IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 322 OF 2013

BETWEEN:

ULAMILA GATU aka ULAMILA COLA
Plaintiff

AND:

SUSAN TAINA HILL
1st Defendant

AND:

KINIVILIAME TABUAKULA
2nd Defendant

Counsel : Mr. A. Rayawa for the Plaintiff
Mr. N. Tuifagalele for the 1st & 2nd Defendant 

Date of Hearing : 14th October, 2014
Date of Judgment : 29th April, 2015

JUDGMENT

[1]	The plaintiff has filed the originating summon before me seeking for the following orders:

1.	That it is declared that SAKARAIA DAU was the lawful Administrator of the Estate of his father Samuela Ole and should have distributed Samuela Ole’s property according to Section 6(1) of the Succession, Probate and Administration Act Cap 60. 

2.	That it is declared that the lawful beneficiaries of Samuela Ole’s estate at the time of his death were MARETA VERINA (d.o.b: 5/9/1932) (female/spouse) and SAMUELA COLA (d.o.b: 6/8/1960) (male/son) and SAKARAIA DAU (d.o.b: 9/2/1969) (male/son). 

3.	That it is declared that SAKARAIA DAU had not completed the duties he had sworn to fulfill as the holder of the Letter of Administration for SAMUELA OLE.

4.	That the 1st Defendant is to complete the unfinished Administration of the Estate of SAMUELA OLE, which was left partly done by SAKARAIA DAU in his capacity as holder of the Letters of Administration of SAMUELA OLE. 

5.	That the 1st Defendant distributes the Estate of SAMUELA OLE and such property comprising of one undivided half share, by registering SAMUELA COLA’S 1/3rd interest and MARETA VERINA’S 1/3rd interest, on the property comprised in Lease Number 238311, also described as lot 27 on DP 5461, in the Province of Naitasiri and the town of Naitasiri in accordance to the rules of intestacy and as provided under the Succession Probate and Administration Act Cap 60. 

6.	That the 2nd defendant be ordered to assist in the registration of our interests by giving the necessary consents or alternatively that the Court Orders that all endorsements on the tile be varied to reflect the proper administration of SAMUELA OLE’S estate. 

7.	That the 1st and 2nd defendant’s be restrained from evicting or attempting to evict the plaintiffs and her children from the family home, at lot 27 Nasinu Road, Kalabu, Nasinu. 

8.	That the plaintiff to make arrangements by consenting/removing the Caveat at the time the 1st and 2nd defendants tenders the registration of beneficial interest of the plaintiff at the Office of the Registrar of Titles, subject to approval of the same by the Registrar of Titles. 

Plaintiff case

[2]	Plaintiff has filed the case against her sister in law who is the first defendant. The second defendant is a nephew of the plaintiff. It is alleged that plaintiff’s husband’s father had died. His son who is the second defendant’s husband was appointed trustee of the estate. The Estate consists of the family home which is described in lease no. 238311, Lot 27 on DP 5461. When plaintiff’s late father-in-law died he was survived by the deceased’s wife and two sons. The plaintiff and the first defendant are the wives of the two sons. All the heirs have inherited the property. The plaintiff’s father-in-law had died on 7.3.99 and on 3.8.2000 letters of administration has been granted to one of the sons Mr. Sakaraia Dau who is the first defendant’s husband. He in turn had got transmission by death registered as the Administrator of the Estate in 2000. 

[3]	Plaintiff’s husband died and as per document UG-1 plaintiff has been granted Letters of Administration of her husband’s estate. Sakaraia Dau has died and the estate is administered by his wife the first defendant. 

[4]	Plaintiff has filed this action as the trustee of her husband’s estate against the first defendant in her capacity as the trustee for Sakaraia Dau’s estate. Sakaraia Dau was the administrator of the father-in-law’s (Samuela Ole) estate. 

[5]	The wife of Samuela Ole has died. However there was no evidence placed before court on that issue but it was not disputed by the parties. 

[6]	The land had been originally co-owned by plaintiff’s husband Samuela Cola and the father-in-law Samuela Ole, ½ shares each.

[7]	The plaintiff alleges that of her father-in-law’s property undivided ½ share of the land should go to Samuela Cola and Sakaraia Dau. The plaintiff alleges that Sakaraia Dau has failed to administer the estate. 

[8]	Plaintiff also concedes that in a separate transaction her husband under UG-4 had transferred his ½ share to Sakaraia Dau. 

[9]	In seeking the orders in the summons the plaintiff alleges that Sakaraia Dau’s wife the first defendant and second defendant has issued a quit notice to the plaintiff asking her to vacate the premises as they wish to sell the property. It is also alleged that when the plaintiff’s husband transferred his shares to the first defendant’s husband it was done on condition to hold it in trust till the plaintiff’s child gets of age.

First defendant’s case

[10]	First defendant has filed an application and raised a preliminary objection on the maintainability of this case (under section 10 of the Limitation Act). Further she has agreed with the second defendant’s affidavit in opposition. 

Second defendant’s case

[11]	Second defendant had filed an opposition and raised a preliminary objection under the Limitation Act. 

Determination

[12]	The property in question has been originally owned by Samuela Ole and Samuela Cola as co-owned property. 

[13]	After the death of Samuela Ole in 1999 his son Sakaraia Dau had obtained the letters of administration. In 2000 he had got one undivided ½ share of the testator transferred to him. 

[14]	Both parties were not at dispute on the fact that prior to this, the plaintiff’s late husband Samuela Cola has transferred his undivided ½ share to Sakaraia Dau in 1991. Thereafter Sakaraia Dau had transferred his undivided ½ share to the second defendant and had become joint owners in common. 

[15]	The defendant took up a preliminary objection for the maintainability of the action under the Limitation Act. The said objection was taken under section 10 of the Limitation Act. All parties wanted the preliminary objection dealt at the outset. 

[16]	Section 10 of the Limitation Act state as follows:-

Subject to the provisions of subsection (1) of section 9, no action in respect of any claim to the personal estate of a deceased person or to any share or interest in such estate, whether under a will or on intestacy, shall be brought after the expiration of twelve years from the date when the right to receive the share or interest accrued, and no action to recover arrears of interest in respect of any legacy, or damages in respect of such arrears, shall be brought after the expiration of six years from the date on which the interest became due.

[17]	It is undisputed that Samuela Ole had died in 1999 and subsequently that Sakaraia Dau had obtained Letters of Administration. It was also undisputed that. Sakaraia Dau had got Samuela Ole’s undivided ½ share transferred to him in the year 2000. It is pertinent to note that the said transfer is registered as a transmission by death in UG-5.

[18]	Accordingly I find that Samuela Cola’s undivided ½ shares had been transferred to Sakaraia Dau. After the death of Samuela Ole his undivided ½ share too has been transferred to Sakaraia Dau as transmission by death. 

[19]	Subsequently Sakaraia Dau had transferred one undivided ½ share to the second defendant. 

[20]	Sakaraia Dau had subsequently died leaving his wife the first defendant as the administratix of his estate. It appears that the plaintiff has filed this action only in 2013 after 13 years of the death of the testator to get the administration of Samuela Ole’s estate completed. 

[21]	As per the facts presented to me the plaintiff’s action is filed clearly out of time permitted under the Limitation Act. 

[22]	In answering the preliminary objection the plaintiff pleaded under section 9 of the Limitation Act which states:

9.-(1) 	No period of limitation prescribed by the provisions of this Act shall apply to an action by a beneficiary under a trust, being an action-

(a)	 In respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or

(b)	 To recover from the trustee, trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use.

(2) 	Subject as aforesaid and to the provisions of the Trustee Act, an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this Act, shall not be brought after the expiration of six years from the date on which the right of action accrued:
(Cap.65)

Provided that the right of action shall not be deemed to have accrued to any beneficiary entitled to a future interest in the trust property, until the interest fell into possession.

(3) No beneficiary as against whom there would be a good defence under the provisions of this Act shall derive any greater or other benefit from a judgment or order obtained by any other beneficiary than he could have obtained if he had brought the action and this Act had been pleaded in defence.

[23]	The plaintiff submits that she is the administratrix of late Samuela Cola and is filing this action on behalf of her children and herself. 

[24]	To plead under section 9 of the Act the plaintiff has to satisfy court on the following grounds:

9.-(1) No period of limitation prescribed by the provisions of this Act shall apply to an action by a beneficiary under a trust, being an action-

(a) 	In respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or

(b) 	To recover from the trustee, trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use.

[25]	The plaintiff in her pleadings has not alleged fraud. Even at the submissions stage the plaintiff stopped short of alleging fraud. In the absence of fraud the plaintiff has to satisfy the requirement under Section 9(1)(b) to overcome the preliminarily objection. However, I find the plaintiff has failed to lead any evidence and satisfy court to plead under Section 9(1)(b) of the Limitation Act. The plaintiff has failed to submit any evidence or documents to satisfy when her husband Samuela Cola died or that she was the administratrix of Samuela Cola or her right to sue. It was incumbent on the plaintiff to prove this in view of the objection taken by the defendant. 

[26]	This court has considered the case of Kem –v- Narayan [2010] FJHC 571 where the facts and circumstance are different to the case before me. This court also has considered the decided case of Kamachi –v- Suva Private Hospital. HBC 39 of 2011. 

Conclusion

[27]	This court is also of the view that when a trustee gets the property transferred to himself he has to hold it in trust for the beneficiaries. It is incumbent on a trustee to see the conclusion of the administration of the estate speedily and transparently. However in this instance as per the facts of the case and the objections raised the plaintiff has failed to sufficiently address court or place adequate material to overcome the preliminary objection.

[28]	As submitted I find it has taken 13 long years for the plaintiff to take an interest to force the Trustee to conclude the administration of the late Samuela Ole's estate. That is also after the original trustee had died. After a slumber of 13 long years the plaintiff has now filed this application to get Samuela Ole's estate administered not by the trustee but by the trustee's administrator. As submitted "equity aids the vigilant and not those who slumber on their rights." 

[29]	In view of the preliminary objection raised, I think the plaintiff has failed to satisfy court with sufficient material to overcome the objection under the Limitation act. 

[30]	For the above stated reasons I hold that defendants have been successful in their preliminary objection, thus the originating summons dated 18/11/2013 stands dismissed. 

[31]	In view of the particular nature of this case parties to bear their own cost. 

……………………………..
Mayadunne Corea
JUDGE