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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Action No. HBC 118 of 2007
BETWEEN:
RAM SEWAK
Plaintiff
AND:
RAJENDRA NARAYAN
Defendant
Coram : Hickie, J
Dates of Hearing: 24 July 2008
Counsel: Mr S Parshotam with Mr S Singh for the Plaintiff
Ms R Devan with Mr A Pal for the Defendants
Date of Decision: 22 October 2008
JUDGMENT
A. BACKGROUND
1. The case in a nutshell
[1] The Plaintiff in this matter is seeking return of an alleged sum of $24,535.42 plus interest he spent in respect of the failed transfer of a taxi business which he allegedly attempted to finalise between May and October 2006. The Defendant, on the other hand, alleges that the sum paid was only $4,100 which the Plaintiff earned back by way of running the taxi business for some 22 weeks.
2. Possible taxation implications
[2] The problem with the Plaintiff’s claim is that although he says that he purchased the taxi for $24,000, he signed an alleged agreement prepared on behalf of the Defendant that the sale was for only $4,100 and, indeed, such amount was a debt which the Defendant owed to the Plaintiff. According to the Plaintiff, this agreement was prepared at the behest of the Defendant to avoid paying tax.
[3] By contrast the Defendant says the amount paid by the Plaintiff was only $4,100 in total by way of two cash instalments of $2,000 and $2,100 respectively. The Defendant does not deny, however, the existence of the agreement prepared on his behalf that the transfer of the car was for $4,100 paid by way (not of cash) but by the Plaintiff foregoing an outstanding debt owed by the Defendant to the Plaintiff and in return the Defendant transferred to him the said vehicle.
[4] In other words, both of the parties may have been allegedly complicit in a deal whose aim was:
(a) if the evidence of the Plaintiff is to be accepted, to allow the Defendant not to declare to the Fiji Islands Revenue and Customs Authority (FIRCA) either receipt of the sum $4,100 or $24,000; or
(b) if the evidence of the Defendant is to be accepted, to allow the Plaintiff to earn back the sum he paid of $4,100 by way of running the taxi business for some 22 weeks. As to what amount he earned and whether any was declared to FIRCA is unknown; and
(c) on both the evidence of the Plaintiff and the Defendant which allowed the Plaintiff to drive for some period between 12 May and October 2006 without a taxi licence from the LTA.
[5] The Court indicated to Counsel for the parties prior to the commencement of the hearing of this matter that it was concerned at the allegations which had been made in the pleadings and if the hearing proceeded from which the Court made certain findings then it might be that the case would need to be referred elsewhere. Indeed, the Court took a short adjournment prior to evidence being taken to allow Counsel to clarify their instructions with their respective clients. After resuming the Bench, the Court was advised by Counsel for the Plaintiff that “We have spoken to our client and he understands the implications and still wishes to proceed”. Similarly, Counsel for the Defendant advised that “Our client maintains that there was no intention on his part to defraud and I think he is sticking to his side of the story.” That being the case, if at the end of this judgment it is decided to refer a copy of it to the appropriate authorities, the parties should not complain that they were not warned as to the consequences of any adverse findings made against either or both of them arising from the matter going to final hearing and, in particular, their respective sworn evidence.
[6] In this regard, the Court would refer the parties to the “Small/Medium Audit Compliance” Section of FIRCA and, in particular, the “Taxi Project”, the purpose of which the FIRCA web site has explained as follows:
“The Taxi Project is a joint venture between the Land Transport Authority (LTA) and the Fiji Islands Revenue and Customs Authority (FIRCA). The project commenced in October 2005 initially with a data survey to analyse the taxi industry as a whole whereby the terms of reference and memorandum of understanding was drawn up. The survey was finalised in February 2006 and the project proper was implemented in March 2006.
The main objective of the project was to ensure proper registration of all taxi proprietors for income tax purposes and bring about 100% compliance in terms of lodgement [sic] of income tax returns.
The control mechanism in place for taxi permit holders is that they need to lodge all their outstanding taxi returns for the years ending 31 st December, 2003, 2004, 2005 and annually thereafter by 31 st March each year with FIRCA before expired permits are renewed by LTA. Non-registered taxi permit holders will need to register with FIRCA for a Tax Identification Number (TIN) and lodge all outstanding income tax returns before the provisional approval letter from LTA is stamped.”
(See FIRCA, http://www.frca.org.fj/docs/firca/firca-risk_compliance.htm)
[7] The only difference between what was in the written agreement (which both parties agreed in evidence set out that the Defendant owed the Plaintiff a non-existent debt of $4,100) and what actually occurred, is that the Plaintiff claims that he paid to the Defendant $24,000 (by way of two instalments of $2,000 and $22,000 respectively) whilst the Defendant claims it was only $4,100 (by way of two instalments of $2,000 and $2,100 respectively). In any event, both agree two amounts were paid in cash by the Plaintiff to the Defendant. As to whether the Defendant declared the first payment of $2,000 and the second payment (of either $2,100 or $22,000) to FIRCA is unknown. To be fair, when the Defendant was asked about the tax office during his evidence in re-examination, his responses were:
“Q: Do you have any issues with the Taxation department?
A: No
Q: Have you ever been accused of tax evasion by the Taxation Department?
A: No”
[8] As to whether a copy of this judgment is referred to other authorities will be an issue to be considered at the end of this judgment.
B. THE RESPECTIVE CASES
1. The Plaintiff’s case
[9] The Plaintiff’s evidence (in summary) which was given through an interpreter was:
(a) That he is 56 years of age, with class 4 education and worked as a cane cutter prior to having been a taxi driver for 12 years;
(b) That he saw an advertisement in the Fiji Times for the sale of a taxi;
(c) That the agreed sale price was $24,000 which he financed through a brother;
(d) That on 5 May 2006 he paid an initial $2,000 to the Defendant to have the car converted from automatic to manual;
(e) That on Friday, 12 May 2006, he was telephoned by the Defendant to come to his home in Waila at Lal Singh Road, Nausori
(f) That his wife, TARA WATI, his sister, GYAN WATI, and his son, VINAY VISHAL, attended with him at the Defendant’s home at approximately midday on 12 May 2006;
(g) That the $22,000 was in bundles of $50 notes held by his wife;
(h) That present at the Defendant’s home was his sister and his daughter;
(i) That the Defendant asked him to witness some documents which said that the Defendant owed the Plaintiff a debt of $4,100 and to satisfy that debt the Defendant was transferring ownership of the car to the Plaintiff;
(j) That the agreement that was drawn up was executed by the Plaintiff, the defendant and two witnesses;
(k) That after payment and signing the document, the Defendant and Plaintiff went to the local Town Council for the plaintiff to pay the taxi base fee;
(l) That the Defendant told the Plaintiff it was “your job” to arrange the transfer of the permit with the LTA as “my work is clear now”;
(m) That the Plaintiff lodged the transfer application with the LTA with supporting documentation and paid the transfer fee;
(n) That for unknown reasons the LTA transfer did not take place and when the Plaintiff tried to clarify with the Defendant what was happening he was first told to “try again in 5 months” and then later “that he needs $8,000 more”;
(o) When the Plaintiff reported the matter to the Police they advised that it was a civil dispute and in the meantime the Defendant arranged to have the taxi towed away from where the Plaintiff had it parked
[10] The evidence of the Plaintiff’s sister, GYAN WATI, (in summary) was:
(a) That on 12 May 2006, she went with her brother and her sister-in-law, as her brother was buying a car;
(b) They arrived at a house in Wati at about 12 o’clock;
(c) That also present was the Defendant and his wife who counted the payment of $22,000 in front of them;
(d) That she was asked to witness a document which she did and it was explained to her that the reason $4,000 was listed in the document instead of $22,000 was that the Defendant “he said that ‘I’m taking oath of my son, I won’t betray you people’”;
[11] The evidence of the Plaintiff’s wife, TARA WATI, (in summary) was:
(a) That on 12 May 2006 she went with her husband, her son and her sister-in-law to pay the Defendant money for the purchase of a car;
(b) That she identified the Defendant in Court;
(c) That the amount paid to the Defendant was $22,000 which she had held in her purse after they had earlier withdrawn it from the bank the day before on 11 May 2006;
(d) That there was a document signed that day for the sum of $4,000 on the basis that the Defendant said that “I’m taking oath of my son, I won’t betray you people”.
2. The Defendant’s case
[12] Counsel for the Defendant in his opening said that it was the Defendant’s case that the parties had agreed for the sale of the taxi for the sum of $4,100.00 and not $24,000.00 and that when it couldn’t be transferred by the LTA, that the parties agreed that the Plaintiff could have the use of the taxi so that he could recover the $4,100 he had previously paid to the Defendant. Further, the reason that the consideration sum was very low was because the vehicle was in a very poor condition.
[13] The Defendant’s evidence (in summary) in evidence-in-chief as to the sale and purchase of the car was:
(a) That he has known the Plaintiff since 2004 as he was a taxi driver and they used to meet sometimes and have tea together;
(b) That the Defendant advertised in the Fiji Times, sometime at the end of April 2006 that he was selling a taxi LT4512, Toyota Corolla CE 106 model, based at Nausori, No.3 stand, beside Kala Market;
(c) That the reason the Defendant was selling the taxi was because he needed money as he had borrowed money from a friend to pay for the deposit on a truck and he had promised that friend that he would sell the car so that he could repay the deposit;
(d) That although “a lot of people called” wanting to purchase the taxi, the Defendant decided to sell it to the Plaintiff because “I knew him and he had requested me because he always used to help me”;
(e) That the advertised price to sell the taxi was $5,000.00 and that the Plaintiff “asked me if I could sell to him at a better price” as “he wanted to buy a house too for his son for about $18 - $20,000.00”;
(f) That the price that was agreed to between the parties was $4,100.00 and as the Defendant “badly needed the money” he asked the Plaintiff “if he could give me some money” which the Plaintiff did by giving the Defendant “on 5 May 2006, $2,000” at the Defendant’s residence;
(g) That the Plaintiff paid the balance on 12 May 2006 when he came to the Defendant’s place about 9.30 am on that date with $2,100.00;
(h) That also present at the Defendant’s place with the Defendant that morning was his wife, SANDHYA NARAYAN, and his sister, SANGEETA DEVI NARAYAN;
(i) That the Plaintiff came that morning in a white taxi and with him was RAVIN CHAND and the Plaintiff’s sister, GYAN WATI;
(j) That when the Plaintiff arrived with Mr Chand and Ms Wati “they had a good look at the car and he asked me not to betray him” and the Defendant “told him the real condition is not very good that is why I’m selling it very cheap”;
(k) That they then had a discussion in the sitting room in the upstairs of the Defendant’s home at which the six persons named were present and the Plaintiff handed the Defendant $2,100 in $50 denominations which the Defendant counted;
(l) That the Plaintiff then told the Defendant “to make an agreement for release of transfer and hand over the car since the full amount is paid” and all parties were aware of the contents of this agreement which was signed by the Defendant, the Plaintiff, the Defendant’s sister and the Plaintiff’s sister;
(m) After the agreement was signed by the parties, the Defendant released the vehicle “and we agreed to go to the Town Council [to transfer the taxi base into the Plaintiff’s name]” with Ravin Chand driving the taxi to the Town Council, “Mr Sewak and his sister went there in a white taxi” while the Defendant took his own car;
(n) That the taxi base was transferred by the Council (See “D1” – Defence Exhibit 1 (Approval documentation – Nausouri Town Council 12 May 2005);
(o) That “an agreement was made that he [the Plaintiff] will do all transfer work on his own cost” in relation to the LTA transfer of taxi permit and that after this the Defendant “did nothing because all the transfer was to be done by him [the Plaintiff]”;
(p) The Defendant claims that after the taxi base transfer was done the Plaintiff informed him about a week later that the Plaintiff had lodged the taxi permit transfer at the LTA and that he was then subsequently informed by the Plaintiff “that the transfer has been rejected and the permit cannot be transferred”;
(q) That due to the refusal by the LTA of the transfer, the Defendant told the Plaintiff that “you drive till November or December and recover your cost of $4,100 and then you can return the car back to me because if accident or anything happens then I’ll be liable for it as the legal owner”;
(r) That come November 2006, the Defendant alleges the following occurred –
“I asked him whether he has taken out his cost? He told me that he hasn’t been able to take out his cost, he hasn’t recovered much money because the car most of the time break down and I told him that I’ve given him that much time and I want the car now ....He [the Plaintiff] told me that he wanted to return the car and he asked for the $4,100 back
...
I told him that I’ve given him that agreement to use it. Then I sent my bailiff and manager and they went and approached him and he told them where the car was and he said ‘take it’
...
After that he came back to me and he said “why don’t you return the money” – he told me if I won’t return the money there will be a problem and I’ll give the case to my solicitor.”
[14] The Defendant’s evidence (in summary) regarding the taxi operations itself was as follows:
(a) That the income generating capacity of the taxi was that “It was on contract basis $210 per week” being driven by AVINESH PILLAY such that the Defendant was paid $210 per week;
(b) That he did not pay Mr Pillay any salary or wages and it was agreed that the Defendant maintained the car for which Mr Pillay paid him $210 per week on top of which Mr Pillay would “try and get” his own income.
[15] The Defendant’s evidence (in summary) in cross-examination was as follows:
(a) That in 2005 he was a neighbor of the Plaintiff as they lived in the same area;
(b) That he did not know the personal details of the Plaintiff, nor the taxi number that he used to drive as “he has changed plenty taxis”;
(c) That the Defendant wrote a letter on 12 May 2006 to the LTA wherein the Defendant stated that the Plaintiff carried out maintenance on the Defendant’s car and thus the Defendant owed the plaintiff the sum of $4,100 because of those maintenance costs;
(d) That the Defendant can read “very little” English, he did not draw up the letter to the LTA which “it seems that my sister wrote it but not confirmed” and “the letter was read to me and I also read it but do not understand much of English language” before he signed it;
(e) That the Defendant testified further in relation to the letter to the LTA that “it is long time I can’t recall who wrote it, but it is somebody from our side ... it looks like my sister but not sure”;
(f) That in relation to another document (document 1) he acknowledged his handwriting upon it, that it would have been read over to him before his signing it and that “it looks my wife’s handwriting ... but I cannot confirm that – not educated that much”;
(g) That the Defendant was educated to Form 2, he has been a taxi proprietor “for 10 years, may be more, may be less” and also owns a towing service which he has operated for 1-2 years;
(h) That he does the manual work of both businesses “and my paperwork is done by my wife”;
(i) That in relation to the document of 12 May 2006 (part of which was read out to the Defendant which stated “as we are very good friends and we are also good neighbours” and “for a long time and I’m owing $4,100 to Ram Sewak because he is being carrying out maintenance on my car”), the Defendant stated that “the person who wrote [the letter] didn’t explain to me like that”. Further, he said that although the document as read out stated “I Rajendra Narayan is owing a sum of $4,100 to Ram Sewak, the Defendant alleged that “I told them to write that he is paying me $4,100 and I’m transferring my car to him”. When, however, it was put to the Defendant “so in effect this document is of no value to you? This document is not correct?”, the Defendant replied: “It is correct, I’ve signed it”, “Document is right”, and “What is written in there is right”;
(j) That when the Defendant received the first payment of $2,000 from the Plaintiff he gave him a receipt but he didn’t give him a receipt when the second payment was made on 12 May 2006 as “second time agreement was made”, “he [the Plaintiff] didn’t ask for it – if he would have asked for it I would have given it”;
(k) That when it was put to the Defendant as to why he would sell a car for $4,100 which had been earning him about $10,000 per year, the Defendant replied that: “I never earned about $10,000, secondly that car used to break down every time and had to repair it”;
(l) That when it was put to the Defendant as to what was the market value of a car which comes with a taxi permit he replied: “Depends on the market value of the car, if it’s new car then about $20,000 but if it is old car then $4,000, $5,000, $6,000. It is a 12 year old car”;
(m) That in relation to Ravin Chand, the Defendant advised that in 2007 Mr Chand “worked for me for 2 months, he is not working for me anymore” and that “on the first day Ravin Chand came with Ram Sewak that is how I know Ravin Chand but how Ram Sewak knows Ravin Chand I don’t know”.
[16] The Defendant’s evidence (in summary) in re-examination was as follows:
(a) That when the two documents which were shown to him, that is, the agreement and the consent letter to LTA, he was not very sure as to who wrote it but he was able to confirm that it was one of the persons who was present on 12 May 2006, that is, “either my sister or my wife”;
(b) That in relation to the car “the engine was not very good and body was also not very good because it was running on gravel road in Nausori” and had been used as a taxi for “about 8 years”;
(c) That Ravin Chand was employed by him in 2007 as a tow truck driver “and use to drive taxi sometimes ... may be about 2 months, less or more”;
(d) That the reason he gave the Plaintiff a receipt on 5 May 2006 was that “he demanded for the receipt” but on 12 May 2006 no receipt was given, as “he didn’t ask for the receipt and he said to make it in the agreement”.
[17] The evidence (in summary) of the Defendant’s sister, SANGEETA NARAYAN (also known as Naiker), was as follows:
(a) That she was present at the Defendant’s house on the morning of 12 May 2006 from 9.00am when she happened to be there on a visit;
(b) That during her visit “Mr Sewak came to my brother’s house to do payment for the car” and “came with his sister and one of their friends named Ravin”;
(c) That she and her sister-in-law made some coffee and brought it to the sitting room where the Plaintiff was sitting with his sister and Ravin as well as the Defendant;
(d) That while remaining in the sitting room “my brother told my sister-in-law to make an agreement”, that is, “that my brother is selling car”;
(e) That she was aware of the contents of that agreement and read it which said that the consideration sum was $4,100 and it was signed by “Mr Sewak, my brother, myself and Mr Sewak’s sister”;
(f) That on 12 May 2006 the Plaintiff “paid $2,100” in $50 notes which she counted with her sister-in-law and as to the balance ”I’ve asked my sister-in-law that you are making the agreement of $4,100 and she explained that $2,000 was paid as deposit prior to that”;
(g) That after the monies were exchanged and the said agreement was signed she ”went back inside”.
[18] The evidence (in summary) of the Defendant’s sister, SANGEETA NARAYAN, in cross-examination, was as follows:
(a) That it was not her handwriting on a document which was shown to her;
(b) That she was “not sure” whose handwriting was on the document;
(c) That when it was put to her that “your brother in cross-examination has stated that this is possibly your handwriting”, she replied “no”, “not mine”;
(d) That the agreement bears her signature at the bottom and that she read that agreement before signing it;
(e) That when it was put to her “In that agreement you would notice that is stating that your brother Rajendra Narayan is admitting that he is under a debt to Ram Sewak, he is not saying that he is receiving that $2,100 that day”, she gave no answer;
(f) That when it was put to her “that agreement states that your brother owes the sum of $4,100 to Ram Sewak, Right?”, “it does not say that he has received that money that day?”, and “It doesn’t say that he received $2,100 that day does it?” she agreed with the three propositions;
(g) That she agreed that she was a witness to the agreement but only witnessed$2,100 being paid that day and when it was put to her “but that agreement states $4,100?, she replied “My sister-in-law told me $2,000 was paid earlier”, to which the following exchange took place:
Q: Your sister-in-law’s words are not written here - you have acknowledged that your brother owes $4,100 to Ram Sewak this is the answer that you have to give?
A: Yes
Q: Were your present at all when this was being done?
A: Yes
Q: But you don’t have any explanation why $4,100 was being put there?
A: I was only told that $4,100 is being paid and $2,000 was paid prior to that and when it was done I don’t know. And agreement was made so I signed.”
(h) That she was then shown a second document (no. 2) and told that it was “another agreement your brother said ... may have been drawn up by you”, to which she replied “That is not my writing” and when asked “Were you there when this was done?”, she replied “No”;
(i) That she confirmed that Ravin Chand came with Ram Sewak on 12 May 2006, that she had not known him before that day and did not know whether he had worked for her brother.
[19] The evidence (in summary) of the Defendant’s previous driver, AVINESH PILLAY, was as follows:
(a) That he used to drive a taxi no: LT4512 for the Defendant from January to April 2006 which he operated from Nausori Town;
(b) That he drove on a weekly contract basis for which he paid the Defendant $210 and “the left over from $210 from the income was my pay” such that his weekly income from that taxi was $280 - $300 inclusive of the $210.00 but “not in the slack time”, however, he did make money from it and in cross-examination clarified that he would earn ”$200 per week”;
(c) That the taxi operated in Nausori, Kasavu and Baulevu where the road conditions were “Very bad”, “Lot of potholes on the road and gravel road”, such that the taxi “was not in a good condition”, ”Mostly door and everything was rattling, mechanical problems”;
(d) That the make of the car was a “Toyota Corolla 106” but he couldn’t say for how many years it had been in use;
(e) That he got a base and a taxi permit to drive the taxi as without the taxi permit you cannot drive and that if you did drive without the taxi permit “the Police or LTA will book me”.
[20] The evidence (in summary) of RAVIN CHAND was as follows:
(a) That he knows the Plaintiff “as he is also a taxi driver” and has known him for “2 or 3yrs”;
(b) That on the morning of 12 May 2006 he was going to Nausori where his wife works as a market vendor in Nausori Market “and while waiting for my transport I was stopped by RAM SEWAK in a white taxi, I got in there and I sat at the back seat with one lady she was sitting in front“, the Plaintiff “told me it is his sister” and that “when we were going down and I was told that he has bought a taxi for $4,100 and he was going to pick the taxi and clear the amount that he owed MR RAJENDRA - he asked if I could come with him and inspect it”. It was later clarified in his evidence that “although” my destination was to Nausori but on the way we went to Mr Rajendra Prasad’s residence”;
(c) That the Plaintiff was buying the taxi from Rajendra Narayan for $4,100 which “I was told there – I heard it while they were talking and agreement too was made he paid cash of $2,100”, he also clarified that during the ride to the Defendant’s house the Plaintiff “He told me he is buying a taxi and he also asked me if someone is selling a house”;
(d) That when they reached the residence of the Defendant, he looked over the car and then the Plaintiff “paid some cash of $2,100 all in $50 note and some sort of agreement was made”, however, Mr Chand agreed that he did not count the money;
(e) That after the money was exchanged “I drove the car taxi LT4512 to Nausori Town Council car park and from there I left” and that the reason he drove the taxi LT4512 to Nausori Town Council “Since there was no driver and I was told that his son going to pick the car from there”.
[21] The evidence (in summary) of RAVIN CHAND, in cross-examination, was as follows:
(a) That he knows the Plaintiff from being a taxi driver, however, they never drink together, drink tea together “sometimes might be”, never drink yaqona together, never smoke together and that when asked what was the taxi number that Ram Sewak drove, he replied: “I can’t recall that but it was a white taxi” but that he could recall that on the day that he went to the Defendant’s place the taxi number was 4512;
(b) That he worked for the Defendant “for about 2 months or so it was in 2007 and now I’m driving a taxi for Livai he is staying in Kuku village, Nausori” but had no documents with him to tender to Court;
(c) That the lady in the front seat of the Plaintiff’s car that day was not in Court when Mr Chand gave his evidence (though it was unclear who Counsel for the Plaintiff was actually pointing to when he asked this question). In addition, he couldn’t recall what the lady was wearing that day or what the Plaintiff was wearing;
(d) That he could not recall the actual two months he worked for the Defendant in 2007 “because it is more than a year now” and he “was driving a tow truck, driving a taxi” but it was not taxi LT4512 and “The taxi that I drove it has been sold now” but he had no idea for how much the Defendant sold it;
(e) That when it was put to him that the Plaintiff did not know him the following exchange took place:
“Q: My client’s case is that he doesn’t know you at all, what do you have to say about that?
A: I don’t have anything to say about it.
Q: My client’s case is that you are lying in the box today?
A: No
Q: My client says that on 12th May 2006 he didn’t pick you up from anywhere?
A: He picked me up from Bus Stop in 8 miles.
Q: My client’s case is that he doesn’t know you he has no reason to pick you up?
A: He knows me.
Q: My client’s case also is that you are still working for Mr Rajendra Narayan and are just giving false evidence today in court?
A: It is not true.
Q: He says that you’ve made up everything?
A: It is not true.
Q: Now you are working for Livai now?
A: Yes.
Q: As a taxi driver?
A: Yes.
Q: You driving his taxi?
A: Yes.
Q: Shouldn’t you be driving his taxi now?
A: Yes, at the moment I’m driving his taxi.
Q: Shouldn’t you be driving his taxi now?
A: Yes, I’m driving now.
Q: At this hour?
A: At this hour I was told by Mr Rajen to attend Court.
Q: You were told by Rajendra Narayan to come and give evidence on his behalf?
A: Yes.
Q: And you’ve come to give evidence on his behalf?
A: What I have in my knowledge that is what I’m going to say.
Q: Are you paid to come here today?
A: No.
Q: You have no benefit in coming here?
A: No.
Q: You have no existing relationship with Rajendra Narayan?
A: No.
Q: You have no existing relationship with Ram Sewak?
A: No. I just know them.
Q: So it is made up right?
A: Made up like what?
Q: You did make up a story?
A: No.
Q: Nobody has paid you to come to court today?
A: No.
Q: You are very clean person?
A: Yes.
Q: No bad records?
A: No, I got some.
Q: What have you done wrong, Mr Chand?
A: Have damaged property, have also been charged a case of larceny.”
3. The Documents
[22] The only document in evidence is (“D1”) a letter dated 12 May 2006 from the Town Clerk of Nausori Town Council to the Plaintiff confirming “that approval is hereby granted to you to operate from the above stand”.
[23] The following documents were not tendered into evidence:
(a) Copy of “Agreement for Sales and Purchase of a car between RAJENDRA NARAYAN and RAM SEWAK”;
(b) Copy of consent letter from RAJENDRA NARAYAN to the Land Transport Authority”;
(c) Copy of Bank Statement of RAM SEWAK dated 13 July 2006;
(d) Copy of Receipt No. 0012 to IMAAN ALI undated November 2006 for “Bailiff Cost”;
(e) Police Report dated 1 March 2007 concerning complaint lodged by the Plaintiff against the Defendant.
[24] In relation to these documents, the Court rules as follows:
(a) Copy of “Agreement for Sales and Purchase of a car between RAJENDRA NARAYAN and RAM SEWAK” – although not tendered into evidence the four relevant witnesses who had signed the document were able to provide sufficient oral evidence as to its details for the Court to be satisfied as to its contents (such as would occur when a document was lost but its contents can be reconstructed through oral testimony) – Ruling: the Court is satisfied that the relevant details of its contents have been sufficiently reconstructed through oral testimony to be considered in the judgment;
(b) Copy of consent letter from RAJENDRA NARAYAN to the Land Transport Authority” – a similar situation as to that with the “Agreement for Sales and Purchase”, that is, although not tendered into evidence the Defendant who signed the document was able to provide sufficient oral evidence both in chief and in cross-examination as to its details for the Court to be satisfied as to the relevant items in its contents – Ruling: the Court is satisfied that the relevant details of its contents have been sufficiently reconstructed through oral testimony to be considered in the judgment;
(c) Copy of Bank Statement of RAM SEWAK dated 13 July 2006 – this was marked
“MFI.1”– “Marked for Identification - 1” but never tendered and, unfortunately, the Plaintiff was not able to provide sufficient oral evidence for the Court to be satisfied as to its contents – Ruling: the Court is not satisfied that the relevant details of its contents have been sufficiently reconstructed through oral testimony and thus it has not been considered in the judgment;
(d) Copy of Receipt No. 0012 to IMAAN ALI undated November 2006 for “Bailiff Cost” – Ruling: the relevance of this document was never explained -has thus not been considered in the judgment;
(e) Police Report dated 1 March 2007 concerning complaint lodged by the Plaintiff against the Defendant – apart from being self-serving the relevance of this document was never explained (being March 2007, some 10 months after the agreement) – Ruling: the relevance of this document was never explained -has thus not been considered in the judgment.
C. RECONCILING THE RESPECTIVE CASES
1. The Plaintiff’s case
[25] The Plaintiff claimed that he had attended the Defendant’s residence on 12 May 2006 along with his wife, TARA WATI, his sister, GYAN WATI and his son, VINAY VISHAL. The Plaintiff gave evidence as well as his wife, TARA WATI, and his sister, GYAN WATI. The Plaintiff’s son, VINAY VISHAL, did not give evidence and no explanation was given for his absence.
[26] The Plaintiff’s wife, TARA WATI, confirmed that $22,000 was paid to the Defendant which she had held in her purse after they had earlier withdrawn it from the bank the day before and the Plaintiff’s sister, GYAN WATI, confirmed that she witnessed the document which said the payment was $4,000 instead of $22,000.Both witnesses confirmed that the document was signed on the basis that the Defendant said that “I’m taking oath of my son, I won’t betray you people”.
2. Problems in the Plaintiff’s case
[27] An inference can be drawn that the uncalled evidence of the son would not have assisted the Plaintiff’s case: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
[28] The major weakness in the Plaintiff’s case concerns the alleged lodging of his taxi permit application with the LTA. The Plaintiff’s evidence-in-chief was thus:
“Q: Did you lodge it at LTA?
A: Yes I lodged the document with all papers and I received a receipt
Q: What did that application comprise of?
A: One Application Form, Bank document, Fiji Times Advertisement
Q: Together with this agreement?
A: No agreement was not given to me
Q: Now when you paid that $22,000 did he give you the permit and taxi?
A: When I paid the money he gave me the car and the paper and he said “take the taxi it is yours now you’ve paid it off”
Q: Were you given the permit?
A: Permit and other papers were together with it
Q: Was the permit actually transferred in your name?
A: I asked him why it was getting late taking much more time.
Q: Why?
A: He said “there is no problem from our side, it is LTA’s problem”
Q: Did LTA ever give you a letter stating that your application is rejected?
A: No Sir, I didn’t receive any letter
Q: You visited the LTA office to check?
A: I didn’t go to check because he [the Defendant] said that you already paid off so I did not go to LTA
Q: How did you get to know that the permit was not transferred in your name?
A: When I called him [the Defendant] he said he was overseas
Q: Did you try and contact him again?
A: I later asked him. He said “try again in 5 months”
Q: Did you try back after 5 months?
A: When I again called he told me that he needs $8,000 more
Q: What was your response to this?
A: I told him that “I’ve already paid your money in full”
Q: And?
A: He informed me that he has done all transfer and everything for me so he needs $8,000 more” (My emphasis)
[29] This was quite peculiar evidence to say the least:
(a) There was no oral evidence given by the Plaintiff as to the actual date when he lodged the application;
(b) There were no copies of any documentation tendered to the Court of what the Plaintiff lodged with the LTA nor the alleged receipt the Plaintiff received from the LTA when he lodged his application;
(c) The evidence conflicts with the Plaintiff’s Statement of Claim which states in paragraphs 7 and 8:
“7. An Application for the transfer of the permit was lodged by the parties.
8. On or about the month of July 2006 the Defendant demanded a further sum of $8,000.00 and refused to complete the transfer of the taxi business ...” (My emphasis)
[30] It is quite strange that the Plaintiff never followed the matter up with the LTA as to why the transfer was refused. Further, during the various court appearances in preparation for this case, it might have been expected that a subpoena would have been issued upon the LTA with a return date before the Master as to copies of any records concerning this taxi licence as well as the Plaintiff’s application.
3. The Defendant’s case
[31] The Defendant claimed that present with him at his residence on 12 May 2006 when the agreement was finalised was his wife, SANDHYA NARAYAN, and his sister, SANGEETA NARAYAN. The Defendant gave evidence, along with his sister, SANGEETA NARAYAN, the Defendant’s previous driver, AVINESH PILLAY, and a taxi driver named RAVIN CHAND. The Defendant’s wife did not give evidence and no explanation was given for her absence.
[32] The Defendant’s sister, SANGEETA NARAYAN, claimed that “my brother told my sister-in-law to make an agreement”, that is, “that my brother is selling car” and it was signed by “Mr Sewak, my brother, myself and Mr Sewak’s sister”. The Defendant’s previous driver, AVINESH PILLAY, claimed that he used to drive taxi no: LT4512 for the Defendant from January to April 2006 which he operated from Nausori Town on a contract basis. In addition, a taxi driver named RAVIN CHAND, claimed to have also been present on 12 May 2006 and attended in the company of the Plaintiff who had picked him up along the way to come and inspect the vehicle.
4. Problems in the Defendant’s case
[33] If the Plaintiff’s claim concerning the LTA was quite strange in part, the Defendant’s
[34] To begin, an inference can be drawn that the uncalled evidence of the Defendant’s wife would not have assisted the Defendant’s case: Jones v Dunkel (supra).
[35] Further, crucial elements of the Defendant’s case were never put to the Plaintiff in cross-examination, that is:
(a) That RAVIN CHAND had been picked up by the plaintiff at approximately 9.00 am on 12 May 2006 and taken to the meeting at the Defendant’s residence where the agreement for the sale of the taxi was finalised;
(b) That the Plaintiff told RAVIN CHAND that the Plaintiff wanted to buy a house for the Plaintiff’s son for about $18,000 to $20,000; and
(c) That a second agreement occurred between the Defendant and the Plaintiff after the LTA refusal whereby the Plaintiff could retain the taxi until he got back his $4,100.
[36] In such a situation where crucial elements of the Defendant’s case have never been put to the Plaintiff, the common law rule from Browne v Dunn (1893) 6 R 7 must apply, that is, as no notice was given either through cross-examination or in the pleadings of the above crucial elements of the Defendant’s case, the Court must rule whether to exclude the consideration of such evidence.
[37] As the Defence did not seek to leave of the Court to recall the Plaintiff (or his witnesses who were also in the car with him on 12 May 2006) the Court has decided:
(a) That the evidence of RAVIN CHAND is to be excluded; and
(b) That the evidence of the Defendant as to a second agreement is also to be excluded.
[38] In relation to the Defendant’s other witness, his sister, SANGEETA NARAYAN, who it was agreed by all parties was present on 12 May 2006, no notice was given by the Defendant to the Plaintiff (as required under the Civil Evidence Act 2002) as to the hearsay parts of the evidence that she was going to rely upon, that is, what she was told by her sister (who is also the Defendant’s wife, SANDHYA NARAYAN) as to why the agreement was framed in the manner it was and, in particular, the prior payment of $2,000.
[39] As noted above, not only can an inference be drawn that the uncalled evidence of the Defendant’s wife would not have assisted the Defendant’s case, in addition, the hearsay evidence adduced through his sister-in-law, SANGEETA NARAYAN, must be considered in terms of what weight should be attributed when no explanation was given as to why the Defendant’s wife did not give evidence.
[40] Section 4 of the Evidence Act was recently considered at length by the Court of Appeal in Laisa Digitaki v Mobil Oil Australia Limited (Unreported, Full Court of Appeal, Civil Appeal No. ABU 0100 of 2006, 2 May 2008, Byrne and Hickie JJA) for which the Respondent has now been given leave to appeal to the Supreme Court.
[41] As was explained in Digitaki v Mobil at paragraph 17: “even if the notice provisions of Section 4 are not complied with, the evidence is still admissible; however, the “considerations relevant to weighing of hearsay evidence” as outlined in Section 6 then apply”. That Section reads:
“6. In estimating any weight to be given to hearsay evidence in civil proceedings, the court must have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence, and in particular to the following-
(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.”
[42] There was no explanation from Counsel for the Defendant at the hearing or in his subsequent submissions as to why no notice was provided by the Defendant to the Plaintiff prior to trial as required by Section 4 (1):
(a) that the Defendant’s wife was not going to be called to give evidence (and the reasons); and
(b) that such evidence was to be led through the hearsay evidence of his sister-in-law, SANGEETA NARAYAN, (and the particulars of that evidence).
[43] In light of the above, it is appropriate that at this point that I indicate (as discussed in Digitaki v Mobil at paragraph 24 that I have “taken specific regard ‘as required by Section 6 of the Evidence Act ‘to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence, and in particular’, the six criteria listed”.
[44] As with Section 4 and the notice provisions, likewise with Section 6 and the penalty provisions, the Court was not provided with any explanation from Counsel for the Defendant at the hearing or in his subsequent submissions as to what considerations it should take into account “in estimating any weight to be given to hearsay evidence” pursuant to Section 6.
[45] In “estimating the weight to be given to the hearsay evidence” of the Defendant’s sister, SANGEETA NARAYAN, “the court must have regard to the fact” that her sister-in-law, SANDHYA NARAYAN. (who is also the Defendant’s wife) was not called and “from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence, and in particular ... 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”.
[46] That the Defendant has not only failed to provide the Defendant’s wife but any submissions in accordance with Section 6, means that the Defendant must suffer apenalty in that an “inference can reasonably be drawn by the Court as to the reliability or otherwise of the evidence” and thus the weight to be attributed to the evidence of SANGEETA NARAYAN which were matters of hearsay which she received through her sister-in-law.
[47] In rejecting the evidence in total of RAVIN CHAND as well as in part that of SANGEETA NARAYAN on the matters of hearsay which she received through her sister-in-law in relation to the agreement, this then leaves the Defendant’s case on specific aspects of the agreement relying upon his oral evidence and the documents themselves.
[48] In this regard, the Court prefers the evidence of the Plaintiff and his wife, TARA WATI and his sister, GYAN WATI, particularly where the Defendant and his sister, SANGEETA NARAYAN, claim that RAVIN CHAND was present when clearly, (by applying the rule from Browne v Dunn), his evidence must be rejected. And this is without even considering questions which must be raised as to the truthfulness of his evidence.
[49] On the whole, the Court found the evidence of the Plaintiff’s supporting witnesses, his wife, TARA WATI, and his sister, GYAN WATI, to be given in a straight forward and truthful manner. By contrast, the Court found the evidence of the Defendant’s supporting witnesses, in particular, his sister, SANGEETA NARAYAN to be evasive and that of RAVIN CHAND, to be totally lacking in credit.
[50] The tension and embarrassment in the Court when the Defendant’s sister, SANGEETA NARAYAN, was giving evidence was palpable. Indeed, it was the Court’s subjective notation that on one occasion as the entire Court sat in silence for a short time as Counsel for the Plaintiff waited for her to answer a question which was put to her in cross-examination, the witness appeared “flushed” in the face, her eyes appeared to water and eventually Counsel for the Plaintiff moved on with the next question with my notation on the Court record simply being “No answer”. On some other occasions, the witness appeared to attempt to evade questions as to how the agreement was drawn up, by whom and why she signed it when she knew it was untruthful.
[51] As for RAVIN CHAND, that he (and the Defendant) expected anyone to believe his concocted story that he just happened to be at a bus stop on 12 May 2006 when the Plaintiff drove by, stopped, picked him up and took him to the Defendant’s resident to inspect a car when, on the Defendant’s own evidence, he was on his way elsewhere, is an insult to the Court – particularly so when such evidence was never put to the Plaintiff or his two witnesses (the Plaintiff’s sister, GYAN WATI, and the Plaintiff’s wife, TARA WATI), when they were cross-examined. Indeed, in the cross-examination of Mr CHAND, Counsel for the Plaintiff quite rightly put to Mr CHAND that the Plaintiff did not even know Mr CHAND!
[52] Surely, if the Plaintiff had wanted an inspection to be done of the car prior to the purchase, then the Plaintiff would have arranged for someone he knew to come with him. In addition, Mr CHAND could not even identify the woman he alleged was with him in the car when they travelled with the Plaintiff to the Defendant’s residence on 12 May 2006. Whilst the Court can appreciate that a witness’ recollections of conversations can vary and sometimes to the extent as to whether a witness may have been present at a particular event on a particular day, in this case, however, this was not the case. Instead, it is the Court’s view that this was not a vague recollection of a matter which took place some two years ago but a blatant attempt by the witness (and presumably the Defendant who knew he was not present on that day) to mislead the Court.
5. Other problems with the evidence generally
[53] As to the two documents (the Agreement and the letter to the LTA), although actual copies are not in evidence, it is clear (as noted in the Court’s Rulings outlined above) that the relevant details of these two documents can be reconstructed from the oral evidence, in particular, the actual agreement as to the sale and purchase of the taxi.
[54] The documents were both clearly intended NOT to be a true reflection of what had taken place. They claimed a debt was owed by the Defendant to the Plaintiff in an amount of $4,100 and to satisfy that debt the Defendant was transferring his taxi to the Plaintiff. Even if the Plaintiff had only paid the Defendant $2,100 on 12 May 2006 (instead of $22,000 as alleged by the Plaintiff and his two witnesses) following an earlier payment of $2,000, both the “Agreement for Sales and Purchase of a car” and the Consent letter from the Defendant to the LTA do not reflect any such payments. Instead, they reflected the transfer was in satisfaction of a debt.
[55] Unfortunately, various documents were not produced as well questions not put in oral evidence which may have assisted the Court in determining the truth in relation to the agreement, they being:
(a) Evidence of a copy of the receipt which parties agreed that the Defendant gave to the Plaintiff on 5 May 2006 – if the original or a copy had been produced it may have had some further details marked upon it to assist in evaluating such evidence;
(b) Evidence that the car was converted from automatic to manual between 5 and 11 May 2006;
(c) Evidence of any records from the LTA as to whether this was an automatic or manual car;
(d) Evidence produced under subpoenas in relation to the Defendant’s bank records for May 2006;
(e) Evidence from the Plaintiff as to his bank records which were then left in an unsatisfactory state as “MFI.1” – In this regard a witness from the bank could have been subpoenaed to provide original documents and/or identify bank statements;
(f) Evidence from the Plaintiff’s brother in Australia (which could have been taken either by video link or telephone) to confirm payments he made and into which account;
(g) Evidence being asked of the Defendant’s previous driver, AVINESH PILLAY, as to when he was driving the taxi from January-April 2006 whether it was an automatic or manual vehicle.
[56] As to the actual amounts paid, apart from having it clarified that the amount was in $50 denominations, none of the seven witnesses who claimed to be present in relation to the actual amount handed over were asked to provide evidence such as:
(a) Was the money in bundles?
(b) If so, how many bundles?
(c) If not, what was that witness’ estimation as to how many notes were handed over?
[57] The Court can only note that if $2,100 was handed over in $50 notes then that would have totalled 42 individual notes and that if $22,000 was handed over in $50 notes then that would have totalled 440 individual notes – a very big difference in the size of any bundle/s and how it was carried.
D. FINDINGS
1. The Agreement and letter seeking transfer of Taxi Permit Stand
[58] In view of the above, the Court is in the position where it must decide the basis of the agreement upon the oral evidence provided of the six witnesses who claimed to have been present on 12 May 2006. In this regard the Court makes the following findings:
(a) That there was an agreement for the sale and purchase of a taxi on the understanding that it included a vehicle, permit approved by Nausori Town Council and licence approved by the LTA;
(b) That the Plaintiff paid the Defendant a deposit of $2,000 on 5 May 2006 in relation to the sale for which a receipt was issued ;
(c) That the balance of the purchase price was to be paid on settlement – either because the car had to be converted from automatic to manual and/or because the Plaintiff had to obtain the balance of the funds;
(d) That settlement took place on 12 May 2006 at the Defendant’s residence at approximately midday on 12 May 2006;
(e) That present at settlement for the Plaintiff (apart from himself) were his wife, TARA WATI, his sister, GYAN WATI, and his son, VINAY VISHAL;
(f) That present at settlement for the Defendant (apart from himself) were his wife, SANDHYA NARAYAN, and his sister, SANGEETA NARAYAN;
(g) That the agreement was drafted in all probability by the Defendant’s wife, SANDHYA NARAYAN, unnamed, at the behest of the Defendant ;
(h) That the agreement was signed by the Defendant and witnessed by his sister, SANGEETA NARAYAN, as well as signed by the Plaintiff and witnessed by his sister, GYAN WATI;
(i) That the agreement did not reflect what actually took place on 12 May 2006, that is, transfer of a taxi for payment, but rather, transfer was in satisfaction of a debt;
(i) That the agreement was so drafted on the instructions of the Defendant perhaps as a way to defraud FIRCA (but which remains unclear without further investigation by the relevant authorities);
(j) That a second document was drafted in all probability by the Defendant’s wife, SANDHYA NARAYAN, on the instructions of the Defendant to the Nausori Town Council and signed by the Defendant seeking to transfer his taxi permit stand to the Plaintiff such as to obtain a benefit for both the Defendant and Plaintiff (transfer of a taxi permit and taxi base) possibly by deception over the LTA as well as the Nausori Town Council.
2. The Payment
[59] Having considered the evidence of the six witnesses who gave evidence claiming to have been present on 12 May 2006 and finding that five of them were present (the Plaintiff, his wife, TARA WATI, his sister, GYAN WATI,the Defendant and his sister, SANGEETA NARAYAN), the Court makes the following finding in relation to the payment:
(a) That $22,000 was withdrawn on 11 May 2006 by the Plaintiff;
(b) That on 12 May 2006, the Plaintiff’s wife, TARA WATI, had the sum in her possession until it was handed over to the Defendant soon after 12 noon on 12 May 2006;
(c) That the Defendant did not provide the Plaintiff with a receipt making instead some spurious claim as to saving on legal fees when, in fact, it may have been a “ruse” to make the Plaintiff complicit in an attempt by the Defendant not to declare receipt of such moneys (perhaps in an attempt to defraud FIRCA).
3. The LTA Taxi Licence
[60] In considering the evidence of the Plaintiff and the Defendant on what occurred after the payment on 12 May 2006 (as well as noting that certain documents and/or testimony are not in evidence), the Court finds:
(a) That it is unclear whether the letter of 12 May 2006 from the Defendant to the LTA was evergiven by the Defendant to the Plaintiff. Indeed, the Plaintiff claimed in his evidence that he never lodged it as part of the application for transfer of the taxi licence with the LTA his LTA);
(b) That the letter of the 12 May 2006 from the Defendant to the LTA was, perhaps, only ever produced before the Nausori Town Council so as to obtain a transfer of the permit from the Defendant to the Plaintiff of the taxi stand;
(c) That that the Plaintiff obtained a permit (perhaps by deception over the Nausori Town Council in which the Defendant was complicit) to operate from a taxi stand in that area;
(d) That it is unclear as to how often or for how long the Plaintiff drove the taxi between May and October 2006 and if he ever declared to FIRCA any such income he obtained from driving the taxi during that period;
(e) That the Plaintiff never obtained a taxi licence from the LTA and was driving (with the full knowledge of the Defendant) in breach of Section 11 of the Land Transport Act 1998 Regulations;
(f) That a dispute arose between the parties when the car kept breaking down, the Plaintiff wanted a proper transfer of the taxi licence from the LTA (which was the true value of the deal not the taxi vehicle per se), and this was resisted by the Defendant who, in such circumstances, wanted another $8,000 to somehow (unexplained) assist in the transfer of the LTA licence;
(g) When the Plaintiff still demanded his money back, the Defendant eventually came and seized the vehicle without making any repayment to the Plaintiff;
(h) That as a result of what occurred, the Plaintiff felt that he had no alternative but to institute legal proceedings, but in so doing, questions as to the legality of the dealings between the Defendant and Plaintiff have arisen such that this judgment must be stayed whilst it is referred elsewhere to allow for a full and proper investigation by the appropriate authorities;
(i) That if the outcome of such referral is that nothing untoward is found to have taken place and/or no charges laid then the stay can be lifted and judgment finalised.
4. Conclusion
[61] In view of the above findings, the Court ultimately finds that, on the balance of probabilities, the Plaintiff has made out his case in that he paid the Defendant the sum of $2,000 on the 5 May 2006, followed by a further payment to the Defendant of $22,000 on 12 May 2006, for which he is entitled to full repayment.
[621] As for the disbursements, these are refused as no such verifying documentation or explanation was produced by the Plaintiff at the hearing.
[63] In relation to interest, this is an item which was pleaded. According to Section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act [Cap 71]:
"... the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt ..."
[64] The Court is of the view that this a matter which could have been resolved soon after it occurred by way of the Defendant returning the amount paid by the Plaintiff (together with any readjustment for the period he had had the vehicle when it was in working condition). Such negotiations appear not to have occurred and when legal proceedings were instituted no such counter-claim was filed by the Defendant. In addition, the Plaintiff has now had to wait for some 23 months to have judgment decided in his favour. Therefore, the Court sees no basis as to why interest should not be allowed on the judgment sum of $24,000 as from 1 November 2006 until the commencement of the hearing on 24 July 2008 at a rate of 4% per annum (assessed on a weekly basis).
[65] On the Court’s calculations, this represents at a rate of $18.46 per week for a total period of 87 weeks from 1 November 2006 until 24 July 2008 when the matter was heard, making a total of $1606.02. The Court does not believe that the Defendant should have to pay interest in the post hearing period while written submissions were being filed and judgment being written, though it is noted that delay in judgment was caused by the Defendant’s late filing of submissions (and for which, in any event, caused a relisting of the matter and a costs order in favour of the Plaintiff in that regard).
[66] Therefore, it is the finding of the Court that it is fair and reasonable to award interest on the debt of $24,000 at a rate of 4% per annum for the period from 1 November 2006 until the commencement of the hearing on 24 July 2008 which the Court has calculated on a weekly basis to be $1606.02.
[67] In closing, the Court wishes to note that the potential serious predicament in which the parties have now placed themselves (as well as possibly their family members) has arisen as a result of their failing to obtain timely legal advice prior to entering this agreement in May 2006. It never ceases to amaze that members of the general public are "hoodwinked" into believing that by not involving lawyers at such crucial times that they are somehow "saving" on legal fees when, in fact, it is a false saving as these are exactly the type of matters and times when lawyers should be engaged so as to protect parties’ respective legal interests and perhaps avoid lengthy legal proceedings such as has now eventuated.
[68] Indeed, the Court is of the view that if Counsel for both of these well known legal firms (who have appeared on the hearing of this matter) had been retained from the outset in May 2006, then no doubt firm legal advice would have been given to both parties such that in all probability it would have avoided not only what occurred in May 2006 but also the subsequent flow-on effects – that is, this hearing as well as the other investigations which the Court is duty bound to now request to be undertaken. It is something for not only both parties to consider whilst they nervously await the outcome of the referral of this matter elsewhere but also for members of the general public to be made aware (via members of the media who may read the judgment) as well as government and other institutions including the Fiji Law Society.
[69] Finally, in referring this matter elsewhere, the Court wishes to make it clear that this is not a criticism of the two junior Counsel who conducted the hearing (under thesupervision from senior partners of their respective firms). Counsel can only submit to the Court their instructions and conduct the hearing in accordance with such instructions – not an easy task for junior practitioners when both parties have been involved in a matter which has an air of deceit about it. Indeed, this was why the Court took a short adjournment prior to evidence being taken to allow Counsel to clarify their instructions with their respective clients which they did. Thus, that the matter is being referred elsewhere is through no fault of Counsel but the inevitable outcome from the evidence of the parties themselves.
[70] The formal Orders of this Court are as follows:
4. That judgment (including interest) is stayed until 1 February 2009 to allow it to be considered by FIRCA, the LTA and the Office of the Director for Public Prosecutions.
5. That, in that regard, a copy of this judgment be forwarded forthwith by the Senior Court Officer, High Court Civil Registry, Suva, to the Directors of FIRCA, the LTA and the DPP respectively, for their consideration;
6. That the Directors of FIRCA, the LTA and the DPP, are requested to advise the Senior Court Officer, High Court Civil Registry, Suva, in writing, on or before Thursday, 29 January 2009, as to what action, if any, has been undertaken after considering this judgment (including any application to do with proceeds of crime).
7. That the matter is adjourned before this Court until 8.30am on 1 February 2009 when the Court will hear further submissions as to the outcome of the referral of this matter to FIRCA, the LTA and the DPP, and if no action is to be taken, then to confirm judgment for the Plaintiff (to be paid within 21 days of 1 February 2009) as well as to hear the parties on the question of costs.
8. That in view of the recent Supreme Court decision in relation to Order 16 of the Court of Appeal Rules, the parties are directed to enter judgment within seven (7) days hereof and for the Registrar to arrange for it to be signed, dated and sealed immediately once such judgment has been entered "thereby setting the clock running for the purposes of Rule 16".
Thomas V. Hickie
JUDGE
Solicitors:
Parshotam & Co, Barristers & Solicitors, Suva
Neel Shivam Lawyers, Barristers & Solicitors, Suva
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URL: http://www.paclii.org/fj/cases/FJHC/2008/258.html