Mohammed v Fiji National Provident Fund [2012] FJMC 2; Civil Case 59.2006 (17 January 2012)

IN THE RESIDENT MAGISTRATE'S COURT
AT NADI WESTERN DIVISON
CIVIL JURISDICTION

Nadi Civil Case No. 59 Of 2006

BETWEEN:

LAL MOHAMMED father's name Aladin Hazamulla Of Nawaka, Nadi.
PLAINTIFF

AND:

FIJI NATIONAL PROVIDENT FUND
DEFENDANT

Counsel: Janend Sharma for Plaintiff
Hearing: 15th November 2011
Judgment: 17th January 2012

JUDGMENT

Background

1. Plaintiff brought this action seeking, inter alia, for the following relief:

(a) Payment of the sum of $6000.00 being special Death benefit.

(b) Payment of the entire sum standing to the Deceased Ashween Lata with interest.

(c) The sum of $787.50 as per paragraph 6 (incurred legal cost)

(d) Costs on an indemnity basis

2. The Defendant filed a Statement of Defence and stated that time and again they informed the Plaintiff that he has not been nominated as a beneficiary by the Deceased wife and therefore is not entitled to any monies held on Account of the Deceased with the Defendant. They further stated that on 22nd February 2001 a Valid Nomination Form was received by the Defendant from the Deceased and/or her employer. The Plaintiff is not listed as a beneficiary in the Nomination Form registered with the Defendant and completed by the Deceased.

Upon receipt of notification of Deceased's death, the Defendant sent Claim Forms to the beneficiaries at Plaintiff's address being the address on the Notification Form. To date the said Claim Forms have not been returned to the Defendant. In the premises The Defendant sought dismissal of the Plaintiffs claim with cost.

Facts

3. The facts of the case as gleaned from the Statement of Claim may be summarized thus: the Plaintiff is the husband of one Ashween Lata who died on the 13 August 2004. She had an FNPF membership number 2215742 with the Defendant. The Plaintiff and the Deceased were married on the 13th day of January 2001. As at 31/01/04 the Deceased had $5,066.64 on her account plus $6,000-00 Special Death Benefit. She and her employer continued making contribution to the Fund until she died. Upon the death of his wife the Plaintiff being entitled to apply for withdrawal on or about the 26th day of August 2004 applied to withdraw the Deceased wife's fund held with the Defendant. However, to date, in spite of various requests of the Plaintiff and his solicitor's letter dated 15th February 2005, 13th April 2005, 24th May 2005, 07th June, 2005, 01st July 2005, 25th August 2005 and 24th October 2005, the Defendant have neither paid to the Plaintiff the Deceased wife's fund nor had they replied to the requests of the Plaintiff.

4. After several adjournments the matter was set for hearing on 15 November 2011. On 15 November 2011 being the hearing date the Defendant failed to appear in court. Hence on the application of the Plaintiff's counsel, the Statement of Defence filed by the Defendant was struck out and the matter was formally proved.

Plaintiff's evidence

5. At the formal prove hearing the Plaintiff gave sworn evidence and tendered documents P/Exhibits 1 to 8 as evidence. The details of the documents are as follows:

Exhibit 1	Marriage Certificate
Exhibit 2	FNPF Card
Exhibit 3	Nomination Form
Exhibit 4	Death Certificate
Exhibit 5	Account Statement
Exhibit 7	Bundle of Letters from J. S.
Exhibit 8	Demand Notice dated 24/10/05

6. The Plaintiff in evidence stated that:

"I am husband of Ashween Lata. I got married on 13/01/2001 – Marriage Certificate – Exhibit 1. She was an FNPF member – Card – Exhibit 2.Prior to death, on 23 November 2000, she nominated 3 persons for FNPF – Exhibit 3. My wife died on 13/08/2004 – Death Certificate – Exhibit 4. At the time of death she had $5066.64 – statement of Account – Exhibit 5. Special death benefit of $6000.00 was also allowed. After my wife's death I made application to release the fund. FNPF did not honour my application. I instructed my Counsel. My counsel wrote several letters to FNPF from 13 April 2005- Letters Exhibits 6 to 8. FNPF did not respond my letter – Exhibit 6.Upon refusal, various letters sent to FNPF. Bundle of letter – Exhibit 7. FNPF did not reply any of those letters. Then my Counsel sent a letter to inform of action. FNPF did not reply to that letter. Action was filed. Note on the nomination reads: 'Marriage after the date of this nomination will render the nomination null and void'. I married Ashween Lata after the nomination. Hence that nomination is null & void. We have 2 children, one is in Class 4 and other one in class 2. They are below 18 years. The children are with me. I seek judgment in my favour with incurred legal cost and cost of the proceedings".

The Law

7. Mr. Sharma also orally submitted on the issue of Memorandum of Nomination. He based his submissions on the provisions of sections 34 and 35 of the Fiji National Provident Fund Act the relevant part of which reads as follows:

"34. Any employee or member of the Fund may, by a memorandum executed in the prescribed manner, nominate a person or persons to receive in his or their own right such portions of the amount payable out of the Fund under the provisions of section 32 on his death as such memorandum shall indicate, and any employee who does not nominate such a person may be required by the Board to declare, in writing, that he does not desire to do so:

Provided that the subsequent marriage of a nominator shall render any nomination made by him null and void.

35.-(1) If, at the time of the death of any member of the Fund, there is no person nominated under the provisions of section 34, the amount standing to the member's credit in the Fund shall be paid into Court for disposal in accordance with the law for the time being in force".

Decision of the court

8. The Plaintiff got married Ashween Lata, a member of FNPF on 13 January 2001. She nominated three persons as beneficiary of the fund on 23 November 2000 just 1 ½ month before the marriage. Ashween Lata died on 13 August 2004.

9. The NOTE on the Memorandum of Nomination clearly states that 'Marriage after the date of this nomination will render the nomination null and void.' Further, proviso to section 34 of the Fiji National Provident Fund Act enacts that the subsequent marriage of a nominator shall render any nomination made by him null and void (emphasis added).
10. In this case Ashween Lata declared her nomination on 23 November 2000. She got married to the Plaintiff on 13 January 2001. Hence by operation of the proviso to section 34 the nomination made on 23 November 2000 by Ashween Lata has become null and void. The resultant position then would be there has been no nomination to the FNPF of the Ashween Lata at the time of her death.

11. If there is no nominee then section 35 (1) of the FNPF Act becomes applicable. The relevant section postulates that:

If, at the time of the death of any member of the Fund, there is no person nominated under the provisions of section 34, the amount standing to the member's credit in the Fund shall be paid into Court for disposal in accordance with the law for the time being in force.

12. Ashween Lata's nomination has been rendered null and void. In the circumstances the Defendant should have deposited the amount standing to her credit in the Fund into Court for disposal in accordance with the law for the time being in force which the Defendant has failed.

13. The Plaintiff gave clear and straightforward evidence and also tendered unchallenged documents in support of his claim which I accept.

14. The Plaintiff asked the sum of $787.50 as incurred legal expenses which I allow. The Plaintiff also sought the sum of $2500.00 as the cost of the proceedings. The Plaintiff brought this action in 2006. I considering all fix $1500.00 as cost of the proceedings which is summarily assessed.

15. Therefore there will be judgment in favour of the Plaintiff as prayed for in a, b and c of the claim with the cost of $1500.00 which is summarily assessed.

16. Orders accordingly.

M H Mohamed Ajmeer
Resident Magistrate,

Dated at Nadi this 17th day of January 2012