Ismail Khan (Borneo) CJ:

I have read the judgement of my brother Gill with which I am in entire agreement. I would dismiss the appeal with costs.

JUDGMENT

Ong (Malaya) CJ:

I agree with the judgment of my brother Gill and for the reasons stated by him I would dismiss the appeal with costs.

JUDGMENT

Gill FJ:

The appellant in this case, being plaintiff in the action in the High Court at Kuching from which this appeal has arisen, had a dispute with ex-penghulu Tawi anak Selaku, the first defendant to the action in the Court below, over some land situate in the district of Simanggang in the Second Division of Sarawak. This dispute was decided in his favour by a judgment of the district native Court, Simanggang in civil caseNo. 9 of 1967 delivered on 6 November 1967.

An appeal lies from the district native Court to a Resident's native Court, under s. 8(1)(c) of the Native Courts Ordinance (Cap. 43 of the Laws of Sarawak, 1958). s. 7(3) of the Ordinance provides that:-

Such appeal shall be made within thirty days of the date of such decision, or within such further time and upon such terms as the Court to which appeal lies may in any particular case allow, and may be made either verbally or in writing and either personally or by proxy.

s. 7(2) of the Ordinance provides that the appeal shall be lodged with the district officer within whose district the native Court, the decision of which is challenged, exercises jurisdiction, or with such other person or body as may be prescribed by rules made under s. 19, and shall state the grounds of appeal. Proviso (a) to that section states that:-

where no grounds are stated, the Resident, District Officer or such other person or body with whom the appeal is lawfully lodged shall endeavour within the period allowed for appeal to ascertain and record the grounds upon which the appeal is made;

The first defendant indicated to the district officer, Simanggang his intention to appeal against the decision of the district native Court, but despite the district officer's reminder that he should be quick about getting his appeal lodged, he took no concrete steps to have the appeal brought within the prescribed time.

After the expiry of the time fixed for lodging the appeal, the first defendant applied through his advocates, M/s Ibrahim & Co, to the Resident Second Division for his appeal to be accepted. This application was made by Messrs. Ibrahim & Co. presumably by their letter dated 22 January 1968 because on 29 January 1968 the Resident Second Division, Mr. William Nais, wrote to them in reply to their letter to say that be was unable to entertain their client's plea for the acceptance of his appeal on the grounds, first, that the appeal was out of time and, secondly, that no request for extension of time had been made during the period of thirty days within which the appeal was required to be lodged. On 7 May 1968 M/s Ibrahim & Co. wrote another letter to the Resident apparently to ask for extension of time to appeal. The Resident by his letter of 13 May 1969 repeated that he could not approve ex-penghulu Tawi's request for extension of time.

On 14 May 1968 the Resident wrote to the plaintiffs to say that he had given written instructions to the presiding magistrate Don Bosco Biscop to arrange with the assessors in the case to proceed to the disputed land with the survey team to have the disputed land surveyed in his presence and in the presence of Tawi anak Selaku. The plaintiff paid $200 towards the cost of surveying the disputed land and marking boundaries, and the survey as instructed by the Resident was carried out by officers of the Lands and Survey Departments at Simanggang.

It would appear that at this stage some sort of approach was made regarding the case to the State Secretary, Sarawak, who on 29 June 1968 wrote to the Resident Second Division as follows:-

It appears that the appellant is seeking for an order from the Resident's Native Court for an extension of tim