VT Singham J

This is an appeal by the appellants against the decision of the learned Sessions Court judge, Kuantan, wherein the appellants’ application to strike out the respondents’ claim against the appellants on the ground that the ‘cause of action’ was time barred under s 6(1)(a) Limitation Act 1953O 14 r 21(1)(a) of the Subordinate Courts Rules 1980 on the ground that it discloses no reasonable cause of action. For the purpose of this judgment, the appellants and the respondents will be referred to as the defendants and plaintiffs respectively.

The brief facts of the case are as follows:

(a)The first plaintiff as the registered owner and rider of motorcycle No WCF 9148 and the second and third plaintiffs as pillion riders had filed a summons with the statement of claim dated 21 May 2004 at the Sessions Court, Kuantan on 21 May 2004 against the defendants, the registered owners and rider of motorcycle No CAF 2043.

(b)The plaintiffs’ action was for damages under the law of tort of negligence arising out of a road accident on 21 May 1998. The second and third plaintiffs being infants at the material time of the accident had filed the summons through the first plaintiff, being their father as their next friend ( O 9 of the Subordinate Courts Rules 1980).

(c)On 23 September 2004 the statement of defence, counterclaim and set off dated 21 September 2004 was filed on behalf of the defendant.

(d)On 22 May 2006 notice of change of solicitors dated 15 May 2006 was filed by Tetuan Naicker & Associates on behalf of the defendants.

(e)Subsequently, the defendants having obtained an order of court dated 2 October 2006 to amend the statement of defence had filed an amended statement of defence, counterclaim and set off dated 2 October 2006 on 1 February 2007.

(f)On 12 June 2007 the reply and defence dated 31 May 2007 on behalf of the plaintiffs to the defendants amended statement of defence, counterclaim and set off was filed.

(g)On 9 July 2007 the trial at the Sessions Court, Kuantan commenced and two witnesses had testified.

(h)On 28 October 2008, the defendants had filed a further amended statement of defence, counterclaim and set off dated 25 September 2008 pursuant to an order of court dated 25 September 2008 where the defence of limitation, namely, the plaintiffs’ claim was statute barred was pleaded.

(i)By a notice of application dated 20 October 2008 filed on 28 October 2008, the defendants had applied to strike out the plaintiffs’ statement of claim dated 21 May 2004 against them. The said application was made on the ground that the plaintiffs’ cause of action was time barred on 20 May 2004 whereas the plaintiffs’ action was filed only on 21 May 2004.

(j)The defendants had relied on s 6(1)(a) Limitation Act 1953Section 6(1)(a)

(1)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;

(k)On 30 September 2009 the plaintiffs had filed a reply and defence dated 30 January 2009 to the further amended statement of defence, counterclaim and set off dated 25 September 2008.

DECISION

The sole question to be decided in the present case is, whether, the cause of action had accrued on the date the plaintiffs had suffered damage ie on 21 May 1998 in order to determine the period of limitation prescribed by s 6(1)(a) cause of action to survive before the expiry of the six years period will be 20 May 2004. Accordingly, the plaintiffs’ action which was filed in court on 21 May 2004 was time barred. On the other hand, if the date on 21 May 1998 was to be excluded and the cause of action arose only on 22 May 1998, then the plaintiffs’ action which was filed in court on 21 May 2004 was not time barred and was within the period of six years. At this stage, it is important to stress that s 6(1)(a)

This court is of the considered view that the period of limitation statutorily prescribed has to be strict