IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 111 of 2012

BETWEEN:

EREMASI BALEKABA as Next of Kin of 
RATU SIRELI TABETURAGA 
Deceased of Naiserelagi Village, Ra.
Plaintiff

AND:

JAGDISH of Saweni Back Road, Lautoka, Farmer.
1st Defendant

AND:

SHALENDRA NAIR of Saweni Back Road, Lautoka, Bus Driver.
2nd Defendant

RULING

INTRODUCTION

[1].	Whether the writ filed herein which indorses the father suing as “next of kin” of his intestate deceased child is valid, is the issue before me. It is so because the father in question did not have letters of administration at filing time. There is authority in Ingall v Moran (see below) that a writ filed by a claimant purportedly on behalf of an intestate’s estate is null and void, and therefore incurable, if the claimant did not have letters of administration at the time of filing. On this authority, AK Lawyers seek to strike out the writ and statement of claim under Order 18 Rule 18 of the High Court Rules. The plaintiff’s lawyers have not appeared to defend the writ. 

[2].	The deceased child had died as a result of a motor vehicle accident on 25 May 2009, allegedly, due to the negligent driving of the first defendant of a vehicle owned by the 2nd defendant. If the claim is struck out now, the plaintiff will not be able to file a fresh claim as he will then be caught under the Limitation Act (Cap 35).

[3].	The cases cited to me all concern a plaintiff who sues, either as “administrator” or as “intended administrator” on behalf of the intestate’s estate, but who had not obtained a grant of administration. Do these apply also to the plaintiff who has no grant but is suing as “next of kin” of a deceased? 

LETTERS OF ADMINISTRATION IS THE AUTHORITY TO SUE AS “ADMINISTRATOR” 

[4].	A person who claims on behalf of an intestate’s estate must first obtain a grant of letters of administration before he can file proceedings. Otherwise, his writ and claim will be null and void, and that nullity will not be curable by amendment. This is so because an administrator derives his title to sue from the grant of letters of administration. Because of this, he cannot institute proceedings without grant. 

[5].	In contrast, an executor derives her title to sue from the Last Will and Testament of the testator, rather than from the grant of probate. Courts have long recognised that the executor’s entitlement to sue actually crystallizes upon the testator’s death. In other words, she can sue even before probate is granted to her because all rights of action of the testator vests in her (executor) upon the testator’s death. But it must be remembered that she cannot obtain a Court Order without grant because the Rules require her to prove her title-by probate, at the hearing, before a decree can even be considered. 

[6].	Lord Parker in delivering the advice of the Judicial Committee in Chetty v. Chetty [1916] 1 A.C. 603, 608, explains the underlying rationale: 

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 actions, 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. An administrator, on the other hand, derives title solely under his grant, and cannot, therefore, institute an action as administrator before he gets his grant. The law on the point is well settled (my emphasis).

(see also Ingall v Moran [1944] 1 AER 97; Millburn-Snell and others v Evans [2011] EWCA Civ 577; [2011] WLR (D) 179) [2012] 1 WLR 41.

[7].	Luxmore L.J. in Ingall v Moran at page 167 to 169 said:

It is...well established that an executor can institute an action before probate of his testator’s will is granted, and that, so long as probate is granted before the hearing of the action, the action is well constituted, although it may in some cases be stayed until the plaintiff has obtained his grant. The reason is plain. The executor derives his legal title to sue from his testator’s will. The grant of probate before the hearing is necessary only because it is the only method recognized by the rules of court by which the executor can prove the fact that he is the executor…there is no doubt that both at common law and in equity, in order to maintain an action the plaintiff must have a cause of action vested in him at the date of the issue of the writ…It is true that a person who ultimately becomes an administrator may start proceedings in the Chancery Division for the protection of the intestate’s estate, and can obtain in a proper case interim relief by the appointment of the receiver pendente grant, but in all such cases the person who institutes such proceedings has a beneficial interest in the intestate’s estate, for he would not obtain a grant unless he had such an interest either as heir at law or as one of the next of kin or as a creditor. In such cases the well recognized practice in the Chancery Division is to endorse the writ in the first instance for the only relief then obtainable, namely, the appointment of a receiver pendente grant, and to apply to amend the writ after the grant has been obtained, if further relief is required, by adding a claim for administration of the estate with or without specific directions with regard to any special relief required.

(my emphasis)

IT IS THE COURT THAT GIVES THE AUTHORITY TO SUE AS ADMINISTRATOR

[8].	To reiterate, the grant of letters of administration is the only valid authority from which an administrator derives capacity and locus to sue on behalf of the estate. Having said that, it must then be noted that a grant of letters of administration is actually given by the High Court of Fiji (section 7 Succession, Probate and Administration Act (Cap 60).

[9].	In Fiji, grants of Letters of Administration are issued under the hand of the Chief Registrar of the High Court and the Seal of the High Court (see Notice LN 104/45 WEF 4 May 1945). Hence, there is every reason to say that it is the High Court of Fiji that grants that authority to sue in the capacity of an administrator and that the administrator acquires standing and locus by virtue of his being appointed so by the High Court of Fiji.

[10].	In Williams, Mortimer & Sunnucks on Executors, Administrators and Probate at paragraphs 8-10, the learned authors reiterate the point thus: 

…an executor may perform most of the acts pertaining to his office, before probate. However, for an administrator, the general rule is that a party entitled to administration can do nothing as administrator before letters of administration are granted to him. This is because he derives his authority entirely from the appointment of the court… After his appointment, he has the same rights and liabilities and is accountable as if he were the executor

(my emphasis)

[11].	That the court is the appointing authority was explained by Scott LJ in Ingall v Moran at (164-165) as follows at (164-165):

The cause of action arose, and was vested in the deceased lad, at the moment when he was injured, and the measure of his damages included fair compensation for such loss of expectation of life as was caused to him by the defendant's tort. That chose in action was his. To it the common law maxim "Actio personalis moritur cum persona" would have applied on his death but for the Act of 1934 which caused it to survive. If he had left a will, it would at the moment of his death automatically have vested in his executor. As he died intestate, it vested in the President of the Probate, Divorce and Admiralty Division, and remained in him until letters of administration were issued. Then - and not before - it would automatically pass from the President to the administrator. As the writ was issued on September 17, 1942, and there was no grant till November, it follows, necessarily, that at the time of writ issued the plaintiff had no shadow of title to his son's surviving chose in action, in respect of which he purported to issue a writ, falsely (although no doubt quite innocently) alleging that he issued it as administrator. It purported to launch a representative action under Or. III, r. 4 - an action in which he confessed, first, that he was not suing in his own right, and, secondly, that he had no right in that action to prosecute any claim except in his representative capacity.

PROCEEDINGS ON BEHALF OF AN INTESTATE’S ESTATE WITHOUT GRANT – AN IRREGULARITY

[12].	Following from the above, any proceeding commenced purportedly for and on behalf of an intestate’s estate when no letters of administration had been granted by the High Court of Fiji, will be irregular because the court, which is the source of that authority from which the claimant is to derive capacity and locus, has not yet conferred that authority, by appointment, upon the claimant. 

[13].	This seems to be the position taken by the Courts in Fiji based on various English decisions (see Chetty v. Chetty (1916) A.C. 603; Ingall v Moran (supra) Finnegan v. Cementation Co. Ltd [1953] 1 Q.B. 688 CA; see comments of Luxmoore and Scott LLJ below). But is that irregularity curable?

IS THAT IRREGULARITY CURABLE?

[14].	The English Court of Appeal, recently, in the case of Millburn-Snell and Others v. Evans [2012] 1 WLR 41, reaffirmed the position in Ingall that any writ issued purportedly for and on behalf of an intestate’s estate without grant is an incurable nullity. Lord Neuberger MR (at paragraph 16) said: 

I regard it as clear law, at least since Ingall, that an action commenced by a claimant purportedly as an administrator, when the claimant does not have that capacity, is a nullity. That principle was recognised and applied by this court in Hilton v. Sutton Steam Laundry [1946] KB 65 (per Lord Greene MR, at 71) and Burns v. Campbell [1952] 1 KB 15 (per Denning LJ, at 17, and Hodson LJ, at 18). In Finnegan v. Cementation Co. Ltd [1953] 1 QB 688, Jenkins LJ… at 700….

[15].	The reasons why the irregularity is considered a nullity and why the nullity is considered incurable are not clear to me at this time. It appears though from the cases that the only way by which the nullity could be cured is if the doctrine of relation back was so applied to remedy the irregularity. However, the Courts have never applied the doctrine to remedial effect. 

[16].	The doctrine has long been applied by English Courts to enable them to relate a grant of administration back to the time of death to prevent injury to the estate. But, as stated, although “retroactivity” is at the very heart of the application of the doctrine, the courts have never applied it to validate a pre-grant court action commenced by the (subsequent) grantee purportedly as administrator. 

[17].	Suffice it to say that, as such, the courts have been unwavering in the view that the irregularity is an incurable nullity. Hence, neither the writ nor the statement of claim can be amended to convert the action into a valid action by, for example, changing the capacity in which the plaintiff is indorsed on the writ. Scott LJ expresses the following sentiments in Ingall at (164-165):

Such an action was, in my opinion, incapable of conversion by amendment into a valid action - just as much so as if he had issued a personal writ claiming to be lawfully possessed of the estate of the deceased and had subsequently asked leave to amend by substituting a representative claim. It is true that when he got his title by the grant of administration he prima facie became entitled to sue, and could then have issued a new writ, but that was all. An application by him to treat the original writ of September 17 as retrospectively valid from that date would have been refused by the court, not only because it might prejudice existing rights of defence, but because it would not be permissible under the Rules of the Supreme Court or the Judicature Acts. The old writ was, in truth, incurably a nullity. It was born dead and could not be revived. If that conclusion is right it follows equally that the statement of claim was not delivered in any action recognized by the Rules of the Supreme Court, and all subsequent proceedings in the supposed action, including the judgment of the learned county court judge, were likewise nugatory, for, if the action and the pleadings were bad, there was no valid action before the learned judge to try and it is our duty to say so.

[18].	The Australian High Court and the High Court of Ireland have both expressed similar views.

[19].	Hence, the only option for a claimant for an intestate’s estate who obtains, subsequent to filing proceedings, a grant of letters of administration, is to file fresh proper proceedings. This will not be a problem if the claim is still within the Limitations Act. 

THE IRREGULARITY IS CURABLE IF PLAINTIFF PLEADS SECTION 10 OF COMPENSATION TO RELATIVES ACT

[20].	In Fiji, Ingall v Moran will only apply if a claimant was only suing as “administrator” or as “intended administrator” before grant. But if, in addition to suing in that capacity, he was suing also (or pleading) as a dependent under section 10 of the Compensation to Relatives Act, then the irregularity is curable. That was the position taken by Madam Justice Shameem in Tanuku v A-G, [2000] FJHC 13; HBC0134d.95s (26 January 2000) . 

[21].	It is important to note that the Compensation to Relatives Act, by section 5, provides that an action under the Act had to be brought in the name of the administrator or executor. However, if the administrator or executor does not commence an action within six months of the death, the Act then, by section 10, gives authority to certain categories of “relatives” to bring an action. This enables a parent or a child (amongst other relatives) to file an action under the Act without grant. 

[22].	Hence, in Tanuku, Shameem J would cite Chetty v Chetty (supra) and Ingall (supra) and conclude that the writ would not have been valid if the plaintiff was only suing as “intended administrator”. However, because the plaintiff was clearly a beneficiary in the son’s estate according to the relevant laws of intestacy applicable in Fiji and was also pleading section 10, the writ was still curable by amendment under the various Rules of Order 20 of the High Court Rules (see footnote 12), provided the plaintiff applied for it. It is important to note here that in Tanuku, Shameem J did strike out the case, not because of Ingall, but because the plaintiff had not bothered to appear to seek leave to amend, and had been rather dilatory in the proceedings. 

[23].	In Josaia Nainoka v Ba, Tavua Drainage Board & Ratu Etuate Ratu HBC 237 of 1978, Mr. Justice Dyke of the Supreme Court of Fiji followed Ingall. The plaintiff in Nainoka had filed his writ as intended administrator when he had not obtained letters of administration. However, rather than pleading section 1o, the plaintiff was pleading section 5 (see paragraph [21] above). Dyke J observed as follows:

.....not only did the plaintiff have no locus standii but the whole action was null and void and could not be cured by a subsequent grant of letters of administration.

The plaintiff has now applied for leave to amend his statement of claim, just six days before the action was due to be heard. What he now seeks to do is to amend the statement of claim so that he brings the action as the father of the deceased under the Compensation to Relatives Act.

Even under this Act by section 5 the action should be brought by and in the name of the administrator of the estate, and he was not the administrator when the writ was filed. Nor does the proposed amended writ purport to be brought by the administrator in the name of the administrator, though it does set out that the plaintiff is the administrator.

Clearly what the plaintiff hopes to do by the amendment is to avoid the provisions of section 8 of the Act which provides that the action must be commenced within 3 years of the death and by his amendment he hopes to backdate it to 10/9/78 and also to avoid the decision in Ingall’s case that the writ is void ab initio.

But even if he avoided those pitfalls he would still be caught by section 9 of the Act which provides that in every action under the Act the plaintiff of the record must deliver to the defendant of his solicitor together with the statement of claim full particulars of all the persons on behalf of whom the action is brought and the nature of their claims. This has been held to be a mandatory provision. He did not do that in on 10/08/78 and it is too late to do it now and still expect the amendment to be backdated.

So I am afraid he is caught in both ways and there if no merit in the application to amend. It would be a wasted effort. 

The application is dismissed with costs to be taxed if not agreed.

[24].	Mr. Justice Fatiaki endorsed the same view in Railala v Yuen Yin Hum [2001] FJHC 44; Hbc0528D.1992s (13 July 2001). He recognised that section 10 created a statutory right and cause of action in favour of “dependants” who are close relatives of the deceased. The benefit of that right of action does not form part of the estate. This thus entitles the personal representative of the deceased who may not necessarily hold letters of administration, to sue as trustee for dependants.

[25].	However, Fatiaki J, at some point, appeared to distinguish Ingall on the ground that the case concerned a plaintiff who, while he did not yet hold letters of administration, had sued as “administrator” whereas in the case before him, the plaintiff was suing as “intended administrator”.

Needless to say the capacity in which the plaintiff sued in Ingall v. Moran (op.cit) was that of `administrator of his deceased son’s estate’ which is materially different from the capacity in which the plaintiff is suing in the present case as `intended administrator’ suing `......on behalf of the estate of (his) deceased daughter ...... for the benefit of the relatives ...... under the Compensation to Relatives Act Cap.29'. The former capacity assumes the grant or existence of Letters of Administration whereas the latter plainly does not.

[26].	However, the distinction made above was not decisive in Fatiaki J's ruling. I say that because, on my reading of Tanuku, Fatiaki J eventually allowed the plaintiff to amend his writ, not because he was qualifying Ingall v Moran, but because of section 10. Like Josaia Nainoka and Tanuku, Railala, also concerned a father who was suing in the capacity of "intended administrator" but who had yet to obtain a grant, and who had also pleaded section 10, though he was not indorsed in that capacity on the writ. True, in Railala, Fatiaki J did voice support for the Privy Council's approach in Austin v. Hart (1983) 2 ALL E.R. 341 and Marsh v. Marsh (1945) A.C. 271 at 284.

More recently, in Austin v. Hart (1983) 2 ALL E.R. 341 the Privy Council said of an identically worded section to our Section 10(2) above, at p.343:

'The benefit of the right of action does not form part of the estate of the deceased or devolve under the provisions of his will. The (Compensation for Injuries) ordinance provides machinery for the action to be brought by personal representatives of the deceased as trustees for the dependant or, in certain circumstances, for one or more of the dependants themselves to bring the action as trustee or trustees for all of the dependants.'

Furthermore the Court in allowing the action in the case to continue despite the possibility that it had been irregularly instituted before the expiration of the 6 months time limit contained in the section said, at pp.344/345: 

'......if a premature action is irregular and the irregularity is of a kind, which, as in the instant case, was cured without amendment by the mere lapse of time and which causes no prejudice to the defendant, there is no reason for the Court to insist that the irregularity nullifies and invalidates the whole proceedings. The modern approach is to treat an irregularity as a nullifying factor only if it causes substantial injustice: see: Marsh v. Marsh (1945) A.C. 271 at 284.'

Similarly in the present case, the plaintiff could have instituted the proceedings in his own name as a trustee for the dependants for whose benefit the cause of action was created by statute, and the fact that the action was instituted in his capacity as 'intended administrator', is, at most, an irregularity, which caused no injustice at all to the defendant.

[27].	In Austin v. Hart (supra), the Privy Council in allowing the appeal from the Court of Appeal, had expressed the view that:

"(t)he modern approach is to treat an irregularity as a nullifying factor only if it causes substantial injustice… The premature issue of the writ in the present case did not cause injustice at all". 

In Ingall v. Moran [1944] KB 160, 169 Luxmoore L.J. could not help 'feeling some regret'. In Hilton v. Sutton Steam Laundry [1946] KB 65, 73 Lord Green M.R., was not 'averse to discovering any proper distinction which would enable this unfortunate slip to be corrected'. In Finnegan v. Cementation Co Ltd. [1953] 1 QB 688, 699 Singleton L.J. lamented 'that these technicalities are a blot on the administration of the law, and everyone except the successful party dislikes them'. Accepting, without approving, the decisions of the Court of Appeal which have been cited, their Lordships see no reason to encourage any extension of their ambit. In the present case the plaintiffs were entitled to sue in the capacities named in the writ, they were entitled at the date of the writ to sue unless the executor or administrator intervened within six months of the death, no such intervention took place and the plaintiffs without needing or seeking any amendment are entitled to proceed with the action which they launched". (my emphasis)

[28].	Notably, in Austin, the claimant was also entitled to sue as dependent under the Fatal Accident Ordinance of Trinidad and Tobago. With that in mind, one might argue that the application of the "modern approach" of balancing the irregularity against the justice of the case, should be thus limited to cases where an alternative viable basis of entitlement to sue is pleaded (e.g. the Fatal Accident Ordinance in Austin, or section 10 of the Compensation to Relatives Act in Tanuku). Hence, whether or not the Privy Council would have still applied the "modern approach" in Austin had the plaintiff not pleaded the Fatal Accident Ordinance, must remain a pending question. 
[29].	Mr. Justice Kokaram of the High Court of Trinidad & Tobago in Jaime Dolan v Rene Katwaroo, Claim No. CV2013-00267 (delivered 29 May 2013) appears to concur with the limited application of the so-called "modern approach":

In Austin, Lord Templeman approved of the ratio of the Ingall line of cases that where there is no entitlement to sue at the date of commencement of the proceedings it is a nullity. In Austin there was an entitlement in the claimant to sue as a dependent under the Fatal Accident Ordinance and the issue of the premature issue of the writ was not a nullity but an irregularity. Where there is no prejudice caused to the defendant such an irregularity will not be treated as nullifying the whole proceedings. 

[30].	Hence, on the above view, the irregularity resulting from having filed a writ purportedly for the estate, when no grant has been made, will not nullify the whole proceedings, if in fact an alternative basis of filing is also pleaded and where there is no prejudice caused to the defendant. This then reconciles Tanuku, Nainoka and Railala. 

ABOUT THIS CASE

[31].	But having said all that, the case before me now is not an "administrator without grant" type of case. Rather, it is about a father suing as "next of kin" but who, it is assumed, has not yet obtained letters of administration. 

[32].	The pleadings do not mention the word "estate" nor is the Compensation to Relatives Act mentioned anywhere therein. 

[33].	I am of the view that the writ is an irregularity but is curable by amendment of both the writ (to properly reflect and indorse the capacity under section 10 of the Compensation to Relatives Act) and statement of claim (to plead the proper relief under the Act). The irregularity is not a nullity in the Ingall v Moran sense because the plaintiff is not purporting to be the administrator of the estate, which, if he was otherwise, would be incurable for reasons stated above. The High Court Rules, after all, under the various rules of Order 20 do allow a party to amend the writ to alter their capacity, upon leave of the Court (see Tanuku). 

CONCLUSION

[34].	For the above reasons, I dismiss the application to strike out. However, as the plaintiff has been rather dilatory in their prosecution of this case, I hereby issue a Notice to his Solicitor on record, under Order 25 Rule 9, to show cause why this matter should not be struck out. 

[35].	The Order 25 Rule 9 Notice shall be returnable before me on Thursday 31 October 2013 at 9.30 a.m. 

Anare Tuilevuka
JUDGE

16 October 2013.