Waqa v Ali [1960] FJLawRp 8; [1960-1961] 7 FLR 43 (21 May 1960)

[1960-61] 7 FLR 43

FIJI COURT OF APPEAL
AT SUVA

Civil Appeal No. 17 of 1959

VERESI WAQA AND OTHERS

v

MANSUR ALI

Lowe, C. J., President, Sir George Finlay and C. F. C. Macaskie, JJ/A

21 May, 1960

(Appeal from H.M. Supreme Court of Fiji—Knox-Mawer, Ag. J.)

Compensation to Relatives Ordinance (Cap. 20) — non-delivery of particulars required by s.9 — actions by persons beneficially interested under s.10 — pleadings — title of statement of claim.

The respondent claimed that his son had been killed through negligent driving in respect of which the appellants were liable. He sought to recover compensation under the Compensation to Relatives Ordinance (Cap. 20) by an action in his own name and upon his own behalf. Neither the appellants nor their Counsel appeared at the trial, and the respondent was awarded judgment for £2,000 and costs.

The respondent conceded, before the Court of Appeal, that he had not complied with section 9 of the Compensation to Relatives Ordinance. This requires delivery to the defendant or his solicitors of full particulars of the person or persons for whom and on whose behalf the action is brought, and of the nature of the claim. It was common ground that while the deceased had no executor or administrator, his mother was also entitled to claim under section 10 of the Ordinance.

Held.—( 1) Non-compliance with the mandatory provisions of section 9 of the Ordinance invalidated the proceedings.

(2) The respondent was not entitled to institute this suit in his own name and for his own benefit: the pleadings should reveal that the action is on behalf of those persons beneficially interested under section 10 of the Ordinance, and the title of the Statement of Claim must show that the action is instituted upon their behalf.

Appeal allowed; judgment set aside; case remitted to the Supreme Court.

R. A. Kearsley for the appellants.

F. M. K. Sherani for the respondent.

The appellants were defendants in an action by the respondent, in his own name and on his own behalf, for damages for the loss suffered by him in consequence of the death of his son as a result of his being struck by a motor vehicle owned by one of the appellants and driven at the time of the event by another appellant under instruction by a co-appellant.

In the Supreme Court neither the appellants nor their Counsel appeared at the hearing and the case proceeded as undefended. In the result, judgment was given for the respondent for the sum of £2,000 and costs. The appellants have appealed against the judgment.

We did not find it necessary to consider all of the grounds of appeal as the preliminary point taken on behalf of the appellants is fundamental and goes to the root of the validity of the proceedings.

The right of action arose under the Compensation to Relatives Ordinance (Cap. 20) and was commenced within twelve months after the death of the deceased as required by section 8. Under section 9 the respondent, as plaintiff,—

" . . shalt be required to deliver to the defendant or his solicitor, together with the statement of claim, full particulars of the person or persons for whom and on whose behalf the action is brought, and of the nature of the claim in respect of which damages are sought to be recovered."

That section was not complied with. Indeed there is no indication or suggestion anywhere in the proceedings that the respondent was sueing in respect of any right other than his own exclusive right. We are in no doubt that the words "shall be required" can only be interpreted to mean "must" and that the section is mandatory. The legislation postulates that there shall be only one action in respect of all the rights of all persons entitled to claim. That is the plain meaning of section 8 which reads:—

"Not more than one action shall lie for the same subject matter of complaint . . ."

Compliance with section 9 therefore appears to be one of the concurrent conditions of validity.

The respondent disclosed in evidence that he had a wife who, so far as the record implies, was the mother of the deceased boy. Counsel for the respondent did not dispute the fact and, that being so, the wife would appear to be entitled to claim compensation in respect of the death of the boy. It was scarcely contested that the particulars required to be delivered pursuant to section 9 would require to include both of the deceased boy's parents.

Although the pleadings and the evidence are silent as to the estate of the son, we have assumed, as the action was commenced under section 10, that the deceased son had no executor or administrator. Section 10 (1) states that—

. . . such action may be brought by and in the name or names of all or of any of the persons, if more than one, for whose benefit such action would have been brought if it had been brought by and in the name of the executor or administrator."

Section 10 (2) is as follows:—

"Every action so brought shall be for the benefit of the same person or persons and shall be subject to the same procedure as nearly as may be as if it were brought by and in the name of the executor or administrators."

Those provisions can leave no doubt that in the circumstances the respondent was not entitled to bring a suit in his own name and for his sole benefit. It is well established law that in representative actions generally the person sueing must state in his pleadings that his action is on behalf of those he represents in that action and that the title or heading of the statement of claim must show that he sues on their behalf. (Odgers 16th Edn., 173). In the circumstances the suit as framed and brought was invalid and the judgment given on the basis of that suit necessarily also lacks validity.

For those reasons we intimated that we would allow the appeal but that we would consider the question of sending the matter back to the Supreme Court. Counsel for the appellants gratuitously consented to an order that the case should be returned to the Supreme Court for future action and stated that if that course was adopted he would consent also to the delivery of particulars required under section 9 of the Ordinance.

The appeal is allowed and the judgment is set aside.

The time limit within which a new suit can be commenced having expired, the case is remitted in the interests of justice to the Supreme Court for further consideration so that such proceedings and procedures as might be properly open to any party may be available to that party. This Court expressly refrains from expressing any opinion as to the availability in law of any such proceeding or procedure.