Tahadil v Shah [2012] FJHC 21; HBA005.2009 (17 January 2012)

IN THE HIGH COURT OF FIJI AT LABASA
CIVIL APPELLATE JURISDICTION

CASE NUMBER: HBA 005 OF 2009

BETWEEN:

MOHAMMED TAHADIL
Appellant

AND:

SHEIK HUSSAIN SHAH
Respondent

Appearances: Mr. Mohammed Sadiq for the Appellant.
Mr. Amrit Sen for the Respondent.
Date/Place of Judgment: Tuesday, 17th October, 2012 at Labasa
Coram: The Hon. Justice Anjala Wati.

JUDGMENT

Catchwords:
Claim for solicitor's unpaid fees- prior agreement by client on quantum – need for taxation – new points of law at appellate stage – interference with finding of fact.

The Appeal

1. On the 2nd day of June, 2009, the trial magistrate gave judgment in favour of the respondent in the sum of $8,593.13 with costs of $300. His worship further ordered that Bank of Baroda must release from the appellant's account the said sum of monies to the respondent.
   
2. The award was made on the respondent's claim for unpaid solicitor's fees.
   
3. The appeal arises from the above decision of his worship. Initially Mr. Sadiq raised 10 grounds of appeal but he only maintained 4 grounds at the time of hearing, being grounds 4, 5, 6 and 10. They are, that the Learned Magistrate erred in law and in fact:-
   
   1. In holding that there was or were agreements relating to the fees between the parties particularly when the respondent claimed 3 different amounts in 3 different documents (Ground 4).
      
   2. In holding that in absence of any agreement, the respondent could bring a claim for unpaid fees without prior compliance with Order XXXVIII of the Magistrates' Court Rules (Ground 5).
      
   3. In holding that the signatures on the documents tendered in evidence were those of the appellant despite finding by his worship that there are some striking differences (Ground 6).
      
   4. In giving an unreasonable decision having regard to the evidence produced by the respondent (Ground 10).
      

The Claim at Magistrates' Court

4. The plaintiff's statement of claim indicates that the amount claimed at $8,500 was for agreed solicitors fees for two different actions. The first being for the sum of $500 being balance due and owing from agreed fees for caveat action No. 33 of 2007 and the second being the total unpaid fees of $8,000 agreed for Probate Action No. 5 of 2008, the agreement being entered on 04th March, 2008.
   
5. The defendant denied being indebted to the plaintiff for any amount at all. He asserted that the agreement to pay the sum of $8,000 alleged by the plaintiff was forged. He also stated that he had paid the sum of $5,100 and that not a single amount was due and owing.
   
6. The defendant had also raised a defence that the writ of summons was issued and served contrary to the provision of Order VI Rule 5 of the Magistrates' Court Rules and hence was defective, null and void. This provision in particular requires a writ of summons to be served 8 clear days before the hearing.
   

The Ruling of the Court

7. In reaching the conclusion that the sum of $8,500 was due and owing to the respondent, his worship found that:-
   
   • (a) That it was undisputed that Mr. Shah had started and completed the two sets of proceedings as mentioned in the statement of claim. The issue that was in contention was the agreement as to fees between the parties and whether proper bill of cost for the two actions was rendered to the appellant.
     
   • (b) The appellants' allegation that he had not signed an instruction to act for him in the probate action in which he had agreed to pay $8,000 and the authority to Bank of Baroda to release the sum of $6,500 to the respondent as part of fees for the probate action, and that his signatures were forged, were not established as a defence. Since the appellant had raised that defence of forgery, he had to prove it on a standard which was higher in degree of probability.
     
   • (c) There were striking differences in the documents mentioned in (b) above when compared to other documents but that inconsistency was not enough to establish forgery. The appellant had testified that he had reported the forgery aspect to the police and if that was the case, the appellant should have called a police witness to this effect. If a witness was called, the ruling would have been deferred pending the determination of the police investigation.
     
   • (d) The appellants alleged payments of $250 vide a receipt dated 5th October, 2007 and $3,000 vide a receipt dated 14th February, 2008 did not tally up to his assertion that he paid $5,100. The appellant's allegation that he had paid another $500 for which a receipt was not issued to him also would not tally his assertion that he paid a sum of $500.
     
   • (e) The appellant was not to be believed on the issue that he had paid $500 without a receipt.
     
   • (f) The appellant had agreed that all the payments he had made were made before the probate action was issued. That supported the conclusion that the monies of $3,250 paid to the respondent was for the caveat action and not the probate action.
     
   • (g) The issue was what was agreed by the parties and not whether the bill of costs should have been taxed.
     
   • (h) The appellant was an incredible witness.
     

The Submissions on Appeal

7. Mr. Sadiq made extensive submissions.
   
8. In respect of ground 4, Mr. Sadiq submitted that the learned Magistrate erred in law and in fact in holding that there was or were agreements relating to fees between the parties when Mr. Shah had claimed three different amounts in three different documents. Through an "instructions to act" dated the 4th day of March, 2008, the amount claimed was $8,000; in the authority to Bank of Baroda dated 18th August, 2008, the amount claimed was $6,500; and in the writ of summons dated the 18th day of February, 2009, the amount claimed was $8,500. The learned Magistrate stated that the respondent claimed $8,500. The whole question is what was the total amount owed by the appellant to the respondent. If the appellant owed $8,000 or $8,500 than why was an authority for $6,500 sent to Bank of Baroda and if he was owed $6,500 than why was the need for the amount claimed in the writ to be $8,500.
   
9. Mr. Sadiq stated that the appellant had said in his evidence that the total agreed fees was $5,000 if the case was finalized within 2 years and $6,500 if it went beyond 2 years. The respondent said that he paid all the monies as agreed. He had paid $5,100 in total agreed fees which agreement was only oral. It was submitted that the evidence of the appellant was more credible and as such he should be believed. The respondent had claimed 3 different amounts in 3 different documents which shows that he was not sure of the amount or wanted more money than that was agreed to.
   
10. In respect of ground 5 Mr. Sadiq argued that the respondent and the Court had not acted in accordance with Order XXXVIII of the Magistrate's Courts Rules. Mr. Sadiq submitted that Order XXXVIII prescribes how a suit for recovery of costs can be made by a legal practitioner. It was said that, the following should have taken place:-
    
    1. Mr. Shah should have given a bill of costs to the appellant and waited for one month.
       
    2. Within one month from the presentation of the bill, the appellant could have applied to the Court for taxation.
       
    3. If the party charged therewith the bill, failed to make any application for taxation within one month, then Mr.Shah could have made an application for taxation.
       
    4. Until the bill of costs was taxed, Mr. Shah should not have commenced any suit for recovery of the costs.
       
11. Mr. Sadiq then submitted, that Mr. Shah had said in his evidence that on 14th February, 2008 he gave the appellant bill of costs for fees paid and balance of $500.00. He also gave evidence that this bill of costs was not taxed. Another bill of costs was alleged to have been given on the 13th day of February, 2009. The writ of summons was issued on the 18th day of February, 2009. Further the 2nd bill of costs was not taxed. Mr. Shah therefore could not bring a suit in respect of the unpaid costs.
    
12. Mr. Sadiq also submitted that Mr. Shah had testified that it was not necessary for the bills of costs to be taxed because the fees was agreed to and agreed fees are not sent for taxation. Even this evidence indicates that the requisite time period of 1 months waiting was not met.
    
13. Mr. Sadiq further submitted that his worship was wrong in holding that taxing was not necessary when the fees were agreed to. The decision is contrary to the legislative requirement and thus must be set aside.
    
14. Mr. Sadiq also submitted that the two bills, in reality, are not bill of cost by definition. He said that a bill of cost is as per the Concise Law Dictionary, 5th Edition, "a statement or account delivered to his client by a solicitor setting out in detail the work done on behalf of the client, and showing the amount charged for each item, including disbursements". The two bills do not comply with the definition of a bill of cost and thus no bill of cost was served on the appellant.
    
15. In respect of ground 6, Mr. Sadiq submitted that the appellant's signature on the alleged Bank of Baroda authority, if compared to the signature on the transfer document, the application for consent to transfer and the affidavit, will show that the signature on the alleged authority to Bank of Baroda is quite different. The signature on the alleged authority is not his. When the Magistrate found that there was striking difference in the signature, he should have resolved the issue in favour of the appellant that it was not his signature on the Bank of Baroda authority.
    
16. The appellant had also maintained that there was no written instruction to act. The copy of the instruction to act was tendered in evidence and the appellant had denied signing this document. The signature on this document again is quite different from signatures in the other documents. The burden of proving the signature was on the respondent. It was incumbent on the respondent to prove the signature and he could have called a clerk who had witnessed the signature but he did not.
    
17. In arguing ground 10, Mr. Sadiq summarized all the grounds and further argued that the Court had found that the respondent had proved his case on a balance of probabilities with regard to the claim of $8,000 but he entered judgment for the sum of $8,593.13 plus costs of $300. There is discrepancy in his worship's ruling. The judgment should not have been entered for a higher amount.
    
18. Mr. Sen submitted that Mr. Sadiq had not raised in the Court below the statutory defence. It is too late to raise new matters at appellate stage. The appellant had submitted to the jurisdiction to have the issues arising out of the pleadings to be determined.
    
19. Further, Mr. Sen submitted that the learned Magistrate had the opportunity to see the demeanour and deportment of the witnesses and that after doing that he believed the respondent. The appeal court cannot interfere with a finding of fact unless it can be shown that the findings were upon improper analysis of evidence.
    

The Law and the Analysis

20. I will deal with ground 4 first. The respondent had never made a claim for 3 different amounts. His claim was only for $8,500. The amount stated in the instruction to act was for the probate action. The amount stated in the Bank of Baroda Authority was for part payment of the fees and the amount in the writ was the actual claim for the solicitor's fees for two actions. I do not understand Mr. Sadiq's basis to say that the respondent had made a claim for 3 different amounts.
    
21. In holding that the appellant had agreed to the solicitor's fees, his worship had made a finding of fact that there existed instructions to act with agreed fees and that the appellant's allegation that his signature was forged by someone was not proved by him. He also found the appellant's evidence inconsistent in that he asserted that he had paid all the fees agreed upon in the sum of $5,100 but the evidence on payment did not tally up to $5,100. His worship had disbelieved the appellant and I do not have any powers to reassess the credibility of the witnesses in light of the appellant's inconsistent evidence.
    
22. Ground 5 was never raised in the Court below and I find it improper to allow a party to raise a point of law at appellate stage when he did not put the same forward before the lower Court for consideration. Mr. Sadiq has found a new defence, and it is prejudicial to allow this new point to be argued as his defence. These kinds of ambush appeal must be dismissed without encouraging lawyers to raise new grounds at appellate stage. Further, his worship was right in finding that the fees were agreed to, which obviated the need for taxation. I find no error of law in the finding.
    
23. Although his worship found the signature of the appellant to be different in the instruction to act and the Bank of Baroda authority, his worship also was mindful of the fact that signatures do differ depending on whether a person signs standing up or sitting down. Together with that, his worship assessed other evidence being that the appellant was inconsistent in his testimony and had also agreed that he had paid the sum of $3,250 but that this sum was paid before the probate action was issued, and that it had no bearing on the probate action. I cannot interfere with a finding of fact made upon such strong basis.
    
24. His worship had assessed the credibility of the witnesses and believed the respondent. On the given evidence, I cannot find that his worship had erred. Moreover, the judgment in the sum of $8, 500 comprised of $8,000 for the probate action and $500 as fees due and owing from the earlier caveat action. The sum of $93.13 was costs for issuance of the writ. His worship had therefore not made an award for a higher sum than claimed or established.
    
25. The grounds of appeal have no merits and I dismiss the same with costs to the respondent, which I intend to summarily assess. The rest of the grounds were abandoned and thus not worthy of mention.
    

Final Orders

26. The appeal is dismissed and the respondent is entitled to costs in the sum of $850.
    
27. Orders accordingly.
    

Anjala Wati
Judge
17.01.2012

To:

1. Mr. Mohammed Sadiq, counsel for the Appellant.
2. Mr. Amrit Sen, counsel for the respondent.
3. HBA 005 of 2009.