Civil Procedure-Pleading-Limitation of action-Prescription

Limitation of actions=-Compored with prescription=t'Couse of action"-
"Right of action't=Duty of court upon examination of plaint-

Prescription=Compared with limitation-e''Cause of actioll"-"Right of action"

1. Subject to any inconsistent provisions in the Prescription and Limi-
tation Ordinance 1928, or any other Sudan statute. the same meaning and
effect must be given to the terms "prescription" and "limitation" in Sudan
law as in English law.

2. Although the effect of section 9 of the Ordinance is to render sec-
tion 7 superfluous, section 9 must be interpreted as prescribing and not

                merely limiting rights of action.                                                                    .

3. The words "cause of action" in section 56 (a), Civil Justice Ordi-
nance 1929 and "right of action" in section 9, Prescription and Limitation
Ordinance 1928, refer to two separate and distinct matters. A "cause of
action" is the entire set of facts which give rise to a "right of action,"
and the latter may be limited without affecting the former. The words
"right of action" in section 9 do not include "cause of action," and it is
therefore not necessary for a plaintiff expressly to allege in his plaint, in
order to show a good cause of action, that his action is brought within the
period fixed by the Ordinance.

4. There is no power in the court to reject a plaint under section 56 (a)
merely because the claim, on the face of it, is statute-barred. There is no
duty on the court under section 72, Civil Justice Ordinance 1929 to raise
the defence of it's own motion, but, if the defendant, when examined, in
effect says something equivalent to raising the "general issue" under the old
form of pleading in England (which may generally be the case if the de-
fendant does not admit the claim), the court should frame the appropri-
ate issue.

(Per Flaxman P.I.) The Indian Act' corresponding to the Civil Jus-
tice Ordinance 1929 provides for summary rejection of the plaint "when the
suit appears from the statement in the plaint to be barred by any law."
It is unfortunate that a similar provision was not inserted in section 56,
Civil Justice Ordinance 1929.²

Coburn v. Colledge [1897] 1 Q.B. 702.

Civil Justice Ordinance: First Schedule 1929, Order II, Rule 10.
Prescription and Limitation Ordinance 1928, ss. 71 9, 15 (2).
English Limitation Act t623, s. 3.

English Real Property Limitation Act 1833, s. 34.
English Solicitors Act 1843, s. 37.

Indian Code of Civil Procedure, Order 7, Rule 11.

May 16, 1936. Bennett A.G.: This appeal raises the question
whether the operation of sections 7 and 9 of the Prescription and Limi-
tation Ordinance 1928 on actions and rights of action respectively is
that of limitation or prescription, and what is the function at the suc-
cessive stages of an action of the court before whom a claim which is
statute-barred is brought.

In English law the word "limitation" is used to describe the re-
striction within a certain period of the right to bring an action founded
on any particular cause of action, whereas the word "prescription"
means the extinction of rights after the lapse of a certain period, and is

1 Act V of 1908, Order 7, Rule 11.

• Section 56 was amended by the addition of a final paragraph: "(D) the
right of action is barred under this or any other ordinance."

usually applied to the cause of action itself. As such, limitation forms
part of the law of procedure, and prescription part of the substantive
law. Two important results flow from this classification. Firstly, in
English municipal law, limitation, as part of the law of procedure, is
considered as constituting a defence which must be specially pleaded;
prescription, on the other hand, as part of the substantive law, need
not be specially pleaded, and under the old system of pleading was
sufficiently raised by a plea of the general issue. Secondly, under the
rules of private international law as applied by the English courts, lim-
itation, as part of the law of procedure, is governed by the lex fori,
whereas prescription, as part of the substantive law, is governed by the
proper law applicable to the transaction or matters in dispute.

This classification has been followed in both of the above men-
tioned results by statutory provisions in the Sudan. As to the first,
Order 11, Rule 10 of the First Schedule to the Civil Justice Ordinance
provides:

"The defendant shan raise by his pleading all matters which
show the suit not to be maintainable, or that the transaction is
either void or voidable in point of law, and all such grounds of
defence as, if not raised, would be likely to take the opposite
party by surprise, or would raise issues of fact not arising out of
the plaint, as, for instance, fraud, limitation, release, payment,
performance, or facts showing illegality." (Italics by court)

As to the second, section 15 (2) of the Prescription and Limita-
tion Ordinance 1928 provides:

"No rule of limitation prescribed by the law of a country
outside the Sudan shall be a defence to any proceedings insti-
tuted in the Sudan on a contract entered into outside the Sudan,
unless the rule shall have extinguished the contract and the parties
were domiciled in such country during the period prescribed by
such rule." (Italics by court)

The wording of subsection (2) is confused, since a rule which ex-
tinguishes a contract is a rule of prescription and not of limitation, and
this subsection is therefore redundant. The intention, however, to
apply the lex fori to matters of limitation 'and the proper law of the con-
tract to matters of prescription, is clear.

It is apparent, therefore, that the classification in English law of
limitation as part of the law of procedure and prescription as part of
the substantive law has been imported into and forms part of the law

of the Sudan. Consequently, and subject to any provisions inconsistent
therewith in the Prescription and Limitation Ordinance 1928, or in
any other Sudan Ordinance. 1 think that the same meaning and effect
must be given to provisions of limitation and prescription in the
Ordinance as in English law.

Turning to the material provisions of the Ordinance, and apply-
ing the above definitions of the words limitation and prescription, we

. find that section 7, as the marginal note and form of wording clearly
indicate, deals only with limitation of action, that is to say by defini-
tion, limitation of the right of action, whereas section 9 purports, in
respect of the same subject-matter, to prescribe rights at action. It was
this contradiction that during the hearing of the appeal led to consid-
erable discussion as to the meaning of the words "right of action,"
and created some doubt in my mind as to whether the draftsman,
though he may so have intended, had in fact in section 9 created a
prescription of right as opposed to a limitation of actions. since if sec-
tion 9 established a prescription of rights, the greater including the
less, and section 7 is excluded from any practical operation whatsoever.

The wording of section 9, however, is clearly apt to describe
prescription and not limitation. The heading of Part II of the Ordi-
nance, which includes bo h sections 7 and 9, is "Extinction' of rights by
lapse of time," and the marginal note to section 9 is "Extinction." I
think, therefore, that the first paragraph of section 9 cannot be read
as being merely introductory to the remaining paragraphs of that sec-
tion, and that, even though the effect is to entirely nullify the opera-
tion of section 7, ~ : must give effect to the clear wording of the first
paragraph of secticn 9, and interpret it as prescribing and not limiting
"rights of action."

It remains to consider what is the function, at the successive stages
of an action, of a court before which a claim which is statute-barred
is brought. It" 'as argued on behalf of the appellant that the words
"right of action" are more comprehensive than and include the cor-
responding "cause of action", that the first paragraph of section 9 op-
erates therefore so as to extinguish the "cause of action," and that un-
der section 56 (a) of the Civil Justice Ordinance the court must reject
the plaint where, upon the face of it, the claim has not been enforced
within the relevant period,

In my opinion the words "cause of action" in section 56 (a) of
the Civil Justice Ordinance, and "right of action" in section 9 of the
Prescription and Limitation Ordinance 1928, refer to two separate and

distinct matters. A cause of action is the entire set of facts that give
rise to an enforceable claim, i.e .. to a right of action; the one is the
corollary of the other, but enforcement of the claim, i.e .. the right of
action, may be conditioned without affecting the corresponding cause
of action. For instance, under section 37 of the English Solicitors Act
1843, a solicitor cannot sue his client for his bill of costs until one
month after it's delivery, and in Coburn v. Colledge. [1897] 1 O.B.
702, the English Court of Appeal held that -the cause of action was
complete on the work being done, that the lapse of one month formed
no part of the cause of action, and that consequently the English Limi-
tation Act 1623, section 3, (which limits actions to a certain period
after the accrual of the cause of action) runs from the conclusion of
the work, and not from the expiration of a month after the delivery of
the bill. In the same way, no more before than after the coming into
force of the Prescription and Limitation Ordinance 1928 was it neces-
sary, in my opinion, in order to show a good cause of action, for a
plaintiff expressly to allege in his plaint, as one of the entire set of
facts constituting the cause of action, the fact that he has brought his
action within the relevant period fixed by the Ordinance. If it is pos-
sible to condition the right of action without affecting the cause of ac-
tion, I see no reason why it is not possible similarly to extinguish the
right of action, the cause of action in each case remaining, as it were,
in suspense, in the first case being enforceable on the fulfillment of the
condition, and in the second case on any renewal of the right of action.
Moreover, in principle a cause of .action is not susceptible of renewal;
thus where the title to land is extinguished under section 34 of 'the
English Real Property Limitation Act 1833, no subsequent admission
or acknowledgment will renew the cause of action. There is no such
objection in principle to the renewal of a right of action, as is effected
in the second paragraph of section 9, where the cause of action is only
suspended.

For these reasons I think that the words "right of action" in section
9 must not be interpreted as including the corresponding "cause of ac-
tion," that it is the right of action only which is extinguished, and that
the cause of action survives in a state of suspense as a natural obliga-
tion. It follows that there is no power in the court to reject a plaint
under section 56 of the Civil Justice Ordinance merely because the
claim on the face of it is statute-barred.

What then is the function of the court? The effect in English
law of the prescription of a cause of action (and prescription of the

right of action only cannot be given a greater effect) is to establish a
defence which (1) is never raised by the court, and (2) which is suf-
ficiently raised by a defence corresponding to the plea of the general
issue under the old system of pleading. Subject to the provisions of
any other Sudan ordinance, therefore, this is the effect which, in my
opinion, should be given by the court to the prescription of rights of ac-
tion created by section 9 of the Ordinance. The relevant Sudan statu-
tory provision is section 72 of the Civil Justice Ordinance. The court
is directed in subsection (l), firstly, to "examine ... the parties ...
in order to ascertain upon what questions of law or fact the parties are
at variance," and secondly, having made a note of the examination,
to "frame and record the issues of law and fact on which the right de-
cision of the suit appears to depend." Subsection (4) provides:

"Nothing in this section shall require the court to frame and
record issues where the defendant appears and makes no defence."
This latter subsection makes it clear that there is no duty cast upon the
court under this section of raising the defence of it's own motion.

In order therefore that (in pursuance of the first direction to the
court under subsection (L) the parties should be found at variance
upon the question of law as to whether or not the claim is statute-
barred, I think that the uefendant by his statement during the course
of the examination must have said something more or less equivalent
to the raising of the general issue under the old forms of pleading in
England. It may well be, indeed, that, having regard to the particular
circumstances in the Sudan, the defence is sufficiently raised by any
statement during th- course of this examination other than an admis-
sion of the plaintif.'s claim.

As to the second direction to the court in subsection (1), I think
that the purpose c f this direction is to enable the court to restrict the
issues of law and fact to be framed and entered in the record "to those
which are relevar-t to the right decision of the suit, and so to exclude
those questions )f law and fact upon which the examination by the
court has showt, the parties to be at variance, but which are irrelevant
to the right decision of the suit, and that this direction does not affect
the function of the court under the first direction as above expressed.
Any other interpretation would prevent the court giving effect to an
adnrission of the claim, which would clearly be contrary to the provi-
sions of subsection (4).

The only remaining question for our decision is the function of the
court, in a casd where the examination of the parties under section 72

(1) has not disclosed an issue of prescription, but where during the
course of the hearing it becomes apparent to the court that it would
have been open to the defendant to have raised such an issue in his
defence. Applying the same reasoning as where such an issue ap-
pears during the examination under section 72 (1), I think that it is
still no part of the function of the court of it's own motion to raise the
defence, but as the action is a contested one and has therefore pro-
ceeded to trial, the defendant will presumably have sufficiently raised
a defence corresponding to the plea of the general issue under the old
rules of pleading in England, and the court must give effect to the de-
fence by framing the appropriate issue under section 72 (3) of the
Civil Justice Ordinance.

In this case I think that the defendant by his statement during the
course of the examination under section 72 (1) did sufficiently dispute
the plaintiff's claim so as to raise a defence corresponding (having re-
gard to the different conditions in the Sudan) to a plea of the general
issue under the old rules of pleading in England, and that an issue on
this point should have been framed by the judge.

The respondent in the course of the appeal stated that the claim
had been admitted on more than one occasion, and he must clearly be
given a chance of proving such admission and the consequent renewal
of his right of action.

This court accordingly, under Order II, Rule 19, frames the fol-
lowing new issue:

"Is the claim barred by the provisions of the Prescription
and Limitation Ordinance 1928?"

The trial of this issue is referred to the court below.

Gorman C.J.: I 'concur.

May 10, 1936. Flaxman J.: Whilst I agree with the conclusion
of lawreached by the learned Advocate General, I feel bound to add
that, in my opinion, the law relating to the summary dismissal of a
plaint, as contained in section 56, Civil Justice Ordinance, requires
some addition or amendment to enable a judge to reject a plaint where
the suit appears from the statement in the plaint to be statute-barred,
unless the plaint shows some grounds for exemption.

This principle has been recognized by the Indian courts, and
provision made (Order 7, Rule 11, Act V of 1908) for summry