A registered easement right is not extinguished by inaction over time, as it lacks a time limitation under statutory law.

[1] This is an appeal by the appellants (plaintiffs in the High Court) against the decision of the learned High Court Judge, Kuching, Sarawak, who had, at the end of the trial, dismissed the appellants' claim, but allowed in part the respondent's (the defendant in the High Court) counterclaim. For the purpose of this judgment, the parties will be addressed as they were in the trial Court.

[2] After hearing submissions from counsel representing both parties and on a consideration of all the materials on record, we had unanimously found that there were merits in the plaintiffs' contentions and therefore allowed their appeal. In the same breath, we dismissed the defendant's counterclaim insofar as it was allowed by the learned trial judge. The reasons in deciding as we did will now be given.

The Plaintiffs' Claim

[3] In their claim in the High Court, the plaintiffs sought for the following remedies:

(i) a declaration that the defendant is not entitled to build or cause to be built any building or other erections upon an access road of a uniform width of 16 feet on Lot 254 section 18 Kuching Town Land District, a registered easement right of way appurtenant to Lot 255 over Lot 254 section 18 Kuching Town Land District vide Memorandum of Endorsement of Conditions of Survey Plan approved under the Land (Control of Subdivision) Ordinance No L 2396/66 of 23 June 1966;

(ii) That the defendant do remove the concrete base fence constructed on the registered easement right of way appurtenant to Lot 255 over Lot 254 Section 18 Kuching Town Land District;

(iii) Damages to be assessed;

(iv) Costs; and

(v) Such further and other relief as the Court deems just.

Background Facts

[4] In order to appreciate the issues and argument raised by parties, it is apposite to narrate briefly the facts of the case upon which the above claim was founded. Most of the basic facts as agreed in the pleadings and found by the learned trial judge are not in dispute. Stripped to the essentials, the facts as found or admitted are as follows:

(a) The plaintiffs are the current registered proprietors of Lot 255 Section 18 Kuching Town Land District (Lot 255) and the defendant is the current registered proprietor of Lot 254, section 18 Kuching Town Land District (Lot 254). Both Lot 254 and Lot 255 adjoin each other.

(b) Lots 254 and 255 were initially part of a parent lot described as Lot 29 Section 18 Kuching Town Land District. The Parent Lot was applied to be subdivided into six parcels of land which included Lots 254 and 255. It was a condition for the approval of the Survey Plan for the subdivision by the Kuching Municipal Council "that an access road of an uniform width of 16 feet be registered as an easement right of way appurtenant to Lot 255 over Lot 254 Section 18 Kuching Town Land District" because it was a land in a development area by the survey plan.

(c) Under s 10 of the Land (Control of Subdivision) Ordinance, the Director General of Lands and Surveys was directed to make or cause to be made in the Land Register the endorsement of the conditions of the approved Survey Plan against the Land Registers relating to the parcel of land subdivided. The Memorandum of Endorsement of Conditions of Survey Plan approved under the Land (Control of Subdivision) Ordinance No L2396/66 of 23 June 1966 was made and registered, and the easement was registered and endorsed on the respective documents of titles of both Lot 254 and Lot 255 on 24 Octob