Mati v Govind [2015] FJHC 379; HBC387.2011 (26 May 2015)

IN THE HIGH C0URT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 387 of 2011

BETWEEN :

RAJ MATI
of Vatuwaqa, suva in the Republic of Fiji, Domestic Duties

Plaintiff

AND :

CHANDRA SEN GOVIND
of Nakaulevu, Navua in the Republic of Fiji, Building Contractor
Defendant

Appearance : Ms Rakai M., Counsel of Sherani & Co. for the Plaintiff

Mr Nand M., Counsel of Nands Law for the Defendant

Date of Judgment : 26 May 2015

JUDGMENT

[1] The Plaintiff issued the Writ of Summons on 20 October 2011 by the Amended Statement of Claim dated 6 February 2013 sought the following reliefs:

"i). A declaration that the purported transfer of Lot 1, DP 6782 is fraudulent, illegal and sham document designed to defeat the legitimate interest of the Plaintiff and other beneficiaries of the Estate of Ram Govind;

ii) A declaration that the purported Dedication of Access Denial Strip was fraudulent and null and void and is of no effect;

iii) Damages;

iv) Interest on the amount of such damages at such rate and for such period as the court shall think just;

v) Cost of this action;

vi) Such further and other relief as this Honorable Court may seem just and expedient".

[2] Background

2.1 The Plaintiff is a widow of late Ram Govind who died on 4 July 1980 and also the Executrix and Trustee of the Estate of Ram Govind and the Defendant is the son of the Plaintiff and her late husband Ram Govind.

2.2 Late Ram Govind who was the registered proprietor of the Certificate of Title No. 8303 had an extent of 11 Acres 3 Roods and 3 Perches and by virtue of Will dated 14 September 1978 gave and bequeathed all his property to the Plaintiff and his six(6) children.

2.3 The Defendant is also a beneficiary of the said Will and the Plaintiff was in the possession of the Duplicate of Certificate of Title No. 8303.

2.4 The Plaintiff alleged that the Defendant had fraudulently and/or deceptively got her signature on Dedication Access Denial Strip and on 10 September 2010, the Defendant registered the Dedication of Access Denial Strip with the office of the Registrar of Title. The particulars of the fraud was described in the Statement of Claim and stated that the Defendant on 27 May 2011 fraudulently wrote to the Office of the Registrar of Title and obtained transfer of Lot No. 1 of DP 6782.

[3] The Defendant filed his Statement of Defence on 18 January 2012 and denied the allegations.

[4] Summons to amend the Statement of Claim was filed on 4 January 2013 and was granted by the Learned Master on 31/01/2013.

[5] Amended Statement of Claim was filed on 7 February 2013 and the Summons for Directions was filed on 19 February 2013 and the orders were granted by the Learned Master for the pre-trial steps and the matter was mentioned before this court on 24 November 2014. The trial was fixed for 22nd and 27th of January 2015.

[6] When the matter was taken up for trial on 22 January 2015 it was submitted by the Plaintiff's counsel Ms Rakai that the Notice of Motion was filed on 21/1/2015 by the Plaintiff to adduce further evidence and the court made the following directions:

i) Trial was vacated.

ii) The Defendant to file and serve the Affidavit in Oppose and any Supplementary Affidavit within 7 days.

iii) Any Affidavit in Response to be filed and served by the Plaintiff within 3 days.

(iv) The case was fixed for mention on 3 February 2015.

[7] By the Notice of Motion dated 21 January 2015, the Plaintiff sought the following Orders:

"(i) The Plaintiff be granted leave to adduce HD Forensic Experts Report on examination of documents relating to the Plaintiff's evidence being for the trial by way of a written Forensic Report of Trevor Joyce, the author of Forensic Document Examiner.

(ii) That the costs of this application to be costs in suit.

(iii) That the service of this summons be abridged".

This application was made pursuant to Section 14 of Civil Evidence Act and the inherent jurisdiction of this court; upon the grounds urged in the Affidavit of Ravindra Prasad.

[8] The Notice of Motion was supported by the Affidavit dated 21st January 2015 sworn by Ravindra Prasad Law Clerk of the Plaintiff's solicitor Sherani & Co. stated inter-alia:

8.1 Prasad stated that he was instructed to depose the Affidavit on behalf of the Plaintiff and on her instructions to seek to adduce further documentary evidence at the hearing of by way of a written HD Forensic Expert Report dated 14 January 2015 on examination of documents relating to Raj Mati by Trevor Joyce.

8.2 The Plaintiff stated this matter is to be determined on the alleged falsity as pleaded in the paragraph 7-9 of the Amended Statement of Claim and the said report would assist the court in determining the claims by both parties.

8.3 It was stated that the Plaintiff requested the Solicitors on 8 November 2014 for an analysis and examination of the documents made in partial Transfer No. 74/554, Transmission by Death No. 483751, Dedication of Access Denial Strip No. 736189 and the letter dated 27 May 2011 from forensic person. In terms of the instructions the Plaintiff's solicitor sought assistance from HD Forensic Expert Pty Limited via email requesting examination of the documents and his charges (email marked as A).

8.4 The Plaintiff's solicitors had correspond with HD Forensic sent the details and documents on 11 December and 22 December 2014 for assistance of Forensic Report (emails marked B & C) and estimated Tax invoice was sent quoting AUD 2,275.00 by Trevor Joyce (marked as Document D).

8.5 The Plaintiff collected the monies from her family and Bank advised her, she had to pay withholding tax to FRCA and they advised to seek a Tax Agent. On 8 January 2015, the Plaintiff paid the withholding tax and deposited the money with HP Forensic Pty Limited on 13 January 2015 (Annexures marked A & B).

8.6 On 14 January 2015, the email copy of the report was received and copy was served on 19 January 2015 (Annexures marked H & I).

8.7 On 19 January 2015, the Plaintiff's solicitors attempted to file the Supplementary Affidavit verifying list of documents including the Report and was refused to be accepted by the High Court Registry since it needed Defendant's consent.

8.8 The Plaintiff stated although there would be prejudice caused to the Plaintiff since HD Forensic Report was served on the Defendant on 19 January 2015 few days prior to the trial, greater prejudice will cause to the Plaintiff since the HD Forensic Report will assist the court to decide on the falsity and fraud pleaded in the paragraph 7-9 of the Amended Statement of Claim.

8.9 It was stated by the Plaintiff at the courts discretion the Defendant may be given time to go through the report and option could be given to the Defendant to obtain a report from another expert.

8.10 The Plaintiff further annexed the HD Forensic Report dated 14 January 2015 marked as Annexure J and the experience and expertise of Trevor Joyce was stated. His curriculum vitae was marked annexed as J and it was stated his reports being accepted by the various courts in Australia including the Supreme Court of Victoria, the High Court of Malaysia, the District Court of New Zealand and the High Court of Fiji.

8.11 The Plaintiff pleaded to mark the said Report in her evidence since she does not have the funds to physically bring the author of the Report Trevor Joyce, Principal of HD Forensic Experts Pty Limited.

[9] The Defendant in his Affidavit in Response dated 29 January 2015 sworn by the Defendant Chandra Sen Govind stated inter-alia:

9.1 In paragraph 5 of the Affidavit, the Defendant pleaded that the Report dated 14 January 2015 should be rejected as inadmissible by this court setting out various documents divulged by the Plaintiff and the Defendant (which are in the Agreed Bundle) were not sent for examination by the Forensic Expert and some documents referred to the expert were not discovered to the Defendant's solicitors. However, all this matters could be raised at the trial and I conclude the reasons given for rejection of the report are not justified.

9.2 The Defendant further stated the Plaintiff had more than sufficient time opportunity to seek for an analysis and examination of the signatures since these documents were disclosed to the Plaintiff in March 2013. However, the Plaintiff is the mother of the Defendant and it was suggested for settlement of the matter on various dates before the court and the Statement of Claim was amended in February 2013. I further observe the Plaintiff is retired and averred that she had to collect monies from the relatives to pay the expert. Considering all these factors, I conclude the delay is justified.

[10] Considering all the Affidavit evidence before me, I conclude that the Report by the Forensic Expert should be an assistance to this court to determine the authenticity of the Documents and determine whether there was a falsification and fraud perpetrated by the Defendant. I also determine that the Plaintiff Raj Mati to tender the Forensic Expert's Report dated 14 January 2015, in her evidence.

[11] The Plaintiff had made this application as provided in Section 14 of the Civil Evidence Act 2002 with regard to expert reports.

Section 14 provides:

"PART IV – EXPERT AND OPINION EVIDENCE

Rules of court with respect to expert reports and oral expert evidence

14. – (1) Notwithstanding any enactment or rule of law by virtue of which document prepared for the purpose of pending or contemplated civil proceedings or in connection with obtaining or giving of legal advice are in certain circumstances privileged from disclosure, provision may be made by rules of court –

(a) for enabling the court in any civil proceedings to direct, with respect to medical matters or matters of any other class specified in the direction, that the parties or some of them must each by a specified date (or such later date as may be permitted or agreed in accordance with the rules) disclose to the other or others in the form of one of more expert reports the expert evidence on matters of that class which the party proposes to adduce as part of its case at the trial; and

(b) for prohibiting a party that fails to comply with a direction given in any such proceedings under rules of court except with the leave of the court, any statement (whether of fact or opinion) contained in any expert report in so far as that statement deals with matters of any class specified in the direction.

(2) Provision may be made by rules of court as to the conditions subject to which oral expert evidence may be given in civil proceedings.

(3) Without limiting subsection (2), rules of court made in pursuance of that subsection may make provision for prohibiting a party that fails to comply with a direction given as mentioned in subsection (1)(b) from adducing, except with the leave of the court, any oral expert evidence whatsoever with respect to matters of any class specified in the direction.

(4) Rules of court made under this section may make different provisions for different classes of cases, for expert reports dealing with matters of different classes, and for other different circumstances.

(5) References in this section to an expert report are references to a written report by a person dealing wholly or mainly with matters on which he or she is (or would if living be) qualified to give expert evidence.

(6) ..........................................

(7) ..........................................".

The Plaintiff seeks leave from the court under the provisions of this Section. Sub-section (4) states "rules of court should be made under this section different classes of cases for expert reports dealing with matters of different classes and for other different circumstances".

In the High Court Rules 1988 only rule available for expert evidence is Order 25 Rule 8 which is for personal injury cases. It is a well accepted principle that if it's not forbidden it is allowed. I apply the said rule to use the inherent jurisdiction of this court to grant leave to produce the Experts Report (marked J) dated 14 January 2015 to produce through the Plaintiff, Ram Mati in her evidence, otherwise great prejudice will be caused to the Plaintiff.

Specifically considering the paragraph 6, 7, 8 and 9 of the Statement of Claim which discloses a falsification of the documents; obviously the HD Forensic Expert Report will assist the court to make determination in this case.

[13] However, certain amount of prejudice will cause to the Defendant if the Plaintiff is only permitted to produce the Expert Report at this later stage of the proceedings. The author of the report is also not subject to cross examination. In the circumstances, this court has to act in fair and just manner and the Defendant should be given an opportunity to obtain a report from an expert and to produce it through the evidence of the Defendant and the court will be in a better position to analyze both reports together with other evidence adduced and make a proper determination.

The Orders of the court:

(1) The Plaintiff is granted to leave to adduce HD Forensic Experts Report as per paragraph (i) of the Notice of Motion dated 21 January 2015.

(2) The Defendant is granted 3 months time to obtain a HD Forensic Experts Report and to produce the said Report through the Defendant, Chandra Sen Govind.

(3) Costs of this application is costs in suit.

Delivered at Suva this 26th Day of May 2015.

............................
C. KOTIGALAGE
JUDGE