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Pal v Naidu [2010] FJMC 21; Civil Case 78.2009 (6 April 2010)

IN THE FIRST CLASS MAGISTRATES COURT
AT NAUSORI
FIJI ISLANDS

Civil Case No: 78 of 2009

MAHENDRA PAL
(f/n Ram Pal) of Lot 23, Wainibuku, Nasinu suing by his Lawful Attorney
SAMBHU LAL SHARMA of Nausori, Bussinessman
Plaintiff

V

SUNDRESAN NAIDU
(f/n Chinappa Naidu) of Davuilevu, Nausori, Mechanic
Defendant

Before: Chaitanya Lakshman
Resident Magistrate

For the Plaintiff: Mr. Sunil Kumar, Esq.
For the Defendant: Ms. Joytika Jattan (Mishra Prakash & Associates)

JUDGEMENT

Introduction

1). On 21st September 2009, the Plaintiffs Solicitor filed Writ of Summons and Statement of Claim seeking from the Defendant vacant possession of Crown Lease # 475366 and judgement in the sum of $7500.00 and rent at the rate of $500 until he vacated. $560.53 for telephone, electricity and gas bottles on hire with BOC, interest at the rate of 11% on arrears of rent and cost of the action.

2). The Defendant through his Counsel on 9th November 2009 filed a notice of intention to defend.

The Hearing

The hearing for the case took place on 3rd February 2010. The Plaintiff in this action called 3 witnesses. The Defendants also called 3 witnesses.

The Plaintiffs 3 witnesses were Sambhu Lal Sharma (Pw-1), Indar Pal (Pw-2) and Jai Chand (Pw-3). The Defendants 3 witnesses were Mua Mata Inoke (Dw-1), Ms Talei (Dw-2) and Sundresan Naidu (Dw-3).

Following the hearing the Court gave the Defendants 21 days to file submissions and the Plaintiffs 14 days thereafter to respond.

The Special Power of Attorney

The Court notes that the Writ of Summons and the Statement of Claim in this Action does not disclose the status of Plaintiff and why the action is being commenced by the lawful attorney of the Plaintiff using a Special Power of Attorney. The Statement of Claim does not disclose that the Plaintiff is living overseas. Apart from the cover of the Writ where it states MAHENDRA PAL (f/n Ram Pal) of Lot 23, Wainibuku, Nasinu suing by his Lawful Attorney SAMBHU LAL SHARMA of Nausori, Bussinessman the Statement of Claim does not disclose that the Plaintiff has given a Power of Attorney to one, Sambhu Lal Sharma.

The Plaintiff who in fact is living in United States of America commenced action against the Defendant in this Court relying on a “Special Power of Attorney” given to one, Sambhu Lal Sharma. The Special Power of Attorney (Which is attached to this judgement) states

“my agent shall have full power and authority to act on my behalf but only to the extent permitted by this Special Power of Attorney. My Agent’s power shall include the power to: 1. attend and represent the pending case in the small claim court to recover past due rents, collect for damages done to the premises and collect rents. For the real estate located at: Nasinu 9 ½ Millles Road, Fiji and legally described as Garage – Body Shop.” (The Court has noted the errors in the body of the Special Power of Attorney and has directly copied it and not altered it for the purposes of this judgement).

Mr Sambhu Lal Sharma told the Court that he relied on this Special Power of Attorney to appear in the Small Claim Tribunal and to file the Writ in this Court.

This Court has noted the decision of Justice Scott in Masirewa v Colonial Mutual Life Insurance Society Ltd [2003] FJHC 39; Hbc0273d.2002 (11 February 2003), where Justice Scott stated that

“In the absence of any statutory enactment or established practice defining what persons are to be heard as advocates a court has the power to regulate its own procedure and to determine what class of persons shall have audience (ex parte Evans [1846] EngR 789; (1846) 9 QB 279). As has been seen, Order 5 rule 6 of the High Court Rules permits a person either to appear in person or by way of a barrister and solicitor. In the Magistrates’ Court, Order IV of the Magistrates’ Court Rules (Cap 14 – Subs) implies the same position. There is no provision in either of these rules for persons other than a barrister and solicitor to appear on behalf of someone else. There are a number of provisions to allow unqualified persons to conduct prosecutions in the Magistrates’ Courts (see e.g. Criminal Procedure Code - Cap 21 – Section 75) but they are not relevant to the right of appearance in civil proceedings. On the other hand, the representation of a litigant in person by an unqualified person on an ad hoc, as opposed to a practicing basis does not appear to be specifically excluded. Does this mean that a person holding a power of attorney has a right to appear on behalf of the donor of the power? I think not.

Although Black (meaning Black’s Law Dictionary) defines a power of attorney to be “an instrument authorising another to act as one’s agent or attorney” it goes on to state that: “the attorney is attorney in fact.”

An “attorney in fact” is distinguished from an attorney at law, who is a person authorised to practice law. An attorney in fact is defined as:

“A private attorney authorised by another to do an act in his place and stead either for some particular purpose, as to do a particular act or for the transaction of business in general, not of a legal character.”

Under specific Fiji legislation namely the Property Law Act and the Land Transfer Act powers of attorney may be granted for the purposes of complying with the requirements of those Acts. In my opinion the powers of attorney capable of being granted under those Acts may not be used for another purpose namely to secure a right of audience in the Courts.”

The Plaintiff in this Action has used the powers normally granted under the Property Law Act and the Land Transfer Act to secure a right of audience in the Court. The Courts cannot and will not allow a document for another purpose, namely to comply with property and land matters to be used to secure a right of audience in Court. Such practices must cease.

Justice Scott further stated in Masirewa v Colonial Mutual Life Insurance Society Ltd [2003] FJHC 39 that: “ [x] is not the only person who has attempted to secure a right of audience in the Courts of the basis of a power of attorney. It may therefore be helpful to summarise my conclusions:

(1) A person whose repeated actions give rise to the reasonable conclusion that he is practising law must hold a current practising certificate.

(2) A person who practises law but does not hold a current practicing certificate commits a criminal offence (Legal Practitioners Act – Section 52 (2)).

(3) Only the holder of a current practising certificate has a right of audience in the courts to appear on behalf of someone else.

(4) Any litigant in person may appear in the courts on his own behalf.

(5) Save is exceptional circumstances and with the leave of the court, a person who does not hold a practicing certificate may not appear on behalf of someone else in the courts.”

This Court notes the conclusions of Justice Scotts in Masirewa.

The Special Power of Attorney that The Plaintiff relies on to allow Sambhu Lal Sharma to act for Mahendra Pal cannot be used in this Court. Sambhu Lal Sharma has no locus standi to appear and represent Mahendra Pal in this action. The Court is also surprised that in none of the documents filed in Court (especially the Writ and the Statement of Claim) it was shown that Mahendra Pal resided overseas. The Court noted at the hearing from the documents that Mahendra Pal was living overseas. The Counsels could do better by taking proper instructions, which will assist them in preparing the Writ and the Statement of Claim and properly advising their clients and also seeing that proper Actions are filed in Court. Legal Practitioners must also see that situations do not arise in future that the powers normally granted under Property Law Act and the Land Transfer Act is used to secure a right of audience in the Court.

Furthermore this Court notes that this is not the first Court Action that the Power of Attorney holder, Sambhu Lal Sharma has been involved in where he is using a Power of Attorney to represent someone else. This Court has noted that in Ambika Prasad v. Ram Sundar, Civil Appeal # HBA 9 of 2008, Sambhu Lal Sharma in his testimony "equated himself to a lawyer". The judgment by Justice Jiten Singh is captioned as "non qualified persons representing litigants".

For the forgoing reasons the Court strike out the Plaintiffs Claim.

The Orders

The Plaintiffs Claim is struck out.

Costs

No order as to costs.

Right of Appeal

The Parties have the right to appeal.

Chaitanya Lakshman
Resident Magistrate

06/04/10