THE HIGH COURT OF FIJI AT LABASA
CIVIL JURISDICTION
CIVIL ACTION NO. 38 OF 2012
         BETWEEN:	
	                                                      MANSOOR ALI
				          PLAINTIFF  
	    AND	
                                                          AZAM ALI
                                                        DEFENDANT

CONSOLIDATED WITH CIVIL ACTION NO. 43 OF 2012
                                                         BETWEEN:	                                         
                                                           SHAMIMA
          				          PLAINTIFF  
          		                                        AND
                                                           AZAM ALI
		              	         DEFENDANT

COUNSEL:            Mr  A. Sen for the plaintiffs
	                    Mr  R. Singh with Mr K. Gosai for the defendant
Dates of hearing:     9th,10th and 11th May, 2016
Dates of Judgment  12th August, 2016
                                                                 JUDGMENT
1.	These proceedings are brought by Mansoor Ali and Shamima against Azam Ali, the trustee of the estate of Mohammed Ali. Mohammed Ali bequeathed his sole property known as “Raviravi” at Niurua to his sons Isaq Ali, Usman Ali, Hasim Ali, Azam Ali and Yusuf Ali and his grandson Farooq Ali. Isaq Ali, Usman Ali, Hasim Ali and Yusuf Ali passed on. Azam Ali, the defendant is the sole surviving trustee, after the demise of Usman Ali. Mansoor Ali, the plaintiff in Action No.38 of 2012, is the son of Yusuf Ali and sole executor and beneficiary of his estate. Shamima, the plaintiff in Action No. 43 of 2012, is the daughter of Usman Ali.  The plaintiffs allege that the defendant fraudulently sold “Raviravi” to Totoka Islands Limited for $1,750,000.00 and converted a substantial part of their entitlements for his benefit. The plaintiffs seek a declaration that the defendant breached the provisions of the will and the Succession, Probate and Administration Act and the defendant pay damages from his personal estate. Mansoor Ali also seeks a declaration that he is entitled to be paid his loss and damage from the balance of the defendant’s share and entitlement. The plaintiffs claim general and punitive damages, interest and costs.
2.	The defendant states that he obtained the written approval of Mansoor Ali and all the other beneficiaries to sell the land. Mansoor Ali acknowledged and accepted his share. As regards the other beneficiaries, the distribution of the sale proceeds was done in consultation with the administrators of the deceased heirs.

The pleadings
Action No. 38 of 2012
3.	Mansoor Ali, in his statement of claim states that Mohammed Ali. Yusuf Ali died testate appointing him executor and sole beneficiary of his estate. On 2nd July, 2012, the defendant paid him a sum of $102,893.00, declaring that it was his total entitlement. The defendant has refused to pay his full entitlement of $291,666.66, being one sixth of the sale proceeds nor provide accounts of administration.

4.	The defendant, in his statement of defence states that Mansoor Ali, by letter of  23rd June, 2009, requested him to sell his father's share of the land. The land could not be sold for 20 years. Mansoor Ali was fully informed at all times of the progress of the sale and is estopped from claiming otherwise. Mansoor Ali signed a letter dated 2nd May,2012, and a receipt on 2nd July, 2012, in full settlement for $102,893.00. The defendant counter-claims for interest on a sum of $ 200,000.00, which he states was jointly owned by him and his wife. Mansoor Ali had obtained an ex parte injunction freezing that amount, until the determination of this action.

Action No. 43 of 2012
5.	Shamima, in her statement of claim states that she is a daughter of Usman Ali. Usman Ali died intestate. Shamima states that she brings this action for her entitlement and on behalf of the daughters of Hasim Ali, the daughters of Usman Ali, the daughters of Jahoor Ali and sisters of Farooq Ali. Shamima avers that the defendant distributed some of the sale proceeds among the grandsons of the deceased and $ 1000 each to some of the grand-daughters. Shamima claims that the estate of Usman Ali’s is entitled to $291,666.66, being one sixth of the sale proceeds.

6.	The defendant, in his statement of defence  states that:
•	Shamima has no locus standi vis a vis him " in either capacity". She has no share or entitlement in the estate of Mohammed Ali.
•	She has not established any right to act on behalf of the estate of Mohammed Ali nor the several parties named in her statement of claim.
•	The following acted as administrators de-son-tort: 
Masooq Ali, Mubarak Ali (prior to his death), Liakat Ali, Habib Ali and Imam Aliin the estate of their father Isaq Ali.
Shakit Ali, Imdad Ali and Akbar Ali in the estate of their father Hasim Ali.
Shaukat Ali, Sabid Ali and Shareef Ali in the estate of  their father Usman Ali.
•	Farook Ali is a beneficiary named in the will. The  claim by Shamima, on behalf  of Farook Ali's sisters is ill conceived.
•	None of the beneficiaries found a buyer and failed to occupy and develop their shares occupied under a "notional subdivision by agreement between the original beneficiaries under the will " nor contribute to the costs of administration. There was no income from the land. All costs were met by the defendant. 
•	He occupied and developed his share of the land. He had assets on the land, at the time of the sale. All the beneficiaries allowed him an agreed sum for his development.
•	Decisions relating to the division of the sale proceeds were done by agreement with Mansoor Ali and persons who acted on behalf of the estates of the other beneficiaries.

7.	The plaintiffs, in their replies to defence join issue with the defendant and state as follows:
i.	The defendant displayed a "very compassionate relationship", as sole trustee, surviving son of the deceased and a senior member of the family whom they could rely on.
ii.	The defendant improperly transferred the whole funds into his personal account and “siphoned and dealt” with the funds without distributing it to the plaintiffs and other beneficiaries.
iii.	The defendant wrongfully and/or unlawfully withdrew and gave funds to members of his family, his personal friends and relatives. The fraudulent claim made by the defendant's wife fortifies their assertion of fraud.
iv.	The defendant never discussed the will nor the administration of the estate with the plaintiffs and other beneficiaries.
v.	Mansoor Ali states that he had accepted the sum of $102,893.00, on the basis of representations made by the defendant and the will shown by him. He was told that there were thirteen beneficiaries and the money would be share equally between them. Once it was communicated to him that his entitlement was only $100,000.00, he sent a letter of approval believing the same to be true.
vi.	After he secured the sale of the estate property through a real estate agent, the defendant “discreetly and dishonestly cajoled” Mansoor Ali into believing that $ 100,000 was his entitlement and there were 13 beneficiaries. He paid certain sums of monies to “male members of the famil[ies] of Usman Ali and Hasim Ali] and a pittance to the rest”.
vii.	In his defence to counter-claim, Mansoor Ali states that it was imperative that the funds were freezed, as there was grave danger the funds would be dissipated.

8.	The hearing
(a)	PW1,(the plaintiff in Action No. 38 of 2012)
PW1,in evidence in chief said that he obtained probate in the estate of his father Yusuf Ali. His father told him that Mohammed Ali had given him the land, but never mentioned his will. His father lived with his grandfather and cultivated rice on the land.
PW1 called the defendant “Bara Appa”- big Dad, as he was older than his father. He treated him like his father and trusted him fully. He was kind and generous to him. He brought him goat from the land. 
Prior to the sale, the defendant told him that his grandfather had given a share of the land to his father and thirteen others, as mentioned in a piece of paper he showed him. The defendant did not disclose the will. 
The defendant discussed the sale of the land with him, but not the price nor that he would employ a real estate agent or a lawyer. He did not allow him to participate in the negotiations. 
The land was sold on 5th March,2012. PW1 said that he first came to know the land was sold at $1.75 million, when the defendant phoned and told him to email his acceptance of $ 100,000.

At that point, Mr Sen, counsel for the plaintiffs moved to delete paragraph 10 of the statement of claim in 38 of 2012, under Or 20. Mr Singh, counsel for the defendant had no objection to the deletion.
PW1 continued to state that the defendant did not ask him to renounce his share in the estate of the deceased nor did he inform him of his entitlement to 200 acres of the land, as sole beneficiary of Yusuf Ali. The defendant paid him $ 102,893.00.
PW1 said that on 2nd July,2010,when he went to the Bank with his brother in law Hamid to withdraw monies to give his disabled brother and sister, he met Zikar. Zikar asked him how much he received. PW1 replied that he received $102, 893.00. Zikar then told him that he had not got the correct amount from the defendant, as he has the recent will. He told him that the will had six beneficiaries, not thirteen, as PW1 believed. 
PW1 immediately went to Zikar’s house with his brother in law. Zikar showed him the will. PW1 said that it was a big shock to him. He felt cheated. 
He went to the defendant’s house and told him that he should not be getting $ 102,893. He asked the defendant to show the will. The defendant’s attitude changed dramatically. He was angry and chased PW1 and his brother in law from his house.
PW1 said that he asked the defendant for accounts of  administration. The accounts were not provided. Subsequently, accounts were given, after an Order was obtained for the defendant to answer Interrogatories.
Mr Sen referred the witness to the affidavit of the defendant filed on 26th June,2014, with the accounts of the estate. There was no income or expenditure prior to the sale.  The expenses included: payment of tax to FIRCA of $ 175,000; $ 150,000 to the real estate agent and $5131.25 to Mitchell Kell, lawyers totaling $330,131.25. The defendant had not disclosed that he would be paying 9% to a real estate agent. Under the Real Estate Agency Act, real estate agents are entitled to charge 3 to 5 %. 
The accounts sets out the distributions made and includes $ 202,301.45 paid to Farook Ali. There is a donation of $ 35,398.57 and other variable expenditure of $50,000. No particulars have been given. There is no evidence of valuation of the residential property of the defendant at $65,000 nor fencing at $15,000,(as contained in the subsequent accounts filed). PW1 said that there are receipts for purchase of a fridge and microwave, which are not related to the estate.
Mr Sen then referred to the accounts filed with the affidavit of the defendant on 8th October,2014. This accounts refer to medical and funeral expenses of the testator, travelling expenditure, “variable expenditure” such as donations and $ 40,000 for “[b]eautifying the trust property” etc, which are not referred to in the June account nor related to the estate. 
The will does not authorise the executor to make donations. PW1 said that he agreed to a donation being made to  mosques and cemeteries. The receipts post the sale of the land relate to the defendant’s house in Wailevu.
Next, Mr Sen referred to the accounts filed by DW2, (the defendant’s Accountant Zoid Hussein) on 11th September,2015, pursuant to an Order of  Court. This provides that $175,000 was paid to FIRCA and a tax refund was obtained of $114,718.33, which was not disclosed in the earlier accounts .A valuation of the defendant's house by a registered valuer was not provided.
At the commencement of his cross-examination, Mr Singh moved for an adjournment till the next morning, in order to get specific instructions from DW2, who had prepared accounts of the estate, on the ground that he did not have the opportunity to meet him, as he was from Labasa.
I declined the application. The accounts were filed in Court by the defendant on 11th September,2015. Counsel are required to consult with their witnesses prior to the commencement of the trial.
PW1 denied that he had never stayed on the land and his father had fled from Niurua to stay at Batinikama, where he worked at the FSC mill. He said that his father worked on the land, when the mill was not operating.
At that stage, Mr Sen submitted that these matters are not covered in the issues raised at the PTC. Mr Singh replied that the value of the land was in dispute, as the will is specific as to what was allocated to each beneficiary. Mr Sen said that there is no dispute on the price the land was sold. The land was not valued prior to the sale. PW1 was claiming one-sixth that amount. He further submitted that the issues do not deal with the valuation of the land. If it did, he would have called an Agricultural Officer and a Land Valuer to testify.
Next, it was put to PW1 that the document that was shown to him by the defendant with thirteen names was not the will, but a document depicting the manner the defendant was to distribute the land. PW1 replied that the document was not given to him. The defendant said that he was trustee and owner of the land.
He denied that his intention was to renounce the rest of his share. He was asked why he confirmed and accepted the share given to him. PW1 said that he would not have accepted that his share was $100,000 and signed a receipt, if he knew his share was $ 291,666.66. He did so, because he was told by the defendant that his father’s share was one thirteenth of the sale proceeds.
He denied that he was not interested in this land, for the reason that he had several properties in Australia. 
PW1 said that he was not aware that the defendant could not sell the land for more than 20 years. It was freehold land. The services of a real estate agent and a solicitor were not necessary.
Finally, it was put to PW1 that the defendant had proper consultation with all the elders in the family and the beneficiaries, before any decision was made and did not chase him out of his house.
In re-examination, PW1 said that the defendant told him on the phone that $ 100,000 was his share and to write an acceptance letter. Mr Sen asked him if the letter he wrote states that he accepted the money, in his capacity as executor and trustee. His answer was in the negative.
(b)	PW2, (Shamima, the plaintiff in Action No. 43  of  2012)
PW2 said that she was the daughter of Usman Ali. There were three brothers and three sisters in her family. One sister passed away. The other two are Safina Bi and Samna Bano. PW2 said that her father had told her she had a share in the estate of her grand- father.
She was unaware if probate had been taken in the estate of her father. She had been brought up on the land and remained there till her marriage. Her father did rice farming on the land. He did not leave the land.
When the land was sold, the defendant did not have consultations with her. She has brought this action, to get her entitlement in the estate of her father.
It was put to PW2  in cross-examination that she had no share in the estate, once she was married. She replied that her father had told her that she had a share in the estate. She was aware that her brothers received some money, but was not aware of the amount they received. She said that she did not receive any money. She denied that she signed a document accepting $1000. 
In re-examination, she said that she had never been to school. She reiterated that she did not sign any document accepting $ 1000.
(c)	PW3, (Samna Baro)
PW3 said that she was the daughter of Usman Ali. The defendant did not tell her that he was selling the land. He did not have a family gathering to discuss the sale.
Her father lived on the land. He never left the land. The defendant, her Uncle cultivated the land. He did not give her any money. PW3 said that she wants her entitlement and  costs of bringing these proceedings.
In cross-examination, she was asked how she could claim entitlement to her father's share, when probate was not taken in his estate. She said that she was unaware if her father had written a will, but when he was alive, he told her that she had a share in the land.
She had three brothers: Shaukat, Sabir and Sharif Ali. It was put to her that her three brothers received $ 72427.63 each, as in their culture the sons, not daughters are provided for. Her response was that in the Muslim culture, sons and daughters are treated equally. 
She was unaware if her brothers received their share and maintained she wants her share.
Next, it was put to her that she should ask her brothers for her share, since the defendant could not contact her, as she was in Suva.
(d)	PW4,(Kamrul Nisha)
PW4 said that she was the daughter of Hasim Ali. She and her father lived in Vunimoli and Niurua.
The defendant never consulted her when he was selling the land. She never received any money from the defendant. She heard that all the shares were distributed to her brothers and the girls would receive $ 1000 each. She said that she wanted her share.
In cross-examination, she said that she was unaware if probate was obtained in her father's estate. Her mother was alive and received $ 15000. It was put to her that her mother was entitled to her father's estate before her.
When it was put to PW4 that she has no locus to bring this action, Mr Sen submitted that the witness is bringing the action against the defendant, as executer and trustee in the estate of Mohammed Ali, not against the defendant himself. In the interrogatories, the defendant said that notwithstanding the intestacy and no grant has been taken, he does not have an account as how the money is being distributed. Mr Singh, in reply said that the issue was one of locus. Since her mother was still alive, under the rules of intestacy, she must institute legal proceedings, not the witness. Mr Sen submitted that the witness cannot answer a question on locus, as it is a legal question. 
PW4 was aware that her three brothers received $ 66426.30 each. She said that she declined to accept the $ 1000 offered by the defendant.
In re-examination, PW4 said that she was told that her brothers received money, but was not aware of the amount.
(e)	PW5,(Sakimal Nisha)
PW5 said that she was the daughter of Hasim Ali. She grew up in Niurua. Her father lived and worked on the land.
The defendant did not invite her to participate in the negotiations leading to the sale nor tell her that the land was sold for $ 1.75m He did not give her a share of the land. He did not offer any money to her.
In cross-examination, she said that she heard that her brothers received money from the defendant. When she heard that she was to receive $ 1000, she and her sisters did not go to receive that money.
(f)	PW6,(Saiful Nisha)
PW6 was also a daughter of Hasim Ali and grew up in Niurua. 
She said that the defendant, her Uncle told her that there was a foreigner who wanted to buy the land for $1.75m. The defendant told her that he would give all the girls their share.
In cross-examination, she said that she was unaware if her brothers received $ 66426.30 each.
(g)	DW1,(the defendant)
DW1 said that when he became the sole surviving trustee, the land was bushy and there was no road. A creek and wharf was made, as there was no road for transportation. His brother helped.
DW1 said that his father and six brothers decided how to divide the land, as there were two houses and improvements were done on part of the land.
Mr Sen objected to the leading of this evidence, as there is no pleading on the subdivision and that the land was sold as a whole. Mr Singh accepted that the land was sold as a whole and not valued prior to the sale, but relied on paragraph 3 of the will.
DW1 described the portion of land which was to be bequeathed to Usuf Ali. He said that Yusuf Ali moved away from the land after he got married.
Next, DW1 said that he engaged a real estate agent to sell the land. He asked PW1,(Mansoor Ali), if there was anyone in Australia who would purchase the land, but he did not find a purchaser.
After he found a buyer, he informed PW1. PW1 asked him if he will receive $ 30,000 or $ 40,000. DW1 told him he will give him $100,000 and asked him to write to him, his “Big Dad”, that he will accept his father’s share of $ 100,000. DW1 read and produced  the contents of  a letter of  2nd May, 2011, written by PW1.
DW1 said that he had a meeting in his house on 10th May, 2012, with the sons of all his brothers. He produced the minutes of that meeting, which stated in paragraph 3 that “Every body in the family has agreed and are happy with share distributed”.
He engaged a lawyer Mr Morgan for the transfer. His fees was $ 18000. DW1 distributed $ 206,000 and kept $ 208,000 for himself. He used part of the $ 114,718.33, received as a tax refund, to make  improvements on the land.                          
In cross-examination, DW1 said that when his father passed away, he became the “owner” as trustee and looked after the land as no one else was there. He discussed the matter with his brothers and made decisions. He agreed that the six beneficiaries of his father’ will had 200 acres each. He did not have a valuation of the land, in relation to each share, as provided in the will.

Mr Sen asked DW1, to produce the account and inventory of the estate of 2005. He said that it was with his late brother Usman Ali. When asked to produce subsequent inventories before he sold the land, he said that he had given everything to his lawyers.
He said that the land had zero assets. All the cattle and goats had been removed by his brothers. He did not make a scheme of payment to the beneficiaries, prior to distribution.
He denied that he did not show the will to PW1. Mr Sen asked DW1 how he could deny that he showed PW1 a paper with 13 to 14 names of the people he was going to distribute the sale proceeds to, when his solicitor in cross-examination had questioned PW1 on that document. He then answered that the paper is in his “transport”.
He agreed that he was PW1’s “Bara Appa” and took the place of his father. PW1 respected him and regarded him as a very honest and compassionate person.
DW1 said that PW1 was very happy when he gave him the cheque. DW1 denied that he had an heated argument with PW1, when three days later, he came with his brother in law and complained he had received less. He said that he gave him more than what he was supposed to be given as PW1 was not born on the land nor did he work on the land.
He confirmed that he said “ if I had not given a cent out to anybody, nobody could do anything to me”.
He agreed that after Court made order on 10th July, 2012, to provide proper accounts of administration in the estate, not a single distribution was made. When it was put to him that accounts were filed on 26th June,2014, two years after order was made for him to provide accounts, he answered that his lawyer was preparing the accounts.
He said that he did not have any consultations with the daughters of Usman Ali, before he made distribution. He did not have minutes of meeting of consultations. He gave the daughters a gift from his heart.
He said that the probate of Hasim Ali was taken out, but not that of Usman Ali. He said that the beneficiaries of Hasim Ali were ascertained. In that context, it was put to him that he was lying, since in one of the questions to the interrogatories as to whether he had ascertained if the beneficiaries in the estate of Hasim Ali entitled to a share  before distributing their share, he had answered he did not know at the time of the sale but has ascertained now. 

The girls were married.  He gave the sons as well as to the daughters. All the sons were given equally except Mansoor Ali. It was put to DW1 that Mansoor Ali did not renounce his balance share nor state in his receipt that he is receiving the share in full settlement of his father’s share.
It was shown from the bank statement attached to the affidavit of DW2(Accountant, Zoed Hussein) that he had $377,307.40 in his account on 10th July,2012, when an  injunctive order was made requiring him to pay $ 200,000 into Court. On the next day, he withdrew a sum of $147,307.00 by cheque and $ 30,000 by cash.  DW1 said that he took out the money to repair his house and “buy things like fridge and other stuff”. He said that he now has a balance of $ 200 and lives on social welfare. 
A sum of $35,398.57 was given as gifts and donations. He was asked whether he had got authority from Mansoor Ali to give donations. 
DW1 said that he could not get a valuation of his house, as it was in the jungle and no Valuer would go there. He deducted $ 80,000 for his house from the tax refund of $ 114,718.33.
In re-examination, DW1 said that he studied up to class 6. In his thirty five years of work experience, he had not engaged in the preparation of accounts. He filed three sets of accounts in Court. 
He reiterated that after he was ordered to place $ 200,000 in Court, he used the balance $ 177,000 to repair his house, buy a fridge and furniture and for fencing of his house in Wailevu.
(h)	DW2,( Zoid Hussein, Accountant at HLB Crosbie and Associates)  
DW2 said that he compiled the accounts filed in Court on 11th September,2015, post the sale of  the land.
 The initial information he received was the sale proceeds of the land for $ 1.75 million. There was no sale and purchase agreement. A sum of $175,000.00 was paid as capital gains tax to FIRCA, being 10% of the sale price. The fees of the real estate agent was $ 155,131.25. The balance $1.534m was available for distribution.

Under variable expenses, a sum of $49,373.00  was deducted. There were no invoices and documentations to verify that expenditure. In such cases, he said that an  estimated amount is taken. A sum of $80,000.00 was deducted for the house owned by the defendant. The land was sold with his house.
DW1 was the sole administrator for about 7 years and a weekly pay of $68.00 was determined for 52 weeks over a period of 7 years to reach a figure of $25,000.00. There were additional expenses incurred by him such as donations and gifts for $35,398.50. The total income from sale of the property was $1,344,815.51, after deduction of all expenses. The total figure recorded for distribution of shares was $1,028,209.01. 
There was a tax refund of $114,718.33 which came into the bank account on the 25th May,2012.$34,718.83 was distributed amongst the beneficiaries. The balance was $281,887.67.
It transpired in cross-examination that the witness did not have a letter of appointment nor authorization from HLB Crosbie & Associates to give evidence. The witness was not a Chartered Accountant. He had a Diploma in Business Accounting. It emerged that a Chartered Accountant has not verified nor signed the accounts. 
DW2  said that he did not carry out a verification of the information provided by DW1 nor an audit. The accounts were verified by his Manager, Sanjay Ram Saxena.
There was no solicitors trust account reconciliation statement and no tin number.  He had not seen receipts in respect of the tax paid nor the real estate agents fees of $ 155,131.25. 
It was put to the witness that legal fees were paid to Mitchell Karl, not Gibson and Company nor Sheik Shah, which are not related to the sale. 
There was no debt or expenditure prior to the sale. Mr Sen said that DW1 testified that the only expenses he incurred was $1500 in 1994 and 1995.
The witness said that there was no evidence of water supply, but there were photos.  There were no plans nor a valuation of DW1’s house. 
DW2 was unaware whether the trust instrument authorized the trustees to claim  expenses. DW1 did not provide any evidence of any expenditure post March, 2012 : the date the land was sold. There was no evidence of payment of $5,786.38 to the estate of Yusuf Ali. After the tax refund of $ 114,718.33  was received, $80,000.00 of that money was used by DW1 for his house.
Mr Sen concluded that DW1 has “walk[d] away” with the following sums of money: $281,887.00, $25,000, $80,000 (being part of the tax refund less $ 34,718.83 given as donations, in respect of which there are no receipts) and the variable expenditure claimed. 
In re-examination, DW2 reiterated that documents were not made available by DW1. He said that his report was done as a financial statement. Receipts and invoices were not available, so “ we took the words from Mr Ali”. It was not an audit.

The determination 
The defendant’s summons to extend time for filing closing submissions
9.	At the conclusion of the hearing on 11th May,2016, Mr Sen and Mr Singh requested three weeks time to file closing submissions, in view of their professional commitments. I made order that closing submissions be filed by both parties simultaneously, on or before 31st May, 2016.

10.	 On 9th June,2016, the solicitors for the defendant filed notice of motion moving that the time allowed for filing of closing submissions be extended. The reasons stated in the affidavit in support were that counsel who conducted the trial fell ill on 17th May, 2016, and had to travel to Lautoka High Court for a hearing on 27 May, 2016.

11.	The matter was supported before me by Ms Vreetika, counsel for the defendant on that occasion. Mr Sen submitted in reply, that if the defendant’s application was allowed, the plaintiffs must have a right of reply, as their submissions were filed on 27th May,2016.

12.	I declined the application. The application was made after the time for filing submissions had lapsed. I note that the two medical certificates attached to the affidavit in support provides that counsel was ill from 18th to 23rd May,2016. The closing submissions could well have been prepared after 23rd May, 2016. 

The deletion of paragraph 10 of  the statement of claim
13.	Mr Sen, in the course of the evidence in chief of PW1, deleted paragraph 10 of the statement of claim in Action no. 38 of 2012, under Or 20.  Mr Singh had no objection to the deletion. 

14.	Subsequently, Mr Singh sought to lead evidence through DW1 that the six beneficiaries were bequeathed different parts of the land under clause 3 of the will. 

15.	Mr Sen objected to the leading of that evidence, since neither the pleadings nor the issues  raised at the PTC provide that the beneficiaries were bequeathed different lots of land. On the contrary, it is an agreed fact that “[t]he defendant has one sixth entitlement from the sale proceeds of $ 1,750,000.00”.   

16.	Mr Singh argument was that with the deletion of paragraph 10 of the statement of claim, the agreed fact cannot stand. He agreed however, that each beneficiary has one-sixth share, including PW1.

17.	Paragraph 10 of  the  statement  of  claim reads:
THAT the defendant informed the plaintiff of the sale of the said certificate of title and advised him that he would distribute his share and entitlement being one sixth(1/6) of the sale price and promised to render to him proper accounts of administration, upon conclusion of the estate affairs.

18.	In my view, clearly the agreed fact that the defendant has one sixth entitlement from the sale proceeds does not arise from paragraph 10. 

19.	I note that albeit clause 3 of the will provided that “ the lot in which the store is located shall belong to Usman Ali, and the next lot shall belong to Farooq Ali, and the next to Azam Ali, and the next to Yusuf Ali, and the next to Hasim Ali and the last lot to Isaq Ali”, the land was admittedly, sold by DW1 as a whole and not valued prior to the sale, neither as a whole nor as discrete lots.

Action No.38 of 2012
20.	The issues recorded at the PTC read as follows:
1.	Did the defendant correctly represent to each beneficiaries his/her share and entitlement before distribution?
2.	At the time of distribution of monies, did the defendant correctly account for the said sum of $114,718.33?
3.	Were the beneficiaries advised of the tax refund?
4.	Did the defendant inform the plaintiffs of the tax refund?
5.	Did the defendant distribute tax refund to the plaintiffs?
6.	Were the calculations done correctly when distributing share to the plaintiffs?

21.	 The case for the plaintiff is that he was not paid his share, in terms of the will of Mohammed Ali. The land was sold at $ 1.75m. His full entitlement was one-sixth of the sale proceeds. On 2nd July,2012, the defendant paid him a sum of $102,893.00, declaring that it was his total entitlement. 

22.	 The riposte of the defendant was that the plaintiff acknowledged the value of his late father’s share and signed a receipt in full settlement, as provided in the following documents.

23.	 On  2nd May,2012, the plaintiff wrote:
I, Mansoor Ali,..will hereby look forward to accept my father’s share of FJ$100,000.00 on the sale of my grandfathers property at Narua, Labasa, Fiji Is, in which my father, Yusuf Ali is one of the beneficiary.

24.	His receipt of 2nd July, 2012, as referred to in the statement of defence provides that he “agrees to the allocated sum of $102,893.00 given..for being full settlement distribution.".

25.	PW1, in his evidence said that the reasons he agreed to accept the allocated sum were as follows. When the land was sold, the defendant phoned him and told him to email his acceptance of $ 100,000. The defendant did not show him the will. He told him that there were thirteen beneficiaries, as contained in a document he showed him. PW1 said that he would not have accepted and signed a receipt in full settlement, if he had known that his share was $291,666.66.The defendant did not inform him that he was entitled to 200 acres of the land.

26.	 The defendant’s(DW1) explanation in cross-examination for giving PW1 less than the other beneficiaries was that he was neither born on the land nor worked on the land.  He said that PW1 received more than what was supposed to be given. DW1’s position was that he was the owner of the land, after the demise of the other executors and “if [he] had not given a cent out to anybody, nobody could do anything to [him]”. 

27.	On that contention, I would cite Sim J. in McGregor v. McGregor (No.2) (1919) N.Z.L.R. 286 at p.287:
In the present case (the trustee) was guilty of much more than mere obstinacy. He denied altogether the existence of the trust, and claimed as his own the whole of the trust estate. It is impossible for a trustee to be guilty of more serious misconduct than that in relation to the trust, and the fact that the trustee may have honestly believed that his claim was justified does not make his action, in my opinion, any the less misconduct on his part.( emphasis added)

28.	 In cross-examination, DW1, agreed that PW1 had complete trust in him, his “Bara Appa”, who acted in loco parentis. PW1 respected him and regarded him as a very honest and compassionate person. DW1 accepted that he showed PW1, a paper with thirteen to fourteen names of the people he was going to distribute the sale proceeds to. 

29.	It is evident to me that PW1 put his complete trust in DW1.

30.	It is not in dispute that PW1 went with his brother in law to DW1’s house on 5th July,2012, three days after he received the monies and complained that he received less. There followed on 7th July,2012, the writ filed in this action.

31.	On a review of the evidence as a whole, I am of the view that the plaintiff accepted the sum of $ 102893.00, as at that stage he believed, on representations made by the defendant, his “Big Dad” that it was his fathers’ share. I do not find that the plaintiff had renounced his full entitlement under the will, as was suggested by the defence.
32.	 That leads me to the accounts of the estate. Three sets of accounts have been filed in Court: on 26 June, 2014, 8 October,2014, and 11th September,2015.

The final accounts 
33.	The “FINAL ACCOUNTS OF ADMINISTRATION” filed by DW2 on 11th September,2015, relate to a period after the sale was effected.

34.	Halsbury, Laws of England, (4th Ed) Vol 17, paragraph 1185 states:
..The general principle is that the estate must bear the expenses incident to the proper performance of the duties of the personal representative as personal representative but not the expenses involved in the execution of the trusts which arise after the estate has been administered or an assent given..(footnotes omitted, emphasis added)

35.	The accounts commence with a “Statement of Disclaimer” which provides that the “compilation” of “the Statement of Receipt and Payments for Estate of Mohammed Ali.. is limited primarily to the collection, classification, and summarization of financial information supplied by our client. A compilation does not involve the verification of that information. We have not carried out an audit or a review assignment on the financial statements .”

36.	The plaintiffs do not dispute the sum of $ 60,281.67 paid to FIRCA.

37.	Under “FIXED EXPENSES” a sum of $155,131.25 is deducted as paid to a real estate agent. No receipt was produced in support. The accounts filed on 8th October, 2012, depicted $150,000.00  was paid to a real estate agent. 

38.	 The variable expenses of $ 49,373.00 comprise of legal fees of $15,750.00 to Gibson & Company, Solicitors, and $3,800.00 to Sheik Shah, Solicitors; water supply:$2,000.00; construction of wharf and road access: $1,000.00; telephone/vodafone:$2,340.00; generator expenses $1603;fencing: $4500; family gathering:$2000 and motor vehicle expenses/travelling :$16,380.

39.	DW1, in his evidence, stated that the transfer was effected by Mr Morgan. The receipts attached from Gibson & Co relate to the present Action 43 of 2012, which in my view, cannot be charged from the estate. DW2 admitted in cross-examination that the stated legal fees are not related to the transfer of the land and there was no evidence of the other expenditure claimed under variable expenses. There was no debt before the sale. 

40.	Next, there is a deduction of $ 80,000 for DW1’s residential property. The final accounts provide that there was “[n]o written evidence” that that DW1’s house was sold separately. DW2, in cross-examination admitted that the house was not valued prior to the sale. The defendant told him to give that value.

41.	 There are no receipts to establish that the defendant incurred expenses in a sum of $ 25,000, as claimed. DW2’s explanation was that DW1 was the sole administrator for about 7 years and a weekly pay of $68.00 was determined for 52 weeks over a period of 7 years to reach a figure of $25,000.00.

42.	The “ADDITIONAL EXPENSES” revealed several unauthorized donations and items of expenditure  improperly charged to the estate account. 

43.	DW2, in cross-examination said that “we took the words from Mr Ali”, since he did not make available any invoices of expenditure or receipts.

44.	The shares distributed include payment of $ 202,301.45 to Farook Ali,(one of the six beneficiaries under the will) and several other beneficiaries in varying sums. 

45.	It emerged that there are many discrepancies in the three sets of accounts of the estate filed in Court. Several items of expenditure not disclosed in the accounts  filed in June,2014,  and October,2014, are shown in the later accounts and vice versa.

46.	I reach the conclusion that clearly, the estate has been wrongly administered by the defendant. The defendant was in breach of his duty as trustee to consult with the beneficiaries before making the several alleged payments, in respect of which there are no invoices nor receipts. 
47.	 Halsbury, Laws of England, (4th Ed) Vol 17(2), paragraph 801 states:
It is the duty of the personal representatives to keep clear and accurate accounts, and always to be ready to render such accounts when called upon to do so.(footnotes omitted)

48.	In my judgment, the plaintiff, (Mansoor Ali) is entitled to a declaration that the defendant has breached the provisions of the will of Mohammed Ali and the Succession, Probate and Administration Act. He is entitled to be paid his entitlement by the defendant.

Counterclaim
49.	The defendant counter claims for interest on the sum of $ 200,000 he was ordered to deposit in Court, consequent to an application made by PW1. 

50.	No evidence was adduced in support of his contention that the $ 200,000 was jointly owned by the defendant and his wife.

51.	On the contrary, the statement of the defendant’s bank account, which commences from March, 2012,(when the sale was effected) depicts that the defendant had $377,307.40 in his bank account on 10th July,2012, at the stage an  injunctive order was made restraining him from withdrawing funds up to $ 200,000.On the next day, he withdrew a sum of $147,307.00 by cheque and $ 30,000 by cash.

52.	In my judgment, clearly the sum of $ 200,000 belongs to the estate. 

53.	I decline the counter claim.

Action No. 43 of 2012  
54.	 I will first deal with the objections raised by the defence.

55.	The defendant, in his statement of defence in Action No. 43 of 2012, has taken up the position that Shamima, the plaintiff cannot maintain this action, since letters of administration have not been taken out in the estate of Usman Ali.

56.	In O’Brien v Seagrave and Another,[2007] 3 All ER 633 it was held that a potential claim under the Inheritance(Provision for Family and Dependants) Act,1975, could be an “interest.. in the estate”. Judge Mackie QC at pages 636 to 637 said:
The claimant has a clear and accepted financial interest in the outcome of this dispute and one would therefore in general expect her to have a right to bring an action of this kind……….
 It is true that judgment for the claimant will not of itself produce an immediate financial result but that is equally true of other areas of litigation where a claimant is permitted to go ahead most obviously many claims for declarations.

57.	In my view, Shamima has an interest in the estate of Mohammed Ali. She is entitled to bring this action as daughter of Usman Ali, a beneficiary in the estate.

58.	The defendant, in his statement of defence in Action No. 43 of 2012, quite correctly points out that Shamima is not authorised to bring this action on behalf of the persons named in the statement of  claim. 

59.	I do not find any authorization given by the named persons to Shamina to bring these proceedings on their behalf. 

60.	PW2 said that her father had told her she had a share in the estate of her grand- father. When the land was sold, the defendant did not have consultations with her. She brings this action, to obtain her entitlement in the estate of her father.

61.	She was aware that her brothers received some money, but was not aware of the amount. She denied that she signed a document accepting $1000. No evidence was produced to the contrary. I accept her evidence in this respect.

62.	DW1, in cross examination admitted that he did not have any consultations with the daughters of Usman Ali, before he made distribution. He said that the girls were married and he gave the daughters a gift from his heart. 

63.	I need hardly deal with that contention. 
64.	As Fry L.J. in Re Lepine, [1892] 1 Ch 210 at 219 said “it is the duty of trustees to hold a perfectly even hand between all their cestuis que trust.”.

65.	In my judgment, Shamima is entitled to a declaration that the defendant has breached the provisions of the will of Mohammed Ali and the Succession, Probate and Administration Act. She is entitled to be paid her entitlement in the intestate estate of Usman Ali by the defendant.

66.	The plaintiffs have not led evidence of damages and the rate of interest to be awarded nor have these matters been addressed in their closing submissions.

67.	Orders
(i)	I grant the plaintiffs in Actions nos 38 of 2012 and 43 of 2012, a declaration that the defendant has breached the provisions of the will of Mohammed Ali and the Succession, Probate and Administration Act.
(ii)	I grant the plaintiffs in Actions nos 38 of 2012 and 43 of 2012, a declaration that they are entitled to be paid their share, in terms of the will of Mohammed Ali,  by the defendant in his personal capacity.
(iii)	I decline the defendant’s counterclaim.
(iv)	The defendant is ordered in his personal capacity, to pay costs summarily assessed of $ 2000 to each of the plaintiffs.

At Suva                                                                                              A.L.B. Brito-Mutunayagam                                                                                12th August, 2016                                                                                                                   Judge