The court established the validity of ownership claims over Native Customary Land, affirming that entered agreements must be respected and similar historical claims need proof.

Introduction

[1] The plaintiff brought this action against the defendants to claim damages for trespass and extraction of timber without his permission from a piece of land comprising one Pulau Engkabang which is situated at Upstream Sungai Sepitoh, Engkuah, Song, Sarawak. 7 witnesses testified at the trial: 4 for the plaintiff; 1 for the 1st defendant and 2 for the 2nd defendant. I delivered judgment on November 19, 2015 and held the defendants liable in damages for trespass and unlawful extraction of timber from the plaintiff's land. I further ordered for damages to be assessed by the Senior Assistant Registrar. Both defendants have appealed the decision.

The Bundles Of Documents And Exhibits

[2] The documents produced and admitted as evidence at the trial are as follows:-

(i) Bundle of Pleadings : BP

(ii) Plaintiff's Bundle of Documents (Part B) : Bundle B1

(iii) 1st defendant's Bundle of Documents (Part B) : Bundle B2

(iii) 2nd defendant's Bundle of Documents (Part B) : Bundle B3

(iv) Plaintiff's Supplementary Bundle of Documents : Bundle L

Part A - item 2 (p 3)

Part B - item 1 (pp 1-2) and item 4 (p 6)

Part C - item 3 (pp 4-5)

Hereinafter, I will refer to the documents by their bundle markings and page numbers. For instance p 1 of Bundle B1 will be referred to as B1 p 1; p 4 of Bundle L as BL p 4 and so on.

Background Facts

[3] The plaintiff and the 2nd defendant are natives of Sarawak whereas the 1st defendant is a company incorporated in Malaysia. The Pulau Engkabang in question ("the disputed Pulau Engkabang") is approximately 7.63 hectares in size and it is shown on the locality map marked M ("Map M") that is attached to the Amended Statement of Claim (ASOC) with the boundary lines in orange. This same map was produced at the trial as BL p 6. It is common ground between the plaintiff and the 2nd defendant that the Pulau Engkabang is Native Customary Land (NCL) but they each claimed ownership of it to the exclusion of the other. On 1 September 2013 the 1st and the 2nd defendants entered into an agreement whereby the 2nd defendant, claiming to be the rightful owner of the land, gave rights to the former to extract timber from there. Pursuant thereto, the 1st defendant entered the land and carried out logging activities.

Plaintiff's Claim

[4] At all material times, the plaintiff had acquired Native Customary Rights (NCR) and interest over the disputed Pulau Engkabang ("the land"). The plaintiff's ancestors had been living in Nanga Engkuah since 1936 and have been there for more than 3 generations. The land was formerly owned by Seliong ak Anggau ('Seliong') and Mendong ak Etot ('Mendong') who were, respectively, the uncle and aunt of the plaintiff's wife by the name of Luncha. Seliong has a sister by the name of Bejau ak Anggau ('Bejau'). There was a division of property made between Bejau and Luncha after Seliong and Mendong decided that Luncha should inherit their property. The Pulau Engkabang at Upstream Sungai Sepitoh was given to Luncha. After Seliong had passed away, Mendong stayed with her son Mikai for a while but decided to move back to stay with Luncha when Mikai and his wife had refused to take care of her. Hence, there was an agreement made on 11 September 1998 between Mendong, Mikai and Luncha and the plaintiff whereby the disputed Pulau Engkabang situated at upstream Sungai Sepitoh, Engkuah was to be inherited by Luncha and the plaintiff. It was therefore the plaintiff's case that he and Luncha had inherited the land from Seliong and Mendong.

[5] At the end of year 2013, the villagers told the plaintiff that there were men from a logging company to fell trees and to collect log wood. The plaintiff met with the representative of the 1st defend