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Abdul v Bi [2012] FJHC 816; HBA2.2011 (18 January 2012)

IN THE HIGH COURT OF FIJI AT LABASA
CIVIL APPELLATE JURISDICTION


CASE NUMBER: HBA 2 of 2011


BETWEEN:


MOHAMMED MUTLIB ABDUL
a.k.a. ABDUL MUTLIB
APPELLANT


AND:


NASIRAN BI
RESPONDENT


Appearances: Mr. S. Krishna for the appellant.
Mr. S. Prasad for the respondent.
Date/Place of Judgment: Wednesday, 18th January, 2012 at Labasa.
Coram: The Hon. Justice Anjala Wati.


JUDGMENT


CATCHWORDS:


LIMITATION ACT, CAP.35– PERSONAL INJURY CLAIM – CLAIM STATUTE BARRED – FACTORS TO BE CONISDERED TO GRANT EXTENSION OF TIME TO FILE CLAIM OUT OF TIME – MODE OF MAKING APPLICATION – SUBSEQUENT RIGHT TO RAISE THE DEFENCE UNDER THE LIMITATION ACT AFTER GRANT OF LEAVE TO ISSUE PROCEEDINGS OUT OF TIME.


LEGISLATION:


THE MAGISTRATES' COURTS RULES, CAP. 14; Order XXVI Rule 11.
THE LIMITATION ACT, CAP. 35; s. 4(1), s. 16(1), and (3), s. 17(3).


The Cause


  1. The appellant has filed an appeal against the decision of the Magistrate of 9th September, 2010 where his worship had struck out the appellant's application. The appellant's application in the lower Court was to set aside the earlier orders of his worship of 10th April 2008 and for the substantive action to be struck out for breach of ss. 4 and 16(3) of the Limitation Act. The reference to an earlier order is the order granting leave to the respondent to issue personal injury claim outside the 3 year limitation period.
  2. The appellant's application for setting aside was based on the premise that the substantive claim was statute barred under s. 4(1) of the Limitation Act, Cap. 35 and that the respondent's failure to inform the lower Court of the High Court action between the same parties for the same cause, which action was struck out for non- appearance of the respondent's counsel on the date of hearing, was in breach of s. 16(3) requirements of the Limitation Act. The appellant's application in the lower Court was made pursuant to ss.4, 16 and 17 of the Limitation Act Cap. 35.
  3. His worship refused setting aside on two grounds. The first, that under order XXVI Rule 11, the appellant must have brought an action to set aside the order enlarging time within 7 days. The appellant filed the application outside time, that is, after 2 months and 25 days of the orders. Secondly, that at the time the orders were granted, the requirements of s. 16(3) of the Limitation Act were fully met.

Grounds of Appeal


  1. The appellant has drafted the grounds of appeal in a very cumbersome manner. The grounds also contain the submissions. The grounds are not only overlapping but could have been precisely stated. However I will quote the grounds as it appears from the records for reference:-

"1. THAT the Learned Magistrate erred in law and in fact in making a finding that "On 28th of July, 2001 she was a passenger in a motor vehicle registration number BT 004 travelling from Bua to Labasa. At Qelewaqa, Labasa the Defendant's cane truck registration number AU 214 emerged from the side road and struck the vehicle in which the Plaintiff was travelling", when there was no evidence either documentary or oral evidence adduced on liability.


(Page 1, paragraph 1 of the Judgment)


2. THAT the Learned Magistrate erred in law and in fact in holding that the "...Defendant has no intention of challenging the order for enlargement of time granted to the Plaintiff on 10th April, 2008", when there is no evidence before the Honourable Court to make that assumption.


(Page 8, Paragraph 3 of the Judgment). The Learned Magistrate erred in law and in fact in holding that the Ex-Parte Motion was appropriate in the present case as the Plaintiff's subject application was not on an interlocutory matter.


3. THAT the Learned Magistrate erred in law and in fact in making a finding that "the Defendant's application to set-aside the order granting the Plaintiff an extension of time to bring an action for personal injury against the defendant is inappropriate, misconceived and wrong in law", when the Plaintiff has clearly breached sections 4, 16 and 17 of the Limitation Act, Cap. 35, Laws of Fiji, by disclosing no evidence in her affidavits and issuing proceedings in High Court, Civil Action No. 23 of 2004 on 4th of May, 2004 which was struck out. (Page 8, Paragraph 5 of the Judgment)


4. THAT the Learned Magistrate erred in law and in fact in holding that the plaintiff did not breach section 16 (3) of the Limitation Act, Cap. 35, Laws of Fiji, when the Plaintiff instituted High Court, Civil Action 23 of 2004 on the 4th day of May, 2004 through Sarju Prasad Esq., which matter was struck out at the hearing of the action.

(Page 8, Last Paragraph of the Judgment)


5. THAT the Learned Magistrate erred in law and in fact in holding that the failure by the Plaintiff to inform the Court about the High Court action is not a situation that was envisaged by section 16 (3) of the Limitations Act despite the Learned Magistrate making findings of facts that the Plaintiff was aware that she suffered personal injury from the accident, she was aware of the extent of the injury and she was convinced that the injuries were the result of the negligent driving of the Defendant and that she engaged Mr. Prasad to pursue her personal injury claim.

(Page 9, Paragraphs 6 & 7 of the Judgment)


6. THAT the Learned Magistrate erred in law and in fact in holding that the Plaintiff "would have required the Plaintiff to explain to the court reasons for the delay in pursuing her claim", when there is no evidence before this Honourable Court in any of the affidavits filed.


(Page 10, Paragraph 3 of the Judgment)


7. THAT the Learned Magistrate erred in law and in fact in holding "that Court's will only grant the order after the Plaintiff has shown good cause for the delay and the Court was satisfied with the explanations given by the Plaintiff. Therefore the court would have been aware of the existence of the Plaintiff's High Court action", when there is no evidence before this Honourable Court.


(Page 10, 3rd Paragraph of the Judgment)


8. THAT the decision of the Learned Magistrate is unreasonable and cannot be supported having regard to the evidence as a whole".


The Submissions


  1. In respect of ground 1, Mr. Krishna submitted that the Magistrate made a finding that the defendant emerged from the side road and struck the vehicle in which the plaintiff was travelling. There was no evidentiary basis to make this finding as the hearing on liability never took place.
  2. On ground 2, Mr. Krishna submitted that Order XXVI Rule 11 of the Magistrates' Courts Rules was wrongly interpreted. He stated that the word "may" in the said rule; gives the party affected, a discretion to either set aside an application within 7 days or within such time as the Court allowed. He said that when the application to set aside the orders was filed, no objection was taken by the respondent's solicitors on the time frame under Rule 11 but instead the respondent's solicitors sought time to file an affidavit in reply to the application. Written submissions were filed and even a hearing was date assigned on the same. The respondent must now be estopped from asserting Rule 11 for her benefit.
  3. On grounds 3, 4 and 5 Mr. Krishna stated that the respondent had initially filed a High Court Civil action number 23 of 2004 which was struck out for non appearance. The same cause of action was filed on 1st May, 2008, 7 years after the accident. The filing of the High Court action indicates that the respondent was fully aware of the material facts relating to the personal injury in 2004. The requirement in s. 16(3) was therefore not met for the Magistrate to have granted an order for enlargement of time.
  4. In respect of grounds 6, 7 and 8, Mr. Krishna argued that there is clear evidence that the s. 16(3) requirements of the Limitation Act was not met and having granted leave, the court should have, reconsidered the entire issue on s. 16(3) ab inito when the appellant raised it through his application to set aside the orders and to strike out the substantive application.
  5. On ground 1, Mr. Prasad submitted that his worship had not made a finding of fact and that the remark of his worship had no bearing or influence on the judgment of his worship. Liability is not an issue on this appeal and so the submission of Mr. Krishna has no relevance.
  6. On ground 2, the respondent's counsel stated that the order for enlargement of time was granted on the 10 day of April, 2008 and served on the appellant on 15th May, 2008. On 26th May, 2008 the notice of intention to defend the action was filed and served by the appellant. It was only after service of intention to defend that an application to set aside was filed. The appellant had 7 days to file an application to set aside or such time within which the court allowed. Alternatively the appellant/defendant could have appealed the said order. The failure to take appropriate actions at appropriate time gave the learned Magistrate a basis to make a finding that the appellant had no intention of challenging the order for enlargement of time and the application was inappropriate, misconceived and wrong in law.
  7. Mr. Prasad stated that the order for enlargement of time was an order in its absolute form. Now the appellant cannot challenge that order but defend the action on substance.
  8. On ground 3, Mr. Prasad submitted that since the appellant was out of time in appealing or setting aside the orders of the Magistrate granting ex parte leave to file an action for personal injuries out of time, the application of the appellant indeed was misconceived, inappropriate and wrong in law.
  9. The fact of the High Court action being struck out was clear, before the lower Court and with that knowledge an order for extension of time was granted.
  10. On ground 4, Mr. Prasad submitted that any aspect of the breach of s. 16(3) should have been appropriately addressed within the requisite time frame of 7 days as stipulated in order XXVI Rule 11, or the orders ought to have been appealed. The time to raise that issue has expired and must not be entertained at the appellate stage.
  11. On ground 5, Mr. Prasad submitted that it was correct for the learned Magistrate to find out that failure by the plaintiff to inform the court about the High Court action is not a situation envisaged by s.16(3) of the Limitation Act Cap. 35.
  12. On ground 6, Mr. Prasad submitted that the ex-parte application seeking leave to appeal out of time was heard and then the orders were granted. It was not a situation of granting "order in terms" so the Magistrate was correct in holding that the Court would have required the plaintiff to explain in details the reasons for the delay and only then granted the order.
  13. In respect of ground 7, Mr. Prasad submitted that only after the hearing of the case and due consideration by his worship the orders were granted. The Court knew of the reasons for the delay before it granted the orders.

The Law and the Analysis


  1. The first ground emanates from paragraph 1 of his worship's judgment. It reads:-

"The plaintiff is a widow and lives in Nasarawaqa, Bua. On 28th of July, 2001 she was a passenger in a motor vehicle registration number BT 004 travelling from Bua to Labasa. At Qelewaqa, Labasa the defendants cane truck registration number AU214 emerged from the side road and struck the vehicle in which the plaintiff was travelling".


  1. Mr. Krishna says that paragraph 1 is a finding on liability. I do not agree with Mr. Krishna. It is clear that paragraph 1 of the judgment is a reflection of the plaintiffs claim. It is neither a finding on liability nor a finding of fact. The statement has no bearing on the application to set aside filed by the appellant. I do not know why the appellant, in the circumstances, is making such a noise of an irrelevant point. Ground 1 is baseless and ought to be dismissed.
  2. Instead of taking the rest of the grounds in turn, I will summarise my analysis of the situation before the Magistrate and the proper law governing the issue. My analysis will definitely answer all grounds of appeal.
  3. The appellant had not only applied for a setting aside of the orders granting leave to issue the personal injury claim out of time but also for striking out of the substantive action on its defence of "the claim being statute barred" under s.4 and s. 16(3) of the Limitation Act, Cap. 35.
  4. To set aside the orders issued ex-parte for enlargement of time, the appellant had 7 days from the date of service of the order or within such time as the Court allowed. There was no application made within 7 days or any extension of time obtained to file an application to set aside. The appellant filed the application to set aside the orders without leave of the Court and the application was out of time: Order XXVI Rule 11 of the Magistrates' Courts Rules.
  5. To refuse a setting aside, on Order XXVI Rule 11, was appropriate, but this must have been done without prejudice to the appellants rights to raise a defence under s. 4(1) of the Limitation Act. That right still survived by virtue of s. 16(1) of the Limitation Act.
  6. S. 16(1) reads:-

"That the provisions of subsection (1) of section 4 shall not afford any defence to an action to which that section applies, in so far as the action relates to any cause of action in respect of which –


(a) The court has, whether before or after the commencement of this action, granted leave for the purposes of this section; and

(b) The requirements of subsection (3) are fulfilled".
  1. The appellant would only be denied a defence under s. 4(1), if both (a) and (b) above are met. This also shows that even after leave is granted; the Court can still consider the defence of "limitation period" if it can be shown that leave was granted without the requirements of s. 16(3) being met.
  2. Now, his worship having noted that the application for setting aside was out of time said that the application was "inappropriate, misconceived and wrong in law". That finding is an error of law as the appellants right to raise it after the leave was granted until the trial survives by virtue of s.16(1).
  3. One therefore cannot conclude that if the enlargement of time is not set aside within the requisite time, the party does not have the intention to rely on the defence of limitation period. The appellant had worked out an appropriate time to raise the issue and as such his intention to waive the defence is not founded on proper basis.
  4. One must appreciate that when an ex -parte order is granted to file the claim out of time, the Court is only possessed with evidence from the plaintiff to see if the requirements of s.16(3) are met. Once the order is granted, the defence may wish to bring his evidence to the attention of the Court to show that s. 16(3) requirements were never met for the Court to have granted the orders in the first place. This discovery may be beyond the 7 days from the date of service of the order and so s. 16(1) comes to the protection of the defence to raise the defence at any time and to show to the Court that the requirements of s.16(3) were never met.
  5. Let me see whether s. 16(3) requirements were met in this case. S. 16(3) of the Limitation Act reads:-

"The requirements of this subsection shall be fulfilled in relation to a cause of action if it is proved that the material facts relating to that cause of action were or included facts of a decisive character which were at all material times outside the knowledge (actual or constructive) of the plaintiff until a date which-


(a) either was after the end of the three- year period relating to that cause of action or was not earlier than twelve months before the end of that period; and

(b) in either case, was a date not earlier than twelve months before the date on which the action was brought".
  1. The Court said that the failure to inform the court of a High Court action by plaintiff is not a situation envisaged by s. 16(3). That was not the whole approach of the appellant. What the appellant contended was that the filing of the High Court Action, which was not disclosed, was evidence of the fact that the plaintiff had actual knowledge of the material facts relating to the cause of action. That is why a High Court action was filed. This fact takes the plaintiffs case out of the requirements of s. 16(3), as a result of which the defence of statute barred should be maintained and allowed.
  2. His worship made a finding that the plaintiff was aware that she "suffered personal injury from the accident, she was aware of the extent of the injury and she was convinced that the injuries were the result of the negligent driving of the defendant". Having found that, it was consequent that a finding be made that s. 16(3) requirements were not met and that the appellant was entitled to succeed in its defence under s.4(1) of the Limitation Act Cap. 35.
  3. His worship said that at the time the leave was granted the Court would have been satisfied of the requirements of s. 16(3). I reiterate that, once leave is granted, it is not conclusive that the defence cannot rely on s. 4(1) of the Limitation Act. By virtue of s. 16(1), the defence can always bring up the defence and have it tried for want of compliance of s. 16(3).
  4. I wish to comment on the grant of the leave pursuant to s. 17(3) of the Limitation Act. There is no evidence of any finding that the requirements of s. 16(3) were met. The plaintiff's sorry state of affairs was that her solicitors by their neglect allowed the matter to be struck out. That is not sufficient to give her a right under s. 16(3) to get leave or be granted leave, however sympathetic the Court may be.
  5. Ex-parte applications are normally filed for applications seeking enlargement of time. Motions in Magistrates Courts are used for interlocutory orders and so it would have been proper if the application was brought by an originating summons. Be that as it may, I am not basing my judgment on this finding, as the use of procedure did not prejudice the appellant.

Final Orders


  1. The appeals in grounds 2 – 7 are allowed. His worships orders of dismissing the appellant's application to strike out the plaintiffs claim and an order for costs against the appellant is set aside.
  2. I substitute his worship's orders with my orders that "the plaintiff's claim is statute barred under s. 4(1) of the Limitation Act and hence cannot survive. The plaintiffs claim is struck out".
  3. Each party to bear their own costs.

Anjala Wati
Judge
18.01.2012


To:


  1. Mr. S. Krishna, counsel for the appellant.
  2. Mr. S. Prasad, counsel for the respondent.
  3. File: HBC 2 of 2011.

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