Peh Swee Chin SCJ:

[1] A small point of practice and procedure relating to evidence at variance with or departing from pleading arises in this appeal and though there is no dearth of authority on it, application of the relevant principles seems to have frequently given rise to some difficulty as in this appeal; further, we feel we ought to give our reasons for differing from an otherwise well-reasoned judgment of the learned trial Judge.

[2] For reasons which will become apparent later, only a very brief summary of the facts in this case will be given.

[3] The seven respondents, (hereafter the plaintiffs), have all claimed to have acquired native customary rights in certain allegedly state lands at Kampong Dagang, Miri, Sarawak, by virtue of Sarawak's Land Code. Because of the entry of the appellants upon their respective lands and the demolition of their houses thereon by the appellants, they now claim an injunction to restrain the appellants from building on the respective lands and damages, etc.

[4] Both appellants (hereafter the defendants), in each of their respective defence deny the allegation that plaintiffs have acquired such native customary rights but admit their ent