Daiwo v Daiwo [2015] SBHC 6; HCSI-CC 268 of 2013 (3 March 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona PJ)

CIVIL CASE NO. 268 OF 2013

IN THE ESTATE OF EDWIN HENRY DAIWO
deceased.

BETWEEN:

LIZAH DAIWO
Claimant

AND:

MICHAEL DAIWO
Applicant

Date of Hearing: 17th February 2015
Date of Ruling: 3rd March 2015.

Mr A. Radclyffe for the Claimant
Mr F. Walenisia for the Applicant

RULING ON APPLICATION TO SET ASIDE GRANT OF LETTERS OF ADMINISTRATION.

Faukona PJ: On 4th June 2013, Dr Edwin Henry Daiwo died intestate (without a will). The deceased at the time of death had left behind a lawful wife (widow) Mrs Lizah Daiwo and one child John Walter Edwin Teremoana Daiwo born on 26th February 2006, now eight years old.

2. On 28th August 2013 the Registrar of the High Court grant Letters of Administration to Lizah Daiwo (the Claimant) to administer the estates of her husband the late Edwin Henry Daiwo.

3. The estates of the deceased are identified as one fix term estate in Parcel Number 191-030-90, Honiara, and as reference to inventory of the estate Exhibit B, attached to the Claimant's sworn statement filed on 30th September 2013.

4. On 25th April 2014 the Applicant filed this application to set aside grant of letters of Administration to the Claimant, and sought six relief orders. Two important orders are 2 and 3, that the applicant is allowed to file his objections to the grant of letters and that the Claimant is disqualified to act as administrator.

5. One of the issues raise which is not disputed is the failure to publicize a notice in the daily newspaper of the intention by the Claimant to lodge an application for letters of Administration. That stage has long been passed away. Whatever discrepancy or non-compliance done at the initial stage has now subsumed into this application. The Applicant now comes forward and filed his grievances in a form of objection and reaffirmation that the Claimant is not qualified to act as administrator of the estates. Those are the crux of this application. The applicant must proof himself as a rightful person to be granted Letters of Administration.

6. It must be understood with clarity that grant of Letters of Administration to a person has to be decided in accordance with the Wills and Probate Administration Act Cap. 33 and that include distribution of the residuary estate.

7. Section 29 (1) of the Act describe in plain language the person or persons having beneficial interest in the estate is entitled to a grant of administration in the order of priority. The order of priority is spelled out by Regulation 3, which acquires its basis from S.109 of the Act. The orders of priority are (a) surviving spouse (b) children of the deceased (c) the father or mother of the decease (d) brothers or sisters of the whole blood of the deceased. Reconstruction of the words of the regulation is entrenched to suit this particular case.

8. The law as it stands is plain as to who is a beneficiary to the interest, at the same time entitled to a grant of letters of administration according to the order of priority. The competing interest here is brothers and sisters as against a surviving spouse. Brothers and sister according to Regulation 3 is fourth on the order of priority whilst the spouse takes on first priority.

9. However, notwithstanding the order of priority which appear to be definitive, circumstances may alter by virtue of S29 (2) of the Act, where it appears to the Court that by reason of any special circumstances or current customary usages, any estate ought to be administered by some person other than those specified in the order of priority.

10. The applicant in this case argues that there is both a special circumstance and customary usages persisted which should disqualify the Claimant from being granted letters of administration. He says it was conceded in a meeting of the brothers and sisters on 3rd August 2013 that he is the rightful person to administer the property and assets of the late deceased. Being a brother or sister is not a ground recognized as customary usage to acquire first order of priority.

11. The second ground which the Applicant advocates as supporting a special circumstance is that the Claimant had misappropriated the money derived from the estate when she was granted the letters. School fees and expenses of the only child were not paid, one of the sisters Dr. Daiwo had to pay. This shows the Claimant's inability to administer the estates. As well, the Claimant had failed to show the breakdown of the proceeds of the estates to him or them.

12. It must be noted the letters of administration was granted to the Claimant as a spouse according to the order of priority to administer the estates for the benefit of herself and her child. There is no requirement under the Act that she should submit or answerable to the brothers and sisters of the deceased by way of submitting a report or break down of the proceeds derived from the estates. She and her son are the direct beneficiaries of the estates and not the Applicant or his brothers or sisters who are down the line of the order of priority.

13. From the evidence the Applicant has failed to show that there exist a special circumstance that will convince me divert from the order of priority as it stands in this case. This can be distinguished from the case of re: Joycelyn Koromako[1], where I found there was a special circumstance exists, where the Applicant had sold one of the properties, subject of the estate, to someone else and had used the proceeds for himself. Not only that but without the knowledge and benefit of the two adult children of the marriage. Further to that, there is no evidence of a prevailing customary usage. Of course when dealing with customary matters, we refer to the elder in the family. It does not apply with deceased estates where crown land and properties on it involves. It also include and applies to other interests acquired by the deceased during his life time, in terms of unpaid salary, long service benefit and balance in a bank account. Those are estates, which have to be dealt with under the Wills, Probate and Administration Act.

14. The order of priority comprises two legal recognizances; one is a beneficiary and second is a priority to be granted letters of administration. These rights are recognized in law and not custom. Custom will only prevail in a situation where there is no law applying to a circumstance. And those rights can include living in a matrimonial home the deceased had left. Evidence revealed the Claimant had left the matrimonial home because she had been chased out. I Could not accept the excuses tendered by the Applicant that she left the home because they are yet to resolve the estates and beneficiaries.

15. I must conclude that administering estates that are intestate come within the bounds of the Wills, Probate and Administration Act. Nothing outside of the Act will intrude and become prevalent. Custom will only be considered where the usages is current and the Court is satisfied the usages prevail in all circumstances over the law.

Orders:

1. Refuse to make order setting aside Letters of Administration granted to the Claimant.

2. That relief sought in Order 2-4 refused.

3. Costs of this application be paid to the Claimant.

The Court.

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^[1] [2014] SBHC 34.