T1 PRELIMINARY MATTERS IN CIVIL PROCEDURE | MICHELLE 2020

Topic 1: Preliminary Matters in Civil Procedure

Before initiating a civil suit, plaintiff must consider whether the criteria for initiating a valid suit in court are
present. Otherwise, the case will be dismissed with cost. Thus, it is important to first consider the
preliminary matters in the case:
i) Cause of action
ii) Limitation period
iii) Other preliminary matters

Cause of Action (COA)

Elements to establish a COA:

i) the party intending to institute civil proceedings (i.e. plaintiff) has a caused of action
ii) there is a plaintiff that may institute proceedings
iii) there is a defendant who may be sued

Meaning of COA

Lim Kean v Choo Koon [1970] 1 MLJ 158

Yong J:
‘a cause of action accrues when there is in existence a person who can sue and another who can be sued,
and all the facts have happened which are material to be proved to entitled the plaintiff to succeed.’

Definition of COA

Cooke v Gill (1873) LR 8 CP 107

Brett J: ‘every fact which is material to be proved to entitle the plaintiff to succeed’

Approved by Lord Esher MR in

Read v Brown (1888) 22 QBD 128

Held: The COA included ‘every fact that which it would be material to support his right to the judgment of the
court’

Government of Malaysia v Lim Kit Siang [1988] 1 CLJ 219, SC

RP had filed for a declaration that the letter of intent issued by Gov to UEM in respect of the North-South
Highway is invalid.

Issue: Whether RP had a COA?

Held: COA is a statement of facts alleging that P’s right, either at law or by statute, has in some way or
another, been adversely affected or prejudiced by the act of the defendant in an action.

Thus, it is imperative that the plaintiff determine prior to any commencement of action in court the existence
of a COA.

Cause of Action - Must Complete

If there is no COA, the suit shall be deemed to be incomplete, and any COA commenced shall be dismissed.

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Taib Bin Awang v Mohamad Bin Abdullah & Ors [1983] 2 MLJ 413
P convicted in Kadi’s court and appealed. Pending the appeal being heard, P commenced an action for
malicious prosecution.

Held: The essential ingredient for malicious prosecution is that

i) there must have been a previous prosecution which had ended in P’s favours,
ii) the previous prosecution had no reasonable grounds or probable grounds,
iii) D must have acted maliciously.
P’s action failed as his COA was incomplete.

Sio Koon Lin & Anor v S.B. Mehra [1981] 1 MLJ 225
RP claim for full sum even though AP had only defaulted in one payment.
Held: At the time the action was commenced no COA existed for the remainder of the RM 85k with interest
as no instalments were due on 7/10/1972. The sum was only due on the 12/10/1972.

Simetech (M) Sdn Bhd v Yeoh Cheng Liam Construction Sdn Bhd [1992] 1 MLJ 11
Held: P is not entitled to claim the additional sum of RM173,659.25 which became due and payable to P only
after the date of the issue of the writ and statement of claim. The action of P is failed.

Limitation Period

Importance of Limitation of Period

Even though the P might have a valid COA against the D, P’s claim may still dismissed if it is not within the
limitation period allowed to take such action. Thus, besides determining whether there is a valid COA, it is
also equally important for P to ascertain whether the action falls within the prescribe limitation period.
Q: Is the P in time to sue?

It is crucial to note that the defendant cannot have the benefit of the limitation period as a defence, if he
fails to expressly plead that he is relying on the Limitation Act in his defence - s. 4 Limitation Act 1953

“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”

Lee Lee Cheng v Seow Peng Kwang [1960] 1 MLJ 1

It appear from the decision that if the defendant relies on limitation as a defence, he must plead it even
though he is relying on an express provision of limitation other than the Limitation Act 1953. In this case the
defendant was relying on the limitation period prescribed in s8(3) of Civil Law Ordinance, 1956 (now Civil
Law Act 1956). This decision will be in line with the requirement under O 18 R 8 which requires specific
pleading of any relevant statute of limitation on which a defendant relies.

Ronnex Properties Ltd v John Laing Construction Ltd & Ors [1983] 1 QB 393
The court held: “…that an application for a claim to be struck out on the ground that it disclosed no cause
of action could only properly be made where it was manifest that there was an answer immediately
destructive of the claim; that, since a defence under the Limitation Act barred the remedy and not the claim
and the defence had to be pleaded, the application to strike out the pleading was misconceived.”

Note: Time limitation differs depending on the subject matter of the suit.

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Limitation Periods under Limitation Act 1953 (LA)

1. Action founded on a Contract or Tort

s. 6(1)(a) - 6 years from the date on which the COA accrued

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 – actions founded
on a contract or on tort; …

When does the COA accrue?

 Limitation period for tort of negligence commence at the time when COA accrued and not when it is
discovered.
 Limitation period for latent injuries commence from the time COA accrued i.e. when injuries is
sustained, and not when injury is discovered.

Pirelli General Cable Works v Oscar [1983] 1 All ER 65

Held: COA in tort for negligence in the design or workmanship of a building, accrued at the date when
physical damage occurred to the building. For example, in determine the formation of cracks as a result
of defect, the issue of whether or not the damage could have been discovered with reasonable diligence
at that date by the Plaintiff should have been considered. Therefore, the P’s claim was time barred
since the cause of action accrued in April 1970 when damage in the form of cracks at the top of the
chimney came into existence.

Cartledge v Jopling [1963] AC 758

The court is looking at whether or not the time begins to run from the date when something happened or
from the date when harm is done. The court stated that the cause of action arises when the plaintiff
knows or ought to know that he has suffered substantial harm by something done by the defendant or
alternatively when the plaintiff enjoyment of life has been interfered by an act or omission of the
defendant. Damages for personal injuries always include the element of interference with the enjoyment
of life by pain and suffering as well as financial lost. Lost of the amenities of life is only an element if
there is permanent interference with the plaintiff’s capacity.

Note: This case is on limitation of period under a negligent matter. The plaintiff only knew about the
negligent when he caught a disease.

What if the P is ignorant of D’s identity?

Credit Corp (M) Bhd v Fong Tak Sin [1991] 1 MLJ 409, SC
The failure to add a party within the limitation period is not within s. 29 LA as time runs also the
plaintiff is ignorant of the defendant’s identity. S.29 is only applicable to the case where mistake is an
essential ingredient of the cause of action. Thus knowledge as to the identity of the defendant is
irrelevant.

Note: This case is on injuries matter (accident), the court looking on whether there is a valid cause of
action - when the doubt is raised by the defendant

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Ambank (M) Bhd v Abdul Aziz Hassan & Ors [2010] 3 MLJ 784, COA
It was argued that the statutory limitation period for a tort based claim should only start to run when
the damage was discovered. The Court of Appeal disagreed. It held that section 6(1)(a) of the
Limitation Act is an absolute bar and the courts do not have the power to extend the limitation period;
that prerogative is reserved for Parliament.

Sivapiran v Lim Yoke Kong [1992] 2 MLJ 381

AP (P) was knocked down by RP (D) who was riding a motorcycle with the registration number AF
3571 on the 1st day of 1977. AP’s solicitors sough to discover the identity of D through the Registrar and
Inspector of Motor Vehicle and Motor insurer’s Bureau of West Malaysia, but to no avail. After 6 years
had lapsed and limitation set in, D’s insurers was made known but allege that P’s claim was time
barred.

Trial Court: Claim dismissed as limitation period has set in. P appealed alleging, inter alia, that there
was fraud on the part of the insurance company by concealing the fact that they were the insurers of
the motorcycle, and the limitation period should not begin to run until the discovery of the fraud.

HC: What had been done by the insurance company (concealing itself from the knowledge of P in order
to take advantage of the limitation period and to prevent P from proceeding against D) amounted to
fraud under s29 LA. By that act of fraud, the insurance company had concealed the right of action of P
to sue within the 6-year limitation period. Therefore, time began to run after O was informed of the
name of the insurers and not on the date of the accident. Accordingly, claim was not time barred.

Note: In hit and run accident, time starts to run from the time of the accident.

2. Action for an Account - s. 6(2)

An action for an account shall not be brought in respect of any matter which arose more than
six years before the commencement of the action

3. Action upon Judgement (Execution) - s. 6(3)

An action upon any judgment shall not be brought after the expiration of twelve years from the
date on which the judgment became enforceable and no arrears of interest in respect of any
judgment debt shall be recovered after the expiration of six years from the date on which the
interest became due.

Action upon any judgement - 12 years

Action upon any recovery of interest on any judgement debt - 6 years

Q: What does “action upon any judgement” refer to? Does it include an ‘execution proceedings’?
A: It does not include an execution proceeding

Note: ‘Action upon any judgement’ does not include an execution proceeding. Bankruptcy is not an
execution proceeding but a fresh action altogether. Thus, action under this section applies to bankruptcy
proceedings.

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Arrears of interest (judgment debt): 6 years from the date on which the interest became due

United Malayan Banking Corporation Bhd v Ernest Cheong Yong Yin [2002] 2 CLJ 413, FC
AP obtained summary judgment against RP on 15/10/1987 but RP failed to satisfy the judgment sum. AP
then filed a Bankruptcy Notice (BN) against RP on 24./01/1996 for the judgement sum and accrued
interest. However, the judge in chambers held that the BN was invalid as the issuance was time-barred
under s. 6(3) LA 1953. CA dismiss AP’s appeal, AP appeal to FC.

Issue: Whether, in respect of second limb of s. 6(3) LA, no arrears of interest on any judgement debt
shall be recovered after the expiration of 6 years from the date on which the interest became due?

Held: Appeal dismissed.

1. The second limb of s. 6(3) LA provides that an action to recover arrears of interest must be
brought within 6 years of the judgement date and because of the word “arrears”, it cannot denote
interest which is still not due. It must, therefore, mean arrears of interest at the time of recovery
and cannot include future interest even if the amount due has not been paid.
2. The act of recovery of arrears of interest in respect of the judgement debt must be made within 6
years of the judgement date and only up to the date of the act of recovery which can be the last
day of the 6 year period. Claimant is only entitled to that amount and nothing more. If he files it on
the first day after the 6 year period, it will be barred by limitation.
In this case, although the amount of arrears of interest claimed 6 six years from the judgment date
was proper, the BN had been filed long after the limitation period of 6 years which expired on
14/10/1993. Accordingly, the BN was rendered invalid. As there was no formal defect or any
irregularity, s131 Bankruptcy Act 1967 was not applicable. The only error of AP was to file the BN out
of time.

Note: In this case it was also found that

1. Arrears of interest
Calculate base on = judgement debt
= principle sum + prejudgement interest from breach date till judgement date
This is the standard stipulation in all contracts

Period for arrears of interest = judgement date

= (date arrears of interest become due)  act of recovery
Subject to 6 years limitation period

2. Conflict between RHC and LA on recovery of interest

O 42 r12 RHC 1980 – Interest will go on until full realisation of the judgment debt
Second limb of s. 6(3) LA – Interest is up to a max period of 6 years from the judgment date
s. 6(3) LA should prevail in view of s. 23 Interpretation Acts 1948 and 1967.

Perwira Affin Bank Bhd v Lim Ah Hee [2004] 2 CLJ 787, FC

The court held that the sum demanded in the BN was wrong as it included statute-barred interest.
Although the provision is silent on the period of limitation, claiming interest on areas it is clear that the
same is limited to a period of six years which is in accordance with the Limitation Act, therefore, the BN
is at liberty to file in fresh.

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4. Action to recover Land (Land Matters)

s. 9(1) - Actions for recovery of land – 12 years - no mortgage / charge involved

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.

Nasri v Mesah [1971] 1 MLJ 32, FC

AP claimed for specific performance of an agreement dated 05/06/1947 whereby RP agreed to sell to
him some land belonging to her. AP had paid the agreed price for the land but no document of transfer
was executed because of the moratorium then in force. After the expiration of the moratorium on
30/09/1949, AP approached RP on several occasions and requested her to execute a transfer of the
land. Eventually, AP commenced the action on 03/03/1967. The action was dismissed in the HC on the
ground of limitation. The appellant appealed.

Issues: (i) What is the limitation period?

(ii) When does COA accrues?

Held: In this case, the court allows an appeal for a specific performance in an agreement for a sale for
land for a declaration of title to the land in which it was essential to recover the land within the period
of twelve years.

Ponnusamy & Anor v Nathu Ram

In this case, a contract of S&P of land had been entered. Now, AP wanted to register the transfer in
accordance with the purchaser’s will.
The trial judge found that as the action of AP was taken beyond the period of 6 years from the date of
the accrual of the COA, the action by the AP was statute-barred.
In the Court of Appeal, Thompson CJ said that regardless of whether the limitation period in this was 6
years pursuant to s. 6 or 12 years pursuant to s. 9(1), it was all depend upon the form of the AP’s
claim. His Lordship said that what was claimed by the plaintiff was a declaration that they were entitled
to get back the said land. Hence, the action of the plaintiff was for recovery of land according to the
meaning of s. 9 LA.

5. s. 21(1) - Recovery of money secured by land – 12 years - mortgage / charge involved to secure land

No action shall be brought to recover any principal sum of money secured by a mortgage or other
charge on land or personal property or to enforce such mortgage or charge, or to recover
proceeds of the sale of land or personal property after the expiration of twelve years from the
date when the right to receive the money accrued.

Terance Simon Marbeck v Kerajaan Malaysia

s. 21(1) is relevant and applicable when an action is brought by a chargee to recover facility or enforce
under s. 256 of the NLC and O. 83 of ROC in respect of the charge. Not for an originating summons by
P / chargor. s. 21(2) requires Foreclosure Action to be initiated (s. 256 NLC and O. 83 ROC). In regards
to s. 21(5), as here the facility was a continuing account, time will only begin to run when D / chargee
makes a demand.

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Tan Kong Min v Malaysia Nasional Insurance Sdn Bhd [2005] MLJU 264, FC
The primary issue in this appeal contends the provisions of the act. It is the appellant contention that the
respondent’s claim for the balance after sale is a claim founded on contract and therefore subject to
the limitation of six years under Section 6(1)(a) of the Act while the respondent contends that the claim
is a claim for money secured by charge on land and therefore subject to limitation of period of twelve
years under Section 21(1) of the Act.

Held: Appeal dismissed with costs. The court stated having had a close look at both sections mentioned
above we are of the view that Section 6 cannot apply in this case in view of the express exclusion of
“any action to recover money secured by any mortgage of or charge on land” in Section 6(5)(b). The
action is therefore not founded on the claim on contract under Section 6. In our judgement, the
applicable is Section 21. Section 21(1) specifically refers to an action to recover money secured by a
charge which is an action in personam while Section 21(2) specifically refers to a foreclosure action in
respect of mortgage personal property which is an action in rem. The limitation period is therefore
twelve years from the date when the right to receive the money accrued or twelve years from the date
on which the right for foreclosure accrued.

6. Breach of trust
The limitation period depends on whether the COA is for
i) Fraudulent breach of trust or recovery of trust property or proceeds thereof – no limitation

s. 22(1) No period of limitation prescribed by this Act shall apply to an action by a

beneficiary under a trust, being an action –
(a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party
or privy; or
(b) to recover from the trustee trust property or the proceeds thereof in the possession of
the trustee, or previously received by the trustee and converted to his use.

ii) Negligent or innocent breach of trust – 6 years

s. 22(2) Subject as aforesaid, an action by a beneficiary to recover trust property or in

respect of any breach of trust, not being an action for which a period of limitation is
prescribed by any other provision of this Act, shall not be brought after the expiration of
six years from the date on which the right of action accrued

Law Hock Key & Anor v Yap Meng Kan & Ors [2008] 3 CLJ 470, CA
Issue: inter alia, whether P claim against Ds was statute-barred under s6 and s23 LA 1953?

Held: Appeal allowed. Although D had admitted that they had made distribution of the assets of LM’s
estate to the other beneficiaries to the exclusion of P, D were liable as trustees for breach of trust.
However, action failed because P had no locus standi to bring this action against D and P did not
produce the written agreement to support their application under O 14A RHC.
On the issue of limitation:
1. s22(1) of the LA supersedes s23 LA because s22(1) expressly states that no period of
limitation prescribed by the LA shall apply to an action within s22(1). P’s action was purely a
claim against D personally and not against the estate and, therefore, s23 LA did not apply.
2. Under s22(1)(b) LA, the trustee must either be in possession of the trust property or must have
converted the trust property to his own use. In this case, both administrators i.e. D1 and D2,
were also beneficiaries of the estate and as beneficiaries, they had been taking shares in the
trust properties. As such, they were in possession of the trust properties or the proceeds
thereof, and/or having converted the same to their own use, Ds were liable to personally make
good the full share of Ps entitlement to the LM’s estate.
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7. Inheritance - s. 23
Claim for estate under will or intestacy – 12 years
Action for recovery of arrear of interest – 6 years

Subject to the provisions of section 22(1) of this Act, no action in respect of any claim to the
personal estate of a deceased person or to any share or interest in such estate, whether
under a will or on intestacy, shall be brought after the expiration of twelve years from the date
when the right to receive the share or interest accrued, and no action to recover arrears of
interest in respect of any legacy, or damages in respect of such arrears, shall be brought
after the expiration of six years from the date on which the interest became due.

8. Set-off / Counterclaim - s. 31

For the purposes of this Act, any claim by way of set-off or counterclaim shall be deemed to
be a separate action and to have been commenced on the same date as the action in which
the set-off or counterclaim is pleaded.

Limitation Period under Public Authorities Protection Act 1948

Action against the Federation  36 months after the act, neglect or default complained = s. 2(a) PAPA

Where, after the coming into force of 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 proceeding shall not lie or be instituted unless
it is commenced within thirty-six months next after the act neglect or default complained of or, in
the case of a continuance of injury or damage, within thirty-six months next after the ceasing
thereof;

It is immaterial that the contract may have been entered into for the purpose of performing a statutory
duty. If the act complained of is the breach of the contract, the statutory protection cannot be invoked
on the ground that the purpose of the contract was to carry out the duties imposed by statute.

Execution of public duty

Government of Malaysia v Lee Hock Ning [1974] AC 76

The court in this case considered the scope of ‘public duty’ under the Public Authorities Protection Ordinance
in great length. AP was a contractor and RP was Government of Malaysia. The claim against RP was for
non-payment of monies due and owing under a series of building contracts. RP’s contention was that as the
contract for the building of schools was entered into in the performance of a public duty or was incidental
thereto, s.2 of PAPO applied. The action should have been brought within 12 months next after the act,
neglect or default complained of in relation to that contract. The court held that: “the non-payment of
monies was not in pursuance of a public duty. Consequently, it could not have come within the provisions of
s. 2 PAPA. It is immaterial that the contract may have been entered into for the purpose of preforming a
statutory duty. If the act complained of is the breach of contract, the statutory protection of the Ordinance
cannot be invoked on the ground that the contract was entered into for the purpose of carrying out duties
imposed by the statute.”

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Continuance of injury or damage

Ibrahim bin Mohamad Jutty v Timbalan Menteri Dalam Negeri [2003] 5 MLJ 294
Low Hop Bing J held that the second limb applied where the plaintiff was detained in September 1998 and
kept in detention until January 2000. His Lordship in applying the second limb of s. 2(a) held that time did
not run until the date of his release.

Ronald Beadle v Hamzah HM Saman [2007] 2 MLJ 201 (CA)

The AP’s passport was seized as a result of a certificate issued by the Inland Revenue Department. This
seizure was made under s.104 of the Income Tax Act 1967. The passport was not returned to the AP until
sixteen years had passed. It was held that for limitation purposes the seizure and retention of the passport
was a continuous injury within the second limb of s. 2(a).

PAPA has no express provisions on exceptions

Phua Chin Chew v KM & Ors [1987] 2 MLJ 604 (SC)

The issue here is whether the time of 3 years began to run from the date of appointment of the committee
or from the date of the letter of resignation or from the date of the acceptance by the government of the
offer to resign. The court held that the time begins to run from the date of appointment of the committee
and not from the date of the letter of resignation or from the date of acceptance by the government to
resign. The action was well within 3 years period of limitation under s. 2(a) PAPA.

Cf

Ban Guan Hin Realty Sdn Bhd v Sunny Cheok Sai [1989] 1 MLJ 131
The word ‘public duty or authority’ was considered where the court opined that the allegation of fraudulent
usage of money paid to the customs authorities cannot be said to be an act done in pursuance or execution
or intended execution of any written law, of any public duty or authority or in respect of any alleged neglect
or default in the execution under the Public Authorities Protection Act cannot be invoked.

Limitation Period under Civil Law Act 1956

1. Dependency claim for negligent act has cause the death of a person i.e. fatal accident  3 years

s. 7(5) CLA Not more than one action shall be brought for and in respect of the same subject
matter of complaint, and every such action shall be brought within three years after the death
of the person deceased.

Kuan Hip Peng v Yap Yin & Anor [1965] 1 MLJ 252 - court has no power to enlarge time
The court stated that the rule that where there are exceptions which would affect the operation of a
statute of limitation a plaintiff need not to plea them until the defence of limitation has been raised in the
pleadings by the defendant. The provision of section 7(5) of the Civil Law Ordinance are absolute and
contain no exception or saving provisions as in the Limitation Ordinance. In this case, the writ was
issued four days after the three years period prescribed in section 7(5). The court allowed the
application to strike out the writ. The statement of claim filed by the plaintiff is therefore just another
abuse of the process of the court.

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2. Action against estate of deceased tortfeasor / Estate Claim - s. 8(3) CLA + s. 8(1) + s. 8(3)

No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of

this section has survived against the estate of a deceased person, unless proceedings against
him in respect of that cause of action either -
(a) where pending at the date of his death; or
(b) are taken not later than six months after his personal representative took out
representation.

Note: time runs from the date which letters of administration is obtain or the grant of probate and not
on from the date of the death of the deceased.

Lee Lee Cheng v Seow Peng Kwang [1960] 1 MLJ 1

P (widow and Administrator of the Estate of Gooi Kim Kwan) sued D (Administrator of Loke Ta Poh)
for damages for negligent driving . Both deceased had died in that accident. D in his defence claim that
P’s action was not commenced before the expiration of 6 months from the date 8/8/1957 which D took
out representation to the estate. Thus P’s COA filed on the 17/2/1958 is barred under s8(3)(b) Civil
Law Ordinance 1956.

It appear from the decision that if the defendant relies on limitation as a defence, he must plead it even
though he is relying on an express provision of limitation other than the Limitation Act 1953. In this case
the defendant was relying on the limitation period prescribed in section 8(3) of Civil Law Ordinance,
1956 (now Civil Law Act 1956). This decision will be in line with the requirement under Order 18 rule 8
which requires specific pleading of any relevant statute of limitation on which a defendant relies.

Held: Appeal dismissed.

Mat bin Lim & Anor v Ho Tat Kam & Anor [1967] 1 MLJ 13
The court struck out the statement of claim on the application of the defendant on the grounds that the
acknowledgement was not pleaded. However, if the defendant does not make any application for the
matter to be struck out and matter proceeds to trial, it will appear that the court can consider the
evidence of the acknowledgement, if tendered without objection.

Extension to the Limitation Period

1. Disability - s. 24(1) + s. 24(2) + s. 24(3)

If on the date when any right of action accrued for which a period of limitation is prescribed by
this Act, the person to whom it accrued was under a disability, the action may be brought at
any time before the expiration of six years, or in the case of actions to which section 6(4) or
section 8 of this Act applies, one year from the date when such person ceased to be under a
disability or died, whichever event first occurred, notwithstanding that the period of limitation
had expired:
Provided that in any case to which the provisions of section 29 of this Act apply, this subsection
shall apply as if the date from which the period of limitation begins to run were substituted for
the date when the right of action accrued.

Who are the “disable”?

O. 76 r.1 ROC 2012 = minor + mentally disturbed person (within the meaning of Mental Health Act)
However, it must be noted that s24(1) is subject to s6(4), s8 & s29 LA.

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2. Fresh accrual of action on acknowledgment - s. 26

(1) Where there has accrued any right of action to recover land or to enforce a mortgage or
charge in respect of land or personal property, and -
(a) the person in possession of the land or personal property acknowledges the title of the
person to whom the right of action has accrued; or
(b) in the case of any such action by a mortgage or chargee the person in possession as
aforesaid or the person liable for the debt secured by the mortgage or charge makes
any payment in respect thereof, whether principal or interest,
the right shall be deemed to have accrued on and not before the date of the
acknowledgment or last payment.
(2) Where any right of action has accrued to recover any debt or other liquidated pecuniary
claim, or any claim to the personal estate of a deceased person or to any share or
interest therein, and the person liable or accountable therefore acknowledges the claim or
makes any payment in respect thereof, the right shall be deemed to have accrued on and
not before the date of the acknowledgment or the last payment:
Provided that a payment of a part of the rent or interest due at any time shall not extend the
period for claiming the remainder of the rent or interest then due, but any payment of interest
shall have effect, for the purposes of this subsection only, as if it were a payment in respect of
the principal debt.

s26 LA to be read together with s27 LA

s. 27(1) Every such acknowledgment as is referred to in section 26 or in the proviso to section 26

of this Act shall be in writing and signed by the person making the acknowledgment.

3. Postponement of limitation period due to fraud / mistake - s. 29

Where, in the case of any action for which a period of limitation is prescribed by this Act, either –
(a) the action is based upon the fraud of the defendant or his agent or of any person through
whom he claims or his agent; or
(b) the right of action is concealed by the fraud of any such person as aforesaid; or
(c) the action is for relief from the consequences of a mistake,
the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the
mistake, as the case may be, or could with reasonable diligence have discovered it:
Provided that nothing in this section shall enable any action to be brought to recover, or enforce
any charge against, or set aside any transaction affecting, any property which –
(i) in the case of fraud, has been purchased for valuable consideration by a person who was not
a party to the fraud and did not at the time of the purchase know or have reason to believe
that any fraud had been committed; or
(ii) in the case of mistake, has been purchased for valuable consideration, subsequently to the
transaction in which the mistake was made, by a person who did not know or have reason to
believe that the mistake had been made.”

The limitation period shall not begin to run until the Plaintiff has discovered the fraud or mistake, or
could with reasonable diligence have discovered it.

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Yong & Co v Wee Hood Teck Corp [1984] MLJ 39

Y (firm of solicitors) in the process of acting for their client was negligent, causing the client to suffer
losses. Y concealed the losses from their client and was only discovered after the limitation period had
expired.

Held: s29 LA would be applicable as the client’s right of action was concealed by the lawyers. Hence,
the limitation period would start to run from the time the loss was discovered by the client.

The court considered s. 18 of the Limitation Ordinance of Sarawak, which states: “When any person
having a right to institute a suit has, by means of fraud been kept from the knowledge of such right or
of the title on which is founded, or where any document necessary to such right has been fraudulently
concealed form him, the time limited for instituting a suit:
(a) Against the person guilty of the fraud or accessory thereto; or
(b) Against any person claiming through him otherwise than in good faith and for a valuable
consideration
shall be computed from the time when the first fraud became known to the person injuriously affected
thereby or, in the case of the concealed document, when he first had the means of producing it or
compelling its production.”
The Federal Court held that s. 18 is not limited to common law fraud. It extends to equitable and
constructive fraud in which concealment does not involve any dishonesty and no degree of moral
turpitude is necessary to establish fraud within the section.

Beaman v ARTS Ltd [949] 1 KB 550; [949] 1 All ER 465

Held: The actions of the defendants were not fraudulent as such that s26(a) of the 1939 ACT did not
operate. However, the defendants had made no attempt to obtain the plaintiff’s instruction before
disposing of the property as a matter of their own convenience and in breach of the duty of confidence
accepted. Their failure to inform the plaintiff of what they had done did amount to a reckless
‘concealment by fraud’ with s26(b) and the action could proceed.

Lim Yoke Kong v Sivapiran s/o Sabapathy [1992] 2 MLJ 571

The Supreme Court upheld the High Court’s decision and stated that it was unconscionable for the
insurance company having knowledge of the special relationship, to conceal itself by failure to respond
within reasonable time to the MIB circular letter. Fraud is not limited only to common law fraud or deceit
but it also extends to unconscionable conduct.

cf.

Failure to add a party within the limitation period is not within the provisions of s. 29 LA.

Credit Corp (M) Bhd v Fong Tak Sin [1991] 1 MLJ 409, SC
Solicitors for RP applied to have AP added as D3 in the suit.

Issue: Whether RP’s application was barred by limitation?

SC: s29 LA is applicable only where mistake is an essential ingredient of the COA. Knowledge on the
part of RP in this case as to the identity of AP is irrelevant as such requirement is not provided for in
LA 1953. RP’s application was disallowed.

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4. Limitation must be pleaded

Limitation must be specifically pleaded for it to be a valid defence, i.e. it must be clearly stated in the
statement of defence.

s. 4 LA 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.

O. 18 r. 8 ROC 2012 Matters which must be specifically pleaded

(1) A party must in any pleading subsequent to a statement of claim plead specifically any
matter, for example, performance, release, any relevant statute of limitation, fraud or any fact
showing illegality

Lee Cheng Yee (suing as administrator of the estate of Chia Miew Hien) v Tiu Soon Siang & Anor
[2004] 1 CLJ 1
In this case the defendants did not specifically plead limitation in their defence to the plaintiff’s
dependency claim under s7(1). They did nto raise limitation as a preliminary issue at the
commencement of the trial. During the course of the trial, the defendants conceded “total liability”
but they argued that they were entitled to rely on limitation to defeat the plaintiff’s claim. The
learned judge held that the claim under s7 must fail on account of limitation and the plaintiff
appealed to the Court of Appeal. In dismissing the appeal, the Court of Appeal rejected the
plaintiff’s argument that the defendants could not rely on limitation because it was not pleaded.
Pajan Singh Gill JCA, who delivered the unanimous judgement of the Court of Appeal said that court
would be guided by the dicta of Thompson LP in the case of Kuan Hip Peng that a plea of limitation
need only be pleaded where limitation is not absolute, such as under the Limitation Act 1953. It
would not apply to a statute of limitation which is absolute and without exception.

Kerajaan Malaysia & Ors v Lay Kee Tee & Ors [2009] 1 CLJ 663

Other Preliminary Matters

Locus standi = standing in court = the right of a party to appear and be heard by a tribunal
A person must have legal interest in that particular matter, which is recognised by law, to sue against the
other party.

Government of Malaysia v Lim Kit Siang [1988] 1 CLJ 219, SC

Salleh Abas LP observed: “Every legal system has a built-in mechanism to protect its judicial process from
abuse by busy-bodies, cranks and other mischief makers by insisting that a plaintiff should have special
interest in the proceedings which he institutes. This special interest is a nexus between him and the party
against whom he brings his complaints to Court and is known as locus standi. “
In public law litigation, the rule is that the AG is the guardian of public interest, who will enforce the
performance of public duty and the compliance of public law. Thu, when AG sues, he is not required to show
locus standi. However, any other person, however public spirited he may be, will not be able to commence
such litigation unless he has locus standi. If this public spirited person wants to commence an action then he
must obtained the aid or consent of the AG. If such consent is obtain the suit is called a relator action in
which AG becomes the P whist the private citizen his relator.

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Buckley J in Boyce v Paddington Borough Council [1903] 1 Ch 109

A plaintiff can sue without joining AG in two cases, firstly, where the interference with the public right is
such as that some private rights of his at the same time interfered. For example, where an obstruction is
so placed in a high way that the owner of premises is specifically affected by reason that the obstruction
interfered with his private right to access from and to his premises. Secondly, where no private is interfered
with but the plaintiff in respect of his public right suffers special damage peculiar to himself from the
interference with the public right.

Tengku Jaffar bin Tengku Ahmad v Karpal Singh [993] 3 MLJ 156
The plaintiff sought a declaration. The defendant made an application to strike out the action on the ground
the plaintiff did not have locus standi.

Held: The plaintiffs has no locus standi to bring this suit against the defendant.

Tan Sri Haji Othman Saad v Mohamed B Ismail [1982] 2 MLJ 133, FC
Applicant had applied for state land in Mersing, Johor. No reply given for 8 years after which, RP discovered
from a search in the Land Registry that a number of pieces of land had been alienated to RP1 the Menteri
Besar of Johor and other dignitaries. APP brought an action against the Commissioner of Lands and Mines,
Johor Government and RP1 on grounds that the alienation process was carried out in the presence of with
the participation of RP1 and other 4 Executive Council members.
Issue: Whether RP had locis standi to bring this action?
Held: The sensible approach in the matter of locus standi would be where there is an assertion of an
infringement of a contractual right or a proprietary right, the commission of a tort, a statutory right or the
breach of a statute which affect P’s interest substantially or where P has some genuine interest in having
his legal position declared, even though he could get no other relief, he should be allowed to bring this suit i.e.
he would have locus standi.
RP had locus standi to commence this action as he was an aggrieved person and had sufficient interest in
the matter.
Abdoolcader J referred to R v Horsham Justice [1982] 2 WLR 430 where Lord Denning MR had referred to
Lord Diplock’s decision in Inland Revenue Commissioners v National Federation of Self-Employed & Small
Businesses Ltd [1981] 2 WLR 722:
“It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation,
or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from
bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct
stopped.”

Atip Ali v Josephine Doris Nunis [1987] 1 MLJ 82

J had filed an action against the former CM of Melaka, claiming damages for breach of promise to marry.
However, Atip and few other members of UMNO Alai branch, sued J for defamation of the UMNO members
of Alai branch.
Issues: Whether there they had locus standi to sue?
Held: Defamation was a personal action, and only an individual can sue for defamation. Hence, a class of
persons cannot be defamed. Atip and others had no legal interest and no locus standi to sue J.

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Technical Objections Based on Non-compliance with Rules

O. 1A + O.2 ROC 2012

Chang Chai Chin & Anor v Superintendent of Lands and Surveys, Samaran Division and other references
(2008) 2 MLJ 122
Samaran Division, the complainant seeks to determine the bona fide state of the authorities in acquiring the
land in the land reference (S. 56 of SLC only allow court to assess the amount payable). The court held
that such determination shall be made under the application of judicial review, as SLC mandates that land
reference has a limited remedy and function. Application dismissed.

Bun Fui Min & Anor v Seliang ak Tuah (2010) 9 MLJ 707 (HC)
The appellant wanted to appeal against the decision of Sessions Court Judge. Their notice of appeal was
served late by 6 days (originally late by 10 days but they had applied for extension of service for 4 days),
and their notice was not served to 2 of the Co-Defendants. The requirements are mandatory as if there is
no successful application, there would be no appeal at all. The appeal is defective.

Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj Tunku Mahkota Johor v Datuk
Captain Hamzah Mohd Noor & Anor Appeal (2009) 4 CLJ 329 (FC)
The applicant applied to renew their writ. The requirements to renew the writ, namely due diligence to serve
the writ upon issuance is a mandatory requirement, and the applicant had failed to show such diligence.
Application is dismissed.

Perbadanan Nasional Berhad v Syed Omar bin Syed Mohamed (2011) 9 MLJ 674
The plaintiff was late to file its affidavit in reply to Defendant’s application to strike out P’s WS & SOC. The
court held that to decide whether or not to overlook a technical error, the court must consider, whether
balance of justice allows, that is whether the error if overlooked, caused injustice to the innocent party. The
court allowed the overlook of the late reply.

Lee Hey Moy (by Lee Hen Yau as holder of valid power of attorney for the Plaintiff) (suing in person and
for his children, who are minors, Tan Chee Chin, Tan Ee Ling (f), Tan Ping Quen and Tan Ping Ren) v
Christopher Wong Wai Yee (as partner of the law firm practising under the style and name of Messrs
Wong & Associates, the law firm representing the first, second, third, forth, fifth and seventh defendants)
(2011) 5 MLJ 333 (CA)
The law states that once the notice of application for committal proceedings is issued, it must be entered
for hearing within 14 days. In this case, the applicant had not done so and the court had dismissed the case.
The court held that committal proceedings has procedures that must be strictly followed as personal liberty
is at risk.

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