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Singh v Singh [2023] FJHC 614; HBC01.2022 (29 August 2023)

IN THE HIGH COURT OF FIJI

AT LAUTOKA

CIVIL JURISDICTION

HBC 01 of 2022

BETWEEN :

RICHARD DHARAM SINGH of Lomolomo, Lautoka, Businessman, USHA KIRAN GAJI of

America, SIMILA KIRAN LAL of Nausori and GYAN SINGH HOLAND of Brisbane, Australia.

PLAINTIFFS

A N D :

PHILIP JAGDISHWAR SINGH of Lomolomo, Lautoka, Businessman, Fiji Farmer and

Administrator of the Estate of Ram Sukh.

DEFENDANT

Appearances: Ms. Radhia for the Plaintiffs
Ms. Sadrata for the Defendant
Date of Hearing: 07 July 2023
Date of Ruling: 29 August 2023

R U L I N G

1. The plaintiffs in this case all hold a beneficial interest in the estate of the late Ram Sukh. Ram Sukh was the founder of a company called Nadi General Transport Company (“NGTC”). NGTC has operated a bus transport service for the public. The company holds several bus route licenses issued by the Land Transport Authority (“LTA”). Apart from the bus service business, the estate of Ram Sukh also holds some real property. For many years, the defendant, Phillip Jagdishwar Singh (“Phillip”) was the personal representative of the Ram Sukh estate.
   
2. On 04 January 2022, the plaintiffs filed an Originating Summons seeking an Order that Phillip be removed as Administrator of the estate of Ram Sukh and that the first plaintiff, Richard Dharam Singh (“Richard”) be appointed in Phillip’s place.
   
3. On the same day, 04 January 2022, the plaintiffs also filed an ex-parte Notice of Motion seeking Orders to restrain that Phillip and/or his assignees or agents from:
   

(i) interfering with the dealings of the estate

(ii) disposing of any estate property without the prior consent of the beneficiaries until the determination of the matter

4. The plaintiffs also sought an Order that the estate accounts be audited by an independent chartered accountant. I did hear the ex-parte application on 04 January 2022 and granted Orders in Terms.
   
5. On 21 January 2022, after I heard the Motion inter-partes, and by the consent of the parties, I ordered that Richard be appointed co-signatory of all estate accounts with Phillip until the final determination of the matter.
   
6. Then, on 26 May 2022, Siddiq Koya Lawyers filed another Motion seeking Orders that:
   

(i) Richard be appointed sole signatory of the estate cheques

(ii) the Deputy Registrar execute all required documents to authorize Richard’s appointment as such

(iii) Richard file a supplementary affidavit annexing all cheques, invoices and receipts pertaining to the estate accounts on the 30^th day of each month until the determination of this matter

7. On 27 May 2022, I granted Order in Terms as above. Then, on 29 July 2022, Phillip filed an affidavit sworn on that same day. He annexes to this affidavit a medical report from Health Masters Pte Limited to confirm that he is stable and well and that he is capable of signing a cheque.
   
8. On 01 July 2022, Richard filed a Supplementary Affidavit annexing all cheques, invoices and receipts for the bus company/estate for the period 27 May 2022 till 29 June 2022. On 08 July 2022, I granted an Order to extend the Order of 27 May 2022 until further Orders, while reserving Phillip’s right to apply to be the sole signatory.
   
9. On 16 August 2022, I granted an Order to reappoint Phillip as co-signatory and directed Richard to file and serve a supplementary affidavit annexing the Auditor’s Report within 60 days. On 14 October 2022, Richard filed a Supplementary Affidavit annexing a Report dated 28 September 2022 of PKF Chartered Accountants.
   
10. On 14 April 2023, the plaintiffs filed an ex-parte Notice of Motion seeking inter-alia, an Order that Richard be appointed interim administrator and that Phillip be removed as co-signatory of the estate’s Bank Accounts until the determination of this matter. The main reasons for this application was because of an urgency which had arisen and which compromised the estate’s position. Apparently, the Fiji Revenue & Customs Services had made an assessment against the estate’s company (NGTC) in excess of $200,000. Because of that assessment, the FRCS had written to the LTA not to renew NGTC’s licenses. As Richard deposes, the FRCS statement pertained to a TIN number belonging to the estate’s bus company (NGTC). However, the company named in the statement was that of a company called Nadi General Transport (“NGT”). NGT is a shadow company set up Phillip in 2010.
    
11. On 17 April 2023, I ordered inter alia as follows:
    

(i) that Richard be appointed Interim Administrator of the estate

(ii) that Phillip be removed as co-signatory of the estate Bank Accounts

(iii) that Richard be allowed to open a bank account in the name of the Estate of Ram Sukh

12. I also made several Orders directing Phillip to provide the following records:
    
    8. all records pertaining to the sale of the Estate’s previously owned iTaukei Land Trust Board Lease No: 36110 and all agreements for occupation of the said property after the sale.
       
    9. all records based on which the annual financials for the Estate of Ram Sukh were filed in the period of 1997 till 2018 with proper acknowledgment stamp and confirmation of filing from the Fiji Revenue and Customs Services.
       
    10. all records for financial records for the latter two entities registered by him in his personal capacity with similar names of the Estate’s business particularly Nadi General Transport (Entity Number. RCBS201014556) and Nadi General (Lautoka) Limited (Entity Number: RCBS2011L3950).
        
    11. all bank statements for Westpac Banking Corporation Lautoka Branch Account No: 9807163101 since the opening of this bank account till date.
        
    12. copies of loan(s) offer letter/agreement and guarantee documents between himself and the Fiji Development Bank for loan taken under the name of the Estate of Ram Sukh.
        
    13. copies of loan offer letter/agreement guarantee documents and bill of sale in respect of loan(s) taken from Merchant Finance Limited by him as the Administrator under the name of the Estate of Ram Sukh.
        
13. Phillip has not complied with any of these to this day.
    
14. At this time, what I have to consider is whether Richard should be appointed administrator of the estate of Ram Sukh and whether Phillip should be removed as administrator. In her submissions, Ms. Radhia highlights the following:
    

(i) Phillip had registered two shadow companies in 2010 and 2011. The 2010 company, in particular is of interest in this case as it appears to be the main one of the two which is still active and which was incorporated with a name similar to NGTC. As I have said above, this 2010 company is NGT. NGT appears to be a shadow company which Phillip had incorporated and into which he would siphon assets and resources from the estate company namely NGTC.

(ii) there are at least two instances of siphoning activity from NGTC into NGT committed by Phillip. The first concerns an i-TLTB lease No. 36110. Here, Phillip deposes in one of his affidavits that he owns the lease personally, and yet, lists the same lease as an asset of NGTC in the company’s financials.

(iii) secondly, a Valuation Report prepared by Professional Valuation Limited states that all buses belong to NGT. The truth is that these buses were bought with estate funds and should belong to NGTC. In Richard’s affidavit sworn on 14 April 2023, he deposes inter alia that the Valuation Report discloses that a particular Bank loan was applied for and obtained for the purpose of purchasing two buses registration numbers NGT 2060 and JS 260. And yet, these buses are listed as belonging to Phillip’s shadow company NGT.

(iv) Phillip has not been able to provide a proper account of his dealings on behalf of the estate. He had obtained huge loans from the Fiji Development Bank and from the Merchant Finance Company Limited. However, where that money went remains unaccounted for to this day. The documents suggest that Phillip obtained the loans in his capacity as administrator of the estate of Ram Sukh. However, the monies borrowed were never applied toward the estate company, NGTC or to any other venture which benefitted the company. It is suspected that the monies were all applied towards Phillip’s shadow company NGT or to Phillip’s personal affairs.

(v) at some point, Phillip had sold i-TLTB Lease No. 36110. The proceeds of that sale remain unaccounted for. At the moment, the estate/NGTC is renting on the same property (and uses this as the bus depot for NGTC) from the very person who had bought the lease from Phillip.

(vi) the Annual Financial Reports from the years 1997 to 2018 remain outstanding

15. Apart from the above, Phillip was totally uncooperative with the Auditors who were appointed pursuant to an Order of this Court. The Auditors Report says that a proper audit has been impossible because Phillip either simply refused to produce the documents requested by the auditors or did not keep any proper documentation of all his dealings.
    
16. I do note that some costs ordered previously against Phillip by this Court remain unpaid to this day. His counsel tells this Court that he simply has no money.
    
17. I also note that Phillip is very sickly. He is wheelchair bound. He uses his sickness for his convenience. At times, his condition is used as an excuse for delay and for his inability to attend to certain estate business. At other times, he asserts that he is recovering or has recovered and should be restored as a co-signatory of the estate accounts.
    
18. In a related matter, Phillip is being sued by a beneficiary of the estate who had sued him for her share of the estate. Phillip had settled the matter out of Court and consent orders were entered based on their settlement, Recently, the same beneficiary has instituted proceedings against Phillip as he has failed to honour the said agreement and the related consent orders.
    
19. Section 41 of the Succession Probate and Administration Act provides:

41.(1) The court may make such order with reference to any question arising in respect of any will or administration, or with reference to the distribution or application of any real or personal estate which an executor or administrator may have in hand, or as to the residue of the estate, as the circumstances of the case may require.

(2) Such order shall bind all persons whether sui juris or not.

(3) No final order for distribution shall be made except upon notice to all the parties interested, or as the court may direct.

20. In section 41 is broad enough to give power to the Court to make Orders for the removal of an administrator. In any event, the removal of an administrator amounts to a revocation of his appointment. This is covered under section 23 of the same Act.
    
21. While section 35 of the Succession Probate and Administration Act deals with the removal of executor-trustees (see Nizam v Shah [2014] FJHC 218; HBC47.2009 (28 March 2014)); Kishore v Wati [2018] FJHC 402; HPP50.2015 (4 May 2018); Mala v Devi [2019] FJHC 689; HBC163.2014 (12 July 2019); Rajalingam v Rajalingam [2015] FJHC 319; HPP35.2013 (30 April 2015), section 23 deals with the revocation of the appointment of an administrator.
    
22. Section 23 provides:
    

23. The court may, at any time, upon the application of any person interested in the estate or of its own motion on the report of the Registrar-

(a) revoke the administration already granted; or

(b) order the administrator to execute a further or additional bond in such sum, with or without sureties, as the court may direct; and upon default may remove the administrator and appoint another in his place, with power to sue or be sued upon any contract made by the removed administrator; or

(c) order that the liability of any surety to any administration bond be reduced to such amount as the court in the circumstances of the case thinks reasonable.

23. In some jurisdictions, the revocation provision is usually engaged to deal with such situations as, for example, the revocation of the appointment of an administrator after it is discovered that the deceased actually did not die intestate but had left a Will. Having said that, I do not see how section 23 cannot also be applied in a situation such as this to remove an administrator who has simply failed to administer the estate properly or has committed acts or omissions which compromise the interests of the estate and of the beneficiaries. In my view, the court may act on the power under section 23 to revoke the administration already granted in a situation such as the one present where the administrator has failed to keep account or account properly or has demonstrably carried out acts and/or omissions contrary to the interests of the estate. Impliedly, where the Court has power to revoke, the court must also have powers to appoint a substitute or a replacement.
    
24. In addition to all the above, the court also has an inherent jurisdiction in equity is derived from the Court's general supervisory powers relating to the supervision of trusts for the welfare of beneficiaries (see Letterstedt v Broers (1884) 9 App Cas 371; Hunter v Hunter [1938] NZLR 520; Georgina Kain & Ors v Hutton & Ors CA 246/01).
    
25. The above has been applied in Fiji as the guiding principle for the removal of an executor trustee of an estate and the appointment of new ones to replace them – in appropriate circumstances (see Nizam v Shah [2014] FJHC 218; HBC47.2009 (28 March 2014)); Kishore v Wati [2018] FJHC 402; HPP50.2015 (4 May 2018); Mala v Devi [2019] FJHC 689; HBC163.2014 (12 July 2019); Rajalingam v Rajalingam [2015] FJHC 319; HPP35.2013 (30 April 2015)).
    
26. I do not see how the same should not be applied as the source of a power in equity to remove an administrator of an estate – for good cause – and replacing him or her with a new one.
    
27. In the final, I grant Order in Terms of the Plaintiffs’ Originating Summons filed on 04 January 2022. As for costs, I summarily assess this at $2,000-00 against Phillip personally and in favour of the plaintiffs.
    

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Anare Tuilevuka

JUDGE

Lautoka

29 August 2023