ON FEDERAL COURT’S DECISION HANDED DOWN ON 2ND OCTOBER 2012 IN KUCHING
BALARE JABU & ORS V. MERAWA SDN BHD & ORS
I am pleased to announce another victory in our legal battle for the claims and defence of NCR cases in Sarawak; this time a decision coming out from the apex court of Malaysia which is, in my opinion, very crucial and timely. A few cases pending at the Court of Appeal are waiting for this ruling.
The Plaintiffs/Respondents are Penans of Sarawak who initiated this legal action in the High Court at Miri complaining that the State Government of Sarawak through the Director of Forests Sarawak issued to the 1st Appellant/Defendant, Merawa Sdn Bhd a timber licence which area covers part of the Penans’ NCR lands; their hunting and fishing ground. The Appellants/Defendants were successful in the first instance in their application in the High Court at Miri in striking out the Plaintiffs’/Respondents’ writ and statement of claim on ground that the Plaintiffs/Respondents were caught by the provision of s. 2(a) Public Authorities Protection Act 1948. They submitted that the Plaintiffs’/Respondents’ writ and statement of claim was time barred since the 2nd Appellant, the Director of Forests of the State of Sarawak, a public officer, acted in accordance with written law when he issued the licence under the Forest Ordinance and was protected by s. 2(a) Public Authorities Protection Act 1948. The Plaintiffs/Respondents, although conceding that they were caught by limitation since they did not file their writ and statement of claim within three years, contended that the High Court judge had erred as the Plaintiffs/Respondents had also sought declaratory orders that the issuance of the licence was subject to native customary rights and the 2nd and 3rd Appellants, in issuing the licence, were in breach of their fiduciary duty.
The Plaintiffs/Respondents’ won their appeal at the Court of Appeal in a decision handed down on 17.3.2011. The licencee, Merawa Sdn Bhd together with the State Government appealed to the Federal Court. Dismissing the appeal of the Appellants/Defendants yesterday (2.10.2012), the Chief Judge of Sabah & Sarawak Tan Sri Richard Melanjum agreed with the Court of Appeal and further opined that since the timber licence expired only in March 2012, the injury suffered or complained off by the Plaintiffs/Respondents was still running and therefore the issue of the Plaintiffs/Respondents filing their claims outside the provision of s. 2(a) Public Authorities Protection Act 1948 did not arise. The Court further ordered costs against the Appellants/Defendants in the sum of RM10,000-00.
In the circumstances, the said case is now reverted back to the High Court for a proper trial to determine the extent of the Plaintiffs/Respondents’ NCR over the area as claimed in their writ and statement of claim.
Dated this 3rd day of October 2012
MR. BARU BIAN
Baru Bian Advocates & Solicitors
For the Plaintiffs/Respondents