Limitation of civil actions

To sue or not to sue. This was the opening line of a recent post detailing what a cause of action is and when it accrues. However it is equally relevant to this post for, should one choose to dwell on the question for too long, one might find it too late to even sue anymore!

This is because of the existence of what is called limitation period in law, that is, there is a definate time frame for one to commence legal action, and to wait beyond such a frame would render the cause defeated for being time barred, or more accurately, statute barred. The reason why the term statute barred is more accurate is because usually such periods are never proscribed in common law but imposed by statute, because the state considers it good that there should be a definate end to litigation after a while, tho the doctrine of laches under equity could have played a contributory role as well.

By the way, while this issue was discussed a little in the first mentioned post above, the purpose of this article is to expand and elaborate just a little bit more on what limitations of civil actions actually are.

In Malaysia, the principal statute of limitation is the Limitation Act 1953, which was first enacted as the Limitation Ordinance 1953 (F.M. Ordinance No. 4 of 1953) on 9 February 1953 and is based on the English Limitation Act 1939 which has since been replaced in Britain by the Limitation Act 1980. Section 4 of the Act cautions that nothing therein shall operate as a bar to any action or proceeding unless expressly pleaded.

The Act proscribes different periods of limitations depending on different types of causes of action that arise. For actions relating to torts and contracts generally the period is six years from when the cause accrued, imposed by section 6. The effect could be potentially unjust, as can be gleamed from the case of Loh Wau Lian v SEA Housing Corp Sdn Bhd [1984] 2 MLJ 280. In that case, a house was delivered late, namely, delivered on 7 November 1977 instead of 18 September 1975 as promised. The plaintiff claimed the agreed liquidated damages of 8% per annum for late delivery and filed his or her action on 9 September 1982. The defendant contended that the action should be considered time barred. The apex court agreed with the defendant.

Where there has been a fraud or concealment however, the Limitation Act 1953 provides for an exception. Section 29 of the Act states that where an action is based upon the fraud of the defendant or his agent or where any fact relevant to the plaintiff’s cause of action was delibrately concealed or where such an action is based on mistake, the time of six years does not run until the discovery of the fraud, concealment or mistake by the plaintiff. The effect of this section is plainly seen in the case of Lim Yoke Kong v Sivapiran s/o Sabapathy [1992] 2 MLJ 571 where the defendant’s insurers took great pains to conceal themselves from the knowledge of the plaintiff and thus the latter’s claim was not held statute barred as a result. Limitation periods also do not run where a plaintiff  is under disability until the expiry of such a disability under section 24 of the Act.

It should be noted that generally courts do not have power to enlarge the limitation period when asked (See Lee Lee Cheng v Seow Peng Kwang [1960] 26 MLJ 1) but there are circumstances where the limitation period itself is renewable, such as in the instance where debt is acknowledged or part payment is made in respect thereof under section 26 of the Act. Section 27 further qualifies this however, by stating that such acknowledgment must be in writing. The claimant is required to specifically plead this acknowledgment or else it would be struck out as held in the case of Mat bin Lim & Anor v Ho Yat Kam & Anor [1967] 1 MLJ 13.

Section 9 of the Act states that where an action is made in respect of land and the recovery thereof, the period of limitation would be 12 years. However this does not apply in delays for an action of specific performance, for example, because the owner would already have equitable title in the land. In Chee Hock Lai v Tan Swee Thai & Ors [1990] 2 MLJ 477 the plaintiff purchased land from an administrator of an estate and entered into possession more than 40 years before the filing of the action by the plaintiff. The plaintiff was never given title to the land despite several requests. Hence, the court opined that the delay was justified and ordered specific performance. In Ungku Sulaiman Bin Abd Majid & Anor v Director of Lands and Mines, State of Johor & Anor it was held that where property was wrongly acquired, time remained at large and the law of limitation would be inapplicable.

Section 20 of the Act bars action in respect of recovery of rent arrears after the expiry of six years on which they become due.

Although the Limitation Act 1953 is the principal statute of limitations within Malaysia, it is indeed not the only statute of limitation in force. Section 3 of the Act provides that the Act is inapplicable where the Government is involved and indeed the Government protects itself by virtue of section 2 of the Public Authorities Protection Act 1948 which reads;

Where, after the coming into force of this Act, any suit, action, prosecution or other proceeding is commenced within 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 proceeding shall not lie or be instituted unless it is commenced within thirty six months next after the ceasing thereof…

This provision was tested in the case of Lee Hock Ning v Government of Malaysia [1972] 2 MLJ 12 where the Government failed to make good some payments in respect of some building contracts. The Government contended that such contracts were made persuant to a public duty and this the plaintiff’s claim was statuted barred with reference to section 2 of the Public Authorities Protection Act 1948. The court opined that non payment of monies owed was not in persuance of a public duty and accordingly allowed the claim.

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10 Responses to Limitation of civil actions

  1. Tony Brown says:

    I don’t know If I said it already but …This blog rocks! I gotta say, that I read a lot of blogs on a daily basis and for the most part, people lack substance but, I just wanted to make a quick comment to say I’m glad I found your blog. Thanks, 🙂

    A definite great read..Tony Brown

  2. Pingback: Commencing an action in a Malaysian court « Reading Law

  3. bommy says:

    Can you suggest more cases on Section 26 Limitiations Act in same principals as in Mat Bin Lim vs Ho Yat Kam [1967] 1 mlj 13

  4. Johan in Othman says:

    Need to confirm that these Limitation Act does not cover in a case where the Malaysian Government tries to recover tax revenue from a sale of land that took place more than 6 years ago.

  5. eycha sawal says:

    how about an oral contract?..what the limitation period of it?

  6. Raymond Chu says:

    The law on limitation provides a peripheral to define the parameters of
    limitation of time to bring a civil cause of action in court. The recovery
    and reliefs set by equity and the enforceability of equitable remedies
    which are subject to judicial discretion is by large, still a penumbra of
    some sort within this parameters. Maybe, some definition in a statutory form
    to consolidate the practices of equitable concepts in the courts of Malaysia
    can help enlighten this grey area, which is timely already. Imagine the number of cases
    struck out and guess, it is not surprising if some are on these grey areas of the law.

  7. Ana says:

    With regards to PAPA, the case of Lee Hock Ning – the court made such decision because it’s the government who breached the contract & therefore couldn’t invoke PAPA but what if the contract was breached by the private party & in consequences, the government have to terminate the contract. This, I believe, if the private party intends to commence a suit against the government for terminating the contract, the private party has already time barred under the PAPA since the government is only executing its public duty to terminate the contract.

    Just my opinion.

  8. Sumathi says:

    Dear Sir,

    I am a beneficiary under a will . My sister passed away and she was working in the gov and later she left the service. She bought a house under government loan and latter did not pay. She did try to settle but the amount was too much and she left. When she bought the property it did not have a title. Recently she has died and she has willed to me. The property transaction with the gov was more than 10 years. Since I am a clerk and I can’t afford the loan, can i say that it is barred and transfer it into my name. the probate is being done now. Can I ask the court to transfer it into my name. When I ask the lawyers they were not sure because they feel that i have to pay because the deceased has acknowledged that he owes the gov and i am saying that it is more than 12 years. Kindly advice to your best of your ability

  9. Saya budak STPM says:

    In what circumstances does a limitation period can be revived?

  10. Seefu says:

    It seems that the limitation begins from the date the demand is made in cases where the guarantor is a guarantor-on-demand even if the demand is served after the 6 year period. In some case after 12 years.

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