Tirikula v Tirikula [2011] FJHC 133; HBC374.2008 (3 March 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 374 of 2008

BETWEEN:

CAMARI TIRIKULA of Lot 23, Nairai Road, Suva
PLAINTIFF

AND:

PENI TIRIKULA c/- Pacific Theological College, 78 Vuya Road, Suva.
1ST DEFENDANT

ATTORNEY GENERAL OF FIJI, Suvavou House, Suva
2ND DEFENDANT

REGISTRAR OF TITLES, Suvavou House, Suva
3RD DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSELS: ESESSIMARM & CO. for the Plaintiff

VAKALOLOMA & ASSOCIATES and
AG’S CHAMBERS for the Defendants

Date of Hearing: 18th January, 2011
Date of Ruling: 3rd March, 2011

RULING

1. INTRODUCTION

1. This is an application to substitute the executors and trustees of the estate of the deceased Plaintiff. Plaintiff filed the originating summons against defendants seeking conversion of joint tenancy between the Plaintiff and 1st Defendant to a tenancy in common on equity. The Plaintiff died while the action is pending in court and 1st Defendant became the sole owner of the property and object to the substitution on the basis that he is the sole proprietor of the property after the demise of the Plaintiff in accordance with the law on joint tenancy. The action was filed by the Plaintiff seeking a conversion of joint tenancy in to a tenancy in common on equity.
   

2. FACTS
   

2. The Originating summons was filed by the Plaintiff on 28th October, 2008 against three defendants. The first Defendant is an adopted son of the Plaintiff. The 2nd and 3rd Defendants are the Attorney General and Registrar of Titles. Plaintiff has sought for an order that the Plaintiff and the First Defendant to execute a transfer of certificate of Title 10975 to themselves as tenants in common in the shares of 2/3 to 1/3 respectively. The Plaintiff has also sought an order to effectuate that transfer in Certificate of title 10975.
   
3. In this action Plaintiff has sought a declaration that the joint tenancy over the said property contained in Certificate of Title 10975 be converted into a tenancy in common and a declaration for joint tenancy over the said property be severed in equity .
   
4. The 1st Defendant filed an affidavit in reply to the originating summons application by way of an affidavit filed on 21st February, 2009 and opposed the originating summons application of the Plaintiff and gave reasons as to why he did not consent to the conversion of joint tenancy to a tenancy in common.
   
5. An affidavit in reply was filed by the Plaintiff 1st May, 2009 and on 5th August, 2009 the Plaintiff died and the present application was made by Koresi Tuivanuavou Toaisi Junior to be substituted as the executors and trustees of the Plaintiff. The Will and the grant of probate to the said Koresi Toaisi is annexed to the application,
   
6. The 1st Defendant object to this application on the basis that he is the owner of the property in question upon the death of the Plaintiff as they were the only surviving joint tenants on the property at the time of the death.
   

100. LAW AND ANALYSIS
     

7. Order 15 rule 8(1) deals with the issue and states as follows:
   

“Where a party to an action dies or becomes bankrupt but the cause of action survives, the action shall not abate by reason of the death or bankruptcy.

Order 15 rule 8(2) states as follows:

“Where at any state of the proceedings in any cause or matter the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may if it thinks it necessary in order to ensure that all matters in dispute may be effectually and completely determined and adjudicated upon, order that other person to be made a party to the cause or matter and the proceedings to be carried on as if he had been substituted for the first mentioned party.”

8. In order to ascertain whether the action abates or not upon the death of the Plaintiff will be determined on the issue whether the cause of action survives in terms of the Order 15 rule 8(1). The survival of action upon a death of a party is determined by the Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Chapter 27).
   
9. The Sec Section 2(1) Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Chapter 27) deals with the survival of actions upon a death of a party and states as follows:
   

“2.-(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against or, as the case may be, for the benefit of, his estate:

Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims under section 32 of the Matrimonial Causes Act for damages on the ground of adultery.

(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person-

(a) shall not include any exemplary damages;

(b) in the case of a breach of promise to marry shall be limited to such damage (if any) to the estate of that person as flows from the breach of promise to marry;

(c) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death except that a sum in respect of funeral expenses may be included.

(3) No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person unless either-

(a) proceedings against him in respect of that cause of action were pending at the date of his death; or

(b) the cause of action arose not earlier than six months before his death and proceedings are taken in respect thereof not later than six months after his personal representative took out representation.

(4) Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed for the purpose of this Act to have been subsisting against him before his death such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered.

(5) The rights conferred by this Act for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Compensation to Relatives Act, and so much of this Act as relates to causes of actions against the estates of deceased persons shall apply in relation to causes of action under the said Act as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1). (Cap. 29)

(6) In the event of the insolvency of an estate against which proceedings are maintainable by virtue of this section any liability in respect of the cause of action in respect of which the proceedings are maintainable shall be deemed to be a debt provable in the administration of the estate notwithstanding that it is a demand in the nature of unliquidated damages arising otherwise than by a contract, promise or breach of trust." (emphasis is added)

10. According to Section 2(1) Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Chapter 27).all causes of action subsisting against or vested in that person shall survive for the benefit of his estate, subject to the provisions of that section. The exempted causes of action are defamation, seduction, inducing one spouse to leave or remain apart from the other, claim under section 32 of the Matrimonial Causes Act for damages on the ground of adultery.
    
11. This action is filed by the deceased Plaintiff by way of originating summons to convert the joint tenancy in to a tenancy in common. At the time of the instituting action the joint tenants were Plaintiff and the 1st Defendant. The cause of the action alleged in the originating summons is a cause of action in equity to sever the joint tenancy by way of a declaration on the basis that the 1st Defendant is unreasonably refusing to consent to such conversion. The cause of action pleaded in this originating summons does not fall into the causes of actions that are excluded specifically. The list of causes of action that are excluded in the proviso to the Section 2(1) Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Chapter 27); is exhaustive and no other similar causes of action can be added unless through an amendment to that section. So the rules of interpretations do not allow an inclusion of any other cause of action to the exhaustive list that is contained in the proviso to the Section 2(1) of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Chapter 27).
    
12. Since the cause of action in this case does not fall into the excluded causes of action that are contained in the provision of the Section 2(1) Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Chapter 27) the general rule that is contained in the Section2 (1) of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Chapter 27) should apply. Accordingly, the cause of action vested in the Plaintiff should survive and, the dead plaintiff should be substituted by the proper person who is in charge of her estate. In this instance the executor of the estate should be substituted.
    
13. It is noteworthy, that the 1st Defendant is the adopted son of the deceased Plaintiff and she has not appointed the only son as the executor of her will, and the person appointed as executor should be substituted in this action. It is undisputed that upon the death of the joint tenant the remaining tenant becomes the owner of the land and in this instance the joint tenants were the deceased Plaintiff and the 1st Defendant. Upon the death of the Plaintiff, the remaining joint tenant becomes the owner.
    
14. In Blacks Law Dictionary, (6th Edi) defines the joint tenancy as:
    

"An estate in fee-simple, fee-tail, for life, for years or at will, arising by purchase or grant to two or more persons. Joint tenants have one and the same interest, accruing by one and the same time, and held by one and the same conveyance commencing at one and the same time and held by one and the same undivided possession. The primary incident of joint tenancy is survivorship, by which the entire tenancy n the decease of any joint tenant remains to the survivors and at length the last survivor."

15. It is evident that upon the death the 1st Defendant had become the sole owner of the land in question, but this application before me is not a strike- out of the originating summons application in terms of Order 18 rule 18 where I have to consider the existence of reasonable cause of action, the frivolity etc . That can be considered in a proper application made in pursuant to a summons or petition issued in pursuant to Order 18 rule 18(3). Even for the Defendant to file such an application there should be a proper plaintiff and once the Plaintiff is dead a proper person should be substituted. It is clear that any application of the Defendant needs to be served to the Plaintiff and once the plaintiff is dead the proper person has to be substituted to proceed with any kind of application. Otherwise the matter has to be struck out for want of prosecution. In order to prevent such a situation that the Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Chapter 27) has introduced law that survives all the causes of actions except the limited number of causes of actions that are specifically excluded from this rule.
    
16. So, I need not consider the legality of the conversion of the joint tenancy into a tenancy in common in this application. The jurisdiction is limited and in accordance with the Order 15 rule 8 read along with the Section 2(1) the Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Chapter 27).the deceased Plaintiff should be substituted by the executor of her property.
    

4. CONCLUSION
   

17. The scope of the application made in terms of the Order 15 rule 8 is limited. Section 2(1) of Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Chapter 27) is clear enough for the substitution of the executor of the deceased Plaintiff in this action. I need not venture at this juncture the cause of action and the convertibility of the joint tenancy to tenancy in common on equity without consent of the parties, as it clearly falls out side the scope of this application. That can be addressed in a proper application made by a party after notice.
    
18. Plaintiff is substituted by the executor of her estate. The cost of this application will be Plaintiff's cost in the cause.
    

Dated at Suva this 3rd day of March, 2011

Mr. Deepthi Amaratunga
Acting Master of the High Court

Suva