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Wati v Bennadette - Ruling [2022] FJHC 99; HBM32.2021 (11 February 2022)

R U L I N G

INTRODUCTION

1. On 19 November 2021, Pillai Naidu & Associates filed an ex-parte Notice of Motion seeking the following Orders:
   
   • (a) AN ORDER that Caveat No. 763539 on the following state leases by the plaintiff be extended until further Order of the Court:-
     

(b) A FURTHER ORDER that the costs of this application be costs in the cause.
(c) ANY OTHER ORDER that this Honourable Court may deem just and equitable in the circumstances.

2. The application is made pursuant to section 110 and 112 of the Land Transfer Act and Order 8 of the High Court Rules 1988.
   
3. It is supported by an affidavit of Kunal Chand sworn on 19 November 2021.
   
4. Notably, at the time of the filing of the application, the plaintiff had been away in Australia for some time for medical reasons. She had travelled to Australia at some point shortly before the Covid-19 was declared a pandemic and whilst she was still there, the Covid-19 pandemic broke out. As a result, she has been stuck in Australia for some time now.
   
5. The affidavit in support of the Notice of Motion, therefore, had to be sworn by Kunal Chand who is a solicitor in the law firm of Pillay Naidu & Associates. Chand deposes that he has “carriage of this matter under the supervision of my Principal Mr. Dorsami Naidu” and who annexes to his affidavit a copy of a written authority of the plaintiff.
   
6. The key points deposes by Chand are as follows:
   
   • (i) the case concerns the estate of the late Ganesh Shankaran (“Shankaran”)
   • (ii) Shankaran died on 11 December 1986
   • (iii) at the time of his death, Shankaran was the registered proprietor of State Lease No. 6476. This land has a total acreage of 13.7189 hectares.
   • (iv) Shankaran’s Last Will and Testament is dated 25 November 1957
   • (v) by the said Will, Shankaran had bequeathed his estate in equal shares to his wife Alumelu and also to his three children, namely, Vijay Shankaran (“Vijay” son), Prem Shankaran (“Prem” son) and Leela Wati (“Leela” daughter – plaintiff).
   • (vi) Shankaran also appointed his wife, Alumelu, as executrix and trustee of the said Will upon his death (she was granted Probate No. 10518 on 13 August 1969).
   • (vii) Alumelu later died on 05 April 2000 leaving the estate un-administered.
   • (viii) upon her death, letters of administration de-bonis-none of the estate of Shankaran was granted to Prem on 25 May 2001.
   • (ix) Vijay died on 23 June 1995. Prem died on 14 May 2011.
   • (x) upon Prem’s death, his surviving wife, Bernadette (first defendant) sole executrix and trustee of the estate.
   • (xi) notably, Shankaran had placed the following condition on his Will:
     
     • (a) that his estate is to be distributed when his youngest child, Prem, attains the age of twenty-one (“period of distribution”)
     • (b) that Leela is only entitled to her equal share in the estate if she remains unmarried at the time of the “period of distribution”, that is, when Prem attains the age of twenty-one
       
   • (xii) Prem was born on 16 July 1947. He attained the age of twenty-one on 16 July 1968. Leela married on 05 April 2000 when Prem was fifty-three years of age.
   • (xiii) it appears that Prem had started subdividing the estate property whilst he was alive. Bernadette would carry on the work after the demise of Prem. This sub-division work is all still work in progress when Leela instituted these proceedings.
   • (xiv) Leela placed a caveat on the property on 08 October 2012.
     

THE SUBDIVISION

7. From my reading of paragraph 6 subparagraphs (k) and (l) of Leela’s affidavit, the subdivision has either been completed or is nearing completion. The following are the key facts deposed in these subparagraphs:
   
   • (i) three separate leases have been created out of State Lease No. 6476.
     
   • (ii) these three leases are State Lease No. 21906, State Lease No. 22074, and State Lease No. 22076.
     
   • (iii) the above leases were registered on the following dates:
     

WHO IS THE RIGHTFUL PARTY TO BE SUBDIVIDING THE LAND?

8. As I have said, at the time of his death, Shankaran was the registered proprietor of State Lease No. 6476. This land forms the bulk of his estate. The estate of Prem of which Bernadette is the sole executrix-trustee, is only beneficially entitled to 25% of the estate, and possibly a little more if he was to benefit also from the estate of Alumelu.
   
9. Accordingly, the party who should be carrying out the subdivision of the land is the personal representative of the Shankaran estate. This, I understand, is an issue in a related case pending before the Master.
   
10. In her affidavit marked KC3, Leela attaches Letters of Administration De-Bonis-Non With Will No. 51837 which was granted to her by the High Court of Fiji over the estate of Ganesh Shankaran. However, there is some indication that upon the death of Alumelu, Prem became the administrator of her estate. Whether Prem then took out Letters of Administration De Bonis Non over the Shankaran estate, and if he did, whether that was subsequently cancelled or revoked, is not clear to me at this time.
    
11. Why Leela did not proceed with distributing the estate from 17 January 2012 when the said instrument was granted to her, is not explained in her affidavit.
    Hopefully, this will all become clearer in time. More importantly, how Bernadette was able to proceed with subdividing State Lease No. 6476 in spite of Leela’s caveat, and with Leela being the personal representative De-Bonis-Non of the estate of Shankaran, needs some explanation.
    
12. On 20 January 2022, AK Lawyers filed a Summons seeking to wholly set aside and dismiss the proceedings on the following grounds:
    
    1. Failing to commence the action by an Originating Process as required by Order 5 Rules 3 and 4.
    2. Failure to comply with Order 5 Rule 5.
    3. Absence of a substantive action, despite the extension orders made on 14^th December, 2021 being conditional on a Writ of Summons being filed.
    4. There is a failure to comply with the Court Orders of 20^th December, 2021 and subsequently of 14^th December 2021, as the Affidavit in Reply was served late, and no Writ of Summons has been filed or served.
    5. Failure to comply with the procedure under Section 110 (3) of the Land Transfer Act in terms of service to the caveatee and the application being made inter-parte.
    6. Failure to enclose a copy of the Caveat No: 763539 sought to be extended.
    7. There is material non-disclosure of matters before this Court of a pending action between the parties being Lautoka High Action No: 157 of 2015 in which the Plaintiff’s Statement of Claim was struck out and the first Defendant’s Counter-Claim remains, where the first Defendant seeks a revocation of the De-Bonis Non granted to Plaintiff. This matter is currently before the Master of the High Court and will be called for Mention on 7^th February, 2022.
    8. That time for filing and service of this application be abridged to 1 day.

COMMENTS

Failing to Commence Action by an Originating Process

13. Notably, the plaintiff/applicant had filed an ex-parte Notice of Motion supported by an affidavit pursuant to section 110 and 112 of the Land Transfer Act and pursuant to Order 8 of the High Court Rules 1988.
    
14. It was heard on 20 November 2021 when I granted Orders to extend the caveat in question over the three leases to 14 December 2021.
    
15. On 14 December 2021, Mr. Victor Sharma appeared for the defendant. I extended the caveat to 25 January 2022 and set the same date for hearing, and also gave directions for the filing of an affidavit in opposition and a reply. I also directed the plaintiff to file and serve a Writ of Summons and Statement of Claim within fourteen days and the defendant to file and serve a Statement of Defence 21 days after.
    
16. On 17 January 2022, the plaintiff filed an Affidavit of Kunal Chand annexing a scan-copy of an affidavit of Leela sworn on 07 January 2022 in Melbourne, Australia. On 19 January 2022, the plaintiff filed the original copy of the said affidavit of Leela.
    
17. At the time of the hearing on 25 January 2022, the plaintiff had not filed any Writ of Summons. Notably however, the plaintiff only filed their writ of summons and statement of claim yesterday, for which the registry had sought my direction as to whether or not to accept it. I directed the registry to accept these documents for filing, as I was mindful of section 15(2) of the Constitution:
    

(2) Every party to a civil dispute has the right to have the matter determined by a court of law or if appropriate, by an independent and impartial tribunal

18. Whist the writ of summons and statement of claim are now filed, belatedly, the issues raised by Mr. Narayan are still valid. The question now becomes, whether the Notice of Motion filed by the plaintiff to extend the caveat is sustainable still.
    
19. I am inclined to agree with Mr. Narayan’s submission that the proceedings filed by the plaintiff in seeking to extend the caveat, must be dismissed because it was filed as if it was an interlocutory without being supported by a proper originating process (see Carpenters Properties Ltd v Te Arawa Ltd [2011] FJHC 728; HBC178.2011 (14 November 2011); Estate of Nayan Singh [2012] FJHC 1137; HPP43.2011 (31 May 2012); Chand v Mati [2009] FJHC 25; HBC 37.2009 (2 February, 2009), Mohammed v Khan [2014] FJHC 255; HBC39.2013 (11 April 2014), Raghwan Construction Ltd v Endeavour Youth Investment Corporation Society & Anor, Suva HBC 322/2005 [18 August 2005].
    
20. I do not agree that the belated filing of the Writ of Summons and Statement of Claim yesterday should cure this defect, although if it can cure that defect, I would not exercise my discretion accordingly on account of the plaintiff’s failure to comply with directions, and also on account of the plaintiff’s non-disclosure of the fact that there is a related proceeding pending before the Master as highlighted by Mr. Narayan.
    

Failure to Enclose A Copy of Caveat No. 763539

21. Essentially, the plaintiff’s application is to extend the said caveat. However, she has not attached a copy of the caveat application to her affidavit.
    
22. I agree with Mr. Narayan’s submission that without the said caveat, the plaintiff cannot show that she has a caveatable interest.
    
23. Mr. Naidu submits that the Court can glean from other material in the affidavit as to what the plaintiff’s interest is in the land is. I agree with Mr. Narayan that, in hearing an application for extension of caveat, the Court must be re-appraised of the caveatable interest alleged in the original caveat for which an extension is being sought. The starting point for that is the production of a copy of the caveat application. The next step then is to see if the material in the affidavit supports the particular caveatable interest alleged in the existing caveat for which an extension is being sought.
    

Material-Non Disclosure

24. Mr. Narayan points out that the plaintiff had failed to disclose to Court of the pendency of a related proceeding before the Master, namely HBC No. 157 of 2015.
    
25. He submits:
    

The fact of pending proceedings where the plaintiff’s claim had been struck out was most relevant to ascertain that there was a claim for the same rights as sought in the affidavit in support of the application for extension of caveat. Action No. 157 of 2015 is before the Master of the High Court. It is a matter of record, that the only pending issue in that action is the validity of the De Bonis Non which is annexed as “KC-2” in Kunal Chand’s Affidavit filed on 19^th November, 2021.

26. I agree with Mr. Narayan’s submission that there is a duty placed on a litigant who makes an ex-parte application to make a full and frank disclosure of all material facts and to be candid and must state the facts clearly.
    

CONCLUSION

27. For all the above reasons, I am of the view that the caveat should not be extended.
    
28. However, having said that, I am mindful that the plaintiff had not only sought an extension of the caveat – which I have now refused. She also appeals to this Court for:
    

“ANY OTHER ORDER that this Court may deem just and equitable in the circumstances”

29. The above is a plea to this Court to consider any other relief which is not specifically pleaded or sought in the Motion.
    
30. Admittedly, whilst the application to extend the caveat is fraught with problems which have led me to uphold the defendant’s submissions not to extend the caveat, I am mindful that the plaintiff has a prima facie claim to the estate of Shankaran because of the testamentary bequests therein from which she stands to benefit. I am mindful also that the effect of not extending the caveat puts the plaintiff in a precarious position in terms of her claim to the Shankaran estate. To this day, the estate remains un-administered, but the indications are that the land in question has been sub-divided and parts of it have been sold off by the first defendant.
    
31. This alone, in my view, should entitle the plaintiff to some Order to restrain the first defendant or her servants and/or agents and/or employees from dissipating, transferring, selling, dealing with, charging, mortgaging, assigning or disposing off the three properties in question which are all now comprised in Certificates of Title 22074, 22079 and 21906.

32. Accordingly, applying the equitable principles of Lord Diplock in American Cyanamid Co. v Ethicon Ltd [1975] UKHL 1; [1975] AC 396, I have considered the following questions:
    
    • (i) whether there is a serious question to be tried,
    • (ii) whether damages would be adequate remedy; and
    • (iii) whether the balance of convenience favours the grant or the refusal of an interlocutory injunction.
      
33. My answers follow. Yes, there are serious issues to be tried. At the foremost, is the plaintiff’s entitlement to share in the estate of her late father, Shankaran. There is also the issue which remains in the related action before the Master – and which is conceded to by the defendant’s solicitors as follows:
    

“....the only pending issue in that action is the validity of the De Bonis Non which is annexed as “KC-2” in Kunal Chand’s Affidavit filed on 19^th November, 2021.

34. I am of the view that damages would not be an adequate remedy in this case as the land in question is part of the inheritance which Leela has been given by her late father and is unique in that sense. It must hold some sentimental value to Leela.
    
35. I am also of the view that the balance of convenience favours the granting of an interim injunction.
    

ORDERS

1. The first defendant or her servants and/or agents and/or employees are hereby restrained from dissipating, transferring, selling, dealing with, charging, mortgaging, assigning or disposing off the three properties in question which are all now comprised in Certificates of Title 22074, 22079 and 21906 until further orders of this Court.
   
2. The Registrar of Titles is hereby restrained from registering any dealing, or charge or instrument pertaining to the three properties in question which are all now comprised in Certificates of Title 22074, 22079 and 21906 until further orders of this Court
   
3. The first defendant has succeeded in their application and are entitled to their costs which I summarily assess at $1,500 (one thousand five hundred dollars) only.
   
4. The first defendant is at liberty to file an application to dissolve the interim injunctive orders granted above.
   

......................

Anare Tuilevuka

JUDGE

Lautoka