Native Customary Rights must be established through continuous occupation and use of land, not merely claims based on ancestry or proximity.

[1] By a Statement of Claim dated 7 May 2015, the Plaintiff claims against the Defendants for the followings:

(a) that an injunction be granted restraining the Defendants whether by themselves, servants, agents or otherwise howsoever from entering and/or trespassing on the Plaintiff's Provisional Lease of State Land described as Lot 14 Block 22 Seredeng Land District (hereinafter referred to as the Plaintiff's said Land);

(b) that an Order be granted for the Defendants to vacate the Plaintiff's said Land;

(c) that damages to be assessed;

(d) further and other reliefs which this Honourable Court deems fit and just; and

(e) costs.

The 1st Defendant's Case

[2] The 1st Defendant's case is that the area allegedly encroached by the 1st Defendant in the Plaintiff's said Land (hereinafter referred to as "the Encroached Area") is part of the NCR land claimed by the 2nd Defendant and his longhouse residents and that the 1st Defendant has entered the Encroached Area of the Plaintiff's said Land with the authority and consent of the 2nd Defendant and his longhouse residents and the 1st Defendant never claimed to have acquired any Native Customary Rights ("NCR") interests or rights over the said Encroached Area.

The 2nd Defendant's Case

[3] The 2nd Defendant contended that they had acquired or created NCR rights over all the area of land located at the left bank upstream of Sungai Tembawai, from the mouth of the river up to the source, between Sungai Tembawai and Sungai Tilan, and also the area of land at the mouth of Sungai Mupong as indicated and shaded red, blue and yellow respectively in Map "M" annexed to their Defence and Counterclaim.

[4] Based on Map "M", the land claimed by the 2nd Defendant are overlapping with the Encroached Area which is part of the land comprised in the Plaintiff's above Provisional Lease described as Lot 14 Block 22 Seredeng Land District ("Lot 14"). For the purpose of this Grounds of Decision, the whole area claimed by the 2nd Defendant shall be referred to as "the Claimed Area" and the overlapping area as the "Encroached Area".

[5] The Claimed Area is within the area of former timber licences namely:

(a) No. T/3240 issued from 15 May 1990 until 31 July 2003 to Tanagah Sdn Bhd;

(b) No. T/3430 issued from 24 September 2004 until 23 September 2014 to Elemen Maju Sdn Bhd; and

(c) No. OT/3557 issued from 03 September 2010 until 02 September 2014 to Delta Padi Sdn Bhd.

[6] The 2nd Defendant contended as follows:-

(a) That the 2nd Defendant has no knowledge of the granting and/ or issuance of any lease to the Plaintiff over the Plaintiff's said Land and that the Provisional Lease issued to the Plaintiff over the Plaintiff's said Land was unlawful and void as the 2nd Defendant and his longhouse residents have acquired NCR rights over the part of the Plaintiff's said Land.

(b) That the 1st Defendant is merely a contractor where the 2nd Defendant has engaged to work together to develop the Encroached Area and the 1st Defendant has been working on the NCR land since 2008 without disturbance until 2014.

(c) That the Plaintiff has no right to stop the 1st Defendant from working on the Encroached Area as it belonged to the 2nd Defendant and his longhouse residents. The Plaintiff has trespassed onto the 2nd Defendant's NCR land and claims against the Plaintiff's for injunctive reliefs and damages.

The 2nd Defendant's Case Against The 3rd Partie