Lau Bee Lan J:

[1]VideO. 49 r. 6 of the Subordinate Courts Rules 1980 ("the SCR") , the appellants/plaintiffs ("the plaintiffs") has appealed against the decision of the learned Sessions Court Judge made on 6 August 2004 and 10 August 2004 allowing the 1st defendant's application made pursuant to O. 14 r. 21(1) of the SCR dated 5 March 2004. The 1st defendant is, inter alia, seeking to strike out the plaintiffs' summons dated 30 November 1999 and the statement of claim dated 27 November 1999 ("the summons") on the grounds:

(a) the summons is:

(i) scandalous, frivolous and vexatious; or

(ii) an abuse of the process of the Court; and

(b) that by virtue of item 92 of the Ordinance, the plaintiffs' cause of action had become statute barred on 29 November 1999.

[2] The 1st defendant's application is supported by the affidavits of Winnie Wong Nai San affirmed on 5 March 2004 and affidavit in reply of Desmond Anura Sahathevan affirmed on 13 April 2004 and opposed by the affidavit of Addy Termizi bin Mohammed Tuah affirmed on 31 March 2004.

[3] The plaintiffs' claim arose out of an alleged collision which occurred between a motorcycle No. KS 2536Q ridden by the 1st plaintiff and with the 2nd plaintiff as pillion rider along Jalan Bako from the direction of the Bako Causeway going towards Kuching near the Demak Baru Mosque and motorcar No. KD11Q which came from behind and heading towards the same direction.

[4] The issue for the Court's determination is whether the plaintiffs' claim against the 1st defendant is statute barred.

[5] From Winnie Wong's affidavit and Desmond's affidavit, basically, it is the defendants' contention that by virtue of item 92 of the Schedule to the Limitation Ordinance (Cap. 49) (Sarawak) ("the Ordinance"), the plaintiffs have three (3) years from the date of injury to file its claim and since the accident happened on 29 November 1996, following s. 11 of the Ordinance which provides that "in computing the period of limitation prescribed for any suit, the day on which such period is to be reckoned shall be excluded"; the last day for filing the claim would be 29 January 1999. Therefore, since the plaintiffs' summons is dated 30 November 1999, the plaintiffs' claim is statute barred.

[6] Based on Addy's affidavit, it is the plaintiffs' contention that:

(i) by virtue of item 92 of the Schedule to the Ordinance read together with s. 11 of the Ordinance the date of the filing of the claim should "be forwarded for another day, ie, 30 November 1999, which was eventually the date where summons was issued";

(ii) there is no delay since 29 November 1999 is a national polling day and although it is not a public holiday but the firm has agreed to release all the staff and to close the office to allow the staff to vote; and

(iii) even if there is a delay, it is only a delay of one (1) day and for bona fide reasons, the Court should exercise its unfettered discretion on equitable grounds to "disapply a limitation period" ie, extend the period of limitation.

[7] Item 92 of the Schedule to the Ordinance provides that "for compensation for injury to the person including where death results from such injury, compensation to the family of the deceased", the period of limitation shall be three years from the day when the injury is committed. Section 11 of the Ordinance states that "in computing the period of limitation prescribed for any suit, the day on which such period is to be reckoned shall be excluded". Therefore, I agree with the learned counsel for the 1st defendant, Mr. Desmond Sahathevan, that the last date for the filing of the summons is 29 November 1999 since it is admitted that 29 November 1999 is not a public holiday and it is not disputed it is a Monday wherein the Court registry was opened for business. The mode of calculation as above is confirmed in the case of Kok Song Kong v. Brunei Shell Petroleum Co. Bhd. , [1988] 1 MLJ 240 where the Court had to decide a preliminary point of law whether the proceedings in civ