Tavuto v Tavuto [2022] FJHC 56; HPP85.2020 (8 February 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION

Probate Action No. HPP 85 of 2020

IN THE ESTATE of JOKAPETI NABORI MALANI aka JOKAVETI NABORI TAVUTO
of 11 Marau Place, Adams Street, Lautoka, Fiji, Deceased, Intestate.

BETWEEN

AKUILA DAVID ATONIO QITOKEIMAORIMAILAUTOKA TAVUTO aka AKUILA
TAVUTO of 18 Salmond Avenue Stafford ST16 3QY, United Kingdom, Driver.
APPLICANT

AND:

ANASAINI MARETA TAVUTO of Nukutubu, Rewa, Domestic Duties.
1^ST RESPONDENT

SELINA TOVAKI TAVUTO of 10 Richards Road, Suva, Civil Servant.
2^ND RESPONDENT

BEFORE:
Hon. Mr. Justice Vishwa Datt Sharma

COUNSELS:
Ms Vaurasi L. for the Applicant
Both In Person - Respondents

Date of Decision:
Tuesday 8^th February 2022 at 9.30am

DECISION
[Originating Summons for Letters of Administration and Removal of Caveat pursuant to Section 3 of the Succession, Probate and Administration Act 1970 & Inherent Jurisdiction]

INTRODUCTION

1. The Applicant filed the Originating Summons on 7^th October 2020 and sought for the following relief:-
   • (i) An Order allowing the Application, Akuila David Atonio Qitokeimaorimailautoka aka Akuila Tavuto to file an Application for Letters of Administration in the Estate of JOKAPETI NABORI MALANI aka JOKAVETI NABORI TAVUTO of 11 Marau Place, Adams Street, Lautoka, Fiji, Deceased, Intestate, without the Deed of Renunciation of the 1^st Respondent, Anasaini Mareta Tavuto, born on 11st January 1968 and 2^nd Respondent Selina Tovaki Tavuto, born on 1^st May 1970.
   • (ii) An Order that caveat number 887530 lodged by the 1^st Respondent on 3 March, 2020; and registered onto HASL 184338 being on Lot 33 on DP 4044, situated in the Province of Ba in the Tikina of Vuda, be removed. An Order.
   • (iii) Any other Orders that the Court deems just and necessary in the circumstances..
     
2. The Application is filed in support of an Affidavit deposed by Akuila David Atonio Qitokeimaorimailautoka Tavuto aka Akuila Tavuto and made pursuant to Section 3 of the Succession, Probate and Administration Act 1970.
3. The Respondents filed an Affidavit in Opposition and sought for the following orders:-
   • (i) The Applicant’s Summons be dismissed with Costs to the Respondents; and
   • (ii) The Registry be directed to process the Application for Letters of Administration filed on 26^th October 2020.
4. Both parties to the proceedings furnished Court with written submissions
   

Background to Case

5. The Applicant and the 1^st and 2^nd Respondents are biological siblings and children of the late JOKAPETI NABORI MALANI aka JOKAVETI NABORI TAVUTO of 11 Marau Place, Adams Street, Lautoka, Fiji, Deceased, Intestate.
6. The Applicant resides overseas at 18 Salmond Avenue Stafford ST16 3 QY, United Kingdom.
7. The Applicant is the youngest of the siblings.
8. The Respondents have lodged an Application No. 66572 for Letters of Administration with the Principal Probate Registry on 26^th October 2020.
9. Caveat No. 65 of 2020 was withdrawn on 26^th January 2020.
10. The First Respondent filed a Caveat on 3^rd March 2020 with Registrar of Titles on the Title HA sub lease No. 184338 Lot 33 DP No. 4044.
11. The Applicant and the Respondents are the only beneficiaries of the Deceased’s Estate of Jokapeti Nabori Malani.
    

Determination

12. This Court needs to determine the following:-
    • (i) Whether an Order be granted allowing the Applicant Akuila David Atonio Qitokeimaorimailautoka aka Akuila Tavuto to file an Application for Letters of Administration in the Estate of JOKAPETI NABORI MALANI aka JOKAVETI NABORI TAVUTO of 11 Marau Place, Adams Street, Lautoka, Fiji, Deceased, Intestate, without the Deed of Renunciation of the 1^st Respondent, Anasaini Mareta Tavuto, born on 11st January 1968 and 2^nd Respondent Selina Tovaki Tavuto, born on 1^st May 1970.
    • (ii) Whether an order be granted for the removal of the caveat number 887530 lodged by the 1^st Respondent on 3 March, 2020; and registered onto HASL 184338 being on Lot 33 on DP 4044, situated in the Province of Ba in the Tikina of Vuda.
      
13. Section 7 of the Succession, Probate and Administration Act 1970 provides for ‘Persons Entitled to Grant’.
14. The Deceased took demise on 11^th February 2019. The Applicant and the Respondents are the only beneficiaries in the Deceased’s Estate.
15. The Respondents have lodged their Application for a Grant of Letters of Administration of the Deceased’s Estate of Jokapeti Nabori Malani. The application is pending issuance of a Letters of Administration grant filed in application number 66572.
16. The Applicant resides overseas whilst the Respondents have continued to reside in Fiji.
17. Section 6 of the Succession, Probate and Administration Act 1970 provides for succession to property on intestacy.
18. Section 6(d) states that “if the intestate leaves issue, but no wife or husband or a de facto partner, the issue of the intestate shall take per stirpes and not per capita the whole estate of the intestate absolutely.”
19. Such is the case in “the current Deceased’s Intestate Estate wherein there are only three (3) siblings (issues); the Applicant and the two Respondents are entitled to the share and entitlement to the Deceased’s Estate.
20. The siblings are just fighting and squabbling over the property in the Deceased’s Estate. The Applicant has been residing overseas for sometime now and whereas the Respondents have continued to reside within this jurisdiction.
    
21. This Court during the hearing made an observation that the Respondents have the fear of losing their Rights and Entitlements to the share in the Deceased’s Estate in terms of the law. Further there is no evidence before the Court as to who occupies the Deceased’s property and whether any rental is generated from the property and so on.
    
22. The parties must understand that responsibility in terms of Arrangement and/or appointment of an Administrator is the final step in the Deceased’s Estate.
    
23. Upon appointment of an Administrator, he or she will have a responsible duty to perform according to the requirements of the law and failing in this duty to complete the administrative of the Deceased’s Estate holistically and expeditiously may result with the Removal of the Administrator.
    
24. In this case, I have taken cognizance of the fact as to the contents of the Affidavit filed herein.
    
25. Further, the fact that the Applicant who is the youngest of the three (3) siblings resides overseas whereas the other two (2) reside in Fiji. It is always appropriate that an Administrator/Administratrix is appointed in a Deceased’s Estate who resides within the jurisdiction to ensure comfortable administration and eradicate all difficulties in its disposition and able to fully administer the Deceased’s Estate.
    
26. In Deceased’s Estate matters, the Courts always ensure that a proper and honest administration and disposition is carried out without wastage of the Deceased’s Estate funds expeditiously and in accordance to the law.
    
27. The Applicant so far has not made any application with the Principal Probate Registry seeking for a grant to administer the Deceased’s Estate. However, he is only currently asking this Court that he be allowed to file an application for letters of Administration grant in the Deceased’s Estate.
    
28. The Applicant must understand that the Succession, Probate and Administration Act and Rules provides for Grant of Administration to persons entitled to a grant.
    
29. Therefore, rather than making this application, the applicant should have advertised the Deceased’s Estate and filed an application seeking for a grant for Letters of Administration instead of seeking the present application for an Order to allow him to apply for a grant in the Deceased’s Estate in absence of the Deed of Renunciation from the Respondents.
    
30. Bearing in mind, the aforesaid rationale I have no alternative but to refuse the orders sought by the Applicant and dismiss the application accordingly.
    
31. However, an application for a Letters of Administration grant is impending with the Principal Probate Registry. Application No. 66572 refers. This application is filed by the First Respondent Anasaini Mareta Tavuto.
    
32. I direct the Senior Court Officer Probate Registry to process the First Respondent’s application for a Letters of Administration grant expeditiously to allow the First Respondent to carry out the full administration of the Deceased’s Estate in accordance with the law without delay.
    

Costs

33. The matter proceeded to a full hearing and it is only appropriate that the Applicant to pay the Respondents a summarily assessed cost of $350.00 at his earliest.
    

Orders

(i) The Applicant’s Application filed on 7^th October 2020 is dismissed.
(ii) Senior Court Officer Probate Registry to process the impending Letters of Administration Grant in application number 66572 to the First Respondent Anasaini Mareta Tavuto.
(iii) There will be an order for costs summarily assessed at $350.00 to be paid to the Respondents.

Dated at Suva this 8^th day of February 2022.

............................................................
VISHWA DATT SHARMA
JUDGE

cc: Shekinah Law, Suva.
Anasaini Mareta Tavuto, Rewa.
Selina Tovaki Tavuto, Suva.