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Singh v Singh [2020] FJHC 357; HBC312.2011 (28 May 2020)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 312 of 2011

BETWEEN:

VIMALESH KUMAR SINGH
of Vunivivi Hill, Nausori, Fiji, Manager

PLAINTIFF

AND:

BIJAE WATI SINGH also known as VIJAY WATI also known as VIJAY WATI SINGH of Vunivivi Hill, Nausori, Fiji, Domestic Duties, SURESH KUMAR SINGH of Vunivivi Hill, Nausori, Businessman and SUBHAS CHANDRA PARSHOTAM of Suva, Legal Practitioner as the Executors and Trustees of the Estate of RAGHUBAR SINGH late of Vunivivi Hill, Nausori, Businessman, Deceased.

DEFENDANTS

BEFORE:

Hon. Acting Chief Justice Kamal Kumar

COUNSEL:

Mr S. Sharma for Plaintiff
Mr A. Singh for Firstnamed Defendant/Trustee
Mr V. Maharaj for Secondnamed and Thirdnamed Defendants/Trustees

DATE OF RULING:

28 May 2020

RULING
(Application to Strike Out)

1.0 Introduction

1.1 On 14 January 2015, Second and Thirdnamed Trustees of the Estate of Raghubar Singh filed Application to Strike Out Originating Summons filed on 11 October 2011, on the ground that:-

“(i) It discloses no reasonable cause of action against the Second and Third named Defendants;

(ii) It is frivolous and vexatious; and

(iii) It is an abuse of the process of the Court.”

(“the Application”)

1.2 Parties moved Court that the Application be dealt as “Preliminary Issue” first.

1.3 On 21 January 2015, parties were directed to file Affidavit/Submissions and the Application was adjourned to 6 March 2015, to fix hearing date.

1.4 On 6 March 2015, the Application was adjourned to 12 March 2015.

1.5 On 12 March 2015, the Application was adjourned to 27 March 2015, for hearing which date was vacated and was re-fixed for 3 July 2015.

1.6 On 3 July 2015, the Application was adjourned to 20 August 2015, for hearing.

1.7 On 20 August 2015, the Application was heard and adjourned for Ruling on Notice.

1.8 Following Affidavits were filed on behalf of the parties:-

For Applicants

(i) Affidavit in Support of Subhas Chandra Parshotam sworn and filed on 14 January 2015 (“Parshotam’s 1^st Affidavit”).

(ii) Affidavit in Reply of Subhas Chandra Parshotam sworn and filed on 17 February 2015 (“Parshotam’s 2^nd Affidavit”).

For Respondent (Plaintiff)

Respondent’s Affidavit in Response sworn and filed on 4 February 2015 (“Respondent’s Affidavit”).

2.0 Background Facts

2.1 Raghubar Singh of Vunivivi, Nausori, Businessman died on 1 October 2010.

2.2 Pursuant to his Last Will and Testament made on 7 May 1997, (“the Will”) late Raghubar Singh appointed his wife Vijay Wati, his son Suresh Kumar Singh and Subhas Parshotam as Executors and Trustees of his Will.

2.3 Pursuant to the Will, Raghubar Singh deceased and bequeathed all his real and present property as follows:-

(i) To pay for his just debts, funeral and testamentary expenses including estate duties;
(ii) To maintain, support and provide for his wife Vijay Wati during her lifetime;
(iii) To pay a sum of $50,000.00 to his daughters ANJANA DEVI SINGH in two instalments of $25,000.00 each from proceeds of his CMLA Life Policy;
(iv) To pay $50,000.00 to Respondent (Plaintiff) within 12 months of his death from proceeds of his CMLA Life Policy;
(v) To pay entire proceeds of his CMLA Life Policy No. 2836100 to his wife Vijay Wati;
(vi) To transfer his residence property situated at “Vunivivi Hill” with household items to his wife Vijay Wati absolutely.
(vii) To transfer his property situated at Nausori known as “R. Singh Building” to his wife Vijay Wati and son Suresh Kumar Singh in equal shares;
(viii) To transfer State Lease No. 5251 with all improvements to his step-mother CHANDRA WATI absolutely.
(ix) To pay each children of his deceased son Chandar Prakash Singh upon them attaining the age of 28 years $50,000.00 from proceeds of his CMLA Life Policy.
(x) To his son Suresh Kumar Singh rest, residue and remainder of his property.

2.4 On 25 April 2011, Probate was granted in terms of the Will.

2.5 Even though Plaintiff filed this Action in person, Mr S. P. Sharma appeared for him and made submissions on his behalf from 12 September 2012.

3.0 Application to Strike Out

3.1 The Application is made under Order 18 Rule 18 of the High Court Rules.

3.2 It is well established that jurisdiction to strike out claim or pleadings should be used very sparingly and only in exceptional case Timber Resource Management Limited v. Minister for Information and Others [2001] FJHC 219; HBC 212/2000 (25 July 2001).

3.3 In National MBF Finance (Fiji) Ltd v. Buli Civil Appeal No. 57 of 1998 (6 July 2000) Court of Appeal stated as follows:-

“The Law with regard to striking out pleadings is not in dispute. Apart from truly exceptional cases the approach to such applications is to assume that the factual basis on which the allegations contained in the pleadings are raised will be proved. If a legal issue can be raised on the facts as pleaded then the Courts will not strike out a pleading and will certainly not do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of a factual contention. It follows that an application of this kind must be determined on the pleadings as they appear before the Court....”

3.4 In Razak v. Fiji Sugar Corporation Ltd [2005] FJHC 720; HBC 208.1998L (23 February 2005) his Lordship Justice Gates (current Chief Justice) stated as follows:-

“A reasonable cause of action means a cause of action with “some chance of success” per Lord Pearson in Drummond-Jackson v. British Medical Association [1970] 1 All ER 1094 at p.1101f. The power to strike out is a summary power “which should be exercised only in plain and obvious cases”, where the cause of action was “plainly unsustainable”; Drummond-Jackson at p.110b; A-G of the Duchy of Lancaster v. London and NW Railway Company [1892] UKLawRpCh 134; [1892] 3 Ch. 274 at p.277.”

3.5 Plaintiff is the lawful son of late Raghubar Singh and as such is entitled to seek relief under Inheritance (Family Provision Act 2004 (“IFPA”).

3.6 Section 3(1) of IFPA provide as follows:-

“If any person (“the deceased person”) dies whether testate or intestate and adequate provision is not made for a spouse, child or dependent from the estate of the deceased person, the Court may, on application by or on behalf of the spouse, child or dependent, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the spouse, child or dependent.”

3.7 It is not in dispute that:-

(i) Raghubar Singh (Deceased) died on 1 October 2010, testate;
(ii) Respondent (Plaintiff) is lawful child of the Deceased.

3.8 Respondent (Plaintiff) as a lawful child of the Deceased has a right to make application to this Court for such provision as the Court thinks fit be made out of the estate of the late Raghubar Singh for him.

3.9 All the Court will then have to do is make a finding whether Deceased in his Will made adequate provision for Respondent and if Respondent is entitled to any provision.

3.10 For Court to make an Order in favour of Respondent (Plaintiff) as Deceased’s child, Court will have to be “satisfied that some provision should be made for the Respondent having regard to extent to which Respondent was being maintained or supported “by the Deceased before his death and the need of the Respondent for the continuance of that maintenance or support the circumstances of the case” s3(2)-IFPA.

3.11 This Court finds that Respondent (Plaintiff) has a reasonable cause of action which is not frivolous or vexatious.

3.12 This Court notes that Applicant’s main contention is Respondent’s claim is an abuse of Court process on the ground that the claim has been filled out of the time prescribed in s3(10) of IFPA.

Abuse of Process

3.13 It is well settled that this Court has inherent jurisdiction to strike out the claim or pleadings for abuse of Court process as well as under Order 18 Rule 18(1)(d) of High Court Rules (paragraph 18/19/.

3.14 At paragraphs 18/19/17 and 18/191/18 of Supreme Court Practice 1993 (White Book) Vol. 1 it is stated as follows:-

“Abuse of Process of the Court” - Para. (1)(d) confers upon the Court in express terms powers which the Court has hitherto exercised under inherent jurisdiction where there appeared to be “an abuse of the process of the Court.” This term connotes that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent the improper use of its machinery, and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation (see Castro v. Murray (1875) 10 P.59, per Bowen L.J. p.63). See also “Inherent jurisdiction”, para.18/19/18.”

“Inherent Jurisdiction - Apart from all rules and Orders and notwithstanding the addition of para.(1)(d) the Court has an inherent jurisdiction to stay all proceedings before it which are obviously frivolous or vexatious or an abuse of its process (see Reichel v. Magrath (1889) 14 App.Cas.665) (para 18/19/18).”

3.15 Section 3(10) of IFPA provides as follows:-

“Unless the Court otherwise directs, no application shall be heard by the Court at the instance of a party claiming the benefit under this Act unless the proceedings for such application be instituted within 9 months after the death of the person; but the Court may at its discretion hear and determine an application although a grant of probate or letters of administration has not been made.”

(emphasis added)

3.16 It is not disputed that:-

(i) Deceased died on 1 October 2010;
(ii) Originating Summons claiming for provision under IFRA was filed on 11 October 2011;
(iii) Nine month period during which Respondent had to file this claim expired on 30 June 2011;
(iv) Originating Summons was filed more than three (3) months after the prescribed time.

3.17 This Court has considered following case referred to it by Counsel for the Applicants and Respondent:-

(i) Berger v. Berger [2013] EWCA Civ. 1305 (Applicant)
(ii) Milne v Cunningham & Ors [1917] NLR 686 (Respondent)
(iii) Newman v. Newman & Anor. [1927] NZGazLawRp 26; [1927] NZLR 418 (Respondent)
(iv) Re: Magson [1983] NZLR 592, 598 (Respondent)

3.18 In Berger v. Berger, widow of the Deceased after six and half years after grant of Probate, applied for extension of time to claim provision for her on the ground that when her husband died he did not make reasonable financial provision for her.

Court of Appeal refused to grant an extension of time for the widow.

3.19 In Milne v. Cunningham (ante), Deceased’s daughter applied for extension of time to claim maintenance from deceased father’s estate under Family Protection Act 1955 (NZ) (“FPA”).

Deceased died on 11 November 1920 and Probate was granted on 1 December 1914 but sealed on 11 December 2014. Pursuant to section 9(2)(b) Plaintiff should have filed claim for benefit within a period of 21 months from 1 December 1914.

No application was filed within the prescribed time.

In August 1916, Plaintiff commenced proceedings in another Court which was subsequently abandoned. On 2 November 1916, Plaintiff commenced proceedings by seeking extension of time in Dunedin.

In exercise of discretion, Court refused to extend time.

Plaintiff’s husband made Will in which he proceeded for maintenance and support of his wife for her life so as long as she remains his widow. Plaintiff re-married one Peter Newman who was unable to maintain Plaintiff. Court held that Plaintiff by re-marriage lost her status as Testator’s widow and “by her own act put an end” to enjoying the benefits, which “was an act of her own volition”.

3.20 In Re Magson a farmer died in 1974 survived by his widow, a son and five daughters.

Farmer bequeathed to his widow various assets, legacy of $2,000.00; annuity of $1560.00 until re-marriage with power to trustee to increase it, to live in the house on the farm until her re-marriage or sale and to buy her a house or flat for her to live there free of charge until her re-marriage. Residue was to be divided amongst son (50%) and five daughters (50%) when children turned 25 years. Son had option to buy farm at fair value. Son exercised right to buy farm.

Probate was granted on 19 September 1974.

Time prescribed to file proceedings expired on 19 September 1975 (12 months). On 20 January 1982, widow filed proceedings under FPA and Matrimonial Property Act and Application to extend time. Subsequently one of the daughters joined the proceeding and also sought extension of time.

Application to extend time was refused by the Judge and the appeal was dismissed. The main reason for refusing to extend time was because of prejudice that would be suffered by the son if time was extended.

Daughters had 2 years from date of grant to make application under s9(2)(9) because she was 9 years of age when her father died.

3.21 Even though there is no specific provision to extend time in IFPA (Fiji) like s9(2) of FPA (NZ), this Court holds that the words “unless Court directs otherwise” under s9(2)(a) of FPA given this Court has unfettered discretion to extend time if Court thinks fit to do so.

3.22 One thing common in all the cases cited above are that in all of them Application was made by the Plaintiffs to extend time to claim for provision for their maintenance.

3.23 It is noted that in this matter no Application has been made by the Plaintiff for Court to hear the matter out of prescribed time.

3.24 All Plaintiff could have done was add a prayer in the Originating Summons seeking an Order to extend time for Court to hear his claim out of time, or file an Application for extension of time.

3.25 When such Application is filed Court can in exercise its discretion to determine whether time is to be extended or not.

3.26 If Plaintiff had filed Application for Extension of Time whether by filing separate Application or making it part of Originating Summons, Court would have considered following proposition as stated in Re Salmon [1981] Ch. 167 and Re Dennis [1981] 2 ALL ER 140 (paragraph 44 Berger v Berger (ante):-

“(1) ...

(2) The onus is on the Application to show sufficient grounds for the granting of permission to apply out of time.

(3) The court must consider whether the Applicant has acted promptly and the circumstances in which she applied for an extension of time after the expiry of the time limit.

(4) Were negotiations begun within the time limit?

(5) Has the estate been distributed before the claim was notified to the Defendants?

(6) Would dismissal of the claim leave the Applicant without recourse to other remedies?”

3.27 In addition to above Court would have considered whether Plaintiff had an arguable case and if Defendants or any third party in particular any beneficiary [as was case in Re Magson (ante)] would suffer any prejudice.

3.28 This Court holds that Plaintiff’s failure to seek extension of time from this Court and just filing the claim out of prescribed time is an abuse of Court process and as such this action should be struck out.

4.0 Costs

4.1 In view of nature of proceedings this Court holds that each party should bear their costs of the Application and this action.

5.0 Order

5.1 I make following Orders:-

(i) This action is dismissed and struck out;
(ii) Each party bear their own costs of the Application and this Action.

K. Kumar

ACTING CHIEF JUSTICE

At Suva

28 May 2020

Solicitors:

Plaintiff In-Person

Singh & Singh Lawyers for the Firstnamed Trustee/Defendant

MC Lawyers for the Secondnamed and Thirdnamed Trustee/Defendants