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A time to act
09/10/2007 The Star 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. |
