Clement Skinner J:

This is the hearing of an appeal to the judge in chambers from the decision of the learned deputy registrar who, on 22 April 2003, dismissed the defendants' application to either stay the present proceedings pursuant to s. 6 of the Arbitration Act 1952 (hereafter 'the Act'), so that the dispute between the plaintiffs and the defendants may be referred to arbitration under s. 5(4)(a)(i) read with s. 212 of the Sarawak Land Code (hereafter the 'Land Code'), or, alternatively to have the writ of summons and statement of claim herein struck out or, in the further alternative, for para. 10(i), (ii), (iii) and (iv) of the statement of claim to be struck out.

The defendants being dissatisfied with the decision of the deputy registrar, bring this appeal.

The facts leading up to the defendants' application may be briefly stated.

The plaintiffs' claim that at all material times they had acquired native customary rights over certain parcels of land indicated on a map attached to their statement of claim (hereafter 'the said lands'). The said lands are situated in an area between Loba Rambungan and Jalan Kubah National Park, Kuching, Sarawak (hereafter 'the said area').

The plaintiffs claim to have acquired their native customary rights to the said lands through sale transactions entered into between them and persons who allegedly 'owned' those native customary rights or whose relatives had purportedly acquired such rights by cultivating the said lands before the year 1958.

It is pleaded by the plaintiffs (in para 7 of the statement of claim) that by virtue of a notification appearing in the Government Gazette dated 14 November 2001 being the Land (Native Customary Rights) (No. 143) 2001 Direction ('the Direction') issued under s. 5(3) and (4) of the Land Code, all native customary rights over certain areas of land situated between Loba Rambungan and Kubah National Park containing approximately 23.06 hectares, were extinguished. It should be noted that the Direction referred to above is issued by the Minister of Planning and Resource Management ('the Minister') pursuant to s. 5(3) of the Land Code.

The said lands were affected by the Direction, as a result of which the native customary rights which the plaintiffs claimed over the same were extinguished and the said lands reverted back to the Government. However, notwithstanding the fact that any lands affected by the Direction may revert back to the Government under s. 5(3) of the Land Code, the Government is obliged to pay compensation to any person who can establish his claim to native customary rights over land affected by the Direction and the sub-section sets out the procedure for making such claims to the Superintendent, while sub-section (4) of s. 5 sets out the procedure where a claimant is dissatisfied with any decision of the Superintendent. Essentially, any person who is dissatisfied with any decision of the Superintendent " may within 21 days from the receipt of the decision of the Superintendent, require the matter to be referred to arbitration in accordance with s. 212 of the Land Code ".

Following the extinguishment of their alleged native customary rights by the Direction, the plaintiffs, in accordance with the provisions of s. 5(3) of the Land Code, submitted their claims for compensation to the Superintendent. By two letters dated 21 October 2002 the Superintendent (1st defendant here) notified the plaintiffs that all their claims for compensation had been rejected, and that the plaintiffs were entitled to refer the matter for arbitration under s. 212 of the Land Code if they were dissatisfied with his decision.

On 28 October 2002 the plaintiffs informed the Superintendent (1st defendant) that they would challenge the Direction as well as his decision in court. On 2 November 2002 the plaintiffs commenced this action.

From their pleadings, the heart of the plaintiffs' case is found in para. 10.1 which reads:

10.1 The plaintiffs state that the e