IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)

Civil Appeal Case No. 10 of 2014

IN THE MATTER OF AN APPLICATION FOR LETTERS OF ADMINISTRATION IN THE ESTATE OF:

BARNABE MELTEKLESI
Deceased

BETWEEN:

ENOCK MELTESALE AND PIERRE MELTESALE
Appellants

AND:

ROCKY MELTEKLESI
Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice John von Doussa
Hon. Justice Raynor Asher 
Hon. Justice Daniel Fatiaki
Hon. Justice Oliver Saksak
Hon. Justice Stephen Harrop
Hon. Justice Mary Sey
Hon. Justice Dudley Aru

Appearances: Eric Molbaleh and John Taiva Wingy for the Appellants
John Timakata for the Respondent

Date of Hearing: Thursday 17 July, 2014
Date of Judgment: Friday 25 July, 2014

REASONS FOR DECISION

Introduction

1.	Barnabe Melteklesi ("Barnabe") died intestate on 17 July 2006. On 20 October 2006 the Supreme Court granted letters of administration of his estate to the respondent, Rocky Melteklesi ("Rocky") who was Barnabe's nephew (son of his sister) and, it appears, his customarily adopted son. The sworn value of the estate was less than Vt2.5 million. It appears that the two main assets were leasehold titles in Anabrou, Port Vila, 11/OG21/050 and 11/OG32/074.

2.	Barnabe was married twice. His first marriage to Janet Raymond ended with her death on 22 May 1990 and produced no children. His second marriage was to Sabine Malsoklay ("Sabine") in 1992. She had four children from her previous marriage to Robin Meltesale (Barnabe's half brother), namely the two appellants Enock and Pierre Meltesale, their brother Thai and sister Claudine. Her marriage to Barnabe produced no children. However she did have three daughters (Hermine, Valentine and Nazaria Meltesale) after Robin Meltesale died and before she married Barnabe.
 
3.	Sabine died on 3 March 2007. Accordingly, both at the time of Barnabe's death and at the time of the Court order she was alive. 

4.	The appellants say they and Sabine were not aware of the application for administration made by Rocky to the Supreme Court nor of the grant of it, until 2009 when Rocky sold title 11/OG32/074, on which they were living, to Ulysse Sileye. They were forced to leave the property and their dwellings were removed. Mr Sileye has now built a house on it. The appellants add that Rocky chased away other relatives who were living on the land in title 11/OG21/050. 

5.	The appellants have now applied for leave to appeal out of time against the grant of letters of administration to Rocky. They explain why they have not taken any steps to challenge his appointment prior to now. In brief, the reasons are ignorance of his appointment prior to 2009 and latterly their inability through lack of finance to engage a lawyer.

6.	When this appeal was first called on 14 July 2014, the Court pointed out to Mr Molbaleh that there was no proof of personal service on Rocky. The sworn statement of service filed attested to service on his son which, in the absence of an order for substituted service, clearly does not amount to proper (personal) service on Rocky. Despite that, at the hearing of this appeal on 17 July Mr Timakata appeared for Rocky, although he had only just received the appellant's materials. 

7.	The appellants dispute that Rocky was properly adopted by Barnabe. There is however a letter dated 2 August 2006 which may well have been put before the Supreme Court in October 2006 (that remains uncertain because the probate file was apparently lost in the Courthouse fire in 2007) in which Rocky's parents Ephrem and Emilienne Melvirlani certified that Barnabe had customarily adopted their son Rocky since birth. Rocky was born in 1953.

Discussion

8.	At the hearing of the appeal, after discussion between the Court and Mr Molbaleh, the appellants accepted that the application for leave to appeal against Rocky's appointment was misconceived. That is because the information before the Court suggests that Rocky has proceeded to administer the estate and has largely if not totally completed his duty of getting in the assets and selling them. What the appellants are really complaining about is that he has not thereafter distributed the proceeds of sale in a manner consistent with his obligations under regulation 6 of the Succession, Probate and Administration Regulations 1972 ("the Queen's Regulation"). Mr Molbaleh accepted after this was pointed out by the Court that there is no practical point in changing the identity of the administrator after the administration has been completed. Rather, the appellants ought to be instigating an enquiry by the Supreme Court as to whether that administration has been properly undertaken.

9.	On the face of it, and without Rocky having yet had any opportunity to comment, it appears that the estate may not have been properly administered. 

10.	Given Sabine's survival of Barnabe, and Barnabe's parents pre-deceasing him, she should have received his personal chattels, the sum of $10,000 and, depending on whether Rocky is properly treated as Barnabe's son for succession purposes, either one-third or all of of his residuary estate. This much is clear from regulations 6(1)(a), (b),(c) and (g). Following Sabine's death the appellants, their two siblings and their three half sisters ought to have received these assets or the proceeds of their sale.

11.	 If Rocky were legitimately adopted then he would be entitled to a share of two- thirds of the residuary estate. However there is sworn evidence before the Court indicating that he may have received all of it. Enock Meltesale says that the sale of the property to Mr Sileye resulted in Rocky receiving all of the proceeds of sale. That of course would be appropriate immediately following the sale as he would hold it on trust for the beneficiaries but then he was required under regulation 6 to distribute the residue in accordance with the steps set out in that regulation. However, it appears that Sabine's seven children have received nothing from Barnabe's estate.
 
12.	Mr Sileye was informed of the appeal by letter but decided, according to his letter to Mr Molbaleh's firm received on 10 July, that he was not going to attend because, to put it in legal terms, he considers he is a bona fide purchaser for value. 

13.	 It is unclear from the evidence put before the Court whether following the chasing off of the relatives from title 11/OG21/050 there has been any sale of that land. 

14.	As already noted, Mr Molbaleh accepted that the application for leave to appeal out of time had to be dismissed because the proposed appeal was misconceived. Indeed, even if the administration of the estate is incomplete (which may be the case if title 11/OG21/050 has not been sold), concerns about the propriety of the administrator's actions are not appropriately dealt with by an appeal to this Court against the original grant of administration.

15.	The Supreme Court has available to it a wide range of powers which may address such concerns, whether on application by a person interested in the estate or of its own motion.

16.	 Under rule 4.2 of the Probate and Administration Rules, the Court may at any time order a personal representative to file accounts. This ties in with a solemn promise made by an applicant for administration when applying. Form 4, the sworn statement in support of an application for administration which is required by rule 2.3(1)(d), contains paragraph 9: "If the Court grants administration to me I will administer the estate according to law and I will give a true account of my administration to the court if it asks me to".

17.	In addition, the Court may, under regulation 24 of the Queen's Regulation, at any time on the application of any person interested in the estate, or of its own motion on the report of the Registrar, revoke the administration already granted. 

Result

18.	Mr Molbaleh accepted that the appropriate course, as suggested by the Court, was for this Court to refer the file to the Supreme Court so that a Judge may make an order under rule 4.2 of the Probate and Administration Rules directing Rocky to file accounts in respect of Barnabe's estate. The mandatory requirements for such accounts are set out in rule 4.3. 

19.	It would then be a matter for Mr Molbaleh to keep in touch with the Supreme Court as to progress in that regard and depending on the contents of the accounts to decide what if any action his clients may wish to take.

20.	The Court did not consider that any award for costs was appropriate and Mr Timakata accepted that, having not spent much time on the case after being instructed so recently. 

21.	The Court urged Mr Molbaleh and Mr Timakata to discuss this situation so as to see whether a satisfactory resolution might be reached without formal steps being taken. 

22.	The formal orders of the Court were:

1)	The application for leave to appeal out of time is dismissed.
2)	There is no order for costs.
3)	The Court of Appeal file is referred to the Chief Registrar of the Supreme Court for reference to a single Judge of that Court with a view to an order being made by the Supreme Court under rule 4.2 that Rocky file accounts detailing his administration of this estate.

Dated at Port Vila this 25th day of July, 2014

ON BEHALF OF THE COURT

_______________________
Chief Justice Vincent Lunabek