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Alspec Holdings Ltd v Ministry of Agriculture, Fisheries and Forests [2011] FJHC 422; HBC345.2010 (5 August 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 345 of 2010

BETWEEN:

ALSPEC HOLDINGS LIMITED a company incorporated in the Fiji Islands and having its registered office at G.H. Whiteside & Co. Chartered Accountants, 211 Ratu Sukuna Road, Suva
PLAINTIFF

AND:

MINISTRY OF AGRICULTURE, FISHERIES AND FORESTS
1ST DEFENDANT

AND:

THE ATTORNEY GENERAL OF THE REPUBLIC OF FIJI ISLANDS
2ND DEFENDANT

BEFORE: MASTER DEEPTHI AMARATUNGA
COUNSELS: Mr Shelvin Singh of Parshotam& Co for the Plaintiff
Ms K.Naidu of AG's Chamber for the Applicant Defendant

Date of Hearing: 22nd June, 2011
Date of Ruling: 5th August, 2011

RULING

1. INTRODUCTION

1. The Plaintiff filed this action by way of Writ of summons, to recover some money alleged to have been not paid to him for the material supplied to the Ministry of Agriculture Fisheries and Forestry, for the sea weed project in September, 2002. The Writ is filed on 22nd December, 2010 and there has not been a single payment. Defendant pleads the Limitation Act Section 4(1)(a), and seeks strike out of the action. The Plaintiff relies on an alleged letter written on 5th April, 2004, by Acting Principle Fisheries Office, written to the Colonial Bank, where it has stated 'The Fisheries Department had made the commitment to settle the amount standing at $176,309 in twelve month installment basis. The Department had agreed to pay the Company $14,692.00 a month from January, 2004' and state that according to the said assurance the time for the limitation runs from the end of the 12 month period, hence from December, 2004, and this Writ is not statute barred.
   

2. LAW AND ANALYSIS

2. The Section 4(1) of the Limitation Act states as follows:
   

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) Action founded on simple contract or on tort;

(b) .........

3. The Plaintiff in the Statement of claim attached to the Writ, had admitted that the purported contract between the Plaintiff and Defendant, entered into in the month of September, 2002. No exact date is mentioned in the statement of claim.
   
4. The Plaintiff relies on an alleged letter written by Acting Principle Fisheries Office, written to the Colonial Bank, where it has stated 'The Fisheries Department had made the commitment to settle the amoung standing at $176,309 in twelve month installment basis. The Department had agreed to pay the Company $14,692.00 a month from January, 2004'.
   
5. The Defendant does not admit, this letter, but no affidavit in reply has been filed, but state that the said signatory of the letter did not have authority under the Finance Act, to undertake such a promise as to the finances of the ministry.
   
6. The Defendant has submitted the relevant Schedule to the Finance Act and state that in terms of the powers and delegation, the designation of 'Acting Principle Fisheries Office' is non existant and even if one were to assume the existence of the letter dated 5th April, 2004, written to the Bank, is not a valid letter under the law.
   
7. I agree with the submissions made of the counsel for the Attorney General. If an unauthorised officer writes a letter to a bank, it should not bind the government to the content cantained in that letter, specially when it is a matter relating to finance of the ministry.
   
8. Without prejudice to the above reasoning, I would discuss the issue of limitation. A mere letter or assuarance would not be sufficient to extend the time of limitation to the said date of the said assuarance or on the proposed date of last payment. It should be noted that the last payment and last payment due are not the same. In this action not a single payment was made on the alleged assurance given to the Colonial Bank.
   
9. Section 12(3) of the Limitation Act states as follows:
   

"Where any right of action has accrued to recover any debt or other liquidated pecuniary claim, or any claim to the personal estate of a deceased person or to any share or interest therein, and the person liable or accountable therefor acknowledges the claim or makes any payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgment or the last payment:

Provided that a payment of a part of the rent or interest due at any time shall not extend the period for claiming the remained then due, but any payment of interest shall be treated as a payment in respect of the principal debt"

10. It should be noted that in terms of Section 12 (3) has to be read with the section 13 (1) and 13(2) of theLimitation Act.
    

13(1) Every acknowledgment referred to in section 12 shall be writing and signed by the person making the acknowledgment.

(2) Any such acknowledgment or payment as aforesaid may be made by the agent of the person by whom it is required to be made under the provisions of section 12, and shall be made to the person, or to an agent of the person, whose title or claim is being acknowledged, or as the case may be, in respect of whose claim the payment is being made.

(emphasis is mine)

11. The alleged letter is neither written by agent of the ministry as per Finance Act, nor has debt been acknowledged to the Plaintiff as required in terms of Section 13(2) of the Limitation Act.
    
12. There is not even a single payment made on the alleged letter dated 5th April, 2004 and on that ground alone the limitation period would have started, on 5th April, 2004, if it can be considered as a proper acknowledgment in terms of Section 13 of the Limitation Act. So the argument that limitation would start from the end of the time period specified in the letter cannot be accepted. Since there is no payment the date should be the date of acknowledgment and in this case 5th of April, 2004 provided all other requirements under Limitation Act are met. So it is clearly out of time, even if other discrepancies are disregarded.
    
13. I have not been provided any authority to the contrary, by the Plaintiff.
    

100. CONCLUSION
     

14. In the circumstances, I find that the said claim of the Plaintiff is clearly time barred and in terms of the provisions contained in the Limitation Act, the claim should be struck out. The Defendant's application for strike out is granted. The Defendant is also granted a cost of $1,000.00 assessed summarily.
    

The Court Orders as follows:

1. The Plaintiff's action is struck-out;
   
2. The Plaintiff is ordered to pay a cost of $1000. 00 to the 2nd Defendant.
   

Dated at Suva this 5th day of August, 2011.

Mr D. Amaratunga
Acting Master of the High Court
Suva