Singh v Khan [2010] FJMC 17; Civil Case 89 of 2008 (3 March 2010)

In The First Class Magistrates Court
At Nausori
Fiji Islands

Civil Case No: 89 of 2008

ABHAY KUMAR SINGH practicing as AK SINGH LAW
of suite 1, 2nd Floor, Manic Building, Nausori
Plaintiff

v

MAHMOOD ALI KHAN
Defendant

Before: C. Lakshman
Resident Magistrate

For Plaintiff: In Person
For the Defendant: In Person

JUDGEMENT

Introduction

1). On 12th December 2008, the Plaintiff, filed a Writ of Summons and Statement of Claim in the sum of $47,025.00 being unpaid legal fees by the Defendant.

2). The Defendants on 25th February 2009 filed a Statement of Defence that the Plaintiff’s Claim be dismissed. The Defendant in his Defence has stated that he has already paid $16,000.00. On 25th March 2009 the Plaintiff filed a reply to the statement of defence.

HEARING

This case was heard on 10th December 2009.

THE PLAINTIFF’S CASE

The Plaintiff himself gave evidence and called one other witness, Farina Jasmine Nisha. The Plaintiff submitted a number of documentary evidence which the Court has considered.

THE DEFENDANTS WITNESSES

The Defendant gave evidence and also called Reena Devi Khan as his witness.

Submissions

At the close of the case the Plaintiff and the Defendant made written submissions which the Court has considered.

Analysis of the Evidence

This Court has scrutinised and evaluated all the evidence that was tendered. The Court has also noted and scrutinized the receipts, instruction sheets, and the volumes of the court records and proceedings.

The Plaintiff is claiming $47025.00 from the Defendant as per his statement of claim. The Defendant denies the claim that he owes that sum and has stated that he has already paid the Plaintiff $16750.00 and not $2600.00 as is claimed by the Plaintiff. The Defendant further gave evidence that he “paid him (the plaintiff) for what he did”.

The Defendant also tendered in Court receipts of legal fees of payments made to Mehboob Raza & Associates and numerous receipts of judicial department of fees for notice of appeal, court records, statement of defence, hearing fees, subpoena, copy of transcripts, response to final order.

The Court notes that 2 instruction to act dated have been tendered in court by the Plaintiff dated 4th March 2006 and 29th July 2007 respectively. In his evidence the Plaintiff stated that he asked the Defendant to sign a “new instruction with different fees and all previous fees was forgiven”. This to the Court seems bit odd.

The Court has scrutinised the 2nd instruction sheet dated 29th July 2007 and finds that there is no reference to any previous instruction sheet and or that the previous fees was waived. The Court finds that the instruction sheet dated 29th July 2007 does not reflect the evidence given in Court by the Plaintiff. The Defendant from the receipts tendered in Court by then had paid the Plaintiff over $10,000.00 and also paid Mr Raza $1000.00.

The Defendant has argued that he had an oral agreement with the Plaintiff and that the Plaintiff had agreed to do the appeal for free. The Court has carefully scrutinsed the instruction sheet dated 29th July 2007 and the Court finds that this instruction sheet contains additional clause that the Defendant “can seek independent advice from another solicitor regarding the signing of this sheet.” This was not in the sheet dated 4th March 2006. The Court wonders if the instruction sheet dated 29th July 2007 with all the details including the fees was handed to the Defendant to get independent legal advice. Meaning the Defendant was asked to take the sheet along with the agreed fees in place to another lawyer to get advice. The Court further notes that certain provisions of the instruction sheet are typed and some other portion is hand written. The Court notes that the fees is hand written as “agreed fees: $45,000-00 plus Vat for all appeals included. Paid: $1000.00. Balance: $49625-00.” The Court finds the portion where agreed fees is stated to be in a different format to the rest of the instruction sheet.

The Defendant in cross examination agreed that the signature in the instruction sheet of 29th July 2007 and 4th March 2006 was his. The Court from the documents tendered and its scrutiny of the document is not satisfied that the agreed fees were in the sheet when the Defendant signed the instruction sheet. The way the agreed fees and handwritten portion is set out in the sheet the Court is of the view this was inserted later. The Defendant has clearly maintained that he would never commit to pay such a sum as fees which he knew he did not have the ability to pay. The Court here notes that this is why a hand written sheet was constructed dated 4th November 2008 which is in the Plaintiff’s handwriting that the Defendant will pay $45,000.00. The Defendant denied that the signature in this sheet was his. The Court believes the Defendant.

The Court also notes the submission and tendering of the signature analysis by the Plaintiff from an Australian forensic examiner. The Court did not give any credence or regard to this as the author was not available for cross examination by the Defendant. The Court noted all the evidence and documents tendered in Court. The Court also noted the demeanor of all the witnesses. The Court believes the Defendant.

The Plaintiffs claim against the Defendant fails.

Right to appeal.

Chaitanya Lakshman
Resident Magistrate

3/03/10