Ong (Malaya) CJ:

The facts so far as they are material to this report, appear sufficiently from the judgment of the Chief Justice.

The appellant was a building contractor. On 27 May 1963 he entered into a written contractNo. 214/63 with the Malaysian Government to construct certain works and buildings for the sum of $23,680. A second contract in writing,No. 227/63, was made on 7 August 1963 between the parties for other works and buildings costing $11,315. The works and buildings under both contracts were duly completed to the satisfaction of the Government. In respect of the first contract,No. 214/63, the Government had withheld as "retention moneys" the sum of $1,184, as it was entitled to do during the "defects liability period" - which in the instant case, was six months from date of completion. The completion date was 3 February 1964; hence this sum was lawfully retained until 3 August 1964.

For the second contract,No. 227/63. the appellant had paid the Government a sum of $565.75 as "security deposit" upon acceptance of his tender. This contract was completed by the appellant on 5 February 1964 and, even assuming that a portion of the contract price of $11,315 could have been withheld as retention moneys, the entire sum should have been paid to the appellant by 5 August 1964, together with a refund of his security deposit of $565.75.

On 14 June 1965 the appellant was compelled by the Government's neglect or default in payment, to issue a specially indorsed writ in Civil ActionNo. 221/ 65, claiming payment and refund under the two said contracts of the three above-stated sums of $1,184, $11,315 and $565.75, totalling $13,064.75.

By its defence the Government admitted that the appellant had a just claim to the sum of $1,184 under the first contractNo. 214/63. But, in respect of the three named sums, totalling $13,064.75, the Government counterclaimed the sum of $370 as agreed liquidated damages for 37 days' alleged delay in completion of the works and a further sum of $15,000 being damages payable by the appellant for breach of a third contract,No. 232/63, which was the subject matter of another Civil Action,No. 222/65, filed by the appellant. The counterclaim exceeded the appellant's claims by $780.25.

This third contract, also in writing, was dated 7 August 1963, for the works and buildings specified therein at the tendered price of $30,500. The security deposit required from the appellant, as building contractor, was $1,525 which was paid by him on 7 November 1963. This contract was purportedly terminated by the Government's duly authorised agent, the Senior Executive Engineer, Central Perak, on 7 December 1963 and the execution of the same works and buildings given to another contractor at the contract price of $45,500. The damages counterclaimed under this third contract was accordingly $15,000. The security deposit made by the appellant of $1,525 was admittedly not repaid by the Government.

The defence in both actions pleaded s. 2 of the Public Authorities Protection Ordinance 1948, which reads:

2 .Where, after the coming into force of this Ordinance, 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 twelve months next after the act, neglect or default complained of or, in the case of a continuance of injury or damage, within twelve months next after the ceasing thereof;"

This defence was put in issue by the appellant's reply. But, at the trial of the consolidated actions, learned Counsel on both sides surprisingly agreed that the section applied, leaving it to the Court to de