Cakau v Fiji National Provident Fund [2016] FJHC 987; HBP224.2016 (28 October 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No.: HBP 224 of 2016

BETWEEN : LAUNI VALERUA CAKAU of Block 1, Flat 21, Kia Flats, Raiwai, Suva, Fiji, Civil Servant.

PLAINTIFF

AND : FIJI NATIONAL PROVIDENT FUND of 33 Ellery Street, Suva in the Republic of the Fiji Islands.

1^ST DEFENDANT

AND : LEDUA TAWAKE of Nasomo, Vatukoula, Fiji, Domestic Duties.

2^ND DEFENDANT

Counsel : Mr. A. Vakaloloma for the Plaintiff

Ms. L. Seiboume and Ms. A. Rogovakalali for the 1^st Defendant

Mr. P. Tawake for the 2^nd Defendant
Dates of Hearing : 20^th October, 2016
Date of Decision : 28^th October, 2016

DECISION

INTRODUCTION

1. The Plaintiff is seeking order of the court for recovery of the arrears of maintenance from the funds remitted to the High Court upon a deceased member of FNPF (Fiji National Provident Fund). The funds are paid by the FNPF in terms of Section 57 (2) of the FNPF Decree 2011(Decree No 52)(hereinafter refer only as FNPF Decree)to the High Court to be distributed in accordance with the law, as there was no valid nomination at the time of the death. The deceased member had defaulted some maintenance payments, and there is no evidence how much arrears remain unpaid at the time of death. The amounts presented to the court were arrears of defaults in 2010 and 2011 and the respective arrears at that time were $14,390 and $13,090 respectively, so the amount of arrears had decreased from 2010 to 2011. The Plaintiff in her affidavit in support did not state the arrears at the time of death.
   

FACTS

2. The Plaintiff in this action is the ex-wife of the deceased member of FNPF. There was a maintenance order against the deceased member and he had defaulted some payments some time ago and upon an application for Judgement Debtor Summons and committal the amount was enhanced in, 2010. When the warrant for committal was issued the default amount was $13,090.(see annexed ‘D’ to the affidavit in support of the motion)
   
3. Till death there was no order made by a court to recover the accrued maintenance from his funds with the FNPF.
   
4. Upon the death of the member the funds were transferred to the High Court in terms of Section 57(3) of FNPF Decree for ‘disposition according to law’, as there was no valid nomination at the time of the death.
   
5. The 1^st Defendant being the widow of the deceased member made an application for the distribution of the money and since she is the sole beneficiary of the funds remitted as it was less than $20,000 an order was made in favour of her.(See Section 6 of the Succession Probate and Administration Act (Cap 60)
   
6. The Plaintiff’s solicitor wrote a letter to the High Court Registry before the payment of such funds on 4^th August, 2016 seeking time to file an application for recovery of the arrears in maintenance.
   
7. An ex-parte notice of motion was filed for the said purpose by the Plaintiff, but upon that being brought to my notice I gave direction to convert it to inter partes and to make all beneficiaries and affected parties to be included as parties and to serve them the motion and affidavit, since the issue involves an issue of law.
   
8. The inter partes notice of motion was filed and accordingly the 1^st Defendant was FNPF and the 2^nd Defendant was the widow of the deceased member for whom already an order was made as the sole beneficiary of the funds paid by 1^st Defendant to distribute according to the law. This order for distribution, which was made in accordance with the Succession, Probate and Administration Act (Cap 60), was temporary suspended till the determination of this application by the Plaintiff. If the amount paid to the High Court is disbursed to 2^nd Defendant the application of the Plaintiff would be moot.
   
9. The Plaintiff by way of Inter Parte(sic) Motion seeks following orders
   
   1. ‘For an order by consent that the Fiji National Provident Funds of the late Joseva Natua within the High Court Registry to be held in the registry and to be distributed in accordance to the Terms of the Maintenance dated 16^th May, 2011 filed herewith.’
      
10. The 1^st and 2^nd Defendants object to this application, hence there cannot be any order by consent as sought by the Plaintiff. Even after the objections being filed the Plaintiff did not seek to amend its Motion. So the Motion of the Plaintiff is defective and could not be granted in the present form.
    
11. Considering the importance of the issue involved, I would consider in this judgment whether the funds remitted to the High Court by the 1^st Defendant could be subjected to a claim for arrears of maintenance at the time of the death of late Joseva Natua in terms of FNPF Decree and Family Law Act.
    
12. According to the submissions of the Plaintiff the deceased and the Plaintiff were divorced on 29^th December, 2008 and an order for maintenance was made on 4^th December, 2001. The deceased was not consistence with the payment and the arrears as at 29^th January, 2010 was $14,390.00. When the committal warrant was filed in 2011 the amount of arrears of maintenance had decreased to $13,090.
    
13. According to the motion there was no specific amount of arrears of maintenance at the time of the death. It needs not state that the order for maintenance will not be operative after the death of late Joseva Natua. Again the Motion is deficient of vital information where the court the Plaintiff seeks specific order. Without exact amount of arrears a court cannot make an order for deduction. The Plaintiff in her affidavit in support only states the amount of arrears in 2010 which stand at $14,390. This had decreased in 2011 and this is evidenced from annexed ‘D’ to the affidavit in support of the motion.
    
14. The Plaintiff submits that maintenance arrears order of payment is a moral obligation of the deceased and should be deducted or paid from his FNPF funds. Further submitted that ‘it is the duty of the court of find the testator guilty of breach of such moral duty of payment of his maintenance in support of his children.’
    

Law and Analysis

15. The Section 57(3) of the FNPF Decree states as follows

(3)If -

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

(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 into the High Court for disposition according to law.

16. Accordingly, the 1^st Respondent had paid the sum of $17,183.81 to the High Court as there was no valid nomination at the time of death of late Joseva’s account with FNPF. If there was a valid nomination at the time of the death Section 57(1) of the FNPF Decree makes it mandatory for the 1^st Defendant, to comply with such nomination. Section 57(1) of the FNPF Decree states

‘(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.......’(emphasis is mine)

17. It must be borne in mind that once a member is dead the 1^st Defendant is not under any obligation to consider the moral obligation or any other obligation of the deceased when there is a nomination and that nomination has to be complied with. So, the law is clear on that issue and nomination is paramount and the 1^st Defendant must comply with that in terms of the FNPF Decree.
18. When there is no valid nomination the funds are paid to the High Court to be distributed according to the law. (See Section 57(1) of FNPF Decree quoted earlier in this judgment) When such funds are received the distribution is in accordance with the Succession, Probate and Administration Act (Cap 60).
    
19. In the Matter of Mohammed Hassan [1989] 35 FLR 107, where Fatiaki J (as he then was) held that a sum standing to the credit of a deceased member of the FNPF does not form part of his estate but it is to be distributed as provided by the Succession, Probate and Administration Act(Cap 60). This was under the predecessor to the FNPF Decree and the law relating to the distribution of the funds of a deceased member under the FNPF Decree has not changed. There was no submission by the Plaintiff that there was any change in the law in FNPF Decree. The Plaintiff had relied on repealed Section 35 of the FNPF Act (see paragraph 6 of the affidavit in support). The case Inthe Matter of Mohammed Hassan (supra) interpreted law according to the section 35 of the repealed FNPF Act. The contention of the Plaintiff is based on Section 136 of the FNPF Decree and a decision of Family Division of the High Court exercising the appellate powers of a decision relating to Family Law Act regarding the maintenance, pronounced by Magistrate’s Court.
    

20. The main contention of the Plaintiff is the Family Division of the High Court decision delivered on 30^th May, 2014 (unreported) in the case of FNPF vs Ranadi Vakameau et al (case No 12/suv/0017).

21. The said decision was not relating to funds remitted to High Court after the death of a member of FNPF fund. Said case dealt with a member of the FNPF when he was alive when Family Law Act applied to him regarding the issue of maintenance. I was not pointed out any provision of Family Law that that applies to a deceased party, regarding the payment of maintenance or arrears at the time of death. In the absence of such provision Section 136 of the FNPF Decree cannot be applied, to issue before me.
    

22. The said Family High Court decision deals with the Section 136 of the FNPF Decree and its application to Family Law Act. The section 136 of FNPF decree reads as follows

‘136. - (1) This section applies in proceedings under the Family Law Act 2003between the parties to a marriage -

(a) with respect to existing title or rights in respect of property; or

(b) with respect to the property of the parties to a marriage or either of them; or

(c) with respect to maintenancewhere one or both of the parties is an FNPF member.

(2)The powers of the court extend to making an order requiring the Board -

(a) if 1 of the parties is not an FNPF member - to admit the party as an FNPF member and make an order under subsection (2)(b); and

(b) to credit a specified amount to an FNPF entitlement of a party, and debit a specified entitlement of the other party, accordingly; and

(c) to require a specified part of payments under an annuity payable to 1 of the parties to be paid to the other party.

(3)The Board must comply with an order under subsection (2).

(4)This section does not affect any other power of the court. (emphasis added)

23. In this case the deceased member of FNPF had accrued arrears of maintenance before the death and the Magistrate’s Court had not exercised its powers under Section 136 of the FNPF Decree. At the hearing I was told that order for maintenance was enhanced from $50 to $100 by the Magistrate’s Court exercising jurisdiction under the Family Law Act. With the demise of the said party the order for maintenance ceased to operate. The order for maintenance and or enhancement after accrual of arrears of maintenance was ordered after considering the means of the deceased and the same cannot be enforced to his funds at FNPF, when such party is dead, unless there is express provision. There is no provision to deduct any arrears of maintenance after the death of the member of FNPF in the FNPF Decree.
    
24. The Section 136 of the Family Law Act applies to ‘proceedings under Family Law Act’ the present motion was not made under the Family Law Act. How could family law apply to a deceased party is not explained. The present application is filed after the death hence it cannot be under Family Law Act. So section 136 has no application to the inter partes motion before me.
    
25. After a member of FNPF dies which provision of the Family Law Act applies to such party was not shown by the Plaintiff. I could not find such provision that applies to a deceased party in the Family Law Act. So, on that ground again this inter partes motion fails.
    

26. So Section 136(1) of the FNPF Decree cannot be utilized to recover arrears of maintenance of a deceased member at the time of death from his fund with the 1^st Defendant.

27. Once a member of FNPF is dead the funds with the 1^st Defendant needs to be disbursed in accordance with the law and if there is a valid nomination the money must be paid to the said nomination in accordance with the request of the deceased member. It is impossible for a fund management institution like the 1^st Defendant to consider whether there are any debts or arrears of maintenance orders after the demise of such party. This is the reason that Section 57(1) of the FNPF Decree makes it mandatory for the 1^st Defendant to comply with valid nomination. This rationale is equally applicable when the money is transferred to the High Court in the absence of valid nomination at the time of death.

28. If there is no valid nomination then such funds are paid to the High Court in terms of Section 57(3) of the FNPF Decree to distribute in accordance with the law. When such money is in receipt of the High Court the money is distributed in accordance with the Succession, Probate, Administration Act (Cap 60). There is no provision to ascertain whether there are any debts and or arrears of maintenance or to keep such funds and investigate the indebtedness of the deceased member.

29. In this case when the money was paid to the High Court to distribute in accordance with the law by the 1^st Defendant, the 2^nd Defendant who is the widow of the deceased made an application to the High Court and an order for payment of money was made in favour of her. It should be noted that that there is no mechanism to ascertain whether there are any arrears of maintenance before such disbursement of such deceased member’s funds. It was not the intention of the drafters of the Section 136 of FNPF Decree to make it applicable to a deceased member as Family Law Act would not apply to such member after the death. Such a process would not only be cumbersome but also impractical and payments would be impossible if such claims are entertained after death. Such application would also be against the Section 136(1) as there is no proceeding under Family Law Act before me. Section 136(1) of the FNPF Decree applies to existing proceedings under Family Law Act, when such person was alive, and cannot be basis of institution of action after demise of a party as in this case.
    

30. It should also be noted that the word ‘maintenance’ in the Section 136(1) of the FNPF Decree should be interpreted in a pragmatic and meaningful manner so that its utility is not in conflict with other laws. This was the interpretation given in the Family Division of the High Court in the case delivered on 20^th May, 2014 (unreported) in the case of FNPF vs Ranadi Vakameau et al (case No 12/suv/0017). In that case while interpreting the word ‘maintenance’ the monthly payments were excluded considering the practical difficulties. (see paragraph 33 of the said judgment).

31. It was held at paragraph 53 in FNPF vs Ranadi Vakameau et al (supra) of as follows

‘It is very important for me to note at this stage that many maintenance cases, periodic payments are ordered in small amounts. In that regard it will be impractical to order FNPF to make periodic payments to the other party’s account. I am of the finding that it is impossible for FNPF to make weekly or monthly transfers from a member’ funds and manage many accounts for maintenance. That is not the purpose for which S.136 was enacted......’

32. By the same token it would not be practical to find out any arrears of maintenance of deceased member of FNPF. First it would be difficult or impossible to find out whether there were court orders for maintenance once a person is dead and it would be equally impossible to find out how much was in arrears. It should also be noted even in this case the Plaintiff did not submit the amount that was in arrears at the time of death. What was presented was an amount that was arrears in 2010 which was $14,390, but this had reduced to $13,090 by 2011 and there was no evidence of amount even at the hearing and the Motion of the Plaintiff did not specify any amount. Once a person is dead even a person who had paid regularly can be accused of defaulting, in the absence of proper records being kept to that effect. It would be hard for the beneficiaries to counter such allegation.

33. This indicates a practical difficulty in deducting any amount from the amount paid to the court for distribution and or funds before distribution at the hand of 1^st Defendant. When a member of FNPF is dead and there is a valid nomination for whole or part of the funds at the time of death that part or whole amount must be paid according to the said valid nomination.

34. When the money is paid to the High Court to distribute in accordance with the law it is impossible to find out whether there were any maintenance arrears and if that exercise is to be carried out distribution of the funds would not be done in a meaningful manner. As held in the case of delivered on 30^th May, 2014 (unreported) in the case of FNPF vs Ranadi Vakameau et al (case No 12/suv/0017) the purpose of Section 136 of the FNPF Decree was not to allow such an exercise.

35. When a person is dead Family Law Act will not operate hence there will not be an application of Section 136 of the FNPF Decree.

CONCLUSION

36. The Plaintiff had made the present application by way of inter partes motion seeking recovery of alleged arrears of maintenance. It is not clear the amount in arrears. First the motion sought the deduction with the consent of the 1^st Defendant and this cannot be the case as they object to any such payment. Without considering said technical defects, the request for deduction of maintenance arrears at the time of the death of member of FNPF cannot be granted due to several grounds. First, Section 136 of the FNPF Decree has no application to a deceased member of FNPF. Said provision applies only when there is a ‘proceeding under Family Law Act’. Secondly, with the demise of such party no a maintenance order can be enforced by resorting Section 136 of the FNPF Decree as there is no proceeding before me under Family Law Act in order to apply Section 136 of the FNPF Decree. Thirdly even if I am wrong on the above two, the word ‘maintenance’ contained in the Section 136(1)(c) cannot be given a purposive interpretation to recover arrears of maintenance from the funds paid by the 1^st Defendant to distribute in accordance with the law. It is practically impossible and would not serve any purpose in the disbursement of funds in accordance with the law. So, the inter partes motion filed by the Plaintiff is struck off. No cost ordered. The order for payment of the sum which was made on 21^st July, 2016, which was temporary suspended on 20^th September, 2016, would be operative by striking out of the said motion.
    

FINAL ORDER

1. The motion filed on 26^th August, 2016 is struck off.
2. No costs.
   

Dated at Suva this 28^th day of October, 2016

......................................

Justice Deepthi Amaratunga

High Court, Suva