Edham Bin Sakmad v Kinsamewa Sdn Bhd & Ors

Appellant(s): Edham Bin Sakmad

Respondent(s):

• Kinsamewa Sdn Bhd
• Director Of Lands & Surveys, Sabah
• Assistant Collector Of Land Revenues , Kota Belud

• YAA Datuk Seri Panglima Wan Ahmad Farid Bin Wan Salleh
• YA Datuk Supang Lian
• YA Datuk Seri Mohd Firuz Bin Jaffril

• The deceased occupied and fenced 150 acres of state land for cattle farming from 1958 until his death in 1993, having applied for a formal lease that was surveyed by the authorities but never issued during his lifetime.
• The first respondent subsequently applied for land overlapping the deceased's occupation, leading the second respondent to issue an offer of alienation to the first respondent despite the long-standing occupation and pending application by the deceased's estate.
• The third respondent initially found the estate entitled to the land under native customary rights (NCR), but this was reversed by the second respondent and the High Court on the basis that the rights were extinguished through abandonment and a lack of continuous occupation by the administrator.

• Whether "customary tenure" under Section 65 of the Land Ordinance (Cap 68) requires continuous occupation or cultivation to maintain its validity after the initial three-year establishment period has been satisfied.
• Whether the failure to file a claim following a notice published under Section 13 of the Ordinance results in the deemed extinguishment of established NCR, particularly where service of the notice did not comply with the modes prescribed in Rule 8 of the Land Rules 1930.
• Whether an appeal to the High Court is rendered incompetent by Section 41(1)(d) of the Ordinance when the second respondent’s decision involves both the dismissal of an NCR claim and a direction to proceed with alienation under Section 9.

• The Court allowed the appeal, ruling that once customary tenure is established via three years of continuous occupation under Section 65, it becomes a permanent, heritable, and indefeasible property right under Section 66 that does not require ongoing physical presence to subsist.
• The Court held that the Section 13 notice was invalid as mere posting on a notice board does not constitute lawful service under Rule 8 of the Land Rules; consequently, the estate could not be deemed to have waived rights of which it was not legally notified.
• The Court determined the appeal was competent, clarifying that the statutory bar in Section 41(1)(d) applies only to pure alienation decisions under Section 9 and does not preclude judicial review of decisions concerning the determination of NCR under Sections 14 and 15.