Supreme Court
Action No. 86 of 1976
31st March, 1980
Jones, J.

The Solicitor-General for the Plaintiff
Mr. D. Barrow for the Defendant

Breach of bond by public officer - Applicable principles in determining if action founded on breach had become statute barred.

J U D G M E N T

This action was first heard on the 7th March, 1980 when it was agreed by the Solicitor-General and Mr. Dean Barrow that it would be preferable in the first instance to obtain a ruling on Mr. Barrow's contention that the Action was, in fact, statute barred.

The Court after hearing submissions on this matter adjourned the action to a date to be fixed for a ruling on that submission.

The document which grounds this action is a bond which was executed by the Defendant on the 31st July, 1963, prior to his going off to McGill University in Canada to read for a degree in agriculture. The Defendant later tendered him resignation from the Public Service on the 24th August, 1966; and whilst there was an exchange of correspondence between the Government of Belize and the Defendant in 1969 thereafter the matter of any obligations under the bond lay dormant for some six years until the Government of Belize in the person of the Permanent Secretary Establishment wrote to the Defendant on 3rd November, 1975 enquiring what arrangements the Defendant intended to make in respect of an outstanding balance under the bond of $5,126.69. The Defendant in his reply dated the 17th November, 1975 stated, inter alia. that he had written to Government on the 17th January, 1969 requesting that it withdraw the demand for further payment upon his return to Belize (this having occurred on the 13th July, 1969). The Defendant said that it was reasonable for him to assume from Government's silence for such a long period of time that "this matter against me had been dropped". Thereafter the Defendant set out his activities in the private sector and took the view that for the Government to press him for repayment of the debt was not only a disservice to the country but would create a poor image on the part of Government. He concluded his letter by saying that he was not in a position to arrange a suitable settlement of the debt and requested that the Government withdraw its demand for such repayment.

Now it is the Solicitor-General's case that the Defendant admitted in his letter the existence of the debt, and notes that he does not deny that it is still a valid debt; the Solicitor-General points out that the writ in this case was taken out on the 24th July, 1976 and submits that the Defendant's letter effectively takes the matter out of the original limitation period - pointing out that the writ was filed within one year of the Defendant's letter and thus well within one year of that letter. He then referred the Court to Halsbury's Laws of England 3rd Edition Vol. 24 at paragraph 593 in support of his contention. This paragraph reads:-

"No particular form required. An acknowledgment must be in writing and signed by the maker . . . . but, subject to these requirements, it need not be in any particular form. No promise to pay is now required. All that is necessary is that the debtor should recognize the existence of the debt or that the person who might rely on the statute should recognize the rights against himself. Whether the document is or is not an acknowledgment depends on what the document states. The construction of a document put forward as containing an acknowledgment is for the court alone . . . . In judging whether a document is a sufficient acknowledgment the court will look at the circumstances in which it was written, and will construe it in the way in which the writer intended it to be construed by the person to whom it is addressed."

The Solicitor-General submitted that the Defendant's letter speaks for itself. He said that in his view the bond, being a document under seal, is a specialty. In support of this contention he referred to Section 6 of the Limitation Ordinance.

Section 6 reads:-

"An action upon a specialty shall not be brought after the expiration of twelve years from the date on which the cause of action accrued: provided that this section shall not affect any action for which a shorter period of limitation is prescribed by this Ordinance."

and urged that such an action would only be statute barred after twelve years.

Mr. Barrow, on the other hand, submitted that the Defendant's letter was not in fact an acknowledgment of the debt. He took the view that far from acknowledging his indebtedness the Defendant had sought to point out that there was no justification for Government to insist on the payment of a debt which the Defendant alleged had already been discharged. He said that the Defendant had given cogent reasons why he was no longer indebted to the Government.

It was at this point that the Solicitor-General interjected to draw attention to paragraphs 399 and 401 in Volume 24 of Halsbury's Laws of England 3rd Edition and the cross reference to paragraph 663 in Volume 3 of Halsbury's Laws.

Mr. Barrow thereafter continued his submissions and said that whilst the Government were saying that the debt still existed the Defendant considered that this was not the real position and that it was:

He said that in the preamble to the Defendant's letter the writer had made it clear that he was merely acknowledging that Government was claiming such sum; the Defendant merely acknowledging that Government says that he (the Defendant) owes a debt. Mr. Barrow further submitted that in considering the Defendant's letter the Court ought to have great regard to the facts set out therein by the Defendant. It was Mr. Barrow's case that far from acknowledging the debt the Defendant was in fact repudiating the debt in his letter. He took the view that the debt could not be revived by way of an acknowledgment in terms of the Defendant's letter, and said that by virtue of S. 4(a) of the Limitation Ordinance the action was founded on a simple contract and could not be brought after the expiration of six years from the date on which the cause of action accrued.

Mr. Barrow next referred to S. 29(3) of the Limitation Ordinance, which reads:-

"Where any right of action has accrued to recover any debt or other liquidated pecuniary claim, . . . . .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."

Mr. Barrow took this section to mean that the right of cause of action begins on the date of the Defendant's breach of the bond. It was his case that the action had already become statute barred between 1969 and 1975 and any acknowledgment thereafter would not revive it and he submitted that this must be the intention of S. 29(3). He said that the cause of action was only kept alive until 1969.

It was his submission that the authorities quoted by the Solicitor-General did not show that the bond here was in fact a specialty and he thought that paragraph 399 at Volume 24 of Halsbury did not take the matter any further. He pointed out that paragraph 663 at Volume 3 of Halsbury does not state that a bond is in fact a specialty; he referred to the footnote (h) which contains a reference to the Limitation Act, 1939 in England; and said that bonds had been expressly dealt with there, but not here.

Mr. Barrow urged that the bond was founded on a simple contract and said that there was nothing before the Court to say that it was a specialty; and urged that thus the relevant period was six years and that in accepting that, the Defendant would be provided with a good defence.

The Solicitor-General in reply took the view that the Limitation Ordinance is in fact a repetition of the English Limitation Act, 1939. He then referred to paragraph 591 at Volume 24 of Halsbury which states:

"In a case where the effect of the expiration of the prescribed period of limitation is merely to bar the remedy and not the right, an acknowledgment or part payment may cause a right of action to accrue afresh, even though the acknowledgment or payment is made after the prescribed period of. limitation has expired . . . ."

and to footnote (h) which reads in part:

'.... (which in relation to debts and liquidated pecuniary claims restrict the person bound by acknowledgments and part payments made after the expiration of the limitation period, and accordingly implies that such acknowledgments and payments are otherwise effective) . . ."

This, the Solicitor-General said, means that impliedly the right of action is given after the period of limitation. He noted that the same proviso contained in the English Limitation Act, 1939 is to be found in our own Limitation Ordinance at S.29(3).

The Solicitor-General then referred to paragraph 590 at Volume 24 of Halsbury which reads:-

"Where any right of action has accrued to recover any debt or other liquidated pecuniary claim, . . . . and the person liable and accountable therefor acknowledges the claim or makes any payment in respect thereof, the right is deemed to have accrued on and not before the date of the acknowledgment or last payment . . . . "

and said that this must imply the revival of the debt, and said this was borne out by our S. 29 of the Limitation Ordinance. It was thus his case that there had been a fresh accrual of action here.

The Solicitor-General next referred to paragraph 399 at Volume 24 of Halsbury, which states:

"An action upon a specialty must not be brought after the expiration of twelve years from the date on which the cause of action accrued . . ."

and to footnote (g) which is a cross reference to Actions on Bonds in Volume 3 of Halsbury; the Solicitor-General taking the view that this confirmed what is said on this subject in Volume 24.

It was further urged by the Solicitor-General that this action was not in fact founded on a simple contract but was clearly a specialty.

I have now had the opportunity to consider these careful and detailed submissions and have come to the conclusion that the Solicitor-General is correct in his interpretation of the law on this subject. I am quite satisfied that the remedy by action on a bond is barred only after twelve years from the accrual of the right of action. I say this if only because that is the position in England as governed by the Limitation Act, 1939; and I am quite satisfied that the provisions of that Act are effectively mirrored in the Limitation Ordinance, Chapter 198 of the Laws of Belize, an Ordinance which passed into law in 1953.

I further find that the bond here is a document under seal and is, on the authorities that have been quoted to me, a specialty.

I further find that there has been here an acknowledgment of the debt by the Defendant in his letter of the 17th November, 1975 which has caused a right of action to accrue afresh. It therefore follows that the action is not, after all, statute barred, and may thus continue to be heard.

It will now be for the parties to apply to the Registrar for a suitable date for the continuation and determination of the Action.

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