Sulaiman Daud JC:

By writs issued at various dates, each of the plaintiffs in these seven consolidated suits brought an action against the Superintendent of Lands and Surveys, Fourth Division and the Government of Sarawak seeking, among others, a declaration that at all material times to this action, the plaintiffs have acquired customary rights over their plot situate at Kampung Dagang, Miri, Sarawak as more particularly shown and described in annexure A ("the said lands") to the respective statement of claims and that the plaintiff was entitled to use and occupy the same.

At the outset it is necessary to briefly state the facts of the case and the background of this hearing. On 13 March 1991, the learned judge who heard this action ("the previous trial") adjudged and declared, after a full trial, that each of the plaintiffs had at all times material to the suits acquired customary rights over that plot in respect of which the declaration was sought and was entitled to use and occupy the same. However on 21 July 1994 the Supreme Court, on appeal by the defendants, set aside the said judgment and ordered a retrial of all the consolidated cases before another judge. The case was subsequently heard before another judge and on 17 May 1995 at one of such hearing the parties, through their respective counsel, came to an agreement that the only issue for determination at the retrial is whether the plaintiffs' houses were in the river bank reserve. With regard to the evidence adduced at the previous trial, it was also agreed between both parties that such evidence be incorporated as part of the evidence of this fresh trial but however subject to the condition that each party shall be at liberty to adduce any further evidence in relation thereto. The parties further agreed that all other findings of fact and law in the previous trial shall be binding upon the parties in so far as relevant. On the mode of trial, it was agreed that the plaintiff will first adduce evidence that the houses were not in the river bank reserve which will then be rebutted by the defence.

In the amended defence dated 5 August 1995, the defendant made the necessary amendment to the defence to plead the point in issue, in particular to paras. 3 and 8 thereof. The amended paras. 3 and 8, with the relevant amendment shown in the italics, read as follows:

3. The 1st and 2nd Defendants admit the allegations contained in paragraph 3.1, 3.2, and 3.3 of the Statement of Claim save that in paragraph 3.1 thereof, the Defendants deny that the said plots of land belonged to the Plaintiffs as alleged. The 1st and 2nd Defendants further say that the said plots of land were within the River Bank Reserve as provided under section 38 of the Land Code (Cap 81); and

8. The 1st and 2nd Defendants admit the allegations contained in paragraph 8 of the Statement of Claim but deny that the Plaintiffs had any customary right therein and aver that the extinguishment of the same was not necessary in the circumstances. The 1st and 2nd Defendants repeat paragraph 3 hereof.

Finding Of Facts And Law In The Previous Trial

Since both parties have agreed to be bound with all other findings of fact and law in the previous trial it is necessary for me at this stage to determine what such findings were. In the previous trial, the learned judge in considering the claim of the plaintiffs have considered two central issues, firstly whether the plaintiffs have acquired native customary rights over the lands on which their houses were situated; and secondly, if answered in the positive, whether the plaintiffs were permitted by their native custom to part with (the land and the houses) or transfer them to others within the same community.

With regard to the first issue, it is clear to me from the judgment of the previous trial that the learned judge has held that the plaintiffs have acquired native customary rights over the said land on the following ground:

(a) That the plaintiffs have met the