JUDGMENT

Abdul Hamid Mohamad CJ:

[1] Like Application No. 08-149-2007(P) (Abdul Ghaffar bin Mohd. Amin v. Ibrahim b. Yusoff & Anor), this application was also heard on 28 January 2008. We dismissed it. These are my grounds.

[2] The first and second respondents are the parents of the deceased who died in a road accident on 11 December 1993. They brought a claim for bereavement and funeral expenses under s. 7 of the Civil Law Act 1956 (CLA 1956) in the Sessions Court at Seremban, on 6 December 1977, that is, 11 months and 23 days after the expiry of the limitation period under s. 7(5) of the Act. The case proceeded on two issues only ie, on liability and on the issue of limitation. The Sessions Court gave judgment for the respondents. The applicant appealed to the High Court. The High Court allowed the appeal. The High Court held that as the claim was under s. 7 of the CLA 1956 wherein there was a specific provision in that Act as regards limitation under s. 7(5) and as the provision was absolute with no exception, it need not be pleaded in the statement of defence.

[3] The respondents appealed to the Court of Appeal. The Court of Appeal allowed the appeal. The reason given by the Court of Appeal may be summarized as follows:

(a) The issue of limitation must be pleaded in the statement of defence for cases under s. 7 of the CLA 1956 and s. 7(5) does not provide an absolute bar for cases filed after the expiry of limitation.

(b) The Court of Appeal case of Lee Cheng Yee v. Tiu Soon Siang & Anor [2004] 1 CLJ 1 670 was per incuriam as it failed to consider O. 14 r. 14 of the Subordinate Courts Rules 1980 (SCR 1980) and O. 18 r. 18 of the Rules of the High Court 1980 (RHC 1980) and therefore did not bind the court which had coordinate jurisdiction.

(c) The Federal Court decision of Kuan Hip Peng v. Yap Yin & Anor is not an authority that decided that the limitation under s. 7(5) CLA 1956 need not be pleaded in a statement of defence as in that case there was an application to strike out.

(d) The applicant used limitation as an 'ambush tactic' as it was only raised at submissions stage.

[4] The applicants applied for leave to appeal to this court (the first application). The questions posed were:

(a) Considering that Section 7(5) of the Civil Law Act, 1965, is absolute in nature and contains no exceptions, does it therefore not follow that the provisions of the Limitation Act, 1953, will not apply in circumstances when the said Section 7(5) applies. And therefore as Section 7(5) is a statutory bar and absolute in nature, a party relying upon it need not, by the law of procedure, specifically plead it?

(b) Is Section 7(5) Civil Law Act 1956 substantive law or procedural requirement that has to be pleaded?

(c) Was the Court of Appeal correct in its decision that the decision of the earlier Court of Appeal in Lee Cheng Yee (suing as administrator of the estate of Chia Miew Hien) v. Tiu Soon Siang t/a Tiyo Soon Tiok & Soons Company & Anor [2004] 1 CLJ 1; [2004] 1 MLJ 670 wherein the facts in that case is on all fours with this case was per incuriam?

[5] When the first application was heard by this court, learned counsel for the respondents raised a preliminary objection that the application for leave was defective as the suit had originated in the Sessions Court. This court dismissed the application. The applicants then filed this application (the second application) praying for leave to appeal to this court "or alternatively to refer the issues hereunder set out to the Federal Court under its inherent jurisdiction as provided under r. 137 of the Rules of the Federal Court 1995 on a point of law."

[6] As regards the prayer that leave to appeal be given under r. 137 of the Rules of the Federal Court 1995 (RFC 1995), I have covered the issue in Abdul Ghaffar bin Mohd. Amin v. Ibrahim bin Yusoff & Anor, Federal Court Application No. 08-151-2007(N) and I need say no more. My response on the reasons given as to why the appeal should be allowe