Native customary rights (NCR) and registered lease interests can coexist, preventing trespass claims until NCR are lawfully extinguished with compensation.

[1] This is yet another case where before the native customary rights (NCR) over the land have been properly and legally surrendered or terminated or extinguished and compensation made, the Sarawak State and its agencies had issued a lease of the land to private companies. This judgment explores the rights of the natives under the Sarawak Land Code (" SLC ") vis-a-vis that of the new registered lessee when a proper survey of the land has not been completed and compensation paid to the natives affected before the issuance of a State lease title over the land.

[2] The situation here is especially grievous and disturbing as at the time the natives Iban in Nikodemus and others in a representative action filed the suit in 2007 in Suit No: 22-208-2007-I in the High Court of Sabah & Sarawak at Kuching ("Nikodemus' NCR 2007 Suit"), seeking a declaration from the High Court that they have NCR over the disputed land, the leases issued were provisional leases over the subject land and subsequently these were converted into final State Leases before the High Court decided in the natives' favour.

[3] The Nikodemus' NCR 2007 Suit is different from and yet very much related to the current Suit No KCH-23NCvC-1/2-2016 in the High Court of Sabah and Sarawak at Kuching ("Indranika Jaya's Trepass 2016 Suit"), essentially a suit for damages for trespass brought by Indranika Jaya Sdn Bhd ("Indranika Jaya") against Nikodemus and Others, against which decision in favour of Indranika Jaya the natives in Nikodemus and Others had appealed to this Court.

[4] To understand the under-currents and overtones of this appeal, one would need to appreciate the issues that first arose in the Nikodemus' NCR 2007 Suit which spilled over to the Indranika Jaya's Trespass 2016 Suit against the backdrop of a supervening legislative amendment effected by the Sarawak Land Code (Amendment) Ordinance of 2018 which came into force on 1 August 2019. So, wade through the waters we must.

[5] The disputed land was at and around Kampung Spaoh, Kampung Menat Ulu and Kampung Menat Ili at Gedong in the district of Simunjan, Sarawak, measuring some 8,001 hectares.

[6] There were initially six defendants in the Nikodemus' NCR 2007 Suit where Nikodemus and others sued in a representative capacity representing the Iban natives against the defendants in the following order from the 1st to the 6th defendants:

(1) Sibu Slipway Sdn Bhd - the holder of Forest License No 8393;

(2) Limbang Sinai Mas Sdn Bhd - the holder of two (2) leases described as Lot 226 Block 4 Sedilu-Gedong Land District and Lot 1 Block 9 Sedilu- Gedong Land District;

(3) Indranika Jaya Sdn Bhd - the holder of a provisional lease described as Lots 164, 162 and 173 of Sedilu-Gedong Land District;

(4) The Superintendent of Lands and Surveys;

(5) The Director of Forest; and

(6) The Sarawak State Government.

[7] The natives, in the Nikodemus NCR 2007 Suit, sought reliefs of various declarations inter alia that they have NCR over the disputed land in question and that the alienation of the disputed land to the companies named in the suit and, in particular for the purpose of this appeal, to Indranika Jaya, is unlawful and that the issuance of the provisional leases are unlawful and null and void and that the relevant entries of the registration of the subject land in the company's name be expunged.

[8] The Government of Sarawak and its agents were aware of the pending Nikodemus' NCR 2007 Suit as they were named as defendants and they even applied for the Suit to be struck out but was unsuccessful. However, the private entities who were granted either a forest license (as in the 1st defendant) or a provisional lease (as in the 2nd and 3rd defendants) applied successfully for the Suit to be struck out.

[9] The decision is reported in Nikodemus Singai & Ors v. Sibu Slipway Sdn Bhd & Ors, , ("Nikodemus 1 case"), a decision of Justice Rhodzariah Bujang with respect to the applications filed by all the defendants, which are