JUDGMENT

Silke J:

This is a claim by the plaintiff, Nyalong anak Bungan, for a declaration that the plaintiff is the lawful rightful owner of that parcel of land situate at Simanggang/Serian Road containing an area of eight acres more or less, under customary right "by virtue that the first person to `berimba' the jungle and farm the land was his father Bungan anak Awan followed by himself and his family"

During the course of the proceedings the original claim was amended to add two alternative claims namely a claim that he had acquired the land in his own right by the clearing of the jungle and cultivation by himself and a further claim that he had acquired in his own right by customary tenure that portion of the land which he had cleared and cultivated himself.

The defendant denies the chum firstly on the grounds that the father of the plaintiff was Chinese by race, secondly that both the father and the plaintiff moved away from the district thus losing all rights, thirdly that the land has been abandoned by the plaintiff for a period of over 15 years and that he has thus lost all rights and, finally, that the land was never in fact cleared at all.

The somewhat confused eviden