IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HPP 41 of 2016

IN THE ESTATE OF ABDUL HAMID   								late of Kavuli, Tavua, Fiji, Cultivator, Deceased, 								Testate.

AND

IN THE MATTER of Succession, Probate and 							Administration Act applied by ABDUL HAMID 							of Kavuli, Tavua, Fiji, Cultivator.

___________________________________

BETWEEN	:	ABDUL LATEEF of Kavuli, Tavua, Fiji, Cultivator.
PLAINTIFF

AND	:	ABDUL MUNAF of Field Forty, Lautoka, Businessman.

DEFENDANT

BEFORE	 :	Master Vishwa Datt Sharma

COUNSEL          :	Mr. Filipe   for the Plaintiff
Mr. Rosa    for the Defendant

Date of Ruling     :	03rd August, 2018 @10am

RULING
[Application to remove the Executor and Trustee pursuant to Section 35 of the Succession Probate and
Administration Act Cap 60 and Order 85 of the High Court Rules, 1988.]

INTRODUCTION

1.	The Plaintiff filed this Originating Summons and sought for the following orders:
(a)	That the Defendant be removed and/or discharged from acting as the Executors and trustees of the ESTATE OF ABDUL HAMID late of Kavuli, Tavua, Fiji, cultivator, deceased, Testate who died on the 2nd day of May, 1989 at Lautoka Hospital, Lautoka, Fiji pursuant to the Will dated 14th September, 1987 and pronounced the validity in the grant of Estate under Probate Number 24799.
(b)	That the Plaintiff be appointed as the personal representative/trustee of the ESTATE OF ABDUL HAMID late of Kavuli, Tavua, Fiji, cultivator, Deceased, Testate.
(c)	That the Defendant delivers the Probate Grant in action No. 24799 to the Court within seven (7) days of Court Order.
(d)	That the said Grant Probate No. 24799 and records be noted to this effect.
(e)	That a new Grant of Probate in the deceased Estate be issued under the name of the Plaintiff as the personal representative executor and trustee.
(f)	That the cost of this action be borne by the Defendant.
2.	This application is made pursuant to Section 35 of the Succession Probate and Administration Act Cap 60 and Order 85 of the High Court Rules, 1988.
3.	The Defendant filed the Acknowledgment of Service on 12th October, 2016, and expressed his     “intention not to contest the proceedings”.
4.	Therefore this was an uncontentious Probate proceeding before this court for determination. 
THE LAW
5.	Section 35 of the Succession Probate and Administration Act Cap 60 deals with the removal of executor and provides as follows:
35. The court may for any reason which appears to it to be sufficient, either upon the application of any person interested in the estate of any deceased person or of its motion on the report of the Registrar and either before or after a grant of probate has been made-
(a) make an order removing any executor of the will of such deceased person from office as, such executor and revoking any grant of probate already made to him; and
(b) by the same or any subsequent order appoint an administrator with the will annexed of such estate; and
(c) make such other orders as it thinks fit for vesting the real and personal property of such estate in the administrator and for enabling the administrator to obtain possession or control thereof; and
(d) make such further or consequential orders as it may consider necessary in the circumstances.
6.	Order 85 Rule 4 of the Fiji High Court Rules 1988 states that:
"In an administration action or such an action as is referred to in rule 2, the Court may make any certificate or order and grant any relief to which the plaintiff may be entitled by reason of any breach of trust, wilful default or other misconduct of the defendant notwithstanding that the action was begun by originating summons, but the foregoing provision is without prejudice to the power of the Court to make an order under Order 28. rule 9, in relation to the action."
  PLAINTIFF’S CASE
7.	The Plaintiff is and was at all material time a beneficiary in the Estate of Abdul Hamid.
8.	The Defendant is and was at all the material time the sole executor and trustee of the estate.
9.	The late Mr Abdul Hamid deceased died Testate on 2nd May 1989 at the Lautoka Hospital, Lautoka.
10.	The deceased left a Will dated 14 September 1987 appointing the Defendant as the sole executor and trustee of his will.
11.	The Defendant was granted Probate No. 24799 for the estate on 10 July 1989.
12.	The deceased was the proprietor of the land comprises in CT 17337 being Lot 34 on DP 3401 (hereinafter referred to as "the estate property").
13.	The Plaintiff is alleging that the Defendant has abused his powers as the Executor and Trustee and without consulting other beneficiaries of the Estate has sub-divided the land into lots and sold and utilised the funds.
14.	The Plaintiff is now seeking an order for the removal of Abdul Munaf as the Executor and Trustee from the Estate of Abdul Hamid and appoint the Plaintiff as the Administrator instead.   
ANALYSIS and DETERMINATION
15.	The issues for this Court to determine are as follows-
(a)	 “Whether the Defendant, Abdul Munaf has abused his powers as the sole executor and trustee of the estate? AND
(b)	“If the Defendant is found to have abused his powers, whether the abuse of power is sufficient to remove him as the executor and trustee?
16.	The Plaintiff and the Defendant are brothers and lawful children of the deceased Abdul Hamid.

The Will and Probate Grant
17.	The Deceased died intestate leaving behind a duly executed ‘Will” dated 14th September, 1987 appointing Abdul Munaf as the sole Executor and Trustee of his Estate. Probate Grant No. 24799 was issued by the Court to Abdul Munaf on 10th July, 1989.
18.	The Deceased’s wishes as expressed in accordance of his Will dated 14th September, 1987, the Estate property situated at Kavuli, Tavua was to be distributed in the following manner:
a.		2 acres of freehold land to Abdul Shamim absolutely;
b.		2 acres freehold land to Niaz Asif All son of Arnir All absolutely;
c.		5 acres of freehold land to Abdul Azam son of Wali Mohammed absolutely;
d.		The residue of the property both real and personal to the trustee upon trust to:
(a)	provide maintenance, travelling and medical expenses to Amine Bibi for her life;
(b)	provide maintenance, travelling, marriage and medical expenses to Abdul Lateef (Plaintiff);
e.		Upon the death of Amine Bibi to give, devise and bequeath the residue of the testator's estate property to the Plaintiff.
Abuse of Power as the Executor and Trustee
19.	The Plaintiff appraised court with the following facts:
•		“That the Defendant has sub.-divided the estate property comprised in CT 17337 (Annexure A) into    3 lots being CT 39398 (Annexure B), CT 39399 (Annexure C) and CT 39400 (Annexure D) respectively;
•		The Defendant without consulting the beneficiaries sold CT 39399 and CT 39400 to one William Morrison and utilized the settlement funds for his personal use;
•		The Defendant has registered CT 39398 under his name whereby the Plaintiff has placed a caveat on it;
•		The Defendant did not transfer 2 acres of the estate property to Abdul Shamim contrary to clause     3 of the will;
•		The Defendant did not transfer 2 acres of the estate property to Niaz Asif Ali contrary clause 4 of the will;
•		The Defendant did not transfer 5 acres of the estate property to Abdul Azam contrary 10 clause 5 of the will;
•		The Defendant did not provide maintenance, travelling, medical and marriage expenses to the Plaintiff contrary to clause 6(b) of the will;
•		The Defendant has not transferred the remaining property to the Plaintiff contrary clause 7 of the will after the demise of Amina Bibi in 2006;
•		It is evident from the Defendant's conduct that he had abused his powers as the executor and trustee by sub-dividing the estate property and selling for personal gain contrary to the intentions of the testator;
•		The Plaintiff and other beneficiaries have been greatly prejudiced for over 27 years by no receiving their shares in the estate property;
•		The beneficiaries have been denied the use and income they could have generated over the years from their respective shares;
•		The Defendant indicated in his Acknowledgment of Service filed on 12 October 2016 that he does not intend to defend this proceeding showing his lack of interest and sense of accountability in the administration of the estate;
•		The Defendant has failed to show cause as to why he should remain the executor and trustee of the estate of Mohammed Hamid;
•		Therefore, it is evident that by keeping the Defendant as the executor and trustee will cause further loss and harm to the beneficiaries of the estate arid will prevent the trust from being properly executed”.
20.	The Defendant was represented by Solicitor who informed court that the Defendant had filed his Acknowledgment of Service wherein he has expressed his intention not to defend this proceeding.
21.	From the Acknowledgment of Service filed herein and upon the Counsel’s confirmation to court, that it became obvious to court that if the Defendant had no intention whatsoever to contest the proceedings, then this application was unopposed and /or the allegations of abuse of power raised by the Plaintiff went unchallenged.
IN CONLUSION
22.	Therefore, the allegations raised by the Plaintiff of abuse of power in disposition of the Estate property of the Deceased by the Defendant in his capacity as the Executor and trustee was clearly an admission on the part of the Defendant.
23.	I am in the above circumstances satisfied with the affidavit evidence and the written submissions and find that the Defendant Abdul Munaf in his capacity as the Executor and Trustee has abused his powers in the administration of the Deceased Estate and has failed to carry out his duties and responsibilities that of an Executor and Trustee appointed in the Estate of Abdul Hamid.
24.	It is only appropriate and I make an order and remove the Defendant, Abdul Munaf and discharge him from the duties and responsibilities in his capacity as the Executor and trustee of the ESTATE OF ABDUL HAMID late of Kavuli, Tavua, Fiji, cultivator, deceased, Testate who died on the 2nd day of May, 1989 at Lautoka Hospital, Lautoka, Fiji pursuant to the Will dated    14th September, 1987 and pronounced the validity in the grant of Estate under Probate Number 24799 forthwith.
25.	The Deceased Estate still needs to be fully administered in terms of the Deceased’s Will dated      14th September, 1978 and therefore it is appropriate that I make the following further orders:

(a)	That the Plaintiff, Abdul Lateef is hereby appointed as the personal representative/administrator of the ESTATE OF ABDUL HAMID late of Kavuli, Tavua, Fiji, cultivator, Deceased, Testate.
(b)	That the Defendant, Abdul Munaf delivers the Probate Grant in action No. 24799 to the Court within seven (7) days of Court Order.
(c)	That the said Grant Probate No. 24799 and records be noted to this effect.
(d)	That a new Grant of Letters of Administration with Will annexed in the deceased Estate be issued under the name of the Plaintiff as the personal representative and the Administrator of the deceased Estate.
(e)	That the cost of this action be borne by the Defendant and is summarily assessed at $650 to be paid within 7 days’ time frame.
26.	For the Rational as discussed hereinabove, I proceed to make the following final Orders:

FINAL ORDERS
(a)	That the Defendant, Abdul Munaf is hereby removed and discharged him from the duties and responsibilities in his capacity as the Executor and trustee of the ESTATE OF ABDUL HAMID forthwith.
(b)	 That the Plaintiff, Abdul Lateef is hereby appointed as the personal representative/administrator of the ESTATE OF ABDUL HAMID late of Kavuli, Tavua, Fiji, cultivator, Deceased, Testate.
(c)	That the Defendant, Abdul Munaf delivers the Probate Grant in action No. 24799 to the Court within seven (7) days of Court Order.
(d)	That the said Grant Probate No. 24799 and records be noted to this effect.
(e)	That a new Grant of Letters of Administration with Will annexed in the deceased Estate be issued under the name of the Plaintiff as the personal representative and the Administrator of the deceased Estate.
(f)	That the cost of this action be borne by the Defendant and is summarily assessed @ $650 to be paid within 7 days’ time frame.

DATED AT SUVA THIS 03RD August, 2018

       

	…………………………………..………………….
								Master
	MR VISHWA DATT SHARMA
				        
cc: 	Messers Howell & Associates, Tavua
       Messers Zodiac Law, Rakiraki