Colonial Fiji Life Ltd v Waqa [2001] FJHC 5; Hbc0335j.2000s (9 February 2001)

Fiji Islands - Colonial Fiji Life Ltd v Waqa - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Suva

Civil Jurisdiction

CIVIL ACTION NO. 0335 OF 2000

Between :

COLONIAL FIJI LIFE LTD.

Plaintiff

- and -

ASERI WAQA and NANISE WAQA

ULAIASI RADOKE and LUSIANA MAIMALOLO

Defendants

Mr. S. Parshotam forPlaintiff

Ms. R.S. Singh for the 1st Defendants

Mr. J. Flower for the 2nd Defendants

JUDGMENT

This interpleader summons concerns competing claims to the proceeds of a life insurance policy issued by the plaintiff company on 24^th June 1996 on the life of Watisoni Waqa and `payable on the Life Insured surviving to 04/07/2026 or on prior death’ (`the said policy’).

The brief and tragic circumstances giving rise to the claims may be summarised as follows. At the time of the issuance of the said policy Watisoni Waqa (hereafter `Watisoni’) had been married to Elenoa Katarina (hereafter `Elenoa’) for barely a year and, it is common ground, had nominated her pursuant to Section 83 of the Insurance Act (Cap.217) to `receive the money in the event of his death’. Tragically on 10^th March 2000 both Watisoni and Elenoa died from injuries they sustained when the car they were travelling in was involved in an accident on the Kings Road at Nakorokula, Ra.

The first defendants (which wrongly includes the deceased mother of Watisoni) claim the proceeds of thd policy as the natural parl parents and administrators of the estate of Watisoni and the second defendants claim as the natural surviving parents of Elenoa.

p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> The basis upon which the first defendants claim to be entitled to receive the proceeds is deposed in the affidavit of Aseri Waqa and is to the effect that during Watisoni’s life time he had assigned the said policy to the plaintiff company to secure a loan he took from the plaintiff company and `by virtue of Section 82(4) (sic) of the Insurance Act 1976 [now replaced by Section 152(4) (sic) any transfer or assignment of policy cancelled the nomination on the policy’ and `any monies payable under the said policy now forms pa the Estate of Watisoni Waqi Waqa’.

p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> The second defendants for their part rely on Section 22 of the Property Law Act (Cap.130) as applying to the circumstances of the case so as to entitle the estate of their daughter Elenoa (as the presumed survivor of Watisoni) to receive the proceeds of the said policy. Their deposed view is that `the disposal of the (the proceeds of the said policy) would appear to be governed entirely by the Succession, Probate and Administration Act (Cap.60) in accordance with Section 6 thereof’.

Plainly in order for the first defendant’s to succeed in their claim they must establhat Elenoa’s nominatmination had been effectively cancelled in terms of Section 152(7) of the Insurance Act 1998. That section however not only requires the assignment to be made `in accordance with Section 147', but additionally, the assignment must not be caught under either limb of Subsection (8) to which Section 152(7) is made subject.

As to the six (6) requirs of Section 147 the entire evidence in support thereof ivided by AseriAseriAseri Waqa who deposed :

`... that the policy in question was assigned to Colonial M Life Assurance on the 28^th day of August 1996 as security for a loan taken by t by the said Watisoni Waqa (deceased). The said debt was paid off on the 4^th of April 2000 thus discharging the assignment on the said policy.’

p class=MsoN=MsoNormal style="text-align: justify; margin-top: 1; margin-bottom: 1"> In my view notwithstanding the evidence is undisputed, nevertheless, it falls well short of satisfying the mandatory tory requirements of Section 147 in order to render the assignment `effective’.

Even if one was to assume that the assignment of the said policy was `effective’ it is necessary to consider whet whether or not the nomination is saved by either limb of Section 152(8) which provides :

`If either -

(a) &nbbsp; &nbbsp; &nbp; &nbp;&nbp; acy han been assignssigned to an insurer in consideration of a loan granted on the security of the policy and the value of the loan is less than the surrender value of the policy ; oran>

(b) ;

a nomination must not be cancelled but only affects the rights of the nominee to the extent of the insurer’s interest in the policy.’

Plainly the effect of the above subsection is to save a nomination (i) where monies remain payable under an insurance policy at the time of its assignment or (ii) where a loan has been fully repaid before maturity.

As to (a) above the undisputed evidence is that the solicy was assigned to the plaintiff company to secure a loaa loan granted to Watisoni. The exact `value of the loan’ and `the surrender value of the policy’ however are not disclosed in any of the affidavits filed and neither is there any evidence of a re-assignment of the policy by the plaintiff company albeit that the repayment of the loan is not disputed. Again in this regard the evidence falls well short of that required by the above Subsection.

Notwithstanding the above short-comings el for the second defendants argues that even if it were proven (which is denied) that E Elenoa’s nomination had been effectively cancelled by the assignment, nevertheless, her estate would be entitled to receive the proceeds of the said policy since she is presumed by law to have survived her husband Watisoni.

I turn then to consider the effect of Section 22 of the Property Law Act (30) on the present proc proceedings. That section relevantly provides:

p class=MsoNormal stal style="text-align: justify; margin: 1 36.0pt"> `In all cases where, ..., two or more persons have died in circumstances rendering it uncertain whi them survived the other orer or others, those deaths shall (subject to any order of the court) for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.’

As this is the first occasion to my knowledge that this particular provision has come befor Court for consideration iton it is appropriate that I should briefly explain its rationale and origins.

When two persons die as the result of a single tragic event ihe case of `commorientes’, such as, when a bo a boat is lost at sea or a house is burnt to the ground or in a traffic accident as occurred in this case, it often happens that there is no possible means of ascertaining which of the two survived the other. In such a case, at common law, all that a Court could do was to declare that there was no evidence to show who was the survivor. Where the title to property depends on survivorship such as in rights of succession to a deceased’s estate, both testate and intestate, such a situation can easily give rise to problems and difficulties. It was to remedy this that legislation was first passed in England in 1922 and subsequently adopted and followed in numerous other countries including Fiji.

Section 22 of the Property Law Act (Cap.130) plainly raises a statutory presumption of survivorship in favour of the younger of two deceased persons where death occurred `in circumstances rendering it uncertain which of them survived the other ...’ Theoretically therefore, if it was known or proven that death occurred simultaneously then plainly the presumption would not apply since there would be no element of uncertainty in the sequence of deaths. That however is not the situation in this case before me.

In any event, I prefer, the practical and commonsense view expressed by Lord Macmillan in Hn v. Peacey (194>(1945) A.C. 304, which was a case where four people were killed when a bomb exploded in an air-raid shelter and where his lordship said, of the identically-worded forerunner to our Section 22, at p.322 :

`... the other view is that when the mstances are such that it cannot be ascertained that one of the deceased survived the otherother then the uncertainty which the section postulates exists and the statutory presumption applies.’

Even more trenchant is Lord Porter who said in his judgment ibidb>p.337 :

`Speaking for myself, I should be inclined to read the section, even without the previous history, as presenting only two alternatives, viz. : - (1) an ability to show the order of death or (2) uncertainty. ... I think the section itself is so framed as to exclude the possibility of simultaneous deaths from ever being recognised as a certainty and to include it amongst the uncertainties. It does not speak of uncertainty as to whether the persons concerned died at the same time, but seeks to determine which survived the other.’

/p>

In my view the presumpof survivorship created under Section 22 of the Property Law Act (Cap.130).130) arises where, on the evidence produced, the Court is unable to say with certainty which of two persons survived the other.

In the present case given the rather vaguely depoearsay circumstances in which Watisoni and Elenoalenoa met their untimely and tragic deaths namely, `reports are that they both died at or around the same time’, and, given the nature of the defendants claims which plainly `affect the title to property’ i.e. the proceeds of the said policy, I am satisfied that the pre-requisites for invoking Section 22 plainly exists in this case.

Accordingly, in the absence of any evidence to support the first defendant’s bare claim to the contrarh as might be obtained from from a police report, a post-mortem examination or even independent bystanders at the scene, the statutory presumption applies so as to support the second defendants claim to the proceeds of the said policy.

p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> In this latter regard Section 152(9) of the Inse Act 1998 provides :

`If the nominee (of a life insurance policy) survives ... the person whose life is insured, the money secured by the policy is payable to the survivor ...’

However given the circumstances of Elenoa’s death and the presumptive effect of Section 22 I that the entitlement to theo the proceeds of the said policy vests in and are payable not to the second defendants personally but to the estate of Elenoa Katarina Waqa to be administered in accordance with the provisions of the Succession, Probate and Administration Act (Cap.60).

In the absence however of any grant of letters of administration in the Estate of Elenoarina Waqa the plhe plaintiff company is directed to retain the proceeds of the said policy until the same has been obtained and a claim made for payment of the proceeds of the said policy.

ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> The costs of the application are directed to be paid out of the proceeds of the said policy.

D.V. Fatiaki 1"> JUDGE

p class=MsoNormaNormal style="text-align: justify; margin-top: 1; margin-bottom: 1"> At Suva,

ass=MsoNormal style="text-align: justify; margin-top: 1; margin-bottom: 1"> 9^th February, 2001.

HBC0335J.00S