Shah v Ali [2014] FJMC 126; Civil Appeal 6.2013 (9 July 2014)

IN THE MAGISTRATE’S COURT
AT SUVA
FIJI ISLANDS

CIVIL JURISDICTION

Civil Appeal No. 6 of 2013
SCT Claim # 2775/2013

Between :

Mohammed Imam Shah
Appellant (Magistrates Court)/ Claimant (Small Claims Tribunal)

And:

Asad Ali, Asnoor Ali, Asmeer Ali and Azeem Ali
Respondents (Magistrates Court)/
Respondents (Small Claims Tribunal)

Appellant/ Original Respondent: In Person
Respondent/ Original Claimant: In Person.

Ruling

1). Introduction

The Appellant/Original Claimant (Mohammed Imam Shah) in this action has appealed the decision of the Referee, dated 24th September 2013 where the Referee struck out the claim citing that “the transaction took place in the year 2004. This is out of the jurisdiction of the Tribunal as period of 6 years.”

The parties chose to be heard by way of written submissions. They were given time to file the submissions. Both the Parties filed submissions which have been considered.

2). The Grounds of Appeal

The Appellant/Original Respondent’s amended ground of appeal is that “the claim is genuine and falls within the limitation period”.

3). The Law

Section 33 of the Small Claims Tribunal Decree 1991 provides that:

“(1) Any party to proceedings before a Tribunal appeal against an order made by the Tribunal under section 15(6) or section 31(2) on the grounds that:

(a) the proceedings were conducted by the Referee in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings; or

(b) the Tribunal exceeded its jurisdiction.”

The scope of appeals from SCT is extremely limited. The appeal only lies where it can be said that either the proceedings were conducted in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings or the Tribunal exceeded its jurisdiction. There can be no appeal on merits: Sheet Metal and Plumbing (Fiji) Limited v. Deo – HBA 7 of 1999.

4). Observations

The primary concern of this Court is whether the appellant has met the threshold set out in section 33(1) (a) and (b) of the "Small Claims Tribunal" Decree. The grounds of Appeal advanced by the Appellant have been reproduced above.

Section 4 (1) (a) of the Limitation Act specifies that actions founded on simple contract or tort shall not be brought before a court after expiration of six years from the date of which the cause of action accrued.

It is clear from the submissions filed by both parties and documents annexed thereto, that the agreement was entered into between parties in 2004. The Appellant in his Claim quantified the amount due to him from the date of breach of the agreement and it was 2008. If the date of the breach was to be considered as 2008, the action of the Appellant is not time barred in 2013. This is when he filed his claim in the Small Claims Tribunal.

However in considering the date of breach and the right of action to recover any remaining debt (part paid debt) must be considered in light of Section 12 (3) of the Limitation Act, which states as follows:

"Where any right of action has accrued to recover any debt or other liquidated pecuniary claim, or any claim to the personal estate of a deceased person or to any share or interest therein, and the person liable or accountable therefore acknowledges the claim or makes any payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgement or the last payment."

Section 13(1) of the Limitation Act states as follows:

"Every acknowledgment referred to in section 12 shall be in writing and signed by the person making the acknowledgment."

In carefully considering both Sections referred above, it is clear that debt has to be acknowledged by the Respondent and needs to be in writing. No such acknowledgement is in writing and signed by the Respondents in this case.

The case of Bush v Sterens [1963] 1QB, at 6; [1962] 1All ER 413 at 415, considered provisions of the Limitation Act and stated as follows:-

"It seems to me as a matter of syntax that the right which shall be deemed to have accrued is a right of action to recover any debt or any liquidated pecuniary claim. The subsection does not change the nature of the right; it provides that, in the specific circumstances of an acknowledgment or payment, the right shall be given a notional birthday and on that day, like the phoenix of fable, it rises again in renewed youth – and also like the phoenix, it is still itself."

It is abundantly clear from the above authority that the commencement of the time period from year 2008 can only be considered only if the acknowledgment of debt is given by the Defendant creditor, who in this case is the Respondent. It is not so in this matter. The Respondents have not acknowledged the debt.

This Court also noted that the Appellant has included a number of other persons apart from the person who he entered into an agreement with. This is not right as the other persons were not parties to the agreement between the Appellant and Hasnoor Ali.

For the above-mentioned reasons the appeal is dismissed.

5.) Conclusion

The appellant has not met the threshold set out in section 33(1) (a) & (b) of the Small Claims Tribunal Decree 1991.

For the given reasons given above, the appeal is dismissed. Any party aggrieved with this Ruling has the right to appeal to the High Court within 30 days.

Chaitanya Lakshman
RESIDENT MAGISTRATE
9th July 2014