In re the Estate of Vijay Chand; Trustee Corporation Ltd v Dulari [1995] FJHC 72; HPP0052d.1994s (13 April 1995)

IN THE HIGH COURT OF FIJI
At Suva
CIVIL JURISDICTION

PROBATE ACTION NO. HPP52 OF 1994

IN THE ESTATE OF VIJAY CHAND
s/o Ram Narayan deceased

Between:

TRUSTEE CORPORATION LIMITED
Plaintiff

- and -

ELIZABETH RAM DULARI
s/o Bassant
Defendant

Mr. P. Knight for the Plaintiff

DECISION

This is Plaintiff's application by Summons dated 3 January 1995 for an order that service of Writ of Summons No. 52/94 herein on the Defendant's attorney FATIMA BIBI father's name Ismail on 8 June 1994 be deemed good and proper service on the Defendant.

The Statement of Claim in the Writ of Summons reads:

1. The Plaintiff is the sole executor named in the true last will and testament bearing date the 8th day of May, 1992 of Vijay Chand f/n Ram Narayan late of Lot 60, Pilling Road, Nasinu 7 Miles, deceased, ho died on the 23rd day of July, 1993.
   

Application for probate of the said will of the said deceased was filed in the Probate Registry of the High Court on the 27th day of August 1993 by the Plaintiff.

2. On the 10th day of August 1993, letters of administration of the estate of the said Vijay Chand f/n Ram Narayan were granted to the Defendant by the High Court of Fiji.
   

AND the Plaintiff claims:-

(1) That the Court shall revoke the said grant of letters of administration to the Defendant;

(2) That the Court shall pronounce for the force and validity of the said true last will and testament dated the 8th day of May, 1992, in solemn form of law.

The defendant gave a Power of Attorney dated 13 August 1993 being Regd. No. 24649 to the said FATIMA BIBI f/n Ismail. A copy of the said Power of Attorney has been filed in Court by the Plaintiff.

Although the Writ had already been served on the Attorney on 8 June 1994 the Plaintiff still applied to serve the Writ out of jurisdiction on the defendant. It is believed that the defendant resides at 27-77 West 8th Avenue, Vancouver, British Columbia, Canada (and that is the address given in the Power of Attorney). An order was made as prayed.

Mr. Knight arranged for personal service of the Writ through Solicitors but all attempts to serve were unsuccessful. In caveat No. 26/93 that was lodged by the defendant on 10 August 1993 the defendant gave her address for service as 7 Dunstan Street, Nausori (that is the address given in the Power of Attorney as "temporarily residing").

Because of the difficulty in personal service the Plaintiff now makes the present application and submits that under the provisions of the said Power of Attorney, service on the attorney be declared and deemed good and proper service. Mr. Knight in answer to a question from me submits that although the writ has already been served on FATIMA BI, he is asking further that service on her be regarded as substituted service under O 63 R 4 of the High Court Rules 1988.

I have considered the written submission of the learned counsel for the Plaintiff and I agree substantially with his arguments particularly as stated in the following two paragraphs:

"Attempts have been made to effect personal service on the Defendant, but these have proved unsuccessful. In these circumstances, it would be normal to apply for an order for substituted service. It is submitted that the most appropriate form of substituted service in this case, is service on the Defendant's attorney who has the same address, namely 7, Dunstan Street, Nausori as that given by the Defendant in her application for registration of the caveat. The likelihood is that the attorney would advise the Defendant of service of documents on her. The Defendant is much more likely to learn of service through her attorney than, for example, through a notice in a newspaper circulating in Vancouver.

In this application, the Plaintiff is seeking an order that service of the writ on the Defendant's attorney is good and proper service on the Defendant, in effect an application for substituted service is retrospect. No purpose will be served by requiring the Plaintiff to formally apply for an order for substituted service, obtaining an order for service on the Defendant's attorney and serving the Defendant's attorney. This will merely be a repeat of what has already been done".

There is provision in Clause 3 of the Power of Attorney empowering the attorney, inter alia:

"(3) To commence prosecute enforce defend answer or oppose all actions and other legal proceedings and demands touching any matters in which I am or may hereafter be interested or concerned and also if thought fit to compromise refer to arbitration abandon submit to judgment or become non-suited in any such action or proceedings as aforesaid".

And in Clause 4 the Attorney is empowered:

"(4) To state pay settle adjust compound submit to arbitration or for the decision of any competent court tribunal board or officer and compromise all actions suits accounts reckoning claims damage and disputes whatsoever which now are or hereafter shall or may be depending between me and any person or persons corporation or corporations whomsoever in such manner in all respects as my attorney ......shall think fit".

And in clause 11 power is given to appear in Court and to defend an action. It provides:

"(11) To appear for me in any court of justice or before any competent tribunal board or officer in any action or other proceeding which may be instituted against me or whereto I shall be a party and to defend the same or suffer any judgment order or award to be had or given against me in any such action or other proceeding by default or otherwise as my attorney .....shall think proper".

It is further provided in the Power of Attorney that these powers are to be "construed not strictly but in the widest sense" (2nd last paragraph Power of Attorney).

In view of these provisions, I agree with Mr. Knight that there is a clear inference that if the attorney has the power to defend or settle actions against the Defendant, the attorney also has the power to accept service of proceedings issued against the Defendant, on behalf of the Defendant. It will then be for the Attorney to contact the Defendant. In the special circumstances of this case there is no need for substituted service by advertisement as it will not serve any purpose particularly when there is a properly appointed attorney for the Defendant with the powers given as stated hereabove under a registered Power of Attorney with no notice of its revocation.

In construing the powers under a Power of Attorney, LORD MACNAGHTEN in BRYANT, POWIS AND BRYANT, LIMITED AND LA BANQUE DU PEUPLE [1893] UKLawRpAC 5; (1893) AC 170 at 177 said:

"....Nor was it disputed that powers of attorney are to be construed strictly - that is to say, that where an act purporting to be done under a power of attorney is challenged as being in excess of the authority conferred by the power, it is necessary to show that on a fair construction of the whole instrument the authority in question is to be found within the four corners of the instrument, either in express terms or by necessary implication."

Therefore, by necessary implication, I hold that under the said clause 3 the Attorney is empowered to accept service of documents.

There is provision under Or 65 Rule 4 for substituted service. The said Rule 4 provides:

"4. (1) If, in the case of any document which by virtue of any provision of these Rules is required to be served personally or a document to which Order 10, rule 1, applies it appears to the Court that it is impracticable for any reason to serve that document in the manner prescribed on that person, the Court may make an order for substituted service of that document.

(2) An application for an order for substituted service may be made by an affidavit stating the facts on which the application is founded.

(3) Substituted service of a document, in relation to which an order is made under this rule, is effected by taking such steps as the Court may direct to bring the document to the notice of the person to be served."

In view of the ample provision in the document itself which I hold includes acceptance of service of documents, no purpose will be achieved by ordering substituted service by advertisement as it does not appear that that will bring the document to the notice of the defendant on the facts of this case. In this case it has not been possible to personally serve the defendant, and since I have held that the said attorney is empowered to accept service, I will make an order for service on the Attorney personally. This way the document would be brought to the "notice of the person to be served" and in this case the defendant.

I therefore grant the application not in the form prayed for but by ordering that Writ of Summons be re-served on the Attorney which in effect is a form of substituted service in accordance with the provisions of the said Or 65 R 4. The costs are to be costs in the cause.

D. Pathik
Judge

At Suva
13 April 1995

HPP0052D.94S