The Originating Notice of
Motion (the Notice of Motion) referred to in the cant's Summons was
he heard by Awich, J.
on 28th July, 1997 (CC130/96 and CC29/97). The judgement
of the Court was delivered on 8th August, 1997. Awich, J. ordered
that the
grant of Letters of Administration made by Muria, C.J. on 11th November,
1996 (CC130/96) be revoked. Awich J.
also directed that inquiries be made
both in Solomon Islands and in Nauru with the view of obtaining the views of
other
beneficiaries or creditors of the late Victor Eoaeo (the deceased) by
publishing twice in the Newspapers in Solomon Islands
and Nauru the fact
that an application was being made in the High Court of Solomon Islands for
a grant of Letters of
Administration in respect of the estate of the
deceased and inviting the filing of objections within 30 days of the last
publication. Furthermore, Awich, J. directed that the publication in the
Newspapers in Solomon Islands and Nauru be made
within 30 days of the date
of the judgement and that copies of such publications be filed in the High
Court after which
a date for the hearing of the Motion would be set down.
The Applicant in the said Motion is Maria Eiyedada Eoaeo (Mrs Eoaeo)
whose
husband, Victor Eoaeo, died on 15th June, 1979 in Nauru whose estate in
Solomon Islands still remains unadministered
to this day. Mrs Ika is
therefore seeking to strike out the Originating Notice Motion filed by Mrs
Eoaeo as the surviving
wife of the deceased, for grant of Letters of
Administration. Mrs Ika is the surviving wife of the late Idarabwe Ika (now
dead) the brother of the deceased.
As has been stated, Victor
Eoaeo died on 15th June, 1979 in Nauru. He was at one time a resident of
Honiara in Solomon
Islands. He became the owner of two parcels of land in
the White River area of Honiara. They are Parcel No. 191-001-50 and
Parcel
No. 191-001-60. They have been built on and each contains a dwelling-house.
He was also the owner of 347 shares
in the Kukum Development Company Limited
a Company incorporated in Solomon Islands. The Company is the owner of
Parcel
No. 191-035-53 situated in the Kukum area of Honiara. He died without
having made a will. The official administrator of unrepresented
estates in
Solomon Islands has not so far been granted Letters of Administration in
respect of the estate. By Notice
of Motion filed on 3rd May, 1996 Mrs Ika
applied to the High Court in Solomon Islands for Letters of Administration
to
be granted to such person as the Court would deem fit in its discretion.
By order of Muria, CJ, dated 11th November, 1996 Mr
Tegavota, Counsel for
Mrs Ika, was granted Letters of Administration in respect of the deceased
estate as well as her
own late husband's estate. Mrs Eoaeo got to know about
this in Nauru and immediately through her son, Mr. Lui, instructed Sol-Law,
a firm of solicitors in Honiara to prevent the order of Muria, CJ, made on
11th November, 1996 from taking effect. By
ex parte summons filed on 18th
December, 1996, Mrs Eoaeo, through her firm of solicitors, applied in the
High Court of
Solomon Islands for the following orders:-
lass="MsoNoMsoNormal" style="text-indent: -35.45pt; margin-left: 70.9pt; margin-top: 0; margin-bottom: 0">
1. &nbssp; &nsp; The order of t e
Chi Chief Justice made on 11th November 1996 be stayed.
2. p; &nsp;&nThe Respondent,
PhiliPhilip Tegavota, be restrained until further order from administering the
estate
of the deceased.
p clasoNorstyle="text-indent: -35.45pt;45pt; margin-left: 70.9pt; margin-top: 0; : 0; margimargin-botn-bottom: 0">
3. & The Resnondeucy Lucy
Ika, be restrained from dealing with parcel Nos. 191-001-50, 191-001-60 and
191-035-53.
4. &nbbsp; The Rehe Respondent, Lucy Lucy
Ika be restrained until further order from dealing with the shares in Kukum
Development Company Limited or any of the assets of that Compaspan> ass="MsoNormal" sal" style=tyle="text"text-indent: -35.45pt;
margin-left: 70.9pt; margin-top: 0; margin-bottom: 0">
5. ; Tte inarr ps
es
he hearing be set down on a date to be fixed.
pan lang=lang="EN-G"EN-GB" stB" style="yle="font-font-size:size: 12.0pt">
6. ;&nbssp; bsp; Costs be in the
s causecause.
7. &&nsp;; Ssph fucthfurther oher or
other orders as the Court thinks fit.
Orders 1 - 6 were granted by
Pa J. on 19th December, 1996. This Court order enabled Mrs Eors Eoaeo to
apply for Letters
of Administration in respect of her husband's estate by
Notice of Motion heard by Awich, J. on 28th July, 1997 (CC130/96) and
CC29/97) referred to above. This Motion is now being attacked by Mrs Ika's
Summons of 28th September, 1998 also referred
to above.
p class="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0">
Mrs Ika's
Mr. Talasasa on behalf of Mrs
Ika said that his client's objection to Mrs Eoaeo's Notice of Motion was
based upon the
content of Mrs Ika's two affidavits filed on 22nd May, 1997
and 28th September, 1998 respectively. He said that these affidavits
did
clearly show that Mrs Eoaeo's Notice of Motion was causing great hardship
and inconvenience to his client and her
children. He said, Mrs Eoaeo's
Notice of Motion had taken too long to reach the Court. He went on to say
that in the
meantime, the two houses at White River on Parcel No. 191-001-50
and Parcel 191-001-60 were wasting fast and it would appear
that Mrs Eoaeo
was not interested in them. Furthermore, he said, maintenance of these
houses could only be possible if
Mrs Eoaeo's caveats were removed. Finally,
he said that all these were adversely affecting the early and quick
administration
of her late husband's estate thus affecting the welfare and
education of her children. Based upon these reasons, Mrs Ika concluded
that
Mrs Eoaeo's Notice of Motion should therefore be struck out for the
following reasons:-
1. &nnbsp; it is prejudicial;
pan lEN-GBle="fize: t">
>
2. ; ii is nt wa
f
pro prosecution;
&nt">
>
3. &nbssp; &nsp; there is inord,nate inex inexcusable and deliberate delay;
0pt"> 
Mrs Eoaeo's Case
class="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0">
Mr. Katahanas on behalf of Mrs
Eoaeo said that there had not been any deate or inordinate delay on y on the
part of his
client. He said, his client's case was that Mrs Eoaeo decided to
act only when she learnt of the existence of the Order made
by Muria, C.J.
on 11th November, 1996. She then applied for a staying order on 18th
December, 1996. The staying order
was granted the next day, 19th December,
1996. She then applied by way of an Originating Notice of Motion on 31st
January,
1997 (CC29/97) for the grant of Letters of Administration in
respect of her late husband's estate. The Notice of Motion was
heard by
Awich, J. on 28th July, 1997. In his judgement of 8th August, 1997, Awich,
J. made a number of directions that
she had to comply with before her Motion
could be listed again for hearing. She has not so far fulfilled the
direction
in respect of publication in Nauru as there are no Newspaper
publications there etc. The other direction in respect of publication
in
Solomon Islands has however been fulfilled. (See Solomon Star of 27th and
29th of August, 1998).
The Court Files (CC130/1996 &
CC29/97)/p>
Mrs Eoaeo's Notice of Motion
was first set down for hearing on 20th March, 1997 before Awich J. This
hearing was adjourned
because, Mr. Tegavota, Counsel for Mrs Ika, was sick.
The next date of hearing was 21st May, 1997. This hearing was again
adjourned on the basis that Mrs Eoaeo is a resident of Nauru and Mr
Sullivan, her Counsel, needed time to consult his
client about an affidavit
filed by Mrs Ika served on Mr Sullivan only at lunch-time, one hour before
the hearing. The
next date of hearing was 17th July, 1997. It was again
adjourned to allow Muria, C.J. to hear the case. The next date of hearing
was 28th July, 1997. The Judgement following this hearing was dated 8th
August, 1997. No date has yet been set for the
hearing of Mrs Eoaeo's Notice
of Motion following Awich, J's order for directions. The matter was however
heard by Palmer,
J. on 2nd October, 1998 but was adjourned to be heard by
Awich, J. on 27th October, 1998. Awich, J. adjourned it as he then
was
proceeding on leave to Africa. The matter then was listed before me for
hearing on 29th January, 1999.
Decision
I have read the relevant
affidavits on this matter together with thrent Court Files (CC130/96 0/96
and CC29/97). I can
find no evidence of prejudice, want of prosecution, or
inordinate or inexcusable or deliberate delay on the part of Mrs Eoaeo.
I
also find that there is no evidence of Mrs Eoaeo's Notice of Motion being
frivolous or vexatious. As a matter of fact
she is the surviving wife of her
late husband, the deceased. Mrs Ika does not so far dispute that fact. I
have been referred
by Mr Katahanas to the case of Queensland Trustees
Limited v Drysdale Hendy & Company (a firm), No. 2056 of 1977 in the
Supreme Court of Queensland. I agree with Mr. Katahanas that the judgement
of Master Lee in
that case is most informative and illuminating as regards
the matter of striking out an action on the grounds of prejudice,
want of
prosecution, inordinate, inexcusable or deliberate delay etc. Applying the
principles of law discussed by Master
Lee to the facts of this case, I am of
the view that Mrs Ika has not made out her case and thus her application
must
fail. However, this is not the end of the matter. Mr. Talasasa pointed
out that Mrs Eoaeo's Notice of Motion was caught by
section 12 of the
Limitation Act (Cap. 18) in that it came after the expiry of 12 years. Mr.
Katahanas objected to this saying it was a fresh point not pleaded
in Mrs
Ika's Summons to strike out. He did not however refer me to any authority on
which he relied. I think he must
have had in mind Order 21, rule 16 or its
equivalent elsewhere. Rule 16 states-
"The defendant or plaint (as the case may be) must raise by his pleading all mall matters which show the
action or
counterclaim not to be maintainable, or that the transaction is
either void or voidable in point of law, and all such grounds
of defence or
reply, as the case may be, as if not raised would be likely to take the
opposite party by surprise, or
would raise issues of fact not arising out of
the preceding pleadings, as, for instance, fraud, the Statute of Frauds, the
Statute of Limitations, release, payment, performance, facts showing
illegality either by Ordinance or other written
law or common law."
I then said to Mr. Talasasa
that the point he made could also apply to his client. Mr Katahanas then
advanced his views
on section 12 of the Act and referred me to sections 9
and 14 of the Act in opposition to Mr. Talasasa's argument. At this
stage, I
was under the impression that Mr. Katahanas had withdrawn his objection.
However, this did not seem to be the
case and I recorded his objection with
an implied disallowance of his objection. I was of the view that the point
raised
by Mr Talasasa was a substantive point of law and could well prevail
over procedure. I could be wrong in not announcing my
ruling in open court.
But be that as it may, I do not think Mr Katahanas' client would suffer in
any way as a result
of this. In my view, Mrs Ika is not one of the persons
falling within the categories of persons set out in regulation 3 of
the
Grants of Probate and Administration (Order of Priority) Regulations 1996 (L.N.No.
26/96). However, as Awich J. says
at page 6 of His Lordship's judgement
referred to above, these regulations do not apply to this case as they came
into
force after the death of Mrs Eoaeo's late husband, the deceased. The
Solomon Islands and Gilbert and Ellice Islands (Probate
Administration)
Order, 1914 is the law that applies. As Awich, J. says at page 2 of His
Lordship's judgement above, this
Order is the basic law which provides for
probate and administration of estates. Among other things, it says nothing
about the Order of priority and the considerations that need to be taken
into account by the court in determining that issue.
In England, Probate and
Administration matters are the subject of numerous legislations. The major
ones prior to 1st
January, 1961 are the Supreme Court of Judicature
(Consolidation) Act, 1925, the Administration of Estates Act, 1925 and the
Intestates' Estates Act, 1952. The English equivalents of our rules of
priority made under the Wills, Probate and Administration Act, (Cap. 33) are
contained in the Non-Contentious Probate Rules of 1954. Rule 21 states-
"Order of priority for grant
in case of intestacy:/p>
1. & p; &nsp; Wsp; Where the
ded dsed died on or after the 1st January, 1926, wholly intestate, the
persons having
a beneficial interest in the estate shall be entitled
t of istration inon in the following order of priority, nam, namely:-ely:-
(i) ;&nbssp; The; The; The surv surviving
spouse;
(ii) &nbssp; The chie children of
the deceased ... or the issue of any such child who has died during the
lifetime
of the deceased;
(iii) &nbbsp; ather oher oher or r or
mother of the deceased ...
>
p class="Mss="MsoNormal" style="text-indent: -34.35pt; margin-left: 106.35pt; margin-top: 0; margin-bottom: 0">
(iv) &nbsother
sisters ofrs ofrs of the whole blood, or the issue of any deceased brother or sister
of the whole blood
who has die/span
2) ; &nisp; p noon ison in
any of the classes mentioned in sub paragraphs (ii) to (iv) of the last
foregoing
paragraph has survived theasedn, incase /span
(a)
& a person who died before
the 1st January, 1953, wholly
intestate, or
(b) a person dying on
or afor after the 1st January, 1953, wholly intestate with leaving a surviving
spouse,
0">
<
the persons hereina
described shall, if they have a beneficial interest iest in the estate, be
entitled to a grant in the
following order of priority, namely:-
(i) &nnbsp;; Brothers and
nd
nd
sisters of the half blood, or the issue of any deceased brother or sister of
the
half bloodhas d.
(ii) &nnbsp;; Graentsrents;
>
<
(iii)p; Unclesncles and aunts
of the whole blood, or the issue
of any deceased uncle or
aunt of the whole blood who has died...
span lang="EN-GB" style="font-size: 12.0pt">(iv) &nUncle aunds unts unts
s
of the half blood, or the issue of any
deceased uncle or aunty of the half
blood who has died ...
3) ; In ; Iaudefof a of any
y
person having a beneficial interest in the estate, the Treasury Solicitor
shall
be entitled to a grant if he claims bona vacantia on behalf of the
Crown.
lang="EN-GB" style="font-size: 12.0pt">4) &nnbsp; If alIf all persons
entitled to a grant under the foregoing provisions
of this rule have been
cleared off,
t mayade to a creditorditor of t of the dehe deceased or to any person who,
notwithstanding that he has no immediate beneficial
interest in the estate,
may have a beneficial interest in the event of an accretion thereto.
class="Mss="MsoNormal" style="text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 0; margin-bottom: 0">
5) Stbjec
to pa grapa (3) (3) of rule 25, the personal representative of a person in any of
the classes mentioned
in paragraphs (1) and (2) of tule o pers
esent of aitor shall havl have thee the same same righ right to t to a graa grant as
the
person whom he represents:
Provided that the persons
mentioned in sub paragraphs (ii) to (iv) of paragraph (1) and in paragraph
(2) of this rule
shall be preferred to the personal representative of a
spouse who has died without taking a beneficial interest in the whole
estate
of the deceased as ascertained at the time of the application for the
grant".
The fact is that the position
in England prior to 1st January, 1961 as far as the rules of priority are
concerned, is
the same as the position under our Grants of Probate and
Administration (Order of Priority) Regulations, 1996. In my view,
the
Administration of Estates Act, 1925 as amended of the United Kingdom prior
to 1st January, 1961 are Acts of general
application and must apply to
Solomon Islands (See Section 76 of the Constitution as read with schedule 3
thereof). It
must be taken together with the Solomon Islands and Gilbert and
Ellice Islands (Probate Administration) Order, 1914 for it
supplements the
deficiencies of this Order. This being the position Mrs Ika still is not one
of the persons falling into
the categories of persons set out in the rule 21
above. There is no evidence to the contrary. It is
in
my view obvious that Mrs Ika does not have locus standi in this case to challenge Mrs Eoaeo's Notice
of Motion. Section 12 of
the Limitation Act (Cap. 18) does not in any way
advance Mrs Ika's position any better than being the surviving wife of the
late Mr. Ika.
She may well be a creditor but her time will come after
Letters of Administration have been granted. The application also fails
on
this ground.
class="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0">
The Notice of Motion
>
lass="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0">
This ruling now clears the way
for Mrs Eo Notice of Motion to be decided. However, whilst this is sois so,
I am mindful
of the rather incomplete "clearing off" exercise ordered by
Awich, J. in His Lordship's judgement of 8th August,
1997 above. I have read
the affidavit filed by Mr. Katahanas on 22nd October, 1998 and that of Mrs
Eoaeo filed on 31st
January, 1997. In my view, Mrs Eoaeo should now file an
affidavit within 60 days from today affirming that no other persons
in Nauru
or elsewhere other than her own eight (8) children and members of the
deceased's family and tribe would have
an interest in her late husband's
estate and that they are aware of her application for Letters of
Administration in
the High Court of Solomon Islands and do not object to it.
The Notice of Motion will then be set down for hearing after the
affidavit
has been filed in the High Court. There will be no order for costs.
Dated this 8th day of February
1999
F. O. Kabui
Judge
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