IN THE HIGH COURT OF FIJI AT SUVA
APPELLANT JURISDICTION

CIVIL APPEAL NO.: HBA 13 OF 2014

BETWEEN:

ARUN PRASAD SHARMA
Appellant

AND:

VINOD PATEL & COMPANY LIMITED
First Respondent

AND:

CONSUMER COUNCIL OF FIJI
Second Respondent

COUNSEL : Appellant [Mr. Arun Sharma] in Person
 Ms. R. Lal for the first Respondent
 Ms. B. Prasad for the second Respondent

Date of Hearing : 30th September, 2015
Date of Judgment : 19th November, 2015 

Judgment.

[1]	The plaintiff instituted this action against the 1st and 2nd defendants seeking damages for selling counterfeit building materials and thereby causing him pecuniary loss as well as psychological stress and humiliation. 

[2]	When this matter came up before the learned Magistrate an objection was taken to the maintainability of the action on the ground that it was barred by the provisions of the Limitation Act (Cap 35). 

[3]	The learned Magistrate upheld the objection and dismissed the action of the plaintiff. The present appeal is from the said dismissal. 

[4]	The learned Magistrate arrived at the conclusion that the action of the plaintiff is barred by the provisions of the Limitation Act (Cap 35) on the basis that the cause of action arose on the day the contract between the plaintiff and the 1st defendant was entered into which is, according to the plaintiff, a day between 25th June 2007 and July 2007 and the writ of summons was filed on 07th November 2013. 

[5]	In terms of section 4 of the Limitation Act (Cap 35) an action founded on simple contract must be brought within six years from the date on which the cause of action arose and in a case of damages for negligence the period within which an action could be brought is three years.

[6]	A cause of action based on breach of contract arises at the time of the breach and not on the day the agreement is entered into by the parties and whether an action is barred by the provisions of the Limitation Act (Cap 35) is not a pure question of law but a mix question of law and fact. 

[7]	In the statement of claim it is not clearly stated the day on which the first defendant is alleged to have breached the contract. Although the parties admitted that there was a one year warranty on the goods purchased by the plaintiff there is no evidence to that effect on record. 

[8]	When an objection of this nature is taken up the Court must first ascertain the relevant dates from the evidence adduced and then proceed to make a ruling. The averments contained in the statements of claim or statements of defence are not evidence. Therefore, the Court cannot rely solely on the averments in the pleadings which are not affidavits, in making a finding of fact.

[9]	The learned counsel for the 1st defendant submitted that the written submissions tendered by the plaintiff are in the form of affidavits and moved they be expunged from the record since he is not entitled to adduce evidence at the hearing of the appeal. The written submission tendered to Court on 28th September 2015 is not an affidavit and I do not find any other written submission in the record. 

[10]	For the reasons aforementioned I make the following orders;

1.	The appeal of the plaintiff is allowed.

2.	The case is sent back to the Magistrate's Court for hearing on its merits.

3.	There is no order for costs of this appeal. 

Lyone Seneviratne
JUDGE

19.11.2015