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Bano v Kumar [2016] FJHC 273; HBA10.2014 (15 April 2016)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
(WESTERN DIVISION)

HBA Civil Action NO. 10 of 2014

IN THE MATTER of an application Leave to Appeal Out of Time

AND IN THE MATTER of the decision of Civil Case between AnandNilesh Kumar and Nazia Farina Bano

BETWEEN :

NAZIA FARINA BANO of Tomuka Lautoka
(APPELLANT)

AND :

ANAND NILESH KUMAR of 47 Ratu Meli Road, Lautoka
(RESPONDENT)

Counsel : Appellant in person (later written submissions
Through Tuifagalele Legal)

Mr W Pillay for respondent

Date of Hearing : 21 August 2015
Date of Judgment: 15 April 2016

JUDGMENT

Introduction

[1] This is an appeal by the appellant (original defendant) against the judgment of learned Magistrate sitting at Lautoka. The learned Magistrate by his judgment of 30 July 2014 ordered in favour of the respondent (original plaintiff) as follows:

1. The Defendant to pay the sum of $33,390.06 as general damages to the plaintiff.
   
2. Interest to be paid to the above total sum at the rate of 3% calculated from 5/10/2010 to the date of judgment.
   

100. No order for special damages and finding.
     

4. Further costs are ordered against the defendant to pay the plaintiff a sum of $2000.00 summarily assessed.
   

[2] The appeal was orally argued. Only the appellant had filed written submission. The respondent did not file any though leave granted to do so.

Grounds of Appeal

[3] The appellant filed her grounds of appeal in time which consists of15 grounds namely:

1. That my representing counsels practicing license was cancelled and the file was taken to the legal office in Suva.
   
2. That the legal receiver was appointed late for the receiving of files from the legal commission.
   
3. That I have not received my file to this date (22nd of August 2014) thus, not being able to appoint a counsel to represent me.
   
4. That evidence given to the counsel to present in the honourable court were not presented by the counsel.
   
5. That I have evidence of the respondent using and having excess to my email account and password, for his own purposes. Annexed hereto marked as A1 is a copy of the emails sent by the respondent for his own purposes.
   
6. That this evidence was submitted to the representing council, however not supplied by the counsel to the honourable court.
   
7. That on the 15th day of January a police report was lodged against the respondent and a police being charged for two counts of conspiracy to pervert the course of justice and destroying evidence in the case no. CF703/12. Annexed and hereto marked as A2 is a copy of the summons served to witness.
   
8. That the owner of Rarosi Internet Café was not taken as a witness into the case.
   
9. That the respondent states he is a businessman, a person in his rightful mind in particular being a businessman knowing very well where such a substantial amount is involved should have put everything in black and white.
   
10. That as states by the respondent he had gone together to purchase the items that he is claiming he had paid for, can he present to the honourable court the original receipts of the items as he had stated that he had paid for the items and if one pays for any item he/she is purchasing is supplied with original receipts not photocopies.
    
11. That the respondent presents to the honourable court original copies of the receipts as he is claiming that he had paid for the items.
    
12. That I was never informed by my Council namely Ms Qisa that I have to submit my handwriting to the court.
    
13. That as stated in the judgment by the court under Analysis number 1.6, email sent by the respondent mentioned date 2.2.2011 was submitted to the council Ms Qisa however was not presented to the honourable court. Annexed hereto marked as A3 is a copy of the email sent by the respondent.
    
14. That annexed hereto marked as A4 are emails sent by the respondent from his account of threatening about what he can do. These emails were submitted to the council to submit to the honourable court; however the counsel did not submit the evidence in court.
    
15. That Anand Nilesh Kumar is being charged for burglary and theft under the Crimes Decree No. 44 of 2009 section 312(1) and section 291(1) before the magistrates court no. 3, particulars of offence states Anand Nilesh Kumar on the 15th day of January 2011 at Lautoka in the Western Division stole a computer CPU valued at $975.00 the property of Rarosi Internet Café with the intention of permanently depriving the said Rarosi Internet Café, against which Rajneel Singh, myself and Ganesh are called as witness. Annexed hereto marked as A4 is a copy of the summons served for witnessing.
    

Background

[4]The respondent (original plaintiff) brought a civil action against the appellant (original defendant) in the Magistrate’s Court at Lautoka claiming the return of the money advanced to the appellant during the period between October 2010 and January 201, which was as a result of the relationship the respondent had with the appellant. The respondent advanced a sum of $46,628.95 to the appellant. This advance was to help the appellant to set-up an internet café. The respondent advanced the money to the appellant on the condition that the advance will be treated as a loan repayable by monthly instalments over five years. The claim was founded on an oral agreement arranged between the parties. On 30 July 2014 the learned Magistrate, after trial in which the appellant was represented by her counsel, delivered judgment in favour of the respondent granting general damage in the sum of $33,390.06 together with summarily assessed costs of $2,000.00. The appellant appeals that judgment.

Issue

[5] The primary issues to be decided by this court are that: 1.whether the appellant could rely on her counsel’s mistake as a ground of appeal. 2. Whether the appellate court could admit fresh evidence in appeal. 3. Whether the learned Magistrate erred in refusing to call one of the appellant’s witnesses to give evidence for the appellant.

Discussion

[06]Counsel’s mistake as ground of appeal: Grounds of appeal 1, 2 & 3 indicate the suspension of her counsel’s practising license. The appellant submits that her counsel’s practising license was suspended, the file was taken to Suva and the same was released to her on 22 August 2014.As a result of it, she was unable to retain a counsel to represent her at the trial. These grounds should fail because the records of the proceedings in the court below show that the appellant was represented by counsel throughout the trial, up until delivery of the judgment on 30 July 2014.

[07] Moreover, the appellant must bear responsibility of her counsel’s mistakes committed in the conduct of the trial on her behalf. In Bank of Scotland v Pereira & Others[2011] EWHC 28; [2011] 3 All ER 392, Lord Neuberger MR had this to say:

‘I reject the contention that former solicitors; were were to blame to delay the matter rather than, saying that 'this is a case where the normal rule shall apply that a party has to bear responsibility for delay whether it be causehim or his solicitors'< (Emphasis added).

[08] In my judgment, counsel’s mistake at the trial cannot form a valid ground of appeal.

[09]The appellant also submits that the evidence was made available by the appellant to her counsel but the counsel failed to adduce the said evidence during the hearing of the matter. The failure by counsel is itself a breach of instructions and as such the appellant ought not to be punished for such failure. Although the appellant has her recourse against her solicitor but the documents have been made available in her records that the same be taken into consideration. In support of this argument, she referred me to the case of authority of LADD v Marshall [1954] EWCA Civ 1; [1954] 3 All ER 745.

Ladd v Marshall Principles

[10]Under LADD v Marshall(Lord Denning) fresh evidence would be allowed on an appeal only if the evidence:

“In order to justify the reception of fresh evidence or a new trial, three conditions must be filled:

(a) could not have been obtained with reasonable diligence for use at the trial in the lower court;

(b) would probably have an important influence on the result; and

(c) was apparently credible. (Emphasis provided).

[11]The Ladd v Marshall test will be rarely satisfied where the fresh evidence goes merely to credit, see Hamilton v Al Fayed (N0.1) [2001] EMLR 394.

[12] In accordance with O.37, r.16 of the Magistrate’s Court Rules (‘MCR’) the appellate court may for the furtherance of justice allow any party to an appeal to adduce new evidence in support of his original case. The rule 16 provides that:

“It is not open, as of right, to any party to an appeal to adduce new evidence in support of its original case; for the furtherance of justice, the appellate court may, where it thinks fit, allow or require new evidence to be adduced. A party may, by leave of the appellate court, allege any facts essential to the issue that have come to his knowledge after the decision of the court below, and adduce evidence in support of such allegations.” (Emphasis added)

[13]In this appeal the appellant intends to adduce certain email correspondences allegedly sent by the respondent using the appellants email account as new evidence in support its original case. The appellant has improperly attached these emails to her grounds of appeal without leave of the court. The email correspondences are not new evidence that has come to her knowledge after the decision of the Magistrate’s Court. They were available at the trial. But her counsel opted not to produce them at the hearing below.

[14] It is pertinent to note that those email correspondences were available at the time of trial and it was due to her counsel’s oversight they were not adduced or led in evidence at the trial for the reason known to her counsel.

[15] The appellant must bear responsibility of her counsel’s actions. These email correspondences were not found after the judgment of the Magistrate court. As such, it cannot fall within the definition of fresh evidence. Therefore, LADD’s case (supra) has no application to the current appeal.

[16]Under O.37, r.16 of the MCR a party cannot adduce new evidence in support of his original case as of right. The appellate court may allow to adduce new evidence that have come to appellant’s knowledge after the decision of the court below. The appellant alleges that the respondent sent some emails using her email account. This fact was not stated in her statement of claim nor raised before the Magistrate at the trial. Since these documents were available for the appellant to adduce as evidence at the trial, the appellant cannot and is not entitled to invoke O.37, r.16 to rectify her counsel’s mistake.

Section 59 of Indemnity, Guarantee and Bailment Act (‘the IGBA’)

[17] The appellant further submits in the absence of any agreement in writing as required by section 59 (b) of the IGBA no action can subsist against the appellant. The ground that the respondent could not have maintained the action in view of section 59 (b) the IGBA has emerged in the written submission filed by the appellant. It is not included in the grounds of appeal. In any event, let me say few words about s.59.

[18] Now I will deal with section 59 of the IGBA. The relevant section provides that

No action shall be brought-

(a) whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate; or

(b) whereby to charge the defendant upon any special promise to answer for the debt,

(c) to charge any person upon any agreement made upon consideration of marriage; or

(d) upon any contract or sale of lands tenants or hereditaments or any interest in or concerning them; or

(e) upon any agreement that is not to be performed within the space of one year from the making thereof,

unless the agreement upon which such action is to be brought or some memorandum or note thereof is in writing and signed by the party to be charged there or some other person thereunto by him lawfully authorised.

[19] Section 59 of the IGBA falls under special provision in relation to Promises or agreements by parol. According to s. 59 (b) action cannot be brought to charge the defendant upon any special promise to answer for the debt.

[20] Even if I consider the submission advanced by the appellant as one of her grounds of appeal, she cannot succeed. This point was never argued before the Learned Magistrate. In any event, the respondent advanced some money to the appellant to help in her business. The appellant orally promised to return the advance given by the respondent. There was no special promise by the appellant to answer for the debt. In the circumstance, s.59 (d) of the IGBA has no application to this case. Therefore, the ground of appeal that the respondent could not have maintained the action in view of s.59 (d) is untenable and it has no merit.

Admission of secondary evidence

[21]The appellant further submits that the learned Magistrate erred in law and in fact in accepting and admitting as evidence copies of various invoices or receipts that were tendered by the respondent, when in fact the same were not original but photocopies and were in the name of Rarosi Internet Cafe. The acceptance of the same was not in accordance with the provisions contained in the Civil Evidence Act. The respondent as required did not give notice to the appellant that such evidence was to be used during the hearing.

[22] Section 10 of the Civil Evidence Act (Act No. 27 of 2002) permits to admit as evidence in civil proceedings a copy of the document or material part of it, authenticated in a manner the court approves. That section provides:

10.-(1) If a statement contained in a document is admissible as evidence in civil proceedings, it may be proved-

(a)by the production of that document; or

(b)whether or not that document is still in existence, by the production of a copy of that document or the material part of it, authenticated in a manner the court approves.

(2) It is immaterial for the purpose of this section how many extracts there are between a copy and the original.

[23]The rule for admission of sery evidence <160;(documens stated ited in Whitfield v Fausset [1749] EngR 24; [1750] 1 Ves Sen 387, at 388, by Lord Hardwicke and quoted in Masquerade Music Ltd rs. vringsteen> [2001] EWCA Civ 513 (10 April 2001) 001) and also quoted by the Fiji Court of Appeal in Moti Chandra & Company Ltd v Credit Corporation (Fiji) Ltd [2013] FJCA 129; ABU0011.2012 (5 December 2013) as follows:

"The rule is that the best evidence must be used that can be had, first the original; if that cannot be had, you may be let in to prove it any way, and by any circumstances the nature of the case will admit. This extends not only to deeds, but to records; ....But for this the law requires a proper foundation to be laid; and two things are necessary. First, to prove that such a deed once existed.....The next step is to show some ground that the deed is lost; or being in his adversary's hands, cannot be come at. What I go upon is, that there is sufficient evidence to trace this into the hands of the defendant, who is the purchaser of the estate.....This, the, is a strong foundation to let the plaintiff in to read the draft....." (My emphasis) (page 12)

[24] The appellant submits that, the Learned Magistrate erred in Law and in Fact in admitting as evidence copies of various invoices/receipts that was tendered by the respondent, when in fact the same were not original but photocopies and were in the name of Rarosi Internet Cafe. The acceptance of the same was not in accordance with the provisions contained in the Civil Evidence Act. The respondent as required did not give notice to the appellant that such evidence was to be used during hearing. That the respondent purchased those items then the receipts ought to have been made in his name.

[25] There is no specific requirement that the party intending to tender secondary evidence (photocopies) in civil proceedings must give notice. If the first original is lost or that cannot be had, it may be let in to prove it any way, and by any circumstances the nature of the case will admit.

[26] In accordance with s.10 (1) (b) of the Civil Evidence Act, a document is admissible in civil proceedings, whether or not that document is still in existence, by the production of a copy of that document or the material part of it, authenticated in a manner the court approves.

[27] The manner in which secondary evidence is to be admitted in evidence to prove a document is upto the trial judge and will depend on the circumstances of each case, see Moti Chandra’s case.

[28] The court has discretion to allow a copy of the document authenticated in a manner the court approves.

[29] In the court below the Learned Magistrate allowed the photocopies of the respondent’s documents to be led in evidence. He had the necessary discretion to do so. Above all, there was no objection by the appellant though represented by counsel to lead photocopies of the documents at the trial. There is nothing on the record to show that the appellant objected to the photocopies of the documents being tendered at the trial. Accordingly, it seems to me that the Learned Magistrate was right in her decision on this aspect of the case. Therefore the ground of appeal that the learned Magistrate erred in law in admitting photocopies of the documents as evidence has no merit.

Magistrate’s refusal to call witness

[30] I now turn to the ground of appeal that the learned Magistrate’s refusal to allow the owner of Rarosi Internet Cafe (Rajneel Rohitesh Singh) to give evidence caused serious miscarriage of justice to the appellant.

[31] The appellant submits that, the witness Rajneel was present in court but not permitted to give evidence after the respondent’s counsel objected that the witness was present within court room during the hearing of the matter.

[32] Counsel for the respondent, Mr Pillay submits that counsel appeared for the appellant at the trial decided not to call any other witnesses. As a result the appellant’s case was closed.

[33] The complaint is that the learned Magistrate refused to call Rajneel (owner of the Cafe) to give evidence. The court record (copy record) does not bear out what the appellant say. The learned Magistrate commenced the trial on 23 August 2013. Both parties gave evidence. At the close of the appellant’s evidence her counsel informed the court as follows:

‘....

Thank you madam I have no further questions.

Court: Do you wish to call any witness for your case?

A. No madam.

Court: That order need not to be made because they are not calling any other witnesses. Now I will give a mention date first because I want to have the proceedings typed first and then grant you time to write written submissions or as you wish you can make oral submissions and then the judgment.’(vide page 54 of the copy record)

[34] It is to be noted that no party is entitled to contradict a court record by making allegation in the written submission that there is nothing recorded in the Learned Magistrate’s notes in respect to the refusal of the said witness from giving evidence in the matter.

[35] What is crystal clear from the copy record is that the appellant’s counsel, after the conclusion of her evidence, opted not to call any other witnesses.

[36] There is rarely any material to support an allegation that the Learned Magistrate refused to call one of her witnesses.

Magistrate’s judgment is based on credibility

[37] The Learned Magistrate clearly identified the nature of the case that was in front of her. She correctly considered the issues that were to be determined by her. She preferred to accept the respondent’s evidence having had the opportunity to observe the demeanour of the witnesses. She gives reasons as to why she has preferred to accept the respondent’s evidence. In her analysis she states that:

‘...

According to the plaintiff terms of the agreement were that the money will be repay [sic] to the Plaintiff on monthly installments within a period of five years. This position was vehemently denied by the Defendant and in her evidence she completely refused that she obtained aby money from the Plaintiff. This was totally contrary to the defense claimed by the Defendant in her statement of defense and according to paragraph 6 the Defendant had admitted that the loan given by the Plaintiff was to earn 25% interest on the loan.

Therefore it is evidence that the position of the Defendantis regards to the conditions of the agreement is also unworthy of credit and inconsistent to her defense. Especially in regards to the EX 12 the hand written agreement the position of the Defendant is a total denial. However as correctly pointed out by the Plaintiff when the Defendant was given an opportunity to rebut that presumption by giving her hand writing specimens as ordered by the court on its order dated 11.07.2012 for an expert analysis and the refusal by the defendant to obey that order leads to a [sic] adverse impact on the credibility of the Defendant.

Since the test in civil matter is balance of probability with the aforesaid demeanor of the Defendant the court is compelled to believe the [sic] on the balance of the probability of the [sic] that the money was given to as a result offer an [sic] acceptance that the money to be paid on monthly installents within 5 years...’ [Vide pages 64 & 65 of the Copy record]. (Emphasis provided)

[38] It is abundantly clear that the appellant had given implausible and worthless evidence, which the Learned Magistrate rightfully rejected.

[39] The Learned Magistrate had given adequate reasons for rejecting the appellant’s evidence given at the trial and for accepting the respondent’s evidence. The Learned Magistrate had arrived at a correct decision. It must be affirmed.

Comment on Appellant’s letter to court

[40] Initially the judgment was reserved for 21September 2015 after the conclusion of the hearing of the appeal on 21 August 2015 when the appellant argued the appeal by herself. On 21 September 2015 the judgment was not delivered as it was not ready. The appellant appeared with counsel (Ms Merica) and sought to file written submissions. The court allowed the same to be filed. The appellant accordingly filed her written submission on 24 September 2015. Then the judgment was reserved again to be delivered on 23 October 2015. On that day the appellant appeared by her solicitors, Tuifagalele Legal. Before ascending to the bench I saw a letter that has come to my chambers mysteriously. It was attached with two emails allegedly sent to the appellant by the respondent. When I opened it I found that the letter is written by the appellant. The substance of the letter is hereunder:

‘... I have received two different emails from smokerman21@yahoo.com which belongs Anand Nilesh Kumar. In both his email he had mentioned about what money can do and how he has taken full advantage of his money. He even mentioned that he had paid you your price to have you on his side and also mentioned that none my grounds of appeal would be acceptable in Court...'

[41] I inquired the staff including my secretary as to who brought the letter to my chambers. They could not provide any clue in this regard.

[42] It is to be noted that the letter has been sent to court after the appellant filed the written submissions through her lawyer. By sending the letter the appellant has attempted to divert the course of justice. A letter of this kind should and will not deter the court from delivering judgment on merit of the case.

[43] It is also important to note that the parties had access to each other's email account. It can be drawn from the written submissions filed by the Appellant. Under paragraph 10 of the written submission the Appellant states:

"10. That in respect to the second test as afore stated it is with respect submitted that in ground 6 of the Appeal the Appellant has stated that the Respondent was using her email account for his own purpose. Pages 4 to 13of the records clearly show that the Respondent was the one using the Appellant's email account. Further it is submitted that pages 16 & 17 of the records confirm in writing by the Respondent that the Appellant did not owe any monies to him. This evidence has an important influence on the result of the case. The Respondent in his evidence had said that he owned a video shop namely POOJAS DVD and tendered exhibit PEXI (pages 187 – 188 of the records). It must be noted that pages 4 – 13 were the various emails sent by the Respondent using the Appellant email account but orders were made for his own shop POOJAS DVD shop".

Conclusion

[44] The Appellant is not entitled to rely on her solicitor's mistake at the trial as a ground of appeal. Strong grounds have to be shown before fresh evidence will be admitted in appeal. The rule in Ladd v Marshall applied to appeals from trials and final determinations, and reflected the policy of requiring parties to advance their entire case at trial, and not deliberately leaving all the points for the purpose of appeal. The Magistrate court did not err in not calling one of the witnesses of the appellant. The Magistrate has carefully considered both parties evidence given at the trial and has accepted the Respondent's evidence and he has given sufficient reasons for doing so. Therefore, no error has been committed by the Magistrate in this regard.

[45]For the reasons that I have given, this appeal is dismissed with summarily assessed costs of $1,000.00 payable by the appellant to the respondent.

Final Result

1. Appeal is dismissed.
   
2. Magistrate's judgment affirmed.
   
3. The appellant will pay summarily assessed costs of this appeal at $1.000.00 to the respondent.
   
4. The original record is to be transmitted back to Magistrate's Court Lautoka forthwith.
   

M H Mohamed Ajmeer
JUDGE

At Lautoka
15 April 2016