1. Yahya Bin Timbon 2. Mahari Bin Lamat 3. Haslan Bin Abu Bakar Kumpulan Parabena Sdn. Bhd.

1. Yahya Bin Timbon 2. Mahari Bin Lamat 3. Haslan Bin Abu Bakar Kumpulan Parabena Sdn. Bhd.

Appellants failed to prove native customary rights before the statutory cut-off and their evidence was unsatisfactory; additional evidence on appeal was inadmissible; even if occupation were shown, the leases issued are protected by indefeasibility under Section 132 Sarawak Land Code as interpreted by the Federal Court, and the Land Code Amendment was not in force at the relevant time and is not retrospective, therefore the High Court/Judicial Commissioner’s decision in favour of the respondent is affirmed.

Citation
Q-02(A)-537-03/2018 (Mahkamah Rayuan)
Parties
Appellant: Yahya bin Timbon; Appellant: Mahari bin Lamat; Appellant: Haslan bin Abu Bakar; Respondent: Kumpulan Parabena Sdn. Bhd.
Court
A
Jurisdiction
Malaysia
Judgment Date
8 January 2019
Case Number
Q-02(A)-537-03/2018 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal / Hearing and Judgment on Appeal
Outcome
Appeal dismissed; High Court/Judicial Commissioner judgment affirmed
Legal Topics
Indefeasibility of Title, Establishment of NCR, Admissibility of Fresh Evidence on Appeal, Burden of Proof, Retroactivity of Statutes, Stare Decisis
Source Language
Malay/English
Land Law Property Law Native Customary Rights (ncr) Evidence Statutory Interpretation Indefeasibility of Title Establishment of NCR Admissibility of Fresh Evidence on Appeal +3 more

Case Brief

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Parties

Yahya bin Timbon

Appellant

Mahari bin Lamat

Appellant

Haslan bin Abu Bakar

Appellant

Kumpulan Parabena Sdn. Bhd.

Respondent

Procedural Posture

Civil Appeal / Hearing and Judgment on Appeal

Legal Issues

  1. 1 Whether appellants proved native customary rights (NCR) over Lots 187 and 188 before the 1 January 1958 cut-off
  2. 2 Whether the leases issued to respondent are void for failure to extinguish NCR prior to grant
  3. 3 Whether title granted under Section 132 Sarawak Land Code is indefeasible and defeats NCR claims

Ratio Decidendi

Appellants failed to prove native customary rights before the statutory cut-off and their evidence was unsatisfactory; additional evidence on appeal was inadmissible; even if occupation were shown, the leases issued are protected by indefeasibility under Section 132 Sarawak Land Code as interpreted by the Federal Court, and the Land Code Amendment was not in force at the relevant time and is not retrospective, therefore the High Court/Judicial Commissioner’s decision in favour of the respondent is affirmed.

Court Disposition

Appeal dismissed; High Court/Judicial Commissioner judgment affirmed

Orders

  • Appeal dismissed
  • Judgment of the learned Judicial Commissioner in favour of the respondent affirmed