Native customary rights do not invalidate the indefeasibility of state-issued land titles under the Sarawak Land Code.

Introduction

[1] The Plaintiff is a company named Kumpulan Parabena Sdn Bhd (Company No 92963-U) filed the three suits (converted from the Originating Summons No MYY-24-18/2-2016, MYY-24-19/2-2016 and MYY-24-20/2-2016) against the three individual Defendants separately ie, Yahya Bin Timbon, Mahari Bin Lamat and Haslan Bin Abu Bakar.

[2] As the subject matter involved in this case is similar, Mr Tony Ling for the Plaintiff and Mr Abun Sui for each of the Defendant agreed for all the above suits be heard and tried together.

The Brief Facts

[3] It is an undisputed fact that the Plaintiff is the registered proprietors of the leases of state land of Lots 187 and 188 both of Block 10 Lambir Land District ("the said Lands") issued by the Sarawak State Government for a term of 60 years with effect from 1 September 2009. The Plaintiff filed this action for, inter alia, vacant possession and quiet enjoyment of the said Lands. The Plaintiff also sought for a declaration that the Defendants and their family members are trespassers and illegal occupiers of the said Lands.

[4] The Defendants alleged that they have acquired native customary rights ("NCR") over the Plaintiff's Lots 187 and 188 both of Block 10 Lambir Land District. It was further alleged that the said leases issued to the Plaintiff in respect of the said Lands covered all the areas or substantial part of their claim of NCR lands. The Defendants also counterclaimed against the Plaintiff for damages as a result of wrongful trespass by the Plaintiff.

[5] The Defendant for each suit had filed their defence against the Plaintiff's claim respectively on their own behalf and also on behalf of all the residents of Kampung Tukau Jaya or Kampung Usahajaya Tukau (formerly known as Kampung Baluboh).

[6] All the Defendants will be referred collectively as the Defendants and when necessary, each one of them will be referred to as DW1 (Yahya Bin Timbon), DW2 (Mahari Bin Lamat) and DW3 (Haslan Bin Abu Bakar) respectively.

The Issues

[7] For the purpose of this judgment, I would deal with the two main issues which are: whether the Defendants have succeeded in proving that they have acquired NCR over the said Lands which leases had been issued by the State Government through the Lands and Surveys Department; and whether the Plaintiff, upon being issued with state leases over the said Lands, their titles are indefeasible.

Whether The Defendants' NCR Claim Over The Said Lands Is Proven

[8] On the first issue, in proving their case on NCR claim, all the three Defendants named in the suits had given evidence as DW1, DW2 and DW3. All the Defendants basically testified that their ancestors had cleared the area since time immemorial. They have shown to this Court that they have been continuously applying from the Lands and Surveys Department for recognition and alienation of title to their NCR lands located at hulu Sungai Baluboh and hulu Sungai Tukau which they now claimed covered the areas within Lots 187 and 188 (see p 5-6 of Bundle C; p 78 of Bundle B).

[9] Individually, DW1 relied on a letter allegedly from the Agriculture Department dated 4 June 1951 to show that they have already started the farming activities during that period (p 2 of Bundle B).

[10] DW2 testified that their ancestors planted paddy on the said disputed lands. He also testified their ancestors forage into the forest around their farms within their said NCR lands to look for forest produce.

[11] DW3 testified that besides foraging the forest to look for jungle produce, their ancestors also hunting animals within their NCR lands. He