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Singh v Kumar [2002] FJHC 36; Hba0022.2001 (23 January 2002)

IN THE HIGH COURT OF FIJI
(AT SUVA)


CIVIL APPEAL NO. HBA 22 OF 2001S
(NAUSORI MAGISTRATES’ COURT CIVIL ACTION NO. 97 OF 1999)


Between:


ABHAY KUMAR SINGH
Appellant


and


LALITA KUMAR
Respondent


Appellant in person
Ms. J. Narayan for the Respondent


JUDGMENT


The Appellant is a barrister and solicitor who formerly practised under the name of G.P. Shankar & Co., Nausori. He gave evidence to the Nausori Magistrates Court (J. Singh Esq. R.M.) that on 7 January 1997 one G. Prasad gave instruction to him to act for him in an estate matter. A copy of the instructions was produced (p. 29 of the record). The instructions are somewhat ambiguous as the “Fees Quoted” are $6000 (upon which a deposit of $20 was paid) but the “agreed” figure was stated to be “as will be in the final bill”. The Appellant offered the Resident Magistrate an explanation of the meaning of these instructions which was (page 60 of the record) that:


“I quoted my fees at $6000 as total fees. He agreed to pay whatever I billed him but it was not to exceed $6,000. He paid $20.00 as deposit. He signed instruction sheet”.


It will be noted that this explanation envisages that the instructions were to be followed by at least one bill.


In November 1998 and after G. Prasad died his widow, the Defendant in the Magistrates’ Court (Respondent in this Court) received a bill from G.P. Shankar and Co. It amounted to $3,065 (pages 36 & 37 of the record). In December 1998 the Defendant complained to the Fiji Law Society. She asserted that the proper amount due was only $1,700 of which only $80 remained unpaid.


The Defendant’s case before the Magistrate was that on a date which she could not recall but subsequent to May 1997 she was given a bill for the work done by G.P. Shankar & Co. A copy of this bill is to be found at page 42 of the record. It shows an initial fee of $900 followed by a further $800, a payment of $1,500 and a balance due of $200.


The Appellant’s case in the Magistrates’ Court was that this bill had been prepared by his secretary without his authority. She was subsequently dismissed. Mr. Singh suggested that the bill should be disregarded. He did not call the former secretary to testify and did not challenge the Defendant’s assertion that the bill was given to her by Mr. Singh’s wife in a sealed envelope at the offices of G.P. Shankar & Co. Furthermore, it was not disputed that the Appellant’s wife later deleted a 15% interest penalty term which was included at the foot of the bill after representations were made to her by the Defendant who went back to the Appellant’s office on a later date.


After suggesting that the second bill should be regarded as void, the Appellant relied on the fact of G. Prasad’s signature on the instructions. When confronted with this signature the Defendant stated that it was not her late husband’s. In the absence of any expert evidence the Resident Magistrate declined to attempt a comparison of signatures himself. He found that the Appellant had failed to establish on the balance of probabilities that the signature was that of Mr. Prasad.


This finding by the Resident Magistrate gives rise to the first ground of appeal. The Appellant argued that since his evidence was that G. Prasad had signed the instructions it must follow that a failure to find that the signature was that of G. Prasad entailed the conclusion that the Appellant had acted fraudulently, obviously a very serious matter for a person in the Appellant’s position. However the Appellant pointed out that fraud had not been pleaded as it should have been if the Defendant was to rely on such an allegation. Therefore, it was argued, the Resident Magistrate had wrongly failed to dismiss that part of the Defendant’s case.


With respect, I do not agree. In the first place the Defendant did not carry the onus of proof and in the second place a finding by the Resident Magistrate that the authenticity of the signature had not been proved does not lead inexorably to the conclusion that the Appellant acted fraudulently; he may, for example, simply have been mistaken.


The Appellant’s second principal ground of appeal was to the effect that the Resident Magistrate erred in holding that the Appellant was bound by the second bill, a bill which he averred had been prepared by his typist. Mr. Singh cited a number of authorities as well as Order XXXVII, rule 1 of the Magistrates’ Courts Rules in support of the proposition that a bill of costs must be signed either by the practitioner himself or a partner before a suit for the recovery of such costs may be commenced.


Once again, with respect, I have to differ. This is not a case of a practitioner’s claim being liable to dismissal because the bill was not signed as required by law, it is a case where a client is propounding a bill handed to her at her legal adviser’s office by her legal adviser’s wife and made out on the legal adviser’s headed note paper. As I see it, the fact that the bill was prepared by an employee who happened to be a typist cannot affect the issue. In my opinion the Defendant had every ground for accepting the second bill to be that of the Appellant. Even though her evidence was that she was unaware of any instructions signed by her former husband in my view it would have made little difference even had she known of that document. As already pointed out the first document was ambiguous and I do not find the bill to be inconsistent with it.


The Resident Magistrate who tried this case did not have an enviable task. It is never pleasant to have to judge a fellow practitioner. In my opinion the Appellant was fortunate to come before such a respected and experienced and scrupulously fair tribunal who, while rejecting the bulk of the Appellant’s claim nevertheless awarded him a further sum of $1,080. I suspect that the real source of this claim was a muddle or misunderstanding in the handling of the Defendant’s account. There is no evidence of fraud but I accept the Resident Magistrate’s conclusion that the Appellant’s claim could, only to a very limited degree, be upheld.


The appeal fails and is dismissed.


M.D. Scott
Judge


23 January 2002


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