Ali v Bahi [2012] FJMC 141; Civil Case04.2009 (25 June 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI ISLANDS
AT SUVA

Civil Case No 4/2009

BETWEEN

SULTAN ALI & JAFRUL NISHA
(PLAINTIFFS)

AND

JAI RAM BAHI
(DEFENDANT)

PLAITIFFS : Mr. Samad (Samad Law)
DEFENDANT : No appearance.

JUDGEMENT

1. Plaintiff of this case by his statement of claim dated 22.12.2008 has claimed $ 26,889.13 from the defendant.
   
2. The claim states that the plaintiff made cash payments to the defendant during the period of 05.07.2001 - 15.10.2003 to secure a permanent residence visa to New Zealand. Having failed to provide the same, the defendant had promised to return all monies back to the plaintiff.
   
3. The defendant filed his response on 27.02.2009 and the petitioner replied to that on 04.03.2009.
   
4. The defendant has denied the claim. But he has stated that the plaintiff paid $ 2500-$ 3000 to begin the processing of permanent residence visa for New Zealand. The contention of the defendant is that it failed due to fault of the plaintiff. The defendant denied any promise made to the plaintiff.
   
5. The case was called in this Court on 28.11.2011 and the matter was fixed for hearing in the presence of both parties.
   
6. On 12.04.2012 the matter was called before this Court for hearing. The defendant did not appear and the case proceeded for hearing under Order 30 Rule 3 of the Magistrate's Court Rules.
   
7. Two plaintiffs namely Mr Sultan Ali and his wife Ms Jefrul Nisha testified to prove their claim.
   
8. Mr Ali who was 57 now stated that the he spotted the defendant through a newspaper advertisement and first met him in 2001 to prepare a passport. He had met him in Cumming Street office where the defendant advised the plaintiffs on overseas visas. He had made an initial payment of $ 1000 and later paid a total of $ 26836. This was done during the period of 2001-2003. He presented his wife's bank pass book to prove the withdrawals he made to pay the defendant in cash.
   
9. However later he has found that the defendant has not lodged any applications for permanent visa. He further stated that the defendant did not issue any receipts to him for the payments.
   
10. Later he went to the defendant on four separate occasions to claim his money. He was told by the defendant that the monies have been paid to the immigration. He has forwarded their passports to the immigration for it to be stamped. Later the plaintiffs have found that they were misled by the defendant.
    
11. There were two exhibits marked during the hearing of plaintiffs. Exhibit 01 was the copy of the pass book of Jefrul Nisha. Mr. Ali testified that all the substantial withdrawals were for the defendant. He tendered the second exhibit which was a tape to prove the subsequent conversations with the defendant. The Court will not rely on the Exhibit No 2 as there is a question on authenticity.
    
12. The evidence given by Ms Jefrul Nisha is a sequel of Mr Ali's testimony.
    
13. I have perused the copy of the original passbook (exhibit 01) which was tendered in Court. Witness stated that the amounts marked were for the defendant. I will now consider the amounts that were marked by the plaintiff,
    

05.07.01	- $ 470
11.12.01	- $ 1000
15.07.02	- $ 2800
12.08.02	- $ 1500
19.02.02	- $ 5000
25.02.03	- $ 2000
17.04.03	- $ 2500
22.04.03	- $ 3700
28.04.03	- $ 2200
07.05.03	- $ 640
14.03.03	- $ 240
06.06.03	- $ 3000
19.06.03	- $ 500
15.10.03	- $ 1000
TOTAL	- $ 26550

14. Even though the plaintiff stated to Court that $ 26889.13/- is due from the defendant, I observe that the actual amount he withdrew from their bank account is $ 26550. There is no evidence before me to establish that the plaintiffs made any payments other than the account withdrawals.
    
15. Having considered the evidence and the document marked by the plaintiff I conclude that the defendant owe $ 26,550 to the plaintiff.
    
16. It is settled that when the matter called for trial if one party does not appear, the presiding judicial officer can proceed with the trial. If the plaintiff appears he must prove his claim and the burden lies with him. The burden of proof extends only to the allegations made in the statement of claim. [Halsbury's Laws Of England 4th edition-Vol 37 (Practice & Procedure) Para 506/ Pg 383]
    
17. In view of the foregoing, I grant a judgment in favour of the Plaintiff for a sum of $ 26,550 and 5% post judgment interest until the full sum is paid by the defendant to the plaintiff.
    
18. In addition to the above, cost fixed at $ 200/- to be paid by the defendant to the plaintiff.
    

Yohan Liyanage
Resident Magistrate

25th June 2012