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2013 MarsdenLR 2518
COURT OF APPEAL PUTRAJAYA
LITUS JAU & ANOR – Appellant
Versus
BOUSTEAD PELITA TINJAR SDN BHD & ORS – Respondent
[Civil Appeal No: Q-01-305-07-2012]
Limitation periods under the Public Authorities Protection Act apply strictly to claims against public authorities; however, Native Customary Rights cases may allow exceptions to procedural rules, emphasizing the need for timely assertions of rights.
Headnote:(A) Public Authorities Protection Act 1948 - Section 2(a) - Sarawak Limitation Ordinance (Chap 49) - Limitation for proceedings against public authorities - Plaintiffs claimed Native Customary Rights over land; claim struck out as barred by limitation and wrong mode of proceedings under Rules of High Court 1980. (Paras 2-3, 10-30)
(B) Judicial Review - Courts must determine the appropriate procedural mode for claims against public authorities, particularly in cases of Native Customary Rights which may allow exceptions to general rules established in O'Reilly v. Mackman. (Paras 8-17, 19-20, 28)
(C) Limitation Periods - Claims for declaratory orders may not be subject to statutory limitations if actionable as continuous injury. Differences in land issuance claims require careful legal evaluation of timelines. (Paras 19-41)
Facts of the case:
Plaintiffs, Berawan natives of Sarawak, claimed rights over land alienated by officials to a company without proper extinguishment of their rights, leading to a dismissed appeal on the basis of procedural incorrectness and statutory time limits. (Paras 4-6)
Findings of Court:
The plaintiffs were found to have slept on their rights, rendering their action time-barred under both the Public Authorities Protection Act and the Sarawak Limitation Ordinance. The action was rightfully struck out, affirming the necessity for potential plaintiffs to be proactive in protecting their claims. (Paras 30-41)
Issues: Whether judicial review or writ action was the correct procedure, and whether the action was barred by limitation laws. (Paras 10)
Ratio Decidendi: The court confirmed that due to the specifics of Native Customary Rights, procedural protections under public law generally prevail, but specific circumstances may require different approaches. O'Reilly's principles were not solely applicable in this case. (Paras 11-17, 24-26)
Result: Appeal dismissed, each party to bear its own costs.
| Table of Content |
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| 1. native customary rights (ncr) claims ownership dispute (Para 4 , 5 , 6) |
| 2. procedural approach to challenging public authority decisions (Para 8) |
[1] This is an appeal against the decision of the learned High Court Judge sitting at Miri, given on 31 May 2012, in striking out the appellants' suit under O 18 r 19 of the Rules of the High 1980 ("RHC").
[2] The appellants' suit was struck out on two grounds. Firstly, for using the wrong mode of proceedings. Secondly, the suit was barred by limitation under s 2(a) of the Public Authorities Protection Act 1948 ("PAPA") and Sarawak Limitation Ordinance (Chap 49) (" SLO ").
[3] The appellants are the plaintiffs and the respondents are the defendants. For convenience parties are to be referred to as in the High Court.
Background Facts
[4] The relevant background facts are these. The plaintiffs are Berawan by race and natives of Sarawak. They claimed that they had acquired Natives Customary Rights ("NCR") over three parcels of land which were shown in a map marked "M" annexed in the statement of claim ("NCR Land"). It was the plaintiffs' case that the NCR Land was owned and occupied by their grandparents in accordance with their custom. The complaint by the plaintiffs was that the Superintendent of Lands and Surveys Miri Division ("2nd defendant") and the State Government of Sarawak ("3rd defendant") had alienated and issued a provisional lease over part of their NCR Land to a company known as Boustead Pelita Sdn Bhd ("1st defendant") on a date unknown to them and without their knowledge. The plaintiffs contended that the issuance of the provisional lease by the 2nd defendant and 3rd defendant was unconstitutional and unlawful as it impaired their NCR over their land without first extinguishing their NCR and ensuring that adequate compensation was provided for under the Land Code.
[5] The 2nd defendant as well as the 3rd defendant resisted the plaintiffs' claim. It is their pleaded defence that the plaintiffs did not have any NCR and have not acquired any NCR within the area covered by the provisional lease to the 1st defendant. The 2nd and 3rd defendants also pleaded that the locality map marked "M" annexed to the plaintiffs' statement of claim was not an official map, which is inaccurate, therefore rendering it inadmissible as evidence. By reason thereof, it is the 2nd and 3rd defendants bone of contention that the plaintiffs' claim against them was misconceived, frivolous, vexatious and an abuse of the process of the Court. To this end, a notice was given by the defendants to the effect that their defence was filed without prejudice to their right to make an application to strike out the plaintiffs' action against them.
[6] The 1st defendant did file their appearance. However, subsequent to this the 1st defendant filed an application (encl 6) to strike out the plaintiffs' suit on the ground that it was scandalous, frivolous or vexatious or was otherwise an abuse of the process of the Court.
[7] The 2nd and 3rd defendants thereafter filed a similar application (encl 7) to strike out the plaintiffs' suit. All the defendants then applied to the learned High Court Judge to decide on the questions of law posed pursuant to O 14A of the RHC, and, in the event the questions are determined in favor of the defendants then the plaintiffs' action be struck out under O 18 r 19 of the RHC. The questions posed were as follows:
7.1 Whether the plaintiffs' challenge against the issuance of a provisional lease for Lot 8 Block 22 Tinjar Land District (formerly known as Lot 3 Block 22 Tinjar Land District) by the Superintendent of Lands and Surveys pursuant to powers under the Land Code ought to have been by way of judicial review and not by way of this present writ action;
7.2 Whether the plaintiffs' claims and the relief sought are barred by reason of the Limitation Ordinance of Sarawak (including Items 72, 97, 110 and/or 112 of the schedule thereto) and/or s 2 of the Public Authorities Protec
