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Kerenga v PNG Power Ltd [2022] PGSC 120; SC2319 (25 November 2022)
SC2319
PAPUA NEW GUINEA
[IN THE SUPREME COURTOF JUSTICE]
SCA NO.18 OF 2020 (IECMS)
BETWEEN:
BOB KERENGA as Chairman of the KAPMA GATEN LANDOWNERS ASSOCIATION of Kau Basis, Dumun Village, Simbu Province
-Appellant-
AND:
PNG POWER LIMITED
-Respondent-
Waigani: Yagi, Polume-Kiele & Narokobi, JJ
2022: 27th May, 25th November
CONTRACT LAW - Accrual of cause of action - when does cause of action accrue –
FRAUDS & LIMITATION-Statute of Frauds & Limitations-S.16
CONTRACTS - cause of action accrues - limitation of time to bring action based on contract
Cases Cited:
Oil Search Limited v Mineral Resources Development Corporation Limited (2010) SC1022
Otto Benal Magiten v Kopina Raka (2002) N2179
Michael Nunulrea v PNG Harbours Ltd (2005) N279
John Hiwi v Rendle Rimua (2015) SC1460.
Bank of South Pacific v Leahy (2002) N2263
Oil Search Limited v Mineral Resources Development Corporation Ltd (2010) SC1022
Otto Benal Magiten v Kopina Raka (2002) N2179
APPEAL
This was an appeal against dismissal of civil proceedings for being time-barred under the Frauds and Limitations Act, Section 16.
Counsel:
Mr. T. Boboro, for the Appellant
Mr. J Sesega, for the First Respondent
25th November, 2022
- YAGI J: I have read the leading draft of the judgment of Polume-Kiele J and the supporting draft of Narokobi J. Polume-Kiele J has set out
the chronology of events in the proceedings in the National Court up to and including the judgment of 23 March 2020 dismissing the
appellants crossclaim for being time-barred pursuant to s 16 (1) of the Frauds and Limitations Act 1988. She has also summarized other pertinent background facts and the pleadings of the respondent as plaintiff in the National Court.
I have reached the conclusion that I agree to both drafts.
- POLUME-KIELE J: This is an appeal by the Appellant without leave of Court pursuant to Section 14 (1) (a) and (b) of the Supreme Courts Act (SC Act) against the decision of the National Court made on 23 March 2020 dismissing the Appellant's Crossclaim for being time- barred pursuant
to Section 16 (1) of the Frauds and Limitations Act 1988.
Relevant facts
- On or about 25 March 1988, the predecessor to the respondent, PNG Electricity Commission (the Respondent) entered into an Access Agreement
with the Kapma Gaten Landowners of Chimbu Province to enter upon and clear the customary land in the Nilkama Valley for purposes
of erecting power pylons and power transmission lines.
- Clause 7 of the Access Agreement provides for the respondent to reinstate the land toas near as practicable to its original condition
and pay and make good and compensate the landowner for the damages, detriment and deterioration of the land, forest, and owner's
property.
- For some reason, the project was abandoned by the respondent.
- Sometime in 2016, the respondent proceeded to install high voltage power line along the Dumun or the appellants’ section of
the Highlands Highway. This led to the appellants disrupting their work progress. The respondent then filed proceedings seeking several
reliefs amongst others, injunction restraining the appellants and its servants and agents from disrupting the work being done on
the high voltage power line along the Dumun or the Appellant's section of the Highlands Highway.
- The Appellant responded and filed their crossclaim seeking damages for environmental destruction and breach of contract.
- On 23 March 2020 the National Court delivered its decision (pages 345-368 of Appeal Book Vol. 2) found at paragraphs 53 to 58 (pages 235-266 of Appeal Book Vol. 2) of the judgment that Kerenga’s claim pursued by the crossclaim is time barred and amounts to an abuse of the process of
court. The crossclaim is dismissed in its entirety which means that Kerenga will not be entitled to compensation under the TAA as
PNG Power has no legal obligation to do so.
Grounds of Appeal
- The appellant raised five (5) grounds of appeal in his Notice of Appeal which was filed on 29 April 2020. These are set out below
as follows:
- 9.1 The learned trial Judge erred in law and in fact when he found that the Appellant's claim was time-barred pursuant to Section
16 (1) of the Frauds and Limitations Act 1988 and therefore dismissed the Appellant's entire claim. The finding by the trial Judge is erroneous because the Transmission Access
Agreement (Agreement) signed by the Respondent and the Appellant (or their predecessors and representatives) on or about March 1988 did not specifically stipulate the time upon which the parties' obligation under the Agreement, including
the obligation of the Respondent to pay compensation to the Appellant, should be performed.
- 9.2 The learned trial Judge erred in law and in fact when he failed to establish on proper evidence properly or clearly or enquire
properly based on available evidence into the time upon which the cause of action accrued. The finding by the learned trial Judge
that the cause of action accrued on or about 1988 and the Respondent should have commenced the proceeding by 1994 and 2000 is erroneous
because:
- (a) There was no time stipulated in the Agreement for the Respondent to complete its obligation such as completion of the installation
of power pylons and transmission lines under the Agreement. When the Respondent abandoned the project, the Respondent did not advise
or give notice to the Appellant whether they will return to complete the project or not. Hence, by the terms of the Agreement, this
obligation continues until it is performed.
- (b) There was no time stipulated under the Agreement for the Respondent to perform its obligation under the Agreement, particularly
to pay compensation to the Appellant. The Agreement did not state clearly as to when the payment should be made. It is not clear
in the Agreement as to whether payment of compensation should be made to the Appellant prior to the commencement of the project,
during the project, after the abandonment of the project, or after the completion of the project.
- (c) Hence, there was no evidence of an event or happening of an event or contingency to specifically and clearly suggest a date upon
which the cause of action accrued.
- (d) The terms of the Agreement to enter and access the land, construct power pylons, transmission lines, and other incidental works
and pay compensation for damages is open ended and continues die in diem until such time the terms are performed. There was evidence of the damage, or the clearance done to the vast virgin forest corridor
measuring 12km long and 20 meters wide and there was no evidence that the Appellant had been compensated for the environmental damage
or the Respondent has returned to restore the forest and vegetation as far as possible to its original state as per the Agreement.
- (e) The Respondent did not show any evidence that it has given notice or advised the Appellant that it had abandoned the Project,
but the Respondent simply walked away from the project and its obligations leaving the Appellant in a state of confusion as to when
the Respondent would return to erect power pylons, transmission lines and pay compensation. The Respondent did not make an attempt
to reinstate the forest and pay compensation to the Appellant.
- 9.3 The learned trial Judge erred in law and in fact when he found that the conduct of the Appellant in claiming compensation or damages
under the Agreement amounted to an election to accept repudiation of the Agreement. The available evidence suggests that the Appellant
actively commenced claim for compensation against the Respondent in or about 3 March 2006. There is no direct evidence that the Appellant
had chosen to elect the non-performance of the Agreement as a repudiation of the Agreement. The available evidence is that the Appellant
has elected to firstly, inquire as to whether the Respondent will return to continue the project in or about 2003. In 2006, the Appellant
pursued the claim for damages to the forest and has not treated the non-performance of the Agreement as a repudiation of the Agreement.
- 9.4 Consequently, the learned trial Judge erred in law and in fact when he failed to consider or give any weight or consideration
to the argument of the Appellant that the non-performance of the contract was continuous until such time it is performed by the Respondent.
- 9.5 The learned trial Judge erred in law and in fact when he refused to consider the Appellant's argument that the Respondent is estopped
from raising the issue of time limitation by their conduct in accepting the Appellant's claim. This is evident by the fact that in
2007, the Respondent went to the affected area to conduct assessment on the extent of the environmental damages. Furthermore, there
was sufficient evidence before the Court that the Respondent has engaged in the negotiations through various correspondences and
letters regarding the Appellant's claim since 2006. The actions of the Respondent and its servants, agents and employees coupled
with the failure of the primary judge to clearly identify the time of the breach of contract or time upon which the cause of action
accrued gives more relevance to the argument on estoppel by representation.
Issues for determination
- Having heard arguments from Counsels, I am of the view that the main contention raised by the appellant can be listed are as follows:
- 10.1 Whether the trial judge erred when he found that the Appellant's claim was time- barred pursuant to Section 16 (1) of the Frauds and Limitations Act 1988?
- 10.2 Whether the trial judge erred when he failed to clearly establish on proper evidence the time upon which the cause of action
accrued?
- 10.3 Whether the trial judge erred when he found and treated the conduct of the Appellant in claiming compensation under the TAA as
election to accept repudiation of the Agreement?
- 10.4 Whether the trial judge erred when he failed to give weight and consider the argument that the performance of the Agreement by
the Respondent was continuous until such time it is performed by the Respondent? Whether the trial judge erred when he failed to
give due consideration to the Appellant's argument that the Respondent is estopped from raising the issue of time limitation.
The Appellant's Position
- The appellant in his submission conceded that grounds 1,2 and 3 are related and thus were presented together and that now leads to
only having 3 grounds of appeal to pursue.
- Here, the appellant says that the trial judge erred when he found that the cause of action accrued in or about 1988 on the signing
of the Agreement and abandonment of the project thereof (paragraph 53). He submitted that the finding is incorrect and without basis
as there was no evidence to clearly suggest that the appellant commenced its claim for compensation in 1988 or that the Appellant
claimed breach of contract in 1988. The appellant submits that his claim and pleadings pleaded clearly show that the appellant began
inquiring in 2003. Consequently, he submits that his claim for environmental damages accrued in 2006 and the available evidence supports
the pleadings.
- The appellant also submits that the trial judge erred in finding that the conduct of the appellant in his claim for compensation under
the TAA as election to accept repudiation of the Agreement and he contends that the performance of the agreement was continuous until
such time that it was performed.
- Further and in addition, the trial judge erred when it failed to give due consideration to the arguments that the respondent was estopped
from raising the issue of time limitation.
The Respondents' Position
- The respondent on the other hand asserts that the primary Judge was correct when ruling:
“52. It is clear to me, and I find as a fact from the available evidence before me that PNG Power abandoned the project and
easement, or corridor has reverted back to the use of the original landowners. It is however not clear from the available evidence
as to when the project was actually aborted and for what reason(s). It seems from the evidence of Mr. Tsigese that the corridor or
easement cut has significantly regrown and naturally rehabilitated. An internal brief on important legal matters by PNG Power’s
Manager, Legal Services forming part of the bundle of documents constituting annexure A to Exhibit 2 shows that PNG Power never returned
to the easement or corridor cut to erect power pylons. In the same brief, it is asserted that the landowners were paid K160.00 for
each pylon that was proposed to be erected.
"53. Kerenga's evidence is that their claim for compensation commenced in 1988 and has been unsuccessfully pursued from that time
to the present time. There is no strong and convincing evidence before the Court to suggest that all landowners who were alive and
present at the time the TM was signed personally received payment for the value of trees that had been cut down. It is not clear
from the evidence as to the reason(s) why the claim for compensation was made not long after the TAA was signed. If that implies
that the project was aborted before compensation was claimed and Kerenga elected to treat the non-performance of PNG Powers obligation
to pay compensation or damages under the TAA as a repudiation of the TAA, then Kerenga's cause of action would have commenced accruing
around that time. That means that Kerenga should have commenced his Associations' action within six years from the time the project
was aborted, i.e., sometime towards the end of 1994. If PNG Power aborted the project later than 1988, then it is difficult from
the evidence available to pinpoint or guess the nearest date. Even if the project had been aborted any time after 1988 say within
six years of the signing of the TAA and Kerenga elected to treat the non-performance of PNG Power's obligation to pay compensation
or damages under the TAA as a repudiation of the TAA, then Kerenga should have commenced their action by year 2000.
“54. In the circumstances, I find that Kerenga's conduct in claiming compensation or damages under the TAA as I have alluded
to above amounted to an election to accept repudiation of the TAA. Kerenga's crossclaim is time-barred, and I declare it to be so.
- Given that conclusion, Kerenga's crossclaim also amounts to an abuse of the process of the Court. I also note that it is an undisputed
fact that Kerenga has previously filed proceedings in both the National Court and the Supreme Court seeking damages, but those claims
were all dismissed.
- Kerenga's contention that PNG Power is estopped from pleading the statute of limitation as a bar by the application of the principles
of estoppel by conduct also known as estoppel' by representation is misconceived and rejected. The maxim equity follows the law and
expressed as aequitas sequitur legem which means that equity will not allow a remedy that is contrary to law is accepted and applied
in our jurisdiction: Paul Kumba v Motor Vehicles Insurance (PNG) Trust (2001) N2132, Joe Kerowa v MVIL (2010) SC1100, Brian Josiah v Steven Raphael (2018) SC1665, Wylie v Wake [2000] EWCA Civ 349.
- Is the action "founded on a special contract" or is it "an action upon a speciality"? The action in the crossclaim is neither founded
on a special contract nor upon a specialty. Any contract in the form of a deed is a specialty: John Hiwi v Rendle Rimua (2015) SC1460. The action is founded on a breach of a simple contract in which case the six-year limitation period will apply.
- I conclude that Kerenga's claim pursued by the crossclaim is time-bared and amounts to an abuse of the process of Court and therefore
will be dismissed in its entirety. This means that Kerenga will not be entitled to compensation under the TAA as PNG Power has no
legal obligation to do so."
Did The National Court Err?
- In addressing this question, I wish to emphasise at the outset that the material and argument put before the Court were not extensive
enough to appreciate the arguments for a review of the trial court’s exercise of discretion.
I have had the benefit of the written submissions and having considered the circumstances in which the matter was tried and argued
before his Honour, I consider that his Honour, the trial Judge did not err in his findings on questions of law, his findings were
based on the material before the National Court, and it was a proper position to make.
- In the case of Oil Search Limited v Mineral Resources Development Corporation Limited (2010) SC 1022, it suggested that a determination of whether an action involving an alleged breach of contractual obligations is time-barred under
Sections 16(1) or 16(3) of the Frauds and Limitations Act necessarily entails a finding on three matters:
- (a) What is the "cause of action" (that being the term used in both sub-sections)?
- (b) What is "the date on which the cause of action accrued" (that term also being used in both sub-sections)?
- (c) Is the action "founded on a special contract" (in which case the six-year limitation period in Section 16(1) will apply) or is
it "an action upon a speciality" (in which case Section 16(3) applies and the limitation period is 12 years)?
- I consider, with respect, that the learned primary Judge did address all these issues in sufficient detail.
(a) Cause of action
- His Honour to some extent addressed the issues of cause of action, identification of the cause of action and whether the action was
founded on “a simple contract” or “an action upon a specialty” and he found that the cause of action is "founded
on a breach of a simple contract” in which case, the six-year limitation period will apply (paragraph 43).
- Essentially, an action for breach of contract must be brought within six years from the date of accrual of the cause of action. Here
his Honour the trial judge discussed the general rule in contract which states that “the date on which the cause of action
accrued is not on the date of the contract, but the date of the breach and he referred to several case authorities which supported
this general rule, such as the case of Otto Benal Magiten v Kopina Raka (2002) N2179, Michael Nunulrea v PNG Harbours Ltd (2005) N279, John Hiwi v Rendle Rimua (2015) SC1460. In John Hiwi v Rendle Rimua (supra), the appellant, who claimed that he was the executive of an incorporated landowners’ association,
commenced proceedings by writ of summons in the National Court claiming payments totalling K74.5 million due to the landowners under
three agreements with the respondents regarding a gas project. The appellant claimed that the agreements commenced operation in March-April
1990. But he filed and commenced the National Court proceedings in November 2009. The third respondent, the State, moved a motion
in the National Court seeking dismissal of the proceedings on the ground that they were time-barred. The motion was upheld and the
National Court dismissed the proceedings as being time-barred under Section 16(1)(a) of the Frauds and Limitations Act 1988, which provides that "an action that is founded on simple contract ... shall not be brought after the expiration of six years commencing
on the date on which the cause of action accrued". The circumstances in this case are similar to this present case, here, the agreement
was signed on 25 March 1988, but the appellant filed and commenced proceedings in 2016, well outside of the six-year period under
s 16 (1) (a) of the Frauds and Limitation Act 1988.
- In Otto Benal Magiten v Kopina Raka (2002) N2179, the essential fact is that the parties entered into a contract for repairs of the plaintiffs motor vehicle by the defendants. An
essential term of the contract was that the defendants’ were to repair the plaintiffs vehicle within three weeks from the 3rd
of February 1995. There is also no dispute that the defendants did not have the vehicle repaired within that period as agreed. Indeed,
the evidence is that it took the defendants some four months to complete the repairs to the plaintiffs vehicle. There was therefore
clearly a breach of the term of the contract by the defendants in that the defendants did not complete the repairs to the motor vehicle
within three weeks from the 3rd of February 1995. When they did not, the plaintiffs cause of action commenced to accrue. The contract
in this case was to repair the plaintiffs vehicle within 3 weeks. The defendants’ were to do the repairs within a particular
time frame. That being the case, when the repairs were not completed within that period, there was a breach of contract by the defendants.
That breach occurred on the expiry of the agreed period of repairs. This occurred at the end of February 1995, and this was when
the plaintiffs cause of action arose. Thus, the plaintiffs cause of action accrued from that date (that is from end of February 1995)
and continued to accrue until it expired some six years later on or about the end of February or beginning of March 2001. In that
case, the Court held:
- (1) Where the contract is to do something at a particular time or upon the happening of a contingency, and the thing contracted for
is not done, the cause of action arises at the time specified or upon the contingency occurring.
- (2) In this case the plaintiffs cause of action accrued at the end of February 1995 and continued till end of February / beginning
of March 2001.
- (3) As the Writ of Summons was filed on 17 May 2001 the plaintiffs cause of action was time barred.
- (4) Accordingly, the application by the Defendants is upheld and the whole of the proceedings is dismissed.
(b) Date on which cause of action accrued
- Only when a precise date is identified would the court be in a position to make any calculation of the limitation period of six years
or 12 years under Sections 16(1) or 16(3), as the case may be.
- In the court below, his Honour, the primary Judge noted that the appellant, PNG Power had submitted that the cause of action accrued
either on the date of the TAA agreement, 25 March 1988, or where the innocent party elects to treat himself as discharged from further
performance upon a breach of the contract, time begins to run immediately. For instance, if there is an anticipatory breach accepted
by him as a repudiation of the contract, his cause of action accrues at once, not from the failure of the party in default. However,
his Honour did not say which date was propounded by the respondents and did not himself make any finding on this issue. He seems
to have tacitly formed the view that the project was aborted before compensation was claimed and Kerenga elected to treat the non-performance
of PNG Power’s obligation to pay compensation or damages under the TAA as a repudiation of the TAA, then Kerenga’s cause
of action should have commenced accruing around that time, that means that Kerenga should have commenced his Association’s
action within six years from the time that the project was aborted., i.e., sometime towards the end of 1994 or by 2000 if the project
had been aborted any time after 1988.
- In any event, the date was irrelevant in view of his finding that the cause of action was founded on a simple contract. His Honour
concluded that the limitation period was 6 years under s 16 (1) (a) of the Frauds & Limitation Act 1988, even if the date on which the cause of action accrued was in 1994 or 2000, the appellant’s claim is statute barred when
it proceedings were commenced in 2016. It was outside of the six-year period stipulated under s 16 (1) (a) of the Frauds & Limitation Act 1988.
(c) Simple contract or speciality?
- The primary Judge made a clear finding on this issue, and I have arrived at a view that his Honour was in a position to come to the
firm conclusion that he did.
- The issue of whether an action is "upon a speciality" is not at all straightforward. There is no definition of "speciality" in the
Frauds and Limitations Act or the Interpretation Act or any other written law.
- The only reference to the word “speciality” is found in the case of Bank of South Pacific v Leahy (2002) N2263 where Davani J in her ruling stated that: “a guarantee was a speciality because of its nature and form, it being in the form
of a deed” however, this issue was not addressed in detail and just as in the present case it is evident that the National
Court did not have the benefit of extensive argument on the point and requires thorough consideration as it may have significant
practical implications for claims made in a commercial law context.
- NAROKOBI J: I have read the judgment of my sister judge, Her Honour Justice Polume- Kiele and agree with the reasons for her conclusion and her
proposed orders. I also adopt the background to the proceedings in her honour’s judgment. I would like to however add the following
discussions on the issue of when the cause of action accrued and estoppel by representation.
- The primary judge stated the following as to when the cause of action accrued at paragraph 54 of his decision (PNG Power Ltd v Kerenga (2020) N8264):
“54. Kerenga’s evidence is that their claim for compensation commenced in 1988 and has been unsuccessfully pursued from that time
to the present time. There is no strong and convincing evidence before the Court to suggest that all landowners who were alive and present at the time
the TAA was signed personally received payment for the value of trees that had been cut down. It is not clear from the evidence as
to the reason(s) why the claim for compensation was made not long after the TAA was signed. If that implies that the project was
aborted before compensation was claimed and Kerenga elected to treat the non-performance of PNG Power’s obligation to pay compensation
or damages under the TAA as a repudiation of the TAA, then Kerenga’s cause of action would have commenced accruing around that
time. That means that Kerenga should have commenced his Associations’ action within six years from the time the project was
aborted, i.e., sometime towards the end of 1994. If PNG Power aborted the project later than 1988, then it is difficult from the
evidence available to pinpoint or guess the nearest date. Even if the project had been aborted any time after 1988 say within six
years of the signing of the TAA and Kerenga elected to treat the non-performance of PNG Power’s obligation to pay compensation
or damages under the TAA as a repudiation of the TAA, then Kerenga should have commenced their action by year 2000.” (Emphasis added).
- Critical to finding when the cause of action accrued is to establish as a question of fact when the contract was breached (John Hiwi v Rendle Rimua (2015) SC1460). The primary judge found that the breach of contract occurred when the appellant initiated claims for compensation in 1988. It was
open to the primary judge to make that finding because the contract did not provide any specific term as to when any compensation
under the clause for damages in the agreement would be paid. The claim for compensation is evidence that the respondent had breached
its agreement and was required to pay compensation. It was incumbent upon the appellant to commence their action within six (6) years
after they approached the respondent for compensation during the year 1988. It was not necessary for the primary judge to establish
with certainty a particular date the cause of action accrued as by 2016, when the appellant filed their crossclaim in this proceeding,
the proceeding was well and truly statute-barred under s 16(1) of the Frauds and Limitation Act 1988 having expired sometimes in 1994. It was not necessary to make any specific finding of when the cause of action accrued.
- The primary judge discussed the evidence presented by the appellant on the efforts by the appellant to pursue their claim, which I
presume is what the appellant is relying on to preclude the respondent from claiming that the appellant’s proceedings are time
barred. The primary judge made the following observations at paragraph 32 of his judgment:
“32. The claim has been followed up with PNG Power directly and with the involvement of others. Annexure B to Exhibit 2 is a
copy of a letter from the Association to the then Minister of Public Enterprises and State Investments, Hon. Ben Micah MP dated 24
January 2013 requesting his assistance and intervention in facilitating payment of compensation. Annexure C to Exhibit 2 is a copy
of a letter from the then Minister of Public Enterprises and State Investments, Hon. Ben Micah MP to Mr Joshua Baki ri, Chairman
of PNG Power dated 12 February 2013 requesting consideration and immediate settlement of the Association’s claim. Annexure
D to Exhibit 2 is a copy of a letter from Dr Clement Waine, Acting Secretary of Department of Public Enterprises & State Investments
to Mr John Tangit, Chief Executive Officer of PNG Power dated 23 January 2014 requesting PNG Power to address the Association’s
claim. Annexure E to Exhibit 2 is a copy of an undated letter from the Association to the Board of Directors of PNG Power proposing
settlement of its claim for K10 million. Annexure F to Exhibit 2 is a copy of a letter from the Association to the Acting Chief Executive
Officer of PNG Power dated 17 August 2015 following up on the Association’s claim. Annexure G to Exhibit 2 is a copy of a letter
from the Association to the Manager, Legal of PNG Power dated 10 September 2015 following up on the Association’s claim and
also giving notice of the possibility of disrupting power supply to all Highlands Provinces failing settlement of its claim. Annexure
H to Exhibit 2 is a copy of a letter from Joe Kunda Naur, Provincial Administrator, Simbu Provincial Administration to the Chief
Executive Officer of PNG Power dated 3 February 2016 requesting PNG Power to promptly address and expedite payment of the Association’s
claim.”
- There is no evidence at all that there was representation made by the respondent acknowledging its liability to the appellants, especially
from the board of directors of the respondent company. It is trite law that a company is a separate legal entity from its shareholders
and can sue and be sued by its own name, separate from its shareholders (Companies Act 1997, s 16). Any representation made by the Minister of State-Owned Enterprises, or the Acting Secretary for the Department of Public
Enterprise cannot be equated to the respondent. The respondent is a separate legal entity. The consistent follow-up by the appellant
does not restart the clock so to speak as to when the cause of action accrued. If the constant follow-ups resulted in an acknowledgment
from the respondent that they had a responsibility to pay the appellant compensation, then the cause of action in my view by analogy
to a cause of action arising out of a debt, would accrue from the date of the acknowledgment, and such acknowledgment is required
to be in writing (see Frauds and Limitation Act ss 7 and 9).
- For the above reasons and the reasons advanced by her Honour Justice Hitelai Polume- Kiele, I would order that the appeal be dismissed
with costs to follow the event.
Conclusion
- We find that the primary Judge did not err in his determination of the appellant's claim for compensation and dismissal of the proceedings
and his cause of action for being statute barred under s 16 (1) (a) of the Frauds & Limitation Act 1988 and the crossclaim amounted to an abuse of process of the Court.
- As to costs, as the respondent has succeeded it is appropriate that costs be awarded in favour of the respondent.
ORDER
- Orders are entered in the following terms:
- (1) The appeal is dismissed.
- (2) Costs is awarded in favour of the respondent.
Judgment accordingly.
_________________________________________________________________
Chesterfield Lawyers: Lawyers for the Appellant
Twivey Lawyers: Lawyers for the Respondent
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