Prasad v Sundar [2008] FJHC 220; HBA9.2008 (12 September 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CIVIL APPEAL NO.: HBA 9 OF 2008

BETWEEN:

AMBIKA PRASAD f/n Shiu Prasad
Appellant

AND:

RAM SUNDAR f/n Bhaggan
Respondent

Mr. Ram Chand for Appellant
Mr. N. Lajendra for Respondent

Date of Hearing: 20th August 2008
Date of Judgment: 12th September 2008

JUDGMENT
(non qualified persons representing litigants)

This is an appeal from the Nausori Magistrate’s Court where the learned Magistrate entered judgment against the appellant in the sum of $11,000.00 plus $2,383.00 interest and cost of $48.13. Interest was not prayed for in the statement of claim.

This action had one nagging aspect to it. The writ of summons and the statement of claim were signed by Sambhu Lal Sharma, on the strength of a power of attorney given by the plaintiff to him on 20th September 2006. It bears the registration number 46097 – p. 113 of the records. It is a standard short form of power of attorney. However a clause has been added which states "my attorney shall also be my legal representative in any legal action in which I may instruct him to".

In addition to filing documents and signing on them, Sambhu Lal Sharma testified in the case again on the strength of the power of attorney. He was allowed to lead evidence of witnesses; cross examine witnesses and to make submissions. In short he acted very much like a duly admitted legal practitioner with proper practicing certificate. He showed his address as Sharma & Associates, Vunimono, Nausori. Hence Sambhu Lal Sharma became in effect a witness and the legal representative of the respondent in these actions, which would be an envy of any counsel.

What was the basis for Sharma’s appearance?

Obviously he is relying on the power of attorney. In his testimony he stated that he equated himself as a lawyer. Order 19 of the Magistrate Court Rules gives Magistrate discretion to permit an authorized person to appear for a plaintiff or defendant who is not represented by a barrister and solicitor. However, it must be in a matter pending before the court. A civil matter only becomes ‘pending in court’ once a writ of summons is filed in court not before that. It does not permit an authorized person to sign and file an action for such person. Secondly such a party must for some good cause be unable to attend the court in person. Here the plaintiff attended the court in person and also testified so this rule could hardly be invoked. Hence one has to look at the common law to seek assistance.

In Fiji Islands Revenue and Customs Authority v. Manohan Aluminium and Glass (Fiji) Limited – HBC 493 of 2000 Justice Scott stated that the right or otherwise to representation by a legal practitioner and the right, if any, of audience of non legal practitioners is not entirely straightforward. However having looked at some authorities he concluded that a court has an inherent jurisdiction to control the representation of persons appearing before it. His conclusion, with which I agree, was that "for the efficient, honest and fair disposal of the business of the court, it is necessary that rights of audience be restricted, save in the most exceptional circumstances, to those who are either representing themselves or those who hold practicing certificates".

The position of power of attorney holder was considered at length by Justice Scott in Mosese Masirewa & Another v. Colonial Mutual Life Insurance Company Limited & Culden Kamea – HBC 273 of 2002. He was of the view that powers of attorneys granted for the purposes of complying with the requirements of the Property Law Act or the Land Transfer Act are not capable of being used to secure a right of audience in courts. There is a difference between attorney at law, who is authorized to practice law and an attorney in fact who is a private attorney authorized by another to do an act in the place and stead for some particular purpose as to do a particular act or for transaction of business in general, not of a legal character. Justice Scott then went on to summarise the position of non lawyers appearing for persons as follows:

"(1) A person whose repeated actions give rise to the reasonable conclusion that he is practising law must hold a current practicing certificate.

(2) A person who practices law but does not hold a current practicing certificate commits a criminal offence (Legal Practitioners Act – Section 52(2)).

(3) Only the holder of a current practicing certificate has a right of audience in the courts to appear on behalf of someone else.

(4) Any litigant in person may appear in the courts on his own behalf.

(5) Save is exceptional circumstances and with the leave of the court, a person who does not hold a practicing certificate may not appear on behalf of someone else in the courts."

The position of a counsel also acting as a witness was considered by Gates J. (now the Acting Chief Justice) in The State v. Khan & Singh – HAM 34 of 2003. He was of the view that an advocate should not act in a case where he/she is a witness. It is a rule of long standing. Further an advocate is an officer of the court and he is expected to maintain a professional distance from the fray.

In short in this case Sambhu Lal Maharaj without obtaining leave of the court acted as a legal representative and a witness in the same case. Even though superior courts are reluctant to interfere with procedural conduct of lower courts, this was obviously irregular and such practice ought to be vigilantly discouraged. I also note from the records that counsel for the defendant did not at any stage took exception to Sambhu Lal Maharaj acting for the respondent. Had he taken objection, I would have excluded his evidence altogether. Had Counsels themselves need to be more vigilant because whereas a court has a measure of control over the conduct of counsels who are officers of the court with its attendant duties of good faith, the same cannot be said of lay representatives.

I had digressed as the subject matter was of same importance in the overall context of these proceedings and further Mr. Chand also showed at least one other action where Mr. Sharma has signed a writ of summons. Mr. Sharma it appears is opening himself to possible prosecution under the Legal Practitioners Act.

Mr. Chand filed many grounds of appeal but he compressed them together on appeal. His first compressed ground was that the learned Magistrate relied on hearsay evidence. The respondent is Ram Sundar. His total evidence was as follows:

"I know the defendant. I stayed with him in 2005. He took money from him (meaning me) on loan. He said will return the money. I gave the money in a piece of paper and told him to return the money."

To a question by court he said:

"Not educated. Don’t know how much?"

The respondent therefore did not tell the court the amount he lent, when he lent the money except for the year. He did not say whether the money was given once or by instalments. He did not say anything about giving $1,000.00 each to two daughters of the appellant during their weddings.

Sambhu Lal Sharma testified. According to him he was telling the court what "his client" told him. His evidence in chief is more like a submission. For sake of completeness I produce it here:

"Plaintiff is retired taxi proprietor and due to his age can’t read and write. Kept money in ANZ Bank and Bank of Baroda. Sometimes in 2005 plaintiff stayed with defendant temporarily. Account kept at ANZ was 103244 kept by plaintiff – Exhibit 1. Another Account 100174646 at ANZ – Exhibit 2. On 31/3/05 defendant took plaintiff to his bank and requested him to put thumbprint on withdrawal form and withdraw $3,000.00. Again on 10/05/05 defendant again took defendant to ANZ and withdraw $2,000.00. Tender statement as Exhibit 3. Again on 14/11/05 defendant again took plaintiff to ANZ, asked him to put thumbprint and withdraw $4,000. Tender Exhibit 4. Total withdrawal was $9,000.00. Defendant also persuaded plaint6iff to donate $1,000.00 each to his 2 daughters wedding which the plaintiff gave. The defendant then told plaintiff to leave his house and seek other shelter. Plaintiff made several requests to defendant to returning his money. Defendant has refused to so. Plaintiff is an old man taken advantaged by opportunity. All the time money taken by defendant he promised to give money when needed. To date money not repaid. Seek relief in sum of $11,000.00 for plaintiff plus cost."

Mr. Chand submitted that Sambhu Lal’s evidence is all hearsay and so is the evidence of PW5 Anjila Devi, the respondent’s daughter. Anjila Devi testified on the basis of what her father told her.

The Civil Evidence Act 2000 brought about a fundamental change in reception of evidence in civil proceedings. It allows for reception of hearsay evidence.

The weight the court attaches to such evidence is considered by factors contained in Section 6 which provides:

"(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c) whether the evidence involves multiple hearsay;

(d) whether any person involved had any motive to conceal or misrepresent matters;

(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight."

These factors are guidelines only not rules engraved in stone. In the present case the plaintiff appeared but he was not cross examined about details of transaction.

The uncontested evidence before the learned Magistrate was that there were three withdrawals of moneys from the respondent’s account at ANZ Bank, Nausori, namely:

$3,000.00 on 31st March 2005

$2,000.00 on 10th May 2005

$4,000.00 on 14th November 2005

The last withdrawal had the words "use money for wedding" written on back of the withdrawal slip.

The appellant’s two daughters got married on 17th November 2005 and 28th November 2005 thereby providing a close proximity between the time of final withdrawal of $4,000.00 and the weddings. There was undisputed evidence from the respondent that he lived with the appellant in 2005. His daughter also confirmed that. The learned Magistrate also took this as an accepted fact. Further the appellant had told the court that he paid a sum of $2,500.00 for his daughter’s education in 2005 and went on to admit that on 7th July 2005 he paid $1,000.00 cash to NZPTC and $500.00 on 26th December 2005. The other cash payments were in 2006 and 2007 so they are after the event. The learned Magistrate in her judgment stated that the appellant paid $5,000.00 as school fees for his daughter. He did admit that at one stage of cross examination but the subsequent answers suggest he paid only $2,000.00.

Additionally the appellant had admitted spending $9,000.00 to $10,000.00 on the two daughters’ weddings in November. The learned Magistrate had evidence of earnings of the appellant and his wife of $117.00 per week and $45.50 per week respectively.

The appellant had told the learned Magistrate that money for the weddings came from relatives in Australia. However he produced no documentary evidence to confirm the claims or any other evidence of withdrawal of money from a Bank for wedding expenses.

The learned Magistrate concluded that with the income which the appellant had it would be difficult for him to organize two weddings of such magnitude and pay for a child’s educational expenses in such a short space of time. This was not an unreasonable conclusion or inference particularly when she found that the appellant’s evidence regarding the source of funds for his daughter’s education inconsistent and unreliable.

Accordingly, the learned Magistrate having seen the witnesses and versed with above facts was entitled to come to the conclusion that the true intent of these payments of $9,000.00 was a loan.

Gifts:

The respondent’s case further was that he gave $1,000.00 each to each of the daughter’s during their weddings. These two payments were made to the daughters not the appellant. Hence the first issue which should have been considered is why was the respondent claiming from the appellant if money was given to the two daughters.

Further all the evidence there is shows clearly that the money was given to the daughters during the wedding ceremony. The officiating priest Sambhu Datt Maharaj stated there were about 300 people present when the money was given. How could the appellant prevail upon the respondent to give $1,000.00 to each daughter a week apart in presence of 300 people? All the evidence shows payment of these was a gift not a loan. Even the respondent’s own witness Sambhu Lal Sharma stated it was a gift.

Accordingly, it was not open to the learned Magistrate to conclude that the $2,000.00 was taken by force or undue persuasion. There are serious allegations and one would need convincing and clear evidence to reach that conclusion.

Accordingly, the judgment of the learned Magistrate is varied so the amounts given as gifts and interest are not allowed. Hence the judgment is reduced to $9,000.00 in favour of the respondent together with costs of $48.13. I do not allow costs as both parties have succeeded partially.

Final Order:

The appeal is partly allowed. The order of the learned Magistrate is varied so there shall be judgment in favour of the respondent against the appellant in the sum of $9,000.00 together with costs in the sum of $48.13.

[Jiten Singh]
JUDGE

At Suva
12th September 2008