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WE respect the decision of the Native Court of Appeal of Sabah delivered on 27 October 2025 when it dismissed the appeal and set aside the decisions of both the District Native Court of Papar and the Papar Native Court, citing procedural irregularities and insufficient evidence to sustain the charge of mianu-anu or enticement of another man’s wife.

This case carries wider implications for the future of native jurisprudence in Sabah and the interpretation of adat. It compels reflection on how far the evidentiary and procedural standards of the Civil Courts should apply to the Native Courts, which are fundamentally different in nature and purpose.

The Native Courts of Sabah were never intended to function as courts of law in the strict sense. They are customary tribunals guided by adat, moral conscience and restorative justice. Their purpose is to restore harmony, dignity and balance within the community, not to punish in the manner of the civil or criminal courts. 

While it is ideal that the procedures prescribed under the Rules are observed, one must also recognise that the Native Court process has always been communal, informal and accessible to the very community it serves, the natives of Sabah.

Until and unless the law is reformed to harmonise modern procedural standards with the realities of native adjudication, the Native Courts must continue to operate in the spirit in which they were founded. 

To impose rigid evidentiary or procedural requirements on litigants who are not represented and on adjudicators who are not legally trained risks transforming the Native Courts into technical forums detached from their cultural foundations.

This decision also brings into question how the adat of mianu-anu and enticement are to be interpreted moving forward. 

Under Kadazan-Dusun customs, the concept of mianu-anu and enticement encompasses a broad range of acts that breach marital honour and community harmony. 

Even physical touch involving another person’s spouse without consent constitutes a moral and customary offence that warrants sogit. The purpose of sogit has always been restorative, to repair the customary breach within the community, not to criminalise or penalise.

This decision reflects a movement towards a higher evidentiary burden in proving customary offences such as mianu-anu and enticement which introduces a standard that may be foreign to the Native Court system. 

While this may enhance procedural consistency, it also raises concerns about whether such standards align with the restorative framework and communal nature of native adjudication. 

One must also consider that adjudicators in the lower native courts are not legally trained as they are native customary leaders within their communities and not judges applying the letter of the law. 

The decision further raises questions about the treatment of procedural irregularities. Rule 6 of the Native Courts (Practice and Procedure) Rules 1995 clearly provides that non-compliance with procedural requirements shall be treated as an irregularity and shall not nullify the proceedings. 

Given that parties before the Native Courts are not allowed legal representation in the lower courts and unfamiliar with formal legal processes, the law must allow flexibility to ensure that substance prevails over form and that justice remains accessible to the ordinary native litigant.

Lastly, the decision touches on the extent of the appellate jurisdiction of the Native Court of Appeal. When the proceedings before the District Native Court were declared void, it remains a matter of interpretation whether the Native Court of Appeal could properly rehear the matter when the factual findings of the Papar Native Court had never been disturbed on merits. 

This is an important procedural issue that deserves further study to ensure consistency and fairness in the appellate process.

Despite these concerns, we continue to respect the decision of the Court and the judicial process. This case, in our view, represents a critical turning point for native jurisprudence in Sabah. 

It calls upon policymakers, practitioners and native leaders to re-examine the framework governing the Native Courts, to strengthen procedural clarity without eroding the living character of adat.

The Native Courts are not relics of the past; they are living institutions that embody the conscience, traditions and values of Sabah’s indigenous peoples. Any reform or interpretation of the law must serve to uphold that heritage, not diminish it. 

We will review the written grounds of judgment when released and advise our client accordingly.

Isaiah Majinbon

(Messrs Luping & Co)

Counsel for the Appellant

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: Forum@dailyexpress.com.my