LIMITATION OF ACTION

(Statute of Limitation/Statute-barred)

 

ABDUL AZIZ HUSSIN AMN

abdaziz@usm.my.

 

What is “Statute-barred”?

The right of action be extinguished by the effuxion of time in accordance with the provisions in statute.

                                          Furmston, M.P. !991. Cheshire, Fifoot & Furmston’s  Law of Contract. 12th. Edition. London: Butterworths & Co. p. 636.

 

In principle, when one party has failed to perform on time (in contract), the other party can sue and at this moment the appropriate limitation will begin to run. At the end of this period the action will normally no longer be maintainable.

                                          Furmston, ibid.

 

Statute-barred for action in court and arbitration

It is possible for an action to be statute-barred for the purpose of court proceedings but not for the purpose of arbitration, or vice versa. For High Court proceedings the test is whether the plaintiff has issued his writ within the limitation period. For the purpose of arbitration, however, the test is whether or not the claimant has, within the limitation period, serve on the respondent a notice requiring him to appoint or agree to the appointment of an arbitrator requiring him to submit the dispute to the persons so named or designated

Elliot, R.F. 1985. Building Contract. 2nd.  Edition. London: Longman Group. P.88

                                      Ref: Section 34 Limitation Act 1980 (UK)

                                              Section 30, Limitation Act 1953

 

Halsbury’s Laws of England, 4th. Edition, Volume 37 para. 17 page 24 on action states :

 

“Action means any civil proceedings commenced by writ or in any other manner prescribed by rule of court. It has a wide significance as including any method prescribed by those rules of invoking the court’s jurisdiction for the adjudication or determination of a lis or legal right or legal right or claim of any justiciable issue, question or contest arising between two or more persons or affecting the status of one of them. In its natural meaning ‘action’ refers to any proceeding in the nature of a litigation between a plaintiff and a defendant. It includes any civil proceedings in which there is a plaintiff who sues, and a defendant who is used, in respect of some cause of action, as contrasted with proceedings, such as statutory proceedings which are embraced in the word ‘matter’ ”.

                                          Cited in Semantan Estate (1952) Sdn. Bhd. v. Collector   of Land Revenue Wilayah Persekutuan

                                      [1987] 2 M.L.J. 346 at p.348.

 

What is “cause of action’?

“Cause of action” means the actual situation stated by the plaintiff which, if substantiated, entitles him to a remedy against the defendant

-         Letang v. Cooper

[1965] 1 Q.B. 232

[1964] 2 All E.R. 929

Cause of action” means the ground on which an action can be maintained

                                          Saunders, J.B. 1977. Mozley & Whiteley’s Law Dictionary. London:Butterworths & Co (Publishers) Ltd.

NOTE

A defence of limitation must be specifically pleaded

                        Ronex Properties v. John Laing Construction

                        [1983] Q.B. 398 (C.A.)

                        Ketteman v. Hansel Properties

                        [1987] A.C. 198 (H.L.)

                       See: Rules of Supreme Court (U.K.) Order 18 Rule 8(1)

                               Rules of High Court (Malaysia) Order 18 Rule 8(1)

                               Subordinates Court Rule (Malaysia) Order 14 Rule 14(1)

 

Statutes In Operation In Malaysia

There are two sets of Statutes relating to limitation of action applicable in Malaysia, namely

1.Limitation Act 1953

2.Public Authorities Protection Act 1948

 

Public Authorities Protection Act 1948

Section 2(a) of  the Act  reads :

“2, Where, after the coming into force of the this Act, any suit, action, prosecution or other proceeding is commenced in the Federation against any person for any act done in pursuance or execution or intended execution of any written law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority the following provisions shall have effect –

(a)   the suit, action, prosecution or proceedings shall not lie or be instituted unless it is commenced within thirty-six months next after the act, neglect or default complained of or the case of a continuance of injury or damage, within thirty-six months next after the ceasing thereof”.

 

By Whom Applicable?

(a) Federal Government (Article 69(2) of Federal Constitution read together with Preamble of Public Authorities Protection Act 1948 and sections 64 & 128 of Interpretation Act 1948/1967);

(b) State Governments (Part III & 8th. Schedule of Federal Constitution read together with Preamble of Public Authorities Protection Act 1948 and section 131 Interpretation Act 1948/1967); and

(c) Statutory bodies which specific provision in their respective statute providing that Public Authorities Protection Act 1948 is applicable. For example:

Tourism Promotion Board Act 1992 (section 6);

Kelantan Selatan Development Authority 1978 (section 6);

Local Government Act (section 124);

University & University Colleges Act 1971 (section 24B); and

National Accreditation Board Act 1996 (section 59).

 

When Public Authorities Protection Act Applies?

Bradford Corporation v. Meyers

[1916] 1 A.C. 242

Lord Shaw of Dumfermline (Privy Council), at p. 248

“If there be a duty arising from statute or the exercise of a public function there a correlative right similarly. In both of this cases, accordingly, the Public Authorities Protection Act applies”.

 

“Public duty”?

Baltim Timber Sdn. Bhd. v. Director of Forrests & anor.

[1996] 4 M.L.J. 103

P was the holder of aforrest timber licence, but was revoked by the Director of Forrests on 11.3.1987 (on the ground that the plaintif had breached section 2(2) of Sarawak Forrests Ordinance (Cap. 126)(i.e. transferred the controlling shares in his company and entered in an agreement with another company and granted a power of attorney to the said company). The licence was issued on 26.5.1981 and valid for 10 years. In a letter dated 15.5. 1987 the 1st.Defendant stated that the licence was revoked because the plaintiff had breached section 2(2) Forrests Ordinance. On 9.3.1993 plaintiff commenced an action against the 1st. defendant for damages.

The issue: As to whether the Plaintiff’s suit was barred by the 36-month limitation period as specified in section 2(a) of Public Authorities Protection Act 1948.

Held: The licence was revoked not because there was a breach of the terms of the licence, but because there was a breach of a statutory provision (i.e section 2(2) of Forrests Ordinance). Accordingly the revocation of the licence was an act done in the execution of a public duty, and any claim arising from such an act must be made within 36 months from the date of revocation.

 

Limitation Act 1953

Section 3

3.         Saving for other limitation enactments.

            This Act shall not apply to any action or arbitration for which a period of limitation is prescribed by any other written law or to any action or arbitration to which the Government of any State is a party and for which if it were between subjects a period of limitation would have been prescribed by any other written law.

 

Section 4

4.         Limitation not to operate as a bar unless specially pleaded.

            Nothing in this Act shall operate as a bar to an action unless this Act has been expressly pleaded as a defence thereto in any case where under any written law relating to civil procedure for the time being in force such a defence is required to be so pleaded.

 

Section 6

6.         Limitation of actions of contract and tort and certain other actions.

(1)    Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say -

(a)               actions founded on a contract or on tort;

(b)               actions to enforce a recognisance;

(c)               actions to enforce an award;

(d)               actions to recover any sum recoverable by virtue of any written law other than a penalty or forfeiture or of a sum by way of penalty or forfeiture.

 

NOTE:

In short, an action founded on simple contract or tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.

 

Section 9

9.         Limitation of actions to recover land.   

(1)   No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him, or if it first accrued to some person through whom he claims, to that person.

 

Section 20

20.       Limitation of actions to recover rent.

            No action shall be brought, or distress made, to recover arrears of rent, or damages in respect thereof, after the expiration of six years from the date on which the arrears became due.

 

Section 30

30.       Application of Act and other limitation enactments to arbitrations.

(1)   This Act and any other written law relating to the limitation of actions shall apply to arbitrations as they apply to actions.

 

Section 33

33.       Application to the Government.

(1) Save as in this Act otherwise provided and without prejudice to the provisions of section 3 of this Act, this Act shall apply to proceedings by or against the Government in like manner as it applies to proceedings between subjects and for the purpose of this Act a proceeding by petition of right shall be deemed to be commenced on the date on which the petition is presented :

                        Provided that this Act shall not apply to any proceedings by the Government for the recovery of any tax, duty or interest thereon or to any forfeiture proceeding under any written law in force in Malaysia relating to customs duties or excise or to any proceedings in respect of the forfeiture of a ship.

(2)    For the purpose of this section proceedings by or against any Government Department or any officer of any Government as such or any person acting on behalf of the Government shall be deemed to be proceedings by or against the Government.

(3)    In this section the expression “the Government” shall be deemed to include the Government of any State.    

 

When Time Begun To Run?

Tan Swee Lan v. Engku Nik Binti Engku Muda & ors

[1973] 2 M.L.J. 106

Section 9(1) Limitation Act 1953

P claimed for specific performance of a sale & purchase agreement. The agreement made on 12.4.1958 and P wrote to D claiming performance of the agreement on 2.3.1970. On 16.31970 d replied that they were not taking steps to effect the transfer. The writ of action issued on 16.4.1970.

Held; The period of limitation ran from the date the D threatened to infringe the P’s right (that they refuse to effect the transfer). Therefore the defence of limitation failed.

 

Cheah Kim Tong & anor v. Taro Kaur

[1989] 3 M.L.J. 252

Section 9(2)(b) Limitation Act 1953

P was the registered owner of a piece of land brought an action (in September 1980) against D alledged the D’s house was encroaching on their land. D’s house was built in 1968 and P had became the registered owner in July 1980. D raised the issue of limitation under section 9(1) of Limitation Act 1953.

Held: By virtue of section 9(2)(b) of Limitation Act and section 341 of National Land Code 1965 (adverse possession of land shall not constitute a bar for any length of time to the bringing of action by the proprietor), the defence of limitation failed.

 

Vadha Ratnam v. See Ah Tee

[1994] ! M.L.J. 634

Section 6 Limitation Act 1953

Sales and purchase of land

P purchased 2 pieces of land from D by 2 agreements signed on 15.10.1975. On 23.12. 1987 P filed a writ of summons applying for a declaration and order to complete the transfer. D applied under Order 18 Rule 19(1)(b) & (d) of the high Court Rules 1980 to strike out P’s claim.

Held: The action brought was based on contract and therefore section 6 of Limitation Act 1953 applicable and P’s action was time-barred, as it was brought outside the six-year time limitation.

 

Mak Koon Yang & anor. V. Municipal Councillors, Malacca

[1967] 1 M.L.J. 256

Time would therefore begin to run for the purpose of the Public Authorities Protection Act 1948, from the time when the act was caused, not from the time when the injury or damage caused, or in the case of a continuing injury or damage, when the act causing the injury or damage ceased.

 

Mutiah v. Nateson

[1973] 2 M.L.J. 182

Section 6 Limitation Act 1953

Cause of action accrued on 17.6.1963. Summons and statement of claim was presented at the Sessions Court on 16.6.1969 with payment of fees & etc. But the summons was signed by the Registrar on 17.6.1969.

Held: P’s cliam was not statute-barred.

 

Extension Of Time

Banca Popolare di Novara v. John Livands & Sons Limited

(1973)117 S.J. 509

If a plaintiff is in genuine difficulties in meeting the time limit, and cannot obtain an extension from the defendant, he may apply to the court for an extension of time, and the court has power to extend the period within which a plaintiff is required to do any act in any proceedings (Order 3 Rule 5(1) Rules of Supreme Court (UK)

See Section 24 Limitation Act 1953 & Order 3 Rule 5, Rules of High Court 1980 and Order 3 Rule 5, Subordinates Court Rules 1980.