Insufficient evidence by Plaintiffs to prove native customary rights led to case dismissal.

[1] The Plaintiffs are Iban and natives of Sarawak. They brought this action on their own behalves and on behalf of family members. They contended that they are the owners, occupiers and proprietors of native customary rights (NCR) land situated at Kampung Semada Mawang, Simunjan, Kota Samarahan. Their claimed NCR land is shown and shaded in a map marked 'M' which is annexed to their statement of claim. The Plaintiffs contended that they have created, acquired and inherited NCR or native title over their respective area of land.

[2] The Plaintiffs complained that without their knowledge and consent the 2nd and 3rd Defendants alienated a parcel of land to the 1st Defendant by way of a provisional lease of state land. This parcel is described as Lot 35 Punda-Sabel Land District situate between Sungai Merit and Sungai Stabau, Simunjan. The Plaintiffs contended that this parcel of land overlapped and encroached onto their NCR land. The Plaintiffs contended that there was no extinguishment of their NCR over their land and no compensation was paid to them before it was alienated to the 1st Defendant. The Plaintiffs submitted that the alienation of the parcel of land and the provisional lease issued to the 1st Defendant was unconstitutional, null and void.

[3] The Plaintiffs complained that the 1st Defendant, its servants or agents had trespassed into and had planted oil palm trees in their NCR land.

[4] The Plaintiffs initially sued and claimed against the 1st, 2nd and 3rd Defendants inter alia:

a. a declaration that the Plaintiffs have created, acquired and inherited NCR over their respective area of native customary land;

b. a declaration that the acts of the 2nd and 3rd Defendants in issuing the provisional lease in so far as it impaired the Plaintiffs' NCR over the said land was wrong, null and void;

c. a declaration that the 1st Defendant, its servants or agents had trespassed onto the Plaintiffs' NCR land;

d. an injunction to restrain the 1st Defendant, its employees, servants or agents from trespassing, clearing, using or occupying the Plaintiffs' NCR land; and

e. for damages to be assessed by the Deputy Registrar.

[5] The 1st Defendant filed a Defence denying the Plaintiffs' claims. The 1st Defendant denied that the 2nd and or 3rd Defendant had approved or issued the provisional lease to the 1st Defendant. The 1st Defendant contended that the Plaintiffs had wrongly filed this action against the 1st Defendant because the provisional lease is registered in the name of Masranti Plantation Sdn Bhd. The 1st Defendant elected not to call any witness or to adduce any evidence. The 1st Defendant also did not file any submission at the end of the trial. The 2nd and 3rd Defendants did not file any defence to the statement of claim. At the commencement of trial the Plaintiffs have yet to join the 4th Defendant as a party in this suit.

[6] Under native customs in Sarawak, a native of Sarawak can create and acquire NCR over land by clearing virgin jungle and farming the land which has been cleared or inheriting the native customary lands from their ancestors. These customs have been recognised and codified in legislations in Sarawak. Section 2 of the Sarawak Land Code defines 'Native Customary Land' to include land in which native customary rights, whether communal or otherwise, have lawfully been created prior to the 1 January 1958, and still subsist as such. Pursuant to s 5(1) of the , as from 1 January 1958, NCR may be created in accordance with the native customary law of the community c