JUDGMENT

Clement Skinner J:

This is the hearing of an appeal against the decision of the learned Judicial Commissioner, Miri, who on 13 November 2000 after a full trial, dismissed the appellant's claim for a declaration that he had acquired native customary rights to a piece of land in Miri and that damages be paid to him by way of compensation for the extinguishment thereof. The appellant here was the plaintiff, while the 1st and 2nd respondents were the defendants in the court below. By agreement of the parties, the learned Judicial Commissioner was requested to decide only whether the appellant was entitled to the declarations he sought, with damages to be assessed at a later date if such rights were established.

The brief facts leading to the claim are these. It was alleged that for many years prior to 1 January 1958 the appellant's father and later the appellant, a Malay, a native race of Sarawak, had acquired and exercised native customary rights over a piece of land situate along the Miri/Pujut Road, forming part of Lot 660 Block 8 Miri Concession Land District (hereafter 'the said land') by clearing it, occupying it and planting crops such as rubber and fruit trees thereon. The material facts as far as the appellant's claim to native customary rights only are concerned, are pleaded in paras 3 and 4 of his statement of claim. Since a point of pleading has been taken in this appeal, we will set out what these 2 paragraphs state. They read:

3. The Plaintiff acquired native customary rights over all that parcel of land situate at Miri/Pujut Road, Miri containing 6.00 acres, more or less, forming part of Lot 660 Block 8 Miri Concession District as more particularly shown and shaded in yellow in the plan annexed hereto as "A" (hereinafter referred to as "the said land") by Malay custom or adat and/or by inheritance from his father, Kilong bin Dullah and by occupation thereof. The Plaintiff avers that his deceased father and his family, including himself, cleared the said land first planted it with rubber trees and later fruit trees.

4. The said native customary rights over the land had been exercised by the Plaintiff's deceased father and the Plaintiff himself for many years prior to the 1st day of January, 1958 and have never been extinguished by the 1st Defendant and/or the 2nd Defendant.

By a notification published in the Sarawak Government Gazette dated 24 December 1982 ('the 1982 Notification') the second respondent declared the said land to be a Government reserve for the purpose of a park, but later went on to build a religious school on it. It is the appellant's case that the respondents should have paid him compensation for his native customary rights to the said land before issuing the 1982 Notification. Hence the filing of this suit. It should be mentioned that in addition to the declaration just mentioned the appellant had also sought two other declarations, namely, that by 24 December 1994 the respondents' rights and title to the said land had been extinguished by the appellant's adverse possession of the same; and that the respondents' action in declaring the said land as a park constituted a wrongful interference with his rights over the same, but the appellant abandoned his claim for the latter two declarations at the hearing and proceeded only with prayers for the declaration first mentioned and damages.

The respondents' defence to the appellant's claim to native customary rights (as opposed to his other claims) was essentially that:

(i) they admitted that the appellant had acquired native customary rights over the said land as claimed, but contended that as it was formerly 'ex-Shell Concession Area' no such rights could have been created over the said land.

(ii) since the appellant had not acquired any native customary rights over the said land the need to extinguish his alleged rights did not arise;

(iii) the development of the said land for a school was lawful as the publication of the 1982 Notifi