senen & 5 others vs. Sykt Sebangun S/B & 2 others

48 and hearing submissions of learned counsel for the 2nd and

49 3rd Defendants and the Plaintiffs, I will dismiss this

50 application on the following grounds:

51

52 1. Triable issues of facts.

53 Learned counsel for the Plaintiffs has raised issues that

54 there are triable issues of facts on the establishment of NCR

55 against a mining licence which requires a trial to ascertain

56 the validity of their claim. In Ramsay Noel Jitam and anor v

57 Khidmatt Mantap Sdn. Bhd. and 2 Ors. Suit No: 22-141-

58 2010-III of the High Court in Sabah and Sarawak at Kuching

59 (unreported) in dismissing an attempt to use O14A and O18

60 rule 19 RHC 1980 based on the issue of title to the 1st

61 Defendant to strike out the Plaintiffs case, Linton J. had re-

62 emphasized that:

63 .. the Crowns right or interest to land is subject to any

64 native rights over such land, it is inconceivable that the

65 1st Defendants right is not also subject to the Plaintiffs

66 native customary rights.

67 Similarly the issue that arises here to be decided is whether

68 a mining licence under the Mining Ordinance (Swak Cap 83)

69 can be equated to the issue of a land title under the Land

70 Code (Swak Cap 81) by the 2nd and 3rd Defendants as to

71 permit it to override or disturb the native customary rights of

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 22-13-2005 (BTU) Racha ak. Senen & 5 others vs. Sykt Sebangun S/B & 2 others

72 the Plaintiffs if it can be established only on payment of

73 compensation.

74 2. Part-heard

75 It appears to the Court that hearing of this case has

76 commenced and that the Plaintiffs first witness who is the 1st

77 Plaintiff has concluded giving his evidence. There is no point

78 for the Court to proceed under Order 33 and would prefer

79 under these circumstances to continue and conclude this

80 part heard case. Further, no reason was also given to justify

81 the delay in resorting to Order 33 before the trial

82 commenced by the 2 nd and 3rd Defendants.

83 3. Limitation/Protection

84 There is now a Court Of Appeal decision which had ruled

85 that limitation may not apply to a claim to establish native

86 customary rights and this issue of law relied on by the 2nd

87 and 3rd Defendant under Order 33 has still to be confirmed

88 as it has gone on appeal. Similarly in respect of this case

89 whether the Public Authorities Protection Act 1948 will bar

90 the Plaintiffs claim in view of the Court of Appeal decision on

91 limitation is an issue that would be better dealt with at a trial

92 rather than by the summary manner as canvassed by

93 learned counsel for the 2nd and 3rd Defendants.

94 4. Res Judicata

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 22-13-2005 (BTU) Racha ak. Senen & 5 others vs. Sykt Sebangun S/B & 2 others

95 Lastly, the Plaintiffs also raise the issue of res judicata by

96 reason of the allowing of the joining of the 2nd and 3rd

97 Defendants on the application by the Plaintiffs (Enclosure

98 85) which the 2nd and 3rd Defendant had not appealed. This

99 is in respect of their objection in that application of the

100 suitability of using a writ action to challenge the authorities

101 action and the applicability of limitation to bar the Plaintiffs

102 claim. (On res judicata see Wong Sai Tack v Chien Hon

103 Keong (2000) 5 MLJ 74 and Farlim Properties Sdn Bhd v

104 Goh Keat Poh & Ors And Other Appeals (2003) 4 MLJ 654.)

105

106 However since the 2 nd and 3rd Defendants are not applying to

107 strike out the Plaintiffs case under Order 18 rule 19 RHC

108 1980, by resorting to Order 33 they are in fact admitting that

109 res judicata applies by their acceptance that these two issues

110 are triable issues and want them summarily decided by this

111 application.

112

113 Conclusion

114 The 2nd and 3rd Defendants application (Enclosure 210) is

115 dismissed with costs to the Plaintiffs.

116

117

118

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 22-13-2005 (BTU) Racha ak. Senen & 5 others vs. Sykt Sebangun S/B & 2 others

119 Dated this 23rd day of March, 2011

120

121 -SGD.-

122 (JOHN KO WAI SENG)

123 Judicial Commissioner

124 High Court,

125 Bintulu

126

127 For the Plaintiffs: Mr. Paul Raja

128 of Messrs Sagau, Raja & Co.

129 Bintulu

130 For 2nd & 3rd Miss Yap Khan Kee

131 Defendants: State Legal Officer

132 Kuching