Native customary rights claims may face strikes due to procedural issues yet can be saved by estoppel if acknowledgment of rights exists.

[1] The plaintiffs are claimants of native customary rights over land situated at a village called Kampung Melugu, Sri Aman, Sarawak and have sued the plantation company who have been issued with the provisional lease over the same area claimed by them as the 1st defendant, the parent company of the 1st defendant as the 2nd defendant, the Superintendent of Lands and Survey Department of Sri Aman being the issuer of the said lease as the 3rd defendant and the Sarawak Government as the nominal last defendant. In their statement of claim, the plaintiffs prayed for nine declaratory reliefs, chief of which is that they have acquired native customary rights over the area claimed. The plantation companies have filed a notice of application to strike out the claim against them under O 18 r 19 (1) of the Rules of 2012 on the usual grounds that the claim is scandalous, frivolous or vexatious; it may prejudice, embarrass or delay the fair trial of the action and is otherwise an abuse of Court process.

[2]The reason disclosed in the affidavit in support and emphasized in the written submission of their counsel, Ms Thian Ling Ying is because the plaintiffs have failed to plead the specific location of the area claimed and have failed to produce map "Y" mentioned in the statement of claim in paras 3(e), 3(f), 4 and 18(e) thereof as showing the area claimed. The said paragraphs read as follows:-

"3. (e) A preliminary composite Map "Y" showing this Lot, and the plaintiffs said lands, would be used in the trial of this action or any application thereto.

3. (f) The plaintiffs reserve the right to add new parties and pleadings as the facts, details and including an update of the Map "Y" as the situation progress or become clearer, and/or more data like the position of the tembawangs (old settlements), pendams (cemeteries) etc can be incorporated therein after further indepth survey(s).

4. The plaintiffs aver that at all material times, they, together with family members, relatives and other fellow villagers, are the original title, occupational ticket etc holders or have acquired native customary rights and/or rights in common law and/or are customary owners and/or holders of usufructuary rights (hereinafter referred as native customary rights or the said rights) over all the lands on the both side of Sg. Dor, the boundary of which is particularly delineated in red on the map marked "Y" (hereinafter referred to as "the plaintiffs' said Lands"), located at Melugu, Sri Aman, Sarawak, and in particular part of which may be covered by Lot 321, Block 7, Klauh Land District, of which the overlap of the plaintiffs' said Lands with Lot 321 is now called 'the Disputed Area'. And the plaintiffs shall be referring to it at the trial of this action.

18. (e) However to this very day there are pockets of the encroached lands, by the road side and also deep inside the said Disputed Lands, called Munggus where the plaintiffs have maintained their occupation to the exclusion of the defendants, despite continuous efforts of the defendants. These Munggus are marked in Map Y."

[3] However, Map Y has since been produced by the plaintiffs but as an exhibit to the affidavit in opposition to the application deposed by Mr. Dominique Ng, counsel for the plaintiffs. This is not acceptable, submitted Thian because the plaintiffs are not allowed to improve their pleading by affidavit evidence and further as the reproduced para 4 shows as well as para 3 (d) which I will reproduce below, the plaintiffs used the word 'may' when making the allegation that the said lease covers their native customary rights lands. Paragraph 3 (d) reads:

"3. (d) The PL(s) may cover part of the plaintiffs' said Lands as defined in para 4 below."

[4] In fact, the word 'may' is also used in para 3 (c) when describing the issuance of