Edward Gella Baul & Ors v Superintendent of Land and Survey, State Government of Sarawak & Ors

Appellant(s):

• Edward Gella Baul
• Desmond Reynold Jemeni
• Tatol @ Katol Anak Tutom
• LENGKONG ANAK ABA [Suing on behalf of themselves and 20 other Claimants of Native Customary Right Land located in Sungai Geruyu / Sungai Ruyu, a tributary of Sungai Krian, Saratok, Sarawak]

Respondent(s):

• Superintendent Of Land And Survey
• State Government Of Sarawak
• Thp Saribas Sdn. Bhd.
• Garan Anak Chunggut
• Betty Anak Louis
• Unchie Anak Insam
• Ensin Anak Juti
• Georges Anak Garan
• Mulok Anak Seliman
• Barau Anak Lagat
• Xxxx
• Dawong Anak Sidom
• Bandai Anak Rambey
• Majid Anak Salok
• Rambey Anak Ijoie
• Sagi Anak Apau
• Awan Anak Kupat
• Liang Anak Gasah
• Sani @ Sunny Anak Salok
• Imas Anak Blanda
• Sara Anak Salok
• Diana Anak Empeni
• Enteri Anak Ema
• Munji Anak Lamit
• Reymon Majang Anak Pana
• Lamit Anak Tow
• Agness Imbau Anak Lunai
• Jimbau Anak Gasah
• Deget Bin Mantasin
• David Anak Ugat
• Sedin Anak Juan
• Keley Anak Empaga
• Bajing Anak Imbing
• Noel Tom Anak Tutom
• Peter Anak Bajing

• YA Datuk Wong Kian Kheong
• YA Dato' Dr Alwi Bin Abdul Wahab
• YA Datin Paduka Evrol Mariette Peters

• The appellants, suing on behalf of themselves and 20 other native customary rights (NCR) claimants, claimed NCR over 474 hectares of land allegedly created by their ancestors before 1 January 1958, asserting it had been wrongfully included within a provisional lease and later a registered title (Lot 21) held by the third respondent.
• The High Court dismissed the claim, finding the appellants failed to prove their NCR on the balance of probabilities, held that the third respondent's registered title was indefeasible, found the claims for trespass and damages time-barred, and further held that it lacked jurisdiction as the dispute fell within the exclusive first-instance jurisdiction of the Native Court.
• Other native groups who had intervened with competing NCR claims over the same general area had resolved their disputes via Consent Judgments in the Native Court, which the trial judge treated as relevant to the appellants being "disgruntled" litigants, despite the appellants not being parties to those proceedings.

• Whether the High Court erred in declining jurisdiction on the basis that the dispute was essentially one between natives over competing NCR claims that should first be determined by the Native Court under s.5(3)(a) of the Native Courts Ordinance 1992.
• Whether the appellants, who were strangers to the Native Court proceedings, could properly be bound by or treated as "disgruntled" with Consent Judgments entered into by other native groups.
• Whether the trial judge erred in rejecting the appellants' maps and oral evidence, in upholding the indefeasibility of the third respondent's title under s.132 of the Sarawak Land Code, and in finding the claims for trespass and damages time-barred.

• The Court of Appeal held that the High Court erred in declining jurisdiction, as the dispute involved challenges to State-issued titles and a non-native corporate proprietor, relief which the Native Court had no power to grant, and also erred in treating the Consent Judgments (to which the appellants were strangers) as binding or relevant to their claim.
• Despite these errors, the Court found the trial judge was not plainly wrong on the merits: the appellants' maps were rightly rejected as non-compliant with statutory survey requirements, their oral evidence was insufficiently corroborated by objective evidence (including aerial photographs), and they failed to prove NCR existed within Lot 21.
• The Court affirmed that the third respondent's title was indefeasible under s.132 of the Sarawak Land Code (following TH Pelita Sadong v TR Nyutan Anak Jami), that the claims for trespass and damages were time-barred under the Limitation Ordinance, the Sarawak Land Code and the Public Authorities Protection Act 1948, and accordingly dismissed the appeal with costs.