VC George J

The plaintiff had purchased a new motorcar, a Mercedes Benz 300D, on or about 20 June 1979. The deal was transacted through the first defendant who was a motorcar salesman employed by the second defendant who are dealers in motor vehicles. The plaintiff contends that they are agents of the third defendant who had imported the motorcar. There was excise duty in the region of $14,842.38 in respect of the vehicle and the plaintiff had issued a cheque for that amount to the first defendant and another cheque for the agreed purchase price in favour of the second defendant.

In due course in June 1979 the vehicle was handed over to the plaintiff together with its registration book. The registration book, it is contended, is issued by the Registrar and Inspector of Motor Vehicles after that official is satisfied, inter alia, that the excise duty on the vehicle has been duly paid. The plaintiff had possession and uninterrupted usage of the vehicle for just over three years when on 17 September 1982 officers of the Customs and Excise Department seized the vehicle alleging that excise duty on it had in fact not been paid. On his providing certain guarantees the plaintiff was allowed to hold on to the vehicle until 24 June 1983 when the vehicle was taken away from him by government agents after it was forfeited on the order of the President of the Sessions Court, Kuala Lumpur, on 2 November 1984 pursuant to s 59(2) of the Excise Act. The court held that the excise duty on the vehicle had not been duly paid.

The plaintiff caused the writ herein to issue in January 1985 against the salesman, his employers the motorcar dealers, against the importers and against the government of Malaysia as fourth defendant. The cause of action relied on as against the government is the negligence of its servants, particulars whereof include the careless manner in which the documentation in respect of the vehicle vis-à-vis payment of excise duty and the issue of the registration card was handled. There is also an allegation against officers in the customs department of 'fraudulently using funds for their own use when the same was for express purpose of excise duty'. This allegation calls for further and better particulars which were not as yet sought or given.

The government having entered an appearance has sought to have the action as against it struck out. It is alleged that the acts complained of were acts carried out by servants of the government 'pursuant to powers/duties under both the Excise Act 1976 and the Road Traffic Ordinance 1958' and that accordingly by s 2(a) of the Public Authorities Protection Act of 1948 the action as against the government is time-barred.

Section 2(a) is reproduced:

2 Where, after the coming into force of this Act, 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

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(a) the suit, action, prosecution or proceeding shall not lie or be instituted unless it is commenced within thirty-six months next after the act, neglect or default complained of or, in the case of a continuance of injury or damage, within thirty-six months next after the ceasing thereof.

In opposing the application Encik Anthony Fernandez of counsel for the plaintiff sought to call to his aid provisions of the Limitation Act of 1953.

In my judgment in respect of the matters covered by the Public Authorities Protection Act 1948 the provisions of the Limitation Act 1953 have no application. The protection provided by the Act is absolute and provides for no qualifications where the suit, action or proceedings is commenced 'for any act done in pursuance or execution or intended execution of any written law or of any public duty or author