The court recognized limited native customary rights over certain areas while affirming the non-transferability of such rights under Sarawak law.

Introduction

[1] There were two appeals before us arising from the decision of the High Court at Miri in a joint trial of a Civil Suit and an Originating Summons (OS). Appeal No Q-01-94-03-2014 (Appeal No 94) was filed by the appellants/ plaintiffs in the Civil Suit whereas Appeal No Q-02-485-03-2014 (Appeal No 485) was filed by the appellants/OS defendants.

[2] In the Civil Suit, the native plaintiffs, sued Tung Huat Pelita Niah Plantation Sdn Bhd (Tung Huat), Land Custody and Development Authority (LCDA), Superintendent of Lands and Surveys, Miri Division and the Government of the State of Sarawak as the 1st to the 4th defendants respectively. The plaintiffs claimed for inter alia 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.

[3] In the OS, Tung Huat as the plaintiff filed an action against the non-native defendants for vacant possession under O 89 of the Rules of the High 1980 (now Rules of 2012).

[4] We had dismissed both appeals. We now give our reasons and for ease of reference, in this judgment, the appellants in Appeal No 94 will be referred to as the plaintiffs while the respondents will be referred to as the defendants. The appellants in Appeal No 485 will be referred to as the OS defendants, while the respondent will be referred to as Tung Huat.

The Background Facts

[5] On 7 February 2006, 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 PL of State Land. Prior to Lot 2 being alienated to Tung Huat, it was first alienated to LCDA.

[6] In the Civil Suit, the plaintiffs claimed that they are Iban and natives of Sarawak. They filed the suit on behalf of themselves and the residents of five longhouses in Sibuti against the defendants claiming that they had acquired NCR over the land; that their NCR had not been extinguished and that they had not been compensated when the land was alienated to Tung Huat.

[7] The plaintiffs sought for inter alia a declaration that they had acquired the NCR over lands in the Map marked "M" attached to the statement of claim, and for a declaration that the issuance of the PL to LCDA and the subsequent transfer of the land to Tung Huat is null and void.

[8] Tung Huat filed the OS claiming for possession of the land under O 89 of the Rules of the High 1980 on the premise that the OS defendants had illegally occupied parts of the land without Tung Huat's licence, consent and/ or permission.

[9] The OS defendants claimed that the plaintiffs who held NCR over the whole of Lot 2 had sold, transferred and/or assigned various parts of land within Lot 2 to the 1st OS defendant, which were then developed into palm oil plantation by the other OS defendants. The OS defendants thus opposed Tung Huat's application for possession on the ground that they had legally purchased or acquired or had been assigned NCR land within Lot 2.

Proceedings In The High Court

[10] In the High Court, the plaintiffs claimed that they have acquired and/ or inherited NCR over an area of land which is shaded in yellow in the map marked as "M" attached to the statement of claim (exh P2).

[11] The 1st plaintiff, Jeli Naga (PW1) testified that since the predecessors of the plaintiffs moved into the area, they had acquired NCR over Sg Sibuti, Sg Kelitang, Sg Klad and Sg Bakas where they planted padi, fruit trees and rubber trees. According to PW1, each of the longhouses had their pemakai menoa which encompassed