The court reinforced the principle that native customary rights must be proven through clear evidence of continuous occupation and adherence to relevant customary practices.

[1] These two appeals were against the decision of the High Court at Sibu in Suit No 21-9-2010 (the said suit), in allowing the plaintiffs' claims for the following orders:

a) A declaration that the plaintiffs have acquired and/or created individual or communal NCR (native customary right) over the said land now covered by Provisional Lease Lot 11 but limited to only 1,391.42 acres as surveyed by PW5 and mapped by PW6 in exh 23 of PBOD.

b) A declaration that the rights precluded any one or more of the defendants from acquiring, impairing, abridging or extinguishing the plaintiffs' rights in the said land.

c) A declaration that the provisional lease to the extent of the said 1,391.42 acres is bad in law and/or null and void.

d) The plaintiffs be given forthwith vacant possession of their native customary land.

e) An order that the said land insofar as it is affected by the said provisional lease shall be excised out from the said provisional lease.

f) A mandatory injunction against the 3rd defendant to cease all operations and remove all structures, equipment etc from the said land.

h) Getting up costs of RM75,000.00 with interest of 5% to be paid to the plaintiffs and be equally borne by all the defendants.

The appellants in the Civil Appeal No Q-01-79-03-2014 were the 1st and 2nd defendants respectively in the said suit while the appellant in the Civil Appeal No Q-02-524-03-2014 was the 3rd defendant in the said suit. The respondents in these two appeals were the plaintiffs in the said suit. For convenience, parties shall be referred to as they were in the High Court.

Brief Background Facts

[2] The plaintiffs are Ibans and natives of Sarawak. They are residents of Rumah Mawar, Tanjong Pedada, Mukah, Sarawak. They claim that since time immemorial, their ancestors, their descendants and now they themselves have long acquired and created individual and/or communal native customary right over the lands at Sg Kenyana, Mukah, Sarawak consisting of an area of 580.1 hectares more or less, together with the forests, streams and rivers thereon (the said lands).

[3] The 1st defendant is the State Government of Sarawak while the 2nd defendant is the Superintendent of Lands and Surveys, Mukah Division, Sarawak. The 3rd defendant is a company incorporated under the Malaysian Companies Act 1965.

[4] On or about 17 September 1998, the 2nd defendant had issued a provisional lease for Lot 11, Mukah Land District to the 3rd defendant which the plaintiffs claim to have encroached part or covered almost the entire part of the said lands.

[5] On 30 November 2010, the plaintiffs filed this action and pleaded that their native customary right ("NCR") pre-exist the Sarawak Land Code (Cap 81) and had never been extinguished in accordance with law. They also pleaded that the said provisional lease is inequitable, illegal, oppressive, an abuse of power and unconstitutional. This action was brought by the plaintiffs for themselves and not on behalf of all the residents of Rumah Mawar.

[6] The learned Judicial Commissioner (JC) after hearing the witnesses, especially PW1 (the 3rd plaintiff) and PW3 (the 1st plaintiff) who were born in 1928 and 1956 respectively, was satisfied that the plaintiffs had proven the creation and acquisition of NCR by way of Pemakai Menoa, Temuda and Pulau Telu. Although the action was brought by the plaintiffs for only seven of them and not for the whole community, the learned JC found this to be insignificant as he opined that s 2(a) of the Cap 81 allows the creation and/ or acquisition of the NCR either "communal or oth