In re the Estate of John Ezra [2005] VUSC 78; Probate Case 002 of 2004 & 003 of 2004 (11 February 2005)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
(Probate Division)

Probate Case No. 2 of 2004
Consolidating Probate Case No. 3 of 2004

IN THE MATTER OF: Two Applications for Letters of Administration in the Estate of JOHN EZRA, deceased

BY:

IAN EZRA
First Applicant

AND:

ANNIE TUSAI
Second Applicant

Coram: Mr Justice Oliver A. Saksak
Applicants appear in persons unrepresented

Dates of Hearing: 1st September 2004 and 7th February 2005
Date of Judgment: 11th February 2005

JUDGMENT

Parties And Background Facts

The first Applicant is one of three sons of the deceased.

The first being Frederick Ezra, the second is Ian Ezra, and the third is Gibson Ezra. They have an adopted sister by the name of Claudia Ezra. Their natural mother is Anna Rose. She has left the matrimonial home and is residing in Port Vila.

The second Applicant is the step-mother of the First Applicant. She is 31 years old. She has two children: Johna is 11 years old and Grace is 10 months old. She lived in a de facto relationship with the deceased since 2000. On 17^th March 2003 the deceased died.

The deceased was a Sergeant in the Vanuatu Mobile Force. He was and is the registered proprietor of a residential leasehold title No. 03/I113/028 situate at Agent Court, Luganville, Santo. The property covers an area of 1,979 square meters. Found on the property are the following improvements:-

1. An uncompleted toilet/shower block built with bricks and iron roofing covering an area of 3.10 meters x 3.40 meters.
   
2. A residential dwelling approximately 7.80 meters x 5.80 meters, divided into 2 units with each unit having 2 rooms each built with wood with wooden floors and walls and iron roofing.
   
3. A residential dwelling approximately 10.50 meters x 8.36 meters divided into 3 units, 2 units having 2 rooms each and 1 unit having 3 rooms. This structure is built with wood having timber walls and floor and iron roofing.
   
4. An incomplete dwelling with timber structure and iron roofing covering an area of 5 meters x 4 meters.
   

The Applicants live together on this property. They have lived together on the property until on one occasion when the First Applicant took action to evict his step-mother from the house by putting her personal belongings out. This incident became the subject of a court order restraining the First Applicant from further actions. That gave rise to these Applications being filed.

Evidence

The Second Applicant gave oral evidence in support of her application. She called further witness evidence from her brother, Sgt. Joshua John. She said in evidence that she got married on 16^th October 2000. That her marriage was done in custom. That her husband approached her father and paid him her bride-price. That her husband was John Ezra, formerly a member of the Vanuatu Mobile Force from Merelava Island. They have two children Johna and Grace. He died on 17^th March 2003. She produced a death Certificate marked Exhibit P1 to that effect. That payment was made at her brother’s house at the Ex-British Paddock in the sum of VT50.000. That her brother Joshua John had received the payment. Some relatives and one chief Johnson was present and could testify to the payment. That her brother had received the money together with a Clue Tree leaf. A Chief who explained the significance of that symbol as meaning the act of coming together indicating that a marriage had taken place. She said that she had intended to register the marriage but unfortunately her husband became ill and died as a result.

As to why she applied, she said it was to recompense her for her hard work with her husband by building the houses that are now found on the property. That it is her wish to see that the houses are looked after by someone until the children have grown up. That she cared for John Ezra until he died and that she took his body to the Banks and ensured that it be given a proper burial. For those things that she did, she deserved to have the right to be on the property and to manage it until her children have grown up when she would hand over the property.

She was cross-examined by the First Applicant.

Joshua John gave oral evidence in support of the Second Applicant’s evidence. He confirmed that he is the Second Applicant’s sister. He confirmed that she was living with him at his house at the Ex-British Paddock at the time of payment of bride-price. He confirmed receiving VT50.000 as payment of bride-price together with a Clue Tree Leave. He confirmed there were speeches from both sides acknowledging that a custom marriage had taken place. He said that in Malekula Custom upon payment, a woman becomes the wife and any children she bears become the children of her spouse. He said after payment the deceased and his sister had lived harmoniously and a child was born between them. That they had lived together until the First Applicant attempted to have her thrown out of the house when he realized something went wrong. He said that bride-price was incomplete until today. He said he has been approached by the deceased’s uncle concerning the other part payment but he does not know when they can sort it out. He confirmed that a custom marriage was entered into and sealed and that a little girl was born out of that marriage.

He was cross-examined on his evidence by Ian Ezra.

Ian Ezra gave oral evidence. He is 20 years old. His father is John Ezra, deceased. His mother is Anna Rose, still living but residing in Port Vila. His brother is Gibson Ezra who is 19 years old and living in Vila. Their adopted sister is Claudia Ezra also living in Vila. He does not recall her age. He lives at the property at Agencourt. That John Ezra died in March 2003. He identified his death Certificate and confirmed its contents. He said that on the property are 2 houses with 2 rooms. Another one with 3 rooms. There is an incomplete house. There are 2 bush kitchens and 2 toilets, the permanent one is incomplete. He said Rusko Dan is his father’s second born brother teaching at Merelava Island in the Banks group. The other brother is Morris Lululet. He was cross-examined by the Second Applicant. As to why he applied, he said because he was now over 18 years of age and secondly that he was his father’s “stret blad”. That he disputed Annie Tusai’s right for that reason. That Annie Tusai was not his mother and that she had failed in her responsibility as a mother. He identified a Public Notice marked D1 and said Annie Tusai did not publish a Notice as required. He said Rusko Dan was not present at the hearing because he found difficulties with transport and travelling. He said his father and mother were legally married in church but not Annie Tusai.

Frederick Ezra gave oral evidence in support of Ian Ezra’s application. He is 25 years old. His younger brother is Ian. He is single and works for Aquamarine. He testified to a family meeting in which his father had given property rights to Rusko Dan. That there were two meetings, that during the first meeting it was agreed that any issues arising over the property, that they would solve it among themselves as a family and in the nakamal. He said Annie Tusai was present in that meeting. Chief Edward also was present. The meeting was held in about June.

He was cross-examined by Annie Tusai.

Chief Edward Henry gave oral evidence. He is 54 years old and lives in Luganville, Santo. He confirmed he was asked to sit in the meeting. He said that at the meeting the brothers did not like Annie Tusai. He said that according to Merelava Custom Annie was their mother. He said he explained again the significance of paying bride-price of VT50.000 with a Clue Tree leaf – that it signifies an agreement that cannot be separated except at death. He said he told these brothers that they should love their mother. He said he was surprised to see the case in court when they should have taken it to the Chiefs. He said the deceased was present at the meeting. Rusko Dan was present also and that the understanding at the time was that Rusko Dan was given property rights over the property by John Ezra the deceased.

Rusko Dan did not give oral evidence. The hearing was adjourned on 6^th December 2004 to 7^th February 2005 to enable that to happen. However on that date Rusko Dan did not appear and neither did Ian Ezra. Annie Tusai sought judgment.

The Court notes a letter by Rusko Dan dated 8^th September 2004 purporting to be an affidavit. However it is not sworn before a Commissioner for Oaths. It cannot therefore be admitted as evidence in this case.

Considerations by Court

1. Marriage of Annie Tusai to Deceased
   

The issue is whether Annie was married in custom to the deceased. The evidence is clear that payment was made although it was made only in part. The evidence of a Clue Tree leaf signifies a complete custom marriage. Section 1 (c) of the Marriage Act CAP 60 provides:-

“Every marriage celebrated after the coming into operation of this Act shall be valid if celebrated –

(a) ................
(b) ................, or
(c) in accordance with custom.

However Part IV of the Act provides for the formalities to be carried out after marriage. Section 15 (1) states –

“Immediately upon the celebration of any civil, religious or custom marriage, it shall be registered in conformity with the provision of the Civil Status Act CAP 61.”

From the evidence it is clear that this purported marriage was not registered. The marriage purportedly took place on 16^th October 2000. The deceased died on 17^th March 2003. There was ample time to have the marriage registered. Failure to do so cannot now be an excuse for not complying with a provision of the law.

But that is not all. Ian Ezra told the Court in evidence that, his natural mother, Anna Rose is still alive and residing in Port Vila. He said she was married legally to the deceased in a religious marriage. He did not however produce any marriage certificate. Anna Rose was not called to testify to her actual status. It is interesting to note that Anna Rose has not made any application in respect of the property of the deceased.

Vanuatu does not recognize polygamous marriages. If in fact it can be shown that the deceased was legally married to Anna Rose and that marriage has not been decreed a nullity by any Court of competent jurisdiction, then the purported marriage of the deceased with Annie Tusai on 16^th October 2000 cannot be a legally recognized and enforceable marriage although performed in accordance with custom. At this point in time I find that, in the absence of other relevant supporting evidence, the validity of the purported custom marriage between Annie Tusai and the deceased on 16^th October 2000, is doubtful. The Court accepts that Annie Tusai was living in a de facto relationship only with the deceased. The end result as regards Annie Tusai’s application is that she has not shown to the Court’s satisfaction that she is a fit and proper person to apply for letters of administration in the estate of the deceased. The Court recognizes that she does have some rights but that right in the view of the Court shall be limited to occupational rights only. And the Court would issue Orders to protect those rights.

2. Application By Ian Ezra
   

I now consider Ian Ezra’s application. This is a joint application with Rusko Dan, the deceased’s brother. Ian Ezra’s evidence is that he is 20 years old. He did not give his exact date of birth. He is the second born son of the deceased. Frederick Ezra, the first-born son did not apply. He is 25 years old.

In any event the law concerning the age of infants in cases of property rights is provided for in the Wills Act CAP 55. Section 22 (1) of the Act States –

“Any property devised or bequeathed to an infant shall remain rested in, and shall be administered by the executor or executors for the benefit of the infant until such time as the infant attains the age of 21”

With that provision in mind, it is doubtful to me that Ian Ezra has attained the age of 21 years. Further from the evidence particularly from his cross-examination, it is clear that Ian Ezra has some personal dislikes of Annie Tusai the Second Applicant, who is his stepmother. Further, he is one of the beneficiaries of the property and as such it is the view of the Court that he could not apply to be the executor of the estate at the same time. For these reasons, it is the view of the Court that Ian Ezra is not a fit and proper person to be granted letters of administration in the estate of John Ezra.

It is unfortunate that Frederick Ezra did not apply as a joint applicant. In any event Rusko Dan, the deceased’s brother was a joint applicant with Ian Ezra. Due to remoteness of his residence and work he could not be available to give oral evidence. However there is clear evidence from Ian Ezra, Frederick Ezra and Chief Edward Henry that a meeting was held between the families now in dispute. The deceased was present and Annie Tusai was present. She admitted in her evidence that there was an agreement. It is clear from the evidence that at the meeting it was agreed that Rusko Dan would take responsibility over the property. The Court accepts that evidence. And the Court would uphold that agreement. It was a collective agreement and therefore it ought to be upheld. In the circumstances of the case, it is the view of the Court that Rusko Dan is the fit and proper person to be granted letters of administration in the estate of John Ezra, the deceased.

It is important for Rusko Dan to understand that his legal duties and responsibilities are basically to administer the estate of the deceased as executor only for the benefit of John Ezra’s children namely:-

(a) Frederick Ezra
(b) Ian Ezra
(c) Gibson Ezra
(d) Claudia Ezra
(e) Johna Ezra; and
(f) Grace Ezra

It is equally important for Rusko Dan these children as his nephews and nieces to have an urgent meeting to agree as to which of these children should have the property of their father transferred into his or their names. That is the first duty of Rusko Dan to look into as Frederick Ezra is already of age and he is the first-born son of the deceased.

As regards Annie Tusai the Court finds that her marital status remains doubtful and uncertain. The Court however recognizes that being the de-facto wife of the deceased for about three years and that within that period she had contributed to the erecting of the houses or buildings now situated on the deceased’s title, that her rights be limited to occupational rights only. That right includes the right to live and occupy one of the houses on the property with her two children rent-free. It also includes the right not to be evicted from the property by the children of John Ezra at any time unless they first seek an order from this Court. The right of occupation shall exist and continue to exist for as long as Ms Annie Tusai enters into another marriage with another man, in which case, these rights come to an end and she must vacate the property peacefully with all her personal properties and belongings to the home of her new spouse. Accordingly I so order.

It is important that the chiefs continue to have a part or role in this family dispute. If in future there arises anything that would be a cause of concern to disturb the family peace and harmony, these persons have, according to the evidence, agreed that the chiefs be the first authority to look into the matter. The Court would adopt and uphold that step. This Court should be used only as a last resort.

The Court urges all sons and daughters of the deceased and Annie Tusai to have mutual respect and understanding of each others rights and that they must live peacefully and in harmony in order to enjoy the benefit and privilege of a legacy left behind for them by their deceased father.

ORDERS

The final Orders issued by the Court in respect of these two Applications are therefore that -

(1) The grant of Letters of Administration in the Estate of John Ezra to Ian Ezra is hereby refused.

(2) The grant of Letters of Administration in the Estate of John Ezra to Annie Tusai is hereby refused.

(3) The grant of Letters of Administration in the Estate of John Ezra is hereby granted to Rusko Dan.

An Order in respect of the grant of Letters of Administration of the deceased’s estate will be issued separately.

DATED at Luganville this 11^th day of February, 2005.

BY THE COURT

OLIVER A. SAKSAK
Judge.