GRS Govt's best gift to Sabah's natives
Published on: Sunday, April 27, 2025
Published on: Sun, Apr 27, 2025
By: Dharma Lingam Text Size: Flashback: Our front page report on April 18. THE Hajiji-led Gabungan Rakyat Sabah (GRS) Sabah Government deserves the highest accolade for doing what no other previous State Government dared to do – put an end once and for all to the land scandals, some involving big plantation companies, arising from fraudulent land transactions. Where genuine innocent land applicants don't even know their lands had been approved and changed hands without their knowledge many times over. The amendments to the Land Ordinance at the State Legislative Assembly on April 17 and which was the front page lead story in the Daily Express the following day would now make it an offence to acquire Native Title lands through fraudulent means and without exercising due diligence. There have been many instances, for example, of natives giving their Mykad particulars in the hope of being included in bloc applications but ending up being deceived. Owners of such lands now face the prospect of having to surrender these lands, if it has been established that they have been acquired illegally. The Daily Express had over the years published related reports on such land scams. These were in: 18-09-2014 – Daily Express - https://www.dailyexpress.com.my/read/1315/state-govt-must-stop-this-land-scandal/ and in 20-12-2014 – Daily Express - https://www.dailyexpress.com.my/read/1416/only-director-thinks-no-nt-land-abuse/ Before the colonial administrator set foot on Sabah (North Borneo), native customary laws which have immense influence on local communal tribes had existed. When the British North Borneo Company acquired the various territories which now comprise present day Sabah, they had considered it imperative to recognize the significance native customary laws and it was preserved under Article 9 of the Royal Charter in verbatim 'In the administration of justice by the Company to the people of Borneo, or to any of the inhabitants thereof, careful regard shall always be had to the customs and laws of the class or tribe or nation to which the parties respectively belong, especially with respect to the holding, possession, transfer and disposition of land and goods, and testate or intestate succession thereto, and marriage, divorce and legitimacy, and other rights of property and personal rights.' Subsequently the colonial administration introduced a number of legislation specifically relating to native affairs with written law that specifically dealt with rights of the natives over land entitled the Native Rights to Land Proclamation of 1889 with the preamble 'for the protection of Native Rights to Land'. The 1902 legislation was a code of native land tenure which made native land rights registrable and provided for the procedures regarding the practice of cultivation. The Native Rights to Land Proclamation of 1889 read together with the 1902 legislation was to form the basis for the introduction of the Land Ordinances of 1901, 1913 and 1930 culminating in the renaming of the 1930 legislation as the present day Land Ordinance. The concept of native lands was introduced to prevent lands held by the natives in North Borneo (Sabah) from being disposed of to the non-natives with the primary beneficiaries of native lands land being 'the rural poor natives' or 'small-scale farmers'. These native lands are restricted from sale, lease, transfer of title and charge (mortgage) to non-natives similar to the concept of Malay Reservation Land that were introduced by the British in the Federated Malay States of Perak, Selangor, Negeri Sembilan and Pahang in 1913 to avoid lands held by the Malays in those states from being disposed of to non-Malays. The native land is a special law and the Sabah Land Ordinance 1930 prohibits the attachment in execution of any NT land. Section 17 of the Sabah Land Ordinance 1930 repeats the provisions first introduced in 1883 against dealings in native lands with non-natives. The purpose of the restriction is to keep such lands in the hands of natives and to prevent access of non-native in areas where their presence is not favoured. The restriction applies also to charges but an exception is made to enable natives to obtain credit from specified financial institutions on the security of their native titles. However any sale and enforcement of a charge is limited to natives. Moreover, a trust cannot be created on such land to persons who are non-native. Now the world will be able to see what is being exposed about public listed company, businessmen, professionals, plantation, investors and developers engineering an exceptionally dubious and intricate scam to grab native lands by exploiting the land system of the Sabah Land Ordinance 1930. A cleverly concealed modus operandi concocted by these public listed firms, businessmen, professionals, plantation, investors and developers are by coordinating and obtaining Land Applicants (PT) involving naïve and vulnerable natives induced into believing that they would be able to secure lands by furnishing their ICs to these middlemen orchestrated by these public listed company, businessmen, professionals, plantation, investors and developers. The intention and blatant act of these public listed company, businessman, professionals, plantation, investors and developers as main conspirator are in furtherance of their plan to exploit native lands for logging timber, property development, agriculture, palm oil plantations and pure greed to own and deal in native lands that is explicitly forbidden by law. They mobilised their clandestine operation through using natives NRICs in applying for unalienated lands of the standard procedure under section 70(1) that allows Natives to apply without delay for State land at PPHTs throughout the Sabah. When the State Authority approves the application, the land will be alienated and a land title will be issued to the applicant. Land applications means property of native land's designee who applies by submitting land use applications regarding the unalienated lands. Land applications approved for native titles are subject to cultivation conditions as to commencement. It is basic law that land applicants are not conferred any land law rights. The Land Rules (Section 46) (G.N. 505 of 1930) - Section 2 subsection (4) clearly states that, LAs are not conferred with any right whatsoever to the land applied and acceptance of any such payment shall not constitute any undertaking that the application will be approved. It is important to remember that a person is presumed to have legal capacity unless it is proven that one lacks capacity as in the case of land applicants. Capacity is a legal concept that describes whether a person can legally enter into a contract. Legal capacity is the ability to: (i) make a binding legal agreement, (ii) sue another person and (iii) make other decisions of a legal nature such as land transaction. Yet, public listed company, businessman, professionals, plantation, investors and developers had regularly pursued LAs (PTs) in almost all their land dealings. They exploited the land system of the Sabah Land Ordinance 1930, a unique and a modified Torren's system that is exemplified by indefeasibility, charges and compliance of land law requirements on entry, registration and notation of interests. It is prudent to note that this is not the result of any 'innocent error' on their part but a vital element in the furtherance of their illegal exploit of native land grabs, corrupt practice, backhanders and gross tax evasion. The using of vulnerable native and employees by way of nominees are clearly to deploy as their native land grab industry foot soldiers. Indefeasibility is the key principle of the Torren's system. Under it, a title is made conclusive on registration and the Sabah Land & Survey Department (JTUS) guarantees that the titles are unimpeccable (validity) based on Section 88 of Sabah Land Ordinance. Indefeasibility simply means that something is impossible to be defeated or made invalid or cancelled and is adopted based on the principle of (i) Immediate indefeasibility is a situation where the transferred title is valid regardless of any element of fraud or forgery while (ii) deffered indefeasibility ((concedes or complies) only protects a subsequent purchaser to a title that is defeasible. In other words, if one obtains a title where fraud or forgery is involved, this title could be cancelled. However if the same party sells it to another purchaser who seemingly 'bona fide purchaser' that title is considered to be indefeasible. The indefeasibility therefore defers across one transfer of the title where fraud or forgery is involved to the next purchaser who buys it supposedly in good faith and valuable consideration. Herein lays, the problem the basic element of good faith is described as the absence of fraud, deceit or dishonesty and the knowledge or means of facts of such at the time of entry into a transaction while bona fide (valuable consideration) in general terms clearly refers to the absence of fraudulent intent or deceit. Since the Land Applications (PTs), Power of Attorney, Substitution Under Power of Attorney, Sublease Agreements, Sale and Purchase Agreements, Trust Deed Agreements, Memorandum of Transfer and Memorandum of Charge are dealings in native lands that is explicitly forbidden by law and are shrouded in illegality, it follows therefore that neither parties can acquire good title to pass on the purchaser as the current law passed under Section 88A (2) – explicitly confirms that titles obtained through (i) fraudulent means, (ii) forgery or (iii) unlawful methods would render the title VOID - not valid. The Remedy Lies in the Restitutionary Provision for Lands By invoking the Land Rules (Section 46) G.N. 505 of 1930 – Procedure under section 34 breach of conditions of title, empowers the State Authority to recall these NT lands. Rule 12 (1) owing to the breach or default in observing the conditions of the title and section 12(1) that would render the Public listed company, businessman, professionals, plantation, investors and developers and/or their proxies/nominees in breach or default and is not capable of being repaired or made good due to the circumvention of law/illegality shall revert to the State Authority all right, title and interest of Public listed company, businessman, professionals, plantation, investors and developers and/or their proxies/nominees will subsequently cease and be extinguished. Under the Sabah Land Ordinance, the Director can cancel permits and licenses for prospecting or other land-related activities if there's a breach of conditions or provisions of the Ordinance. The Director of Lands and Surveys, acting under the Sabah Land Ordinance 1930 (Cap 68), the main legislation governing land matters in Sabah, including the issuance and cancellation of land titles may cancel a title deed under specific circumstances, such as surrender or cancellation under sections 112, or orders by the Director under Section 118. The Director can cancel a title deed under the following circumstances: @ Surrender or Cancellation under Section 112: This section likely outline specific procedures and grounds for surrendering or cancelling a title deed. @ Orders by the Director under Sections 119: These sections likely outline specific circumstances where the Director can issue orders related to land titles, leading to cancellation of these NT titles. At first, it may appear that the State Authority can do nothing much about these NT lands but legally; there may be two options available. Firstly, the State Authority can proceed in Public listed company, businessman, professionals, plantation, investors and developers and/or their proxies/nominees to Court. The State Authority may apply for an injunction as one of the equitable remedies that the High Court by its discretion may grant an order to restrain or prohibit the continuance of business operation in these said native lands as the central basis for the State Authority is to impeach the proxies/nominees titles rights to the native lands. The State Authority may also obtain a declaratory order to the effect that this conversion exercise is unlawful, inconsistent and null and void to the policy of the Land Rules and the Sabah Land Ordinance. Hence, the State Authority by invoking 'the new Section 88A (2)' owing to the breach of conditions and provisions by way of forfeiture would cause these lands to revert back to the State Authority. It is a principle of antiquity that whatever that is invalid from the beginning cannot be binding by a subsequent act - meaning whatever is inherently defective cannot be rectified later by validity. There is also nothing to prevent the amendment that allows such power to legislate from having retrospective effect as Article 74 of the Federal Constitution (9th Schedule, list II- State List) states that land is State matter. Dharma is a lawyer specialising on land matters. The views expressed here are the views of the writer and do not necessarily reflect those of the Daily Express. If you have something to share, write to us at: [email protected]
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