STAR ONLINE Tuesday October 9, 2007
A time to act based on Limitation Act 1953 (Act 254)
ARTICLES OF LAW By BHAG SINGH
The law of limitations provides a time frame for seeking relief through the courts.
LEGAL words and phrases have defined meanings which can be found in a legal dictionary. A reader who looked up a dictionary found a listing with regards to limitations, as follows:
“Provisions whereby, after a certain period of time stated by statute, action cannot be brought. Generally in the case of land, twelve (12) years from the date of actual accrual of action, in the case of tort and simple contract, six (6) years from the date of accrual of action.”
Mozley and Whitley’s Law Dictionary explains the term more clearly by saying that “a statute of limitations is one which provides that no court shall entertain proceedings for the enforcement of certain rights if such proceedings were set on foot after a lapse of a definite period of time reckoned as a rule from the violation of the right.” The law of limitations therefore places a limit in terms of the time frame within which a person who wishes to commence a legal action against another must act. If action is not so instituted, the right to sue is forever lost.
The law of limitations in Malaysia is contained in the Limitation Act 1953 (Act 254) which declares itself to be an Act to provide for limitation of actions and arbitrations. However, this Act applies in Peninsular Malaysia only.
Sabah has it own Limitation Ordinance [Chapter 72] and Sarawak, the Limitation Ordinance (Chapter 49). The Sabah and Sarawak Ordinances share a similar format but, in terms of the underlying principle, share the same spirit with the Peninsular Malaysian Legislation, except for some differences.
The scheme of the Limitation Act 1953 generally allows a period of six years, sometimes 12, to bring an action for the relief that is sought.
Contract and tort covers an area that impacts most people’s lives. Contract impacts almost every aspect of a person’s activities. Tort is a topic that covers subjects such as negligence, nuisance, defamation, occupier’s liability, etc. For most people, grievances arise out of dealings and transactions in this area. Where an action is founded or based on contract or tort, it must be brought before the expiration of six years from the date on which the cause of action accrued.
It is necessary to establish when the cause of action accrues. This is the effective point from which the time for purposes of limitations is computed. Lawyers say that this is the point of time from which “time begins to run”. And when the point is reached when the time allowed to file an action comes to an end, the right to file an action is lost and we say that the claim is time-barred.
You have to know when time begins to run, when a cause of action accrues. A simple example is when money is lent and borrowed. When does time begin to run and when does limitation set in? This depends on the basis and the manner in which the money is borrowed and lent.
Where money is borrowed from a friend or relative without anything else being discussed and no time frame is set for repayment, time begins to run immediately. This would mean that at the end of six years from the date on which the money is lent, the right to sue for recovery would be lost!
On the other hand, where money is borrowed on the basis of an agreement to repay at the end of three years, then it is only at this point of time that the obligation to repay arises and time begins to run and the lender would have six years after that to sue.
While in Peninsular Malaysia the limitation period in such circumstances is six years, the limitation period in Sabah and Sarawak is different and varies depending on whether the claim is for money lent under an agreement that it shall be payable on demand – in which case the limitation period is three years from the date of the loan, or six years if the claim is based on a claim for compensation for breach of contract in writing.
However, there are longer periods allowed in relation to certain transactions. Section 9, for example, provides that “no action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him.”
In some cases, the limitation period is the same in all the territories. Such is the case where what is involved is recovery of rent where the limitation period is six years, whether the claim is made in respect of property in Sabah, Sarawak or Peninsular Malaysia.
However, a significant example of the position being very different arises in the case of libel and slander. The cause of action no doubt comes into existence when the defamation is communicated. However, the limitation period in Sabah and Sarawak is only one year compared to Peninsular Malaysia, where the aggrieved person has a six-year period to file an action.
Readers may wonder about cases that go on in the courts well beyond the periods mentioned above. There are cases in court which have not been disposed off even though the act which underlies the grievance occurred 10 years ago or more.
However, in order to understand the delay, one needs to know the facts. If a claim is only filed five years 11 months and 28 days after the cause of action has accrued, there is no basis to point fingers at anyone for what appears to be a delay because the delay has been caused by the litigant himself.
In any event, the law of limitations does not limit the time within which a case must be dealt with and disposed off but it refers to the time within which the required papers must be filed in court. Upon doing so, the action is registered and the law relating to limitations does not thereafter generally have much relevance.
Generally the law of limitations is relevant to civil disputes. As such, an aggrieved person can seek to be compensated by the other party and, where appropriate, prevent the continuation of a wrongdoing. The right where the wrongdoing has ceased does not exist or last forever. The right must be exercised by going to the court and seeking the required remedy and relief within a specified period.
It must, however, be said that limitations do not operate in an entirely absolute manner. There are situations where the limitation period is extended because there is fraud or a mistake. In other cases, there may be a revival of the limitation period on account of a written acknowledgement.
The act also does not apply to any proceedings by the government for the recovery of any tax, duty or interest thereon or to any forfeiture proceedings 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.
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