Wati v Devi [2001] FJLawRp 100; [2001] 1 FLR 424 (12 November 2001)

PADMA WATI & RAKESH CHAND v KIRAN DEVI

High Court Civil Appellate Jurisdiction

1, 12 November, 2001

HBA 4/00S

Debt recovery - appeal from judgment of Magistrates' Court rejecting defences – swindling - dishonest conduct - credibility of witnesses – whether appellate court can interfere with findings of fact reached by Magistrates' Court

Bankruptcy – receiving order – whether consent of Official Receiver required –- whether the debt was within section 9 of the Bankruptcy Act – whether Respondent seeking to recover twice from Official Receiver and from Court - Bankruptcy Act ss9(1), 13

The Magistrates' Court awarded judgment to the Respondent on a claim that the Appellants obtained $14,000 from uneducated or gullible persons such as the Respondent by promising to obtain visas for them to emigrate. The Magistrates' Court found the Appellants conducted improper and dubious practices. The Appellants appealed the findings on the grounds that the resident magistrate erred in not accepting A1's plea of non est factum in respect of a returned cheque, that A2 had a receiving order against him, that by filing proof of debt with the office of the Official Receiver, the Respondent was hoping to recover twice. The appellate Court issued interim stay of execution of joint on 7 February 2000, extended on 3 further occasions. It ordered written submissions. The appellate Court declined to interfere with findings of fact which were open to the resident magistrate to reach. The appellate Court found the appeal wholly unarguable and devoid of merit.

Held–(1) The debt in question was incurred by A2 four years after a receiving order was made. It was not, in the words of the section 9 of the Bankruptcy Act a debt "to which the debtor is subject at the date of the receiving order" and accordingly section 9 has no application.

(2) An appellate court will decline to interfere with findings of fact reached by the Resident Magistrate in rejecting the first Appellant's plea of "non est factum", or in finding that the case rested on the credibility of witnesses, which were reasonably open to her and were reached without misdirection.

Obitctum &#82 – there is no good reason to prevent a list of gazetted receiving orders published as required by section 13 of the Bankruptcy Act being available for inspection at the office of the Official Receiver for the protection of the public. The nt system is wholly inly ineffective and should be replaced.

No cases referred to in Judgment

Abhay K. Singh for the Appellants
Subhas Parshotam with Rita Morris for the Respondent

12 November, 2001

JUDGMENT

Scott, J

The Appellants were found by the Resident Magistrate (Ms. G. Phillips RM) to have engaged in a particularly nasty form of swindling which is unfortunately rather prevalent in Fiji. It consists of obtaining quite sizeable sums of money, here over $14,000, from uneducated or gullible persons by promising to obtain visas for them to emigrate.

The Respondent sued for the return of her money and was met by a number of defences which the Resident Magistrate rejected.

In her judgment the Resident Magistrate stated: "the central issue in the case was one of credibility". Having read the record I agree. The Resident Magistrate went on to say that she found the Respondent to be honest and truthful. By contrast she found the first Appellant to be evasive and the second Appellant to be a liar. Both Appellants gave the Resident Magistrate the overall impression that they conducted improper and dubious practices.

Mr. Singh filed a concise and helpful written submission on 14 March 2001. His second ground of appeal may conveniently be taken first. It was suggested that the Resident Magistrate erred in not accepting the first Appellant's plea of "non est factum" in relation to a returned cheque which she had tendered to the Respondent.y view the findings of fact reached by the Resident Magistrgistrate on this issue were reasonably open to her and were reached without misdirection. I decline terfere with theh them.

The next ground, which was the ground principally relied on by Mr. Singh arose from the fact that the second Appellant has a receiving order against him. In view of the grossly dishonest course of conduct which was proved against the Appellants one may be forgiven once again for wondering what good reason there might be to prevent a list of gazetted receiving orders published as required by section 13 of the Bankruptcy Act (Cap. 48-the Act) not being available for inspection at the office of the Official Receiver for the protection of the public. The present systemholly inly ineffective and should be replaced.

Mr. Singh reliedection 9(1) of the Act and suggested that the proceedings in the Magistrates' Court should ould not have been initiated without the consent of the Official Receiver. In answer, Ms. Morris who also filed a comprehensive and learned written submission suggested that since the debt in question was incurred by the second Appellant four years after the receiving order was made it was not, in the words of the section a debt "to which the debtor is subject at the date of the receiving order" and that accordingly the section has no application. ee.

The final ground of appeal advanced by Mr. Singh arose from the fact that the Respondent had filed proof of the debt with the Official Receiver. Mrgh arthat by also commenommencing proceedings in the Magistrates' Court the Respondent was was hoping to recover twice.

ingh did his best to prto present an appeal which I find to be bholly ully unarguable and quite devoid of merit. The appeal faid is dismisssmissed. The Responwill have her coer costs to be summarily assessed or tif not agreed.

In view of the sorrts rcts reve revealed by this litigation I direct that a copy of this Judgment be sent to trector of Public Prosecutiocutions for such further action by him as may be advised.

Appeal fails.

Marie Chan