Naikavou v Raditora [2012] FJHC 916; HBC30.2009 (7 March 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CASE NUMBER: HBC 30 OF 2009

BETWEEN:

ONISIMO NAIKAVOU and ESALA JAMES
PLAINTIFFS

AND:

LAVENIA RADITORA
DEFENDANT

Appearances: Mr. Naco on instructions from Mr. Vakaloloma for the plaintiffs.
Ms. A. Maharaj for the defendant.
Date / Place of Judgment: Wednesday, 07th March 2012 at Suva.
Coram: The Hon. Justice Anjala Wati.

JUDGMENT

CATCHWORDS:
PROBATE ACTION – deposit of probate in Court -mandatory requirements of the probate proceedings rules.

LEGISLATION
The High Court Rules, 1988: Order 76 Rule 2 and 4.

1. By way of an interlocutory application, the plaintiffs seek an order that:-
   
   • (a) The defendant be restrained from exercising any rights pursuant to the Probate No. 46517 granted to her in the estate of Esala Nawaqaliva and the same be cancelled.
     
   • (b) The Letters of Administration be granted to the plaintiffs and for the defendant to provide all the accounts of the estate.
     
   • (c) The Court directs prosecution of the defendant on forgery and/or obtaining properties on false pretences.
     
2. The plaintiffs have brought a probate action against the defendant on the grounds that the deceased did not voluntarily execute the will which appointed the defendant as the trustee.
   
3. The first named plaintiff is the daughter of the deceased and the defendant is the granddaughter of the deceased.
   
4. The defendant has denied all the allegations and has stated that the will was voluntarily executed by the deceased.
   
5. Both the parties have filed extensive submissions based on the principle in the case of American Cyanamid Co. v. Ethicon Ltd. [1975] UKHL 1; [1975] AC 396. This case is not at all applicable to the matter at hand.
   
6. The procedure upon filing of a "probate action" is very clear.
   
7. Order 76 rule 4 (1) (b) of the High Court Rules, 1988 very clearly mandates that the defendant must have lodged the probate in Court within 14 days of the service of the writ on her claiming revocation of grant.
   
8. The plaintiffs have the right to apply under Order 76 r. 4(2) for compliance with such an order.
   
9. I shall cite Order 76 Rule 4 in full.
   

" 76, r.4 (1) — Where, at the commencement of an action for the revocation of a grant of probate of the will or letters of administration of the estate of a deceased person, the probate or letters of administration as the case may be, have not been lodged in court, then —

(a) if the action is commenced by a person to whom the grant was made, he shall lodge the probate or letters of administration in the Registry within 7 days after the issue of the writ;

(b) if any defendant to the action has the probate or letters of administration in his possession or under his control, he shall lodge it or them in the registry within 14 days after the service of the writ upon him.

(2) Any person who fails to comply with paragraph (1) may, on the application of any party to the action, be ordered by the court to lodge the probate or letters of administration in the office of the registrar within a specified time; and any person against whom such an order is made shall not be entitled to take any step in the action without the leave of the Court until he has complied with the order".

10. In this case, the Court has no option as it is mandatory that such a step be undertaken by the defendant to avoid any further loss to the estate, should the plaintiffs' probate action be successful.
    
11. The other orders for revocation of the grant and for issuance of the letters of administration to another party are not within my powers at an interlocutory stge. It is a final remedy that would be considered upon the hearing of the substantive case. There has to be oral hearing of the substantive matter.
    
12. I cannot direct prosecution of the parties. It is for the plaintiffs to lodge a separate complaint to the police if they so wish.
    
13. Once the grant is deposited in Court, the defendant must not hold himself out under the grant or else the purpose of depositing the grant will be destroyed.
    
14. In the final analysis, I order the defendant to lodge the probate in the office of the Chief Registrar within 7 days.
    
15. The defendant should have taken this step without any orders of the Court. The defendant's neglect has unnecessarily required the application. As such the plaintiffs shall have costs of this application summarily assessed in the sum of $550.00 to be paid within 21 days.
    
16. The parties should have proceeded with the substantive action in the normal way and by now the matter would have been ready for trial. The plaintiffs have failed to see that the matter progressed in accordance with the rules. In any event I now order that the matter take its normal course upon compliance with the directives.
    
17. Orders accordingly.
    

Anjala Wati
Judge

07.03.2012

To:

1. Mr. A. Vakaloloma, counsel for the plaintiffs.
2. Ms. A. Maharaj, counsel for the defendant.
3. File: HBC 30 of 2009.