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Hussain v Hussain [2003] FJHC 241; HBC0014j.2002B (13 February 2003)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. 14 OF 2002

Between:

KHIEFAYTH HUSSAIN
f/n Abdullah
Plaintiff

and

AZAD HUSSAIN
f/n Mohammed
Defendant

Mr. A. Kohli for the Plaintiff
Mr. A. Sen for the Defendant

JUDGMENT

By originating summons filed 5 March 2002 the plaintiff is seeking the following Orders and relief and has filed an affidavit in support:

1. THAT a declaration that Crown Lease No. 65013 is subject to trust deed dated 13^th June 1975.
   
2. THAT the Plaintiff be appointed as trustee of the Trust.
   

100. THAT the Defendant pay proceeds of cane being the Plaintiff’s share from 1975 to date.
     

4. THAT the Defendant be restrained from subdividing the land comprised in Crown Lease No. 65013.
   
5. SUCH further and or other relief as this Honourable Court may deem just and expedient.
   

An affidavit in reply was filed by the defendant on 2 May 2002. As ordered, written submissions were filed by both counsel and these were received at the Suva High Court Registry on 12 November 2002.

Plaintiff’s submission

The learned counsel for the plaintiff submitted that ‘Originating Summons’ is the correct procedure in answer to a query by the Court. He said that this is not a ‘Probate action’. It is concerned with Crown Lease No. 65013 and the interpretation of the deed in question in this case. He says that there is no substantial dispute of facts in the light of the submission made herein except that the issue is: (a) whether the plaintiff cultivated his share of the land and (b) if so, is he entitled to payment for his share of the cane produced and what is the amount due to him.

The orders and declarations sought are as stated hereabove and the plaintiff has given his reasons for seeking those orders. However, he submits that since there is a dispute regarding the cultivation of cane by the plaintiff and his entitlement to the proceeds of cane from his share of the land, that the proceedings be ordered to continue as if the matter had been begun by a writ of summons pursuant to Order 28 Rule 9 of the High Court Rules 1988.

Defendant’s submission

It is the defendant’s submission that ‘originating summons’ is not the correct procedure for the reasons firstly, that a declaration is sought that the plaintiff be appointed a trustee of the Trust Deed dated 13 June 1975. This is therefore a ‘Probate action’ and hence under Order 76 Rule 20 of the High Court Rules it should be commenced by a writ and that it must issue out of the Probate Registry.

The defendant submits that the application by the plaintiff is ‘superfluous and therefore an exercise in futility’. He says that he has taken the best option available to him to ‘partition’ the lease in order to allow the plaintiff to have his separate lease. The plaintiff has no mandate from any other beneficiary to bring this action.

Counsel submits that the summons should be dismissed with costs.

Consideration of the summons

Having read the originating summons, the affidavits filed herein by the parties and the written submissions from both counsel, I hold that this is not a ‘Probate action’ as defined in Order 76 r.1(2) of the High Court Rules.

‘Probate action’ is defined as:

‘An action for grant of probate of the will, or letters of administration of the estate of a deceased person or for the revocation of such grant or for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious or common form probate business.’

Once it is accepted that it is a ‘Probate action’ then the procedure to be followed is as stated in the said Order 76 Rule 2(1) which provides that:

A probate action must be begun by writ, and the writ must be issued out of the Registry.

Although I hold that this is not a probate action, nevertheless, the declarations sought cannot be determined on affidavit evidence alone. As already stated by the plaintiff an interpretation of the said Deed comes into play and the question also is whether the plaintiff needs the consent of the other beneficiaries to bring this action for their benefit as well.

In the circumstances the plaintiff now submits that Court make an order under Order 28 Rule 9 of the High Court Rules. I agree with him in this regard.

It is therefore ordered that in the circumstances of this case, unless the issues in this action are settled between the parties within 28 days from the date of this decision, the action continue as if begun by writ under Or.28 r.9 of the High Court Rules and it is further ordered that the plaintiff seek direction from the Court as to the future course of the action. The costs are to be costs in the cause.

D. Pathik
Judge

At Suva
13 February 2003