Tofe v Maofaita Shipping Company Ltd [2009] SBHC 38; HCSI-CC 32 of 2007 (5 August 2009)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

BETWEEN:

STANLEY TOFE
(As the administrator of the late Abraham Tofe’s Estate)
Claimant

AND:

MAOFAITA SHIPPING COMPANY LTD
First Defendant

AND:

FERRIS FOLIFERA
(Representing the Estate of Late John Fera)
Second Defendant

Date of Hearing: 3 August 2009
Date of Decision: 5 August 2009

Mr. A. Nori for Claimant
Mr. P. Tagini for First and Second Defendants

DECISION ON APPLICATION TO STRIKE OUT CLAIM

Cameron PJ

1. The defendants apply to strike out the claim on the grounds that the claimant has no locus standi and that the matter has already been settled between the parties.

2. The claimant maintains that the estate has an interest in the ship "M.V. Sa’alia". The original claim was filed in 1999 by Abraham Tofe, who is now presumed dead following his disappearance at sea on or about 31 July 2006. The claim is that Abraham Tofe and a John Fera (also now deceased) were involved in the construction and design of the ship "M.V. Sa’alia". It is claimed that by virtue of this involvement Abraham Tofe (and now his estate) has acquired an interest in the vessel.

3. By application dated 31 January 2007, Stanley Tofe, a nephew of the original claimant Abraham Tofe (now presumed dead), applied to the High Court for a grant of letters of administration in the estate of Abraham Tofe, on the basis that he had died intestate. The Registrar of the High Court granted that order on 3 September 2007.

4. The deceased Abraham Tofe was survived by a wife and children. From the material before the Court it is apparent that they are unhappy that Stanley Tofe has been appointed administrator of the estate. It is maintained that they did not consent to this. It is further asserted that the immediate family regard the claim as to the ship as having been resolved by the parties.

5. As a further matter, Mr. P. Tagini on behalf of the defendants has advised this Court that there is now said to be a will of the late Abraham Tofe in existence, which will was signed on 11 January 2006.

6. Despite these circumstances, no application to have Mr. Stanley Tofe removed as administrator of the estate has yet been made by the immediate family. This is clearly the course which the family ought to adopt if they wish to regain control over Abraham Tofe’s estate. The existence of a valid will would provide ample grounds for such application. Even without a will, if the immediate family wish one of them to be appointed in place of the nephew Stanley Tofe then they should apply to have Stanley Tofe removed and their chosen member appointed, for the Wills, Probate and Administration Act gives immediate family priority in terms of being granted letters of administration in a deceased’s estate.

7. However, until such application is made and determined, Stanley Tofe remains the administrator and so has standing to sue and be sued on behalf of the estate.

8. The submission that this Court has already decided the issue in favour of the defendants is misconceived. The decision relied on is a decision of Justice Kabui dated 26 July 1999 in respect of an interlocutory application to appoint a receiver over the ship. It is clear from that judgment that no final determination of this claim was made.

9. The application is declined. Each party will bear their own costs.

BY THE COURT
Justice IDR Cameron