Native customary rights claims require judicial review rather than declaratory relief, and landlords' titles are indefeasible unless proven fraudulent in issuance.

[1] The three plaintiffs have filed a representative action on behalf of all others who claimed native customary rights over land at or around Kampung Spaoh, Kampung Menat Ulu and Kampung Menat III at Gedong in the district of Simunjan, Sarawak. The defendants in this action are Sibu Slipway Sdn Bhd, the holder of Forest Licence No 8393, Lambang Sinar Mas Sdn Bhd, the holder of provisional leases Lot No 1230 and Lot No 1509, and for Lot No 01229, Indranika Jaya Sdn Bhd The Superintendent of Lands & Surveys, Samarahan Division, the Director of Forest Sarawak and the Government of Sarawak are brought in as the 4th, 5th and 6th defendants, respectively. The plaintiffs contended that the forest licence and the leases issued above covered the areas of land over which they have native customary rights, proven they said by the cultivation of crops, existence of longhouses and burial grounds on the same. They have sought a declaration from the court on their said right over the land whilst praying for the forest licence and provisional leases be declared null and void with general damages to be assessed from the alleged trespass over their land. It is to be noted, before I go any further, that at the time of the filing of this action by the plaintiffs, the leases issued were provisional leases but subsequently the 2nd defendant's provisional lease was converted into 2 leases and described as Lot 226 Block 4 Sedilu-Gedong Land District and Lot 1 Block 9 Sedilu-Gedong Land District and the provisional lease issued to the 3rd defendant was similarly converted to a lease and described as Lots 164, 162 and 173 of Sedilu-Gedong Land District.

[2] All the defendants have filed, jointly and severally, applications to strike out the writ of summons and statement of claim (encl 17 by the 1st and 2nd defendants and encl 44 by the 4th, 5th and 6th defendants) and by the 3rd defendant, an application under O 14A for the following two questions of law to be determined by the court.

(i) Whether the 3rd defendant's rights, title and interest as registered proprietor of Lot No 01229 of Sedilu-Gedong Land District (hereinafter referred to as the "3rd defendant's Land") is indefeasible and free of the plaintiff's claims of alleged native customary rights as pleaded in the statement of claim.

(ii) Whether the plaintiffs could apply for or be entitled to the remedies, reliefs or orders prayed for in the statement of claim as against the 3rd defendant.

[3] Though somewhat different in nature the underlying facts supporting the applications are the same and the considerations which I shall make in these three applications would also be the same. Thus, I propose to deal with the issues raised in this manner.

[4] First, I would decide whether the plaintiffs' action here is competent against all the defendants. If it is, then I will decide whether the timber licence and leases issued are subject to the plaintiffs' claim of native customary rights over the areas covered by the licence and leases.

Competency Of The Plaintiffs' Claim

[5] At the outset, I must say that there is no way in the world I could determine the issue of the plaintiffs' native customary rights claims in this case based on affidavit evidence alone. That must be decided in a full trial, no two ways about it. However, the defendants in this case have collectively raised this issue - the plaintiffs' action should have been brought by way of judicial review of