Native customary rights can exist even within areas designated for state leases, provided historical occupation is substantiated and proven by evidence.

[1] The High Court in Sibu delivered its decision on 17 February 2012 in Suit No: 21-1-2010. These appeals arose therefrom.

[2] The four plaintiffs were Usang Ak Labit, Luis Ak Libau, Semuel Ak Genta and Siew Anak Libau ("1st, 2nd, 3rd and 4th plaintiffs respectively"), suing on behalf of themselves and all other proprietors, occupiers, holders or claimants of native customary Lands situated at Rh Gorai, Rh Siew, Rh Memuos, Rh Ngindang, Rh Gedong, Rh Chendoi, Rh Kuching, Rh Tabor, Rh Encharang and Rh Lipu Ak Ali, c/o Rh Uto Ak Gorai, PO Box 89259, Mini Pos Selangau, Sibu Division, Sarawak.

[3] The plaintiffs named Rosebay Enterprise Sdn Bhd, the Superintendent of Lands And Surveys, Sibu Division and the State Government of Sarawak as the 1st, 2nd and 3rd defendants respectively.

[4] In that decision, the High Court dismissed the claim by the 1st plaintiff and judgment was granted in favour of the 4th plaintiff. No specific orders were granted or made against the 2nd and the 3rd plaintiffs. We reproduce below the orders made by the High Court:

"1. The 1st plaintiff's claim be dismissed with cost;

2. A declaration that the 4th plaintiff has native title and/or native customary rights and/or usufructuary rights over the entire area of land now covered by Lease of State Land Lot 13;

3. A declaration that the 1st defendant and/or its servants or agents had trespassed upon the 4th plaintiff's native customary land;

4. A declaration that the Lease of State Land Lot 13 by the 2nd and 3rd defendants is subjected to the native title and/or native customary rights and/or usufructuary rights of the 4th plaintiff in or over the native customary land;

5. That the 1st defendant and/or its employees, servants, agents to be restrained from trespassing, clearing, using or occupying the 4th plaintiff's native customary land;

6. That the 4th plaintiff be given forthwith vacant possession of their native customary land;

7. Damages to be assessed by the Deputy or Senior Assistant Registrar in the plaintiffs' native customary land;

8. Costs be to the 4th plaintiff; and

9. Costs be to the 1st, 2nd and 3rd defendants against the 1st plaintiff."

[5] Against that decision, Rosebay Enterprise Sdn Bhd ("1st appellant") filed Civil Appeal No: Q-02-661-03-2012 and the Superintendent Of Lands And Surveys, Sibu Division ("2nd appellant") and the State Government of Sarawak ("3rd appellant") filed Civil Appeal No: Q-01-138-03-2012; and we refer to the appellants hereafter by these descriptions separately and as "appellants" collectively.

The Appeals

[6] At the appeal, this Court was informed that the 2nd and 3rd appellants had filed discontinuance against the 1st, 2nd and 3rd respondents since no orders had been granted in their favour.

[7] The remaining respondent in Appeal No: Q-01-138-03-2012 is therefore 4th respondent Siew ak Libau. This is also correct for the 1st appellant in Civil Appeal No: Q-02-661-03-2012.

Basic Approach To NCR Cases

[8] As is evident, Suit No: 21-1-2010 concerns a claim of a breach of native customary rights (NCR) over land. Between the denial of a native's NCR right to land, to whom it is not mere asset but upon which his livelihood depends, and protecting the State from being made the victim of a false claim, these cases require anxious consideration to avoid mis-appreciation of the facts and thus injustice to one party or the other.

[9] Without a structured and systematic approach, the adversarial type of litigation descends from the level of persuasion towards a detached and objective appreciation of facts and evidence and decision on the NCR claim in accordance with law as submissions to a Court of law and justice ought to be, into an imbroglio of effective sounding argument but which offers no assistance towards determination of facts correctly. This is