Sequestrated shop tenant refused permission for Court of Session appeal over prescribed fixture sale dispute

About this case:

• Citation:
  [2026] SAC (Civ) 36
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Gillian A Wade KC

Saul Mwamba sought payment from his landlords Muhammad and Najma Anees in respect of the sale of the fixtures and fittings from his shop, which had been appropriated and sold following his sequestration. The sheriff granted decree of absolvitor on 7 April 2025 on the basis that the appellant’s claim had prescribed, which was later upheld by the Sheriff Appeal Court.

The application was considered by Sheriff Principal Gillian Wade KC of the Sheriff Appeal Court, with all parties representing themselves.

Ignored written submissions

The respondents had leased shop premises in Methil, Fife, to the appellant, who was later sequestrated on 30 July 2016. It was not disputed that on 18 August 2016 an agent acting for the appellant’s trustee in sequestration attended at the shop premises and met with the first respondent without the appellant present. An agreement was entered into whereby the appellant’s lease was terminated and the respondents took over the trustee’s interest in everything within the premises, including the stock and the fixtures and fittings.

Although the appellant accepted that his interest in the shop premises had passed from his trustee in sequestration to the respondents, he disputed that the agreement extended to the fixtures and fittings, and claimed payment from the respondents in respect of their sale. His proposed grounds of appeal were that the SAC had ignored his written submissions addressing the issue of prescription and ignored evidence relevant to determination of the prescriptive period, including the terms of the lease agreement and an invoice referring to the sale of items from the shot.

At an earlier procedural hearing, it became clear that while the appellant sought to bring the interlocutor of 7 April 2025 under review, he was primarily concerned with an earlier interlocutor of 1 April 2025 in terms of which a different sheriff had refused his motion for decree by default. He was granted a sist to adjust the grounds of appeal, which became focussed on arguments about the defender’s identity.

Seeking a second appeal

In her decision, Sheriff Principal Wade began by noting: “The difficulty for the appellant was that the adjusted grounds of appeal no longer challenged the interlocutor of 7 April 2025 at all. On one view that meant that there was no mechanism by which he could even challenge the decision of 1 April 2025. However as it had been made clear to me at the procedural hearing that this decision was the focus of his criticism and as the appellant is a party litigant, I afforded him a degree of latitude in an effort to explain to him the reasons why his appeal was without merit.”

She continued: “What the appellant seeks to do now is to advance arguments which were not legitimately before this court on appeal and to invite the court to consider ‘evidence’ in support of his position. In essence the appellant is seeking a second appeal albeit on different grounds from that which were before this court.”

Examining the merits of the appellant’s case, the Sheriff Principal said: “In short, the respondents’ averments at Answer 4 are that subsequent to the appellant’s sequestration the respondents [entered into the 2016 agreement] is not met with even a general denial. Similarly the averments at Answer 7, which include averments about the start date for the prescriptive period in support of the respondents’ plea in law, are not denied and must therefore be deemed admitted.”

She went on to say: “Any obligation to pay damages arose as a result of actions occurring on 18 August 2016. That right, if it existed at all, vested in the trustee at that date. As this was part of the estate vested in the trustee, it was for the trustee to determine whether to raise an action. The appellant could have sought consent from the trustee to raise an action but that decision remained one for the trustee. The right to payment of any damages recovered would also have vested in the trustee. The trustee allowed any claim to prescribe prior to the appellant being discharged. In other words, any obligation that subsisted was for the trustee to do with as they pleased as the trustee stood in the shoes of the appellant for the entirety of the relevant prescriptive period.”

Sheriff Principal Wade concluded on the additional invoice evidence: “At its highest it could evidence that a third-party company acquired the stock. It does not assist the appellant for the purposes of the appeal. Because it was neither referred to in its full terms nor incorporated for the sake of brevity and lodged, the respondents’ position in relation to it is not known and they could not lead any evidence about it if the appellant were to attempt to refer to it at proof. I considered it irrelevant to the grounds of appeal which were before the Sheriff Appeal Court, focussed as they were on the identity of the landlord and defenders and the decision of 1 April 2025.”

Permission to appeal was therefore refused.