Bengoh Writ of Summons - Rengah Sarawak

WRIT OF SUMMONS
M A L A Y S I A
IN THE HIGH COURT IN SABAH AND SARAWAK AT KUCHING
SUIT NO :
Between
1. KAIS ANAK GENYAI (WN KP 310515-13-5013)
2. RIMOK ANAK SIGEI (WN KP 421014-13-5391)
3. JAMONG ANAK RAGUN (WN KP 460828-13-5165)
4. AMPEH ANAK BAUS (WN KP 441028-13-5163)
5. KEREN GENO ANAK SEGUS (WN KP 530309-13-5615)
6. DEROK ANAK BEREG (WN KP 560430-13-5083)
7. AKIAM ANAK BAUS (WN KP 420230-13-5089)
[Suing on behalf of themselves and all other
proprietors, occupiers, holders and claimants of
native customary rights land at Kampung Bengoh,
Jalan Puncak Borneo, Padawan, Sarawak]
c/o Kampung Bengoh, Jalan Puncak Borneo,
Padawan, 93260 Kuching, Sarawak
… Plaintiffs
And
1. NAIM CENDERA LAPAN SDN. BHD. (Reg. No. 516711-V)
9 th Floor, Wisma Naim
2 1/2 Mile Rock Road
93200 Kuching, Sarawak
2. SUPERINTENDENT OF LANDS AND SURVEYS
KUCHING DIVISION
Kuching, Sarawak
3. STATE GOVERNMENT OF SARAWAK … Defendants
Parties
STATEMENT OF CLAIM
1. (a) The Plaintiffs bring this action on their own behalf as well as on
behalf of the residents of Kampung Bengoh, Jalan Puncak Borneo,
Padawan, 93260 Kuching, Sarawak.
5

(b)
The Plaintiffs are Bidayuh by race and are natives of Sarawak.
2. The 1 st Defendant is a company incorporated in Malaysia under the
Companies Act 1965 and having its registered address at 9 th Floor, Wisma
Naim, 2 1/2 Mile Rock Road, 93200 Kuching, Sarawak.
3. The 2 nd Defendant is the Superintendent of Lands & Surveys Department
for the Samarahan Division, appointed under section 3 (1) of the Sarawak
Land Code (Cap. 81) having the powers and authorities stipulated therein
and had purportedly in the course of exercising such powers and
authorities had carried out such act conduct and deed complained
hereinafter and/or failed refused and or neglected to perform such lawful
and legal act conduct and deed stipulated in the said Sarawak Land Code.
Native Customary Rights over Land
4. At all material times, the Plaintiffs have acquired and claimed native
customary rights (NCR) and/or native title and/or usufructuary rights
over that area of lands surrounded by mountain ranges: towards the east
the mountain ranges of Rumbang, Tamugan and Kayau, towards the
South the Gunung Sibekam Range, towards the west the Gunung Rantak
Range and towards the North, the Gunung Gayu Range. The boundary of
aboung ta Kampung Bengoh (Kampung Bengoh people’s land, in Bidayuh
language) is in the main an imaginary line joining the mountain ridges of
these mountain ranges outlined in Yellow in the map marked “A”
attached with this Statement of Claim but more particularly boundary
with physical ground markings referred and known to the Plaintiffs and
their neighbouring villages as the ancestral or native customary rights
land of Kampung Bengoh (hereinafter referred to as “the NCR Land”).
The Plaintiffs shall produce a surveyed map for the exact extent and
locality of the said NCR Land before the trial of this action.
5. The Plaintiffs claim NCR over the said NCR Land by virtue of their adat or
customs of the Bidayuh of Sarawak. The Plaintiffs have never abandoned
their NCR over the said NCR Land.
Particulars
5.1 For more than a hundred years, Kampung Bengoh has been and is
located at its present site, at the bank of Sungai Abang and near the
confluence of Sungai Abang and Sungai Sarawak Kiri. The
ancestors of the villagers in Kampung Bengoh were earlier settled
at Rabak Mikabuh at the lower reach of Sungai Sarawak Kiri.
6

5.2 The pioneering group who migrated from Rabak Mikabuh and
settled in the present Kampung Bengoh NCR Land were 38 families
and they constructed 4 longhouses known as Kupo (also called
Kupuo) Saba, Kupo Samok, Kupo Sampu and Kupo Tanjung. The
remaining structures of these longhouses are still preserved and
houses in the kampong are not built on and around these sites
which are considered as sacred for the villagers of Kampung
Bengoh.
5.3 In the early 1930s, some families in Kampung Bengoh moved
downstream and settled at the present day Kampung Danu.
5.4 The history of Kampung Bengoh dated back to the early nineteen
century and during the reign of the Brunei Sultanate as one of the
earliest village headman named Sentus was bestowed the title
Panglima by the then Brunei Sultan and Panglima Sentus has
always been remembered and referred to as one of the most
respected Bidayuh leaders.
5.5 A Bengoh Mission School was built in Kampung Bengoh in 1951 to
provide primary school education for the children in the village.
The primary school was later renamed Bengoh District Council
School in or about 1963 and later named Sekolah Kebangsaan
Bengoh in the 1980s and maintains as such until today.
5.6 The people of Kampung Bengoh has been occupying cultivating
and staying within the NCR Land for numerous generations. They
practice the traditional shifting cultivation for their livelihood on
their plots of ancestral farmland and plant fruit trees on the same.
They also hunt, fish and collect jungle produces in the communally
owned forests (called “pulau tuaan” in local Bidayuh language).
5.7 Within Kampung Bengoh’s NCR land, cultivation particularly
shifting cultivation of padi was and is carried out at the foot of the
mountain ranges, and in the valleys and the localities of land for
farming and cultivation are referred to in local Bidayuh names such
as Tana Sadera, Tana Siparan, Tana Kurang, Tana Merusung, Kan
Sibireh, Kan Darod, Tang Tas, Tana Sapong, Tana Tampang, Tana Eris,
Tana Bang Ken, Tana Stubong, Rabak Kap, Tana Sipunged, Kan Darod,
Tana Tabu, Tana Giruyen, Tana Sturad, Tana Ranta and others.
7

6. Located within the NCR Land is Darod Mawah (this is the local Bidayuh
name given to the mountain ranges of Rumbang and Tamugan. Mawah trees
which are a species of hardwood timber used by the Kampung Bengoh villagers to
build our houses are found apenty here). The villagers of Kampung Bengoh
derives regular cash income by harvesting edible birds’ nests in Darod
Mawah.
Particulars
6.1 Between the months September and April of the next year, some
villagers harvest birds’ nests at Darod Mawah. There are numerous
caves in Darod Mawah, but the ones frequented by the villagers to
collect edible birds’ nests are Tang (a Bidayuh word for caves) Pentak,
Tang Biran, Tang Melian, Tang Benawa and Tang Paya.
6.2 These abovenamed caves are located not very far from each other.
Leaving Kampung Bengoh early in the morning, the villager(s) can
harvest edible birds’ nests from one or two of the caves and would
return at early afternoon. To ensure sustainability of the birds’
nests, the villager(s) usually go on those edible birds’ nests
harvesting trip once or twice a month.
6.3 Raw edible birds’ nests harvested from these caves are usually sold
to buyers and shops in Tapah or Pasar Padawan. Each time, the
villager(s) would each receive between RM500.00 to RM700.00 from
selling their raw edible birds’ nests harvested.
6.4 Villagers from Kampung Semadang are also harvesting edible
birds’ nests from these caves.
6.5 Besides, villagers from Kampung Bengoh and Semadang also trap
the bats from these and other caves in Darod Mawah.
6.6 Darod Mawah is also the only communal forest that is left in
Kampung Bengoh. This communal forest provides the villagers
with abundance essential and useful jungle produces, herbal and
medicinal plants and is a hunting ground.
7. The Plaintiffs claim that they have acquired and/or inherited their rights,
interests and title over their NCR Land by virtue of and under the
principle of common law.
8

8. The Plaintiffs’ NCR over the said NCR Land is recognised by the Sarawak
Land Code (Cap. 81) and/or its predecessors and the said NCR was
created and/or acquired prior to the 1st day of January, 1958 and still
subsist as such.
9. The 2 nd and/or 3 rd Defendants had in fact recognized the Plaintiff’s rights
over the said NCR Land. Between 2003 and 2007, the 2 nd Defendant’s
Department had surveyed and acquired parts of the said NCR Land
adjacent to the foothill of Darod Mawah for the construction of Jalan
Bengoh-Danu. Payments of compensation for the native customary rights
over land acquired and or extinguished were made to the respective
landowners.
10. From the said NCR Land, which comprises of farmland and forest, the
Plaintiffs derive food, valuable medicines, wildlife and other forest
produce for their livelihood and sustenance. They also farm cultivate and
plant padi, fruit trees, rubber, cocoa and other essential trees and crops on
the said NCR Land.
11. The said NCR Land is not just a source of livelihood but also constitutes
life itself as the said NCR Land is also fundamental to the Plaintiffs’ social,
cultural and spiritual survival as native Bidayuh people of Sarawak.
The Quarry Licence
12. On or about 14.06.2007, without the knowledge and/or consent of the
Plaintiffs, the 2 nd Defendant had issued to the 1 st Defendant a quarry
licence (hereinafter referred to as “the said Quarry Licence”) to blast
extract and or remove stones and or rocks from Darod Mawah hereinabove
mentioned.
13. The records in the office of the 2 nd Defendant shows and confirms that the
said Quarry Licence is granted over an area within the Plaintiffs’ said
NCR Land.
14. There was no extinguishment of the Plaintiffs’ NCR within the land
covered by the said Quarry Licence before the same were granted to the 1 st
Defendant and/or no provision as to compensation in accordance with
the Land Code of Sarawak and the Federal Constitution was ever made or
paid to the Plaintiffs. The grant of the said Quarry Licence is unlawful,
unconstitutional, improper and henceforth the said Quarry Licence is null
and void.
9

Particulars
14.1 The said Quarry Licence was granted to the 1 st Defendant without
the permission of the Plaintiffs who are the rightful owners and/or
proprietors and/or licensees and/or claimants of the said NCR
Land.
14.2 The said Quarry Licence granted to the 1 st Defendant is for an area
of land which includes and comprises farmland of individuals, and
forest reserves used by the residents of Kampung Bengoh.
14.3 Further, the Plaintiffs will be deprived of their source of cash
income as the said Quarry Licence granted to the 1 st Defendant is
for an area of land which includes and comprises the numerous
caves in Darod Mawah from which they harvest edible birds’ nests.
The quarrying will cause irreparably destroyed all these caves and
thereby depriving the Plaintiffs a crucial source of livelihood.
14.4 The provision under the common law and in the written laws of
Malaysia and Sarawak on compensation for acquisition and
deprivation of the Plaintiffs’ rights to property and livelihood was
not followed by the 1 st , 2 nd and/or 3 rd Defendants.
14.5 There was a breach of Articles 13 of the Federal Constitution, in
that there was deprivation of the Plaintiffs’ properties and
livelihood without adequate compensation.
Plaintiffs’ Rights impaired
15. The grant and/or issuance of the said Quarry Licence by the 2 nd
Defendant to the 1 st Defendant on the ostensible authority of legislation
such as the Land Code Cap. 81 is unconstitutional and/or wrongful in so
far as it abridges or impairs the Plaintiffs’ rights and/or title in or over the
said NCR Land being the source of the Plaintiffs’ livelihood and the
generations to come.
Particulars
15.1 Since time immemorial the Plaintiffs had established and
maintained a comprehensive scheme by which, through their laws,
customs, tradition and practices they determined questions
concerning the ownership, use, management and occupation of
land, forests and rivers.
10

15.2 By the said laws, customs, tradition and practices, they were
entitled to the rights of ownership and/or use and/or occupation
of the said land and access to all the produces therein as well as to
the fishing waters. The Plaintiffs exercised the aforesaid rights over
the said NCR Land.
15.3 Therefore the Plaintiffs had prior to the enactment of the said
legislation, accrued and vested native customary rights over the
said NCR Land.
15.4 For the reasons aforesaid, the said accrued rights could not be, and
were never lawfully vested in the State Government under Article
47 of the Constitution of the State of Sarawak or howsoever
otherwise.
15.5 No land title and/or lease and/or quarry licence could therefore be
issued over the Plaintiffs’ said NCR land.
16 Alternatively, the granting of the said Quarry Licence amounts to an
extinguishment and/or termination of the Plaintiffs’ right in or over the
said NCR Land which extinguishment and/or termination is bad as, inter
alia, it was not, and had not been done, by legislation designed specifically
and clearly for that purpose.
17. Further and/or in the alternative, the Plaintiffs state that the grant and/or
issuance of the said Quarry Licence was unconstitutional as it contradicts
the Articles provisions and/or spirits of the Federal Constitution.
18. Further and/or in the alternative, the Plaintiffs state that the provisions of
the Land Code Cap. 81 with regard the grant and/or issuance of the said
Quarry Licence in contravention of the Articles provisions and/or spirits
of the Federal Constitution are unconstitutional.
Trespass
19. Towards the end of May 2008, the 1 st Defendant and/or its employees
servants and/or agents and/or contractors wrongfully trespassed onto
the Plaintiffs' said NCR Land, at the foot of Darod Mawah and the
farmland of the Plaintiffs known as Tana Sipunged and with the aid of
bulldozers, excavators, shovels, trucks and lorries, destroyed and
damaged a very substantial area of the said NCR Land, fruit trees and
11

crops thereon and earth-filled the streams running through the affected
land.
20. The 1 st Defendant and/or its employees servants and/or agents and/or
contractors also fell the trees and clear vegetations at the slopes of Darod
Mawah and thereby destroying and damaging the communal forest of the
Plaintiffs.
21. Despite of the numerous and continued objections and protests by the
Plaintiffs, the 1 st Defendant or its employees servants and/or agents
continued and still continue to trespass onto the said NCR Land.
22. The 1 st Defendant and/or their employees servants and/or agents and/or
contractors wrongfully claim that they have the right to enter, clear, use
and occupy the said NCR Land.
Damages
23. By reason of the matters aforesaid, numerous specified families amongst
the Plaintiffs' sources of and any right to their livelihood is seriously
threatened and they have suffered loss and damage.
23.1 The farmland and the communal forest damaged and destroyed by
the 1 st Defendant and/or its employees servants and/or agents
and/or contractors is more specifically shown in the sketch
plan/map marked as “B” annexed hereto herein.
Particulars Of Damage
(a)
(b)
(c)
(d)
Irreparable damage to vegetations, food, water, valuable medicines,
wildlife and other forest produce which the Plaintiffs need and are
dependent upon with the destruction of the communal forests and
thereby seriously impairing the Plaintiffs' sources of livelihood.
Extensive damages to the said NCR Land and particularly the NCR
land at the foot of Darod Mawah and the farmland of the Plaintiffs
known as Tana Sipunged.
Destruction of fruit trees and other essential trees and crops.
Deprivation of the Plaintiffs crucial source of earning with the
irreversible destruction of the birds’ nest caves in Darod Mawah.
12

Legitimate Expectation & Natural Justice
24.1 The Plaintiffs have a legitimate expectation that their rights, tradition,
culture and livelihood will not be disrupted, extinguished, and/or
restricted and/or constrained.
24.2 The Plaintiffs’ rights were impaired without a right to be heard and/or a
right to say ‘no’ and/or object to the grant and/or issuance of the said
Quarry Licence to the impairment and/or extinguishment and/or
termination of their rights.
Relevant Consideration Not Taken Into Account
25. The 2 nd Defendant had also acted unreasonably and had failed to take
relevant matters into consideration when it granted and or issued the said
Quarry Licence to the 1 st Defendant.
Particulars
25.1 that any quarrying and or other related activities under the said
Quarry Licence will irretrievably terminate and or extinguish the
rights and/or interests of the Plaintiffs, their immediate family
members and descendants over the area covered by the said
Quarry Licence and its vicinity.
25.2 that any activities of the 1 st Defendant its employees servants
and/or agents within and/or over the said NCR Land would cause
irreparable damage to the said NCR land, the resources,
environment and eco-system of the area, thereby affecting the lives
and lifestyle of the Plaintiffs, their families and descendants who
are and/or would be dependant on their said NCR land, resources
and rivers for their food and medicine, well-being and the very
survival of themselves, their children and their communities.
Constitutional Issues
26. The granting and or issuance of the said Quarry Licence was
unconstitutional as it was issued in violation of Article 13 of the Federal
Constitution (no compulsory acquisition of property without adequate
compensation).
Particulars
13

26.1 The granting and or issuance of the said Quarry Licence by the 2 nd
Defendant amounted to the compulsory acquisition of the
Plaintiffs' said NCR Land but no provision for compensation in
accordance with law has been made nor have the Plaintiffs been
paid any compensation.
27 Further and in the alternative, the acts as aforesaid of the 2 nd Defendant,
its servants and/or agents and/or provisions of the law which impair the
rights of the Plaintiffs to their NCR over land as herein before referred to,
are unconstitutional and void in that they violate, individually and/or
cumulatively Article 5 of the Federal Constitution which guarantees, inter
alia, that no person shall be deprived of his life (which includes the right
to livelihood) except in accordance with the law.
Particulars
27.1 The Plaintiffs have been deprived of their sources of food, fish,
medicines, wildlife and other forest produce which the Plaintiffs
need and are dependent upon for their daily sustenance.
27.2 The Plaintiffs have also been deprived of their sources of income
from their lands, fruit trees and other essential trees and
vegetations.
28. The Plaintiffs aver that their rights to livelihood has been, and will
continue to be irreparably impaired by the aforesaid acts and provisions
of the law.
29. The Plaintiffs further aver that the impairing of their rights to livelihood
by the aforesaid acts and provisions of the law is unjust, unfair and
unreasonable and destructive of their economic, cultural and social system
for their existence and therefore not in accordance with the law.
30. Further and in the alternative, the Plaintiffs aver that the said Quarry
Licence were subject to the rights of the Plaintiffs in or over the said NCR
Land and therefore the 1 st Defendant cannot lawfully acquire any rights or
interests therein.
31. Further and in the alternative, the Plaintiffs aver that the grant and or
issuance of the said Quarry Licence was an abuse of the fiduciary duty of
the 2 nd and or the 3 rd Defendants to protect the Plaintiffs rights and/or title
in and possession of their said NCR Land in that by its said act as
14

aforesaid the 2 nd Defendant had failed to act for the benefit of the
Plaintiffs. The said Quarry Licence was therefore null and void.
Particulars Of Feduciary Duty Relied On
31.1 Although the law granted upon the 2 nd Defendant and or the 3 rd
Defendant special powers and discretion to give preferential
treatment to the Plaintiffs as regards the reservation or alienation of
land in Sarawak, the 2 nd Defendant had failed, refused or neglected
to exercise it to protect the Plaintiffs said rights and/or title in and
possession of the said NCR Land and/or to give them such
preferential treatment.
31.2 The 3 rd Defendant and/or its predecessors, upon acquiring and/or
establishing sovereignty over the State of Sarawak with the
agreement and/or undertaking that the said sovereignty shall be
subjected to the natives rights and/or title to and possession of
their land, the 2 nd and or the 3 rd Defendants are entrusted and
obliged to act to protect the Plaintiffs' said rights and/or title to and
possession of the said NCR Land.
32. The Plaintiffs in addition to the matters pleaded in the aforesaid
paragraphs, further claim exemplary damages by reason of the conducts
of the 1 st Defendant and/or with the 2 nd Defendant.
Particulars Of Conduct
32.1 The 1 st Defendant, despite notice and knowledge of the Plaintiffs’
NCR over the said NCR Land including the area under the said
Quarry Licence and the continued objections and protests by the
Plaintiffs, have persisted to trespassed upon the Plaintiffs’ NCR
land and destroyed the Plaintiffs’ farmland and crops and
cultivation. Such conducts by the 1 st Defendant is oppressive,
arbitrary, illegal and/or unconstitutional.
32.2 The 2 nd Defendant, despite notice by the Plaintiffs and their
Counsels, refused neglected and or unwilling to furnish the
Plaintiffs with relevant documents papers and records and thereby
causing the Plaintiffs immense and enormous inconvenience
difficulties and expense to the identification and verification and
assertion of their rights. Such conducts by the 1 st Defendant is
oppressive, arbitrary, illegal and/or unconstitutional.
15

32.3 Such conducts are also calculated to result in a profit for the said 1 st
Defendant.
Reliefs
33. AND the Plaintiffs claim and pray for:
i. a Declaration order that the Plaintiffs had acquired and/or
inherited Native title and/or Native Customary Rights (NCR) over
the area as claimed by the Plaintiffs referred to and/or edged in
Yellow and marked in the locality map marked as Exhibit “A”
annexed hereto herein, and particularly the area shaded grey in the
sketch plan.map marked “B” also annexed hereto herein;
ii.
iii.
iv.
A Declaration that this native title and/or native customary rights
precludes the 1 st and/or 2 nd Defendant from impairing or abridging
the Plaintiffs' said rights and/or from granting and issuing any
quarry licence which affects their said native title and/or rights;
A Declaration that the acts of the 2 nd Defendant in granting and/or
issuing the said Quarry Licence, in so far as they impair the
Plaintiffs' NCR over the said NCR Land, is wrong bad illegal
and/or void;
a Declaration order that the granting and/or issuance of the said
Quarry Licence to the 1 st Defendant in as far as the extent of that
area under the said Quarry Licence overlaps and/or covers the
Plaintiffs’ NCR Land is unlawful, improper, unconstitutional and
therefore null and void, for want of extinguishment of the
Plaintiffs’ NCR over the said NCR Land;
v. Alternatively, a Declaration that the granting and/or issuance of
the said Quarry Licence was subject to the native title and/or
native customary rights and/or usufructuary rights of the Plaintiffs
in or over the said NCR Land and that the said Quarry Licence do
not affect the Plaintiffs' said title and/or rights therein;
vi.
A Declaration that in granting and/or issuance of the said Quarry
Licence as aforesaid, the 2 nd and or the 3 rd Defendant had acted in
breach of its fiduciary duty to the Plaintiffs and therefore the said
Quarry Licence was null and void;
16

vii.
viii.
ix.
A Declaration that the granting and/or issuance of the said Quarry
Licence was in breach of the statutory provisions of the Land Code
(Cap. 81) and any other written law;
A Declaration that the granting and/or issuance of the said Quarry
Licence to the 1 st Defendant is unlawful, improper, unconstitutional
and therefore null and void;
A prohibitory injunction restraining the 1 st Defendant and/or its
employees servants and/or agents from trespassing, clearing, using
or occupying the Plaintiffs' said NCR Land;
x. A mandatory injunction against the 1 st Defendant and/or its
employees servants and/or agents and/or contractor to cease
operations and remove all structures and their equipments or
machineries from the Plaintiffs' said NCR Land forthwith;
xi.
xii.
xiii.
xiv.
xv.
xvi.
Damages;
Exemplary damages; alternatively, aggravated damages;
Alternatively, an Order that the damages be assessed accordingly;
Interests;
costs; and
Such further and/or other relief this Honourable Court deems fit
and just.
Dated this 26 th day of June, 2008
...................……...................
MESSRS BARU BIAN
Advocates & Solicitors for the Plaintiffs
This Statement of Claim is filed by Messrs Baru Bian
Advocates & Solicitors for the Plaintiffs the address for service is at
No. 6, 2 nd Floor, Lot 5430, Block G, RH Plaza, Jalan Lapangan Terbang, 93350 Kuching, Sarawak
17