Rabuka v Estate of the late Eroni Mavoa [2019] FJHC 577; HBC296.2017 (31 May 2019)

In the High Court of Fiji
At Suva
Civil Jurisdiction

Civil Action No. HBC 296 of 2017

Sitiveni Ligamamada Rabuka
Plaintiff
v
The Estate of the Late Eroni Baleiwai Mavoa
First defendant

Emmaline Bui Mavoa
Next kin and the first person entitled to take out the

Letter of Administration of the first defendant

Second defendant

Bruce Rokosiga Ferguson
Third defendant

Counsel: Ms A. Vuki for the plaintiff

Ms E. Nayacalevu for the second and third defendants
Date of hearing: 30^th April, 2019
Date of Ruling: 31^st May, 2019

Ruling

1. By notice of motion, the plaintiff seeks leave to amend the capacity and status of the second defendant to include her capacity as the named sole executor and trustee of the first defendant.
   
2. Jacob Lanyon, Barrister and Solicitor in his affidavit in support states that the late Eroni Mavoa registered his Will no 3145 of 16^th August, 2010 in the High Court. The second defendant is named as the executor and trustee of his estate in his Will.
   

The determination

3. The second defendant, in her affidavit in opposition challenges the affidavit in support, as the deponent has not annexed the authorization from the plaintiff. She states that the plaintiff should depose to the affidavit, not his lawyers.
   
4. The affidavit in support of the plaintiff’s notice of motion is sworn by a solicitor of the plaintiff, who states that he is authorized by his “Employer as solicitors for the Plaintiff”. The solicitor does not annex any authority given to him by the plaintiff to depict that he was duly authorised to make oath on behalf of the plaintiff nor any reason why the plaintiff was unable to depose.
   
5. As Singh J in DSingh <160;[2005] FJHC 23;HBC0423.2004 (10 February 2005) stated:

The swearing of affidavits by soli solicitor’s clerks in contested proceedings with alarming regularity before the courts. Arun Kumar says he was duly authorised by defendants to dispose the contents. There is no authority annexed to the affidavit. Order 41 Rule 1 sub-rule 4 requires affidavit to be expressed in “first person”. The affidavit put before the court is more like a statement defence in its wording rather than being expressed in first person. Swearing of affidavit by solicitor’s clerk on contested matters should be a rare exception and the reason why the party is unable to depose ought to be explained.

6. The affidavit in support states that the application is made within a reasonable time of the pre-trial period. The stated reason for the amendment is “to avoid the bogging down of issues into the pursuit of technicalities which can get in the way of addressing the merits of his Claim”.
   
7. In my view, these statements constitute submissions. An “affidavit may contain only such facts as the deponent is able of his own knowledge to prove”, as provided in Or 41, r.5 (1).
   
8. In Kylie-Jane Anderson v Iowan Salaitoga, (1999) 45 FLR 241 at pg 243 Byrne J (as he then was) stated :

The first comment I make about this affidavit is that it is contrary to the principle stressed time and again by the Judges of this Court that affidavits should depose only as to facts in accordance with Order 41 Rule 5 of the Rules of the High Court and not be in reality as here, a submission on the law and an expression of opinions.

9. The Court of Appeal in Ratu Jeremaia Natauniyalo v NLC & Ratu Koroimata, (1998) 44 FLR 280 at pg 281 stated :

Byrne J, commenced his judgment by referring to the prolix affidavits on both sides which breached Order 41 Rule 5. These included statements not claimed to be within the deponent’s knowledge and/or of an argumentative nature as well as vernacular expressions. We agree wholeheartedly with the Judge’s remarks in this area. Members of the legal profession drafting affidavits which blatantly defy the normal standards should realize that they run the risk of such affidavits being stricken from the file and solicitors being penalized in costs.(emphasis added)

10. In my view, the affidavit is unacceptable.
    
11. In any event, the proposed amendment cannot be allowed, since the second defendant, in her affidavit in opposition states that she has no intention of becoming the executor. In Veilave v Naicker, [2017] FJHC 297; HBC159.2013, (21 April 2017) as relied on by Ms A.Vuki, counsel for the plaintiff, the amendment was allowed under Or 20, r,5(4), as the plaintiff who had filed action as “intended Administrator and Next Friend” had acquired the capacity as administrator, after institution of the action.
    
12. Order
    • (a) The notice of motion is declined.
    • (b) Costs in the cause.
      

A.L.B. Brito-Mutunayagam

Judge

31^st May, 2019