The High Court maintained jurisdiction over native customary rights claims, asserting that striking out applications require clear demonstration that actions cannot be sustained. Serious triable issues warrant a full trial.

[1] There are two appeals before us filed against the decision of the learned High Court Judge sitting at Kota Kinabalu on 21 March 2012 in dismissing the appellants' notice of appeals to the judge in chambers vide encl 87 and 92 against the decision of the Deputy Registrar. The Deputy Registrar had on 16 March 2003, dismissed the appellants' summons in chambers to strike out the respondents' writ of summons and statement of claim ("striking out application").

[2] Before the High Court, the appellants in the two appeals were the 1st defendant, 2nd and 3rd defendants whilst the respondents were the plaintiffs. In this judgment, we will refer to the parties as they were in the High Court.

[3] The two appeals filed by the defendants can be briefly stated as thus:

i. Appeal No S-03(IM)-65-04-2012 was filed by the 1st defendant at the Court below against the decision of the learned High Court judge in dismissing the 1st defendant's appeal against the decision of the learned Deputy Registrar in dismissing the 1st defendant's striking out application.

ii. Appeal No S-03(IM)-67-04-2012 was filed by the 2nd and 3rd defendants at the Court below against the decision of the learned. High Court judge in dismissing the 2nd and 3rd defendants appeal against the decision of the learned Deputy Registrar in dismissing the 2nd and 3rd defendants' striking out application.

Background Of The Appeal

[4] On 11 October 2012, the plaintiffs brought this representative action on their behalf and on the behalf of the native communities whom are the residents, proprietors, occupiers, holders and claimants of lands ("said land") vested with native title and/or native customary rights at the Tongod Region seeking 17 declaratory and injunctive reliefs and damages against the defendants.

[5] It is the plaintiffs pleaded case that they are the natives and descendants of the natives indigenous to the State of Sabah from the Dusun Communities. Further to the foregoing it is also the plaintiffs pleaded case that they and their ancestors have settled as native communities residing in the Tongod Region for at least five generations even before the formation of colonial North Borneo, the predecessor of the Sabah State Government ("5th defendant") and prior to the enactment of the Land Ordinance 1930 and all its preceding proclamation and legislations in land since 1881. The plaintiffs stance is that they and their ancestors have acquired native customary rights since time immemorial over the said land measuring some 8,830 hectares in the Tongod area. It is the Plaintiffs' pleaded case that during the period between 1985 and 1999, they by themselves or their predecessors had applied to the Director of Department of Lands and Survey, Sabah ("4th defendant") for the respective parcels of land comprised in the said land for the issue of the respective documents of title

[6] The present dispute arose when the 4th defendant, namely the director of Lands and Surveys Department approved Hap Seng Consolidated Bhd's ("1st defendant") application for Country Lease in year 1997 and thereafter had alienated to the 1st Defendant the land in the Tongod Region measuring 21,819 acres and in 1999, issued the land title in Country Lease No 095330724. The 1st defendant together with Asiatic Development Bhd ("2nd defendant") cleared the land and planted it with oil palm. On 3 May 2002, the 1st defendant sold and transferred the land to Tanjung Bahagia Sdn Bhd ("3rd defendant").

[7] The plaintiffs contended that the alienation of the said land to the 1st defendant by the 4th defendant was subject to their accrued native customary rights beneficially belonging to the plaintiffs and their native community. The plaintiffs' claim against the 1st, 2nd and 3rd defendants was preci