| Fiji Islands - Colonial Fiji Life Ltd v Waqa - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction
CIVIL ACTION NO. 0335 OF 2000
Between :
COLONIAL FIJI LIFE LTD.
Plaintiff
- and -
ASERI WAQA and NANISE WAQA
ULAIASI RADOKE and LUSIANA MAIMALOLO
Defendants
Mr. S. Parshotam for the Plaintiff
Ms. R.S. Singh for the 1st Defendants
Mr. J. Flower for the 2nd Defendants
JUDGMENT
This interpleader summons concerns competing claims to the proceeds of a life insurance policy issued by the plaintiff company on
24th June 1996 on the life of Watisoni Waqa and `payable on the Life Insured surviving to 04/07/2026 or on prior death’ (`the said policy’).
The brief and tragic circumstances giving rise to the claims may be summarised as follows. At the time of the issuance of the said
policy Watisoni Waqa (hereafter `Watisoni’) had been married to Elenoa Katarina (hereafter `Elenoa’) for barely a year and, it is common ground, had nominated her pursuant to Section 83 of the Insurance Act (Cap.217) to `receive the money in the event of his death’. Tragically on 10th March 2000 both Watisoni and Elenoa died from injuries they sustained when the car they were travelling in was involved in an accident on the Kings Road at Nakorokula, Ra.
The first defendants (which wrongly includes the deceased mother of Watisoni) claim the proceeds of the said policy as the natural parents and administrators of the estate of Watisoni and the second defendants claim as the natural surviving parents of Elenoa.
The basis upon which the first defendants claim to be entitled to receive the proceeds is deposed in the affidavit of Aseri Waqa and is to the effect that during Watisoni’s life time he had assigned the said policy to the plaintiff company to secure a loan he took from the plaintiff company and `by virtue of Section 82(4) (sic) of the Insurance Act 1976 [now replaced by Section 152(4) (sic) of the Insurance Act 1998] any transfer or assignment of policy cancelled the nomination on the policy’ and `any monies payable under the said policy now forms part of the Estate of Watisoni Waqa’.
The second defendants for their part rely on Section 22 of the Property Law Act (Cap.130) as applying to the circumstances of the case so as to entitle the estate of their daughter Elenoa (as the presumed survivor of Watisoni) to receive the proceeds of the said policy. Their deposed view is that `the disposal of the (the proceeds of the said policy) would appear to be governed entirely by the Succession, Probate and Administration Act (Cap.60) in accordance with Section 6 thereof’.
Plainly in order for the first defendant’s to succeed in their claim they must establish that Elenoa’s nomination had been effectively cancelled in terms of Section 152(7) of the Insurance Act 1998. That section however not only requires the assignment to be made `in accordance with Section 147', but additionally, the assignment must not be caught under either limb of Subsection (8) to which Section 152(7) is made subject.
As to the six (6) requirements of Section 147 the entire evidence in support thereof is provided by Aseri Waqa who deposed :
`... that the policy in question was assigned to Colonial Mutual Life Assurance on the 28th day of August 1996 as security for a loan taken by the said Watisoni Waqa (deceased). The said debt was paid off on the 4th of April 2000 thus discharging the assignment on the said policy.’
In my view notwithstanding that the evidence is undisputed, nevertheless, it falls well short of satisfying the mandatory requirements
of Section 147 in order to render the assignment `effective’.
Even if one was to assume that the assignment of the said policy was `effective’ it is still necessary to consider whether or not the nomination is saved by either limb of Section 152(8) which provides :
`If either -
(a) a policy has been assigned to an insurer in consideration of a loan granted on the security of the policy and the value of the loan
is less than the surrender value of the policy ; or
(b) an insurer has re-assigned a policy on repayment of a loan granted on security of the policy,
a nomination must not be cancelled but only affects the rights of the nominee to the extent of the insurer’s interest in the policy.’
Plainly the effect of the above subsection is to save a nomination (i) where monies remain payable under an insurance policy at the time of its assignment or (ii) where a loan has been fully repaid before maturity.
As to (a) above the undisputed evidence is that the said policy was assigned to the plaintiff company to secure a loan granted to Watisoni. The exact `value of the loan’ and `the surrender value of the policy’ however are not disclosed in any of the affidavits filed and neither is there any evidence of a re-assignment of the policy by the
plaintiff company albeit that the repayment of the loan is not disputed. Again in this regard the evidence falls well short of that required by the above
Subsection.
Notwithstanding the above short-comings counsel for the second defendants argues that even if it were proven (which is denied) that
Elenoa’s nomination had been effectively cancelled by the assignment, nevertheless, her estate would be entitled to receive the proceeds of
the said policy since she is presumed by law to have survived her husband Watisoni.
I turn then to consider the effect of Section 22 of the Property Law Act (Cap.130) on the present proceedings. That section relevantly provides:
`In all cases where, ..., two or more persons have died in circumstances rendering it uncertain which of them survived the other or
others, those deaths shall (subject to any order of the court) for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger
shall be deemed to have survived the elder.’
As this is the first occasion to my knowledge that this particular provision has come before the Court for consideration it is appropriate
that I should briefly explain its rationale and origins.
When two persons die as the result of a single tragic event i.e. the case of `commorientes’, such as, when a boat is lost at sea or a house is burnt to the ground or in a traffic accident as occurred in this case, it often happens that there is no possible means of ascertaining which of the two
survived the other. In such a case, at common law, all that a Court could do was to declare that there was no evidence to show who
was the survivor. Where the title to property depends on survivorship such as in rights of succession to a deceased’s estate, both
testate and intestate, such a situation can easily give rise to problems and difficulties. It was to remedy this that legislation
was first passed in England in 1922 and subsequently adopted and followed in numerous other countries including Fiji.
Section 22 of the Property Law Act (Cap.130) plainly raises a statutory presumption of survivorship in favour of the younger of two deceased persons where death occurred `in circumstances rendering it uncertain which of them survived the other ...’ Theoretically therefore, if it was known or proven that death occurred simultaneously then plainly the presumption would not apply since there would be no element of uncertainty in the sequence of deaths. That however is not the situation in this case before
me.
In any event, I prefer, the practical and commonsense view expressed by Lord Macmillan in Hickman v. Peacey (1945) A.C. 304, which was a case where four people were killed when a bomb exploded in an air-raid shelter and where his lordship said, of the identically-worded
forerunner to our Section 22, at p.322 :
`... the other view is that when the circumstances are such that it cannot be ascertained that one of the deceased survived the other
then the uncertainty which the section postulates exists and the statutory presumption applies.’
Even more trenchant is Lord Porter who said in his judgment ibid at p.337 :
`Speaking for myself, I should be inclined to read the section, even without the previous history, as presenting only two alternatives,
viz. : - (1) an ability to show the order of death or (2) uncertainty. ... I think the section itself is so framed as to exclude
the possibility of simultaneous deaths from ever being recognised as a certainty and to include it amongst the uncertainties. It
does not speak of uncertainty as to whether the persons concerned died at the same time, but seeks to determine which survived the
other.’
In my view the presumption of survivorship created under Section 22 of the Property Law Act (Cap.130) arises where, on the evidence produced, the Court is unable to say with certainty which of two persons survived the other.
In the present case given the rather vaguely deposed hearsay circumstances in which Watisoni and Elenoa met their untimely and tragic deaths namely, `reports are that they both died at or around the same time’, and, given the nature of the defendants claims which plainly `affect the title to property’ i.e. the proceeds of the said policy, I am satisfied that the pre-requisites for invoking Section 22 plainly exists in this case.
Accordingly, in the absence of any evidence to support the first defendant’s bare claim to the contrary such as might be obtained
from a police report, a post-mortem examination or even independent bystanders at the scene, the statutory presumption applies so
as to support the second defendants claim to the proceeds of the said policy.
In this latter regard Section 152(9) of the Insurance Act 1998 provides :
`If the nominee (of a life insurance policy) survives ... the person whose life is insured, the money secured by the policy is payable to the survivor ...’
However given the circumstances of Elenoa’s death and the presumptive effect of Section 22 I hold that the entitlement to the proceeds of the said policy vests in and are payable not to the second defendants personally but to the estate of Elenoa Katarina Waqa to be administered in accordance with the provisions of the Succession, Probate and Administration Act (Cap.60).
In the absence however of any grant of letters of administration in the Estate of Elenoa Katarina Waqa the plaintiff company is directed to retain the proceeds of the said policy until the same has been obtained and a claim made for
payment of the proceeds of the said policy.
The costs of the application are directed to be paid out of the proceeds of the said policy.
D.V. Fatiaki
JUDGE
At Suva,
9th February, 2001.
HBC0335J.00S
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