Native customary rights must be established with supporting evidence, especially before legal recognition under the Sarawak Land Code; pleadings must accurately reflect claims to sustain procedural integrity.

[1] There are two appeals before us, namely Civil Appeal No Q-01-104-2010 ('the first appeal') and Civil Appeal No Q-02-394-2010 ('the second appeal'). These appeals are against the decision of the High Court at Kuching, Sarawak in respect of two suits which had been consolidated and heard together by the same judge. We heard both appeals together.

[2] The first and second appellants in the first appeal are the Superintendent of Lands and Surveys Department of Bintulu Division ('SLS') and the State Government of Sarawak ('SGS') respectively. The latter is the employer of the former.

[3] The first, second and third appellants in the second appeal are Ladang Sawit Bintulu Sdn Bhd ('LSB'), Lembaga Tabung Haji ('LTH') and Semai Mekar Sdn Bhd ('SMSB') respectively. The first appellant is a joint venture company set up by the second and third appellants.

[4] The respondents in both appeals are Iban by race and natives of Sarawak. They bring these actions against the appellants on their own behalf as well as on behalf of the residents of the longhouse communities of Selezu, Setulai and Sepandok of Sebauh District, Bintulu, Sarawak.

[5] The subject matter of these appeals concerns a large parcel of land of about 6692 hectares ("the disputed land") described as Lot 2 Block 4 Selezu Land District in the Bintulu Division of Sarawak which was issued to LTH and SMSB by the SLS on 2 December 1996 under a Provisional Lease of State Land pursuant to the Sarawak Land Code (Cap 81). It is not disputed that LTH and SMSB are the joint registered holders of the disputed land.

[6] For convenience and to avoid any confusion, I refer to the parties in these appeals by their own names.

The Claims

[7] The respondents aver that at all material times they have acquired native customary rights ("NCR") and/or title and/or usufructuary rights over the lands at and/or around the longhouse communities of Selezu, Setulai and Sepandok of Sebauh District, Bintulu, Sarawak. The boundary or extent of their lands are set out in a map annexed to the Statement of Claim and marked 'M' and edged in yellow. They claim that the disputed land which was issued by the SLS to LTH and SMSB "covers and includes a substantial part of their native customary lands". What this means is that the respondents are not claiming the whole of the disputed land which was issued to LTH and SMSB but only a substantial part of the said land. I mention this at the outset because the issues between the parties at the trial include, among others: (i) the exact location of the native customary lands within the disputed land; (ii) whether the respondents have acquired native customary rights and/or native title and/ or usufructuary rights over the land issued to LTH and SMSB; and (iii) whether the issue of the Provisional Lease to LTH and SMSB was bad in law, void and unconstitutional. As between the respondents and LSB, LTH and SMSB, the principal issue is whether LSB, LTH and SMSB or any one of them had trespassed on the respondents' native customary lands as set out in the map marked 'M' and edged in yellow.

[8] The respondents claim that the disputed land issued to LTH and SMSB is their native customary lands which had been acquired prior to 1 January 1958 and recognised by the Sarawak Land Code (Cap 81). The significance of the date ie, 1 January 1958, is because the term, 'Native Customary Land', is defined in s 2(a) of the (Cap 81) as, "land in which native customary righ