Sarawak Limitation Ordinance Cap 49- Rev.1
SWK. CAP. 49
1 Short title
This Ordinance may be cited as the Limitation Ordinance.
In this Ordinance-
"bill of exchange" includes a cheque;
"bond" includes any instrument whereby a person obliges himself to pay money to another on condition that the obligation shall be void if a specified act is performed or is not performed, as the case may be;
"defendant" includes any person from or through whom a defendant derives his liability to be sued;
"Government" means the Government of the Federation or of any State thereof; "plaintiff" includes any person from or through whom a plaintiff derives hi s right to sue;
"promissory note" means any instrument whereby the maker engages absolutely to pay a specified sum of money to another at a time therein limited, or on demand or at sight;
"suit" includes any action or other proceeding;
"trustee" does not include a mortgagee or chargee remaining in possession after the mortgage or charge has been satisfied, or a wrong-doer in possession without title.
Nothing shall be deemed to be done in "good faith" which is not done with due care and attention.
3 Dismissal of suits instituted after period of limitation
Subject to sections 4 to 24 inclusive, every suit instituted after the period of limitation prescribed therefor by the Schedule, if limitation has been set up as a defence, shall be dismissed.
[Amended by commissioner of Law Revision]
4 Proviso where court is closed when period expires
If the period of limitation prescribed for any suit expires on a day when the court is closed, the suit may be instituted on the day that the court reopens.
5 Special law of limitation
When, by any special law now or hereafter in force in Sarawak, a period of limitation is especially prescribed for any suit, nothing herein contained shall affect or alter the period so prescribed.
6 Legal disability
(1) If a person entitled to institute a suit is, at the time from which the period of limitation is to be reckoned, a minor, or insane, or an idiot, he may institute the suit within the same period after the disability has ceased as would otherwise have been allowed from the time prescribed therefor in the third column of the Schedule.
(2) When he is, at the time from which the period of limitation is to be reckoned, affected by two of those disabilities, or when, before his disability has ceased, he is affected by another disability, he may institute the suit within the same period after both disabilities have ceased as would otherwise have been allowed from the time so prescribed.
(3) When his disability continues up to his death, his legal representative may institute the suit within the same period after the death as would otherwise have been allowed from the time so prescribed.
(4) When such representative is at the date of the death affected by a disability referred to in subsection (1), the provisions of subsections (1) and (2) shall apply.
(5) Nothing in this section shall be deemed to extend for more than three years from the cessation of the disability, or the death of the person affected thereby, the period within which any suit shall be instituted.
7 Disability of one joint creditor
(1) When one of several joint creditors or claimants is under a disability referred to in subsection (1) of section 6, and when a discharge can be given without the concurrence of that person, time shall run against them all.
(2) Where no such discharge can be given, time shall not run as against any of them until one of them becomes capable of giving the discharge without the concurrence of the others.
8 Continuous running of time
(1) When once time has begun to run, no subsequent disability or inability to sue shall stop it.
(2) Where letters of administration to the estate of a creditor have been granted to his debtor, the running of the time prescribed for a suit to recover the debt shall be suspended while the administration continues.
9 Suits against express trustees and their representatives
Notwithstanding anything contained in sections 3 to 8 inclusive, no suit against a person in whom property has become vested in trust for a specific purpose, or against his legal representatives or assigns, not being assigns from valuable consideration, for the purpose of following in his or their hands such property, shall be barred by any length of time.
10 (1) Suits on foreign contracts
Suits instituted in Sarawak on contracts entered into outside Sarawak shall be subject to the provisions of this Ordinance.
(2) Foreign limitation law
No rule of limitation having effect in a country outside Sarawak by virtue of any law in force in that country shall be a defence to a suit instituted in Sarawak on a contract entered into outside Sarawak, unless the rule has extinguished the contract and the parties were domiciled in such country during the period prescribed by such rule.
11 Exclusion of day on which right to sue accrues
In computing the period of limitation prescribed for any suit, the day from which such period is to be reckoned shall be excluded.
12 Exclusion of time of defendant's absence from Sarawak
In computing any period of limitation prescribed by this Ordinance, the time during which the defendant has been absent out of Sarawak shall be excluded from such computation, except any time during which service of a writ of summons or notice of a writ of summons to appear and answer in the suit can, during the absence of such defendant, be made in any mode prescribed by law.
13 Exclusion of occupation and moratorium periods
In computing the period of limitation in respect of any suit, the period commencing on the 24th day of December, 1941, and ending on the 1st day of February, 1950, shall be excluded.
14 Exclusion of time of proceeding in good faith in court without jurisdiction
In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting, with due diligence another civil proceeding, whether in a court of first instance or in an appellate court, against the defendant shall be excluded where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
Explanation 1 - In excluding the time during which a former suit was pending, the day on which that suit was instituted and the day on which the proceedings therein ended shall both be counted.
Explanation 2 - A plaintiff resisting an appeal presented on the ground of want of jurisdiction shall be deemed to be prosecuting a suit within the meaning of this section.
15 Exclusion of time during commencement of suit is stayed by injunction or order
In computing the period of limitation prescribed for any suit, the institution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made and the day on which it was withdrawn shall be excluded.
16 Exclusion of time during which judgment debtor is attempting to set aside execution- sale
In computing the period of limitation prescribed for a suit, for possession, by a purchaser at a sale in execution of a decree, the time during which the judgment debtor has been prosecuting a proceeding to set aside the sale shall be excluded.
17 Effect of death before right to sue accrues
(1) When a person who would, if he were living, have a right to institute a suit dies before the right accrues, the period of limitation shall be computed from the time when there is a legal representative of the deceased capable of instituting or making such suit or application.
(2) When a person against whom, if he were living, a right to institute a suit would have accrued dies before the right accrues, the period of limitation shall be computed from the time when there is a legal representative of the deceased against whom the plaintiff may institute such suit.
(3) Nothing in subsection (1) shall apply to suits for the possession of immovable property.
18 Effect of fraud
When any person having a right to institute a suit has, by means of fraud, been kept from the knowledge of such right or of the title on which it is founded, or where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit-
(a) against the person guilty of the fraud or accessory thereto; or
(b) against any phrson claiming through him otherwise than in good faith and for a valuable consideration,
shall be computed from the time when the fraud first became known to the person injuriously affected thereby or, in the case of the concealed document, when he first had the means of producing it or compelling its production.
19 Effect of acknowledgment in writing
(1) If, before the expiration of the period prescribed for a suit in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a new period of limitation, according to the nature of the original liability, shall be computed from the time when the acknowledgment was so signed.
(2) When the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but oral evidence of its contents shall not be received.
Explanation 1 - For the purpose of this section, an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come, or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to a set-off, or is addressed to a person other than the person entitled to the property or right.
Explanation 2 - In this section "signed" means signed either personally or by an agent duly authorised in this behalf.
20 (1) Effect of payment of interest as such. Effect of part payment of principal
When interest on a debt or legacy is, before the expiration of the prescribed period, paid as such by the person liable to pay the debt or legacy or by his agent duly authorized in this behalf, or when part of the principal of a debt is, before the expiration of the prescribed period, paid by the debtor or by his agent duly authorized in this behalf, a new period of limitation, according to the nature of the original liability, shall be computed from the time when the payment was made:
Provided that, in the case of part payment of the principal of a debt, the fact of the payment shall appear in the handwriting of the person making the same.
(2) Effect of receipt of produce of mortgaged or charged land
Where mortgaged or charged land is in the possession of the mortgagee or chargee, the receipt of the produce of such land shall be deemed to be a payment for the purpose of this section.
21 One of several joint contractors, etc, not chargeable by reason of acknowledgment or payment made by another of them
Nothing in sections 19 and 20 shall render one of several joint contractors, partners, executors, mortgagees or chargees chargeable by reason only of a written acknowledgement signed or of a payment made by, or by the agent of, any other or others of them.
22 Effect of substituting or adding new plaintiff or defendant
When, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party:
Proviso where original plaintiff dies
(a) when a plaintiff dies and the suit is continued by his legal representative, it shall, as regards him, be deemed to have been instituted when it was instituted by the deceased plaintiff; and
Proviso where original defendant dies
(b) when a defendant dies and the suit is continued against his legal representative, it shall, as regards him, be deemed to have been instituted against the deceased defendant.
23 Continuing breaches and wrongs
In the case of a continuing breach of contract, and in, the case of a continuing wrong independent of contract, a fresh period of limitation shall begin to run at every moment of the time during which the breach or the wrong, as the case may be, continues.
24 Suit for compensation for act not actionable without special damage
In the case of a suit for compensation for an act which does not give rise to a cause of action unless some specific injury actually results therefrom, the period of limitation shall be computed from the time when the injury results.
25 Computation of time mentioned in instrument
All instruments shall for the purposes of this Ordinance be deemed to be made with reference to the Gregorian calender.
26 Right of person out of possession extinguished
At the determination of the period limited by this Ordinance to any person for instituting a suit to recover possession of immovable property, the right and title of such person to the immovable property, for the recovery whereof such suit might have been instituted within such period, shall be extinguished.
[Section 27 omitted by Commissioners of Law Revision]