The burden lies on the plaintiffs to prove the existence of native customary rights prior to a specified date, which they failed to do.

[1] This appeal before us was against a decision of the Miri High Court where, after a full trial, the learned trial judge had dismissed a Native Customary Rights ("NCR") claim over land, brought by a group of 12 plaintiffs. They had cited the current owner of the claimed area and the state authorities as defendants. In this judgment the parties will be referred to as they were at the High Court.

[2] As gleaned from the pleadings, the judgment of the learned trial judge and also the submissions before us of the respective counsel for the parties, the following formed salient aspects of the background to this case. Save for the matters in paras (c) and (d) below which were contested by the plaintiffs, the rest was common ground between the parties.

(a) The plaintiffs were of Jati Meirek descent (considered as Malays) and therefore natives of Sarawak.

(b) The plaintiffs' NCR claim (as originally advanced) in their statement of claim was in respect of an area of 161.32 acres (85.9 ha) of land situate at Sg Adong, Miri.

(c) By Gazette Notification No: 1806 published in the Sarawak Government Gazette dated 8 October 1965, an area of 105,500 acres had been declared as "Lower Baram Forest Reserve (Third Extension)" including Sg Adong and Sg Adong Kechil with a specific reservation stated therein, namely, that "... the following people may farm in the existing temuda situated in Sungai Adong Besar and Sungai Adong Kechil ...", and included in the list of such persons was one "Surin b Jamban of Pujut" to farm at Sungai Adong Besar.

(d) The area asserted by the plaintiffs to be under NCR land also fell within a timber extraction area covered by Timber License No: T/0003 issued to one Chip Foh Sawmill Co Ltd on 1 January 1966 and there had been logging activities in that concession of the said company since 1966.

(e) The claimed NCR area was now within the boundaries of:

(i) Lot 819 Block 13 (alienated on 20 July 1995);

(ii) Lot 3247 Block 11 (alienated on 20 July 1995); and

(iii) Lot 6434 Block 10 (alienated on 21 August 1997) all in the Kuala Baram District, in respect of which the 1st defendant had been issued with provisional leases by the State.

(f) By Gazette Notification No: 115 published in the Sarawak State Government Gazette dated 27 December 2001, the claimed NCR area fell within the boundaries of land earmarked and approved for development as the "Tudan Special Development Area".

[3] The plaintiffs only filed this suit on 16 April 2012. Essentially, their plaint asserted that the plaintiffs' grandparents had lawfully acquired and created NCR over the area now claimed during the Japanese occupation, their parents and the plaintiffs themselves had continuously cultivated and occupied the claimed area and according to their adat and custom, the plaintiffs had the right to inherit the NCR attached to the area in question as the NCR thereon had never been extinguished.

[4] The above assertions obviously were to ground legitimacy for the plaintiffs' claim within the provisions of s 66(b) of the Land Settlement Ordinance 1933 (Cap 28) and ss 2 and 13(1) of the Sarawak Land Code (Cap 81). Basically, the plaintiffs' claim was that the NCR over the area in dispute was acquired by their forefathers before 1 January 1958.

The Trial

[5] After having heard 11 witnesses for the plaintiffs and five witnesses for the defendants, the learned trial judge summarised his findings in the following terms:

"[26] In this case, on a balance of probabilities, the plaintiffs have not established that they have acquired and or inherited NCR over their claimed land. Based on the eviden