Lalabalavu v Trustees of the Estate of Ratu Glanville Wellington Lalabalavu [2022] FJHC 132; HBC 47 of 2020 (22 March 2022)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Civil Action No. 47 of 2020

BETWEEN

RATU NAIQAMA TAWAKE LALABALAVU currently of Malua Estate,

Somosomo, Tavenui, Vanua Levu in the Republic of Fiji, Politician.

PLAINTIFF/APPLICANT

AND

ADI SALOTE VUNIWAQA DUGU of 13 Shiri Raman Place, Salato, Road,

Namadi Heights, Suva and ADI SEREANA KUNEA LALABALAVU of

Somosomo, Taveuni as TRUSTEES OF THE ESTATE OF

RATU GLANVILLE WELLINGTON LALABALAVU.

DEFENDANTS/RESPONDENTS

Counsel : Mr. Tuifagalele N. for the Plaintiff/Applicant.

Ms. Chaudhary M. for the Defendants/Respondents.

Date of Hearing : 17^th February 2022

Date of Ruling : 22^nd March 2022

RULING

(On the Application for Leave to Appeal)

[1] The plaintiff filed the writ of summons and the statement of claim seeking following orders from the court against the defendants:

(a) That the Caveat Number: 879692 lodged by the Plaintiff on Certificate of Title X1/05 be extended beyond 21 days until the final hearing and determination of these proceedings;
(b) That any further dealings on Certificate of Title Number: X1/05 Folio 90 in Cakaudrove, Taveuni be restrained until the substantive matter is determined by the Court;
(c) That any further dealings on Certificate of Title Number: X1/05 Folio 90 in Cakaudrove, Taveuni be restrained until the parties and the Lalabalavu family convene a meeting to decide on appointment of new Trustees and how to deal with the land;
(d) The parties and the members of the Lalabalavu family convene a meeting with all the beneficiaries to decide on appointment of new Trustees and how to deal with the land;
(e) Damages for the wrongful claim made by the Defendants which resulted in their appointment as Trustees of the Estate of Ratu Glanville Wellington Lalabalavu to be assessed;
(f) Cost of this action;
(g) Such further or other relief as this Honourable Court deems just.

[2] The applicant on 05^th February filed an ex-parte summons before the learned Master which was converted to an inter-parte summons by the court seeking the following orders:

1. That the Caveat No 879692 lodged by the plaintiff against Certificate of Title X1/05, Folio 90, be extended beyond 21 Days and to remain in force until the final hearing and determination of these proceedings;
2. That all dealings on Certificate of Title X1/05, Folio 90 be restrained until the final determination of these proceedings.
   

[3] After hearing the parties the learned Master made order dismissing the application of the plaintiff and the plaintiff being aggrieved by the said order sought leave to appeal the learned Master’s ruling on the following grounds:

1. The learned Acting Master erred in law and in fact by failing to consider that the appellant is the majority holder of all the beneficiary shares in the estate of the deceased the late Ratu Glanville Wellington Lalabalavu.
2. The learned Acting Master erred in law and in fact by failing to consider that there is a likelihood that the appointed trustees who are minor beneficiaries of the estate of the deceased the late Ratu Glanville Wellington Lalabalavu may not distribute the appellant’s share of the estate.
3. The learned Acting Master erred in law and in fact by failing to name and/or add the appellant’s name as one of the trustees to ne an alternative order to safeguard his interest as a major beneficiary of the of the estate of the deceased, the late Ratu Glanville Wellington Lalabalavu.
4. The learned Acting Master erred in law and in fact in failing to properly consider the appellant’s submissions in its totality before refusing to make an order for extension of caveat.

[4] At the hearing of the application for leave to appeal the learned counsel for the defendants opposed the application on the ground that the affidavit in support was sworn by a law clerk of the plaintiff’s solicitors.

[5] In the case of Paul v Director of Lands [2020] FJSC 3; CBV0018.2019 (9 June 2020) it was held:

When Third Party (including Law Clerks/Legal Executives/Litigation Clerks) depose Affidavit on behalf of a party to the proceedings then he/she:-

(i) must be authorised in writing by that party to depose such Affidavits;
(ii) must depose as to why that party and if a Company than why its director or authorized officer cannot depose the Affidavit;
(iii) must not depose Afits on basis of inof information or belief but depose facts the deponent has knowledge of those facts except where:

• (a) Affidavit is in support of or in opposition to Application for Summary Judgment;
• (b) Affidavit verifying facts in respect to action for specific performance pursuant to Order 86 of HCR only if directed by Court to do so;
• (c) Affidavit verifying evidence of facts during trial when directed by Court to do so pursuant to Order 38 Rule 3 of HCR.

(iv) may depose Affidavits in support of or in opposition to interlocutory application but must do so on the basis of information received which they believe to be true and must disclose the source of such information or beliefs in addition facts that is within their personal knowledge.

In Deo v Singh [2005] FJHC 23; HBC0423.2004 (10 February 2005) it was held:

The swearing of affidavits by solicitor’s clerks in contested proceedings appears with alarming regularity before the courts. Arun Kumar says he was duly authorized 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 affidavits 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.

Mishra Prakash & Associates v Nagan Engineering (Fiji) Ltd [2018] FJHC 198; HBA001.2010 (19 March 2018)

It is trite law that a lawyer’s clerk may not affirm an affidavit intended to be used in a contentious matter in Court. This is indeed a contentious matter where the Respondents are strongly resisting the application for extension of time. The Affidavit should have been affirmed by the Solicitor having personal knowledge of the pertinent matters. More precisely, the deponent should have been the Solicitor who had the conduct and the management of the cause.

What is more, the law clerk deposes “I am duly authorized to swear this Affidavit on behalf of the Appellant”.

I note that the law clerk has no written authorization to affirm the Affidavit. I cannot comprehend the basis on which he was deposing.

[6] In paragraph 1 of the affidavit in support it is averred that the affirmant is the Legal Executive in the firm of Tuifagalele Legal and he has the authority from his employer and the plaintiff/applicant to make the affidavit. However, there is no written authority attached to the affidavit.

[7] The facts contain in the averments in paragraphs 7 to 9 of the affidavit are based on assumptions and not within the personal knowledge of the affirmant.

[8] The application for leave to appeal is therefore, defective and liable to be struck out.

ORDERS

1. The application for leave to appeal is refused.
2. There will be no order for costs.
   

Lyone Seneviratne

JUDGE

22^nd March 2022