Claims regarding native customary rights must be initiated within three years from the cause of action as prescribed by section 202 of the Land Code, or they will be barred by limitation.

[1] This appeal by the plaintiff was lodged against the decision of the High Court at Miri in allowing the defendant's application under O 33 r 2 of the Rules of the High 1980 (O 33 r 2) to determine a preliminary issue of law based on limitation, and in striking out the plaintiff's action.

Factual Background

[2] The plaintiff is the administrator of the Estate of Mok bin Tuah (deceased). He sought a declaration that:

(1) 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;

(2) 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;

(3) The alienation of the Land to Sarawak Economic Development Corporation (SEDC) contravened s 15 of the Land Code (Sarawak) (Cap 81) (1958 edn); and

(4) The said alienation constituted:

(a) wrongful infringement of the native customary rights (NCR) of the deceased and/or the estate thereof and/or beneficiaries thereof, or

(b) Extinguishment of the NCR of the deceased and his estate is entitled to compensation.

(A reference hereinafter to a section is a reference to that section in the Sarawak Land Code unless otherwise stated)

[3] The plaintiff prayed for damages, costs and other reliefs as the Court thinks fit and just.

[4] Paragraphs 5, 8 and 9 of the plaintiff's amended statement of claim are relevant to this appeal. They merit reproduction as follows:

"5. Sometime in early 1981, the said deceased applied to the 1st defendant for alienation of the said NCR land. However, the 1st defendant refused the said application.

8. The alienation of the said subdivided lots was effected without extinguishment of the native customary rights of the said deceased and/or of the beneficiaries thereof and without payment of compensation to the estate or to the beneficiaries of the estate. In the premises the said alienation contravened s 15 of Land Code (Cap 81).

9. By reasons of the matters aforesaid, the native customary rights of the said deceased over the said land and/or the said subdivided lots were unlawfully infringed and the estate of the deceased and/or the beneficiaries thereof have thereby suffered loss and damage and continues to suffer loss and damage."

[5] Vide summons in chambers, the defendants sought determination on two preliminary issues of law viz:

(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? and

(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, answered preliminary issue (b) in the affirmative and struck out the plaintiff's action.

[7] Hence, this appeal by the plaintiff.

Order 33 r 2

[8] For the purposes of considering the defendants' application under O 33 r 2, paras 5, 8 and 9 of the plaintiff's statement of claim are assumed to have been proved by the plaintiff.

[9]O 33 r 2 confers on the Court the power to deal with any question or issue of fact or law. It provides as follows:

"2. The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or ot