The court affirmed that serious claims of native customary rights require preservation of evidence through injunction, outweighing the opposing party's loss, establishing a standard for balancing harm in equitable relief.

RULING

The Plaintiffs claim native customary rights over land part of which was alienated by the 2^nd and 3^rd Defendants to the 1^st Defendant under provisional leases described as Lots 15 and 16, Block 3 Sangan Land District respectively. The Plaintiffs are asking for various declaratory reliefs including a declaration that the issuance of provisional leases is null and void. Additionally, they are also seeking a prohibitory injunction restraining the 1^st Defendant, its servants and agents from entering, clearing and occupying the land over which the Plaintiffs claim native customary rights. The instant application is the Plaintiffs' application for an interlocutory order in relation to the prohibitory injunction which is one of the reliefs the Plaintiffs are asking for in the action.

In the affidavit in support of the application, the Plaintiffs asserted that their ancestors and through to them, have for many generations past until now continued to occupy, cultivate and use the land they are claiming to be entitled to under native laws and custom. The Plaintiffs are neither aware of nor consented to the issuance of the provisional leases to the 1^st Defendant which constituted the extinguishment or termination of their native customary rights over land covered under the provisional leases. Towards the end of November, 2010 the servants of the 1^st and the 2^nd Defendants demolished 25 houses within Lot 16 and unless restrained 30 more houses belonging to the Plaintiffs would also be demolished and at the same time the physical evidence constituting proof of the Plaintiffs' claim to native customary rights at the trial of the action would be destroyed.

The 1^st Defendant resisted the application for interlocutory injunction. The 1^st Defendant, by an affidavit in opposition filed on its behalf admitted to being the registered proprietor of the 650 hectares of land under Lot 16 which was alienated on 23.12.2002 and to be developed into a new township called Samarakan. The 1^st Defendant had through its director, one Ghazali Bin Ismail had ascertained from the 2^nd Defendant that Lot 16 was devoid of any native claims. It was asserted on behalf of the 1^st Defendant that in a previous action commenced by the Plaintiffs in 1999 and finally determined, Lot 16 fell outside the area which had been adjudicated to be land under Native Customary Rights to which the Plaintiffs were entitled to. On 18.12.2008 the 1^st Defendant successfully obtained an order of possession granted by the High Court at Bintulu against persons in occupation of Lot 16 and it was conceded by the 1^st Defendant that only the 4^th Plaintiff was a party to those proceedings. There was no application for a stay of the order for possession. The Plaintiffs were granted an ex-parte order which prevented the 1^st Defendant from proceeding to develop the new township and thereby they sustained substantial losses caused by the delay to the project. Hence the inter-partes hearing of the Plaintiffs' application for interlocutory injunction.

It is useful to set out briefly the statement of the law enunciated in KEET GERALD FRANCIS NOEL JOHN v. MOHD NOOR @ HARUN BIN ABDULLAH & 2 ORS, - 2 AMR 337 which are relevant for the determination of the instant application. They are these: firstly, the Court has to consider whether the facts presented by the Plaintiff disclose a bona fide serious issue to be tried without the need to determine the merits of the claim and if the Court finds that there are serious questions to be tried, then, secondly the Court must go on to consider where the justice of the case lies which entails weighing the harm that the injunction would produce by its grant against the harm that would ensue from its refusal and thirdly, it has to be borne in mind that discretionary considerations such as delay in making the application and the adequacy of damages as a remedy are considerations which may determine the grant or refusal of an injunction.

In the absence of mate