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Narayan v Nasinu Land Purchase Co-operative Ltd [2024] FJCT 3; COT 21 of 2021 (6 September 2024)

IN THE CO-OPERATIVE TRIBUNAL

CENTRAL DIVISION

COT 21 of 2021

BETWEEN: TARA WATI NARAYAN

COMPLAINANT

AND: NASINU LAND PURCHASE CO-OPERATIVE LIMITED

COMPLAINEE

For the Applicant (Complainant): Mr. Kumar

For the Respondent (Complainee): Mr. Singh

RULING ON SUBSTITUTION

Background

1. The Applicant filed her application for referring a dispute to this Tribunal on 17^th April 2024 (hereinafter referred to as “the application”).
2. The Respondent then filed their affidavit in opposition on 17^th February 2022 and the Applicant filed her affidavit in reply to the response on 16^th March 2022.
3. The matter was then scheduled for Hearing on 5^th August 2022. On the said day. The Hearing date was vacated and matter adjourned after the Tribunal accepted the medical excuse of the Applicant.
4. After a few mention dates, the Applicant’s Counsel then stated on 27^th October 2023 that the Applicant has passed away.

Motion

5. On 6^th February 2024, the Applicant filed a Motion and Affidavit seeking inter alia for Vishnu Dutt to substitute the Applicant as he possesses the capacity of Administrator of the Applicant’s estate.
6. The Respondent filed their affidavit in opposition to the motion on 7^th March 2024 and the Applicant filed its affidavit in reply to the opposition on 6^th May 2024.
   

The Applicant’s Submission

7. The salient features of the Applicant’s submissions are as follows:
   
   1. The Applicant in person has passed away on 14^th October 2023, which was in the course of proceedings and so the party wants to substitute her with her husband Vishnu Dutt who also has personal knowledge of the application.
   2. Vishnu Dutt holds the Letters of Administrator of all her estate.
   100. Vishnu Dutt also was nominated by her as her nominee under the ambits of Section of the Cooperative Act 1996.
   4. The High Court Rules Order 15 Rule 8 (1) provides for change of parties by reason of death.
   5. The Magistrates Court Act Order 11 Rule 2 provides for death of party does not abate suit, if the cause of action survives.
      

The Respondent Submission

8. The relevant features of the Respondent’s submissions are as follows:
   
   1. The late Applicant was aware of the termination of her membership and did not appeal the decision.
   2. The late Applicant’s claim is that of a personal right and therefore the cause of action dies with the person – Doctrine of Actio Personalis Moritur Com Persona.
   100. Magistrates Court Act Order 11 Rule 2 and the related provision in the High Court Rules fail in applicability here as the cause of action dies with the person as per the above doctrine.
   4. Vishnu Dutt’s purported status as Nominee is irrelevant and inapplicable to this matter.
      

Analysis

9. Under the Cooperatives Act 1996 and its regulations, there is no provision that specifically accommodates for Motions, in this case, a Motion to alter the name of the Complainant by substituting the name of the demised Complainant with the name of the Administrator of the Complainant’s estate.
   
10. Section 61B(4) of the Magistrates Court Act provides that should the Cooperatives Act be silent on how to deal with Motions then this Tribunal shall make its decision under the provisions of the Magistrates Court Act with its rules. This means that the Tribunal maintains the same processes and offer the same, but qualified, relief under the Magistrates Court Act with its rules, which the Magistrates Court is mandated by and relies on. The same law is therefore applicable to the principal issue here which is – whether Vishnu Dutt can continue in name and conduct of the application as the Complainant.
    
11. Order 11 Rule 2 of the Magistrates Court Rules states:

“Death of party not to abate suit, if cause of action survive

2. The death of a plaintiff or defendant shall not cause the suit to abate, if the cause of action survive.”

The general rule then becomes that a suit may continue even when a Plaintiff dies. Therefore, in applying the same to this matter, it then goes without saying that this matter may continue but on the condition that the cause of action survives. The Respondent submits that the cause of action cannot survive as it has died with the Applicant in person as per the doctrine of actio personalis moritur com persona. I have not been able to obtain case authorities on this issue nor has either Counsel submitted one so this Tribunal has had to look beyond our jurisdiction regarding this doctrine. But before I do, it would be prudent to also refer to Order 11 Rule 5 of the Magistrates Court Rules, which states:

“Death of sole or surviving plaintiff

5. In case of the death of a sole plaintiff, or sole surviving plaintiff, the court may, on the application of the personal representative of such plaintiff, enter the name of such representative in the place of such plaintiff in the suit, and the suit shall thereupon proceed...”

This order is self-explanatory and quite fairly, has direct bearing on the issue at hand. Vishnu Dutt the undisputed personal representative of the late Applicant has filed this Motion and so the Tribunal has the discretion on whether or not to enter his name such. To exercise discretion, the Tribunal will again need to look at other authorities from other jurisdictions.

12. It is also vital to note that the High Court Rules reflects the same provision and essence as the subject order in the Magistrates Court Rules. Thus, there is a need to look at other authorities to see how they have developed.
    
13. The principle of actio personalis moritur com persona hold the general rule that all duties and remedies related to a person’s legal actions end with their death. It is an age old principle which is now not limited in its application in jurisdictions such as England and India given the wide exceptional circumstances that have developed along the way.
    
14. In James Anthony Power v Bernard Hastie & Company Limited [2022] EWHC 1927 Queens Bench, the matter raised the question whether the estate of a deceased claimant can take advantage of that claimant's right to ask the court to award further damages on the ground that he developed a condition or disease that was specified in the order. The applicant is the nephew and executor of the estate of the claimant ("Mr. Hammacott"). He says that he should be substituted as the claimant in the proceedings in the place of his deceased uncle, so as to be able to pursue an application made in these proceedings. The defendants say that the right to pursue such an application does not survive Mr. Hammacott's death.
    

The Court decided that a beneficiary's right to apply for further damages, on death, to their estate, and may be advanced by their executor.

11. In England, Part 19 of the Civil Procedure Rules makes provision for the substitution of parties. It enables the court to substitute a claimant if the existing claimant's interest has passed to the new party, and it is desirable to add the new party so that the court can resolve the matters in dispute in the proceedings. This provision shows how the law has developed with clarity from Fiji’s position, that is what scenarios or qualifying circumstances that a Tribunal can consider when looking as whether a cause of action survives to England’s position, that is - if the existing claimant’s interest has passed to the new party”.
    
12. In Fiji, Section 2(1) of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act 1935 allows for all causes of action subsisting against or vested in his or her shall survive...provided that this subsection shall not apply to causes of action for defamation. This law was also not identified by the parties as relevant unless the parties were not aware of the same but it seems to be the strongest point in favour of the Applicant in this matter.
    
13. Ultimately, when applying the above authorities to the facts in this matter, it can be said then that Vishnu Deo has possessed some form of interest as he holds the Letters of Administration of the late Applicant who is challenging the status of her membership and further, he is the purported nominee of the late Applicant when she was alive. Until the position of Nominee is verified at Hearing, this is the stance of Vishnu Deo and the Tribunal can only accept it at that level at this preliminary stage of the proceedings.
    
15. In light of the above mentioned, the Tribunal is of the view that Vishnu Dutt is to substitute the Applicant in name and conduct as he possesses the capacity of Administrator of the Applicant’s estate and therefore, the late Applicant’s personal representative.
    

Orders

16. Order in terms of the Notice of Motion filed on 5^th February 2024 is hereby granted.
    
17. Costs in the cause.
    

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Joseph Daurewa

Co-operative Tribunal

6^th September, 2024