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In re FNPF of Tarairatu [2011] FJHC 505; HBP47.2007 (6 September 2011)

IN THE HIGH COURT OF FIJI
AT SUVA

HBP. NO. 47 OF 2011

IN THE MATTER of FNPF of JOJI TARAIRATU aka JOJI TALAIRATU RABOTO late of Natogadravu Village, Tailevu, Deceased

AND

ANA RABEUA of Natogadravu Village, Tailevu, Mother of the Deceased (herein "the Applicant")

BEFORE: MASTER DEEPTHI AMARATUNGA
COUNSELS: Ms Rigsby T
DATE OF HEARING: 28th July, 2011

WRITTEN SUBMISSIONS
FILED ON: 22nd August, 2011

DATE OF RULING: 6th September, 2011

RULING

1. INTRODUCTION
   

1. The Applicant is seeking an order of the court to obtain the money in the account of FNPF which was transferred to the High Court in terms of Section 35 of the FNPF Act, of the said deceased member of FNPF to the mother of the deceased. The deceased was married and the wife has left the family, but the deceased had issues from that marriage and they are with the grand parent who is making this application for the expences of the children.
   

2. ANALYSIS
   

2. The money is sent by the FNPF to High Courts in terms of Section 35 of the FNPF Act because the deceased member failed to include a beneficiary to the said fund.
   
3. This application is made ex-parte by the mother of the deceased, who alleges that she is looking after the children of the deceased as the mother of the children has left the family in 1999.
   
4. The applicant also alleges that her late son Joji Talairatu, married Sera Adisavu, but without obtaining a divorce the said daughter in law has left the family in 1999 and living in de facto relationship with another person and has also given birth to children from that relationship.
   
5. The law relating to the FNPF contribution is clear In the Matter of Mohammed Hassan [1989] 35 FLR 107, where Fatiaki J (as he then was) held that a sum standing to the credit of a deceased member of the FNPF does not form part of his estate and accordingly is to be distributed as provided by the Succession, Probate and Administration Act.
   
6. So, the law is settled and Justice Fatiaki, had said that though the FNPF money does not form part of the estate of the deceased that money should be distributed in terms of the Succession, Probate Administration Act and accordingly Section 6 of that Act should be applied.
   
7. It is also clear that the wife of the deceased has made request for the fund to the Public Trustee, as evidenced from the annexed AR6 to the affidavit of Ana Rabena, mother of the deceased.
   
8. The wife of the deceased was not made a party to this application, and any order that the court grants in regard to the FNPF will affect her rights in terms of the Section 6 of the Succession Probate and Administration Act.
   
9. Since she had already made a claim to the public trustee, regarding her rights to the said money of the deceased, she should be granted an opportunity to be heard and without that she cannot be disowned of her legal rights that derive from the Section 6 of Succession Probate and Administration Act.
   

100. CONCLUSION
     

10. The ex parte application of the mother of the deceased is struck off without cost. The applicant may make an appropriate application, making the wife of the deceased a party for appropriate orders of the court.
    

Dated at Suva this 6th Day of September, 2011.

Mr D. Amaratunga
Acting Master of the High Court
Suva