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2018 MarsdenLR 842
HIGH COURT SABAH & SARAWAK KUCHING
ALI JEMAN – Appellant
Versus
INDRANIKA JAYA SDN BHD & ORS – Respondent
[Suit No: KCH-22-71-8-2013]
The burden of proof for establishing Native Customary Rights lies with the claimant, requiring credible evidence of continuous occupation and adherence to statutory requirements.
Headnote:In interpreting the provisions of the Sarawak Land Code, the court examined the claims for Native Customary Rights made by the plaintiff on behalf of his family. The plaintiff contended continuous occupation since 1958 based on family history, supported by witness testimonies. However, the court found insufficient evidence particularly regarding the legal establishment of such rights, highlighting the necessary burden of proof. The judgment concluded that the plaintiff failed to substantiate claims against the defendants adequately, dismissing the case entirely.
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| 1. establishing party claims predicated on historical occupations or permits. (Para 1 , 4) |
[1] The plaintiff pleaded as follows:
"The plaintiff is suing in this action on his own behalf as well as on behalf of his family members and the residents of and/or the occupiers and claimants of Native Customary Rights (NCR) and/or situated at/around all of Kampung Gumpey, Gedong, 94800 Simunjan, Sarawak (hereinafter "the plaintiff ")."
[2] The 1st defendant, Indranika Jaya Sdn Bhd are holders of 4 Provisional Leases namely Lot 1252, Lot 249, Lot 173 and Lot 164, Sedilu-Gedong Land District.
[3] The 2nd defendant, Salisan Sdn Bhd are holders of two provisional Leases namely Lots 1510 and 1511 Bukar-Sadong Land District.
[4] The 3rd defendant is the state authority that issued the said Provisional leases to the 1st and 2nd defendants and is the employee of the 4th defendant, (State Government of Sarawak).
[5] The plaintiff claimed for all the lands around Bukit Sebijit on the left hand side of Batang Sadong and in particular over all or a substantial part of Lot 1252, Lots 249, 173 and 164 Sedilu-Gedong Land District which belonged to the 1st defendant and Lots 1510 and 1511 Bukar-Sadong Land District which belonged to the 2nd defendant ("the said Claimed Area").
[6] On 13 December 2013, the plaintiff obtained a Default Judgment against the 2nd defendant. Initially, this case proceeded for trial between the plaintiff, the 1st, 3rd and 4th defendants. After completion of the trial and before delivery of the judgment, the 2nd defendant applied to set aside the Judgment in Default of Appearance obtained against the 2nd defendant on 5 September 2016. Upon hearing the 2nd defendant's application, this court set aside the Default Judgment. Dissatisfied, the plaintiff appealed to the court of Appeal. In the meantime, this court ordered the trial of the case between the plaintiff and the 2nd defendant to proceed as this case was long outstanding. The plaintiff's application for stay of the trial was rejected. The trial between the plaintiff and the 2nd defendant was completed and this court delivered its judgment in respect of the plaintiff's claim against all the defendant herein.
