Goundar v Fiji National Provident Fund - Manager [2015] FJHC 667; HBM33.2014 (17 September 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO. HBM33 of 2014

IN THE MATTER of section 35 (1) and 43(2) of the Fiji National Provident Fund Act

BETWEEN:

RANGA SAMI GOUNDAR ofSaweni, Lautoka.
APPLICANT

AND:

THE MANAGER, FIJI NATIONAL PROVIDENT FUND
Of Naviti Street, Lautoka.
1STRESPONDENT

AND:

KANCHAN NARAYAN formally of Suva but present address
Unknown. NOMINAL 2NDRESPONDENT

Mr. Victor Vishal Sharma for the Applicant
Ms. Anamaria Rogovakalali for the First Respondent
No appearance for the Nominal Second Respondent.

Date of Hearing: - 02nd June 2015
Date of Ruling: - 17th September 2015

RULING

(A) INTRODUCTION

(1) The matter before me stems from the Applicant's Originating Summons dated 20th November 2014, seeking the following orders:

(1) FOR an Order that the nomination made by the Deceased in favour of the nominal 2nd respondent is null and void in view of the marriage dated 23rd of February, 2007 between the deceased and Kanchan Narayan being declared absolutely null and void by the Family Court Division of the High Court at Suva.

(2) FOR an Order that 1st Respondent do pay the Applicant all the monies standing in credit in the membership of the Deceased Esogaran Goundar under FNPF No. 1305770 within 14 days from the date of the Order.

(2) The application is supported by an affidavit sworn by the Applicant on 15th July 2014.

(3) The application is strongly resisted by the first Respondent.

(4) The first Respondent filed an Affidavit in Opposition opposing the application followed by an Affidavit in Reply thereto.

(5) The Nominal Second Respondent neither appeared nor filed any affidavit or submission to oppose the application.

(6) The Applicant and the first Respondent were heard on the Originating Summons. They made oral submissions to court. In addition to oral submissions, they filed a written submission for which I am most grateful.

(B) THE FACTUAL BACKGROUND

(1) What are the facts here? It is necessary to approach the case through its pleadings/affidavits.

(2) To give the whole picture of the action. I can do no better than set out hereunder the main averments/assertions of the Pleadings/Affidavits.

(3) The Applicant in his affidavit in support deposed inter alia;

Para (1) THAT I am the lawful father of the deceased ESOGARAN GOUNDAR. That annexed hereto and marked with letter "A" the birth certificate of the deceased.

(2) THAT the deceased died on 13th January, 2014 at Lautoka Hospital. That annexed hereto and marked with letter "B" is a copy of the death certificate.

(3) THAT the deceased at the time of his death was aged 46 years. That at the time of his death, the deceased was residing with me and my family members since January, 2008.

(4) THAT the deceased by profession was a School Teacher, and has taught at Natabua High School, Gospel High School, Ba Provincial School and Laucala Bay School in employment with the Ministry of Education.

(5) THAT the deceased got married to one Kanchan Narayan on 23rd February, 2007, at the Suva Marriage Registry.

(6) THAT however pursuant to Order of Nullity of Marriage dated 3rd, May, 2008, made by the family Court Division of the High Court at Suva, declared to have been absolutely null and void. That annexed hereto and marked with letter "C" is a copy of the said Order.

(7) THAT upon his marriage he had nominated Kanchan Narayan for his FNPF Savings but after the Order of Nullity was made, the deceased did not change the nomination in relation to his FNPF savings.

(8) THAT from January, 2008 the deceased was residing with me after becoming very sick in December, 2007 whilst he was in Suva with Kanchan Narayan.

(9) THAT the said Kanchan Narayan failed to take care of the deceased which resulted in me and other family members bringing him back to my house.

(10) THAT on 24th January, 2008, the deceased was admitted at Lautoka Hospital and was discharged on 11th February, 2008. That the deceased after discharge was taken care of by me and my family members thereafter until his death on 13thJanuary, 2014.

(11) THAT upon his death i applied for funeral assistance the special death benefit for the deceased funeral and other rights and was paid $2000.00 to perform the funeral rites from my residence. That annexed hereto and marked with letter "D" are copies of the application form and dorm for notifications of death.

(12) THAT the said Kanchan Narayan after the Order of Nullity did not communicate with the deceased or me or the other family members and also did not attend the funeral or perform any funeral or post funeral rights.

(13) THAT I sought for assistance of Fiji National Provident Fund for release of his savings to me as the next of kin and father of the deceased, however the FNPF advised me that as per their records Kanchan Narayan was the nominated beneficiary and that the nominations does not change or get nullified after divorce or nullity.

(14) THAT I sought for assistance of the Honorable Prime Minister's Office and Attorney General office to get the release of the monies to me. That annexed hereto and marked with letter "E" is a copy of my said letter.

(15) THAT my email dated 13th June, 2014, Mr. Darshik Nair a legal officer of the Attorney General office advised that I seek legal advise and apply to court. That annexed hereto and marked with letter "F" is a copy of the said email.

(16) THAT in view of the foregoing, I make this application to this Honorable Court for an Order that al the monies held in the Fiji National Provident Fund Account for the deceased under FNPF No. 1305771 be paid out to me the father of the deceased and his next of Kin.

(4) Peni Gonelevu, Manager Employers on behalf of Fiji National Provident Fund Board, filed an Affidavit in Opposition, which is substantially as follows;

Para (1) THAT I am the Manager Employers for the 1st Respondent Fiji National Provident Fund and am authorized by the 1st Respondent to make this Affidavit on its behalf.

(2) THAT I depose as follows from my own knowledge, from the contents of documentary material in FNPF files and from information to the best of my knowledge and belief. Such facts and matter, in so far as they are within my knowledge, are true. In so far as they are not within my knowledge, they are true to the best of my information and belief.

(3) THAT I crave leave to refer to the Affidavit of Ranga Sami Goundar (hereinafter referred to as the "Affidavit "sworn on 15th of July, 2014 and filed on 20th of November, 2014) and respond to the Affidavit.

(4) THE Fund makes no comment as to paragraph 1 and 2 and states that it cannot confirm the authenticity of the attached birth certificate and death certificate unless the originals are sighted.

(5) WITH reference to paragraph 3, the Fund makes no comment of all contents therein as it is not aware of the same except for what has been indicated in the said death certificate which the Fund also cannot confirm unless the original is sighted.

(6) THE Fund neither admits nor denies contents of paragraphs 4 and 5 as it is not aware of the whole contents therein.

(7) IN reference to paragraph 6, the Fund makes no comment however confirms that an Order for Nullity of Marriage was indeed made by the Family High Court as per attachment 'C' of the said affidavit.

(8) THE Fund denies the contents of paragraph 7 and further states that according to the FNPF records, the deceased had validly nominated Mrs. Kanchan Gounder to receive one hundred percent (100%) share of his FNPF funds.

(9) THE deceased nomination as per the FNPF valid nomination form dated 9th March 2007 list the details of the nominee as follows:

Name of Nominee-Kanchan Gounder

Address -11 Aidney Road, raiwaqa, P.O.Box 5013, Raiwaqa

Date of birth - 15/06/81

Relationship - Wife

Share - 100%

Fine attached herein is a true copy of the deceased nomination form marked as Annexure 'PG 1'.

(10) THAT it must be noted that the deceased had lodged his nomination after his marriage on 23rd February 2007 as alluded to in the deponent's affidavit at paragraph 5, and a nomination after a members marriage is a valid ground for nomination.

(11) THE Fund further states that despite the nullity of marriage between the deceased and Ms. Kanchan Narayan, as per the FNPF law, nullity of marriage does not invalidate a member's nomination.

(12) THE Fund makes no comment as to paragraph 8, 9 and 10 as it is not aware of the contents therein.

(13) THAT in response to paragraph 11 of the Affidavit, the 1st Respondent admits that it received and processed the Special Death Benefit funeral assistance application lodged by the Applicant in January, 2014.

(14) WITH reference to paragraph 12 the Fund makes no comment as it is now aware of the contents therein.

(15) THAT in response to paragraph 13 of the Affidavit, the 1st Respondent says that a nomination can only be declared null and void if the nominator remarries after he/she has already filed a nomination with the Fund.

(16) AS for the remainder of the contents of paragraph 13, the Fund admits the same with regards to a nullity of marriage and divorce not being a ground for invalidation of a valid nomination.

(17) THAT with reference to paragraph 14, the Fund neither admits nor denies the same as there is no attachment of the said letter as alluded to by the deponent.

(18) THAT in relation to paragraph 15, the Fund makes no comment on the same except for the contents of the email as per attachment 'F' of the deponent's affidavit.

(19) IN reference to paragraph 16, the Fund states that monies cannot be released to the deponent as there is a valid nomination in place by the deceased.

(20) THAT the Fund as a creature of statute must comply to the provisions of the FNPF Decree and Regulations and as such the valid nomination for the deceased shall be paid out to the rightful nominee.

(21) IF the Fund is to pay the deceased funds to another person apart from the valid nominee, then the Fund will be acting 'ultra vires'.

(22) THAT the Fund further states that in the Applicant's case, nullity of the marriage cannot alter or render the nomination of the deceased's void, unless that nomination was made by the deceased member prior to his marriage to the 2nd Respondent in 2007.

(5) The Applicant filed an affidavit in rebuttal deposing inter alia;

Para (1) ThatI have read the contents of the affidavit of the 1strespondent and make reply to the same.

(2) THAT the 1st respondent says that the deceased nomination is valid. However, it must be noted that at the time of the Late Esogaran's death the 2nd Respondent was not a spouse of the deceased. The order for nullity is sufficient proof.

(3) THAT I as a parent am fully allowed to apply for the funds after the demise of the late Esogaran. He does not have any children and at the time of his death and the only surviving relations the late Esogaran had was his mother and I, as evidenced by the certificate of death.

(4) THAT the 1st Respondent to release or direct the Late Esogarans funds to the 2nd respondent is unconscionable and the same should not be allowed by this Honorable Court.

(5) THEREFORE I seek that the 1st Respondent releases the said funds to me.

(C) ANALYSIS

(1) Before I pass to consideration of the arguments, I ought to mention one thing. The Applicant abandoned the first prayer sought in the Originating Summons as he conceded that the deceased member's nomination is valid.

(2) The argument of the Applicant runs essentially as follows:

[The Counsel in her submission writes]

"Sub- section 4 gives this Honourable Court powers to dispose of the amount paid under and FNPF members preserved and general entitlements.

It is clear, that the Board must comply with any current nominations, however, we respectfully submit, that this Court is not required to comply with any nomination.

This Court has the power of discretion to justify dispose of the FNPF members amount to any party it thinks fit"

(3) In adverso, the first Respondent forcefully submits;
[The Counsel in her submission writes]

"It is respectfully submitted that this Honourable Court does not have the powers to make orders to override a valid nomination and that all cases with a valid nomination over the years have been paid to the valid nominee".

(4) The proposition advanced by the Applicant requires some examination of Fiji National Provident Fund Decree 2011 (Decree No 52).

Section 57 provides;

"(1) in paying an FNPF member's preserved and general entitlements on his or her death, the Board must comply with any current nomination by the member.

(2) if a nominee of an FNPF member (not the surviving spouse of the member) is under 18 on the date of determination of the application for withdrawal, the Board must pay the amount for that nominee to the High Court.

(3) if-

(a) A nomination by an FNPF member does not cover all of the amount payable in respect of an FNPF member on his or her death;

(b) Because of subsection (1), the Board cannot pay some or all of the amount payable in respect of an FNPF member on his or her death;

(the amount not covered, or that cannot be paid, is the "unallocated amount"), the Board must pay the unallocated amount in the high Court for disposition according to law.

(4) The High Court may, on application, make such orders as are just for the disposition of an amount paid in under subsection (1) or (2).

(5) if-

(a) the High Court makes an order in favour of a person under subsection (4); and

(b) the person is under 18;

Then, the High Court shall hold the amount to be paid in trust for the benefit of the person.

(6) subsection (5) shall not apply to a person, if, at the time of the death of the deceased FNPF member, the person was the spouse of the deceased FNPF member.

(5) Section 15 of the Fiji National Provident Fund (Amended) Decree 2012 provides;

"Section 57 of the Principal Decree is amended-

(a) In subsection (1) by deleting the following-

"However, the Board may only pay a nominee who was, at the time of the member's death-

(a) The spouse of the member;

(b) A parent or child of the member;

(c) An individual who was financially dependent on the member; or

(d) A person specified in the rules made the Board for this section." and

(a) By deleting subsection (6) and substituting the following-

(6) subsection (5) shall not apply to a person if, at the time of the death of the deceased FNPF member, the person was the spouse of the deceased FNPF member."

(6) The Applicant heavily relies on Section 57(4) and contends that the Court has the discretion to dispose of the funds standing to the deceased member's FNPF account despite the existing valid nomination in place.

(7) The real issue and the only issue which this Court has to consider is the rationale of Section 57(4).

(8) To be more precise, whether the Court has the discretion to dispose of the funds standing to a member's FNPF account under Section 57(4) despite a valid nomination in place?

(9) On a strict reading of Section 57, it is perfectly clear that Section 57 (4) will only apply in cases where a payment of an "unallocated amount" under subsection (1)is paid into High Court under subsection (03) or when the nominee is a minor under subsection (02).

(10) Returning to the present case, it is undeniable that there is a valid nomination and the nominee is over 18 years. The nomination clearly indicates that 100% is to be paid to the Second Respondent.

(11) Therefore, I am driven to the conclusion that Section 57 (4) has no application even by any stretch of imagination to the instant case.

(12) The Applicant construed Section 57(4) without making specific reference to Section 57 (1) and 57 (2).

This Construction tends to make Section 57(1) and (2) meaningless or ineffective. In constructing a provision of a statute the Court should be slow to adopt construction which tends to make any part of the statute meaningless or ineffective. Every statute has to be construed as a whole and the construction given should be a harmonious one. It is legitimate and even necessary to adopt the rule of liberal construction so as to give meaning to all parts of the statute and to make the whole of it effective and operative. An interpretation which would defeat the purpose of the statutory provision and, in effect obliterate it from the statute book should be eschewed.

(13) At this point, I cannot resist in saying that the Applicant's construction would certainly produce inconvenience and hardship to the FNPF contrary to the apparent intention of the legislature and would indeed reduce Section 57 (1) to an absurdity. To be more precise, the applicant's construction could defeat the obvious intention of the legislature and produce a wholly unreasonable result.

(14) I must stress here that an intention to produce unreasonable result is not to be imputed to a statute. Where possible, a construction should be adopted which will facilitate the smooth working of the scheme of the legislation established by the act, which will avoid producing wholly unreasonable result.

(15) Given the above, I certainly agree with the sentiments which are expressed inferentially in the first Respondent's submission.

(D) CONCLUSION
For the reason which I have endeavored to explain, I have no doubt and I am clearly of the opinion that Section 57(4) of the Fiji National Provident Fund Decree 2011 has no application even by any stretch of imagination to the instant case.

Therefore, the applicant is not entitled to receipt of the deceased member's FNPF monies. I cannot see any other just way to finish the matter than to follow the Law.
Accordingly, there is no alternate but to dismiss the Originating Summons.

(E) FINAL ORDERS

(1) Originating Summons dismissed.

(2) The applicant is ordered to pay costs of $1000.00 (summarily assessed) to the first Respondent which is to be paid within 14 days from the date hereof.

Jude Nanayakkara
Acting Master of the High Court

At Lautoka
17th September 2015