Insufficient proof of continuous occupation and establishment of Native Customary Rights results in claim dismissal.

[1] In this case the Plaintiffs brought this action claiming they have created/acquired and/or inherited Native Customary Rights (NCR) of a piece of land known as Lot 4811, Section 64, Kuching Town Land District with a total acreage of about 8.57 acres more or less and edged in RED in a locality map annexed to the Statement of Claim (hereinafter referred to as the said "NCR Land").

[2] The 1st Defendant is the Superintendent of Lands & Surveys Department for the Kuching Division. The 2nd Defendant's is the State Government of Sarawak.

The Plaintiff's Pleaded Case

[3] In this case, the Plaintiffs plead that their late grandfather/father En Salleh had cultivated and occupied the said land since 1926 until he passed away in 1952. From 1952 to the date of the settlement exercise of the said land to a state land in 1973, the Plaintiffs' family through the late Hanafi had occupied and to continue to cultivate the said NCR land.

[4] The Plaintiffs further plead that sometime in year 1973, without the knowledge and/or consent of the Plaintiffs, the said NCR Land was gazetted by the Defendants and/or their servants or agents as state land without first extinguishing NCR over the same as provided for under the provisions of the Sarawak Land Code (Cap 81) 1958 and/or its predecessors therefore the said gazette was and is null and void and of no legal effect.

[5] In the written submission after a full trial, the learned counsel for the Plaintiffs proposed that the issues be decided by the court are as follows:-

[1] Whether the Plaintiffs have created and/or acquired native customary rights (NCR) over Lot 4811, Section 64, Kuching Town Land District;

[2] if (1) is answered in the positive, whether the Plaintiffs' NCR were properly extinguished in accordance with the Sarawak Land Code ;

[3] if (1) is answered in the positive, whether the Settlement Order in 1973 was valid and lawful; and

[4] Whether the defendants had breached their fiduciary duty to the Plaintiffs.

[6] For the purpose of this judgment, apart from the above issues, learned counsel for the defendant had also proposed that the court consider the other issues as stated in their written submission. Having heard the evidence in this case, I propose to deal and concentrate on issue [1] ie whether the Plaintiffs have created and/or acquired native customary rights (NCR) over Lot 4811, Section 64, Kuching Town Land District. I take this view because if this issue is answered in the negative, all the other issues would become irrelevant.

[7] In this case at the end of a full trial and after considering the evidence that had been adduced, I find that this court would have to answer the above issue [1] in the negative. I will now give my reasons for doing so.

Whether The Plaintiffs Have Created And/Or Acquired Native Customary Rights (NCR) Over Lot 4811, Section 64, Kuching Town Land District

The Plaintiff's Evidence

[8] In order to prove their claim, the Plaintiffs have called three witnesses. They are PW1 [ En Berawi Mohamad ] who is the Ketua Kampung, PW2 [Puan Panny Salleh] who is the daughter of the late En Salleh and PW3 [Aiashah Ismail ] who is the 1st Plaintiff and the granddaughter of the late En Salleh.

[9] Out of the three witnesses called by the Plaintiffs, only PW2 was able to shed some light on the creation of the NCR by the late En Salleh, as she had lived on the said land until 1952, before she and the rest of her family moved out from the said land to reside in another village, which was about 30 minutes walk from the said land. The 2nd Plaintiff, Hanafi [late Hanafi] in this case had passed away before the commencement of the trial. The late Hanafi was the 2nd child of the late En Salleh and the younger brother of PW2. He was raised and lived on the said land as well unti