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Lawakeli v The State [2004] FJHC 346; HBC0031.2003B (24 March 2004)

IN THE HIGH COURT OF FIJI
AT LABASA

CIVIL ACTION NO. HBC0031 OF 2003

BETWEEN:

ELIA LAWAKELI
Appellant

AND:

STATE
Respondent

Counsel:

Hearing: 24 March, 2004
Judgment: 24 March, 2004

EX TEMPORAE JUDGMENT

An action was brought by the respondent as intended administrators of their deceased daughter’s estate for damages recoverable under the Fatal Accidents Act and/or the Law Reform Miscellaneous Provisions Act for loss of expectation of life and expenses occasioned by an accident which occurred on the 9th of June 2000 by reason of the defendant’s negligence. The writ in which the respondent is described as an intended administrator was issued on the 5th of June 2003. The statement of claim was delivered on the 17th of August of 2003; an acknowledgement of service and notice of contest was filed on the 7th of October 2003. A summons to strike out the claim was filed on the 18th of November 2003.

The Application

The applicant contends that the action is not properly constituted at any time in as much as the writ was issued when the respondent was not an administrator. There are other grounds argued but for reasons that will become obvious they do not require further consideration by me. The respondents contend that by reason of the relation back doctrine an action commenced by them in anticipation of grant can and should be cured provided that letters of administration are granted before hearing.

The Law

The applicants counsel provided helpful submissions. A case he relied on in his bundle Josaia Nanoka v The Ba and Tavua Drainage Board a decision of the Lautoka High Court under action no.237 of 1978 referred to an English decision not referred to in submission by learned counsel but was directly on point. In Ingall v Marren (1944) 1 All England Reports 97 Lord Justice Scott in the Court of Appeal found:-

(1) an administrator as such has no cause of action vested in him before he had obtained letters of administration.

(2) The doctrine of relation back of an administrator’s title to his intestate’s property to the date of the intestate’s death when the grant of letters of administration has been obtained has no application to an action commenced by the administrator as such before the grant is made.

(3) The respondent had no cause of action vested in him at the date of the issue of the writ and the action failed and ought to be dismissed.

The learned Justice followed the Privy Council case of Meyappa Chetty v Subramani Chetty (1916) 1 AC 603 where at page 608 Lord Parker in delivering the advice of the Judicial Committee of the Privy Council said:

“It is quite clear that an executor derives his title and authority from the will of his testator and from any grant of probate...an administrator on the other hand derives his title solely under his grant and cannot therefore institute an action as administrator before he gets his grant”.

The law on the point appears well settled.

I remind myself about the law on striking out applications that too is well settled. It is only in the clearest cases that the discretion can be exercised. This is such a case.

Conclusion

I am therefore irresistibly drawn to grant the application and strike out the proceedings. Costs are in issue. However Counsel now responsibly indicate to the Court that they will not seek costs in the circumstances.

Gerard Winter
Judge

At Labasa
24 March, 2004