Wan Suleiman FJ:

The judgement of the court which I am about to read has been written by the Lord President.

JUDGMENT

Suffian LP (read by Wan Suleiman FJ):

The plaintiff was until some time in April 1967, an employee of the Overseas Chinese Banking Corporation ("the bank"). He was a member of its Staff Provident Fund. He alleges that pursuant to the rules of the fund he was entitled to be paid within six months of leaving the bank the maximum benefit under the fund. The defendants, fellow employees of the bank, manage the fund. They refuse to pay the plaintiff anything; so the plaintiff sues them, claiming:

(1) Maximum benefit under r. 10 of the fund;

(2)an account to be rendered by the defendants;

(3)interest on the maximum benefit; and

(4)other relief.

It is not disputed that the plaintiff was a member of the fund when he was with the bank, but the defendants deny that he was entitled to anything. as the plaintiff had admitted in a letter that he had been guilty of misconduct while serving as Acting Manager of the bank at Kota Bharu, Kelantan, such misconduct entitling the defendants to apply his benefit under the fund to make good any loss suffered by the bank under r. 10(2) of the rules of the fund.

This was a reference to a letter written by the plaintiff to the bank dated 28 February 1967, as follows:

In view of my misdemeanour and misconduct and the irregularities allowed by me when I was Acting Manager of your Kota Bharu Branch, I wish to request you to allow me to retire from the service of the Bank as soon as possible.

I sincerely hope that the Directors will take my past long service into consideration and pay me an ex-gratia gratuity."

The defendants say that as they have paid out of the fund the plaintiff's benefit to the bank, the plaintiffs entitlement from the fund has been extinguished and there is nothing due to him.

Finally the defendants say that the plaintiff's claim is time-barred.

The defendants applied to Court under O. 25 r. 2 for the issue of notification to be disposed of first. The learned Judge agreed, held that the claim was barred by section of the Limitation Ordinance, No 4 of 1953.

The plaintiff appealed to us.

The plaintiff' action is founded on contract and s. 6(1)(a) of the Limitation Ordinance No. 4 of 1953 provides:

...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..."

As the plaintiff left the service of the bank in April 1967, the defendants say that time began to run from that date and the action, having been brought on 13 August 1974, is time-barred. Prima facie that is correct. But the plaintiff had received a letter at page 58 of the record, and he says that that letter constituted an acknowledgment within s. 26(2) of the Ordinance and therefore time began to run from the date of the letter which was 24 June 1974, and that being so, it is said, the action was not therefore time-barred. Section 26(2) reads:

Where any right of action has accrued to recover any debt or other liquidated pecuniary claim ... and the person liable or accountable therefor acknowledges the claim ..., the right shall be deemed to have accrued on and not before the date of the acknowledgment ... "

Thus the issue here is whether or not the letter of 24 June 1974, constituted an acknowledgment.

It is now necessary to refer to the correspondence between the parties.

Reference has already been made to the letter written by the plaintiff to the bank on 28 February 1967.

Thereafter on 18 March 1967, the defendants wrote to the plaintiff as follows:

Dear Sir [plaintiff],

We beg to advise that the balance standing to the credit of your account on 31 December 1965, was $38,206.93 arrived at as shown under:-

Balance as at 1 January 1965 ... ... ... $32,601.45

*Bank's contribution 1965 ... ... ..

Your contribution 1965 ... ... ... 1,440.00

Interest for 1965