Tagici v Ernst [2011] FJHC 115; LA 49391 and 50037 (7 February 2011)

IN THE HIGH COURT OF FIJI AT SUVA
PROBATE JURISDICTION

CASE NUMBER: LA No.'s: 49391 and 50037
Caveat No.: 10 of 2009

BETWEEN:

NIONI TAGICI
Applicant in LA No. 49391

AND:

ANNETTE ERNST
Applicant in LA No. 50037

Appearances: Mr. Keil and Mr. N. Prasad for Applicant Annette Ernst.
Mr. K. Tunidau for Applicant Nioni Tagici.
Date/Place of Judgment: Monday, 07th February, 2011 at Suva.
Judgment of: The Hon. Justice Anjala Wati.

DECISION

PROBATE JURISDICTION – PRACTICE AND PROCEDURE – dealing with caveats against a grant – directions on the proper cause of action to be taken against the caveat and the action to be taken by the caveator as well.

Legislations:

The High Court Rules 1988.

The Non- Contentious Probate Rules 1987

Succession, Probate and Administration Act Cap. 60.

Succession, Probate and Administration (Amendment) Act No 11 of 2004.

Cases Referred To:

Vernon Emerson and Anthony Robert Amos v. Fiji Public Trustee Corporation Limited [unreported] Probate jurisdiction Case Number 48456 of 2009.
______________________________________________________________________________

The Case Background

1. This matter came before me initially as an administrative issue when I was requested by the registry for assistance and directions. The issue is regarding the issuance of the letters of administration in the estate of Jurgen Alfred Mierke.
   
2. Jurgen Alfred Mierke died on the 09th day of February, 2009.
   
3. Nioni Tagici Mierke, the wife of the deceased, made an application for the issue of letters of administration in her husband's estate which application was assigned number 49391. Before a grant was issued, a caveat was filed by Annette Ernst and the application was granted case number 10 of 2009.
   
4. On the 11th day of March, 2010, Nioni Tagi, the wife of the deceased was convicted of murder of her husband, the deceased.
   
5. On the 28th day of May, 2010, Annette Ernst also applied for letters of administration to be issued to her. Her application was granted a number of 50037.
   
6. The Registry placed both the files before me, as it was being insisted upon to issue a grant in favour of Annette Ernst.
   
7. The insistence to issue the grant was made pursuant to s. 49A of the Succession, Probate and Administration (Amendment) Act No. 11 of 2004 which reads as follows:-
   

" 49A. The forfeiture rule under common law that prevents a beneficiary or next of kin from taking any benefit from the estate of the deceased applies only if the beneficiary or next of kin is convicted of the murder, manslaughter, accessory to murder or manslaughter or conspiracy to commit murder or manslaughter of the deceased person, under the laws of Fiji or of any other country.".

8. The situation for the probate registry was a novel one and they requested for my directions in the matter to be able to deal with the issue at hand.
   
9. I directed the registry to call both the counsels at a specified date so that the court could hear the parties on the issue and give proper directions in the matter. Both counsels appeared at short notice and made their submissions.
   

The Submissions

10. Mr. Keil submitted that Mr. Tunidau has not proceeded with his application for the issue of a grant because of the pending caveat. He submitted that it was for Mr. Tunidau to proceed with his application. Mr. Tunidau must take steps under s. 47 of the Succession, Probate and Administration Act Cap. 60. He must make the application to remove the caveat. Since Mr. Tunidau failed to move the court, he made an application for issue of letters of administration in favour of his client which must be issued.
    
11. Mr. Tunidau submitted that he was at a loss to understand as to what application was before the court for hearing. He further submitted that it was for Mr. Keil to have filed an action within 3 months from filing the caveat and challenge the issue of any proposed grant under order 76 of the High Court Rules, 1988.
    

The Law and the Directions of the Court

12. Having heard the counsels, I am of the judgment that if Mr. Tunidau wanted a grant to be issued in favour of his client, then he should have taken proper action under Rule 44 of the Non-Contentious Probate Rules 1987 or under s. 47 of the Succession, Probate and Administration Act, Cap. 60. It is unacceptable that he can have his application lying in court and do nothing about the same.
    
13. There is no indication in the caveat as to which legislative provision was invoked to lodge a caveat, whether it was lodged under the Non-Contentious Probate Rules 1987 or under the Succession, Probate and Administration Act, Cap. 60, so Mr. Tunidau could have applied under any one of the legislations to deal with the caveat.
    
14. Section 47 of the Succession, Probate and Administration Act Cap. 60 states:-
    

" 47 (1) in every case in which a caveat is lodged, the court may, upon application by the person applying for probate or administration, or for the sealing of any probate or letters of administration, as the case may be, remove the same.

(2) Every such application shall be served on the caveator by delivering a copy of the same at the address mentioned in his caveat.

(3) Such application may be heard and order made upon affidavit or oral evidence, or as the Court may direct."

15. Rule 44 of the Non-Contentious Probate Rules 1987 states that:-
    

"44 Caveats

(1) Any person who wishes to show cause against the sealing of a grant may enter a caveat in any registry or sub-registry, and the [district judge or] registrar shall not allow any grant to be sealed (other than a grant ad colligenda bona or a grant under section 117 of the Act) if he has knowledge of an effective caveat; provided that no caveat shall prevent the sealing of a grant on the day on which the caveat is entered.

(2) Any person wishing to enter a caveat (in these Rules called 'the caveator'), or a solicitor [or probate practitioner] on his behalf, may effect entry of a caveat –

• (a) by completing Form 3 in the appropriate book at any registry or sub-registry; or
  
• (b) by sending by post at his own risk a notice in Form 3 to any registry or sub registry and the proper officer shall provide an acknowledgement of the entry of the caveat.
  

(3) (a) Except as otherwise provided by this rule or by rules 45 or 46, a caveat shall be effective for a period of six months from the date of entry thereof, and where a caveator wishes to extend the said period of six months, he or his solicitor [or probate practitioner] may lodge at, or send by post, the registry or sub-registry at which the caveat was entered a written application for extension.

2. An application for extension as aforesaid must be lodged, or received by post, within the last month of the said period of six months, and the caveat shall thereupon (save as otherwise provided by this rule) be effective for an additional period of six months from the date on which it was due to expire.
   

100. A caveat which has been extended as above may be further extended by the filing of a further application for extension subject to the same conditions as set out in sub paragraph (b) above.
     

(4) An index of caveats entered in any registry or sub-registry shall be maintained and upon receipt of an application for a grant, the registry or sub-registry at which the application is made shall cause a search of the index to be made and the appropriate district judge or registrar shall be notified of the entry of a caveat against the sealing of a grant for which the application has been made.]

(5) Any person claiming to have an interest in the estate may cause to be issued from [nominated registry] a warning in Form 4 against the caveat, and the person warning shall state his interest in the estate of the deceased and shall require the caveator to give particulars of any contrary interest in the estate, and the warning or a copy thereof shall be served on the caveator forthwith.

(6) A caveator who has no interest contrary to that of the person warning, but who wishes to show cause against the sealing of a grant to that person, may within eight days of service of the warning upon him (inclusive of the day of such service), or at any time thereafter if no affidavit has been filed under paragraph (12) below, issue and serve a summons for directions.

(7) On the hearing of any summons for directions under paragraph (6) above the [district judge or] registrar may give a direction for the caveat to cease to have effect.

(8) Any caveat in force when a summons for directions is issued shall remain in force until the summons has been disposed of unless a direction has been given under paragraph (7) above or until it is withdrawn under paragraph (11) below.

(9) The issue of a summons under this rule shall be notified forthwith to the [nominated registry].

(10) A caveator having an interest contrary to that of the person warning may within eight days of service of the warning upon him (inclusive of the day of such service) or at any time thereafter if no affidavit has been filed under paragraph (12) below, enter an appearance in the [nominated registry] by filing Form 5; and he shall serve forthwith on the person warning a copy of Form 5 sealed with the seal of the court.

(11) A caveator who has not entered an appearance to a warning may at any time withdraw his caveat by giving notice at the registry or sub-registry at which it was entered, and the caveat shall thereupon cease to have effect; and where the caveat has been so withdrawn, the caveator shall forthwith give notice of withdrawal to the person warning.

(12) If no appearance has been entered by the caveator or no summons has been issued by him under paragraph (6) of this rule, the person warning may at any time after eight days after service of the warning upon the caveator (inclusive of the day of such service) file an affidavit in the [nominated registry] as to such service and the caveat shall thereupon cease to have effect provided that there is no pending summons under paragraph (6) of this rule.

(13) Unless a [district judge or, where application to discontinue a caveat is made by consent, a registrar] by order made on summons otherwise directs any caveat in respect of which an appearance to a warning has been entered shall remain in force until the commencement of a probate action.

(14) Except with the leave of a [district judge] no further caveat may be entered by or on behalf of any caveator whose caveat is either in force or has ceased to have effect under paragraphs (7) or (12) of this rule or under rule 45(4) or rule 46(3).

(15) In this rule, 'nominated registry' means the registry nominated for the purpose of this rule by the senior district judge or in the absence of any such nomination the Leeds District Probate Registry.".

16. On the applicability of the Non-Contentious Probate Rules 1987, I adopt the decision of Calanchini, J in the case of Vernon Emerson and Anthony Robert Amos v. Fiji Public Trustee Corporation Limited [unreported] Probate jurisdiction Case Number 48456 of 2009.
    

"There are two provisions which allow a caveat to be filed prior to the sealing of a Grant of Letters of Administration (with Will annexed). They are section 46 of the Act and Rule 44 (1) of the Non-Contentious Probate Rules (the Rules) that are incorporated into the laws of Fiji by virtue of section 52 (2) of the Act. The procedure for removing a caveat filed under section 46 is set out in section 47 of the Act. The procedure for removing a caveat lodged under Rule 44(1) is set out in other parts of Rule 44. In this regard it is appropriate to note the observation of the Court of Appeal, Fiji Islands in Rosy Reddy –v- Manchama Webb and Lawrence Webb (unreported Civil Appeal No. 14 of 1994 delivered on 11 November 1994) that:

"We note that the procedure for dealing with a caveat under the Rules is different from the removal of a caveat provided under section 47 of the Act. Under the Rules a caveat shall remain in force for six months (r 44 (4)). A caveat may also cease to have any effect if the caveator does not file an appearance or take out a summons for directions (r 44 (11)). Under these Rules, a caveat may cease to have any effect in this way without there being a need for resort to court proceedings. However, under the Act, section 47 provides that in every case where a caveat is lodged, an application may be made to the Court to remove the caveat."

As the application before me states, these proceeding have been commenced pursuant to section 47 of the Act.

However, initially, the Applicants attempted to have the caveat removed by using the procedure that is prescribed by the Rules. For the reasons that follow it is necessary to consider the effect of the Rules as they are of some significance in this case.

The effect of section 52 when read with section 3 of the Act is that the Non-Contentious Probate Rules that were incorporated were the laws that were in force in the United Kingdom as at 1 January 1967. In the Rosy Reddy decision (supra) the Court of Appeal determined that those rules were the Non-Contentious Probate Rules 1954 (UK).

One issue to be considered is how should the Court interpret and apply the words used in section 52(2) that have incorporated the Non-contentious Probate Rules 1954 (UK) into the domestic law of Fiji. In other words does section 52(2) mean that the Court continues to apply the 1954 Rules that were in effect as at 1 January 1967 or does the Court apply the 1954 Rules as amended from time to time up to the present. An ancillary issue arises if the 1954 Rules have been repealed and replaced since 1967.

The position is discussed in Statutory Interpretation in Australia (6th Edition D.C Pearce and R S Geddes) at paragraph 6.19.

"The common law presumption was that, in the absence of an indication that a reference to another piece of legislation was to be ambulatory, the reference was taken to be to the legislation in the form it took at the date the referring legislation was made. Any subsequent amendments to the legislation referred to would not be taken into account. (See Comm. For Government Transport (NSW) v Deacon (1957) 94 CLR 535 at 546). This was seldom the result that legislators desired and hence the formula was commonly found that a reference to other legislation was to be read as a reference to that legislation "as amended" or "as in force from time to time"."

It was a similar formula that was the subject of interpretation by Winter J in Peni Naduaniwai v The Commander, Republic of Fiji Military Forces (unreported Civil Action No. HBM 32 of 2004 delivered on 6 September 2004). In that case the incorporating provision was section 2 of the Republic of Fiji Military Forces Act Cap 81 which stated:

"Army Act means the Arm Act, 1955 of the United Kingdom and includes all Acts amending, replacing or read in conjunction with the same and all rules, regulations and Articles of War made thereunder."

Winter J concluded that section 2 provided for the automatic inclusion into Fijian Domestic Law of amendments to the United Kingdom Army Acts 1995 as replaced or amended from time to time. The Fiji Court of Appeal in Barbados Mills and Others –v- The State (unreported Criminal Appeal Nos. 35, 43, 46 and 48 of 2004 delivered on 16 August 2005) approved the approach taken by Winter J in the Naduaniwai decision (supra).

However, in this case, section 52(2) does not contain any words that could be construed as a formula to achieve the same result.

Whilst the position in relation to an applied Act may be covered by section 9 of the Interpretation Act Cap 7 (as amended) the position in relation to regulations (or rules) is not dealt with. What the Court is concerned with in this case is a referential adoption of a set of rules. Even if section 9 of the Interpretation Act is not itself applicable to the Non-contentious Probate Rules, there is still a presumption at common law that legislation should be given an "updating" construction. As Beaumont J (dissenting) in Switzerland Insurance Australia Ltd –v- Moure Fisheries Pty Ltd [1997] FCA 231; (1997) 144 A.L.R 234 at page 246 observed:

"It is presumed that Parliament intends the court to apply to an on-going Act a construction that continuously "updates" its wording to allow for changes since the Act was initially framed. This means that in its application at any date, the language of this Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law."

It should also be noted that Order 1 Rule 11 of the High Court Rules states:

"The Rules for the time being in force in Her Majesty's High Court of Justice in England, and the practice and procedure of that Court with respect of non-contentious probate business shall apply so far as they are applicable, with such modifications as may be necessary, to grants of probate and administration issued in common form from the Registry of the High Court."

This Rule, made pursuant to the power given to the Chief Justice under the High Court Act Cap 13 should be read with section 52 (2) of the Act. This provision is consistent with the common law presumption that referred legislation should be given "an updated" construction.

However, an additional problem then arises. Pursuant to the Non-Contentious Probate Rules 1987 that came into effect on 1 January 1988, the Non-Contentious Probate Rules 1954 and all amendments to those Rules were revoked. It is one thing to take on something which is simply an amendment to the existing Rules, but it is a different thing to adopt an ambulatory approach where an entirely new set of Rules have been adopted.

In my view, Rule 44 in both versions deals with the same subject matter, i.e. the procedure for lodging and removing a caveat. Although the new Rule may differ in some significant substantive respects, the concepts were essentially the same.

Each version had the objective of providing a procedure for the removal of a caveat lodged by a caveator. Under those circumstances I consider that the 1987 Rules should be regarded as amending the 1954 Rules".

17. Given that Mr. Tunidau failed to take any action on behalf of his client, Mr. Keil proceeded to make an application for the issue of letters of administration for his client and required the registry to grant the letters of administration.
    
18. I am of the judgment that it is not proper to issue of letters of administration in favour of a caveator when another application for grant in the same estate is pending due to the caveators caveat.
    
19. If Mr. Tunidau has failed to move the court and his client has slept on his right, then, Mr. Keil should have properly brought a probate action under order 76 of the High Court Rules 1988. A probate action includes an action for grant of letters of administration: Order 76 Rule (2) of the High Court Rules 1988. In the pleading, Mr. Keil's client would have to show the interest his client has in the estate which makes her entitled to the grant.
    
20. I am of the judgment that since the issue is simple and concerns the right of a convicted person to be a trustee in the estate, the issue could be tried on affidavits after the pleadings proper were filed in court.
    
21. Mr. Keil could also have filed the probate action and made an application for grant of administration pendente lite by a summons pursuant to Order 76 Rule 14 (1) of the High Court Rules 1988.
    
22. There may be an additional problem of whether the caveat that was filed has expired. I will not deal with the issue at this stage. However I note that before the expiry of the caveat, Mr. Keil had lodged an application for letters of administration to be issued in favour of his client and the file was then placed before me. The matter was argued in court before the caveat expired and the parties have been waiting for a verdict to get a direction from the court. In that sense, it may not be fair and justified to hold that the caveat has expired, however, the issue has not be argued before me and so I cannot make a finding to this effect. I leave it to the parties to take the appropriate course of action.
    
23. None of the parties have followed the proper procedure and thus the Registry cannot issue the grant to any party at this stage. I am also not in a position to deal with the issue as to whose favour a grant should be made as the issue must properly be argued by the parties. I had indicated to the parties that the judgment would be confined to the procedural aspect only, and for the benefit of the registry, I have caused this judgment.
    

Final Directions

24. For the above reasons, I order that no grant be issued by the registry at this stage. Both the parties have to take the necessary steps to vindicate their clients' rights.
    

Anjala Wati
Judge

07.02.2010.

To:

1. Mr. Keil and Mr. Prasad.
2. Mr. Tunidau.
3. File.