The judgment clarifies the application of customary land rights amidst statutory land titles and reinforces the principle of indefeasibility once titles are issued.

Introduction

[1] This case was heard and tried by YA Sangau Gunting until completion and he has since retired without rendering the final decision of this case. This Court took over this case and sought the views of the Plaintiffs and the 4th, 5th and 6th Defendants who were the remaining defendants as to whether they have any objections to this Court, rendering the decision of this case based on the notes of evidences, the exhibits adduced and the written submissions submitted. Both the Plaintiff and the 4th, 5th and 6th Defendants informed that they have no objection to this Court, taking over this case and delivering the judgment.

Background

[2] This Suit was commenced by the Plaintiffs, being the claimants of having native customary right claiming against the Defendants, ie Sibu Slipways Sdn Bhd, Lambang Sinar Mas Sdn Bhd, Indranika Jaya Sdn Bhd, Superintendent of Lands and Surveys, Samarahan Division, Director of Forest, Sarawak and Government of Sarawak. In the Statement of Claim filed herein, the Plaintiffs seeks the following Orders from the Court, namely:-

[a] a declaration that the Plaintiffs have acquired native customary rights (NCR) over the said NCR land in the Map marked "M" attached to the statement of claim therein;

[b] a declaration that this native customary rights precludes the 1st, 2nd and 3rd Defendants from impairing or abridging the Plaintiffs' right;

[c] a declaration that the 1st, 2nd and 3rd Defendants and/or their employees, servants, agents, contractors from trespassing, entering, clearing and/or occupying the Plaintiffs' said NCR land;

[d] a declaration that the issuance of the Forest Licence No 8393 to the 1st Defendant, the issuance of provisional leases Lot No 1230 and Lot No 1509 to the 2nd Defendant and subsequently provisional leases Lot No 01229 to the 3rd Defendant as far as it covers the said land is null and void;

[e] a prohibitory injunction restraining the 1st, 2nd and 3rd and/or their employees, servants, agents, contractors from trespassing, entering, clearing and/or occupying the Plaintiffs' said land;

[f] an order to the 6th Defendant for the recognition of such NCR and or to enter and/or record in their Registry such rights and thereafter to issue title to the said land in accordance with the provision of the Land Code (Cap 81) Sarawak;

[g] General damages against the 1st, 2nd and 3rd Defendants to be assessed;

[h] Interest to be charged on the said amount of damages at the rate of 8% per annum from the filing of this action date of judgment and payment as against the 1st, 2nd and 3rd Defendants;

[i] and any other or relief this Honourable Court deem fit and just and;

[j] cost of this action.

[3] The 1st, 2nd and 3rd Defendants were struck out as parties to this case before the commencement of the trial.

[4] During the trial, the Plaintiffs called 14 witnesses to prove their case. The witnesses called are Claus-Peter Gross (PW1), Nicholas Bawin Anak Anggat (PW2), Gubil Anak Padat (PW3), Mallis Anak Sujang (PW4), Laja Anak Gila (PW5), Rijau Anak S'tan (PW6), Jeram Anak Mikai (PW7), Nikodemus Anak Singgai (PW8), Jakim Anak Sadid (PW9), Entili Anak Antas (PW10), Riay Anak Belawing (PW11), Agol Anak Gila (PW12), Sanggat Anak Lasa (PW13) whereas the 4th, 5th and 6th Defendants called 3 witnesses, namely Lim Siau Chung (DW1), Chin Chan Lee (DW2), Happysupina Bin Sait (DW3) to resist the Plaintiffs' claim.

The Plaintiffs' Case

[5] The Plaintiffs claimed they are Ibans residing at Kampung Spaoh, Kampung Menat Ulu and Kampung Menat Ili, Jalan Gedong, Simunjan, Sarawak. The Plain