Claims for Native Customary Rights must be substantiated by cogent evidence, distinct from mere assertions.

[1] The claim by the Plaintiff Alau Baru in Miri Suit No 21-01-2010(LG) against the Defendants Lee Ling Timber Sdn Bhd, Limba Jaya Timber Sdn Bhd and the Government of the State of Sarawak was dismissed by the High Court on the grounds that the Plaintiff has not established that she has acquired and or inherited NCR over the land claimed by her. Accordingly, the declarations sought under prayer (i), (ii), (iii), (iv) and (v), the injunctions under prayer (vi) and (vii), rectification under prayer (viii) and for damages were refused. The counter-claims by the 1^st and 2^nd Defendants were allowed in terms of their prayers (1) (a) and (b) with general damages to be assessed and costs to the 1^st, 2^nd and 3^rd Defendants to be taxed.

[2] The Plaintiff now appeals to this Court.

[3] For the purposes of this judgment, we maintain their designations as Plaintiff and as the 1^st, 2^nd and 3^rd Defendants in the High Court.

Background Facts

[4] According to the Plaintiff:

a. She was gifted on 22 December 1980 with a parcel of land measuring 124 hectares situated at Sungai Besan, Brunot Trusan, Lawas, by her late father Baru Puek. The parcel was claimed to be held as part of 3000 hectares of NCR land.

b. Finding out in 1998 that some logging companies were extracting timber from their NCR land and she was authorized by her family to negotiate with the logging companies which agreed to pay some compensation to her family.

[5] The Plaintiff claimed the 1^st and the 2^nd Defendants trespassed by entering upon her land and -

a. levelling her land;

b. setting up a temporary camp thereon;

c. parking heavy machineries thereon;

d. constructing a logging road thereon; and constructing a bridge on her land to cross the Trusan River.

[6] It was the Plaintiff's case that:

a. her NCR rights had not been extinguished;

b. no compensation was paid to her for her land;

c. she had a legitimate expectation to be issued a title to her NCR land;

d. she had a right to be heard before the license and or provisional lease were issued to the 1^st and 2^nd Defendants; and

e. the license and or the provisional lease should not have been issued to the 1^st and 2^nd Defendants over her NCR land.

[7] The Defendants:-

a. denied the Plaintiff's claim, and

b. denied that a timber license and/or a provisional lease of State land had been issued to the 1^st and 2^nd Defendants.

[8] Instead:-

a. the 2^nd Defendant averred it was issued with a License for Planted Forests No 0038 (LPF/0038) by the Director of Forests on 6 December 2004 for a period of 60 years over a forest area measuring approximately 37,084 hectares and that the 1^st Defendant is its contractor under the license;

b. the 1^st and 2^nd Defendants contended they were lawfully in the forest area since 2005 to carry out works under and pursuant to the license including to repair and maintain an old logging road and to build new roads, bridges and camps for its workers;

c. the 1^st and 2^nd Defendants denied that the Plaintiff has any or has acquired NCR over the land and therefore denied that they had trespassed the Plaintiff's NCR land; and

d. the 1^st and 2^nd Defendants' counter-claim on the basis that it is the Plaintiff, her servants and or agents who had encroached, trespassed and interfered with their works by blocking roads in the forest area.

[9] The 3^rd Defendant, the State Government of Sarawak maintained that in seeking to challenge the decision of the Director of Forests in issuing LPF/0038 to the 2^nd Defendant, the Plaintiff should have applied for a judicial review; and that the Plaintiff's claims were statute barred under s 202 of the Sarawak Land Code .

Preliminary Observations

[10] Strictly speaking, an appellate