| DOUGLAS DING JANGAN & ORS v KERAJAAN NEGERI SARAWAK & ORS [2021] MLJU 1150
Federal Court (Putrajaya)
Appeal – Cross- Appeal – Jurisdictional challenge |
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| Facts | 1. The Appellants are indigenous peoples of Sarawak claiming native customary rights (NCR) over land known as ‘tana’ daleh’, which they had occupied since time immemorial.
2. They filed a suit in the High Court (“HC”) seeking a declaration of their NCR and alleging encroachment and trespass by the 1st to 5th Respondents.
3. The Respondents include the Sarawak Government (1st to 3rd), license holders (4th and 5th), and interveners also claiming NCR (6th to 8th).
4. The HC allowed only paragraph 25(i) of the Statement of Claim, declaring the Appellants’ NCR over certain cleared areas, thereby partially favouring the Appellants.
5. Dissatisfied with the limited recognition, the Appellants appealed to the Court of Appeal (“COA”) regarding the remaining NCR land.
6. The 1st to 5th Respondents did not appeal to overturn the HC’s ruling but filed a cross-appeal under Rule 8 of the Court of Appeal Rules 1994 (RCA), seeking variation. The 6th to 8th Respondents (interveners) also cross-appealed, claiming NCR over parts of the cleared land.
7. The COA allowed the cross-appeals, dismissed the Appellants’ appeal, and set aside the entire HC’s decision, ruling that the Appellants had not proven NCR even over the cleared areas.
8. As a result, the Appellants appealed the COA’s decision to the Federal Court (“FC”). |
| Issue(s) | 1. Whether the COA had erred in law and fact by setting aside the HC’s decision, despite the absence of a formal appeal under Rule 5 of the RCA by the 1st to 5th Respondents.
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| Ratio | 1. Whether the COA had erred in law and fact by setting aside the HC’s decision, despite the absence of a formal appeal under Rule 5 of the RCA by the 1st to 5th Respondents.
(a) In determining the necessity of filing a separate notice of appeal, the FC referred to the following established legal principles:
(i) The FC relied on the case of National Society for the Distribution of Electricity by Secondary Generators v Gibbs [1990] 2 Ch 280, which held that a separate appeal must be filed, if a cross-appeal was directed at the Appellant but was founded on a different cause of action, despite if it raised from the same transaction or set of facts.
(ii) The FC further relied on Tabtill Pty Ltd & Ors v Creswick [2011] QCA 66, which established that a cross-appeal was inappropriate if the subject matter did not correspond with the original appeal.
(iii) The FC further noted the decision of the New Zealand COA in Parker (Deceased), Crow v Weston and Others [1948] N.Z.L.R. 9, whereby if a Respondent wanted to raise a matter not covered by the Appellant’s notice of appeal, they must file a separate appeal. Accordingly, the Respondents were required to file separate notices of appeal if they sought to reverse or set aside the HC’s decision.
(b) In the light of Majlis Peguam v Cecil Wilbert Mohanaraj Abraham [2019] 5 MLJ 159 (albeit in obiter), the FC reiterated that a cross-appeal pursuant to Rule 8 of the RCA was an inappropriate mechanism to overturn a substantive judgment. (i) In that case, the COA held that the 1st Respondent cross cross-appeal under Rule 8 of the RCA to set aside the HC’s judgment was inappropriate.
(ii) This occurred because, instead of filing an appeal under Rule 5 of the RCA, the 1st Respondent attempted to reverse the judgment by filing a cross-appeal under Rule 8 of the RCA.
(c) To conclude, the COA did not have jurisdiction to reverse or set aside a decision of the HC that was not appealed against via a notice of appeal under Rule 5 of the RCA. A cross-appeal under Rule 8 could not substitute for an appeal when the intention was to overturn a substantive finding of fact.
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| Decision | The FC held that the COA exceeded its jurisdiction by setting aside the entire HC’s decision, including the part affirming the Appellants’ NCR over the cleared areas, which had not been appealed.
Therefore, the appeal was allowed with costs. The COA decision was set aside, and the HC’s decision to allow paragraph 25(i) of the Statement of Claim would be reinstated.
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| Key Takeaways | 1. To overturn a substantive finding of the trial court, a party must file a formal notice of appeal under Rule 5 of the RCA. A cross-appeal under Rule 8 of the RCA is only appropriate when seeking to vary, not reverse, the decision. For example, modifying damages.
2. If a party believes that an injustice has occurred, they should not hesitate to seek redress by appealing to a higher court to review the lower court’s decision.
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