Wan Suleiman FJ:

There are two judgments in this case, written by the LP and the CJ Borneo, and I agree with both of them.

In their absence, I shall read first the LP's judgment. (Reads).

Suffian LP: (read by Wan Suleiman FJ): The plaintiffs granted a mining company a sub-sublease under which the company was to pay the plaintiffs tribute. The company was in arrear to the tune of $130,000.

By a contract in writing dated 20 December 1967, between (1) the plaintiffs, (2) the mining company and (3) the defendants and two others, the defendants and the two others acknowledged that the $130,000 was due from the company to the plaintiffs; the first three asked the plaintiffs to forbear enforcement of the payment of that money and to allow the company to pay it by monthly instalments, the first instalment to be paid on 20 January 1968; and the three jointly and severally guaranteed the repayment of the money to the plaintiffs.

The contract finally provided that in the event of any default in the payment of the said instalments or in the event of the winding up of the company the whole sum or the balance outstanding shall become immediately due and payable by the company and the other two.

The company did not pay a single instalment (the first instalment being due on 20 January 1968).

On 1 November 1971 the company was wound up.

The guarantee being limited to $125,000, the plaintiffs sued the defendants for that amount.

The plaintiffs filed their claim on 19 June 1975.

The defendants deny liability and in the alternative plead that the action, having been brought after the expiration of six years from the date on which the cause of action accrued, is barred by s. 6(i)(a) of the Limitation Ordinance No 4 of 1953, which reads:

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 -

(a) actions founded on a contract or on tort;..."

The plaintiffs applied under O. 14 to sign final judgment, but the learned Senior Assistant Registrar disallowed their application and allowed the defendants unconditional leave to defend.

On appeal the learned Judge gave leave to the plaintiffs to sign final judgment.

The defendants have appealed to us.

The only issue before the learned judge and before us is limitation: when did time began to run against the plaintiffs? The plaintiffs say and the learned judge agreed that it began to run from the date on the winding up of the company and therefore this action is not barred by the Ordinance. The learned judge said that the amount claimed fell due on alternative dates, either in the event of any default in the payment of the instalments or in the event of the winding up of the company and that where plaintiffs have an alternative, as here, they can choose the later event as the date on which their cause of action accrued, and that is why their action is not time-barred.

The defendants on the other hand contend that here there is only one cause of action - founded on contract - not two; that the moment the defendants failed to pay the first instalment due the whole sum became immediately due and payable and that was the instant from when time began to run; and that to treat the date of the winding up of the company as the instant from when time began to run amounts to according the plaintiffs two causes of action. Otherwise, it is said, if the company is wound up 20 or so years after the date of first default, the plaintiffs can then still pursue the matter, despite the fact that during the previous two decades they had been sleeping and done nothing.

In my judgment, the cause of action accrued the instant the defendants failed to pay the first instalment and this appeal should therefore be allowed.

The general rule was stated by Willes J in the Court of Common Pleas in Wilkinson v. Verity (1871) LR 6 CP 206, 209 as follows:

It is a general rule that where there has o