Sakuca v Naviko [2014] FJHC 203; HBC124.2012L (26 March 2014)

IN THE HIGH COURT OF THE REPUBLIC OF FIJI
AT LAUTOKA
WESTERN DIVISION

CIVIL JURISDICTION

Civil Action No. HBC 124 of 12L

BETWEEN:

SIKELI SAKUCA
suing on behalf of himself and descendants of Jone Sito (deceased) of Nailaga, Ba, Farmer.
Plaintiff/ Applicant

AND:

INOKE NAVIKO
of Vunato, Lautoka and Joseva Bolaevei of Tavarau, Ba as Trustees of Tokatoka Nacobowale.
1st Defendant\Respondent

AND:

ITAUKEI LAND TRUST BOARD,
a statutory body duly constituted under the iTaukei Lands Trust Act
2nd Defendant\Respondent

Before : Acting Master M H Mohamed Ajmeer

Appearances:

Mr Vuatake for the applicant
Mr Nawaikula N for the first defendant/respondent
Mr Lutumailagi for the second defendant/respondent

Date of Hearing : 24 January 2014
Date of Ruling : 26 March 2014

RULING

Introduction

[1] The applicant, Mr Josateki Naisau, son of the original plaintiff, on 17 June 2013 by way of motion filed this application seeking, inter alia, leave for him to be substituted in this proceeding as the plaintiff in place of Sikeli Sakuca, the original plaintiff who died pending action. The application is supported by an affidavit of the applicant sworn on 5 June 2013 and filed on 17 June 2013. The supporting affidavit annexes certain documents marked "JN-1"-"JN-3". The application is made pursuant to O. 15, r.8 of the High Court Rules 1988, as amended (the HCR) and in the inherent jurisdiction of the Court.

[2] The first defendant (the respondent) opposes this application by filing an answering affidavit of Inoke Naviko (the respondent) sworn on 1 October 2013 and filed on 8 October 2013. The answering affidavit annexes a document marked "IN 1". The basis of the first defendant's opposition to this application is that the applicant has no necessary consent of the descendants of Jone Sito of Tokatoka Nacobowale, Mataqali, Yavusa Nasolo of Nailaga Village, Ba.

[3] On 1 November 2013 the applicant filed an affidavit in reply sworn on 31 October 2013 in that he deposed that he does have the mandate of majority descendants of Jone Sito as they have signed annexure "JN3" of his earlier affidavit.

[4] The second defendant, iTLTB did not participate in these proceedings. Mr Lutumailagi appearing for the second defendant indicated in Court that the second defendant do not wish to oppose this application.

Background

[5] On behalf of himself and on behalf of descendants of Jone Sito (deceased),the original plaintiff by originating summons filed on 7 June 2012 sought certain orders in the nature of mandatory injunction on the ground that the plaintiffs are entitled to equal share of Tokatoka Nacobowale lease income of $96.000 received by the first defendant/respondent in May 2012 which, the original plaintiff alleged, the first defendant failed to pay to the plaintiffs and the second defendant who released the monies to the first defendant failed to give evidence of minutes of Tokatoka Nacobowale meeting and Deed of Trust it relied on to make such payment. Pending the action, the original plaintiff who brought this action passed away on 11 May 2013. At the time when he (the original plaintiff) brought this action was representative of all the descendants of Jone Sito in this matter. The applicant now says he is the representative of the descendants of Jone Sito and has been duly appointed to represent the original plaintiff in this cause.

[6] In April 2012 TLTB set up a trust for the land owning unit of Tokatoka Nacobowale, to assist in the distribution of rental income appointing Inoke Naviko and Josefa Bolaveidiso as trustees. Trust Deed contained the provision that trustees are also signatories of their account and they are to distribute TLTB income according to the consensus of the Tokatoka and in the best interest of all members. At a meeting of the Tokatoka it was resolved to distribute $500.00 to each member and the remainder retained to be distributed according to their further decision. The original plaintiff did not agree with the decision and he filed this action purportedly on behalf of himself and on behalf of the descendants of Jone Sito.

The Law

[7] O. 15, r.8 of the HCR deals with change of parties by reason of death. That rule, so far as material, provides:

"8-(1) 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.

(2) Where at any stage 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] Section 2-(1) of the Law Reform (Miscellaneous Provisions) (Death and Interest provides:

"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 ( My emphasis) "

[9] A person cannot be a plaintiff unless he has a vested interest in the subject matter of the action. Subject to the provision to any Act and unless the court gives leave to the contrary, all parties jointly entitled with the plaintiff to any relief must be parties to the action, and, subject to any order of the court made on an application for leave, any of them who does not consent being joined as a plaintiff must be made a defendant. In action concerning trust property the trustees usually are the proper plaintiffs, for the legal title is in them, but if a trustee refuses to bring an action, the beneficiary who is interested in obtaining the relief may bring the action, making the trustee a defendant. In a representative action, a person represented although not named on the record is a party to the action and may be added or substituted as the named plaintiff (see 37 Halsbury's Laws (4thedn) para 216).

Analysis and Determination

[10] The applicant is willing to be substituted as plaintiff and to prosecute this action initiated by his late father, original plaintiff. The original plaintiff brought this action on behalf of himself and on behalf of the descendants of Jone Sito. The applicant says he is now the representative of the descendants of Jone Sito after his father passed away and he has necessary consent to replace the original plaintiff in this action. The applicant in the supporting affidavit states that he has been appointed to represent the (original) plaintiff in this action. He exhibited in his supporting affidavit an alleged copy of the "Consent to Replace" note (Letter of Authority) ("JN3"). The document "JN3" consists of 17 names of individuals written by hand and 12 out of 17 had allegedly signed. There are no signatures against five names in the list.

[11] An application for leave to substitute a party by reason of death must be made in accordance with O.15, r. 8(1) of the HCR. In term of that rule 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 (My emphasis). The application for an order to substitute a party by reason of death could be made ex parte pursuant to O.15, r.8-(1) of the HCR. And, any person served with an order made ex parte under this rule may make within 14 days an application to the Court for the discharge or variation of the order (O.15, r.8 (5)). In these proceedings the applicant for one reason or the other has chosen to proceed with his application for substitution inter parte.

[12] Mr Vuataki, counsel for the applicant orally submitted that the applicant has been appointed representative of all the descendants of the Jone Sito, all the descendants of Jone Sito have common interest and he must be substituted as plaintiff in this action exercising the court's discretion. It should be noted that he did not opt to file any written submissions.

[13] Mr Nawaikula, counsel for the respondent in his written submissions and also orally submitted that the applicant does not have the support and consent of the people he says that he represents. In support of this submission he brought to notice of the court to the alleged letter of authority exhibited in the supporting affidavit filed by the applicant ("JN3"). In the alleged letter of authority, he submitted, the names and signature of four of the individuals who are minors and when the respondent raised this as an issue the applicant admitted that mistake and stated quite clearly that they are his children and he signed on their behalf.

[14] The applicant has admitted that he has signed the alleged letter of authority on behalf of minors being his children. Minors could not have signed the alleged consent to replace the applicant in place of the original plaintiff. It seems that the applicant had forged certain signatures to show that he is the representative of the descendants of Jone Sito. Moreover, 5 individuals out of 17 that appear in the letter of authority did not sign it. I am therefore doubted about the veracity of the letter of authority ("JN3") tendered in support of this application.

[15] Representative must be elected at a convention by the descendants of Jone Sito. There is nothing in court to show that the applicant was elected as representative of the descendants of Jone Sito and has consent to prosecute this action in place of the original plaintiff.

[16] As stated earlier, a person cannot be a plaintiff unless he has a vested interest in the subject matter of the action. In these proceedings the applicant has not satisfied me that he has a vested in interest in the subject matter. He attempted to show that he is the representative of the descendants of Jone Sito which he failed.

[17] For all these reasons, the application seeking leave to substitute as plaintiff is doomed to fail.

[18] As prevailing party the respondent is entitled to costs of these proceedings. The respondent has filed answering affidavit, there was hearing, he filed a written submissions and made few appearances through his counsel. I therefore considering all summarily assess costs at $400.00.

[19] To add further, in a representative action like this a person represented although not named on the record is a party to the action and may be added or substituted as the named plaintiff. The applicant could have easily made an application to be substituted as the plaintiff on the basis that he is a represented person, but he failed to do so.

Final orders

1. The applicant's application filed on 17 June 2013 seeking leave for him to be substituted in this proceeding as the plaintiff instead of the original plaintiff is dismissed and struck out with the summarily assessed cost of $400.00 to be paid by the applicant to the respondent within 14 days.
   
2. Order accordingly.
   

M H Mohamed Ajmeer
Acting Master of the High Court

At Lautoka
26/03/14