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Mudaliar v Housing Authority [2003] FJHC 46; Hbc0210j.2000s (31 March 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 210 OF 2000S

Between:

MUNIAM MUDALIAR
(f/n Munsami Mudaliar)
Plaintiff

and

HOUSING AUTHORITY
Defendant

Tikaram for the Plaintiff
S. Chandra for the Defendant

JUDGMENT

On 1 May 2000 the Plaintiff commenced these proceedings by writ. In paragraphs 8 and 9 of his Statement of Claim he pleaded that in mid November 1993 the Defendant had trespassed upon his land with a bulldozer resulting in removal of topsoil and destruction of foundation building materials and a builders shed.

In paragraph 9 of its Statement of Defence filed on 15 May 2000 the Defendant pleaded that the Plaintiff’s claim was statute barred.

On 22 May 2002 it was agreed by counsel that the Limitation Act defence would be decided as a preliminary matter. Both Counsel filed helpful written submissions. The Plaintiff also filed an application to amend the Statement of Claim. The proposed amendment to paragraph 8 of the Statement of Claim was as follows:

“The trespass continues in that the Plaintiff has neither offered to pay any damages or to restore the land to its original state wherefore the Plaintiff has been unable to utilise his land for the purpose of building a residence and the trespass therefore continues.”

In my view there is a clear distinction between a tort and its remedy. Failure to remedy does not mean that the tort continues; it merely means that the cause of action arising out of the tort subsists until disposed of by litigation or it becomes statute barred.

In my opinion it is unarguably the case that Section 4 (1) of the Limitation Act (Cap 35) applies to the trespass complained of by the Plaintiff in mid November 1993 and whether or not he has obtained any remedy for the tort complained of. I find that the period of limitation expired in mid November 1999 and therefore the action was commenced outside the limitation period. This is a complete defence to the action which must therefore be dismissed.

M.D. Scott
Judge

31 March 2003