J.B. Metcalfe Walton v Hyam Margolis (Civil Appeal Cause 29 of 1939) [1939] ZMHCNR 20 (31 December 1939)

[Vol. II J. B . M ETCALFE W ALTON v. HYAM M ARGOLIS. Civil A ppeal Cause No. 29 of 1939. Statute of Limitations—meaning of expression “ beyond the seas ” —defen­ dant served with summons out of the jurisdiction absents himself at his peril. A cause o f action arose against the respondent in June, 1933, at which time the respondent was not within Northern Rhodesia. A summons was issued on the 25th May, 1939, and was served on the respondent in Johannesburg on the 4th August, 1939. The respon­ dent pleaded, inter alia, that the debt was statute barred. The question also arose as to whether the respondent was within the jurisdiction o f the Court. The lower Court held that the respondent was not “ beyond the seas ” and that consequently the Statute o f Limitations applied and that the debt was statute barred. On appeal the High Court held that the meaning of “ beyond the seas ” in the Statute o f Limitations means “ without the territories ” and that consequently the period o f limitation did not commence to run until such time as the respondent came within the jurisdiction It was further held that when once the respondent o f the Court. had been served with the summons if he absented himself at the trial he did so at his peril. L aw , C. J .: For the purpose o f this appeal it is agreed that the cause o f action arose in June, 1933, at which time the defendant was not within the Territory o f Northern Rhodesia. The action is one for the payment o f £88 1s. 2d. for services rendered and for monies paid on behalf o f the defendant. The defendant pleaded that the claim was not maintainable against him being barred by limitation under the provisions o f 4 Anne Cap. 6 (Section 19). The language o f that section is substantially as follows, in so far as it affects this case: “ I f any person against whom there is any (such) cause o f action, then such person which is entitled to any such action shall be at liberty to bring the said action against such person after their return from beyond the seas, within such times as are respec­ tively lim ited for the bringing o f the said other Act made in the 21 Jac. I.” The important words therein are italicised. On reference to the Statute o f 21 Jac. I (Cap. 16, section 3) it is seen that the period o f limitation for bringing this action is six years. In section 7 o f that statute a similar provision is to be found as in 4 Anne Cap. 16, section 19. In both sections the words “ after their return from beyond the seas ” appear. In an action for trover under the James Statute, Ruckmabaye v. Lulloobhoy Mottichund, 8 Moor’s Privy Vol. II] C ouncil R eports, p. 4 (14 E . R ., p. 2), those words were held to be synony­ m ous w ith the words “ w ithout the territories ” and that the statute w as n o bar to the action. I t is difficult to appreciate how any other judicial interpretation can b e placed on the same words which appear in a sim ilar sense in 4 Anne C ap. 16, section 19. Consequently, I would hold that the words “ beyond the seas ” in the present case mean “ w ithout the territories ” o f Northern R hodesia. It follow s, therefore, that n ot only is this action not barred b y lim itation but also that lim itation has not begun to run against the plain tiff because the defendant has not yet returned from beyond the seas. The fa ct, however, that a defendant is “ w ithout the territories ” does not save him from being sued. W ith regard to the question o f jurisdiction, th e learned Magistrate appears to be under the im pression that th e defendant is within the jurisdiction because an action has been instituted against him. This does n ot necessarily follow . In som e instances a defendant m ay not be subject to the jurisdiction o f a Court till he has subm itted to its juris­ diction. (See H arris v . Taylor, 1915, 2 K . B ., p . 580). B ut, if duly served, he absents him self at his ow n risk. For the foregoing reasons the appeal is allow ed w ith costs thereof in any event, and the case rem itted to the Low er C ourt fo r disposal on any other issues which arise for determ ination betw een th e parties.