IN THE HIGH COURT OF JUSTICE

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO Claim No. CV IN THE HIGH COURT OF JUSTICE In the matter of an Application to enlarge the Estate of Batoolan Mohammed (Deceased) who died on the 24 th January Estate No. L1671 of 1982 And In the matter of an Application by the Claimant Abrahim Wahid Mohammed Also called Wahid Abrahim Mohammed to be substituted as the Legal Personal Representative of the said Estate or both the Claimant and the Defendant Abrahim Razack Mohammed also called Abrahim Mohammed jointly be substituted as the Legal Personal Representatives of the said Estate as Ousman Ali Mohammed (Deceased) and Lazina Hazra Ohree (Deceased) The Legal Personal Representatives of the Estate are deceased Between Abrahim Wahid Mohammed Also called Wahid Abrahim Mohammed also called Abrahim Mohammed Claimant And Abrahim Razack Mohammed Also called Abrahim Mohammed And The Administrator General of Trinidad and Tobago Defendant Respondent BEFORE THE HONOURABLE MR. JUSTICE ROBIN N MOHAMMED Appearances Ms. Ngozi Ihezue instructed by Mr. Noel John for the Claimant Mr. Anthony V. Manwah for the Defendant DECISION Page 1 of 7

2 Introduction, Application and Procedural History 1. By Notice of Application filed on the 24 th February, 2014, the Claimant seeks to set aside an order entered on the 11 th February 2014 striking out his Claim Form and Statement of Case as disclosing no grounds for bringing or defending the claim. 2. On the 7 th October, 2013 the Claimant filed his Claim Form and Statement of Case, seeking a declaration that a chattel house at No. 47 Sellier Street, Curepe is the property of the intestate Batoolan Mohammed, an order that the Claimant or the Claimant and the Defendant be allowed to make an application to the High Court of Justice for leave to enlarge the estate of the intestate to include the said chattel house and the tenancy rights to the land on which it stands, an order that the Claimant or both the Claimant and the Defendant be substituted as the legal personal representatives of the said estate to include the said chattel house and tenancy rights as Ousman Ali Mohammed and Lazina Hazra Ohree, the legal personal representatives, are now deceased and an injunction restraining the Defendant and his agents or servants from selling the said chattel house and tenancy rights until after the application for enlargement of the intestate s estate. 3. On the 9 th January 2014, the Defendant filed a Notice of Application for the Claimant s application to be struck out pursuant to Part 26.2(1)(c) of the Civil Proceedings Rules ( CPR ), the ground of the application being that the Claimant s Statement of Case discloses no ground for bringing the claim. An affidavit in support was also filed indicating the reliance of the Defendant on the Claim Form and Statement of Case in support of his application to strike out. On the 11 th February, 2014, upon reading the Notice of Application filed on the 9 th January, 2014 and the supporting affidavit of even date, and upon hearing attorney-at-law for the Defendant, the Claimant not appearing and unrepresented, it was ordered that the Claim and Statement of Case be struck out pursuant to rule 26.2(1)(c) of the CPR. Further, costs in the sum of $4,500 were ordered in favour of the Defendant. The order was made subject to the filing of an affidavit of service of the Application to strike out on the Claimant s Attorney on or before the 25 th February, This was duly filed on the 12 th February, On the 24 th February, 2014 the Claimant filed her application to set aside the order made on the 11 th February, On the 2 nd April, 2014, it was ordered that written submissions be filed by the Claimant in relation to that application on or before the 17 th April, It was further ordered that the Defendant file a response to those submissions on or before the 28 th April, Submissions were filed by parties on the 15 th April, 2014 and the 28 th April, 2014 respectively. Page 2 of 7

3 Issue Whether the order made on the 11 th February, 2014 should be set aside? 5. The Order which the Claimant now seeks to set aside was made pursuant to rule 26.2(1)(c) of the CPR which provides as follows- The Court may strike out a statement of case or part of a statement of case if it appears to the Court- (c) that the statement of case or the part to be struck out discloses no grounds for bringing or defending a claim. The Claimant was not present at the hearing of the Defendant s application to strike out. However, rule of the CPR gives the Court the power to proceed in the absence of a party where notice of the application has been served. Accordingly, on the date of the hearing, the Court, having considered the Defendant s application and supporting affidavit, determined that the Claim Form and Statement of Case disclosed no grounds for bringing the claim and accordingly they were struck out. This order was made subject to the filing of an affidavit of service of the application to strike out on the Claimant s attorney on or before the 25 th February, This affidavit was duly filed on the 12 th February 2014 and it indicated that the Notice of Application was served on the Claimant s attorney s office on the 28 th January 2014 and that it was received by one Vinash Marajh. The Notice of Application stipulated the date and time that the application was to be heard. 6. In her written submissions filed in support of her application to set aside the order of the 11 th February 2014, Counsel for the Claimant refers to the Claimant s application as being one to set aside default judgment entered against the Claimant for nonappearance 1. [Emphasis mine]. The order to strike out clearly states that it was made pursuant to rule 26.2(1)(c) of the CPR- it was made on the basis that the Claim Form and Statement of Case disclosed no cause of action for bringing the claim. The order made was not one for default judgment for non-appearance. 7. In her written submissions, Counsel for the Claimant treats with the order as if it were one for judgment in default of appearance and relies upon rule 13.3(1) of the CPR. Rule 13.3(1) of the CPR states as follows- The court may set aside judgment entered under Part 12 if- (a) The defendant has a realistic prospect of success in the claim; and 1 Paragraphs [4] and [5] of written submissions filed on behalf of the Claimant on the 15 th April, Page 3 of 7

4 (b) The defendant acted as soon as reasonably practicable when he found out that judgment had been entered against him. 8. The application of rule 13.3 is thus premised on the particular order having been made pursuant to Part 12 which concerns default judgments. As was said before, the order is question was made pursuant to Part 26.2(1)(c) and not Part 12. It was not an order for default judgment. Accordingly, rule 13 is not applicable in the instant circumstances and such reliance thereupon by Counsel for the Claimant is misplaced. 9. Rather Counsel for the Claimant ought to have proceeded under rule of the CPR. That rule provides as follows: 11.17(1) A party who was not present when an order was made may apply to set aside that order. 10. That application to set aside must be made within 7 days after the date on which the order was served on the applicant 2. Further, that application must be supported by evidence showing- (a) a good reason for failing to attend the hearing 3 ; and (b) that it is likely that had the applicant attended some other order might have been made 4. (a) Is there a good reason for failing to attend the hearing? 11. Both the Notice of Application filed on the 24 th February 2014, and the affidavit in support of same of even date set out particulars purporting to explain why neither the Claimant nor his attorney attended the hearing on the 11 th February, 2014, being the date on which the order in question was made. They are substantially the same in substance and claim that the Claimant s clerk repeatedly visited the Civil Registry of the High Court to enquire about the date of the hearing of the said matter. However, he was informed by one of the clerks at the Civil Registry that the office of Noel John will be informed as to the date for the hearing of the said matter. It is claimed that to date no date was given to the Claimant s attorney and the Claimant s attorney thought that once a date was fixed his office would be informed. 2 Rule 11.17(2) of the CPR. 3 Rule 11.17(3)(a) of the CPR. 4 Rule 11.17(3) (b) of the CPR. Page 4 of 7

5 12. It is claimed that on the 17 th February, 2014 the Claimant s attorney was before the Court in another matter and the Defendant s attorney was also appearing in the said matter on the said date. It is said that the Claimant s attorney enquired from the Defendant s attorney when the matter would be heard and was taken aback when the latter stated that the said matter was heard on the 11 th February, 2014 and was dismissed for nonappearance of the Claimant s attorney. 13. The Claimant claims that repeated attempts were made by his attorney s clerk to determine the date of the matter. No particulars are provided as to when such enquiries were in fact made. Further, it is claimed that to date no date was given to the Claimant s attorney and it was thought that once a date was given the Claimant s office would be informed. The Notice of Application to strike out was served on the Claimant s attorney s office as evidenced by the affidavit of service and accompanying copy of the Notice of Application bearing the endorsement of Vinash Marajh as having received same at 2:20 pm on the 28 th January, This Notice of Application contained the date and time of the hearing of the matter. Accordingly, it is incorrect for the Claimant to advance that his attorney had no notice of the date of the matter as indeed, his attorney s office was in fact informed of the date. Notice of the Application having been served on the Claimant s attorney s office over two weeks before the date on which the matter was to be heard, it cannot be said that the Claimant has advanced evidence showing good reason for the failure of either his attorney, or by extension, himself, for failing to attend the hearing on the date on which the disputed order was made. (b) Is it likely that had the applicant attended some other order might have been made? 14. In applying to set aside an order, rule 11.17(3) of the CPR requires not only that the applicant must show good reason for failing to attend the hearing but also that it is likely that had the applicant attended some other order might have been made. The Claimant s Claim Form and Statement of Case were struck out on the basis that they disclosed no grounds for bringing a claim. The Claimant seeks a declaration from the Court that a chattel house belonging to the intestate forms part of the deceased s estate, permission for leave to enlarge the said estate to include the said chattel house and the tenancy rights to the lot of land on which that house stands and an order substituting either the Claimant or both the Claimant and the Defendant, his brother, as the legal personal representatives of the estate of the deceased to include the said chattel house and tenancy rights as the legal personal representatives are now deceased. Thus, in substance, what the Claimant is seeking is to enlarge the deceased s estate, and more particularly, the locus firstly to do so, in circumstances where the appointed legal personal representatives of the intestate have died. In the circumstances, the appropriate avenue to do so is to make an application Page 5 of 7

6 for letters of administration de bonis non administratis to the probate registry of the Supreme Court, rather than to bring a claim for the orders set out above. 15. According to Parry & Clark s The Law of Succession, 10 th ed., a grant of administration de bonis non administratis (a grant de bonis non) is made in respect of a deceased s unadministered estate. Such a grant is by its nature limited as to the property to which the grant extends, its purpose being to enable the administration of the estate to be completed. 16. A grant de bonis non is made following the death of a sole, or last surviving, personal representative who died without having fully administered the deceased s estate. There must have been a prior grant of probate or letters of administration to the personal representative who has died. 17. According to the Claimant, the deceased died leaving four children, two of whom were the legal personal representatives of the estate who have since died. The Claimant and his brother remain. It is for the Claimant to either seek his brother s consent for him (the Claimant) to seek letters of administration de bonis non of their mother s estate or for them to jointly do so. There is no mention of this having been done in the Claim Form or Statement of Case. It is open to the Claimant to apply for letters of administration de bonis non without the Defendant, having given Notice of his application to him 5. Again, this was not done. It is after the Claimant has been granted letters of administration that he may then seek to amend the inventory of the deceased s estate to include the chattel house and tenancy rights. As it stands, the Claimant s application to this Court at this juncture is misconceived as this Court is not the proper forum. It is only if, in making the appropriate application for letters of administration de bonis non that contentious issues arise, the jurisdiction of this Court ought to be invoked. The appropriate course of action at present is for the Claimant, whether solely or jointly with the Defendant as discussed above, to have an application for a grant of letters of administration de bonis non made on his behalf to the probate registry of the Supreme Court 6. At this stage, the Claimant must seek to adhere to the non-contentious procedure and only if contentious issues arise then can he seek to invoke the contentious jurisdiction of the High Court. 18. In the circumstances, had the applicant been present at the hearing of the matter on the 11 th February, 2014, it is likely that this Court would have arrived at the same conclusion that the Claim Form and Statement of Case ought to be struck out as disclosing no cause of action for bringing a claim. Accordingly, the Claimant s application to set aside that order fails. 5 Rule 24 of the Non-Contentious Business Rules, First Schedule, Wills and Probate Act, Chap. 9:03. 6 Rules 1 and 2 of the Non- Contentious Business Rules, First Schedule of the Wills and Probate Act, Chap. 9:03. Page 6 of 7

7 19. In light of the foregoing, the order of the Court is as follows: ORDER 1. The Claimant s Notice of Application to set aside the Order of the 11 th February 2014 be and is hereby dismissed. 2. The Claimant shall pay to the Defendant costs to be assessed pursuant to Part CPR 1998 in default of agreement. 3. In the event that costs are not agreed, the Claimant shall file and serve a statement of costs for assessment on or before the 23 rd July, The Defendant to file and serve objections, if any, on or before the 30 th July, Dated this 9 th July, 2014 Robin N. Mohammed Judge Post script: On the delivery of this decision, and after consultation between both attorneysat-law, Court has been informed that costs have been agreed in the sum of $2, to be paid by the Claimant to the Defendant. Page 7 of 7