Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Miller v Miller [2010] FJHC 179; Civil Action 194.2009 (27 May 2010)

IN THE HIGH COURT of FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No: 195 /09; Civil Action No: 194/09
& Civil Action No: 193/09

IN THE MATTER of an application under Order 113 of the High Court Rules
for an Order for Summary Proceedings for immediate possession of land.

BETWEEN:

ANNA LILAC MILLER
of Nukunuve Estate, Savusavu, Domestic Duties as Administratrix and Trustee
in the Estate of James Miller late of Nukunuve Estate, Savusavu, farmer deceased.
PLAINTIFF

AND:

JOHN TAWAKE NASA TAWASE MILLER
of Nukunuve Estate, Savusavu, Villager.
DEFENDANT

AND:

DAVID MACLAREN
of Nukunave Estate, Savusavu Villager
DEFENDANT

AND:

MEREONI SEMANAKADAVU
of Nukunave Estate Savusavu, villager
DEFENDANT

BEFORE: Master ROBINSON H Esq.

COUNSELS: Mr. VAKALOLOMA for Plaintiff
Mr. A RAM for the Defendant

Date of Ruling: 27 May 2010.

RULING

[1]. This is an application for possession of land made under Order 113 of the High Court Rules.
There were two other matters involving the same Plaintiff and the same piece of land and all the matters will be dealt with together in this ruling. These matters are:-

(1). Anna Lilac Miller –v- David Maclaren: Civil Action No: 194/09; and

(2). Anna Lilac Miller –v- Mereoni Semanakadavu: Civil ActionNo: 193/09.

BACKGROUND

[2]. The Plaintiff is the great grand-daughter of the late Mr James Miller formally of Nukunuve Estate, Savusavu. The late James Miller died testate on the 16th December 1912. His estate consists of 31 acres of land described in the Certificate of Title No: 4402 as Lot 3, Nukunuve, part of Nacekoro and situated in Savusavu, Vanua Levu (hereinafter referred to as "the property").

[3.] The late Mr. James Miller had three sons and two daughters. The Plaintiff’s paternal grand- mother, Julia Miller Shaw, is one of the two daughters. In his "Will" he appointed his son John Cunningham Miller and daughter Julia Miller Shaw (plaintiff’s grand-mother) his executor and executrix respectively.

[4] Both John Cunningham Miller and Julia Miller Shaw died without taking upon themselves or either of them, probate and execution of the Will. John Cunningham Miller died on 26 December 1919 and Julia Miller Shaw on the 22 December 1918.

[5]. On the 10 August 1920 Letters of Administration was thereafter granted to Henry Miller another son of the late James Miller, who was to administer the Estate. Henry Miller died intestate on the 26 September 1937 he was single and left no issues. In the Certificate of Title annexed to the Plaintiff’s affidavit in support of the application, Henry Miller is noted as the Administrator of the estate of the late Mr. James Miller. He too did not administer the estate in accordance with his father’s will.

[6]. The late Mr. James Miller’s third son Thomas Miller died intestate on 21 December 1918 and left behind a son Norman Miller. Thomas Miller as a direct descendant of the late James Miller is a beneficiary to the estate and in the "normal" course of events his son Thomas Miller will also benefit from his father’s estate. From the material before the Court all the Defendant’s relationship or ties to the Estate appears to come from this beneficial line.

[7]. The first Defendant John Tawake Nasa Miller was the step son of Thomas Miller, the 2nd Defendant, Mereoni Semanakadavu was the care giver to Thomas Miller before he died and David Maclaren is the husband of Ema Miller one of Thomas Millers three daughters.

[8]. There is another direct descendant of the late Mr. James Miller, the second daughter Mary Miller whose beneficial line is not relevant to this proceedings but whose beneficial interest is to be taken into account in any administration of the estate.

THE APPLICATION

[9]. The Plaintiff brings this action as the Administratrix and Trustee of the Estate of James Miller late of Nukunave Estate, Savusavu.

[10]. Her locus to stand as the Administratrix and Trustee of the Estate of the late James Miller arose from the registration of a "Transmission by Death" application lodged by her at the Registrar of Titles on the 22 June 2005 and her subsequent registration on the Certificate of Title. The "Transmission by Death" was registered on the 24 June with a registration No: 567600.

[11]. The notation entry on the back of the Certificate of Title states that she was the Administratrix of the estate of Henry Miller and not James Miller (as in the Summons) and quotes the same transmission by death application registration number of 567600.

[12]. In paragraph 4 of her affidavit in support of the application sworn on 2 July 2009 she states:-

"That I am the Great Grand-daughter and Lawful Administratrix and Trustee of James Miller owner and registered proprietor in this piece and parcel of land comprised in Certificate of Title No: 4402 known as Nacekoro Lot 3 situated in the district of Savusavu in Cakaudrove containing 31 acres more or less. Copy of the said Certificate of Title No: 4402 is annexed hereto and marked "A".

In paragraph 5 she states:-

"That I now require the said property for my own use and benefit".

[13]. The Plaintiff’s affidavit in support of her application for immediate vacant possession was brief and had three basis i.e. that she was the great grand- daughter and Administratrix and Trustee of the Estate of the late Mr. James Miller, that the Defendants are living in the property without any right in that they are not heirs of James Miller and she wanted the property for her own use and benefit. That despite having served a "Notice to Quit" to all the Defendants they still remained on the property. Accordingly she is entitled to vacant possession.

[14]. In her Supplementary Affidavit sworn on the 15 October 2009 the Plaintiff states that she is the great-grand daughter of James Miller and the owner and registered proprietor of the piece or parcel of land comprised in Certificate of Title No: 4402 known as Nukunave. That the last Will and testament of the late Mr. James Miller states that the land known as Nukunave is to be the home of his children and their "heirs". That the Defendants in all the action are not heirs of the late Mr. James Miller and therefore are not entitled to remain on the property.

[15]. She further provides in the supplementary affidavit the list of all the issues of the children of the late Mr. James Miller and states that Norman Miller the son of Thomas Miller did not have any issues and that there are no heirs to that beneficial line.

THE SUBMISSIONS

Plaintiff

[16]. The Plaintiff submits the following:-

1. That the Defendants have no right to be on the land in that they are either squatters or illegally occupying the land belonging to the Miller family (Par: 1.3);

2. That the land is a freehold land registered and owned by the late James Miller who died and left his property under will dictating that his freehold land be used and owned by his children and their heirs only (Par. 1.4);

3. The Plaintiff by way of transmission by death on the 24 June 2005 was registered as administrator and trustee on the Title for the benefit of the children and heirs of James Miller in accordance to his will (Par. 1.4);

4. That pursuant to the last will and testament of James Miller, he bequeath his real property free hold estate known as Nukunave for the benefit of his children namely: John Cunningham, Julia Miller Shaw, Hendry Miller, Thomas Miller and Mary Miller (Par. 2.2);

5. That the late James Miller clearly indicated and dictated that: "Be it understood that Nukunave is to be the home of my children and their heir"(Par. 2.3) and

6. That the Plaintiff is the biological child of Alsaece Loraine Miller son of Julia Miller Shaw a descendant of James Miller (Par.2.4).

The Defendant’s

[17]. The Defendants submit the following:-

1. That the Plaintiff has no locus standii in that she has no authority to act in the estate of the late James Miller in the absence of a grant of letters of administration;

2. The Plaintiff did not disclose anywhere in her application that she has the grant of the letters of administration entitling her to stand;

3. That there was a caveat in place lodged on the 20 October 2005 restraining the grant of probate on the estate of James Miller;

4. That there are other people entitled to the grant;

5. That the original Letters of Administration was granted to Henry Miller who died leaving the estate un-administered and the notification on the Transmission by Death states that she is the administratrix in the estate of Henry Miller not James Miller. And given that there are no successive wills devolution of the title to administer does not follow. A grant de-bonis non needs to be taken out;

6. That the actual "Transmission by Death" document annexed to the Plaintiff’s affidavit in support of the application shows material alteration, relates to the estate of James Miller and not Henry Miller (as in the CT) and is a false and improper document as no grant is annexed to the document;

7. That there is an error by the Register of Titles and that indefeasibility of title does not come into play;

8. That the "Notice to Vacate"was faulty;

9. The Defendants have cause to be on the land in that:-

(i). John Nasa Miller’s mother was married to Norman Miller grand-son of James Miller, he was brought up by Norman Miller took his name and on the death of Norman Miller his mother was entitled to her husband’s estate and he his mother;

(ii). David Maclaren is married to the great grand-daughter of James Miller and he is there through his wife who is a beneficiary; and

(iii). Mereoni Semanakadavu lived on the property by licence from one of the great grand-daughter of James Miller, one Marion Miller.

THE LAW

[18]. The Plaintiff’s application was by Summons made under Order 113 of the High Court Rules. Order 113 states:-

"Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order."

[19]. The Plaintiff in his submission refers to his application as being made under both Order 113 of the High Court Rules and under Section 169 of the Land Transfer Act Cap. 131 notwithstanding that the Summons states specifically that the application is made pursuant to Order 113 of the High Court Rules 1988". It is clear though that our laws provide for the summary removal of squatters on land through section 169 of the Land Transfer Act and Order 113 of the High Court Rules but my view is that for clarity the summons should indicate which procedure is preferred and to which a decision is to be made by the court. For the purposes of this application I shall consider the Summons as an application made under Order 113 of the High Court Rules only.

[20]. An application for possession under this Order can be made by a person who has a legal right to take possession, and is not limited to those who hold a title in fee simple or a registered proprietor.

[21]. The order for possession and writ of possession obtained in this procedure is an order in rem and empowers the sheriff’s officers to clear the premises. This procedure is not to be used where the Plaintiff is aware of a real dispute with the occupier but has no power to prevent its use.

THE DETERMINATION

[22]. The first hurdle to be overcome by the Plaintiff in an application under Order 113 is that she must show an interest in the land sufficient to give her a right to take possession. This right of possession has to be a right recognised by law. Her right to possession appears to have been derived from her being "registered" as the administrator of the estate of the late Henry Miller. This is the notation on the relevant Certificate of Title No: 4402. The notation on the Certificate of Title is different from that which is contained in the actual application for Transmission by Death. It is also different from the Summons. This slight discrepancy is the start of a number of discrepancies which befalls this application and which questions her right of possession.

Discrepancies

[23]. The following were the discrepancies found in the application:-

1. The first discrepancy is that the Summons itself shows the Plaintiff as the "Administratrix in the Estate of James Miller.

2. The second is that the notation on the CT shows the plaintiff as the Administratrix of the Estate of Henry Miller;

3. The third was that the registration was enabled by a "Transmission by Death" application lodged with the Registrar of Titles on the 22 June 2005 which shows her as the Administratrix in the Estate of James Miller.

4. There were numerous corrections on the "Transmission by Death" application which raises some doubt as to its authenticity.

5. There were no Letters of Administration or Probate lodged with the application for "Transmission by Death" to enable the transmission.

6. There was a caveat lodged with the High Court Probate Division in Suva preventing the grant of Probate on the Estate of James Miller.

7. The Certificate of Title shows that there was a vesting order which shows that the land is vested on another person.

The above are just some of the difficulties in establishing the Plaintiffs right to claim possession.

[24]. The other and perhaps the most important flaw which could be found and which questions her right to take possession is found in the lack of proper testamentary instrument from which her right could legally be derived. Where an estate is left un-administered after the death intestate of the last executor or administrator, his or her administrator does not become the administrator of the original testator (see Par. 435 page 236 "Halsbury’s Laws of England" 3rd Edition). In other words if the Plaintiff becomes the administrator of the estate of Henry Miller, Henry Miller having died intestate without administering the estate of James Miller, she does not automatically become the administrator of the estate of James Miller. This grant is a grant of administration cum testamentor annexo de bonis non administratis or in short administration de bonis non.

[25]. There was no affidavit evidence provided by the Plaintiff to show that such a grant was given to her and it follows that her right of possession is in question. In reality her position could be summarised this way, if she was the administrator of the estate of Henry Miller she could not administer the estate of James Miller if she wishes to administer the estate of James Miller she has to obtain a grant de bonis non.

[26]. This also raises a further question as to how she was able to be entered into the CT as the administrator of the estate of Henry Miller in the absence of a testamentary instrument. There could very well be a testamentary instrument for the estate of Henry Miller but not a testamentary instrument for the estate of James Miller. I have come to the conclusion that there was no testamentary instrument granted in the estate of James Miller because the caveat lodged in the High Court Registry on the 20 October 2005 preventing the grant of probate in the estate of James Miller could not have been accepted by the Registry if a testamentary instrument had already been granted. So it is clear that as at the 20 October 2005 no order for grant of probate or letters of administration had been given. See also the provision relating to Caveats under section 46 of the Succession Probate and Administration Act Cap. 60. The section states:-

46.-(1) Any person may lodge with the Registrar a caveat against any application for probate or administration, or for the sealing of any probate or letters of administration under the provisions of this Act, at any time previous to such probate or administration being granted or sealed.

(2) Every such caveat shall set forth the name of the person lodging the same, and an address within the city of Suva at which notices may be served on him.

The lack of a grant is fatal to the application simply because the administrator derives his/her title solely from the grant. This is different from an executor who derives the right to act from the Will and a grant of probate a proof of his title; Ingall -v-Moran (1944) 1 ALL.E.R.97

[27]. To add a further twist to the matter there appears on the Certificate of Title a Vesting Order registration No: 561829 which effectively vests the property to one "Esiteri Heritage". This Vesting Order was registered on the 22 March 2005 some three months before the land was transmitted to the Plaintiff and a month before the Plaintiffs Caveat was registered. The vesting order states simply "This land is vesting in the name of Esiteri Heritage". This vesting order notation on the title was however, not signed by the Registrar of Titles. Why it was not signed is a mystery but without cancellation of the notation could infer that there are other interests on the land.

[28]. The other aspect of an application made under Order 113 is the establishment of a right to possession by those who remained in occupation i.e. the Defendants. All the Defendants had shown that they derived their right of possession by licence and/or consent of a beneficiary of the estate of James Miller. That is through the beneficial interests of Thomas Miller and his only issue Norman Miller. Affidavit evidence provided by two of the Defendants shows a continuity of these interests sufficient for the Court to conclude that this matter could not be dealt with summarily.

CONCLUSION

[29]. Applications made under Order 113 of the High Court Rules or under section 169 of the Land Transfer Act are summary in nature and is intended to operate without the need for a trial involving the oral examination of witnesses and with a minimum of delay, expense and technicality. Hence it would normally apply in virtually uncontested cases or in clear cases where there is no issue or questions to try. That is, there is no reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to the wrongful occupation of the land without licence or consent and without any right or interest.

[30]. This matter cannot be determined summarily for reasons referred to above and as a result the applications are unsuccessful and the orders sought are denied. The Plaintiff is therefore advised to make the necessary application by way of a writ.

ORDER

The Court therefore makes the following orders:-

1. Order for vacant possession against the Defendant Mr. John Tawake Nasa Tawase Miller in Civil Action No: 195/09 denied;

2. Order for vacant possession against the Defendant David Maclaren in Civil Action No: 194/09 denied;

3. Order for vacant possession against the Defendant Mereoni Semanakadavu in Civil Action 193/09 denied;

4. The Plaintiff to pay to each Defendant costs which I summarily assess at $250:00.

ROBINSON H
MASTER

AT LABASA
27 May 2010