The claim for compensation related to Native Customary Rights is barred by the three-year limitation period under section 202 of the Land Code, as interpreted with preceding sections regarding recovery of damages.

Introduction

[1] This is an appeal by the appellant against the decision of the Court of Appeal in dismissing the appellant's appeal against the decision of the High Court at Miri. The High Court allowed the respondents' application under O 33 r 2 of the Rules of the High 1980 ("RHC 1980"), wherein after determining a preliminary issue of law based on limitation, proceeded to strike out the appellant's action. The appellant was the plaintiff while the respondents were the defendants before the High Court. For convenience the parties will be referred as they were before the High Court. Leave To Appeal

[2] Leave to appeal was granted by this Court on the following two questions of law:

(1) Whether the provisions of s 202 of the Land Code of Sarawak (" ") applied to bar a claim for compensation for alleged loss of Native Customary Rights ("NCR") over land resulting from the alienation (without extinguishment of the NCR) of such State Land to another party.

(2) If the answer to question (1) is in the affirmative, and the claim for compensation being barred by limitation, would the Court be entitled to dismiss the prayers for declarations sought in support of the claim for compensation.

Background Facts

[3] The plaintiff was the administrator of the Estate of Mok bin Tuah ("deceased"). The plaintiff claimed that at all material times, that parcel of land, containing an area of about 8.51 acres situated at Miri River, Miri forming part of Lots 1314, 1315 and 1351 to 1362, Block 3 Miri Concession Land District, was the native customary rights land ("the land") of the deceased. Upon the death of the deceased, the land formed part of the estate of the deceased and devolved upon the plaintiff and his siblings as beneficiaries thereof.

[4] It was the plaintiff's case that sometime in 1987 the Land was alienated by the defendants to Sarawak Economic Development Corporation ("SEDC") without extinguishment of the appellant's NCR over the land and without payment of compensation in contravention of the provision of s 15 of the Land Code . The plaintiff prayed for damages costs and other reliefs as the Court thinks fit and just.

Findings Of The High Court On Preliminary Issues

[5] By way of application of summons in chambers the defendants sought determination on two preliminary issues of law under O 33 r 2 of the RHC 1980 as follows:

(a) Whether having regard to the fact that the plaintiff's right (if any) over the land claimed herein were lost by the alienation thereof to SEDC on 21 December 1987, and this action was commenced in April 1996, the plaintiff's claim herein for declarations (a discretionary remedy) ought to be granted by the Court?

(b) Whether the plaintiff's claim for damages is barred by virtue of s 202 of the Land Code ?

[6] The High Court allowed the defendants' summons in chambers and answered preliminary issue (b) above in the affirmative and struck out the plaintiff's action. The plaintiff thereafter appealed to the Court of Appeal against the decision of the High Court.

Findings Of The Court Of Appeal

[7] The Court of Appeal affirmed the decision of the High Court and took the view that the question for determination revolved around the construction of s 202 of the Land Code , particularly as to the three-year limitation period prescribed therein. Section 202 of the reads:

"Limitation of actions

202. No action for recovery of damages as aforesaid shall lie or be sustained against the Government unless the action is commenced within a period of three years from the date when the right to bring the action accrued:

Provided that any person under the disability of infancy or unsoundness of mind