High Court of Fiji

Document invalid until properly stamped

100.-(1) Any document which ought to bear a stamp under rovisions ofns of this Part shall not be of any validity unless and until it is properly stamped nor shall any judge, magistrate or officer ofcourt allow such document to be used, although nogh no exception be raised thereto, until such document has been first duly stamped.

Court may order document to be stamped

(2) But if any such document is through mistake or inadvertence received, filed or used without being properly stamped, the court in which the same is so received, filed or used may, if it thinks fit, order that the same be stamped, and thereupon such document shall be as valid as if it had been properly stamped in the first instance.

14. If the documents ABD1 and ABD2 are documents that come within Part IV of the Stamp Duties Act, which they do not appear to be, still on the basis that those documents are received through mistake or inadvertence the Court may if it thinks fit order that they be stamped. Therefore the Deputy Registrar may consider the reference of the recovery of stamp duty in respect of ABD1 and ABD2 by Court made on 7th March 2012 as an order for the said documents to be stamped, if the original documents are produced and such documents come within Part IV of the Stamp Duties Act. However this Court is of the view that Documents ABD1 and ABD2 are not documents that come within Part IV of the Stamp Duties Act, and Part IV is in respect of recovery of stamp fees; "...payable in money in any public department or office connected with the public service or to the officers thereof" as stipulated by section 99, whereas ABD1 and ABD2 are Agreements entered between parties privately and the stamp fee is not "..payable in money in any public service or to the officers thereto..".
    
15. Therefore could the court take cognizance of ABD1and ABD2?
    
16. As such this Court shall first have to determine whether the documents ABD1 and ABD2 are prohibited from being "pleaded or given in evidence or admitted to be good, useful or available in law or equity unless it is duly stamped in accordance with the law in force at the time when it was first executed" as enacted by section 41 of the Stamp Duties Act. The said provision appears to be mandatory by the use of the words highlighted as follows in section 41; "Except as aforesaid no instrument executed in Fiji or relating (wheresoever executed) to any property situate or to any matter or thing done or to be done in any part of Fiji shall except in criminal proceedings be pleaded...." The discretion appears to be available to Court under section 39(1) only to receive or even not receive the document after complying with the terms therein at the time of production or thereafter (with the exception of documents coming within Part IV of the Stamp Duties Act and dealt under section 100(1) and 100(2)).
    
17. As noted above the 2 photocopies of Documents ABD1 and ABD2 do not indicate adhesive stamps being used and in any event the Plaintiffs Counsel too indirectly admits in their written submissions that they are not so stamped, in submitting that those documents ought to bear a stamp of 1$ each. (Falling within the 1st category set out in the Schedule to the Stamp Act). On the face of ABD1 and ABD2 they appear to be not duly stamped in accordance with the law in force at the time when it was first executed as per section 41 of the Stamp duty Act thereby attracting the prohibition therein. If such documents are not duly stamped at the time of execution and subsequently submitted to be denoted to the Commissioner of Stamps then such a document should bear a penalty depending on the delay as prescribed by the Stamp Duties Act. The originals of the said documents or the duly noted documents of ABD1 and ABD2 have not been made available to Court though noticed to do so and 7 days have lapsed since 7th March 2012 (till 13th March 2012), when the Plaintiffs Counsel Mr. Iqbal Khan moved for 7 days to tender the originals and nevertheless thereafter conceded to the submissions of the Defendants Counsels that no such documents can now be submitted and considered by Court. Therefore the Court is compelled to conclude that ABD1 and ABD2 are not duly stamped in accordance with the law in force at the time when it was first executed, as required by section 41 of the Stamp Duty Act. Therefore it follows that ABD1 and ABD2 are prohibited from being "pleaded or given in evidence or admitted to be good, useful or available in law or equity"(ie. cognizance)by section 41 of the Stamp Duties Act.
    
18. It is appreciated by this Court that section 41 of the Stamp Duties Act does not declare the documents null and void or unenforceable ab initio, but it is in failing to comply with section 39 that it is rendered subject to the prohibition in section 41. It is a technical defence, and though undesirable and unjust as it may seem, it is nevertheless prescribed by statute, and the advantage gained is made available in an adversarial trial system as followed in Fiji and most countries, though the obvious purpose of the legislature is to facilitate the recovery of stamp duty and not to impede the rules of admissibility of evidence. Had the said documents been duly denoted with stamp duty, penalty and produced, on the opportunity provided by the order of Court, and if the parties had not agreed not to admit those documents as they did by Counsel, then this Court would certainly have been inclined to receive them. However the Plaintiff opting not to do so (as submitted by Mr. Iqbal Khan Plaintiffs Counsel in agreeing with the submission of the Defendants Counsel Mr. Maharaj on 7th March 2012) this Court needs to proceed to judgment in this case, with the recovery of stamp duty and penalty on the said documents, referred to the Deputy Registrar for implementation if possible.
    
19. Though the Plaintiff's Counsel made no effort to submit any case law or authorities empowering Court to accept such documents even after trial, upon being duly stamped, the Privy Council case of Nijie and Others vs. Amadou Cora (The Gambia)[1997] UKPC 41 (28TH July 1997) at paragraph 7 as per Lord Clyde states as follows(with Lord Goff of Chieveley, Lord Griffiths, Lord Jauncey of Tulichettle, Lord Steyn agreeing );
    

"7. Furthermore it does not seem to their Lordships that the Court was correct in believing that it had no discretion but to reject the evidence. No doubt it is of importance that the proper duty should be paid on all instruments which are to be given in evidence but where the matter is open to remedy it is preferable that the duty be paid with any due penalty so as to enable the ends of justice to be served than that the courts should be deprived of evidence which might be material to a proper resolution of the case which is being tried. The powers of the Court of Appeal in Gambia appear to be sufficiently wide to enable the omission to be rectified without the necessity of rejecting all the documents which were not duly stamped. Precisely how as matter of procedure the court should decide to achieve a remedy in such circumstances must be a problem for the Gambian courts to decide as a matter peculiarly within their own jurisdiction. So far as the present case is concerned the documents had already been admitted in evidence, albeit contrary to the Act, but a late stamping under the eye or at the order of the Court of Appeal could have given a retrospective validation of what had been done and any possible rejection of the evidence obviated. The documents have now been stamped and their Lordships have had no hesitation in taking them into consideration."

Though this Court gave the opportunity by notice to both parties to produce the original documents and have them or their copies denoted as provision within the Stamp Duties Act appear to exist even to stamp a copy in the absence of the original, the Plaintiff opted not to do so.

20. In Ratu No 2 v Native Land Development Corporation [1987] FJSC 9; [1991] 37 FLR 146 (17 February 1987) Cullinan J citing two other authorities stated as follows (under "Miscellaneous Submissions" unnumbered 6th paragraph);
    

"In any event, insufficient stamping does not invalidate the document, and is a matter which can be subsequently rectified (see the cases of Rauzia Mohammed v. ANZ Banking Group FCA Reps 85/398 per Kermode J. at p. 3 and Mar & Ors. v. NBF & ANZ (Suva Civ. 880/1985) pp. 25/26)."

21. In Igor v Narodetsky [2004] FJHC H21; HBC0459.2004 (13 December 2004), Gerard Winter J observed ( under the heading "Preliminary Arguments" at the second unnumbered parag;
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"The pledge made to secure the loan loan was rwas recorded in writing. It was apparent from the face of the documents that they had not been stamped. This was in breach of Section 29(1) (sic.) of the Stamp Duties Act (Cap. 205). The section requires that all instruments be stamped with duty for the various distinct matters contained in the document. If the document is not stamped then Section 41 provides that no instrument or agreement is admissible at law or equity unless and until it is duly stamped. The Act goes on in Section 100(1) to provide that any(sic.) document which ought to be stamped shall be invalid unless it is properly stamped. The Courts are prohibited from allowing any unstamped documents into evidence."

This Court respectfully differs with the view of Winters J, expressed with regard to section 100(1) as the said section applies, in the view of this Court with regard to documents under Part IV of the Stamp Duties Act and not in respect of 'any' document as herein before set out.

22. In the case of Prabha Wati vs. Nardeo Mishra HBC 37 OF 2003 (unreported judgment of 21/4/2010 of this Court)this Court discovered that a particular document was not stamped in the course of writing the judgment, and consequently the judgment was differed till the stamp duty and penalty was recovered and the document duly denoted. However it was the original document that was produced in evidence in that case and the Counsel graciously conceded their error in not bringing the non stamping to the attention of Court. In that case this Court advised the Deputy Registrar in writing of the duty cast on the officers of Court by section 39 and other provisions of the Stamp Duties Act, and to train the officers accordingly.
    
23. However whether such documents are duly stamped or not is not a matter for the discretion of the parties, and when detected it casts a burden on the officers of the Court as envisaged under section 39(2) to detain the document, transmit to the Commissioner and to recover the stamp duty and the penalty, in view of the mandatory nature of the word "shall" therein. However the receiving of the document in evidence or not is left to the discretion of Court by the use of the word "may" in the second limb of section 39(1), provided "the instrument is one which may legally be stamped after execution". Such are the terms upon which a document which is not stamped or insufficiently stamped when produced may be admitted in evidence provided it is brought to the attention of the Court, as section 41 of the Stamp Duties Act that follows thereafter prohibits the document to "be pleaded or given in evidence or admitted to be good, useful or available in law or equity unless it is duly stamped in accordance with the law in force at the time when it was first executed". See Section 41 of the Stamp Duties Act above.
    
24. Mr. Iqbal Khan appearing for the Plaintiff on the 7th March 2012 agreed on behalf of the Plaintiff with the submission of the Defendant that no documents can be now admitted after the trial was concluded as referred to above. It may well be due to the fact that the Defendant is now deprived of leading evidence which they may well have done had the document duly denoted or the original duly stamped had been produced at the trial. Therefore even if the documents ABD1 or ABD2 are duly denoted and Produced or their originals duly stamped are produced this Court has the discretion to receive or not to receive them as set out above.
    
25. On Mr. Iqbal Khan agreeing to Mr. Maharaj's submission that no documents should now be received by this Court it would not be for this Court to exercise its discretion and admit any documents including even the originals of ABD1 or ABD2 at this stage after the trial, as it would deprive the Defendant the right to a unimpeded defence, a right which even the Plaintiff's Counsel on their behalf has conceded. The Defendant may well have led evidence of the Defendants or submitted other documents or even further submissions and even concentrated on other defenses had the originals of the said documents or the denoted documents were produced at the trial or even immediately after the trial on the Plaintiff being alerted by the Defendants written submissions, whereas this Court could have considered even reopening the trial. However now a considerable period of time has lapsed and to admit even the originals would cause prejudice to the Defendants and affect the sanctity of a trial under the adversarial system. As much as sanitation is paramount to a surgical procedure so is sanctity to a trial. As such this Court in this particular case and limited to its circumstances is in agreement with both Counsels that the originals of ABD1 and ABD2 duly stamped or denoted ought not be received by Court and instead proceed on the basis that originals of ABD1 and ABD2 are not before Court. The Court of Appeal may exercising its discretion admit the documents and deal with the matter as it deems fit as set out in the afore cited Privy Council case, as it may even order a re-trial, which this Court exercising original jurisdiction cannot do.
    
26. The Indemnity, Guarantee and Bailment Act [Cap, at section 5ion 59 prescribes as follows;
    

59. No action shall be brought-