IN THE HIGH COURT OF FIJI
AT LABASA

CIVIL JURISDICTION

Civil Action No. HBC 017 of 2006

BETWEEN

SURESH CHANDRA
Plaintiff

AND

1. DIVISIONAL POLICE COMMANDER NORTHERN
2. THE ATTORNEY GENERAL OF FIJI
Defendants

Before: Master Udit

Counsel: Mr S. Shah for the plaintiff
Mr Rabuku for the defendants

Date of Hearing: 9th November, 2006
Date of Decision: 9th February, 2007

DECISION
(Leave to commence an action out of time)

Introduction

[1] This is an application by Suresh Chandra (plaintiff) for leave to commence a civil proceeding for the unlawful seizure and detention of his car and mechanical tools by the Police Department. It is an inter-partes application. Mr Rabuku, on behalf of the defendant opposed the application.

Background

[2] This unfortunate case is a consequence of paralytic pleadings filed by the plaintiff's then solicitor in the magistrate's court. On 8th of September, 1995, the police seized the plaintiff's motor vehicle registration number AF040 together with some mechanical tools. The plaintiff, a casual labourer pleads that the tools were for his daily work as a mechanic. It was a source of his income. After detaining the vehicle it was kept at the Land Transport Authority premises at Vatunibale, Bulileka Labasa. Later the car was released to the plaintiff on 7th November, 1995. However, the plaintiff alleges that the tool box was not returned. It is a common ground that no criminal charges were laid against the plaintiff.

[3] On 10th November, 1997 a civil suit was commenced at the Labasa Magistrates Court against the Divisional Police Commander and Attorney General for 'wrongful detention' of the car and tools. In addition there was a claim for detinue and conversion of the tools (although not pleaded in its correct form). The relief inter-alia sought was:-

"a) Loss of earning at the rate of $30.00 per day for three years from 8th September, 1995;

b) Value of the tools in the sum of $300. 00;

c) Costs of this action".

[4] With great anticipation and optimism, the plaintiff patiently waited for an outcome for almost a decade. On 14th October 1999, victory paid a quick visit to the plaintiff, when a judgment for a sum of $2,550.00 was entered after a formal proof. Next, on 1st of March, 2000, an application to set aside the judgment was filed. On 24th September, 2001, the judgment was set aside. Thereafter, the action was fixed for a trial. A preliminary issue pertaining to the jurisdiction of the magistrates' court was aptly raised by the defendants' counsel. Due to the importance of issue, which indeed went to the core of the claim as was (sic) pleaded, the Learned Magistrate heard it as an interlocutory application.

[5] After receiving written submissions from the defendants, as the plaintiff chose not to file one, the Resident Magistrate delivered a decision on 19th May, 2006. He held that the action as pleaded was in excess of the magistrates' court's statutory jurisdiction as such the only option he had was to strike-out the action, which he eventually did. In doing so he relied on a well established authority of Ram Khelawan -v- Budh Ram [1967], FLR 167 nor any doubt was advanced by the plaintiff as to the decision of Resident Magistrate.

[7] After a lapse of further four months, the present application was filed. It was listed before me for 9th November, 2006. The plaintiff's counsel pressed for a hearing of the application. I entertained the application.

Consideration of the Application

[8] There is no dispute as to the dates to which I have already noted. Nor is there any dispute of plaintiff's car and the tools being seized by the authorities. I say 'authorities' because the defendants allege that it was seized by the Land Transport Authority and not. Be that as it may it was seized by a government body.

Limitation Act

[9] This is a claim of simple tort. S. 4 of the Limitation Act (Cap 35) states as follows:-

"S4 (1) The following action shall not be brought after the expiration of six years from the date on which the cause of action accrues, that is to say –

a) Action found on simple contact and tort...............

[10] I am grateful to both the counsel for agreeing to the date of the accrual of the cause of the action. Also, that the claim is one of "simple tort" as referred to in S4 (1) (a) of the Act. From 8th September, 1995, six years expired on 8th September, 2001.

[11] The proposed action to be instituted in this court was filed on 29th September, 2006. That is, a delay of five years. Mr. Shah, submitted that under Part III of the Limitation Act, and the Inherent Jurisdiction, the court has discretion to extend time.

[12] The Limitation Act is an absolute bar for enforcement of a right of action by the judicial process. It does not extinguish the right of action. Other means, other than the juridical process may be utilised to materialise the right.

[13] This Act itself only provides for postponement or extension of limitation periods in certain cases only. S. 3 of the Act provides: -

"The provisions of this Part shall have effect subject to the provisions of Part III which provide for the extension of the periods of limitation in the case of disability, acknowledgement, part payment, fraud and mistake, and in the case of certain actions in respect of personal injuries".

[14] In Seini Senirauvusa Natuwana & Aseseca Sadole -v- National Bank of Fiji, (unrep) Suva High Court Civil Action HBC 520199 (13th March, 2000) Justice Shameem considered this point. The issue before the court in that case was for a breach of statutory duty, negligence and breach of contract. The claim arose out of a relationship of a banker and customer. In dismissing the application for leave, the court held that:-

"No extension of time provision exists in the Act, unless the damages claimed included damages in respect of personal injury to the plaintiff". (see page 3 of the judgment)
(emphasis added)

[15] As already stated, this is an application for extension of time for a claim in simple tort. This is not a claim for personal injury. Hence, the question of extension has no relevance. Nor on the facts of the case it can be postponed. An action founded on simple contract or tort falling within the ambit of the limitation period cannot be extended under the Act. As such an application is misconceived.

But there was an action instituted within time?

[16] It was argued on behalf of the plaintiff, that an action was instituted in the court, though later struck out. Does the magistrates' court action which was instituted within time has any bearing to this application? Mr Shah submitted that it does. It goes to the issue of prejudice. However, the established principle of law succinctly states that if an action is instituted within the limitation period but subsequently not continued, a fresh writ out of time cannot be issued. The commencement of action date will not relate to the former but the later writ or originating process; Pratt -v- Hawkins (1846) 15 M. & W. 399. Accordingly, it will be statute barred.

[17] It follows therefore that the earlier action instituted in the magistrate court is irrelevant for the purposes of this application. Any action, if commenced now will ipso facto inevitable be statute barred. It will be struck-out for no reasonable cause of action or as an abuse of the process of court. The bottom line is that no such action can now be instituted if the limitation as a defence is pleaded.

Inherent Jurisdiction

[18] The final issue raised by Mr. Shah was that the court has an inherent jurisdiction to extend time. Basically, this submission was in light of the facts of the present case, in particular the delays in the magistrates' court. He submitted that justice will be served by extending the time.

[19] The policy behind Limitation Act is summarized in Halsbury's Vol. 24 at page 181, paragraph 330 as follows:

"330 Policy of Limitation Acts. The courts have expressed at least three differing reasons supporting the existence of statutes of limitation, namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disapprove a statement of claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence".

[20] The Act itself does not vest the court with any such inherent jurisdiction. To the contrary, when one considers the aforementioned policy, even any such implied jurisdiction is out rightly negated.

[21] As to inherent jurisdiction to extend time of a statute barred action, Justice Shameem in Seini Senirauvusa Natuwana Aseseca Sadole -v-National Bank of Fiji, (supra) at page 4 of judgment said;

"This case is clearly not an appropriate case for the exercise of such a power. Firstly, the legislature has provided in clear and unambiguous terms, a limitation period for contract and tort which cannot be extended by the court (unless there is a claim for personal injuries). There can be no doubt as to the intention of Parliament. The inherent jurisdiction of the court cannot be used to frustrate the intention of Parliament. (The Inherent Jurisdiction of the Court Master Jacobs Current Legal problems 1970 p. 23)".
(emphasis added)

[22] As a consequence, I hold that, this Honourable Court does not have any inherent jurisdiction under the Limitation Act to extend time for a claim in contract or tort which is time barred.

Conclusion

[23] Before concluding, I will refer to an enlightening concept of the statutory limitation concisely put by Justice Major the Canadian Supreme Court, in M(K) -v- M(H) [1992] 3 SCR 6 of paragraph 24 in the following terms:-

".......... the plaintiff's are expected to act diligently and not sleep on their right ......Statutes of limitation are an incentive for the plaintiff to suit in a timely fashion".

[24] I will add to that, if a plaintiff has done all that is required to be done, but his/her attorney lets the limitation period slip by leading to the defeating of the claim, the only recourse he has is against the solicitors.

[25] In the circumstance, I am not persuaded that leave be given to commence an action out of time. Accordingly, the application is dismissed. There will be no order as to costs.

J.J. Udit
Master