Intaz v Singh [1997] FJHC 42; Hba0004j.96 (1 April 1997)

Fiji Islands - Intaz v Singh - Pacific Law Materials

IN THE HIGH COURT OF FIJI

(AT LABASA)

CIVIL APPEAL NO. HBA 4 OF 1996

BETWEEN:p class=MsoNormal align=center style="text-align: center; mer; margin-top: 1; margin-bottom: 1"> MOHAMMED INTAZ
(f/n Mohammed Jaffar)
Appellant

AND:

NIRBHAY SINGH
(f/n Jagarnath Singh)
Respondent

A.H.C.T. Gates for the Appellant
J. Singh for the Respondent

This is an appeal against Judgment entered against the Respondent (Plaintiff in ttion) by the Labasa Magistrgistrates Court (A. Kuver Esq) on 28 May 1996.

The Respondent sued on two promissory notes dated 10 and 25 1994 and amounting to $4000 and $2000 respectively. Two nowo notes were produced in the Magistrates Court as being the notes in question and were marked Exhibit 1 and Exhibit 2. The Respondent relied on the two notes but added that Mr. Amrit Sen, Barrister and Solicitor, principal of the Labasa firm of Maqbool and Company who had prepared them had arranged the loan. Both the Respondent and Mr. Sen gave evidence.

The Appellant's case was in marked contrast. He and his wife told the Court that in fact the two notes, despite their different dates had been prepared on the same day, 25 March. The Court was told that although the notes showed a total debt of $6000 free of interest the amount actually to be advanced was only $5000; the difference of $1000 represented concealed interest. The Appellant, while acknowledging having received the first $2000 told the Court that he had never received any part of the second amount of $3000 covered by the second note; although Mr. Sen had promised to pay the outstanding amount to him the next day he had failed to do so. According to the Appellant the whole transaction was a sham: the actual lender was not the Respondent at all but was Mr. Sen. Mr. Sen had told him that as he was a Barrister and Solicitor he was not allowed to lend money and that was why he was using the Respondent's name. The Respondent was not even present in Mr. Sen's office when the two notes were prepared.

Having heard and seen the evidence and considered the arguments advanced by counsel the Resident Magistrate found in favour of the Respondent. As appears from his Judgment he found the evidence and demeanour of the Appellant and his wife unconvincing and their reactions to the legal proceedings taken against them suspicious and damaging to their case. He described the Respondent's account of what had occurred as "much more credible" than that of the Appellant and his wife. He also referred to the two promissory notes which he described as "proper".

The Appellant's grounds of appeal (as slightly correctethe day of the hearing) are set out in full on pages 5 - 9 - 9 of the Record. The sixth ground is in effect a rehearsal of a preliminary application made on the first day of the trial by Mr. Gates who had asked the Resident Magistrate to disqualify himself from hearing the action. Mr. Gates' submission is and was that Mr. Sen being a central witness on a crucial matter of credibility and also being a prominent member of the very small Labasa bar who regularly appeared before the Resident Magistrate, the Resident Magistrate should, to avoid any apprehension of bias, have disqualified himself and handed the matter over to a magistrate from another Division.

Mr. Gates cited two Australian authorities, the first the Queen v Watson ex parte Armstrong [1976] HCA 39; 136 CLR 248 and the second Livesey v the New South Wales Bar Association [1983] HCA 17; 151 CLR 288. Examination of these authorities reveals that in both instances the presiding Court had previously expressed opinions relating to the credit of a party now before it. Such is not the case here and I do not find these particular authorities helpful.

Mr. Gates also cited R v Sussex JJ ex parte [1924] 1KB 256, the often referred to authority rity for the proposition per Hewart CJ that "it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done". In that case the clerk of the Court who retired with the Justices was related to the case in its civil aspect and accordingly the criminal conviction entered by the Justices was quashed even though it was not suggested that anything improper had actually occurred.

The whole qon of bias was reconsidered in R v Liverpool City JJ ex parte Topping [1983] 983] 1 WLR 119 and has been recently further expounded in Arab Monetary Fund v Hashim The Times 4 May 1993. From these two authorities the following two principles emerge:-

(i) the applicable test is this: would a reasonable and fair minded person sitting in Court and knowing all the relevant facts have a reasonable suspicion that a fair trial was not possible?; and

As has been seen, Mr. Gates did not posit any previously declared assessment relating to the credit of any of the witnesses and neither was it advanced that the Resident Magistrate had any connection with Mr. Sen other than as one of the two Resident Magistrates in the Northern Division, the Division in which Mr. Sen has the bulk of his practice.

In answer to Mr. Gates' submission Mr. Siuggested that if the Court determined that the Resident Magt Magistrate should have disqualified himself in these circumstances then the floodgates to such applications would be opened and the administration of justice, particularly in the regions would become well nigh impossible. I agree and would go further.

All judicial officers including Magistrates take oaths of office which commit honestly and impartially tlly to administer the law. At a time when allegations of incompetence and dishonesty are rife I believe it is important to assert the presumption that all judicial officers and in particular Magistrates honestly and fearlessly discharge the duties entrusted to them. In the absence of anything tangible to suggest the contrary this presumption should prevail: omnia praesumuntur rite esse acta.

While it is undoubtedly one of the drks of a fused profession that advocates also appear as witn witnesses such has always been the case in Fiji. Even if the profession were not fused, Fiji being a very small society many advocates would be related to some of the tribunals before which they appear either by blood of by marriage or by friendship. It is better if this sort of situation be avoided by, for example, having an independent witness present when a money lending transaction is taking place but if not avoided then, in the absence of additional grounds for suggesting bias, I would not consider the mere fact that a practitioner regularly appeared in front of a tribunal to be sufficient ground for that tribunal to disqualify itself from hearing the practitioners evidence. This ground fails.

Beforeidering the remaining grounds of appeal I think it is important to return to the promissoryssory notes themselves. As has been seen both the Appellant and his wife admitted, upon being shown Exhibits 1 & 2, that these were documents which the Appellant had signed in the presence of Mr. Sen. They both however denied that the top four lines of the document had existed when the promissory notes were signed and they also specifically denied (a) that the sums borrowed were borrowed from the Respondent and (b) that the second sum had been received at all.

The Resident Magistrate was not impressed with the assertion by the Appellant and his that the first four lines ones on the exhibits were not part of those exhibits when they were signed. Although it is technically possible for these lines to be inserted after the document had been signed such alteration is not easy to achieve especially, as pointed out by Mr. Sen, given the exhibits were originals and not photocopies.

What however does not seem to have been considered byCourt or by Counsel is the rule that parol evidence is gene generally inadmissible to contradict, vary or supplement the terms of a private agreement which is required by law to be reduced to writing (see generally Phipson on Evidence - 12th Edition - Chapter 24). Promissory Notes are required by Sections 88 (1) and 96 of the Bills of Exchange Act (Cap 227) to be in writing. In my view it was not open to the Appellant and his wife to deny either (a) or (b) above.

Grounds 1, 2, 3 & 4 all suggest that the Residagistrate failed correctly to evaluate the significance of e of particular aspects of the evidence adduced and particular aspects of arguments advanced. Perhaps the most basic skill required of a Resident Magistrate is the evaluation of facts and matters placed before him. Where a matter of obviously crucial importance is entirely overlooked or almost entirely disregarded it may be possible to detect error but the job of an appellate court is not to substitute its own evaluation of the facts for that of the court below. As it happens my own view is that the Resident Magistrate approached the four questions complained of in a sensible and balanced manner and I agree with his conclusions. But even if I thought I would have assessed these aspects of the case differently I should not be justified in interfering in the absence of palpable error. These four grounds fail.

The remaining ground of l - ground 5 - was in my view the strongest advanced. It was expounded on pages 3&4 of 4 of the most helpful written submissions filed by Mr. Gates. Under the provisions of Section 155 of the CPC (Cap 21) every Judgment must "contain the point or points for determination, the decision thereon and the reasons for the decision..." Mr. Gates submitted that this the Resident Magistrate had failed systematically to do. He enumerated six questions which he suggested the Resident Magistrate had failed properly to consider.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> While I find some force in Mr. Gates submissions and while I have some reservations about some of the Resident Magistrate's conclusions such as those dealing with the parties "shrewdness" or otherwise and their possession or lack of business acumen, these conclusions being, as conceded by Mr. Singh, largely unsupported by evidence, I do not think taking the Judgment as a whole that the conclusions reached or the manner of their reaching were either unreasoned or unreasonable. As already observed the admissibility of the evidence led by the Appellant and his wife and directed to the first four questions enumerated by Mr. Gates was extremely doubtful. The promissory notes, Exhibits 1&2, once acknowledged to have been signed by the Appellant, largely spoke for themselves.

It has been my experience over the last 18 years of visiting Labasa both as a Residagistrate and as a Judge thge that a fair amount of "under the counter" money lending takes place in breach both of the Moneylenders Act(Cap 234) and the Bills of Exchange Act. Having read the record of the proceedings in the Magistrates Court in this case I think it probable that the Plaintiff's case as presented amounted to something less than the whole truth. Whether or not that was so was however not the question which called for judgment by the Resident Magistrate. The question before him was whether the Respondent had proved his case as pleaded on the balance of probabilities. I am satisfied that the Resident Magistrate answered that question correctly and accordingly the appeal fails and is dismissed.

ass=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> M.D. ScottJUDGE

1 April 1997

hba0004j.96