Limitation under PAPA does not apply to declaratory actions; claims regarding native customary rights can proceed based on continuing injury from the validity of licenses affecting those rights.

[1] There are two appeals before us. They were heard together since they involved the same parties and similar questions of law considered by the courts below and argued before us. The parties also agreed that we should hear the appeals together. Thus, for convenience and where appropriate in this judgment we refer to these appeals as appeal one for appeal No 02(i)-50-2011(Q) and appeal two for appeal No 02( )-56-9/2011(Q).

[2] Further, in this judgment the 1st and 2nd appellants in appeal one and the appellant in appeal two are referred to collectively as the appellants unless indicated otherwise.

[3] Briefly, the respondents were the plaintiffs. In their statement of claim dated 9 April, 2007, the plaintiffs claimed for numerous declaratory reliefs including a claim of native customary rights (NCR) over an area of land in Kampong Long Lamai, Miri, Sarawak and described by the respondents as "Tana Pengurip" and that of the issuance of a timber licence, Forest Timber Licence No T/0390 ("the licence") by the 1st and 2nd appellants in appeal one in favour of the appellant in appeal two was null and void in so far as it impaired the respondents' NCR land.

[4] The appellants, as the defendants, filed an application under O 18 r 19 of the Rules of the High Court 1980 ("RHC") to strike out the respondents' case on the ground that limitation had set in.

[5] The learned High Court Judge allowed the application and struck out the respondents' claim. He held that the Public Authorities Protection Act 1948 ("PAPA") and by the Limitation Ordinance of Sarawak ("LOS") had barred the respondents' claim. In arriving at his conclusion, the learned High Court Judge made a finding of fact that although the licence was granted in 1992, as disclosed in the respondents' pleaded case, they were aware of the existence of the licence and the trespass into their alleged NCR land as early as 1995. Yet action was only commenced in 2007 and no explanation was given for the delay.

[6] On appeal, the Court of Appeal reversed the decision of the learned High Court Judge. The learned judges of the Court of Appeal took the view that although limitation may be a complete answer to a suit, action or proceeding for remedy, it is not an answer to suit, action or proceeding for declaratory orders. They further held that a declaration as to whether or not the rights of the claimants were infringed was not purely academic despite the absence of any order for compensation or damages payable.

[7] Dissatisfied the appellants sought leave from and duly granted by this Court. The question for our consideration thus reads:

'Whether the defence of limitation under s 2 of the Public Authorities Protection Act 1948 and/or Sarawak Limitation Ordinance, is an answer to a suit, action, or proceedings for declaration or declaratory orders.'

[8] Now, although the question posed deals with the issue of limitation, we are of the view that it is still open for us to consider whether in this case the action of the respondents is statute-barred. After all it depends on the facts of each case whether or not an action is statute-barred. Accordingly we will first deal with this issue.

[9] Section 2 of PAPA reads as follows:

"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 public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority the following provisions shall have effect - (a) the suit, action,