Pioneer Concrete Ltd v Shobna Devi Sharma Earthmoving & Transport [2015] FJMC 49; Civil Case 74.2013 (4 February 2015)

IN THE FIRST CLASS MAGISTRATES COURT AT NASINU
CIVIL JURISDICTION

Civil Case No. 74/2013

BETWEEN:

PIONEER CONCRETE LIMITED
a limited company incorporated in Fiji having its registered office at Lot. 1, Kura Street, Laucala Beach Industrial Area, Nasinu, Fiji.
[Plaintiff]

AND:

SHOBNA DEVI SHARMA EARTHMOVING & TRANSPORT a limited company incorporated in Fiji having its registered office at MY Hanif, Nadera, Fiji.
[Defendant]

Mr.Sharma N. ( Neel Shivam Lawyers) for the Plaintiff

Mr. Kumar S. For the Defendant

Ruling on Preliminary Objection by The Defendant

Facts

[1] The Plaintiff filed an action by way of writ of summons claiming compensation for the damages it sustained as a consequence of negligent and reckless act of the Defendant. More specifically for the loss of revenue that would have been generated if the Defendant by its employees had not damaged the underground FEA cable resulting in loss of power supply to the Defendant's yard. And further pray for an injunction preventing the Defendant from digging on the Roads Reserve in front of Lot 4, Baka Place, Laucala Beach Estate where the underground FEA electrical cables are located and special damages in the sum of $18,780.00 as well as General damages which is to be assessed by the Court.

[2] The defendant files statement of defence on 25/06/2013. Initially, by the statement of defence the defendant has raised objection that since Plaintiff's earlier two actions was dismissed which are Civil Act No. 117/2008 was dismissed for want of jurisdiction. 2nd Civil Act No. 446 of 2011 was dismissed for the statutes of limitation and the Plaintiff was ordered to pay #300.00 costs to the defendant and that cost is still outstanding. Therefore as the present action also founded on same issues as two previous cases and is caught by Limitation Act Section 4(d)(1)provision. As the cause of action occurred out of time limit prescribed by statutory law the court must not allow to precede the contention of the statement of the defense by the defendant is based on Limitation Act. Further this matter is falling under res judicata and Based on the same the defendant prayed to dismiss the plaintiff's current action with cost on the higher scale.

[3] On 21/08/2013 the plaintiff file reply to statement of defence and joined some issues. The plaintiff argued since there is no personal injury involve with this incident the section 4(1)(d)(i) has no relevancy to the current matter and therefore the court must hear their case on merit. Further even though the 2 matters on same subjected issue dismissed by the court for want of jurisdiction the merits of this matter has not consider within a proper trail and therefore yet this cause of action is not subject to limitation of the principle of res judicata.

[4] Both the defendant and the plaintiff agreed to precede the matter or issue of legal objection by way of Witten submissions and both parties filed their submissions. The main issues to be resolve by this court are;

A] Whether the proceedings are out of time, and statue barred by the Limitation Act?

B] Whether the matter is falling under the legal principle of Res Judicata or not?

Law

On issue no: A] Whether the proceedings are out of time, and statue barred by the Limitation Act?

[5] It is noted the main issue raised by the defendant as an objection is time limits prescribed by the Limitation Act for the civil litigations. According to the Limitation Act Section 4(1):

"4.-(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say-

(a) actions founded on simple contract or on tort;

(b) actions to enforce a recognizance;

(c) actions to enforce an award, where the submission is not by an instrument under seal;

(d) actions to recover any sum recoverable by virtue of any Act, other than a penalty or forfeiture or sum by way of penalty or forfeiture:"

But it also further Provided that in Section 4(1)(d)(i) of the Limitation Act as follows:

"...in the case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under any Act or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence nuisance or breach of duty consist of or include damages In respect of personal injuries to any person, this subsection shall have effect as it for the reference to six years there were substituted a reference to three years, and...[Emphasis added]."

Law

On issue no: B] whether the matter is falling under the legal principle of Res Judicata or not?

[6] The principle of res judicata may be used either by a judge or a defendant. Once a final judgment has been handed down in a lawsuit, subsequent judges who are confronted with a suit that is identical to or substantially the same as the earlier one will apply the res judicata doctrine to preserve the effect of the first judgment. The general rule is that a plaintiff who prosecuted an action against a defendant and obtained a valid final judgment is not able to initiate another action versus the same defendant where:

(i) Claim is based on the same transaction that was at issue in the first action;

(ii) The plaintiff seeks a different remedy, or further remedy, than was obtained in the first action;

(iii) The claim is of such nature as could have been joined in the first action.

[7] For res judicata to be binding a court several factors must be consider by the bench and which could be lineup as That (a) the identity in the thing at suit; (b) identity of the cause at suit; (c) identity of the parties to the action; (d) identity in the designation of the parties involved; (e) whether the judgment was final; and (f) whether the parties were given full and fair opportunity to be heard on the issue.

[8] The plaintiff argued as per Magistrates Court Rules Order XXX the plaintiff has right to proceed this matter. For any matter which is dismissed or struck out as is the case here then, it is always open to the parties to make an application for reinstatement of the matter under the Magistrate Court Rules specifically Order 30(6).

According to Order 30(6):

"Any civil cause struck out may, by leave of the Court, be replaced on the cause list, on such terms as to the Court may seem fit".

This court notice the principle of res judicata has hidden in the above rule as this rule applies only where the judgment obtained in the absence of the other party and not to use in any other situation.

Determination

[9] The defendant's main contention is that, as mentioned in chapter 35 of the Limitation Act this matter has filed after the prescribed time limit in law hence the plaintiff has no right to pursue this case for the 3rd time after 5 year and 3months from the cause of action occurred on 29th May 2013. But this court cannot accept this argument of the defendant as the section 4(1)(d) (i) of the limitation Act is bears no ambiguity at all and very precisely provided that the time limit of 3 years only applicable to a matter where the claim is based or involve with a personal injurers and it is evident that there is no such an element available with regards to this matter. Therefore the 3 years limitation does not apply to the Plaintiff and the Plaintiffs can make a claim within the 6 year limitation period.

[10] The present action filed on the 29th of May 2013, some 5 years 3 months after the Plaintiff became aware of the cause of action is still within the six year period and the Plaintiffs must be allowed to proceed with this action. As the first Action No. 177.2008 was struck out for want of jurisdiction and the second action no. 446/2011 was dismissed and the defendant awarded costs. The merits has not considered by the bench at all and therefore to up held the justice the plaintiff must be heard on merit to comply with the maxim of "audi altera partetum" more specifically both party must be heard before final determination.

[11] It is noted that there has been no ruling or determination on both matters.as per requirement on applying the principle of res judicata the matter must have been determined by appropriate court finally and conclusively. Even though all the requirements fulfil this matter has not resolve on merits. If there was a ruling to the second action no. 446/2011 where costs were awarded then the onus is on the Defendant to provide a copy of the order made by the Court to prove the claim of "res judicata" and which the defendant has failed. Res judicata refers to matters that have been decided upon and cannot be raised again in Court for determination. The two previous Court actions between the parties to this action have been dismissed due to want of Prosecution however there has not been any determination of the merits of the matter. Hence the Defendant cannot rely on the dismissal of the action as a means to bar the Plaintiffs from bringing an action against him. The plaintiff's claim is not statute barred.

[12] I therefore make following orders;

1. The Legal Objection of the defendant to strike out the plaintiffs matter under section 4 of the Limitation Act is hereby overruled.
   
2. The defendant will pay $ 750 cost of this application and the defendant must pay the same within 14 days from today.
   

Accordingly Orders to be entered.

On 4th Feb 2015, at Nasinu, Fiji Islands

Neil Rupasinghe
Resident Magistrate-Nasinu