SHERIFFDOM OF GRAMPIAN, HIGHLAND and ISLANDS AT ABERDEEN

2014SCABE40

A141/11 & A288/11

                                                                                  JUDGMENT

by

SHERIFF PRINCIPAL DEREK C W PYLE

in causa

TATIANA KRAJCIOVA, residing at 63 Blenheim Place, Aberdeen AN35 2DZ

Pursuer and Respondent

against

SULTAN FEROZ, residing at 53 Kirk Brae, Cults, Aberdeen AB15 9QR

Defender and Appellant

Aberdeen, 28 September 2013

The Sheriff Principal, having resumed consideration of the cause, Refuses the appeal; Adheres to the sheriff’s interlocutor of 17 May 2013; Finds the appellant liable in the expenses of the appeal; Remits an account thereof to the Auditor of Court to tax and to report.

[1] This is an appeal from a judgment of the sheriff after proof. The appellant is a party litigant. There are two actions which were conjoined. The first is an action for recovery of possession of heritable subjects at 53 Kirk Brae, Cults, Aberdeen, with a counterclaim seeking declarator that the arrangement between the parties was not a lease but an agreement whereby the appellant would buy the subjects from the respondent. The second is an action for payment for rent due. The sheriff granted decree ordaining the appellant to remove from the subjects in the first action (and assoilzied the respondent from the craves in the counterclaim) and granted decree for payment in the second action. The appellant appeals against both parts of the sheriff’s interlocutor. He originally lodged grounds of appeal in very general terms, but on being ordained to do so he lodged more detailed grounds which specified 13 points.

[2] Before the appellant began his submissions I explained to him the role of an appeal court when dealing with criticism of the findings in fact and law of the judge who presided at the proof. (See, for example, Macphail, Sheriff Court Practice, 3^rd edition, paras 18.103ff.) Despite that explanation, the appellant persisted in trying to present evidence, rather than to refer to the sheriff’s findings in fact and the notes of evidence which had been produced. Indeed, he referred to the latter only once during his submissions. While the appellant was always courteous, he became confused, repetitious and, whether intentionally or not, continued to argue alleged failures by the sheriff without taking into account the appeal court’s role as explained to him. It was inevitable that the appeal was wholly unstateable, but in deference to the appellant’s submissions I deal with each of his grounds of appeal.

1. The sheriff had failed to notice the main and important condition of the deal which mentioned in the deed that the appellant was already a resident and was to remain as a resident of the property. While this was the stated ground, the appellant seemed to want to talk about something else, namely that the respondent “has defaulted in giving proof of a wet ink contract”. Despite several attempts by me to persuade the appellant to clarify what he meant by that, he did not do so. On that basis alone, the ground is unstateable.

2.  The sheriff had failed to recognise the confirmation of two solicitors that there was a private deal between the appellant and the respondent. In addressing this ground the appellant preferred to ask from where did the funds come to enable the respondent to obtain a mortgage to purchase the property. In so far as the ground of appeal makes sense, it is sufficient to refer to the sheriff’s judgment at para 63 which deals with the evidence of Mr Mather and records that he was kept in the dark by the defender. The appellant did not seek to refer to any of the evidence which might suggest that the sheriff was not entitled to reach that conclusion. Again, the ground is unstateable.

3.  The sheriff failed to notice the denial by the respondent and her husband that they did not know the appellant and had never been friends, when in fact they had been friends for a long time and had been business partners. The appellant did not refer to the notes of evidence to substantiate this ground. Instead, he preferred to refer to the “suspension of the Gold Standard Act 1925”, to question whether “Scottish notes are legal tender” and to refer again to the lack of a wet ink contract. Accordingly, this ground is unstateable.

4.  The sheriff failed to notice the contradictive (sic) evidence made by the witnesses of the respondent and the respondent herself. Under this ground the appellant argued that the appellant and her husband had “put the amount of currency they have derived out of the standard security in derivatives”. This was “an unlawful enrichment”. At no point did the appellant address the content of the ground. Nor did he refer to the notes of evidence. He also attempted to lodge further productions, the purpose of which was unclear. I refused to allow him to do so. Again, this ground is unstateable.

5. The sheriff erred in failing to notice that the respondent introduced herself as a housewife when in fact she was a businesswoman. This was the only point during the hearing that the appellant chose to refer to the notes of evidence. He referred to volume 1, page 3, where the respondent is asked her occupation, to which she answered “I’m a housewife at the moment”. This ground is unstateable. The appellant went on to state that he had offered a promissory note to the value of £154,000 to have the title of the property transferred to him.

6. The sheriff had failed to notice the manner of the respondent and the respondent’s husband lodging the deposit and receiving the deposit from the appellant. Moreover, the amount of money was lodged in various accounts where the account holders’ names were not stated. If the appellant was referring to the evidence about the ability of the respondent to pay the balance of the purchase price of the property after application of the mortgage funds, it is dealt with by the sheriff at para 62 of his judgment. Instead the appellant tried to talk again about the promissory note. This ground is unstateable.

7.  The sheriff failed to notice the unprofessional and inappropriate behaviour of the respondent’s solicitor by not identifying exactly if he was acting for the respondent or the respondent’s witness. The appellant failed to address what that behaviour was, in what way it was unprofessional and the relevance of the behaviour, professional or otherwise, to the issues in dispute. Instead, he preferred to assert that the respondent had failed to rebut the answers and the counterclaim. This ground is unstateable.

8.  The sheriff failed to notice that the respondent’s husband refused to swear by the Quran which is the religious book in which he believes, when he was supposed to be dealing with the situation on a basis of trust, faith and friendship. The appellant sought to raise an issue of natural law. I stopped him from doing so as it was irrelevant to the ground. This ground is unstateable.

9. The sheriff failed to notice that even the appellant’s creditors did not want him homeless and for that reason the deal was instructed by so-called friends to make the appellant homeless. The appellant did not address the ground. Instead he said that he had an insurance policy with Barclays Insurance of Dublin to protect him from indebtedness because of unemployment or sickness. The policy should have covered the alleged debt, but the insurers had paid only for one year. This ground is unstateable.

10.  The sheriff failed to recognise that the respondent and her husband were obvious con artists. The appellant did not give his reasons for reaching that conclusion. Instead, he prayed in aid the European Convention on Human Rights and Fundamental Freedoms. He asserted that as the prime contributor to the property he could not be ejected from it. This was supported by cases he had read about on the internet. Needless to say, he was unable to produce them. This ground is unstateable.

11.  The sheriff failed to recognise the substantial evidence given by the appellant’s witnesses proving that the deposit was provided by the appellant. He did not develop this ground. Instead, he referred again to the promissory note. In the absence of argument to support it, this ground is unstateable.

12   The sheriff failed in not recognising the forgery in the lease. The appellant again referred to the lack of a wet ink contract, although it was impossible to discover what he meant by that term and its relevance. This ground is unstateable.

13.  The sheriff failed to notice that the appellant proved the length of the contract by paying the mortgage into the respondent’s bank account. There was, said the appellant, “no equal exchange of consideration”. “They can get my house for free. That is not lawful.” This ground is unstateable.

[3] I do not wish to be uncharitable to the appellant. As I have said, he behaved with the utmost courtesy. But he plainly had no idea how to set out stateable grounds of appeal. He also had no idea about the role of an appeal court in dealing with an appeal where the court below has reached findings in fact after proof. This put him at a considerable disadvantage. But it also caused a potential injustice to the respondent who has been unable to enforce the decree which the sheriff granted in her favour. Moreover, she has incurred the expense of professional representation, the cost of which she is not guaranteed to recover. The expense to the public purse in providing the opportunity for the appellant to exercise his undoubted right to appeal should also not be left out of account.

[4] This is by no means an untypical appeal before sheriffs principal. It is not for the judiciary to enter into the policy debate about further widening of the right and capability of parties to represent themselves before civil courts. Nevertheless, I would invite policy makers to have regard to this case as an example of what any further increase of access to justice without proper professional advice and representation may cause.