Native customary rights are confined to cultivated areas and do not extend to virgin forest areas.

[1] This judgment is prepared and delivered pursuant to s 78(1) of the Courts of Judicature Act 1964 , as Justice Zaharah Ibrahim CJM has since retired. My learned sister Justice Alizatul Khair Osman Khairuddin FCJ, my learned brother Justice Abang Iskandar Abang Hashim FCJ and my learned sister Justice Nallini Pathmanathan FCJ had read this judgment in draft and all of them agreed that this judgment be our judgment.

[2] The appeal in this case emanated from two actions filed in the High Court, namely, Originating Summons No: 24-44-2010 (MR) ("OS") and Civil Suit No: 21-5-2011 ("the Civil Suit"). Both actions were jointly tried. In the appeal, the parties will be referred to as they were in the judgment of the High Court. The plaintiff in the OS, (which is the 1st defendant in the Civil Suit) will be referred to as Tung Huat. The brief background facts which led to the filing of the two actions in the High Court and eventually the appeal before this Court are these. On 7 February 2000, a parcel of land measuring more or less 3,361 hectares described as Lot 2, Block 9, Bukit Kisi Land District (Lot 2) was alienated to Tung Huat under a provisional lease (PL) of State Land. Before being alienated to Tung Huat, Lot 2 was first alienated to the Land Custody and Development Authority (LCDA). On discovering the presence of several parties on the land, Tung Huat filed the OS against non-native defendants to recover possession of the Land under O 89 Rules of High 1980. The defendants in the OS opposed Tung Huat's application for possession of the land on the ground that they had legally purchased or acquired or had been assigned NCR land within Lot 2. The defendants claimed that the plaintiffs who held NCR over the whole of Lot 2 had sold, transferred and/or assigned various parcels of the land within Lot 2 to the 1st defendant in the OS, which land were then developed into oil palm plantation by the other defendants in the OS. As it transpired in the OS, Tung Huat and the 6th and the 7th defendants had agreed to settle the action and Tung Huat discontinued the action against them. The remaining defendants in the OS will be referred to as the OS defendants.

[3] Subsequently, the plaintiffs filed the Civil Suit in which the native plaintiffs sued Tung Huat (the 1st defendant), Land Custody and Development Authority (the 2nd defendant), Superintendent of Land and Surveys, Miri Division (the 3rd defendant) and the Government of the State of Sarawak (the 4th defendant). The plaintiffs claimed, inter alia, for a declaration that they have native customary rights (NCR) over an area of land situated at Sibuti, which included an area under a Provisional Lease (PL) issued to Tung Huat. The plaintiffs pleaded that their NCR over the Land had not been extinguished and that they had not been compensated when Lot 2 was alienated to Tung Huat.

[4] In the joint trial, based on the evidence before the Court, the learned judge of the High Court found that the plaintiffs have acquired NCR over the 380 hectares of land which were cleared. The learned High Court Judge found that on 1 January 1958, or even in 1962, the plaintiffs did not clear, had not settled in and have not acquired NCR over the rest of the area in Lot 2. The learned judge of the High Court further found that there is no evidence that the plaintiffs were asked or invited to settle inside Lot 2 either before or after 1 January 1958 by the 3rd and the 4th defendants. There is also no evidence that the