Sadal v Elizabeth [2001] FJLawRp 53; [2001] 1 FLR 218 (18 July 2001)

NASIKELE MALAYA SADAL v VIGYAT NAND MARIA ELIZABETH & ATTORNEY GENERAL

High Court Probate Jurisdiction

18 July, 2001

HPP 27/94S

Probate – whether action should be commenced by Writ or petition – whether High Court has jurisdiction to make declaration of legitimacy in probate action - High Court Rules O.18 r.18, O.76 rr. 1 & 2

The Plaintiff claims that after the death of his father intestate the first and Second Defendants fraudulently obtained grant of Letters of Administration and deprived him of his beneficial interest in his father's estate. He sought a declaration of his legitimacy, revocation of the grant, re-issue of the grant to the Plaintiff, an account and damages.

Held – The English Supreme Court Act 1981, together with a revolution in judicial thinking in the last 50 years and a determination to do away with unnecessary formalities grants the High Court jurisdiction to make a declaration of legitimacy in proceedings commenced by writ, and there is no reason why the Fiji probate and non-probate proceedings cannot be heard concurrently. There is nothing to suggest that Defendants may be prejudiced by the Plaintiff solicitors' choice of writ rather than petition.

Summons to strike out action dismissed.

Cases referred in Decision

FEA v Balram (1972) 18 FLR 20
Knowles v Attorney General [1950] All ER 6
Paragon Finance v D.B. Thankerar & Co [1991] 1 All ER 400
Roy v Kenisington & Chelsea and Westminster Family Practitioner Committee [1991] UKHL 8; [1992] 1 AC 624

Kafoa Muaror for the Plaintiff
Setevana Samatua for the First Defendant
no appearance by the Second Defendant
Alimi O. Adamu for the Third Defendant

18 July, 2001

DECISION

Scott, J

These highly contentious proceedings were commenced by writ issued in May 1994. Briefly, the Plaintiff says that after the death of his father intestate the first and Second Defendants fraudulently obtained grant of Letters of Administration and deprived him of his beneficial interest in his father's estate. The reliefs sought include a declaration of the Plaintiffs legitimacy, revocation of the grant, re-issue of the grant to the Plaintiff, an account and damages. A defence by the First Defendant was filed on 20 May 1994.

On 1 June 1994 the Plaintiff issued a summons to strike out the Statement of Claim under the provision of RHC O 18 r 18 and also O 76 rr 1 & 2. On 6 October 1994 I dismissed this application for the reasons set out in by written Decision of that date. The decision has not been appealed.

On 24 November 1994 the Second Defendant filed a defence. On 15 March 1995 the usual orders were made by the Deputy Registrar on a Summons for Directions. Affidavits of documents were exchanged shortly thereafter.

In February 1999 the 3rd Defendant (who so far as I can see has not filed a Defence) filed a summons to strike out the Plaintiff's claim for want of prosecution. On 13 April 1999 I dismissed the summons for reasons set out in my decision of that date.

On 24 September 1999 the Plaintiff appointed Mr. K. Muaror to act for him in place of his former solicitors.

On 5 September 2000 the Plaintiff's new solicitors filed an application for leave to file an amended Statement of Claim.

The affidavit filed by Ms. Gail Olsson in support of the summons on 5 September 00 pointed out that in paragraphs 4 (i) and 7 (g) of the Statement of Claim the Plaintiff had pleaded:

"the Plaintiff may make further allegations prior to trial once full discovery is completed."

Paragraph 5 of the affidavit states that the Third Defendant did not provide copies of the documents disclosed in its affidavit of documents until 6 May 1999.

The summons filed on 5 September 00 did not exhibit a proposed amended Statement of Claim instead including a draft paragraphs 10 a, b and c and paragraphs 11, 12 and 13 to be included in the Statement of Claim. As will be seen these paragraphs include allegations of misfeasance, improper conduct and conspiracy against the Third Defendant.

Not surprisingly the Third Defendant vigorously opposed the application when it came on for hearing. The Third Defendant went further and on 23 March filed a summons to strike out the writ on the around that it was an abuse of the process of Court.

In discussion on 4 May with Counsel it emerged that the purpose of seeking the amendments was not in fact to suggest that the Third Defendant had in any way behaved improperly but rather was to suggest that the then Acting Chief Registrar of the High Court had failed to comply with the relevant practices and procedures of the Probate Registry with the result that the Letters of Administration were wrongly granted. The amendment which was being sought did not include an amendment to the existing prayer which did not seek any relief against the Third Defendant.

In the circumstances I ordered the Plaintiff to file a copy of the proposed Statement of Claim and adjourned the hearing part heard.

On 25 June the hearing resumed. Mr. Adamu filed a helpful written submission. He relied principally on Paragon Finance v D.B. Thankerar & Co [1991] 1 All ER 400 and submitted that the Plaintiff was attempting to add a new cause of action not arising from the facts as originally pleaded and which was statute barred.

In my view the proposed amendments did little more than particularise paragraph 4 (g) of the original Statement of Claim which, as already noted, was followed by paragraph 4 (i) which gave notice that the Plaintiff might want to make further allegations once discovery had been completed. In these circumstances I did not find that a new cause of action or relief was being pleaded. Following FEA v Balram (1972) 18 FLR 20 I allowed the amendment.

There remains the summons to strike out and in support of this summons Mr. Adamu filed a second helpful written submission. Principally Mr. Adamu relied on Knowles v Attorney General [1950] All ER 6 in which Willmer J of the Probate, Divorce and Admiralty Division of the High Court held that the Court had no jurisdiction to make a declaration of legitimacy in proceedings commenced by writ. While decisions of the High Court of England and Wales are accorded the highest respect and persuasiveness they are not binding on the High Court of Fiji. Furthermore in the last 50 years there has been a revolution in judicial thinking and a determination to do away with unnecessary formal niceties.

The English Supreme Court Act 1981 charges the Court with exercising its jurisdiction:

"In every cause or matter before it so as to secure that, as far as possible, all matters in dispute between the parties are completely and finally determined and all-multiplicity of legal proceedings in respect to any of those matters is avoided."

In 1992 Lord Lowry in the House of Lords concluded his Judgment in Roy v Kenisington & Chelsea and Westminster Family Practitioner Committee [1991] UKHL 8; [1992] 1 AC 624 with these words:

"It seems to me that, unless the procedure adopted by the moving party is ill suited to dispose of the question at issue there is much to be said in favour of the proposition that a Court having jurisdiction ought to let a case be heard rather than entertain debate concerning the form of the proceedings."

In the present case establishing his legitimacy is the essential first step of the Plaintiff's claim. I have already dismissed one application in 1994 to have the action struck out. I do not find anything to suggest that the Defendants may be prejudiced by the Plaintiffs solicitors' choice of writ rather than petition to advance this aspect of his claim. In Fiji the High Court does not have separate Divisions as is the case in England and Wales. I can see no reason why in Fiji probate and non-probate proceedings cannot be heard concurrently.

The application to strike out fails and is dismissed.
Application dismissed.

Marie Chan