Hashim Yusoff JCA:

Introduction

[1] There are two appeals by the appellants (the defendants in the court below) and a cross-appeal by the respondents (the plaintiffs in the court below) before us which originated from one civil suit.

[2] At the commencement of the hearing it was agreed by all parties that they should be heard jointly due to the common issues to be determined.

[3] In the first appeal (Q-01-42-2001) the appellant is the land alienating authority for the region of Bintulu Sarawak. In the second appeal (Q-02-504-2001) the first appellant is the entity to which the appellant in the first appeal had alienated two parcels of land ('the alienated land') for the purpose of planting trees to feed a planned pulp and paper mill. The second appellant is the sub-lessee of the alienated land.

[4] These appeals are against the decision of the High court Kuching allowing the claim of the respondents with the following words:

As the plaintiffs are entitled to exercise native customary rights over the disputed area there will be and I do make a declaration that the plaintiffs are entitled to exercise native customary rights in the disputed area. Since the first and second defendants are not entitled to enter into the disputed area there will be an injunction against them and their servants or agent not to do so from henceforth. As for damages claimed, there is insufficient evidence to support the award of any sum and I therefore make no order for damages. Consequent upon my findings, the title issued to the first defendant which included the disputed area is declared void and I expect the third defendant to take the necessary steps to rectify the title so as to exclude the disputed area from the grant and the disputed area is to be reckoned by reference to the map admitted in evidence as P172, following as closely as possible the boundary of the disputed area that has been marked on the map. There will be costs to the plaintiffs against all the defendants.

[5] The appellants are dissatisfied with the findings and conclusions of the High court and have submitted several grounds before this court with the view to setting aside the orders made.

[6] Meanwhile the respondents had also filed a cross-appeal mainly on the failure of the High court to award damages after finding for the respondents.

Agreed And Undisputed Fact:

[7] At the court below the parties agreed to a statement of agreed facts as follows:

1. The 1st and 2nd defendants are companies incorporated in Malaysia under the Companies Act, 1965, having their respective registered office at 5th Floor, Crown Towers, No 88, Jalan Pending Kuching.

2. The 1st defendant has been issued with a provisional lease over all that parcel of land situate in the Batu Kapal Land District and known as Lot Number 591 containing approximately 8,854 hectares (hereinafter referred to as "Lot 591") and a provisional lease over all that parcel of land situate in the Sangan Land District and known as Lot Number 126 containing approximately 12,673 hectares (hereinafter referred to as "Lot 126"). Both Lots 591 and 126 shall hereinafter collectively be referred to as "the said Lands".

3.1 Both the aforesaid provisional leases over the said Lands were:

(a) for a term of 60 years each on the 16th day of May 1997 issued to the 1st defendant subject to the provisions of Land Code (Sarawak) [Cap 81] and to the conditions stated therein;

(b) registered at the Bintulu Land Registry Office on the 16th day of May, 1997.

3.2 The boundary of the area over which the plaintiffs and those whom they claim to represent claim to have acquired native customary rights and part of the boundaries of Lot 591 and Lot 126 as shown in the topographical map of 1:50,000 scale found at p 172 of the Bundle of Agreed Documents filed herein are accurate.

4. By a Memorandum of Sublease dated the 19th day of June, 1997 registered at the Sibu Land Registry Office and the Bintulu Land Registry Office on the 8th day of November, 1997 and the 9th