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Singh v Australia and New Zealand Banking Group [1991] FJHC 48; Hba0012j.91s (15 August 1991)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CIVIL APPEAL NO. 12 OF 1991

Between:

1. PRAKASH SINGH
s/o Dharam Singh
2. GURMEJ KUAR SINGH
d/o Dharsan Singh
Appellants

- and -

AUSTRALIA AND NEW ZEALAND
BANKING GROUP
Respondent

Appellants in Person
Mr. S. Parshotam for the Respondent

JUDGMENT

This is an appeal against the judgment of the Suva Magistrate Court dismissing the appellant's civil action on the ground that the appellant's had failed to prove their case.

The appellants who appeared in person in the court below and at the hearing of the appeal, have filed in person numerous grounds of appeal but only 2 appears to have been pursued at the hearing of the appeal and in their written submissions to the Court.

The plaintiffs case as pleaded in their particulars of claim filed in the Magistrate Court seeks restitution of a sum of $4,600 paid out of a fixed deposit account maintained in the respondent bank and which the plaintiff's averred was negligently paid out by the respondent bank without first sighting a grant of probate.

The defendant bank on the other hand asserted that the money had been released on the express written authority of the plaintiff's themselves. The authority was first produced to the plaintiff under cross-examination by learned counsel for the bank and became Exhibit (X).

The meaning and 'legal status' of Exhibit (X) was of paramount importance to the outcome of the case before the learned trial magistrate who observed, after dealing with the evidence relating to it without examining it's 'legal status':

"The Document Exhibit (X) completely demolishes the Plaintiff's case ......"

On appeal however the appellants vigorously argued that the authority in question was not a 'proper document' (by which I understood them to mean that it was not a document they were then empowered by law to make) and in any event the authority itself required the respondent bank to release the money only upon sighting a grant of probate.

Learned counsel for the respondent bank countered that the bank relying upon the written authority of the appellants had taken a 'calculated risk' in paying out the money without first sighting a grant of probate. Subsequent events however and in particular, the grant of probate in the appellants own names retrospectively validated their authority and with it the bank's payment.

As to the meaning of the authority counsel submitted that it was merely a direction to the bank to pay out the money and did not in clear or express terms require the bank to first sight a valid grant of probate.

The 'authority' which was before the learned trial magistrate is dated the 29th of May 1985 and was addressed to the Manager of the respondent bank. It is signed by the appellants and witnessed by their then solicitor Mr. A.J. Singh and reads as follows:

"We PRAKASH SINGH (father's name Dharam Singh) and GURMEJ SINGH (father's name Darshan Singh) both of Veisari, Lami the lawful Executors of the Estate of Dharam Singh hereby authorise you to pay GOVIND & COMPANY, Solicitors from the account of Dharam Singh the sum of $4,000.00 (FOUR THOUSAND DOLLARS) being fees for Civil Action No. 10 of 1984 and fees for extracting Probate.

Payment of the said sum by you will be a full discharge to you. "

In my considered view the wording of the authority clearly supports the learned trial magistrate's conclusions in the matter and although no case-law was cited as to the 'legal status' of the authority there are several of assistance.

In Meyappa Chetty v. Supramanian Chetty (1916) 1 AC. 603 a decision of the Privy Council it was said of the origin of an executor's power at pp. 608 and 609:

"It is quite clear that an executor derives his title and authority from the will of his testator and not from any grant of probate. The personal property of the testator, including all rights of action, vests in him upon the testator's death, and the consequence is that he can institute an action in the character of executor before he proves the will. He cannot, it is true, obtain a decree before probate, but this is not because his title depends on probate, but because the production of probate is the only way in which, by the rules of the Court, he is allowed to prove his title ..... The law on the point is well settled."

(The underlining is mine)

Furthermore in Whitehead v. Taylor (1839) 50 RR 385 in which objection was raised that an authority to distrain had been revoked by the testator's death and his executrix had no power to distrain before probate was granted. Lord Denman in rejecting both objections said at p. 387:

"1. The rent was due to the estate; and the law knows no interval between the testator's death and the vesting of the right in his representative. As soon as he obtains probate, his right is considered as accruing from that period.

2. The executrix could ratify the act of the defendant, as testator's bailiff, though his authority was at an end ..... Such ratification has been held to legalise a past act, even when given after action brought. "
   

From the above it is clear that the plaintiffs as executors named in a will had the necessary power from the death of the testator and prior to obtaining probate, to authorise the defendant bank to pay out funds from the testator's fixed deposit to the plaintiffs' then solicitors for the purpose inter alia of extracting or obtaining probate of the testator's will.

Furthermore upon obtaining probate of the will in March 1986 the plaintiffs by their failure to pursue any action against the defendant bank for no less than 4 1/2 years thereafter must be considered to have ratified the payment by the bank on the basis of the written authority they gave and which authority they were quite entitled to give prior to obtaining probate.

Accordingly the appeal is dismissed with costs to the respondent bank.

(D.V. Fatiaki)
JUDGE

At Suva,
15th August, 1991.

HBA0012J.91S