14 July, 2010
Limitation: I hope that you have not lost track of our concern with section 7 of the Constitution, the fundamental right to own property. We return to it now. The eleventh exception to our right to hold our property relates to a law providing for limitation of actions. As we all know, the Limitation Act says that if we are owed a debt, and we allow 7 years to pass without suing in court for it, the debt is extinguished. If our neighbour encroaches on our land, and fences it in and claims it as his own, and we do not sue him, then after 12 years we lose the ownership of that land. The Registered Land Act says so. It says that in this way our neighbour acquires our land by “prescription”. It is even worse in the case of a claim for damages for personal injury. If I am injured by the careless driving of someone, and have to spend $100,000.00 in medical bills, then I have only 3 years from the date of the accident to sue. If I wait until the 3 years have passed, then I have lost my right to claim compensation.
There are two reasons advanced by lawyers justifying the concept of limitation of actions and acquisition of the property of another by prescription. One is that there must be a time when disputes over ownership are brought to an end. People are entitled to quietly enjoy their possession of property that they have held as their own for a number of years. If I am claiming that my neighbour has wrongfully trespassed on my land and fenced a part of it off, then I must back up my claim by taking the matter to court promptly, or forever hold my peace. Otherwise, quarrels might last for generations. The second reason is that the matter must come to court while the witnesses to the facts are still alive and memories are fresh. After 3 years have passed, who can accurately remember what exactly happened that day on the road when the car accident took place?
This exception to the constitutional right guaranteed by section 7 of the Constitution preserves the Limitation Act and makes it legal to extinguish our right to our property. It could otherwise be argued that the whole idea of placing a time limit to our right to claim our property breaches our fundamental right to own property.