Native customary rights cannot be extinguished without due legal process, and any lease infringing such rights without compensation is null and void.

[1] The plaintiffs and those on whose behalf they are suing are residents of Kampung Merakai which is situated at Sungei Merakai, Batang Krang, Gedong in Serian/Simunjan under the Kota Samarahan Division. They claim that they have acquired native customary rights over land through their ancestors who have over the years settled in and occupied the area, the boundary of which also served as the boundary between Kampung Merakai and several other villages which share a common boundary with Kampung Merakai. On 7 October 2000 the first and second defendants issued a provisional lease described as Lot 2979 Melikin Land District to the third and fourth defendants as co-owners part of which extended into the land acquired by the plaintiffs under Native Customary Rights. The plaintiffs contend inter alia that the issuance of the provisional lease to the extent that it meant the extinguishment or confiscation of their native customary rights over land which was covered by the provisional lease was wrongful because there was no provision for compensation to the plaintiffs and no compensation was given nor expected to be given. In late 2000 the third and fourth defendants, ignoring the protests and objections of the plaintiffs cleared the plaintiffs' land acquired under native customary rights and destroyed the trees and crops on this land. The plaintiffs are seeking various declaratory reliefs and orders against the defendants.

[2] The first and second defendants did not dispute the area claimed by the plaintiffs as delineated and set out in the map attached to the statement of claim but deny that the plaintiffs had acquired native customary rights over the area they claimed part of which was covered by the provisional lease. It was clear from the map attached to the statement of claim an identical version of which was admitted in evidence as exh. P13 that the plaintiffs' land acquired under native customary rights was covered by the area under the provisional lease because the map showing the provisional lease produced by the defendants namely exh. D5 clearly showed that to be the case. The first and second defendants also pleaded their reliance on s 28(2) of the Land Code . The pleaded defences of the third and fourth defendants respectively were essentially premised on the first and second defendants' pleas.

[3] It is perhaps appropriate and useful to begin with the testimony of Nicholas Bawin Ak Anggat (PW2) whose evidence contributed to the celebrated case of Nor Anak Nyawai & Ors v. Borneo Pulp Plantation Sdn Bhd & Ors, an authority which has since been cited with approval by the Federal Court in Superintendent Of Land & Surveys Miri Division & Anor v. Madeli Salleh, . PW2 is an ethnic Iban and sometime deputy head of the Majlis Adat Istiadat, Sarawak from 12 August 1992 to 28 February 2005, whose knowledge of Iban custom and tradition was from his personal experience and observation having been born and brought up in his longhouse and through research and study because they were documented by many well known authors like D. Freeman, Kedit, Dr. Dimbab Ngidang and Benedict Sandin just to name some. According to PW2 the Ibans constitute the biggest ethnic native group in Sarawak who have settled throughout the length and breadth of Sarawak including the whole area of Batang Krang where the plaintiffs claim to be entitled to land under native customary rights. PW2 said that native customary law, customs and traditions are synonymous and they embody the