Native customary rights cannot be established over mixed zone land, as defined under the Sarawak Land Code, unless demonstrated prior to a critical date and not extinguished.

[1] The plaintiffs, for themselves and on behalf of the rest of their villagers at Kampung Tambirat, Asajaya in the district of Samarahan are claiming native customary rights over a parcel of land described as Lot 3403, Block 59, Muara Tuang Land District. They claimed that their acquisition of native customary rights over the said land was by themselves and/or their parents or grandparents in accordance with the provisions of the Sarawak Land Code 1958 and/or its predecessors and by common law. The plaintiffs asserted that since the times of their grandparents or parents, they all had prior to 1 January 1958 until to date, been in occupation of the said land.

[2] In this action, the plaintiffs are suing the Superintendent of Lands and Surveys and the Government of Sarawak for, inter alia, a declaration that they have acquired native customary rights over the said land and for titles to be issued to them. There are also prayers for damages because the oil palm trees which the plaintiffs planted in a joint venture agreement with a company, Wholly Plantation Sdn Bhd in February 2005 were destroyed by the 1st defendant and/or its servants and agents in December 2005 and for which losses amounting to RM532,227 (for the preparation and planting of the oil palm) and RM4,790,000 (for potential gain and profits) were suffered by them. The said sums were infact demanded from the plaintiff by Wholly Plantation Sdn Bhd.

[3] It was also pleaded in the plaintiffs' statement of claim that there had infact been recognition by the defendants of their native customary rights over the said land as evidenced by the fact that in early 1997 the defendants agreed to issue them with titles under s 13 of the Sarawak Land Code and efforts were made to survey the said land for that purpose. A specific meeting on 2 May 1997 was actually held between the plaintiffs' representative, one Bujang bin Bakar and the 1st defendant's officers in which the plaintiffs were asked to put in formal applications for the issuance of the titles. This of course did not materialize.

[4] In their defence, the defendants denied the existence of the plaintiffs' native customary rights over the said land because it was infact categorized as mixed zone land and part of Lease of Crown Land No 1958 issued in 1949 to a company called Wee Kheng Chiang & Co Ltd The said lease was surrendered to the Crown vide an instrument No L3381/1955 and registered in September of the same year with Kuching Land Registry Office. Further, by a settlement order made on 24 January 1977, the said land was designated as Lot 468 and was confirmed to be mixed zone land as when it was gazetted so vide Gazette Notification 758(6) dated 3 June 1952. Being mixed zone land, the defendants contended, no native customary rights can be acquired or inherited on the said land and that in February 2005, when the oil palm plantation started, the said land belonged to the State. Therefore the defendants were not liable in damages for the destruction of the oil palm unlawfully planted on State land.

[5] The plaintiffs called a total of four witnesses. The first witness was the first plaintiff himself who was 71 years of age at the time of the trial and a farmer His evidence