Ali v Hassan [2010] FJHC 322; HBC144.2007 (26 April 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action HBC No 144 of 2007

BETWEEN:

SHAHBAN ALI
son of Mohammed Hassan of Olosara, Sigatoka, Purchasing Officer
as the beneficiary of the estate of Jhahura Khatoon, deceased.
Plaintiff

AND:

ALI HASSAN
son of Mohammed Hassan of Tuva, Maro, Sigatoka, Farmer
as the one of the surviving executor and trustee of the
Estate of Mohammed Hassan, deceased.
Defendant

Counsel Appearing:

M K Sahu Khan & Associates for the Plaintiff
Patel & Sharma for the Defendant

Date of Hearing: 7 April 2010
Date of Judgment: 26 April 2010

JUDGMENT

[1] This Court brought to the notice of the Bar in open court, in this and earlier cases, the Practice Direction No 2 of 1994 and the relevant rules of the High Court Rules and sought their submissions. Parties in this action have tendered written submissions and I considered them and make the following order.

[2] Before probate or letters of administration is issued, a probate court requires publication of the application to be made, it is a universal practice and incorporated as a mandatory provision in statutes as well.

[3] In Fiji, such applications are made to the Principal Probate Registry in Suva and dealt with by the Suva High Court. By such publication, the public is given notice of the estate of the deceased as being administered in the Suva High Court.

[4] When a member of the public wishes to deal with the property or the estate and when he needs verification of the probate or letters of administration shown to him, he will seek verification from the Principal Probate Registry in the Suva High Court and if he finds that there are no pending proceedings in the published proceedings he will proceed to rely on the probate or letters shown as clear. However, if the testamentary proceedings are permitted to be filed either seeking the removal of an appointed executor or administrator or account of the estate is sought to be tendered or settled, in another court (Lautoka) then the Suva Probate proceedings will have no record of the pending proceedings regarding the estate. As such, by filing, such proceedings in a court other than the issuing court (Suva High Court Probate Registry) and in the probate proceedings, the public could be deceived or misled. Probate actions are essentially of the nature of an action in rem, and those actions that are quasi-probate too attract this element of public interest.

[5] Furthermore, when a probate or letters of administration is issued by the court, it is an authority given by court and the executor or administrator is duty bound to account to that court. Probate and letters of administration is not issued for the recipient to do as he wishes with the estate of the deceased. By encouraging such proceedings to be instituted in other courts, the authority of the issuing court is diluted.

[6] Plaintiff has attached a copy of Singh -vs- Kour (2005) FJHC 531: HBC0191 of 1997 (16 September 2005), a similar matter instituted in the High Court of Lautoka. However at page 7, at paragraph 2 (Exhibit P.4 doc. 4) His Lordship Justice Finnigan, refers to a situation in that case thus; "On 9 March 1992 in the Suva High Court the plaintiff obtained an order commanding Gurdib Kour to bring to the Probate Registry the probate of the estate of Sarran Dass No 17627, which she had been granted on 12 April 1973 (Exhibit p.4 doc 4). Counsel asserted this command had never been complied with, and this was not challenged". Therefore, since 1992 until 2005, the order recalling probate had not been complied with, but parties were permitted to litigate in Lautoka. Non compliance with the recalling order may not have gone beyond at least the date of institution of that action had the Practice Direction No:2 of 1994 been complied with.

[7] In other jurisdictions (not Fiji) Civil Courts (District Courts) have probate jurisdiction within the local limits of their jurisdiction, and publications in respect of estates are done by those respective courts, and those interested in the estates or dealing with them, note the court in which the testamentary proceedings are instituted and notice their claims or pay their debts to the estate and follow the progress. Actions are not entertained in other courts in respect of those estates, unless they are filed qua administrator or executor and sued as such against or by third parties.

[8] In probate and testamentary proceedings, more often than not minors are involved, property is left in trust and opportunity to vandalize is abundant. Under those circumstances, it is even recommendable to publish the existence of such cases upon their institution and put the public on notice.

[9] When executors or administrators are removed or replaced by proceedings outside Suva Probate Court, no publication is ordered as in the Sing -vs - Kour case.

[10] In the case of Singh -vs- Kour, Judge Finnigan was not made aware of Practice Direction No 2 of 1994, and the issue went unnoticed, as such I do not consider Singh –vs- Kour creates a precedent or ratio decedendi to be followed on that point.

[11] The purpose of publication in the first instance is lost by such proceedings. When I first came across such cases in the High Court of Lautoka in the last few months, and when I made queries I was made to understand that such proceedings are possible in the High Court of Lautoka. However, on further research, I came across Practice Direction No 2 of 1994 by the Chief Registrar pursuant to an order of the then Chief Justice, which at item 1 states: "All probate business, contentious and no-contentious is dealt with in the Registry at Suva pursuant to an order made by the Chief Justice". Item 1.1 states "documents are not to be filed in any High Court Registry".

[12] Order 4 rule 1(2) provides that "Applications for probate of letters of administration and resealing made under the provisions of the Succession Probate and Administration Act shall be filed and dealt with at Suva". Order 76 rule 1(2) define a probate action to include the revocation of a probate or letters of administration.

[13] Grants de bonis non and other subsequent grants such as in Cessate are obtained in the English law probate practice, by applying to either the Principal Registry or to the District Registry from which the original grant has issued. In England apart from the Principal Probate Registry, other district registries are empowered with probate jurisdiction and maintain immediate data exchange with the principal registry. In the event a party lodges a caveat in the principal registry or other district probate registry, they are immediately sent to the principal probate registry. Caveats and standing search applications cannot be managed to give reliable results if estates are permitted to be dealt with independently from the principal probate registry.

[14] When applying for "double probate" it is made to the principal registry or registry where the will is registered.

[15] The aforesaid and the following features of this case further persuade me to the view that this is an action that ought to have been filed in Suva High Court;

[16] The plaintiff seeks:-

(a) An order to revoke the appointment of Ali Hassan as sole executor and trustee of the estate of Mohammed Hassan deceased;

(b) An order to appoint a new trustee or trustees to administer the affairs of the Estate of Mohammed Hassan;

(c) That plaintiff be authorized to take out letters of administration in respect of the estate of his mother Jhahura Khatoon aka Zohra Khatoon;

(d) That pending the grant of letters of administration in respect of the estate of Jhahura Khatoon, plaintiff be appointed as new trustee in addition with defendant under Section 73(1) of the Trustee Act, Cap 65.

[17] I wonder why authorization is requested by plaintiff to take out letters of administration, unless, he intends to deviate from the usual procedure of publication, in applying to the probate registry. The relief's sought therefore fall very much within a probate action.

[18] It is obvious that every action in which a executor or administrator figures is not a probate action, however, when it is intra estate and when accounts are to be given or succession to be determined, or when orders amounting to letters of administration, grants de bonis non, cessate, double probate are sought, or the appointment or revocation of executors or administrators are sought, to maintain the integrity in probate proceedings, so paramount for good title, preservation of the estate and distribution according to law, I am of the view that such proceedings should as a rule be instituted and proceeded in the same testamentary proceedings in which the probate or letters issued.

[19] The rule relating to probate counter claims in other proceeding as set out in Order 76, rule 15, and as published in the Supreme Court Practice (White Book) of 1997, Vol I is reproduced (with my notes in italics) for its parallel significance.

[20] Order 76, rule 15(1) - In this rule "probate counter claim" means a counter claim in any action other than a probate action by which the defendant claims any such relief as is mentioned in rule 1(2), (i.e. Order 76, rule 1(2).

[21] Rule. 15 (12) - subject to the following paragraphs, this order (Order 76 on Contentious Probate proceedings) shall apply with the necessary modifications to a probate counterclaim as it applies to a probate action.

[22] Rule 15(3) - A probate counterclaim must contain a statement of the nature of the interest of the defendant and of the plaintiff in the estate of the deceased to which the counterclaim relates.

[23] Rule 15(4) - Revoked.

[24] Rule 15(5) - Unless an application under Order 15 rule 5(2) (i.e. to strike out, not to be confused with rule 15 above) is made within seven days after the service of a probate counterclaim for the counterclaim to be struck out (i.e. as it should have been made to the Chancery Division with probate jurisdiction) and the application (to strike out) is granted, the court shall, if necessary of its own motion, order the transfer of the action to the Chancery Division (if it is not already assigned to that division) and to either the Royal Courts of Justice or a Chancery District Registry (if it is not already proceeding in one of those places).

[25] The Practice is stated as; "This is intended to get all probate actions into the appropriate forum. Unless a party applies within seven days after service of such a counterclaim to strike it out and the application is granted, the action has to be transferred of the courts own motion if necessary to the Chancery Division (if not there already) and to the Royal Courts of Justice or a Chancery District Registry (if not already there)". (Jurisdiction in contentious probate proceeding were transferred to the Chancery Division in 1971).

[26] This is not the only case of this nature instituted and entertained in the High Court of Lautoka.

[27] The parties have nursed this case up to the hearing stage. It would not be just to strikeout this matter on the ground of mistaken jurisdiction or wrong forum. The more appropriate order as I have made earlier in such matters is to transfer the case to the Suva High Court where it can be amalgamated with the relevant probate proceedings, and the parties can proceed to seek relief before the proper forum, without interrupting the integrity of the testamentary and probate proceedings already in existence.

[28] As such, I am transferring this case to the High Court of Suva and to the attention of the Probate Registry in Suva to amalgamate, and accordingly direct the Deputy Registrar of the High Court of Lautoka to take the administrative steps to transfer this case accordingly.

Parties to bear their costs.

Y I Fernando
JUDGE

At Lautoka
26 April 2010