Permits under the Sarawak Land Code do not confer native customary rights without continuous occupation prior to 1958.

[1] This is an appeal by the State Government of Sarawak and the Superintendent of Land & Surveys, Bintulu ("the 1st and the 2nd defendants") against the decision of the High Court at Bintulu in allowing the respondents' ("the plaintiffs") claim for various declaratory orders and consequential reliefs in respect of native customary rights ("NCR") over more or less 813.83 hectares of land ("the disputed area").

[2] The disputed area was within the provisional lease issued by the 1st and the 2nd defendants to Lembaga Tabung Haji and Semai Mekar Sdn Bhd ("the 3rd and the 4th defendants").

[3] The 3rd and the 4th defendants filed a separate appeal against the order of the High Court. For non-compliance with the rules of Court, their appeal however, was struck out.

The Background Facts

[4] The inhabitants of Rumah Remang, Sebungan, were issued with a "Permit to fell virgin jungle" dated 24 April 1961 ("the permit") under s 10(3) of the Sarawak Land Code ("the Land Code"). The permit reads:

"28 doors from Rumah Remang, Sebungan are hereby permitted to fell hutan tua in the ulu Sebungan sa-belah kiri mudek from Nanga Balim to the ulu."

[5] On 2 April 1996, the 1st and/or the 2nd defendants ("the defendants") granted a provisional lease of State land described as Lot 2, Block 4, Seluzu Land District containing an area of 6,692 hectares to the 3rd and 4th defendants.

[6] The plaintiffs alleged that the provisional lease covered their NCR land and that the provisional lease was issued without payment of compensation or extinguishment of their rights and was therefore illegal or unconstitutional.

[7] The plaintiffs filed a claim against the defendants, seeking for inter alia, a declaration that they have NCR and native customary land over the disputed area within the provisional lease; for re-possession of the said native customary land and for damages.

[8] The plaintiffs pleaded that:

(i) they are Iban natives and are descendants of the inhabitants of Rumah Remang, Sebungan;

(ii) they and their ancestors had been occupying cleared virgin jungle at Sungai Selujuk/Balim/Ulu Sebungan and Bukit Bala and had acquired and created NCR over the land cleared;

(iii) the rights so created were passed to them in accordance with Iban custom; and

(iv) they and their ancestors had been occupying and cultivating the land cleared.

[9] The defendants maintained that the said provisional lease was lawfully and properly issued under the Land Code and put the plaintiffs to strict proof of their claim for their NCR.

Proceedings In The High Court

[10] To prove their NCR claim over the disputed area, several witnesses testified for the plaintiffs. We do not propose to reproduce their evidence except to highlight the evidence of some of the witnesses as follows.

[11] Gani anak Tarang (PW1) who was about 76 years old at the time he gave evidence, stated amongst others, that:

(i) he is the Tuai Rumah (TR) and that he was authorised by the rest of the plaintiffs to testify on their behalf;

(ii) he is the fourth generation to have occupied and settled over the NCR land;

(iii) in 1961, the plaintiffs were given a permit to clear the virgin jungle at the Sungai Balim area; and

(iv) the younger plaintiffs' claim is based on inheritance under Iban custom whilst for the older plaintiffs', the claim arises by the fact that they had taken part in clearing the old jungle to create NCR both before 1958 and under the permit given in 1961.

[12] PW1 further testified that before "we obtained the permit in 1961, our ancestors had long ago cleared and created native customary rights land at Ulu Sungai Sebungan". According to PW1, before him, there was the first TR named Chabu who was succeeded by TR Umbar AK Galat. TR Umbar in turn was succeeded by TR Remang. In 1961, be