In re FNPF of Sailasa Vatucawaqa [2010] FJHC 312; Civil Jurisdiction 229.2009 (13 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL JURISDICTION NO. 229 OF 2009

IN THE MATTER of the FNPF of SAILASA VATUCAWAQA of Vunisinu Village, Rewa, Deceased, Invalid Nomination

AND:

IN THE MATTERS of Section 41 of the Succession, Probate and Administration Act, Cap 60, Sections (85, (4) and 88(1) of the Trustee Act, Cap 65 and Section 30 (a), (d) Corporation Act, 2006

AND:

FIJI PUBLIC TRUSTEE CORPORATION LIMITED of Level 1, LICI Building, Butt Street, Suva (herein "the Applicant")
APPLICANT

DIRECTIONS

INTRODUCTION

[1]. Sailasa Vatucawaqa ("deceased") was a member of the FNPF. He died with funds totaling $10,003.12 in his FNPF account. In due course, this was paid to FPTCL as the deceased's nomination was invalid. It is not clear to me whether or not he was married.

[2]. According to the statutory declaration of one Saula Savuwaitui, the deceased was married to one Selina Rokowati who died two days after he passed on. In fact, they were buried together on the same day. I suspect that the deceased did nominate Selina Rokowati to be the beneficiary of his FNPF funds which nomination would have been invalid if Savuwaitui's declaration is to be believed. In any event, that is not the issue in this case.

[3]. The issue in this case is whether or not Savuwaitui is indeed the surviving issue of the deceased and thus entitled to the funds.

[4]. Before me is an ex-parte application by the Fiji Public Trustees Corporation Limited ("FPTCL") seeking an order that the whole of the FNPF funds of the deceased be paid to Savuwaitui on the ground that Savuwaitui is the deceased's only surviving issue.

[5]. The Motion also seeks an order that the sum of $947.50 be released forthwith to be paid towards Savuwaitui's TPAF fees for a building and construction course that he is currently undertaking.

[6]. Apart from the above two prayers, the Motion also seeks an order that:-

[i]. an order be made now for FPTCL to withdraw funds for future training.

[ii]. that Saula Savuwaitui to release, discharge, indemnify and to keep FPTCL indemnified from any claim, action, liability, loss, damage suit arising from any action legal (or otherwise) in connection hereto

[7]. The deceased has many siblings. They appear to be divided as to whether or not Saula Savuwaitui is really the surviving issue of the deceased. Two of the deceased's siblings have sworn declarations that Savuwaitui is the only surviving issue of the deceased.

[8]. The question has arisen as to whether Saula Savuwaitui is the surviving issue of the deceased and therefore, rightfully entitled to the funds.

[9]. Savuwaitui himself has signed a declaration to the effect that he is the biological son of the deceased and entitled to the fund. That assertion is supported by declarations signed by two of the deceased's siblings namely Mr. Mitieli Turaganikeli and Mr. Vuniyani Nakauyaca.

[10]. Apparently, the deceased had a relationship with Qolivesi but they never married. Qolivesi however was to marry Turaganikeli (deceased's brother) and they later had children of their own. A declaration by Qolivesi is also annexed to the affidavit which appears to confirm the same.

[11]. Notably, a copy of Savuwaitui's birth certificate is exhibited to Korodrau's affidavit in which the deceased is named as Savuwaitui's father.

[12]. Notably also, an original copy of the Certificate of Death of the deceased is exhibited which names Saula Savutuwai as the surviving issue of the deceased.

[13]. These documents alone are strong evidence that Savuwaitui is the surviving issue of the deceased.

[14]. Apparently, the other siblings of the deceased are also making claim to the fund. Mr. Noa Bavai, the eldest brother of the siblings wrote a letter to FPTCL dated 27th November 2009 denying Saula Savuwaitui as the son of the deceased and also requesting the fund not to be distributed until the issue is resolved. A copy of that letter is exhibited and marked "I" to Korodrau's affidavit.

[15]. The other siblings of the deceased led by Bavai have instructed Vula Law to act for them. Vula law has in fact written to the CEO of FPTCL seeking that payments of the funds be withheld until the issue as to who is the rightful claimants are sorted out.

[16]. It appears that FPTCL has engaged with the deceased's siblings and asked them vide letters dated 25th February 2010 and 28th April 2010 to provide declarations and statements to substantiate their claim. None has been provided.

[17]. It is now over six weeks since that letter. However, Bavai and company have not provided any evidence to substantiate their claim.

THE LAW

[18]. Section 43(2) of the Fiji National Provident Fund Act states as follows:

(2) Notwithstanding the provisions of any other written law, all moneys paid out of the Fund on the death of any member of the Fund shall be deemed to be impressed with a trust in favour of the person nominated under the provisions of section 34 by the deceased member or, if no such person has been nominated, the person or persons determined by the Court in accordance with the provisions of subsection (1) of section 35 to be entitled thereto and shall be deemed not to form part of the deceased member's estate nor to be subject to his debts. (Amended by Act 9 of 1974, .s,' 16.)

[19]. Section 35(1) of the Act simply states as follows:

Procedure where there is no nominee or a minor nominee

35.—(1) If, at the time of the death of a member of the Fund, there is no person nominated under section 34 the Board, on being notified of the death of the member, shall pay into Court the amount standing to the credit of the member in the Fund for disposal in accordance with the law.

[20]. Hence, the law in Fiji is: where a deceased member of the Fund has left no nomination, or an invalid nomination, any monies standing in his or her account with the Fund does not form part of his or her estate and must therefore be disposed of in accordance with the law.

[21]. This means that distribution will have to be done in accordance with the laws of intestacy in the Succession Probate and Administration Act (Cap. 60) (hereinafter "Succession Act").

Succession Act (Cap 60) as Amended

[22]. Section 6 of the Succession Act as amended by section 3 of the Succession, Probate and Administration (Amendment) Act 2004 provides as follows:

6.-(1) Subject to the provisions of Part II, the administrator on intestacy ..... shall hold the property as to which a person dies intestate ...... on trust to distribute the same as follows:

[a] if the intestate leaves a wife, or husband, without issue, the surviving wife or husband shall take the whole of the estate absolutely, and-

[b] .......................

[c] if the intestate leaves issue, the surviving wife or husband shall, take the prescribed amount and the personal chattels and one third only of the residuary estate absolutely, and the issue shall take per stripes and not per capita the remaining two-thirds of the residuary estate absolutely;

[d] if the intestate leaves issue, but no wife or husband, the issue of the intestate shall take per stirpes and not per capita the whole estate of the intestate absolutely; (my emphasis)

[e] .......................

[f] if the intestate leaves no issue, but one parent only then, subject to the interests of a surviving wife or husband, the surviving father or mother shall take the residuary estate of the intestate absolutely;

[g] .......................

[h] if the intestate leaves no husband or wife and no issue or parents, then the brothers and sisters of the whole blood, and the children of

deceased brothers and sisters of the whole blood of the intestate shall take the whole estate of the intestate absolutely in equal shares, such children taking per stirpes and not per capita;

[23]. The "prescribed amount" in terms of section 6(1) (c) is $20,000[1].

ANALYSIS

[24]. Under section 6(1)(h), the deceased's siblings can only be entitled to a share if the deceased had left no surviving issue, wife or parent. Otherwise, as in this case, if there is a surviving issue or issues and no surviving parent(s), then the estate will be distributed entirely between the surviving issues.

[25]. Hence, the only way in this case that the deceased's siblings will be entitled to a share is if they were to establish that Savuwaitui is not the surviving issue of the deceased. That is going to be very difficult for them to do in this case because, as I have highlighted above, the deceased is named on Savuwaitui's birth certificate as the biological father of Savuwaitui.

ORDER

[26]. However, for the sake of proper closure in this case, I will direct that the Office of the Fiji Public Trustee Corporation Limited serve a copy of these directions on Vula Law.

[27]. The case will be called again on 26th August 2010 at 2.15 p.m. to hear Mr. Vula on his client's position. If they fail to turn up, I will simply grant order in terms of the application.

Anare Tuilevuka
Master

At Suva
13th August 2010.

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^[1] as per section 3(c) of the Succession, Probate and Administration (Amendment) Act (No. 11 of 2004).