JUDGMENT

1. This is my judgment in respect of the plaintiffs' (Iban native of Sarawak) claim against the defendants' for trespass and seeking injunctive relief damages etc., and the defendants' counterclaim for damages to two of the vehicles.

2. At the commencement of the hearing, parties have agreed that the case can be heard by way of: (i) witness statement for examination in chief; (ii) preliminary cross-examination witness statement, with full liberty to further cross-examine orally (for purposes of cross-examination); (iii) preliminary re-examination statement with full liberty to further re-examination if there is further oral examination. The court is extremely grateful to the parties for agreeing to such a mode as the preliminary cross-examination witness statement will save much of the court's time to deal with peripheral matters and for all practical purposes, preliminary cross-examination witness statement will stand as interrogatories and answers thereto only, as the right of oral cross-examination to the litigant is preserved during the whole trial.

Brief facts

3. The plaintiffs' claim that at all material times they have created, acquired and/or inherited native customary rights (NCR) over that area of land shaded in orange in the map marked "A" attached with their statement of claim (hereinafter referred to as "the said Land") which is located on the left bank of Balleh River (as one proceeds upriver), in between two streams locally referred to as Sungei Selegup and Sungei Ujung Tanju, with an area of approximately 21 land, the plaintiffs say that they will refer and rely in this trial on a Natives Court decision at Kapit, under reference No. CCIKPT/05/2004(c) given on the 20th September 2005, where the plaintiffs were found to be the lawful owners of the said Land.

Allegation of Trespass by defendant

The plaintiffs' action is based on trespass alleged to have been committed by the defendants and/or its agents, named Mok Yin Kiang, sometime in June 2004. The alleged act of trespass onto the said land by the defendant was the construction of a logging road passing through the said land without the plaintiffs' consent or approval and as such the plaintiffs suffered damages and loss as a consequence of the defendant's alleged trespass. The particulars of loss and damages are as follows: (i) many rubber trees had been destroyed; (ii) about 2 acres had been destroyed for the use of the said logging road for a distance of about 1/3 km; and (iii) loss of income from the said rubber trees which were destroyed. The plaintiffs claim for the said loss and damages to be assessed before the registrar.

The defendants dispute that: (i) the plaintiffs had acquired native customary rights; (ii) the native court has no power and/or jurisdiction to make any declaration that the plaintiffs are the owners of the land; (iii) the action is bad in law as both the defendants and the state government were not called as parties in the said native court proceedings; (iv) there is no evidence that the plaintiffs are the native customary right holders or legal owners of the said Land; (v) the defendants are not aware of any rubber trees alleged to be owned by the plaintiffs and destroyed by the defendants due to the construction of the said logging road; (vi) the said logging road which was constructed by the defendants in fact, did not encroach on the land allegedly belonging to the plaintiffs. The plaintiffs had refused to conduct a joint inspection with the defendants to identify the alleged encroachment of the plaintiffs' land; (vii) in any event, even if the said logging road had encroached on the said land (which is strongly denied), the plaintiffs are estopped from proceeding with the present legal action against the defendant as by a written Memorandum of Undertaking dated 11-06-2004 duly signed by the plaintiffs, wherein the plaintiffs had agreed inter-alia that they shall not press or demand for any payment whatsoever against the d