GUNAK TURIPON vs MAHKAMAH ANAK NEGERI KOTA BELUD & LAIMIN LAHANAN (MJLR 2009b1) Clement Skinner,4/12/2009,SS
-1- [CSK.21-08-2009-II]
5 MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK
AT KOTA KINABALU
CIVIL SUIT NO. K21-08 OF 2009-II
BETWEEN
10 GUNAK TURIPON … PLAINTIFF
AND
MAHKAMAH ANAK NEGERI KOTA BELUD … 1st DEFENDANT
LAIMIN LAHANAN … 2nd DEFENDANT
15 BEFORE THE HONOURABLE JUSTICE
DATUK CLEMENT SKINNER IN CHAMBERS
GROUNDS OF DECISION
20 I had earlier allowed with costs the Mahkamah Anak Negeri
Kota Belud’s (‘the defendant’s’) application to strike out the plaintiff’s
suit against it under Ord. 18, r. 19 (1)(d) and Ord. 92, r. 4 Rules of the
High Court 1980 (‘the RHC’). These are my reasons for doing so.
I struck out the plaintiff’s suit against the 1st 25 defendant as it
constituted an abuse of the process of the Court for the following
reasons:
-2- [CSK.21-08-2009-II]
5 (1) The plaintiff is a farmer and in alleged occupation of some
2 acres of land at Kg. Bambangan Rosok, Kota Belud,
Sabah (‘the disputed land’);
(2) The plaintiff came to be in occupation of the disputed land
because in 1987 he had lent RM1,800.00 to the father of
one Laimin Lahanan (‘the 2nd 10 defendant’). The plaintiff
alleges that in 1988 when the 2nd defendant’s father could
not repay the loan, the 2nd defendant’s father “gave” the
disputed land to the plaintiff. The plaintiff then in 1989
applied to the State Government to be alienated the
15 disputed land as well as a further 2 acres vide Land
Application 89031444;
(3) The plaintiff claims he has occupied the disputed 2 acres
since 1988 and planted it with rice and rubber until one
day in 2006 when the 2nd defendant also claimed to have
20 applied to the State Government for the disputed land;
(4) The dispute between the plaintiff and the 2nd defendant
over the 2 acres of land was referred to the Mahkamah
Anak Negeri Kota Belud (1st defendant) in which the
plaintiff was claimant and the 2nd defendant the
25 respondent;
(5) On 03.08.2007, the case was heard by the Native Court
comprised of Native Chief Jumail Sampoli, Native Chief
Jainorahim Hj. Sogon and Native Chief Shoi B. Jami;
(6) The Native Court apparently divided the disputed land
into two equal portions, but the 2nd 30 defendant has not
allowed the plaintiff onto the disputed land;
-3- [CSK.21-08-2009-II]
5 (7) The plaintiff alleges that at the hearing before the
Native Court, an Assistant Native Chief named Ripin @
Mohd Ariffin Bin Majin gave evidence on behalf of the
2nd defendant. The plaintiff alleges that En. Ripin gave
false/fabricated evidence. The plaintiff also alleges that
10 En. Ripin told two of the plaintiff’s witnesses not to give
evidence at the hearing, and, the plaintiff alleges there
was collusion between the Native Court Kota Belud and
the 2nd defendant in arriving at its decision;
(8) The plaintiff says that as a result of the Native Court’s
15 decision, he has lost half of the disputed land and has
suffered loss as the 2nd defendant has cut down
“hundreds” of his rubber trees on that area given to the 2nd
defendant;
(9) On 20.03.2009, the plaintiff commenced this writ action
against the Mahkamah Anak Negeri Kota Belud as the 1st 20
defendant and the 2nd defendant praying for the following
reliefs:
(a) A declaration that the decision of the 1st defendant
made on 03.08.2007 is illegal and unlawful and has
25 no legal effect;
(b) Damages for cutting down the rubber trees to be
assessed by the Agriculture Department, Kota
Belud;
(c) Damages to be assessed for not being able to plant
30 the disputed land since early 2007;
-4- [CSK.21-08-2009-II]
5 (d) A declaration that the land in dispute legally belongs
to the plaintiff;
(e) An Order that the disputed land be alienated to the
plaintiff in accordance with the Sabah Land
Ordinance;
(f) An injunction to restrain the 2nd 10 defendant by himself
or his agents from entering or doing anything on the
disputed land without the plaintiff’s written
permission;
(10) In my judgment, the plaintiff is plainly dissatisfied and
15 aggrieved with the decision of the Native Court
Kota Belud given on 03.08.2007. As such he should
pursue and exhaust the avenue of appeal provided by the
Native Courts Enactment 1992 instead of coming to the
civil court for relief.
20
This is not a case of a plaintiff who is faced with a choice
of pursuing his remedy in the civil court or the
Native Court has chosen the civil court. Here, the plaintiff
chose to go to the Native Court first. Having done so and
25 being unhappy with what has happened there, he now
comes to the civil court to relitigate the case, without
exhausting the appeal process laid down in the
Native Courts Enactment. Under ss. 17 and 18 of the
Native Courts Enactment 1992, an appeal lies from the
30 Native Court to the District Native Court and thereafter to
the Native Court of Appeal in accordance with the
-5- [CSK.21-08-2009-II]
5 procedures stated in that Enactment. Alternative, in view
of his allegations of fraud and complicity, the plaintiff could
have asked the District Native Court to exercise its
revisionary and supervisory powers over the Native Court
under s. 16 of the Native Courts Enactment to call up and
10 examine the record of the Native Court to satisfy itself of
the correctness, legality or propriety of the Order made by
the Native Court or the regularity of the proceedings of the
Native Court;
(11) The plaintiff complains of collusion and fraud between the
2nd defendant’s witness and the 1st 15 defendant. Whether or
not there is any substance in such allegations are matters
which should rightly be addressed to the District Native
Court and Native Court of Appeal respectively, if
necessary. The plaintiff cannot say that he cannot raise
20 such matters in the Native Court system because clearly
he can do so;
(12) The plaintiff has sought relief in these proceedings as if
he is the owner of the disputed land, when it must be as
obvious to him as it is to this court that he has only
25 applied for the disputed land. It is well settled that under
the provisions of the Sabah Land Ordinance Cap 68 and
Land Rules, an application for land confers no interest in
the applicant for the land applied for. The declarations
the plaintiff seeks regarding ownership and rights to be
30 alienated the disputed land are clearly misconceived. The
Government of Sabah nor the Director of Lands and
-6- [CSK.21-08-2009-II]
5 Surveys (in whom the authority to alienate State land is
conferred under s. 9 of the Land Ordinance) are parties to
this suit.
It was for all the above reasons that I struck out the plaintiff’s
case against the 1st 10 defendant with costs.
15
DATUK CLEMENT SKINNER
Judge
20
Date : 2009
Counsel
25
For Plaintiff : Mr. Saban Sawayan
Messrs. Saban Sawayan & Co.
Advocates and Solicitors
KOTA KINABALU
30 For Defendant : Cik Nor Asiah Mohd. Yusof with
Ms. Adriana Kousai
State Attorney General’s Chambers
KOTA KINABALU
5 MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK
AT KOTA KINABALU
CIVIL SUIT NO. K21-08 OF 2009-II
BETWEEN
10 GUNAK TURIPON … PLAINTIFF
AND
MAHKAMAH ANAK NEGERI KOTA BELUD … 1st DEFENDANT
LAIMIN LAHANAN … 2nd DEFENDANT
15 BEFORE THE HONOURABLE JUSTICE
DATUK CLEMENT SKINNER IN CHAMBERS
GROUNDS OF DECISION
20 I had earlier allowed with costs the Mahkamah Anak Negeri
Kota Belud’s (‘the defendant’s’) application to strike out the plaintiff’s
suit against it under Ord. 18, r. 19 (1)(d) and Ord. 92, r. 4 Rules of the
High Court 1980 (‘the RHC’). These are my reasons for doing so.
I struck out the plaintiff’s suit against the 1st 25 defendant as it
constituted an abuse of the process of the Court for the following
reasons:
-2- [CSK.21-08-2009-II]
5 (1) The plaintiff is a farmer and in alleged occupation of some
2 acres of land at Kg. Bambangan Rosok, Kota Belud,
Sabah (‘the disputed land’);
(2) The plaintiff came to be in occupation of the disputed land
because in 1987 he had lent RM1,800.00 to the father of
one Laimin Lahanan (‘the 2nd 10 defendant’). The plaintiff
alleges that in 1988 when the 2nd defendant’s father could
not repay the loan, the 2nd defendant’s father “gave” the
disputed land to the plaintiff. The plaintiff then in 1989
applied to the State Government to be alienated the
15 disputed land as well as a further 2 acres vide Land
Application 89031444;
(3) The plaintiff claims he has occupied the disputed 2 acres
since 1988 and planted it with rice and rubber until one
day in 2006 when the 2nd defendant also claimed to have
20 applied to the State Government for the disputed land;
(4) The dispute between the plaintiff and the 2nd defendant
over the 2 acres of land was referred to the Mahkamah
Anak Negeri Kota Belud (1st defendant) in which the
plaintiff was claimant and the 2nd defendant the
25 respondent;
(5) On 03.08.2007, the case was heard by the Native Court
comprised of Native Chief Jumail Sampoli, Native Chief
Jainorahim Hj. Sogon and Native Chief Shoi B. Jami;
(6) The Native Court apparently divided the disputed land
into two equal portions, but the 2nd 30 defendant has not
allowed the plaintiff onto the disputed land;
-3- [CSK.21-08-2009-II]
5 (7) The plaintiff alleges that at the hearing before the
Native Court, an Assistant Native Chief named Ripin @
Mohd Ariffin Bin Majin gave evidence on behalf of the
2nd defendant. The plaintiff alleges that En. Ripin gave
false/fabricated evidence. The plaintiff also alleges that
10 En. Ripin told two of the plaintiff’s witnesses not to give
evidence at the hearing, and, the plaintiff alleges there
was collusion between the Native Court Kota Belud and
the 2nd defendant in arriving at its decision;
(8) The plaintiff says that as a result of the Native Court’s
15 decision, he has lost half of the disputed land and has
suffered loss as the 2nd defendant has cut down
“hundreds” of his rubber trees on that area given to the 2nd
defendant;
(9) On 20.03.2009, the plaintiff commenced this writ action
against the Mahkamah Anak Negeri Kota Belud as the 1st 20
defendant and the 2nd defendant praying for the following
reliefs:
(a) A declaration that the decision of the 1st defendant
made on 03.08.2007 is illegal and unlawful and has
25 no legal effect;
(b) Damages for cutting down the rubber trees to be
assessed by the Agriculture Department, Kota
Belud;
(c) Damages to be assessed for not being able to plant
30 the disputed land since early 2007;
-4- [CSK.21-08-2009-II]
5 (d) A declaration that the land in dispute legally belongs
to the plaintiff;
(e) An Order that the disputed land be alienated to the
plaintiff in accordance with the Sabah Land
Ordinance;
(f) An injunction to restrain the 2nd 10 defendant by himself
or his agents from entering or doing anything on the
disputed land without the plaintiff’s written
permission;
(10) In my judgment, the plaintiff is plainly dissatisfied and
15 aggrieved with the decision of the Native Court
Kota Belud given on 03.08.2007. As such he should
pursue and exhaust the avenue of appeal provided by the
Native Courts Enactment 1992 instead of coming to the
civil court for relief.
20
This is not a case of a plaintiff who is faced with a choice
of pursuing his remedy in the civil court or the
Native Court has chosen the civil court. Here, the plaintiff
chose to go to the Native Court first. Having done so and
25 being unhappy with what has happened there, he now
comes to the civil court to relitigate the case, without
exhausting the appeal process laid down in the
Native Courts Enactment. Under ss. 17 and 18 of the
Native Courts Enactment 1992, an appeal lies from the
30 Native Court to the District Native Court and thereafter to
the Native Court of Appeal in accordance with the
-5- [CSK.21-08-2009-II]
5 procedures stated in that Enactment. Alternative, in view
of his allegations of fraud and complicity, the plaintiff could
have asked the District Native Court to exercise its
revisionary and supervisory powers over the Native Court
under s. 16 of the Native Courts Enactment to call up and
10 examine the record of the Native Court to satisfy itself of
the correctness, legality or propriety of the Order made by
the Native Court or the regularity of the proceedings of the
Native Court;
(11) The plaintiff complains of collusion and fraud between the
2nd defendant’s witness and the 1st 15 defendant. Whether or
not there is any substance in such allegations are matters
which should rightly be addressed to the District Native
Court and Native Court of Appeal respectively, if
necessary. The plaintiff cannot say that he cannot raise
20 such matters in the Native Court system because clearly
he can do so;
(12) The plaintiff has sought relief in these proceedings as if
he is the owner of the disputed land, when it must be as
obvious to him as it is to this court that he has only
25 applied for the disputed land. It is well settled that under
the provisions of the Sabah Land Ordinance Cap 68 and
Land Rules, an application for land confers no interest in
the applicant for the land applied for. The declarations
the plaintiff seeks regarding ownership and rights to be
30 alienated the disputed land are clearly misconceived. The
Government of Sabah nor the Director of Lands and
-6- [CSK.21-08-2009-II]
5 Surveys (in whom the authority to alienate State land is
conferred under s. 9 of the Land Ordinance) are parties to
this suit.
It was for all the above reasons that I struck out the plaintiff’s
case against the 1st 10 defendant with costs.
15
DATUK CLEMENT SKINNER
Judge
20
Date : 2009
Counsel
25
For Plaintiff : Mr. Saban Sawayan
Messrs. Saban Sawayan & Co.
Advocates and Solicitors
KOTA KINABALU
30 For Defendant : Cik Nor Asiah Mohd. Yusof with
Ms. Adriana Kousai
State Attorney General’s Chambers
KOTA KINABALU
