Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Alspec Holdings Ltd v Ministry of Agriculture, Fisheries and Forests [2012] FJHC 19; HBC345.2010 (20 January 2012)

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
FIRST DEFENDANT

AND:

THE ATTORNEY GENERAL OF THE REPUBLIC OF THE FIJI ISLANDS
SECOND DEFENDANT

COUNSELS : Mr Shelvin Singh for the Plaintiff
Ms Naidu K for 1st and 2nd Defendants

Date of Hearing : 29th November, 2011
Date of Judgement : 20th January, 2012

JUDGEMENT

1. INTRODUCTION
   

This is an Application filed by the Plaintiff for Leave to Appeal out of time against the Ruling made by Master on 5th August 2011. However, Learned Counsels for both Parties made submissions not only on the Application for Leave to Appeal out of time but also on merits of the case which were considered by the Master, for his ruling. In the circumstances, it is important to consider the background to the case.

2. BACKGROUND
   

1. The Statement of Claim was filed on 22nd December 2010 by the Plaintiff claiming $176,309.40 together with interest at the rate of 12.5% from October, 2002 on material supplied by the Plaintiff to the First Defendant.
   
2. On behalf of both Defendants, Attorney General's Chambers filed acknowledgement of service on 29th of December 2010.
   
3. By the Affidavit in support of Strike Off application filed on 29th January 2011 by the Defendants on the basis that:
   
   • (a) Actions for Contracts and recovery of monies shall not be brought after the expiration of six years pursuant to the Limitation Act Cap. 35 and the action by Plaintiff is time barred.
     
   • (b) Since the action having been instituted after the expiration of the limitation period is an abuse of process of Court and should be struck out with substantial cost.
     
4. Summons to strike out the action is issued and served on 27th of January 2011 on the Plaintiff and the matter was taken up before Master of High Court on 15th February 2011 and Plaintiff was granted 21 days to file affidavit opposing the application and to serve on the Defendants and Defendants to file if any affidavit in reply within 14 days of serving.
   
5. Affidavit in opposition was filed by the Plaintiff on 26th April 2011 and no reply was file by the Defendants. Both Parties filed the written submissions before the Master and it was Ordered on 5th August 2011:
   
   • (a) Striking out Plaintiff's action.
     
   • (b) To pay cost of $1000 to the Defendant.
     
6. Against the Learned Master's Order, the Plaintiff filed an Application for Leave to Appeal out of time and notices were issued on the Defendants and matter came up before me on 13th October, 2011.
   
7. On 13th October, it was ordered to file the Affidavit in response within 21 days by the Defendants and 14 days time for the Plaintiff to reply if any and the case was fixed for hearing on 29th November, 2011.
   
8. Affidavit in response was filed on 1st of November 2011 and the matter was taken up for hearing on 29th November.
   

100. PLAINTIFF'S SUBMISSIONS
     

9. Mr Singh S. Learned Counsel made oral submission on behalf of the Plaintiff. He stated the Goods were supplied to the 1st Defendant in October 2002, and acknowledgement of Debt was by letter dated 5th April 2004 (Annexure "A" to the Affidavit). By the said letter time for repayment was extended to 12 months and it was submitted that and the time for limitation purposes would expire on 31st December 2010, commencing from 1st January 2004.
   
10. Plaintiff's Counsel also drawn attention of Court to the letters annexed to Affidavit in opposition filed on 26th April 2011 i.e. 22nd January 2004, 15th March 2004, 2nd June 2004, 6th March 2007, 14th April 2007, 1st November 2007 and 18th March 2009. It is noted no response was made by the 1st Defendant for these letters.
    
11. Counsel also drew the attention of Court stating that Master's ruling is based on:
    
    • (a) Letter of 5th April 2004 was not duly authenticated;
      
    • (b) Acknowledgement did not qualify under Section 13(2) of the Limitation Act;
      

and said ruling is not justifiable.

12. It was submitted that under Order 59(11) of the High Court Rules:
    

"Any application for leave to appeal on interlocutory Order or Judgement shall be made by summons with a supporting affidavit filed and served within 14 days of the delivery of Judgement".

13. Learned Master delivered the ruling on 5th August 2011 and Learned Counsel submitted that Application for Leave to Appeal would have been filed on or before 19th August 2011. However, the said application was filed on 27th September 2011.
    
14. It is submitted by the Counsel that (Annexure "C" of the Affidavit filed in the Leave to Appeal application) the Passport of Mr Anul Narayan, Managing Director of Alspec Holdings Ltd carry entries, that on 2nd of August 2011 Mr Narayan had left Fiji Islands and came back on 14th August 2011 and the Court should take into consideration this situation to justify the delay.
    
15. Further, the Applicant has filed written submissions quoting several Judgements which were taken into consideration by this Court.
    

4. SUBMISSIONS MADE BY THE DEFENDANTS
   

16. Ms Naidu K, Learned Counsel for the Defendants in her submissions drew attention of Court to Financial Instructions of 2010 marked as Annexure NB1 and Finance Act marked Annexure NB2 to the Affidavit in reply.
    
17. It was submitted that interpretation of an officer is defined in Section 2 of Finance Act and submitted that letter dated 5th April 2004 is not signed by an authorised officer of the First Defendant. Since the authority of delegation of power vest with the Minister and Minister will delegate such power to the Permanent Secretary. Ministry does not possess a copy of the letter dated 5th April 2004 and it is also submitted that under Section 4 of the Limitation Act does not permit the Plaintiff to maintain this action.
    
18. At any stage, Ministry has not corresponded with the Plaintiff since 5th April 2004, and never acknowledged the Debt. The said letter is addressed to the Bankers of the Plaintiff.
    
19. With regard to length of delay in filing the Application for Leave to Appeal is 38 days and it was submitted that the Plaintiff returned to the country on 14th August 2011 and the affidavit on application for leave to appeal was filed on 27th September 2011. It is submitted that applicants Managing Director had ample time to file the affidavit in time and even after return, filing was delayed for further time without any justifiable reason.
    
20. Applicant has failed to substantiate the position that prescription commence from 10th December 2004 or thereafter. Several authorities were submitted by the Learned Counsel and submitted Plaintiff's application should be dismissed with costs.
    

5. CONSIDERATION OF THE APPLICATION FOR LEAVE TO APPEAL OUT OF TIME
   

21. I am of the view that this matter should be decided by me only on the basis of whether the application for leave to appeal was filed out of time and whether the plaintiff has substantiated and justified his application to be accepted out of time under Order 59 Rule 11 of the High Court Rules and inherent jurisdiction of this Courts.
    
22. I have considered the Affidavits, oral submissions and written submissions filed by both parties.
    
23. The time for filing the application for Leave to Appeal expired on 19th August 2011 under Order 59 Rule 11 of the High Court Rules.
    
24. The Counsel for Plaintiff Applicant has quoted 1st Deo Maharaj vs Burns Phillip (South Sea) Company Limited Civil Appeal No. ABU 0051 of 1994's citing the Judgement of Norwich and Peterborough Building Society vs Steed 2 All ER 880 CA:
    

"The Court has unfettered discretion in the grant or refusal of Leave. The factors which are normally taken in to account in deciding whether to grant extension of time are:

(a) The length of delay;
(b) The reasons for delay;
(c) The chances of succeeding if time is extended; and
(d) The degree of prejudice to the Respondent if the application is granted.

25. When I consider the length of delay and reasons for delay caused in this matter:
    
    • (a) The plaintiff is a limited liability company and even in absence of Mr Anul Narayan, Managing Director of the Company any other Director or authorised officer would have filed the application in time.
      
    • (b) Even after returning to the Country on 14th August, 2011 there was ample time to file the application before the expiry date 19th August 2011 and Plaintiff has failed to justify the delay of 38 days.
      
26. In the same judgement referred by the counsel for Applicant refers to the Judgement of Privy Council in Ratnam vs Cumarasamy 1964 3 AER 933 at 935 above that:
    

"The rules of Court must, prima facie be obeyed, and in order to justify a Court in extending time during which some step in procedure requires to be taken, there must be some material on which the Court can exercise its discretion. If the laws were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation"

27. The material before the Court is unsatisfactory to explain the delay. The reason given is not acceptable upon which Court could exercise its discretion.
    
28. I also quote the following in the case of Latchmi and Another vs Moti and Others (10 FLR 1964 FCS Page 13S) Marsack J has stated:
    

"In deciding whether justice demands that leave should be given, care must, in my view, be taken to ensure that the rights and interest of the Respondent are considered equally with those with the Appellant".

29. In my view length of delay is far too long and the reason for delay in unacceptable.
    
30. Master has made ruling considering that the application of Section 12(3) read with Section 13(1) and 13(2) of Limitation Act is justified. The letter dated 5th April 2004 cannot prevent the application of Limitation Act. Further the said letter is addressed to the Bank and it cannot be considered as an acknowledgement of the debt. It is my view even if the said letter is accepted as an acknowledgement of the debt in absence of payment by the 1st Defendant the limitation period commence from 5th April 2004. Action was filed on 22nd December 2010 and it is clearly out of time.
    
31. In the circumstances there is no chance for the Plaintiff to succeed in his action and there will be prejudice caused to the 1st Defendant in case the application is allowed.
    
32. I find that substantial delay has occurred and no satisfactory or justifiable reason has been proffered to enable the Court to exercise its discretion to grant leave out of time to the Applicant Plaintiff.
    
33. Accordingly, I Order:
    
    • (a) Application for Leave to Appeal out of time is refused;
      
    • (b) The costs of this application will costs in the cause.
      

Delivered on 20th January, 2012.

.....................................
C. Kotigalage
JUDGE