IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION

CAVEAT NO. 29 OF 1993
PROBATE NO. 29863

IN THE ESTATE OF SAKINA
daughter of Jumman late of Bocalevu, Labasa, Fiji,
Widow, Deceased, Testate.

Between:

HAKIMAN BI
d/o Umar
Plaintiff

- and -

1. MOHAMMED HABIL
2. MOHAMMED HASSAN
sons of Umar
Defendants

Mr. M. Sadiq for Plaintiff
Mr. A. Sen for Defendants

DECISION

This is the Plaintiff's Summons seeking an order for the removal of caveat No. 29 of 1993 lodged by the defendants on 27 October 1993 and for a further order that Probate herein be granted to the Plaintiff.

This application is made under section 47 of the SUCCESSION, PROBATE AND ADMINISTRATION ACT CAP 60 (LAWS OF FIJI Vol. 4) which provides as follows:-

"47.	(1) In every case in which a caveat is lodged, the court may, upon application by the person applying for probate or administration, or for the sealing of any probate or letters of administration, as the case may be, remove the same.

(2)	Every such application shall be served on the caveator by delivering a copy of the same at the address mentioned in his caveat.

(3)	Such application may be heard and order made upon affidavit or oral evidence, or as the court may direct."

The facts briefly are: The Plaintiff is the daughter of the deceased SAKINA and the defendants are her brothers. Under her alleged Will dated 28 July 1993 the deceased who died on 10 September 1993 at Labasa appointed the Plaintiff the sole executrix and trustee of her estate. The Plaintiff made application for Probate (Probate No. 29863). The defendants lodged a caveat No. 29 of 1993 forbidding the grant of Probate and on 15 December 1993 the solicitors for the defendants were served with a Warning to Caveator. The defendants did not file appearance in the form required under the Probate Rules. The appearance filed by the defendants albeit out of time was a straight out appearance without setting forth their interests in the estate.

In reply to the Plaintiff's affidavit in the application before me the defendants in their affidavit say, inter alia, that they dispute the alleged Will dated 28 July 1993 on the grounds that at the time of execution of the alleged Will their mother "did not know and approve the contents thereof or alternatively the thumb print is not her own."

They are asking that the Caveat be extended until "the proof of the alleged Will".

Counsel made oral submissions before me.

Mr. Sadiq says that Warning to Caveator was served on 15 December 1993 and Mr. Sen filed an Appearance on 28 January 1994 which was beyond the 8 days required but it failed to show the defendants' interest in the estate when he filed the appearance further to the Warning to Caveator.

Mr. Sen explaining the delay in filing appearance said that legal vacation intervened and his city agent also delayed in filing the document. Now that the defendants have disclosed their 'interest' he is asking the court to exercise its discretion notwithstanding the departure from the rules as to filing of appearance out of time.

The sequence of events in so far as it is material to the issue before me is as hereunder.

The Plaintiff had made an application for grant of Probate of the said Will in the High Court at Suva against which the defendants lodged a caveat. A warning to Caveator was issued and served on the defendants on 15 December 1993 requiring them to enter an appearance and set out the contrary interest they claimed to have in the estate of the deceased.

After the present Summons for the removal of caveat and grant of Probate was filed on 17 January 1994, then on 28 January 1994 the defendants filed the said Appearance without stating what interest they have in the estate.

Then on 4 February 1994 the defendants filed an Affidavit in Reply to the Plaintiff's Affidavit in the present application and stated, inter alia,

"7. THAT we wish to contest the validity of the alleged Will of our mother dated the 28th day of July, 1993 on the grounds that at the time of execution of the alleged will our mother did not know and approve the contents thereof or alternatively the thumb print is not her own.

NATURE OF CASE

That our mother was illiterate and she did not do any matters as important as marking the will with our consultation.

8. THAT we put Hakiman to proof that the deceased knew and approved of the contents of the said will.

9. THAT the deceased at the time of her death was over the age of 60 years old.

10. THAT at the time of her death our mother was suffering from diabetes, High Blood Pressure, Ulcer and several other sickness.

11. IN addition our mother was suffering from amnesia.

12. THAT before the dealt of our mother had promised us that all our estate was to go to Macuata Muslim League.

13. THAT about 3 months before her death our mother had meeting with the executive members of Macuata Muslim League at that time she had promised to give all her properties to the leagues.

14. THAT if our mother had made a will she would have informed us of the contents.

15. WE therefore pray that the Caveat by extended until the proof of the alleged will."

On the affidavit evidence before me and on the oral submissions made by counsel I find, inter alia, that the defendants have disclosed their "interest" in the estate although they did not do so in the form required and at the relevant time, namely, when the warning to caveator was served on them under the Probate Rules; and when they did file the appearance it was beyond the eight days within which it should have been entered. Now in their reply to the Plaintiff's affidavit on the present application they are asking the extension of caveat until the "proof of the alleged Will" after disclosing their 'interest.' 

The 'Warning' gives notice to the caveator to enter an appearance within eight days inclusive of the day of service, setting out his interest.

It is only when no appearance is entered, then the application for grant will proceed upon filing an affidavit showing that the warning was duly served and that he has not been served with any summons by the caveator.

But in this case appearance has been entered albeit out of time and without disclosing 'interest'. However, this interest has been disclosed later as stated hereinbefore.

In these circumstances, it can be accepted that 'interest' has been disclosed and the requirement pertaining to Warning to Caveator has been fulfilled. This therefore means that contentious proceedings have begun and as a consequence no grant can issue without an order.

In TRISTRAM & COOTE PROBATE PRACTICE 20th Ed - 1955 at p.469 it is stated that: "if the caveator desires to enter an appearance after the expiration of the time stated in the warning for so doing, he may do so provided that no step in default has been taken". Bearing this statement in mind, in this case, apart from the present application for removal of caveat in my view "no step in default has been taken". Even if this application can be regarded as a 'step', no purpose will be served in penalising the defendant for not complying with the rules in time.

The Court has a very wide inherent jurisdiction to extend time. In the exercise of that discretion I accept the contrary 'interest' required to be shown pursuant to warning to Caveator although filed out of time and allow caveat to remain. This is done to avoid injustice to the parties. In THE SUPREME COURT PRACTICE 1979 Vol 1 at p.16 it is stated:

"The object of the rule is to give the Court a discretion to extend time with a view to the avoidance of injustice to the parties (Schafer v. Blyth, [1920] 3 K.B. p. 143; Saunders v. Pawley, supra, at p. 237). 'When an irreparable mischief would be done by acceding to a tardy application, it being a departure from the ordinary practice, the person who has failed to act within the proper time ought to be the sufferer, but in other cases the objection of lateness ought not to be listened to and any injury caused by delay may be compensated for by the payment of costs' (per Bramwell, L.J., in Atwood v. Chichester, 3 Q. B. D. p. 723, C.A.)" 

In the exercise of my discretion in the circumstances of this case and bearing in mind Mr. Sen's explanation regarding delay in filing appearance in proper form and out of time, I find the following passage apt from the judgment of KIRBY P in GSA INDUSTRIES PTY LTD v NT GAS LTD 1990 24 NSWLR p.710 at p.714:

"It is essential in each case that the considerations of justice should be borne in mind. A degree of flexibility should be preserved to take into account the human errors and mistakes which sometimes lie in the path of litigation. Even Homer nodded. In the event that, seeking to comply with his Honour's order to supply statements by 4 pm tomorrow, the claimant faces difficulty in achieving a full compliance, it would be open to the claimant to apply again to his Honour for further variation of that order. What his Honour would then do would be a matter for him. But he would doubtless bear in mind what was said long ago 'the rules must be the servant not the master of the Court'; Clune v Watson (1882) Tarl 75; cf Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104 at 108."

I also refer to the following statement of ATKIN L.J. in MAXWELL v KEUN (1928 1 K.B. 645 at 653 and quoted in GSA INDUSTRIES PTY LTD at p.715 (supra) by SAMUELS JA:

"The result of this seems to me to be that in the exercise of a proper judicial discretion no judge ought to make such an order as would defeat the rights of a party and destroy them all together, unless he is satisfied that he [that is the defeated party] has been guilty of such conduct that justice can only properly be done to the other party by coming to that conclusion."

At the conclusion of their submissions counsel stated that in the event the Court accepted there was sufficient 'interest' shown in response to Warning to Caveator, they would agree to treat the Affidavits filed herein as pleadings with liberty to adduce oral evidence and the hearing to take place at Labasa as parties reside there.

To conclude, for the reasons given hereabove, I allow the defendants' caveat No. 29/93 to remain until further order and I do so order.

The Plaintiff's application is therefore dismissed but I award costs against the defendants for their non-compliance with the Rules and thus giving rise to unnecessary delays in the progress of the action. Further, by consent it is ordered that the Affidavits filed herein shall stand as pleadings with liberty to add thereto or to apply for particulars thereof and to adduce oral evidence at the trial of this action such trial to take place at High Court, Labasa on a date to be set down by the Deputy Registrar.

D. Pathik
Judge
At Suva
12 October 1994
HPC0029D.93S