Sunday, October 28, 2007



In the Borneo Post yesterday 16th June 2007 in the front page under the heading “FAMILY DISPUTES TOP CASES – Divorce, disputed inheritances dominate cases handled Native Court it was reported that “Most of the 217 cases registered with the Native Court here (Penampang) last year were related to divorces, marriages and disputes over family properties such as land and minor offences. District Chief Inocent Makajil said that thus far, 170 of the cases had been set for trial or out of court settlements between the plaintiffs and respondents.
At Lex Borneo we continue our review of this at times what has been underrated but important component of the legal system in Sabah known as the native courts. Long before the advent of ‘white man justice’ under the civil court system and the syariah court system the natives court existed in Sabah and there was in place a system of appeals and enforcement of the judical remedies. The system had a doctrine of precedent , area of jurisdiction, and dealt with many issues and disputes of law amongst the bumiputra populace. Judges were from respected persons and leaders of the community and the system was inexpensive to litigants. Unfortunately in recent times this legal system has perhaps unjustly come under fire especially in dealing with rape cases. It is hoped that our coverage of natives courts and native law in Lex Borneo this past month of Kaamatan would in a small way be the catalyst to create greater awareness and respect for this local judicial system and its place in the history of Sabah. I feel that there is too much focus in recent days on the side effects of ‘local beverages’ instead of other more positive and integral features of native culture and custom. We as a society have become too cynical and negative in our highlighting of problems affecting the natives of Sabah, whereas we ought have focused at times on the positive and uplifting features of natives culture, customs and laws. It is good to be critical but over-cynicism will only destroy what has taken generations of sacrifice and toil to build.
Therefore besides Mount Kinabalu one of the endearing images of Sabah is the buffalo. Other societies have their beast of burdens in the form of cows, horses and camels which are to them a symbol of nourishment, livelihood, hard work and transportation Whenever I see paintings of Sabah they usually have Mount Kinabalu in the background and in the painting itself one can more often then not find an image of a buffalo toiling away in some Arcadian padi field. Just as the camel is the source of wealth and prosperity to the Arab, the buffalo in Sabah plays a similar role to the natives who engage in rice cultivation and agriculture in Borneo.
So in today’s article we look at litigation involving the strong, hardworking and perhaps at times underrated beast of burden of Sabah, the buffalo.


MIUM BIN TURUGA ... . ... Respondent

In the Native Court of Appeal at Kota Belud before Smith, J. (President), R. McClean and O.K.K. Indan.
Civil Appeal from the Native Court at Kota Belud No. NCA No. CA/3 of 1963.
Date of Judgment: 21st October, 1963.

The parties each owned a buffalo. Seeing that appellant’s buffalo liked to chase his buffalo respondent moved his buffalo to another place. But unknown to respondent appellant also moved his buffalo to the same place. As a result a fight took place between the two buffaloes and respondent’s buffalo was killed. Respondent reported the matter to Orang Tua Taha to effect a settlement. Orang Tua Taha suggested that appellant should compensate respondent with one buffalo and that the proceeds of the meat of the buffalo killed be divided with two-thirds to respondent and one-third to appellant. Respondent disagreed and brought the matter to the Native Court which ordered appellant to compensate respondent with one buffalo and $200.00. The District Officer upheld the decision of the Native Court. The Native Court of Appeal dismissed the appeal but varied the order made by the Native Court.

SMITH, J. delivered the judgment of the Court : — This appeal from Kota Belud arises out of a dispute over a
buffalo which was killed by another buffalo. The appellant is Awang bin Gutok and the respondent is Mium bin Turuga. It is agreed that Awang’s buffalo was responsible for the death of Miurn’S buffalo. As a result Awang was ordered by the native court to pay to Mium compensation of one live buffalo (valued about $150.00) and, in addition, monetary compensation of $200.00. Awang appealed to the District Officer, Mr. J.C.J. Watling, but his appeal was dismissed on the 22nd March, 1963. Awang now appeals to this court against the decision of the District Officer.
Mium’s buffalo was a full-grown male buffalo valued at about $350.00. The fight took place at about 5 p.m. on the 28th August, 1962, in Kampong Tampasuk Satu, about two miles from Kota Belud. The scene of the fight was either on the boundary fence between the land belonging to one Aning and Awang’s land, or the fight was actually on Aning’s land. Mium’s buffalo got the worst of the encounter. It ran away into the river and died, either as a result of drowning, or from the wounds which it had received.

Awang’s first complaint is that he was not given an opportunity at the hearing by the native court to call two witnesses, namely, O.T. Agut bin Idag and Timpas bin Rinduan. In order that the appellant should feel that he has had a fair hearing, this court permitted him to call these two witnesses. O.T. Agut gave contradictory evidence as to whether the fight took place on Awang’s land or Aning’s land, but finally he said it was on Aning’s land. He thought it right that Awang should pay compensation. Timpas said that the fight took place on the boundary fence and that it was right for Awang to pay compensation at a very much reduced rate because the buffaloes fought of their own accord. He meant, I suppose, without any wrongful act default on the part of Awang.

In the Native Court Awang appeared to admit his liability to pay some compensation, but before this court he submitted that in the particular circumstances he should not be required to pay any compensation. His argument was this: “Mium knew very well that our respective buffaloes were hostile towards each other because they had fought before. He knew my buffalo was kept on my land. Why was he so foolish as to put his buffalo on Aning’s land which adjoins mine?” I must say that that submission seems to me much to the point, but my brother judges, Resident R. McClean and O.K.K. Indan bin Kari, who are experienced in the local adat, say that the point is not a good one. They both say that there is no doubt about the local adat, which is that, if A’s buffalo causes the death of B’s buffalo, A must pay compensation to B to the value of the buffalo which has died, no matter what the circumstances are, and even if the incident takes place on private land, as opposed to public grazing land. I think that this court should follow this adat’. The opinion of the native court is upheld and the appeal is dismissed. No order is made as to costs.

The order of the native court is revised to this extent. The appellant now owns a buffalo, whose agreed value is $250.00 He must hand this beast over to Mium without delay and, in addition, he must pay compensation of $100.00 $250.00 + $100.00 equals $350.00, the value of the buffalo that died. The appellant Awang, says that he will hand over his buffalo to the respondent, Miurn this afternoon. He asks for time to pay the compensation of $100.00. The court orders him to pay by monthly instalments of ten dollars, commencing the 10th November, 1963. O.T. Taha will please superintend the transfer of the buffalo and the payment of the compensation of$100.00.

One word about the meat of discussion as to what should happen to it. What has happened to it is that Awang, with the permission of the Orang Tua, sold it. He sold it to various people in the kampong for sixty-one dollars. He received twenty dollars in cash but the balance of forty-one dollars is still outstanding. The court informs
Awang that he may retain the twenty dollars which he has already received, and that he may recover, if he can, the outstanding debts owing by the villagers who have failed to pay him, and keep the proceeds for himself.
Held: That it was a local adat that if A’s buffalo caused the death of B’s buffalo A must compensate B no matter what the circumstances are, even if the incident took place on private land, as opposed to public grazing land.





In the Native Court of Appeal at Keningau before Lee Hun Hoe, J. (President), Albert Watson and Dato Anthony Undan.

Civil Appeal from the Native Court at Keningau

Date of Judgment: 21st March, 1972.


Following the killing of four buffaloes by appellants a report was lodged with the police. The buffaloes had no ear marks as they had become wild. Appellants promised to pay compensation. As no payment was made appellants were sued in the Native Court. Five persons, including the three appellants were ordered to pay cornpensation. Appellants refused to pay and appealed. The District Officer confirmed the decision of the Native Court. Appellants appealed.

JUSTICE LEE HUN HOE, delivered the judgment of the Court:

This appeal is concerned with the promises of the appellants to pay respondents for killing four buffaloes belonging to the respondents. We dismissed the appeal and stated we would give our reasons later. We do so now.
appears that first respondent lodged a report to the police at Keningau of the killing of the buffaloes by the appellants. The buffaloes had no ear marks whatsoever as they had become wild. On 20th May, 1970 the Native Court, after hearing evidence, order the appellants to abide by the promises made by parties outside the court.

First appellant was to pay $125.00, second appellant $200.00 and third appellant $100.00. On 15th June, 1971 the District Officer confirmed the decision of the Native Court and dismissed the appeal. Appellants appealed.

In the lower courts appellants admitted shooting and killing the buffaloes which they claimed to be wild ones. They denied they had knowledge that the buffaloes belong to respondents. It was after the shooting that they learned that respondents claimed that the buffaloes belonged to them.

Siah denied that they had agreed to pay compensation. He shot the buffalo because Rawang told him that the buffalo was wild one belonging to no one. He shot the second buffalo later because the buffalo disturbed the area he cleared for padi planting.

Generally when a person claims ownership to a buffalo he is able to produce a certificate of registration from the headman showing ownership of the buffalo with particulars of the ear marks. In this case Mantan bin Jarau stated that he and his relatives owned the buffaloes killed by appellants. He explained that the female buffaloes had ear marks but when they died the young ones became wild and they could not catch them so the buffaloes went about without ear marks. Everyone in the kampong knows about their ownership of these buffaloes. Mantan stated that he would not have known of the killings of the buffaloes if the appellants had not quarrelled among themselves. He said appellants had agreed to pay compensation in the presence of their Ketua Kampong Alun of Kuala Punteh.
It would have been of much assistance to this court if the lower courts had indicated what custom had been breached in their decisions. It is apparent that the Native Court accepted the evidence of the respondents concerning the agreement to pay made by the appellants.

Mantan says that there is a local custom or adat in their Kampong that before slaughtering a buffalo which has become wild the owner of such buffalo must inform all the people of the kampong of his intention. Ambalau who is the Ketua Kampong of Biah says there is such a local custom or adat. He says when there is need to kill such a buffalo all the kampong people must be kept informed.
Dato Undan who is a member of this court confirms that there exists such a custom in that kampong. In fact he says that similar custom exists in many other kampongs in the Residency. He is well versed in the customs of this Residency. Both the Resident and I accept his opinion.

Further there is also a local custom that for a native from A kampong moving into B kampong to inform the Ketua Kampong of B Kampong. Appellants had moved into Kampong Biah from another kampong but they failed to inform the Ketua Kampong of Kampong Biah. They also failed to inform the people of Kampong Biah before they started shooting buffaloes. It is no excuse for appellants to say that they did not know of the custom. If they decided to move into Kampong Biah they must abide by the custom of that kampong.

For reasons given we would dismiss the appeal. As for compensation we would reduce the amount by half because the incidents occurred quite a while ago and also the sizes of the buffaloes killed were not known.
Accordingly, we would vary the order of the Native Court by reducing the amount appellants have to pay. First appellant is ordered to pay $62.50; second appellant $100.00 and third appellant $50.00

(1) There is a local custom or adat in that kampong that before slaughtering a buffalo which has become wild the owner of such buffalo must inform the people of the kampong his intention.
(2) There also exists a local custom for a native from one kampong moving into another kampong to inform the Ketua Kampong of the latter kampong.
(3) As the sizes of the buffaloes killed were not known and the incidents occurred quite a while ago the amount of compensation was reduced by half.


The Rotary Club of Likas Bay (RCLB) and the Department of Paediatric Surgery, Likas Hospital yesterday jointly launched the “Save Children Celebrate Children Campaign”.
The event was carried out in aid of children suffering from serious long-term illnesses and deformities that require constant attention from medical professionals.
One of the main aims of the campaign is to create public awareness that constant medical attention and cooperation between parents and doctors can help heal many long-term serious illnesses suffered by children.
RCLB president Peter Yapp said in his speech that their participation in the campaign is part of the club’s ongoing commitment to help children, especially those from disadvantaged backgrounds.
He said it is not the first time the club has lent a hand to children, getting involved since 1999 through donations to the children’s ward to its ongoing Cleft Palate Project in which they operated on more than 280 cases throughout the State since starting in 2004.
Yapp said the club, in collaboration with eye specialists from Queen Elizabeth Hospital (QEH) and other partners, will organise an Avoidable Blindness Outreach in Nabawan on Nov 10-11, where they expect to screen around 3,000 villagers and children.
“The Sabah Optical Association will also hand out free spectacles to poor students ... we believe that children must be aided in whatever ways to light up their lives and brighten up their smiles,” he said in his speech delivered by RCLB community director Charlie Tan.
Also present at the event was State Health Department principal assistant director Dr Heric Corey, on behalf of director Datuk Dr Rahimah Mohd Said.
After the official launch of the event, children assisted under the campaign put on various song and dance performances, a fashion show and a sharing session, which was also participated by some of their parents.


The inspirational story of Tee Hui Yi, a 14-year-old girl from Sarawak who successfully underwent a historic second heart transplant at the National Heart Institute recently, has raised the hopes of many fellow heart patients and given the country’s organ donation drive a huge boost.
Bishop Datuk Rev Voo Thien Fui, President of Sabah Council of Churches and Deputy President of Council of Churches Malaysia, who had signed up years ago as an organ donor, is among thousands of people who are moved by Tee’s plight and triumph over great odds and has pledged to organize a campaign throughout Sabah early next year.
In an exclusive interview with The Borneo Post, the Bishop says organ donation is a gift of life and a noble deed because it could save lives and allow the recipients to continue living in a more joyful way.
“We will hold a meeting next month to discuss further the campaign and the subject, organ donation. In the meeting, I would encourage all the churches, including our organization, to participate in the campaign,” he says.
“In fact, Malaysia Basel Christian Church is the first Christian organization to respond in answering the call of the Government to save other people’s lives on 28 March 1999, and during our maiden organ donation campaign then, over 300 church members signed up as donors,” says Voo, who is also a Director of Gospel Operation International for Chinese Christians (Malaysia).
As a Christian, we believe that our body is not mortal,., when a human dies, the spirit would leave the body; and the next stage for the spirit (after death) is more important than life on earth,” he adds.
On his belief relating to organ donation from the standpoint of Christians, Voo says, “If the organs are still healthy when a human dies and he had signed up to donate them to those in need, it is a charity for the needy who always hope that someone would come forward to ease his or her pains.
“We cannot just see other people suffering when we could do something about it, as it is a responsibility to help each other as humans whenever possible.
“I have no objection to any individuals who want to sign up as organ donors. Personally, I encourage Malaysians, particularly from Sabah, to sign up especially during our coming campaign,” says Voo, who is also Sabah Adviser to Agape Counseling Association.
When asked for point of views related to Dr Lily Ng ongoing campaign, organ donation, and once held a seminar for their church members here, Sabah Executive Secretary of Basel Christian Church of Malaysia, Ho Yin Kheong, says the recent seminar conducted by Dr Lily Ng for their church members was important to create awareness of the need for organ donation and better understanding of the process involved in becoming a donor,
For example, it needs the donor to sign up or the family or relatives’ consent if the donor did not sign up, Ho says,
“Also, the public need to understand the reasons to help others. In this way, people would clearly get the right information and make a decision why they need to be an organ donor,” he says.
“I think Dr Lily of the Queen Elizabeth Hospital, from our experience when she did a seminar for our church members and in her ongoing campaign for the organ donation, is working hard to help those who are still hoping and hoping.
“As you know, more and more people need healthy organs and are joining the long waiting list. In fact, the media also has helped us with the campaign and we need them to inform the people clearly.”


KOTA KINABALU: There are three great things that would bring fond memories to Lieutenant General Datuk Muhamad Effendi Mustaffa during his 37 years of service with the army.
Retiring as a happy man as he described yesterday, Muhamad Effendi said his last post, the First Infantry Division Commander since 2004, was the best closure to his army years.
“It is the best command. I was blessed with helpful and responsible commanders throughout my service in Sabah and Sarawak... I extremely enjoyed my last post and I just love being in Sabah, probably it is the nature of Sabahans who are friendly and respectful that got me really attached,” he said.
The other two wonderful memories were when he was picked to accompany Defense Minister Datuk Seri Najib Tun Razak between 2000 and 2002, and becoming the 10th PARA Troupe Commander in Malacca (2002-2004) .
Muhamad Effendi never regretted the day he joined the force. “I joined the force when I was 19 and had been in the army until my retirement year. I always believe that if you want to see the world, join the army.
“It will teach you to be disciplined and if you do your job well, you will gain success in the future,” he said.
The 56-year-old who hails from Temerloh, Pahang, will be retiring on January 8 next year. He has held 15 posts and posted to six states.
Despite looking forward to his retirement years, Muhamad Effendi admits that it would be hard for him to return to the normal civilian life.
“It has been a long way for me since I was a civil person 37 years back... my services and contribution while in the force will remain in my memory forever.” he said.
FAREWELL PARADE ... Muhamad Effendi saluting his men during the march past parade yesterday.