The Act 254 Limitation Act 1953

The Act 254 Limitation Act 1953

It is not always prudent to delay commencing legal proceedings when a contractual dispute exists between the parties. This is due to the existence of what is called limitation period in law. This means there is a defined time period in which one has to begin legal action, and to delay beyond this will lead to being time barred, or more accurately, statute barred as the time periods are imposed by Statute rather than by common law principles.

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

The Act prescribes different periods of limitations depending on different types of causes of action that arise. For actions relating to torts and contracts generally the period is six years from when the cause accrued, imposed by section 6.

Section 9 of the Act states that where an action is made in respect of land and the recovery thereof, the period of limitation would be twelve years. However this does not apply in delays for an action of specific performance, for example, because the owner would already have equitable title in the land.

It should be noted that generally courts do not have power to enlarge the limitation period when asked but there are circumstances where the limitation period itself is renewable, such as in the instance where debt is acknowledged or part payment is made in respect thereof under section 26 of the Act.

Section 27 further qualifies this however; by stating that such acknowledgment must be in writing. The claimant is required to specifically plead this acknowledgment or else it would be struck out.

Where there has been a fraud or concealment however, the Limitation Act 1953 provides for an exception. Section 29 of the Act states that where an action is based upon the fraud of the defendant or his agent or where any fact relevant to the plaintiff’s cause of action was deliberately concealed or where such an action is based on mistake, the time of six years does not run until the discovery of the fraud, concealment or mistake by the plaintiff.

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

“Where, after the coming into force of this Act, any suit, action, prosecution or other proceeding is commenced within the Federation against any person for any act done in pursuance or execution or intended execution of any written law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority the following provisions shall have effect.

a) the suit, action, prosecution or proceeding shall not lie or be instituted unless it is commenced within thirty-six months next after the ceasing thereof…”

This provision was tested in 1972 when the Government failed to make good some payments in respect of some building contracts. The Government contended that such contracts were made pursuant to a public duty and that the plaintiff’s claim was statute barred with reference to section 2 of the Public Authorities Protection Act 1948. The court opined that non-payment of monies owed was not in pursuance of a public duty and accordingly allowed the claim but the thirty-six month limitation period should never be overlooked.

The Full text of the Act can be read at Act 254 Limitations Act 1953

MALCONLAW

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