| Fiji Islands - Kumar v Ram - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO: HBM 0026 OF 2000S
BETWEEN:
VIJAY KUMAR
Plaintiff
AND:
SHIU RAM
1st Defendant
AND:
AINUL NISHA
aka ROSE MERRY
2nd Defendant
Counsel: Mr A.K. Singh for Plaintiff
Mr G. O’Driscoll for Defendants
Hearing: 22nd May 2001
Decision: 30th May 2001
DECISION
The Applicant makes an application under Order 15 Rule 8 to substitute his name for the name of Ram Harakh (deceased). Alternatively
he asks for an order that he has the standing to bring contempt proceedings against the Defendants in his own name without substitution,
as the intended executor and trustee of the estate of Ram Harakh.
The action instituted by the Applicant in the High Court, is one for contempt of court under Order 52 of the High Court Rules, for
alleged disobedience to an order for vacant possession made by the Nausori Magistrates Court. The action for vacant possession was
made by Ram Harakh, who was Vijay Kumar’s father. The Defendants were the 1st and 2nd Respondents in the contempt action. The vacant possession action was filed on 18th September 1998. On 3rd March 2000, Ram Harakh died having appointed Vijay Kumar sole executor and trustee under a purported will dated 1st September 1998. Probate is yet to be obtained under the will.
On 12th April 2000, the Nausori Magistrates Court ordered, inter alia, vacant possession of the freehold land in question, at Naviokoko,
forthwith. The First Respondent’s counter claim was dismissed with costs. Writ of possession was issued on the same day, and on 20th April 2000 the Deputy Sheriff at the Nausori Magistrates Court executed the writ.
The Applicant says, in his affidavit sworn on 15th May 2001, that the Respondents continue to occupy the land, in defiance of the court order.
The Applicant then applied to the High Court to issue contempt proceedings. He applied as “the intended executor and trustee of the
estate of the late Ram Harakh.”
At the hearing of the committal for contempt, the Respondents were not represented. However after hearing the first witness, the Respondent
asked for an adjournment to brief counsel. I allowed it.
Mr O’Driscoll appeared the next day, and objected to the Applicant’s standing. Mr A.K. Singh submitted that his client had sufficient
standing as intended executor, but that if he did not, he wished to make an application for substitution of parties pursuant to Order
15 Rule 8 of the High Court Rules.
Order 15 Rule 8, envisages a situation where the plaintiff dies whilst an action still survives in court, and where his/her executor
or administrator may obtain an order to carry on the proceedings.
However Order 15 Rule 8 only applies where the action was commenced by the deceased, and where the administrator or executor seeks
to continue the action. What is the “action” in this case?
It is surely the contempt application in the High Court. The vacant possession hearing in the Magistrates Court, which no doubt was
the source of the contempt proceedings, was a separate action. It cannot be said therefore that the Applicant is continuing proceedings
begun by his father. His father did not commence the contempt proceedings.
The question really is whether, the Applicant can bring contempt proceedings for the estate as the intended executor. The Privy Council
says he can. In the case of Meyappa Chetty -v- Subramani Chetty (1916) AC 603, Lord Parker said, at p.608:
“It is quite clear that an executor derives his title and authority from the will of his testator and not from any grant of probate.
The personal property of the testator including all rights of action vest in him upon the testator’s death, and the consequence is
that he can institute an action in the character of an executor before he proves the will.”
The Applicant has annexed the will of Ram Harakh to his affidavit. It is apparent that he is the intended executor under the will,
and therefore he may institute actions on behalf of the estate. The challenging of the will, on the ground that the testator’s other
children had a legitimate expectation to benefit under the will, will be canvassed in a probate hearing.
For the purposes of this action, I find that the Applicant had the right to institute contempt proceedings as the intended executor
of his father’s will. There is therefore no need to order substitution of parties under Order 15.
Stay:
Counsel for the Respondent applies for a stay of the order for vacant possession pending appeal. A previous stay order was dissolved
by Byrne J on 8th December 2000. The Respondents have filed a petition of appeal against the order for possession. The grounds for the application,
set out in the affidavit of Ainul Nisha, is that there are merits in the appeal and that she has nowhere to go. In the absence of
the judgment of the Learned Magistrate, and the Court Record, I am unable to say whether the appeal has any merits at all. I am particularly
unable to consider whether the Learned Magistrate might have erred in ordering vacant possession when there was purportedly a co-owner
of the house, when I do not know whether this was canvassed in the Magistrates Court, or if was, why it was rejected. Further I find
that the Respondents’ plea that they have nowhere to go, as being insufficient ground to order a stay. There does not appear to be
any exceptional ground to order a stay pending appeal, and I refuse it accordingly.
Witness Expenses
At the committal hearing, it was suggested by the Respondents that Mr J.K. Maharaj, their former counsel, should pay the costs of
the Applicant’s witnesses because he had failed to appear at the hearing.
I have now heard from Mr Maharaj and I am satisfied that he tried to instruct counsel to appear for the Respondents at the hearing
date. Furthermore, if counsel had appeared on that day, the hearing would in any event not have proceeded because the issue of the
standing of the Applicant had to be ruled upon. In the circumstances I make no order for costs.
Nazhat Shameem
JUDGE
At Suva
30th May 2001
HMB0026D.00S
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