Native customary rights cannot be established over land reserved for state purposes without lawful occupation or permits.

Sulaiman Daud JC:

By writ dated 22 April 1995 the plaintiff brought proceedings against the Superintendent of Land and Surveys, Miri Division and the Government of Sarawak claiming declarations, inter alia: (a) that the plaintiff was at all material times a licensee under native customary rights of all that parcel of land situate at Miri/Pujut Road, measuring approximately six acres in area, and forming part of Lot 660 Block 8 Miri Concession Land District ("the said land"); or alternatively (b) that as on 24 December 1994 the defendants' right, title and share to the said land have been extinguished by adverse possession on the part of the plaintiff within the meaning of s. 20 of the Limitations Ordinance (Cap. 49); and (c) that the act of the defendants to declare the said land as a park and to take and develop it into a school constitutes a wrongful interference with the plaintiff's enjoyments of his native customary rights therein. However in the course of submission the plaintiff abandons the alternative prayer as in (b) aforesaid.

The plaintiff's case as pleaded and precisely stated by his learned counsel in his opening statements is as follows. For many years prior to 1 January 1958, the plaintiff's deceased father and the plaintiff have exercised rights over the said land by clearing it, planting rubber and fruit trees and by the occupation thereof. In so doing the plaintiff pleaded that he had acquired native customary rights over the said land. However by a notification published in the gazette dated 24 December 1982 the second defendant declared the said land to be a government reserve for the purpose of a park and that it was later developed into a school. The plaintiff asserted that the act of the second defendant in declaring the said land to be a park and developing the same into a school without prior extinguishment of the plaintiff's native customary rights and payment of compensation were wrong in law and constituted wrongful interference with his rights and enjoyment over the said land.

The first and second defendants in their statement of defence pleaded, inter alia: (a) that the plaintiff had not acquired native customary rights over the said land as the said land was ex-Shell concession area and no native customary rights can be created thereon; (b) that the extinguishment of the plaintiff's native customary rights does not arise as he has not acquired any native customary rights over the said land; (c) that the notification published in the gazette dated 24 December 1982 was proof of the said land being a Government reserve for the purpose of a park; (d) that the development of the said land into a school was proper and according to the law and that there is neither a need to extinguish the native customary rights nor to pay any compensation to the plaintiff; (e) that the declaration of the said land as a Government reserve is not in breach of the principles of natural justice or in violation of art. 13 of the Federal Constitution; and (f) that the second defendant had not lost its rights and title to the said land or such right and title had not been extinguished by reason of the plaintiff's occupation and/or possession of the said land.

Issues

The issues as regard liability as have been mutually agreed between the parties at the outset of the hearing for determination by the court are as follows:

(a) Was the land claimed by the plaintiff as his native customary rights land as described in para. 3 of the statement of claim an ex-Shell concession area?

(b) Whether, by virtue that it was an ex-Shell concession area, no native customary rights could be created or acquired by the plaintiff?

(c) Was there any need for the second defendant to extinguish the plaintiff's native customary rights over the said land and to pay compensation before declaring the said land to be a government reserve for a park or developing it