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Wati v Devi [2001] FJHC 142; Hba0004J.2000 (12 November 2001)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL APPEAL NO. HBA 4 OF 2000S
(SUVA MAGISTRATES’ COURT CIVIL ACTION NO. 2242 OF 1996)

Between:

PADMA WATI
(f/n Subarmani)
and
RAKESH CHAND
(f/n Mahesh Prasad)
Appellants

and

KIRAN DEVI
(f/n Shiu Prasad)
Respondent

A.K. Singh for the Appellants
S. Parshotam with Ms. R. Morris for the Respondent

JUDGMENT

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. In my view the findings of fact reached by the Resident Magistrate on this issue were reasonably open to her and were reached without misdirection. I decline to interfere with 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 system is wholly ineffective and should be replaced.

Mr. Singh relied on section 9 (1) of the Act and suggested that the proceedings in the Magistrates’ Court should 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. I agree.

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. Mr. Singh argued that by also commencing proceedings in the Magistrates’ Court the Respondent was hoping to recover twice.

In reply to my question Mr. Singh conceded that he was not aware that the Respondent had actually obtained anything from the Official Receiver. The effect of dismissing this appeal will in any event be to prevent her proceeding further with that claim for the reasons already given.

Mr. Singh did his best to present an appeal which I find to be both wholly unarguable and quite devoid of merit. The appeal fails and is dismissed. The Respondent will have her costs to be summarily assessed or taxed if not agreed.

In view of the sorry facts revealed by this litigation I direct that a copy of this Judgment be sent to the Director of Public Prosecutions for such further action by him as may be advised.

M.D. Scott
Judge

12 November 2001