Registrar of the High Court of Sabah and Sarawak Gabriel Gumis Humen read the 32-page judgement delivered and signed by CA Judge Dato Hashim Dato Yusoff who made the judgement together with Justice Datuk Richard Malanjum and Justice Tengku Dato Baharudin Shah Tengku Mahmud.

In setting aside High Court decision, the CA judges said the High Court Judge Datuk Ian Chin based his conclusion on unsubstantiated evidence when delivering judgement in favour of Tuai Rumah Nor Nyawai, Sekalai Ling, Jerangku Bakit and Lani Taneh (now the respondents) on May 12 in 2001.

"There was also no evidence adduced to show that the disputed area was in fact under continuous occupation by the respondents and their ancestors.  The contrary may be true," the CA said.

"Firstly, there was no challenge to the testimony of Sabit (a witness) that there was no "temuda" in the area.  Secondly, the longhouse of the respondents were situated outside the (disputed) area,”

"Thirdly, the learned Judge (Chin) failed to consider what the trial judge in Mabo and Others v State of Queensland and Another (1986) did, in that he recorded that Eddie Mabo lacked credibility and that he would not accept his evidence on any matter going to self-interest, save if corroborated by other credible evidentce,”

There was also no credible corroborative evidence to indicate that there was "Pulau" by the respondent and their ancestors, it said.

Nevertheless, the CA still recognized the concept of rights over land, namely the "Temuda", "Pulau" and "Pemakai menoa" and thereby confirmed the stand of the High Court on this issue.

Meanwhile Counsel Baru Bian who represented the respondents told reporters that he would appeal to the Federal Court following the CA's decision.

State Attorney-general Datuk J.C Fong and his legal officers, Jonathan Sully and Kezia Daim represented the superintendent while Counsel Tan Thiam Teck for Borneo Pulp Plantation Sdn Bhd and Borneo Pulp and Paper Sdn Bhd.

Counsels See Chee How, Harrison Ngau and Paul Raja assisted Baru.

NCR claimants, NCR land developers and investors as well as land administrators eagerly await the outcome of this case.

On May 12 in 2001, the caase was regarded by the media and some members of the legal fraternity as a "landmark case" when the High Court held that certain Ibans, who migrated from Kanowit to Sungai Sekabai in the 1930s, had NCR over the disputed area measuring 672.8 hectares.

This disputed area that has been logged in the 1980s by Limbang Trading (Bintulu) Sdn Bhd is part of Lot 591 of Batu Kapal Land District which totaled 8,854 hectares.

Subsequently the superintendent granted a provisional lease to Borneo Pulp Plantation Sdn Bhd for a tree plantation on the disputed area.

Tuai Rumah Nor, Sekalai, Jerangku and Lani who represented other fellow villagers, claimed they had NCR over the area that was recognized by the Sarawak Land Code, Rajah's Orders relating to land and the previous land ordinances.

On the other hand, the superintendent who was sued on behalf of the State Government disputed their claim based on a 1951 area photograph, which showed that the disputed area was covered by jungle.

The superintendent also claimed that the disputed area was "Interior area land" thus no native could occupy it after 1955 if without a permit from the District Officer of Bintulu.

Their longhouse, namely Rumah Nor, established in 1955, was located outside the disputed area, the superintendent claimed.

The High Court judge held that Nor and his fellow villagers had rights over the disputed land based on Iban customs pertaining to various types of the NCR including the"Temuda", "Pulau" and "Pemakai menoa" .

He said the claimants and their ancestors exercised these rights until the alleged encroachment by the company for pulp tree planting prevented them to do so.

Chin also declared the provisional lease issued by the superintendent, null and void...END.