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Baro v Mati [2013] FJHC 362; HBC92.2009 (31 July 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. HBC 92 of 2009


BETWEEN:


ESITA LOLOHEA BARO
of 65 Duncan Road, Suva in the Republic of Fiji Islands, Civil Servant.
PLAINTIFF


AND:


PHUL MATI also known as PHUL MATI SINGH, MAHA NARENDRA BIR SINGH, MAHA DHIRENDRA BIR SINGH and MAHA SATENDRA BIR SINGH all of Redwood City, California, United States of America, Widow, Radio Technicians and Clerk respectively.
DEFENDANTS


BEFORE : Justice Deepthi Amaratunga
COUNSEL : Ms. R. Naidu for the Plaintiff
Mr. M. Khan for the Defendant


Date of Hearing : 13th March, 2013
Date of Decision : 31st July, 2013


DECISION


  1. CATCH WORDS

Order 15 rule 7 of the High Court Rules of 1988, Defendants who were dead at the time of the institution of the action, Order 15 rule 7(4)(a) is mandatory if not the proceedings after institution becomes a nullity.


  1. INTRODUCTION
  1. The Defendants filed a notice of motion seeking setting aside of the service of the writ of summons to all the Defendants and also for an order that the writ of summons has not been served on the Defendants. There were four Defendants and 1st named Defendant and the 2nd named Defendant were dead two years and 11 years prior to the time of the institution of the action, respectively and other two Defendants were not residing on the address given in the writ of summons. Obviously, there was no proper service of the writ of summons to the Defendants. The Plaintiff states that he was unaware of the whereabouts and, or the existence of the Defendants and had relied on last known address, but this cannot be considered as a reason for naming dead persons as defendants long after they were dead, without verifying their existence and also providing wrong addresses as the Defendants place of residence for service in an action and had even sought substituted service to said addresses. The Plaintiff had not complied with Order 15 rule 7(4)(a) of High Court Rules of 1988 as regard to the dead Defendants, and the non compliance would make any orders subsequently made a nullity. (see Re Amirteymour (deceased) [1978] 3 All ER 637 and Subash Chandra v Bansraji Civil Action No HBC 504 of 2003 High Court of Labasa, Date of decision 8th March, 2007). There is no proper service to the living Defendants.
  1. ANALYSIS
  1. The Defendants had filed a motion seeking setting aside of the service of the writ of summons and also for an order that writ of summons has not been served on the Defendants and this is supported by an affidavit. In the affidavit in support the deponent state that the 1st named Defendant who is the mother of the other Defendants had passed away in 2007 and also annexed a death certificate to that effect. This action was instituted in 2009 some two years after her death and she could not have been a named as a Defendant in this action. An order had been obtained on 11th June, 2009 to serve all the Defendants outside the jurisdiction, on the addresses given in the writ of summons. Writ of summons indicated that all the Defendants resided in USA and the addresses for all the Defendants given as "Redwood City, California, USA". No name of the street and or number of the residence is given, but it seems none of the Defendants resided at that premises or in USA at that time. The order of the judge was obtained to serve the Defendants by way of pre-paid registered post as per the addresses contained in the writ of summons.
  2. The Solicitor for the Plaintiff had filed an affidavit in support stating that according to the deponent's belief that the Defendants were residing in the address given in the writ of summons without any material to support such belief, and the judge had granted the service through pre paid post and the affidavit of service indicated that the writ of summons was served through registered post and also filed summons seeking to enter judgment on default of the Defendants and this was granted on 9th July, 2010. The court had also ordered that notice of assessment of damages be served through substituted service, and this matter came up before me for the first time on 28th October, 2010 for the assessment of the damages and the Plaintiff failed to proceed with the assessment of damages though several adjournments were granted for that purpose and on 13th September, 2011 the present motion inter alia seeking setting aside of the service was filed. The notice of motion with its supporting affidavit and appointment of solicitors for the Defendant was also filed on 31st August, 2011. It should be noted that though the appointment of the solicitor was made on behalf of all the Defendants it should be confined to the 3rd and 4th Defendants only as others are dead and no appointment was made to represent their estates.
  3. The affidavit in support of this motion was sworn by a law clerk, and the Plaintiff had taken an objection to such evidence, quite rightly, since the deponent could not have vouched for the truth of the contents of the facts deposed. It is pertinent to note that Plaintiff had obtained the leave of the judge to serve the Defendants outside the jurisdiction through registered post on an affidavit of the legal executive on an ex parte motion, too!
  4. The solicitor for the Defendant had rectified this irregularity by annexing scanned copy of an affidavit of 4th Defendant, in the affidavit in reply. There was no objection to this and this can be accepted as the original affidavit of the scanned affidavit was filed on record, subsequently with annexed documents.
  5. The affidavit of the 4th named Defendant in his affidavit stated, inter alia
    1. The only two living Defendants named in the writ of summons have instructed the present solicitors.
    2. The first named Defendant was his mother who migrated to USA and lived there until her demise on 11th May, 2007 at Redwood City, California, USA
    1. 2nd named Defendant had migrated from Fiji, in 1976 to Canada and he died on 22nd April, 1998. (death certificate annexed).
    1. 3rd named Defendant had migrated to Canada in 1973 and resided there since then at the address given in the affidavit.
    2. The deponent (4th Defendant) migrated to USA in 1979 and lived at Portland, Oregan and none of the Defendants resided at the address given in writ of summons in 2009.
  6. There is no evidence contrary to this and the Plaintiff's contention is that he was unaware of the facts deposed in the affidavit of the 4th named Defendant. It may be that he was unaware of the facts but when he filed an action naming two dead people as Defendants and also stating wrong addresses of all the living Defendants, the service of the writ of summons cannot be accepted as proper service. To decide otherwise would be an encouragement for any Plaintiff to provide false information deliberately or otherwise in order to obtain judgments ex-parte using the court mechanism through deception or through fraud. It is the Plaintiff's duty to provide accurate information as to the existence or whereabouts of the Defendants. In the affidavit in support of the ex-parte motion seeking service out side jurisdiction and also to service through pre paid post to the addresses given, the legal executive of the Plaintiff's solicitor had stated in the affidavit in support of the said motion that he was advised and verily believed that the Defendants reside at the addresses given in the writ of summons. No supporting materials were filed to substantiate his belief even now except a bare statement of the Plaintiff to the effect that he was unaware of the death of the two Defendants and also the addresses of the other two Defendants.
  7. There are two main issues that need determination in this decision. One is regarding the naming of two defendants who were dead at the time of the institution of this action, and the other is the service of the writ to the writ of summons to existing Defendants at a wrong place of residence.
  1. NAMING OF DEAD DEFENDANTS IN AN ACTION
  1. There is no dispute as to the existence of the 1st and 2nd named Defendants at the time of the institution of this action, their death certificates were submitted to the court through an affidavit of the 4th named Defendant and they were dead two and 11 years prior to the institution of this action, respectively. As regard to the service there cannot be any service to them, unless the Plaintiff had complied with the provisions contained in Order 15 rule 7(4)(a). The consequences of naming dead Defendants needs consideration and Order 15 rule 7 deals with that and states as follows;

"Proceeding against estates (O.15, r.7)


7.-(1) Where any person against whom an action would have lain has died but the cause of action survives, the action may, if no grant of probate or administration has been made, be brought against the estate of the deceased.


(2) Without prejudice to the generality of paragraph (1), an action brought against "the personal representatives of A.B. deceased" shall be treated, for the purposes of that paragraph, as having been brought against his estate.


(3) An action purporting to have been commenced against a person shall be treated, if he was dead at its commencement, as having been commenced against his estate in accordance with paragraph (1), whether or not a grant of probate or administration was made before its commencement.


(4) In any such action as is referred to in paragraph (1) or (3)-


(a) the plaintiff shall, during the period of validity for service of the writ or originating summons, apply to the Court for an order appointing a person to represent the deceased's estate for the purpose of the proceedings or, if a grant of probate or administration has been made for an order that the personal representative of the deceased be made a party to the proceedings, and in either case for an order that the proceedings be carried on against he person appointed or, as the case may be, against the personal representative, as if he had been substituted for the estate;


(b) the court may, at any stage of the proceedings and on such terms as it thinks just and either of its own motion or on application, make any such order as is mentioned in sub-paragraph (a) and allow such amendments (if any) to be made and make such other order as the Court thinks necessary in order to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon.


(5) Before making an order under paragraph (4) the Court may require notice to be given to any insurer of the deceased who has an interest in the proceedings and to such (if any) of the persons having an interest in the estate as it thinks fit.


(6) where an order is made under paragraph (4) appointing the [Fiji Public Trustee Corporation Limited] to represent the deceased's estate, the appointment shall be limited to his accepting service of he writ or originating summons by which the action was begun unless, either on making such an order or on a subsequent application, the court, with the consent of the [Fiji Public Trustee Corporation Limited], directs that the appointment shall extend to taking further steps in the proceedings.


(7) Where an order is made under paragraph (4), rules 8(4) and 9 (3) and (4) shall apply as if the order had been made under rules 8 on the application of the plaintiff.


(8) Where no grant of probate or administration has been made, any judgment or order given or made in the proceedings shall bind the estate to the same extent as it would have been bound if a grant had been made and a personal representative of the deceased had been a party to the proceedings."


  1. According to the Order 15 rule 7 (3), any action brought against a person who is dead at the time of the institution of the action is treated as having been commenced against the estate in accordance with Order 15 rule 7(1). So, knowingly or unknowingly institution of action against a dead person per se would not make the action a nullity in terms of Order 15 rule 7(3) at the initial stage, and understandably such initial legality is needed in order to overcome certain legal impediments such as to overcome the time period for the limitations, but this legality is confined only to the initial stage at the time of institution of the action only.
  2. The application of Order 15 rule 7(3) would invariably lead to Order 15 rule 7(4) (a) and fulfillment of the said requirement is needed after initial legitimacy to the action attached in terms of Order 15 rule 7(3). In all actions whether it falls under Order 15 rule 7(1) or Order 15 rule 7(3), the Plaintiff should apply to the court for an order appointing a person to represent the deceased's estate for the purpose of the proceedings or if a grant of probate or letters of administration was made such person should be substituted accordingly and this is a mandatory requirement. Though the initial institution of an action against a dead person would not make the action a nullity, if the Plaintiff fails to comply with the Order 15 rule 7(4) (a) any subsequent action, or orders obtained becomes a nullity. This is the ratio in Re Amirteymour (deceased) - [1978] 3 All ER 637. This is the only English authority I could find on this issue and this English authority was applied in Fiji in the case of Subash Chandra v Bansraji Civil Action No HBC 504 of 2003 High Court of Labasa Master Udit's decision dated 8th March, 2007.
  3. In Re Amirteymour (deceased) [1978] 3 All ER 637 at 639, Lord Diplock Held as follows:

'It is to be noted that a distinction is drawn between commencing an action and maintaining it after it has been commenced. Paragraph (a) authorises the making of rules permitting an action to be commenced either as an action in personam against a person appointed by the court to represent the deceased's estate or against the estate of nominee as if it were an action in rem against property belonging to the deceased at the time of his death; but para (c) makes it clear that, once commenced by issue of the writ or originating summons, motion or petition, the action can only continue to be carried on as an action in personam against some person or persons authorised in law to represent the deceased's estate who either may have been appointed by virtue of the section to do so in the particular action or may be executors or administrators of the deceased appointed in the ordinary course of administration of his estate.' (emphasis added)


  1. Lord Diplock in Re Amirteymour (deceased) (supra) further held that

"No longer was there any person appointed to represent the estate of the deceased by or against whom any steps in the proceedings could be carried on. Accordingly there was no person capable of entering an appearance on behalf of the defendants in the action brought against 'the personal representatives of' the deceased.


Nevertheless on 15 February 1978 Bank Melli obtained entry of judgment in default of appearance against these defendants under RSC Ord 13, r 1. It was the judgment obtained at this time and in this manner the Bank Melli sought to enforce by attaching the balance standing to the credit of the deceased in a bank account in his name with the Chase Manhattan Bank.


We agree with the master that the judgment of 15 February 1978 was a nullity." (emphasis added)


  1. So, the consequence of non compliance with the mandatory provision contained in the Order 15 rule 7(4) (a) would make any order made subsequently against the dead persons a nullity. So, the default judgment entered against 1st and 2nd named Defendant is a nullity and no force in law. There is no need for further application to set aside default judgment against dead persons as the Plaintiff had failed to comply with the mandatory requirements contained in Order 15 rule 7(4)(a). The Plaintiff's contention is that he was unaware of the death of 1st and 2nd named Defendants. This cannot be considered as a reason to circumvent the mandatory requirements of the law. If this contention is accepted this method can be resorted by any person who claims to be unaware of the demise of the Defendants and the application of the mandatory provision contained in the Order 15 rule 7(4) (a) would become a dead letter and any party could easily claim that they were unaware of the death of the Defendants, when in fact the Defendants were dead as long as 11 years ago as in the case of 2nd named Defendant! The duty of bringing proper parties before court is with the Plaintiff and he cannot waste time of the court without verifying the existence of parties and the place of residence of the parties as done in this case.
  2. The ratio in Re Amirteymour (deceased) (Supra) was applied in Fiji in the case of Subash Chandra v Bansraji Civil Action No HBC 504 of 2003 High Court of Labasa Master Udit's decision dated 8th March, 2007. Lord Diplock in Re Amirteymour held that institution of the action against a dead person per se would not make it a nullity, but if the Plaintiff failed to comply with the mandatory requirements subsequently, then the proceedings from that point would become a nullity. On application of the said ratio to the present action all the proceedings after the institution of the action against the 1st and 2nd named Defendants were nullity as there were no persons who could have entered appearance on behalf of the late 1st and 2nd named Defendants. No proper substitution in terms of Order 15 rule 7 (4)(a) was done after initially naming the 1st and 2nd named Defendants, who were dead long time before the institution of this action. Though such naming of dead persons itself would not make the action against such persons a nullity in terms of Order 15 rule 7(3), the next step is to comply with the Order 15 rule 7(4), before taking any step in the action. If not all such steps taken against the said parties would become a nullity.
  3. In Subash Chandra v Bansraji Civil Action No HBC 504 of 2003 High Court of Labasa, Date of decision 8th March, 2007, Master Udit after carefully analyzing the law relating to Order 15 rule 7 held as follows

'[43]. These propositions espoused by the above cases, when considered in conjunction with O15 rule 7 of the High Court Rules, the following propositions emerge


(a). An action (unless abated) against a dead person can be instituted where no grant of probate or administration has been made.


(b) A valid action can be instituted in the following name or description of a party


i. the estate of the deceased.

ii. the 'personal representative ' of the deceased.

iii. the deceased in propria persona.


(c) A writ although as instituted in the estate of or "deceased personal name", under O15 rule 7, the proceedings so brought cannot be prosecuted until a person has been appointed to represent the estate of the deceased within the validity of the originating process; Re Amirteymor deceased [1979] 1 WLR 63)


(d) Within the currency of the validity an originating process, it must be served, to a person appointed under O 15 r.7 (4)(a), or duly appointed personal representative.


(e) Under sub – rule 7(6), the Public Trustee may be appointed for the limited purpose of accepting service of the originating process, unless Public Trustee consents to extending the appointment or taking further steps in the proceedings. This rule give effect to S,8 of the Succession Probate and Administration Act


(f) The plaintiff must apply for leave to carry on the proceedings, O. 15 r.7 (4) (b)


(g) the general principles for extension of time to serve an originating process apply to an action instituted under O.15 r.7.


(h) As already stated, failure to comply with the rule, will deprive any beneficial effect introduced by the rule. To the contrary it will activate the common law principle before the rules substantive an opposed to procedural in nature, the defect is as such, the whole action will become a nullity."


  1. I agree with the above analysis, except (f) above, where reference had been made to Order 15 rule 7 (4)(b). It should be noted that said provision is not confined to applications made by the Plaintiff but even ex moro motu orders can be made under said provision, and this is not a stand alone provision or an option available for the Plaintiff. If the Plaintiff had named dead parties as Defendants, knowingly or unknowingly then the plaintiff must comply with Order 15 rule 7(4) (a) and this is a mandatory requirement. Order 15 rule 7(4) (b) is not an option available to such a Plaintiff to seek another bite at the same cherry. It is an enabling provision for the court (on its own motion or on application) to allow any necessary amendment to the pleadings considering the circumstances of the case and this can equally apply to a situation where a party die while the action is pending, and any order in terms of rule 7(4) (a) can be made in such an instance.
  2. Considering the High Court Rules of 1988 and the interpretation of the Order 15 rule 7 in Fiji and the interpretation of the analogous provision in the U.K rules the Plaintiff must comply with the Order 15 rule 7 (4)(a) if the Plaintiff desired to accrue the benefit of the provision, when the action had already been instituted against a dead persons as in this case. Under common law such action against dead persons would itself make it a nullity as there was no person living at the time of the action, but the provisions contained in the Order 15 rule 7(3) prevents this for a good reason, and certainly this is not to abuse the process stating that Plaintiff is unaware of the existence of the Defendants. The such abuse of the process is eliminated by strict compliance of the Order 15 rule 7(4) (a) and non compliance of that should not accrue any benefit to the Plaintiff who initially instituted action against a non existent party at the time of the institution of the action. All the actions taken in relation to the 1st and 2nd named Defendants except naming them at the time of institution of the action are a nullity. It is superfluous to state that default judgment entered against the said 1st and 2nd named Defendants a nullity as it is evident ipso facto.
  3. In Subash Chandra v Bansraji Civil Action No HBC 504 of 2003 High Court of Labasa, Date of decision 8th March, 2007, Master Udit held

'[42] I have delved in to these cases at length, because in my judgment while O 15 r.6A (O.15 r.7) is a remedial provision of adjectival law. It is crucial that potential litigants venturing to reap the advantage of this invaluable procedure must do so to its latter, before any benefit may be derived. Non compliance therefore renders the entire action being badly constituted as a matter of substantive law. Any less than strict compliance with the order would palace a plaintiff in no better portion than the common law pre-existing the rule. Practically, the impact of the rule is, it binds the estate; O.15 r.6A (O.15 r.7). For that, a duly appointed personal representative is a prerequisite for enforcement again the assets of the estate. Conversely, non compliance would render any judgment or order nugatory. It will not merely be unenforceable but a nullity.'


  1. Without prejudice to what I have held earlier, I agree with the above finding and this reinforces the requirement for strict compliance of the Order 15 rule 7(4)(a) where it starts with words 'the plaintiff shall' also indicating that it is mandatory provision when the Plaintiff had named a dead party at time of the institution of the action and should immediately take remedial action to bring a personal representative of the estate of the dead person, and no proceeding can be taken beyond this point, without this step being followed. If this is not followed the proceedings becomes a nullity as against the estate of the dead parties. (see Re Amirteymour (deceased) [1978] 3 All ER 637.
  2. The counsel for the Plaintiff sought directions from court in terms of Order 15 rule 7(4) (b). I do not think that that it is possible after non compliance with the mandatory provision within the stipulated time period as enunciated in Order 15 rule 7(4)(a). In my judgment resort to Order 15 rule 7(4) (b) is an enabling provision and cannot stand alone conferring a right to the Plaintiff to seek a direction. This provision enables the court to grant any amendments to the pleadings when an order in terms of Order 15 rule 7(4) (a) is made this can be done at any stage of the action. As opposed to this the Plaintiff is required to comply with Order 15 rule 7(4) (a) during the validity of the writ in order to obtain an order under said provision, but there is no such time period for Order 15 rule 7(4) (b) and if this is to be considered in isolation it would certainly conflict with the Order 15 rule 7(4)(a) as there is a clear time period, for the Plaintiff to seek an order under said provision.
  3. The Order 15 rule 7(4) (b) cannot be taken in isolation granting an option to the Plaintiff to seek orders under rule 7(4) (a) within a limited time and also under rule 7(4) (b) at 'stage of proceeding'. This would create a clear anomaly and such interpretation would create a conflict and should be prevented by the court. The punctuation mark ";" after Order 15 rule 7(4) (a) also supports that Order 15 rule 7(a) is a mandatory provision and this cannot be circumvented by resorting to Order 15 rule 7(4) (b), and the Plaintiff's request for the court for direction in terms of said provision is misconceived. In any event when the Plaintiff had not complied with mandatory requirement, the proceedings beyond that point becomes a nullity as per Re Amirteymour (deceased) [1978] 3 All ER 637 and Subash Chandra v Bansraji Civil Action No HBC 504 of 2003 High Court of Labasa, Date of decision 8th March, 2007, hence there cannot be any order until the condition precedent is fulfilled by the Plaintiff.
  4. Even if I am wrong on the above, I do not think that I have sufficient material before me to exercise the power given to the court to appoint a personal representative to this action on behalf of the dead parties. I do not know whether any grand had been made for the dead parties. This is a thing that the Plaintiff had to comply and failure to do so would make all the proceedings beyond that point a nullity as against the said 1st and 2nd named Defendants. The Plaintiff had not only named a defendant who was dead 10 years prior to the institution of this action, but had also provided false address of the said deceased even when he was living and had obtained leave of the court for substituted service without verifying the correctness of the address or existence of Defendant. It is hard to believe that all this was done due to ignorance of the Plaintiff. Considering all the circumstances I do not think that Order 15 rule 7(4) (b) can be resorted by the Plaintiff at this moment, when it had failed to comply with Order 15 rule 7(4) (a), which is mandatory.
  1. PROVIDING INCORRECT ADDRESS FOR SUBSTITUTED SERVICE
  1. The only two living Defendants were not residing in the addresses given in the writ of summons. There is no evidence contrary to that. The Plaintiff state that their pre-paid registered post article was not returned to them and deemed served. But this cannot be accepted as receipt to 3rd and 4th named Defendants in terms of the High Court Rules of 1988. The burden is on the Plaintiff to prove that writ was served to the said Defendants. I do not think that the contention of the Plaintiff that non return of the articles should be presumed a proper service to the said Defendants would apply to present context in terms of High Court Rules of 1988 as to the service of writ of summons.
  2. When the Plaintiff sought the leave of the court to serve the writ of summons by substituted service through pre paid post the burden is fairly and squarely with him to ascertain the correctness of the said addresses and the existence of the parties and if this had not been done and false address is given as the place of residence there is no service as per the rules. The Plaintiff cannot state that he was unaware of the existence of the parties he had brought before the court, though some legality to the action against dead person is granted by Order 15 rule 7(3), and this cannot be abused, the above is eliminated by making the Order 15 rule 7 (4) (a) a mandatory provision.
  3. The 3rd and 4th named Defendants had filed this motion in terms of Order 12 rule 7. In the motion it was incorrectly stated as Order 11 rule 7, but the parties were not misled and I do not consider it as a fatal error. A closer look at the said provision indicate that even this provision is strictly not applicable to the present scenario. Order 12 rule 7 (1) applies to when the person had been served, but seeks to set aside the service due to some reason. In the circumstances I do not think that failure to file the notice of intention to defend is fatal irregularity to strike off the Defendant's motion. By the same token there is no supporting materials for the Order 'd' contained in the Defendant's motion and this was not pursued at the hearing too.
  1. CONCLUSION
  1. The Plaintiff had named two dead persons namely 1st and 2nd named Defendants and all the proceedings against them after the institution of this action is a nullity. The Plaintiff had obtained substituted service to 3rd and 4th Defendants but is unable to prove the service to them or that they were residing at the said premises at the time of the delivery. There is no proper service of the writs to the 3rd and 4th Defendants.
  1. FINAL ORDERS
  1. That the purported service of the writ to all the Defendants set aside.
  2. Stay of order made 7th April, 2010 by Justice Hettiarachchi.
  1. Cost of this application is summarily assessed at $1000 to be paid by the Plaintiff to the 3rd and 4th Defendants jointly.(i.e. total of $1000 to both Defendants)

Dated at Suva this 31st day of July, 2013.


.................................................
Justice Deepthi Amaratunga
High Court, Suva

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