Native customary rights established prior to the issuance of a provisional lease cannot be extinguished without compensation, thereby safeguarding constitutional property rights.

Headnote:(A) Federal Constitution - Articles 5 and 13 - Land Code - Section 28 - Native customary rights - Plaintiffs established rights over land prior to provisional lease issued to defendants, which violated constitutional provisions for deprivation of property without compensation - Lease deemed null and void in relation to plaintiffs' land. (Paras 24-28)

(B) Customary Law - The concept of pemakai menoa recognized under customary rights, encompassing agricultural land and communal resources - Continuous occupation as a proof of customary rights affirmed through oral and documentary evidence. (Paras 17-22)

Facts of the case:
Plaintiffs claimed native customary rights over land in Kampung Merakai, which was partially covered by a provisional lease issued to the defendants, resulting in damage and destruction of crops and land. (Para 1)

Findings of Court:
The court confirmed the plaintiffs' customary rights remain undisturbed, nullifying the lease portion affecting those rights and ordered rectification of the land registry. (Paras 1, 28)

Issues: Did the plaintiffs acquire native customary rights? Was the issuance of the provisional lease to defendants valid? (Paras 1, 28)

Ratio Decidendi: Court affirmed that customary rights established through ancestors’ occupation were protected; the provisional lease's issuance that encroached upon these rights constituted a constitutional violation requiring legal remedy. (Paras 24-27)

Result: Provisional lease declared null and void over the relevant land; plaintiffs entitled to damages.

LUKING UDING & ORS vs SUPERINTENDENT OF LANDS AND SURVEYS KOTA SAMARAHAN DIVISION & ORS - 2011 MarsdenLR 1954