The action for Native Customary Rights is not statute-barred under the Limitation Ordinance or Public Authorities Protection Act due to a continuing injury.

[1] The Plaintiffs in the original action were claiming for several declaratory reliefs which included a claim of Native Customary Rights ("NCR") over areas surrounding Kampung Long Wat, Sungai Apoh.

[2] However, the 1st Defendant (By Original Action)/ Plaintiff (By Counter Claim) had vide encl 48 applied under O 33 rr 2, 3 and 5 of the Rules of Courts 2012 for an order that a question or issue partly of fact and partly of law be determined at the trial of this matter before all other questions or issues in this matter If the answer to that question of law is in the affirmative, an order that the action herein be dismissed with cost.

[3] Learned counsel for the Plaintiffs acceded to the application and the trial on that question of law proceeded on 30 August 2017.

[4] The question of law that was sought to be determined was:

"Whether the Plaintiffs' cause of action herein is barred by s 3 of the Limitation Ordinance Sarawak and s 2(a) of the Public Authorities Protection Act 1948?"

[5] The Plaintiffs had only one witness, TK Anyi Avit (PW1), who was the 1st Plaintiff. The witnesses for the 1st Defendants were Albert Tan Thean Wei (GIS Manager of GP Pusaka Sdn Bhd) (DW1), Ling Uong Chong (General Manager of Tahora Trading Sdn Bhd) (DW2), Collin Goh Tee Khiang (Assistant Forest Plantation Manager) and Ting Jack is Hui (Director of the 1st Defendant) (DW4). There were no witnesses on the part of the 2nd to 6th Defendants.

[6] The documents referred to and tendered as Exhibits were:

(1) Map marked "X" attached to DWS-1 was marked as Exhibit "D-1";

(2) Minutes of Meeting dated 7 May, 2005 at Long Wat at pp 50 - 56 of the 1st Defendant's Bundle of Documents was marked as Exhibit "D-2";

(3) Map marked "Y" attached to DWS-3 was marked as Exhibit "D-3";

(4) Licence for Planted Forest No LPF/0011 at pp 1 - 36 of the 1st Defendant's Bundle of Documents without the Second Schedule was marked as Exhibit "D-4";

(5) Letter from the Jawatankuasa Kemajuan dan Keselamatan Kampung (JKKK) Long Wat to the 1sl Defendant at p 37 of the 1st Defendant's Bundle of Documents was marked as Exhibit "D-5";

(6) Letter from 1st Defendant to Ngan Lejau at p 39 of the 1st Defendant's Bundle of Documents was marked as Exhibit "D-6";

(7) Letter from Tahora Trading Sdn Bhd to the 1st Defendant at p 43 of the 1st Defendant's Bundle of Documents was marked as Exhibit "D-7(A)";

(8) Letter from JKKK Long Wat to KTS Timber Sdn Bhd at p 44 of the 1st Defendant's Bundle of Documents was marked as Exhibit "D-7(B)";

(9) Letter from the 1st Defendant to Tahora Trading Sdn Bhd at p 43 of the 1st Defendant's Bundle of Documents was marked as Exhibit "D-8".

The Law

[7] Section 3 of the Limitation Ordinance (Sarawak Cap 49) provides:

"Every suit instituted after the period of limitation prescribed therefor by the Schedule, if limitation has been set up as a defence, shall be dismissed. "

[8] The Schedule of the Limitation Ordinance provides:

[9] Section 5 of the Limitation Ordinance (Sarawak Cap 49) states:

"Where, by any special law nor or hereafter in force in Sarawak, a period of limitation is especially prescribed for any suit, nothing herein contained shall affect or alter the period so prescribed."

[10] Section 2 of the Public Authorities Protection Act 1948 (Act 198):

"Where, after the coming into force of this Act, any suit, action, prosecution or other proceeding is commenced in the Federation against any person for any act done in pursuance or execution or intended execution of any written law or of any pub