Fong v Savusavu Airport Heights Ltd [2015] FJHC 988; HBA39.2011 (30 November 2015)

THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL APPEAL NO.: HBA 39 of 2011

BETWEEN :

ELI FONG - Trustee of the estate of Tom Nabong
Appellant
(Original Defendant)

AND :

SAVUSAVU AIRPORT HEIGHTS LIMITED
Respondent
(Original Plaintiff)

COUNSEL : Mr. D. Sharma for the Appellant

Mr. V. Singh and Ms. L. Lagilevu for the Respondent

Date of Hearing : 19th October, 2015

Date of Judgment : 30st November, 2015

RULING

[1] The plaintiff-respondent instituted this action seeking for the removal of the caveat No. 710334 lodged by the defendant-appellant. The learned Master on 03rd November 2011 made the following order;

The caveat No. 710334 lodged by the defendant on 06th October 2008 comprising in certificate of title No. 18863 having a area of 25A 2R 21.5P being lot one on DP 4786 is removed forthwith.

[2] Being aggrieved by the said order the defendant-appellant appealed to this Court. The learned Judge who heard the appeal left the judiciary of Fiji without delivering the judgment. In the meantime the administrator of the estate of Tom Nabong who instituted these proceedings for and on behalf of the estate of Tom Nabong as the trustee passed away and Ki-Maren (Fiji) Limited was sought to be substituted as the appellant in the room of Eli Fong (Deceased).

[3] The plaintiff-respondent opposed the said application for substitution on the basis that the said application misconceived in law for the following reasons;

(a) Section 31 of the Succession, Probate and Administration Act allows for the Court to grant administration with the will annexed to a proper applicant.

(b) The current application does not seek a grant of administration with the will annexed.

(c) Any application under section 31 of the Succession, Probate and Administration Act would have to be made in a proper action and cannot be brought in the current appeal. Section 7 of the Succession, Probate and Administration Act requires that all persons entitled to a grant must be cited.

(d) Ki-Maren (Fiji) Limited has not shown any citation to persons entitled to the grant, which would include Thomas Nabong, the other executor named in the will of Tom Nabong.

(e) A corporation cannot be appointed as a legal representative of the estate of Tom Nabong. This is prohibited by section 8 of the Trustee Corporation Act (Cap 65).

(f) A trustee corporation under the Trustee Corporation Act could be appointed as the trustee of the estate of Tom Nabong. However, Ki-Maren (Fiji) Limited is not a trustee corporation.

(g) A creditor corporation can only apply for letters of administration of an estate through a syndic. A syndic of a creditor can only make an application for letters of administration if the constitution (in Fiji the Articles and Memorandum of Association) of the corporation allows for it; In Re Randall [1913] VLR 535.

(h) There is no evidence to show that the Memorandum and Articles of Association of Ki-Maren (Fiji) Limited allows for it to act as trustee and make an application through a syndic.

[4] Section 2(1) of the Law Reforms (Miscellaneous Provisions)(Death and Interest) Act (Cap 27) provides that 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 state.

[5] The learned counsel for the defendant-appellant submitted that in view of the decision in Singh v Kumar [2006] FJHC 115; HBC 329.1994 if a person dies testate then the named executor can be added as the intended executor of the estate but the probate must be obtained before obtaining a decree.

[6] It is stated in the ex-parte notice of motion filed on 26th May 2015 that Ki-Maren (Fiji) Limited would apply for "letters of administration de bonis non" to administer the estate of Tom Nabong. However, there is no guarantee that Ki-Maren (Fiji) Limited would be granted the letters of administration.

[7] In the case of Meyappa Chetty v. Subramani Chetty [1916] 1 AC 603 the Privy Council held that in essence the general rule is that where a party dies intestate, an administrator can only institute or continue with an action after the grant of the letters of administration. On the other hand in case of a party dying testate, the named executors and trustees in the testamentary instrument may institute or continue with the proceeding as intended executor(s) and trustee(s). But for that too, an application for substitution must be made before a decree or order is pronounced.

[8] In that case the Privy Council also made the following observations;

It is quite clear that an executor derives his title and authority from the will from his testator and not from any grant of probate. The personal property of the testator, including all rights of action, vests in him upon the testator's death, and the consequence is that he can institute an action in the character of executor before he proves the will. He cannot, it is true, obtain a decree before probate, but this is not because his title depends on the probate, but because the production of probate is the only way in which, by the rules of the Court, he is allowed to prove his title..... The law on this point is well settled.

[9] Section 7 of the Succession, Probate and Administration Act (Cap 60) provides thus;

The court may grant administration of the estate of a person dying intestate to the following persons (separately or conjointly) being not less than 21 years of age-

(a) the husband or wife of the deceased; or
(b) if there is no husband or wife, to one or more of the next of kin in order of priority of entitlement under this Act in the distribution of the estate of the deceased; or
(c) any other person, whether a creditor or not, if there is no person entitled to a grant under paragraphs (a) and (b) resident within the jurisdiction and fit to be so entrusted, or if the person entitled as aforesaid fails, when duly cited, to appear and apply for administration.

[10] Section 8 of the Trustee Corporation Act (Cap 66) provides that whenever a trustee corporation is named, either alone or jointly with any other person as executor in any will, such trustee corporation may apply to the court for, and obtain, probate of such will and may do and perform all the other acts and duties of an executor as fully and effectually as any other executor.

[11] It is not a fact in dispute that Ki-Maren (Fiji) Limited is not a company registered under Trustee Corporation Act (Cap 66).

[12] However, section 7(c) of the Succession, Probate and Administration Act (Cap 60) provides that even a creditor is entitled to be appointed as trustee under certain circumstances.

[13] It is the submission of the learned counsel plaintiff-respondent that a creditor corporation can only apply for letters of administration of an estate through a syndic which means through a representative. There is no statutory provision in that regard, however, the learned counsel for the plaintiff-respondent relied on the decision in the case of In re Randall, deceased[1927] ArgusLawRp 85; , [1927] V.L.R. 535 at 538 where it was held as follows;

The creditor is an incorporated company, and it was thought that the best way of carrying out the matter is that the grant should be made to a trustee company. But it appears, by looking at the trustee company's Act, that there is a difficulty in bringing that about in the circumstances of this particular case. The case of In the will of August Basse [1909] ArgusLawRp 62; [1909] V.L.R. 313 rather supports the view that that difficulty cannot be overcome. But there are number of cases in Victoria following, to some extent at all events, cases in England, that where a corporation is a creditor a grant may be made to its syndic.

[14] In the case of In the will of August Basse (supra) it was held that a corporation aggregate, not specially authorized by Act of Parliament, cannot be appointed administrator cum testamento annexo, nor can it lawfully authorize a trustee company to apply for such a grant.

[15] This is not an application for probate or letters of administration. The application is to substitute Ki-Maren (Fiji) Limited in the room of the deceased defendant-appellant.

[16] Order 15 rule 8(1) of the High Court Rules provides that where a party to an action dies or becomes bankrupt but cause of action survives, the action shall not abate by reason of the death or bankruptcy.

[17] These rules are applicable to cases where a party dies after the institution of the proceedings. 15 rule 7(1) and (2) provide as follows;

(1) Where any person against whom an action would have lain has died but the cause of action survives, the action may, if no grant of probate or administration has been made, be brought against the estate of the deceased.

(2) Without prejudice to the generality of paragraph (1), an action brought against "the personal representatives of A.B. deceased" shall be treated, for the purposes of that paragraph, as having been brought against his estate. [emphasis added]

[18] These rules are applicable to cases where a party dies before the institution of the proceedings. The procedure for substitution applicable to this case is found in Order 15 rule 8.

[19] Order 15 rule 8(2) provides as follows;

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.

[20] This action was filed against Eli Fong as the trustee of the estate of Tom Nabong. Eli Fong was only the administrator of the estate of Tom Nabong. Anyone who is substituted in the room of the deceased Eli Fong must be a person who can represent the estate of Tom Nobong. It is the rights and liabilities of the estate of Tom Nabong that are being adjudicated upon in this case and not the personal interest of Eli Fong. The party sought to be substituted in this case does not come under any of the categories of persons mentioned order 15 rule 8(2) of the High Court Rules.

[21] This is not an application to appoint a trustee or an administrator to administer the estate of Tom Nabong but to substitute a suitable person in the room of the deceased Eli Fong, the trustee to proceed with the appeal. Ki-Maren (Fiji) Limited is in my view cannot represent the estate of Tom Nabong unless and until it obtains letters of administration.

[22] For the reasons aforementioned I make the following orders.

ORDERS.

1. The Application for the substitution of Ki-Maren (Fiji) Limited in the room of Eli Fong (deceased) is refused.
   
2. There will be no order for costs of this application.
   

...............................
Lyone Seneviratne
JUDGE