Native customary rights can be established based on customary practices and historical agreements, even without statutory codification, under the Sarawak Land Code.

Proceedings

The plaintiffs, Iban by race, claim for native customary rights on lands as residents of the longhouse communities of Selezu, Setulai and Sepadok of Sebauh District, Bintulu, Sarawak. The exact location of their claim is as set out in the map annexed to statement of claim marked "M" and edged yellow. The defendants deny the existence of such claims and in substance puts the plaintiffs to strict proof.

Background Facts

Two provisional leases over Lot 2 Block 4 Selezu Land District and Lot 2 Block 34 Kemena Land District located in Bintulu were issued to the 2^nd and 3^rd defendant by the 5^th defendant through the 4^th defendant. The 1^st defendant is a joint venture company of the 2^nd and 3^rd defendants. The lands upon which the plaintiffs claim for native customary rights are within the parcel of land of the two provisional leases, hence giving rise to this claim for declaration by the plaintiffs that they possess Native Customary Rights (NCR) on part of the provisional leases.

Issues

From the pleadings, evidence adduced and submissions of respective counsel, the determinative issues for the court are these:

1. Whether the plaintiffs can maintain this representative action?

2. Whether the plaintiffs have established native customary rights over the lands as set out in map annexed to the statement of claim?

Issue No. 1

Whether the plaintiffs can maintain this representative action?

Counsel for the defendants submitted that this claim though couched in 'native customary right' terminology is in fact a trespass action and as such the plaintiffs must establish that they have native customary rights first. With respect to counsel, I am not quite sure about what they are saying. The relevant provision in the High Rules is Order 15 rule 12 which reads as follows:

Rule 12. Representative proceedings. (O. 15 r. 12)

(1) Where numerous persons have the same interest in any proceedings, not being such proceedings as are mentioned in rule 13, the proceedings may be begun, and, unless the court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.

(2) At any stage of proceedings under this rule the court may, on the application of the plaintiff, and on such terms, if any, as it thinks fit, appoint any one or more of the defendants or other persons as representing whom the defendants are sued to represent all or all except one or more, of those person in the proceedings; and where, in exercise of the power conferred by this paragraph, the court appoints a person not named as a defendant, it shall make an order under rule 6 adding that person as a defendant.

From my reading of the rule, all it requires is that there exists a 'same interest' and in this proceeding the plaintiffs and the others whom they are representing share a same interest in claiming for native customary rights land at the Longhouse communities of Selezu, Setulai and Sepadok of Sebauh District, Bintulu, Sarawak. The rule does not stipulate that NCR must be established first, as submitted by counsel for the defendants. Accordingly, I reject the submission of counsel for the defendants.

Before I deal with issue no. 2, let me state that counsel for the defendants should have raised issue no. 1 as a preliminary issue instead of raising it after full trial of the case as this issue could have determined the fate of this case.

Issue No. 2

Whether the plaintiffs have established native customary rights over the lands as set out in the map annexed to the statement of claim?

The plaintiffs' case is premised on section 2(a) of the Sarawak Land Code (Cap. 81) 1958 which defines 'Native Customary Land' to mean:-

(a) land in which native customary rights, whether communal or otherwise, have lawfully been created prior to the 1 January 1958, and still sub