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) Time limitation
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
- A cause of action is the factor that caused grief to the plaintiff that results in him or her to file a suit
against the defendant seeking for remedy at court.

- Mr Hafiz’s fav definition : the cause of action is a factual situation that entitles the plaintiff to
succeed against the defendant in a court that provides the remedy.

▪ 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?
Geld: 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.

COA must be complete

If there is no COA, the suit shall be deemed to be incomplete, and any COA commenced shall be dismissed.
▪ Taib Awang v Mohamed bin Abdullah [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 v SB Mehra [1981] 1 MLJ 225

RP claim for full sum even though AP had only defaulted in one payment.

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 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 Const 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.

Time Limitation
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.

Relevant statutes:
- Limitation Act 1953 (Revised 1981) - Civil Law Act 1956
- Public Authorities Protection Act 1948 - (Sabah) Limitation Ordinance (Cap 72)
- Railways Act 1991 - (Sarawak) Limitation Ordinance (Cap 49)
Note: Time limitation differs depending on the subject matter of the suit.

Matters relating to limitation period under the

A) Limitation Act 1953 (Revised 1981)

(a) Breach of contract or Tort

6 years from the date the COA accrued
s6(1)(a) 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 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.

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

▪ Credit Corp (M) Bhd v Fong Tak Sin [1991] 1 MLJ 409, SC
Held: Failure to add a party within the limitation period in not within s29 LA. Time runs although P
is ignorant of D’s identity. (See below at page 7)
cf.
▪ 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. 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

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 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.

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(b) Action based on judgment
s6(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

 What does ‘action upon any judgement’ refer to? Does it include an ‘execution proceedings’?
It does not include an execution proceeding.

Note: Bankruptcy is not an execution proceeding but a fresh action altogether. Thus, action under this
section applies to bankruptcy proceedings.

Arrears of interest in respect of judgment debt: 6 years from the date on which the interest became due
▪ United Malayan Banking Corporation v Earnest 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 24/1/1996 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 s6(3) LA 1953.CA dismiss AP’s appeal, AP appeal to FC.
Issue: Whether, in respect of second limb of s6(3) LA, no arrears of interest on any judgment 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 s6(3) LA provides that an action to recover arrears of interest must be
brought within 6 years of the judgment 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 the arrears of interest in respect of the judgment debt must be made
within 6 years of the judgment 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

O42 r12 RHC 1980 – Interest will go on until full realisation of the judgment debt
Second limb of s6(3) LA – Interest is up to a max period of 6 years from the judgment date
s6(3) LA should prevail in view of s23 Interpretation Acts 1948 and 1967.

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 ▪ Perwira Affin Bank Bhd v Lim Ah Hee [2004] 2 CLJ 787, FC
RP raised inter alia the preliminary objection that the sum claimed in the bankruptcy notice was
wrong as it included statute-barred interest.
Issue: Whether the second limb of s6(3) LA 1953 is relevant to bankruptcy proceedings?
Held: Appeal dismissed.
1. A bankruptcy proceeding is not “a writ of execution” within the meaning of O46 r2 RHC.
According to the definition under s2 LA, it is an action – “action upon a judgment” – and is
caught by the provisions of s6(3) LA.
2. s6(3) LA should be read conjunctively, whereby the limitation for bringing an action upon
judgment is12 years, but for action for arrears of interest is only 6 years. Hence, while a
bankruptcy proceeding may be brought within 12 years of the date of the judgment; arrears of
interest may only be claimed for a period of 6 years from the date of judgment.
In the instant case, the judgment was obtained on 23/10/1987. Following UMBC v Ernest Cheong
Yong Yin [2002] 2 CLJ 413, FC, even though interest was calculated from 1/12/1985, it merged into
the judgment debt and therefore the date the interest became due was the date of the judgment, not
the earlier date. The period to be calculated was from the date of the judgment to the date of filing
the bankruptcy notice. The bankruptcy notice was invalid as it contained arrears of interest outside
the period of 6 years.

(c) Land Matters

Actions for recovery of land – 12 years
s9(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.

▪ Nasri v Mesah [1971] 1 MLJ 32, FC

AP claimed for specific performance of an agreement dated 5/6/1947 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 30/9/1949 AP approached RP on several occasions and requested her to execute a
transfer of the land. Eventually AP commenced the action on 3/3/1967. 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: Appeal allowed.
1. Whether the action was for specific performance of an agreement for the sale of land or for a
declaration of title to land, it was essentially an action to recover land, and the period of
limitation therefore would be 12 years.
2. Time begins to run for the purposes of limitation from the date of any infringement or threat of
infringement of AP’s right under the agreement. A COA on a contract accrues on the date of
breach and in the case of actions founded on contract. Therefore, the time runs from the breach.

 Recovery of money secured by land – 12 years

s21(1) 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.

▪ Tan Kong Min v Malaysia Nasional Insurance Sdn Bhd [2005] MLJU 264, FC
1984 – AP created legal charge over his land in favour of RP.
1986 – AP defaulted in its loan.
16/3/1992 – RP forecloses the land by way of public auction. AP as chargor had agreed to pay to the
respondent the difference between the amount due and the amount realised from the sale, and also
pay interest on the balance due at the prescribed rate with monthly rests. AP failed.
17/1/1995 – RP commence suit.
Issues:

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 i) Whether a claim for balance after sale is: a claim founded on contract and therefore subject to
the limitation period of 6 years under s6(1)(a); or a claim for money secured by charge on land
and thereafter subject to the limitation period of 12 years under s21(1)?
ii) If a claim for balance after sale is a contractual claim and therefore subject to the limitation
period of six years under s6(1)(a), when does the COA accrue and the limitation period begin?
AP also contended that RP’s claim for the balance after sale was founded on contract and subject to
the limitation period of 6 years under s6(1)(a).

Held: Appeal dismissed with costs.

1. s6 cannot apply as s6(5)(b) expressly excludes ‘any action to recover money secured by any
mortgage of or charge on land’. The applicable provision is s21. s21(1) specifically refers to an
action to recover moneys secured by a charge which is an action in personam, whilst s21(2)
specifically refers to a foreclosure action in respect of mortgaged personal property which is an
action in rem. The limitation period is therefore 12 years from the date when the right to receive
the money accrued or 12 years from the date on which the right to foreclose accrued.
2. The point in time where all the material facts were said to be in existence to render the COA
complete would be after the sale had been conducted and the differential amount remaining due
to RP had been ascertained.
Thus, the earliest possible date RP could bring an action against AP is 16/3/1992, the date the
property was sold by auction; and AP’s liability will only accrue after the differential amount
has been ascertained.
3. The contractual provisions of the charge Annexure provides for 2 separate causes of action:
i) statutory in nature, i.e. the foreclosure action under the NLC 1965 (action in rem)
ii) arises only after the foreclosure action (and if there is still a surplus owing) is the action in
personam against the chargor
If a suit is brought against the chargor before the completion of the foreclosure action and the
determination that there is a balance owing, such a suit could be struck-off as being premature.
4. The first notice of demand issued by RP’s solicitors on 18/8/1994 and subsequently, RP’s
solicitors issued another notice of demand against AP. The limitation period only began to run
from the expiry of the time specified for payment in the letter of 18 August, i.e. on 26/8/1994.
RP’s action, therefore, was filed well within the limitation period allowed under s21(1).

(d) 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
s22(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

s22(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
P were lawful issues of BT, who is the daughter of LM and D were lawful sons of LM. BT died
interstate on 22/9/1966 while LM died interstate on 11/1/1977. LM left behind a lawful widow and
10 lawful children surviving him, including D. Letters of Administration dated 14/10/1977 issued by
HC, appointing D and P jointly as administrators of LM’s estate. D2 died intestate on 23/2/1999,
leaving D1 as the sole administrator of the estate.
P claimed that they were entitled to a share in some of the land in LM’s estate based on the
Distribution Ordinance 1958 and written family agreement. They further averred that D, who were
allegedly their trustees in relation to the estate and had from time to time distributed the assets to
LM’s widow and his 10 surviving children, had committed breaches of trust against P.
Issue: inter alia, whether P claim against Ds was statute-barred under s6 and s23 LA 1953?
HC: Allowed P’s claim against D in relation to the administration LM’s estate. D appealed.

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 Held: Appeal allowed. Although D had admitted that they had made distributions of the assets of
LM’s estate to the other beneficiaries to the exclusion of P. D were liable as trustees for breach f
trust. However, action failed because: (i) P had no locus standi to bring this action against D as they
were claiming their deceased mother’s rights and had to obtain LA in respect of their mother’s estate
first. (ii) P did not produce the written agreement to support their application under O14A 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.

(e) Inheritance
Claim for estate under will or intestacy – 12 years
Action for recovery of arrear of interest – 6 years
s23 LA 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.

(f) Extension of limitation

s24(1) 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.

Categories of person suffering from disability are: minors, mental patients, & comatose
However, it must be noted that s24(1) is subject to s6(4), s8 & s29 LA.

(g) Fresh accrual of action on acknowledgment

s26 Fresh accrual of action on acknowledgment.
(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

s27(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.

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(h) Postponement of limitation period due to fraud / mistake
s29 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.
▪ 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.

▪ Sivapiran v Lim Yoke Kong [1992] 2 MLJ 381

Held: 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 s29 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?
Trial Judge: Time did not run against RP until date RP becomes aware that AP was the registered owner
of the vehicle.
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.

▪ Koh Siew Keng & Anor v Koh Heng Kin [2008] 3 CLJ 450, CA
Testator opened an account at Bangkok Bank Ltd in Singapore with his sons RP and KHT. Testator
passed away on Sept 1970 and left a will naming AP (his widow) and RP as executors, and the
residue of the goes to AP. A few months later, KHT also passed away and RP became the only
surviving holder of the account. About 10 years later, RP emptied the entire account for himself. AP
brought an action against RP to recover 1/3 of the monies. AP claimed that there was an agreement
between testator, RP and KHT that each is entitled to 1/3. AP was entitle to 1/ 3of the monies which
formed 1/3 of the testator’s residue estate. RP contended inter alia that the action was barred by
limitation, a defence which AP met with s22(1)(b) LA 1953.
Held: s2 LA states that the words “trust” and “trustee” have the same meanings respectively as in
the Trustee Act 1949. RP was neither a constructive trustee nor a trustee under a resulting trust. He
was a person who was accountable to AP in equity. This was because he appropriated the testator’s
1/3 share of the monies in question knowing that they did not belong to him. As executor, he was a
personal representative of his father’s estate and, therefore, fell within the broader definition of
“trustee” given by the TA. There was no doubt that he converted to his own use monies not
belonging to him. Accordingly, s22(1)(b) applied and the plea of limitation must fail.
s22(1)(a) applied equally to the facts of this case. The appropriation by RP of monies he knew to
belong to the testator amounted at the very least to equitable fraud or unconscionable conduct. It is
settled law that the word “fraud”, wherever it appears in the LA, is not limited to actual fraud at

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 common law but includes equitable fraud. RP having committed a fraudulent breach of trust (having
regard to the wider definition adverted to earlier), no period of limitation applied. Appeal allowed.

B) Limitation under other statutes

i) Tort actions under CLA 1956
Dependency claim for negligent act has cause the death of a person i.e. fatal accident  3 years
s7(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.

Estate claim
s8(3) CLA 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.

ii) Public Authorities Protection Act 1948

Action against the Federation  36 months = 3 years after the act, neglect or default complained of
s2(a) 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.

▪ Phuah Chin Chew & Ors v KM & Ors [1987] 2 MLJ 604, SC
RP (KM, a teacher) joined the government teaching service on 20/1/1971 in Muar and was
confirmed a permanent teacher on 2/1/1974. However in November 1976, he was admitted to the
Psychiatric Ward of the University Hospital for treatment of mental disorder. On discharged was
transferred to Melaka. On April 1977, while labouring under an attack of schizophrenia, RP wrote
letter to AP to resign as a teacher by giving 1 months notice. Letter was accepted by AP who
terminated RP’s services accordingly. Subsequently, RP’s brothers applied to court and were
appointed as Committee of RP in 2/6/1983. Committee filed present suit on 2/6/1983. AP applied to
strike out suit on ground of limitation
Issue: Whether limitation 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 acceptance by Government of the offer to resign?
Held: Limitation time begins to run from the date of the appointment of the committee, and not from
the date of the letter of resignation or the acceptance by the Government of the offer to resign. The
action was well within the 3 years period of limitation under s2(a) PAPA 1948.

iii) Railways Act 1991

Action against railway authorities  36 months / 3 years

C) 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.
s4 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.

ROHC O 18 r 8 Matters which must be specifically pleaded

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 (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

▪ Tengku Ismail Tengku Sulaiman & Ors v Sia Cheng Soon & Anor [2006] 3 CLJ 556, CA
Accident case – AP/P filed the more than 4 years after the date of the accident. RP/D, in filing their
statement of defence, did not raise the issue of limitation until the case had proceeded to full trial
before the Sessions Court. Upon asking to file their written submissions did D raised the issue of
limitation for the first time, contending that the P’s claim was time-barred as it was filed out of the
time frame prescribed by s7(5) CLA.
Sessions Court: Parties were bound by their pleadings and judgment entered for P.
HC: By reason of the limitation period as provided in s7(5) CLA and by reason of the LA being
inapplicable to this case, s7(5) was an absolute provision which has to be applied under all
circumstances and that any person mindful of instituting any proceedings under s7 must do so within
3 years of the death of the person deceased. Also, in the absence of a of a pari materia provision in
CLA in terms of s4 LA, it was not necessary for D to plead limitation as a defence. P appealed.
Issue: Whether it was open to D, in the circumstances of the present case, to raise the plea that the
claim of P was time-barred pursuant to s7(5) CLA.
Held: Appeal allowed.
1. By reason of D failure to plead the issue of limitation, P clearly had been lulled into a sense of
security that the case would be met on the merits. In the circumstances of the present case,
limitation was raised at a stage when the evidence at trial indicated 100% liability on D’s part.
To permit D to raise limitation would effectively be giving D an opportunity to renew the fight
on an entirely different defence.
2. The object of pleadings of not taking the opposite party by surprise as a matter of natural justice
– O14 r14(1) SCR 1980 and O18 r8(1) RHC 1980 – must be observed. A defence by “ambush”
clearly should not and cannot be permitted to continue to form part of procedural law when it
results in injustice to a litigant. A defendant who fails to plead a defence of limitation and
allowed a case to proceed to be fought on the merits is not permitted to fall back upon a plea of
limitation as a second line of defence at the conclusion of the trial.
Per Zaleha Zahari JCA (at 565):
The omission in this case to plead limitation could have been inadvertent, it may have been
deliberate. Whatever the real reason for the omission may be, the object of pleadings of not
taking the opposite party by surprise as a matter of natural justice as provided by the rules must
be observed. A defence by "ambush" clearly should not and cannot be permitted to continue to
form part of our procedural law when it results in an injustice to a litigant. A defendant who fails
to plead a limitation defence, and allowed a case to proceed to be fought on the merits, is not to
be permitted to fall back upon a plea of limitation as a second line of defence at the conclusion
of trial.

▪ Lee Lee Cheng v Seow Peng Kwang [1960] MLJ 1, CA

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.
Held: Appeal dismissed.
1. The time prescribe by s8(3)(b) Civil Law Ordinance 1956 commenced to run against P on day
the grant was extracted 8/8/1957. As P’s action was filed on 12/2/1958 it was bared by
limitation.
2. The courts have no power to extend limitation period. The period prescribed by s8(3)(b) Civil
Law Ordinance 1956 was a period of limitation. Item 12 Part A 2 nd Schedule Courts Ordinance
1948 was merely declaratory of the jurisdiction of the HC to enlarge the time prescribed by any
written law for doing any act or taking any proceeding, always providing there was express
provision in the particular written law itself which enabled such time to be so enlarged.

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Other Preliminary Matters
(a) Arbitration
If a contract contains an arbitration clause, the aggrieved party to the contract cannot file any action in
court. However, if the aggrieved party still proceeds to file the matter in court, the opponent may seek an
application for an order to stay of such action.

Relevant Act: Arbitration Act 2005 (which repealed the previous Arbitration Act 1952)

(b) Locus standi

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
Held: 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.

▪ 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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