Janif v Bhai [2005] FJHC 269; HBC0445.2003S (9 June 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0445 OF 2003

BETWEEN:

MOHAMMED JANIF
Plaintiff

AND:

JAI RAM BHAI
Defendant

Counsel: Mr. Naco – for Plaintiff
Ms Devi – for Defendant

Date of Hearing & Ruling: 9th June, 2005

EX TEMPORE RULING

This is an application made by the plaintiff seeking judgment of the sum of $4,000.00 based on alleged admissions by the defendant concerning liability for that sum and an order that an audio tape and transcript be referred to the Director of Public Prosecutions for investigation.

Background

The background to this matter is this. The defendant who has a range of occupations also chose to pursue the business of an immigration consultant. It is alleged by the plaintiff that in the course of that business the defendant received large sums of money from the plaintiff and his family to process visa applications for Australia. It is alleged that as part payment the sum of $4,000.00 was made. The plaintiff points to admissions from the defendant contained in the defendant’s affidavit of the 5th of August 2004.

In combination with these admissions searches conducted of Australian Embassy Records indicated that despite these funds being paid and assurances made by the defendant about their application no visa application has been lodged with the Australian Embassy.

Decision

Having heard counsel for the plaintiff, Mr. Naco and counsel for the defendant. Ms Devi it became clear that there was no basis for this application to be made.

While I have a considerable sympathy for the plaintiff’s position nonetheless I am unable to convert that sympathy into a practical legal remedy as there is simply not a proper foundation at law for the application to be granted either as moved or as varied to include in effect a part summary judgment.

Further counsel was unable to persuade me that I have any powers or that it would be appropriate for me to exercise my inherent jurisdiction to refer the so called tape and transcript on to the Director of Public Prosecutions for investigation.

There is nothing to stop the plaintiff from making a police complaint or referring the matter on to the Director of Public Prosecutions for investigation. In that sense there is nothing that my declaration or order would add to an ordinary citizen’s rights to complain to the police about any fraudulent activity.

At the conclusion of the hearing I asked counsel whether they required a ruling in writing. They indicated that they were satisfied for me to simply record my decision to dismiss the application and notice of motion. The plaintiff sought some time within which he might amend his statement of claim and bearing in mind the overall circumstances of the case I am persuaded to do so.

Regrettably this application was not properly bought. It was based upon insufficient and adequate pleadings. It had no prospect of success at law. For those reasons I am forced to adopt the position that a modest costs order is required. In dismissing the motion I accordingly order that the unsuccessful plaintiff pay the defendant the sum of $300.00 in costs. That payment to be made on or before the 30th of June, 2005.

I further direct that the plaintiff is to have until the 30th of June 2005 to file an amended statement of claim. The matter can then take its usual course. However, of my own motion, I have decided to refer the defendant’s last affidavit to the Commissioner of Police with my request, and I put it no higher than that, that an investigation be conducted into the deponent’s statement contained in paragraph 4 of his affidavit of the 7th of June 2005 that the sum of $4,000.00 paid to him by the defendant as an initial payment has been paid to the Australian High Commission.

If it transpires as a result of that enquiry that the money was paid to the Australian High Commission then this will have the added advantage of there being a receipt and it will dispose of that portion of the substantive claim. If, however, it transpires as a result of the police enquiry that the sum of $4,000.00 has not been paid by the defendant to the Australian High Commission then there is clearly a decision for the Director of Public Prosecutions to make whether or not to commence proceedings against the deponent.

Gerard Winter
JUDGE

At Suva
9th June, 2005