Indefeasibility of title under land law does not preclude claims of Native Customary Rights, emphasizing the need for context in each case.

[1] Before me is the application of the 1st defendant made under O 18 r 19 (1)(a); alternatively, under O 18 r 19 (1)(b), (c) and (d); and/or pursuant to O 92 r 4 of the Rules of 2012 ("ROC") seeking to strike out the Writ and Statement of Claim ("SOC") of the plaintiffs and for the action to be dismissed. The plaintiffs naturally oppose the application.

[2] The background facts leading to this application are as follows. The plaintiffs in their SOC state that they are Iban by race and natives of Sarawak. They claim that they had acquired communal Native Customary Rights ("NCR") over the land which is shown in the map marked "X" annexed to the SOC ("NCR land"). It is the plaintiffs' case that the NCR land was settled, occupied and cultivated by their ancestors before the establishment of the Brooke Administration in Sarawak. Their complaint is that the Superintendent of Lands and Surveys Mukah Division (the 2nd defendant) and the State Government of Sarawak (the 3rd defendant) had, without their knowledge, alienated and issued a provisional lease to the 1st defendant for a parcel of land described as Lot 33, Block 4, Balingian Land District ("Lot 33") which covered or included a substantial part of the plaintiffs' said NCR land. The provisional lease was issued on 15 December 2009 and the date of expiry is on 14 December 2069. The plaintiffs' case is that the issuance of the provisional lease by the 2nd and 3rd defendants was unconstitutional and unlawful as it impaired their NCR over the land without first extinguishing their NCR and ensuring that adequate compensation was provided for under the Sarawak Land Ordinance ('SLO'). The plaintiffs therefore seek declaratory reliefs and damages for trespass.

[3] The 1st defendant emphasised that it has since January 2010, developed and used Lot 33 for agricultural purposes by planting oil palm and by building the infrastructure for such purposes. In doing so, it has incurred expenditure of about RM15,000,000.00. According to the 1st defendant, the plaintiffs have been aware of these matters and activities.

Grounds Of Application

[4] The 1st defendant's grounds for wanting the plaintiffs' claim dismissed are these:-

(a) the claim is barred by reason of Items 72 and 97 of the Schedule to the Limitation Ordinance of Sarawak ("the SLO");

(b) the claim is barred by s 2 of the Public Authorities Protection Act, 1948 (" PAPA ");

(c) the claim is barred by delay and laches; and

(d) the 1st defendant as registered proprietor has indefeasibility of title and Lot 33 is not encumbered by any alleged NCR of the plaintiffs.

Is The Action Barred Under Item 72 Of The Schedule To The SLO?

[5] Item 72 of the Schedule to the SLO states:-

[6] Thus, under Item 72, the limitation period to cancel or set aside an instrument not otherwise provided for is three years and time begins to run from when the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him. The 1st defendant says that it is not in dispute that Lot 33 was alienated to the 1st defendant on 15 December 2009. The document of title issued was an instrument which granted rights to the 1st defendant. As such, the time limit for the plaintiffs to seek the cancellation or setting aside of the alienation or the document of title issued is three years and that had expired on 15 December 2012. Furthermore, the 1st defendant since January 2010 had developed and used Lot 33 for agricultural purposes by planting