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Sogabule v Sogabule [2023] SBCA 18; SICOA-CAC 9011 of 2023 (13 October 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. The Appellant is the widow of the late John Sogabule who died intestate on 6 September 2018. The Respondent is one of their children. On 21 April 2022 the Appellant filed an application for the grant of letters of administration. On 25 May 2022 letters of administration were granted to the Appellant. The Respondent also applied for letters of administration which was scheduled to be heard on the same day. He filed a letter with the Court on 24 May 2022 advising that he intended to object to the application by the Appellant but gave no grounds for his objection. Through his counsel he advised counsel for the Appellant that he would not pursue his application.
2. He was aware of the Appellant’s application but did not appear before the Registrar to pursue his objection. It is noted that in accordance with rule 3(1)(a) of the Grants of Probate and Administration (Order of Priority) Regulations, the Appellant as the surviving spouse of the Deceased was entitled to apply for the grant being the first in the order of priority.
3. On 7 November 2022 the Respondent brought an application to set aside the order for the grant of letters of administration to the Appellant. That application was heard on 13 March 2023. The Court delivered its ruling on 28 March 2023. It is that ruling which is the subject of the present appeal.
4. The Judge noted that the grant to the Appellant was made in the absence of the Respondent without his objection being heard. He considered it would not be fair to order the letters of administration to be amended to include the Respondent without giving the Appellant the opportunity to respond. He then ordered that the grant of letters of administration be set aside and directed the application be heard de novo so that both the Appellant and the Respondent can plead their cases.
5. There was a delay from the death of the Deceased on 6 September 2018 until the grant of probate to the Appellant on 25 May 2022. Counsel for the Respondent confirmed that during that time the Respondent had not filed any caveat with the Registrar pursuant to section 49 of the Wills Probate and Administration Act [‘the Act’].
6. The Appellant challenges the ruling relying on the proviso to section 48 of the Act. Section 48 provides as follows:
   • “48. If the Court is satisfied that a grant should be amended or revoked, the Court may make an order accordingly:
   • Provided that except in special circumstances no grant shall be amended or revoked under this section except on the application or with the consent of the person to whom the grant was made.”
7. It is clear that the Court had power to amend or revoke the grant to the Appellant subject to the proviso. The Appellant submits in the absence of the consent of the Appellant (there being no such consent) unless the Court found there were special circumstances section 48 does not permit the grant to be amended or revoked. The Judge did not make any finding that there were special circumstances. Without such a finding the Judge had no power to set aside the grant of letters of administration to the Appellant.
8. The Respondent submitted that as there was now a family disagreement about the administration of the intestacy, it would be fair to the parties to dismiss the appeal and allow the applications to be heard afresh. The submission ignores the requirement set out in the proviso that there be special circumstances before the Court can revoke or amend the grant. Not only did the High Court make no such finding, there is nothing before this Court that could amount to special circumstances. It perfectly normal for there to be family squabbles over the estate of a deceased person.
9. The real complaint appears to be about how the estate is administered. Section 84 of the Act makes it clear how the estate is to be divided. If there is a complaint about how that is done this is not the proper way to deal with those concerns.
10. Counsel for the Respondent accepted that the Appellant was first in priority in applying for the grant. He accepted that she had been granted the administration. He confirmed that his challenge to the appeal was on the basis of section 48 of the Act. He accepted that there had been no finding of special circumstances. When asked for clarification he said he was not abandoning his challenge to the appeal but would leave the matter to the Court.
11. The Respondent did not set out any details of his objection to the grant of administration in his letter to the Registrar. He knew about the hearing but did not attend. The letters of administration were properly granted to the Appellant as first in priority. Once the grant had been made, the proviso to section 48 prevented the Court from revoking or amending the grant without the consent of the Appellant unless there were special circumstances. There were no special circumstances and there was no consent from the Appellant. Accordingly there was no power to revoke the grant. The appeal is allowed. The grant of letters of administration dated 25 May 2022 remains in effect. The Appellant is permitted to administer the estate according to law without interference by the Respondent or other members of the family.
12. Given the concessions counsel for the Respondent was obliged to make regarding the proviso to section 48, the Court sought submissions on whether indemnity costs should be awarded. Responsibly, counsel for the Appellant recognised that as the dispute was within the family he sought costs only on the standard basis. The Respondent is to pay the costs of the Appellant in both the High Court and on the appeal on the standard basis, if not agreed then to be taxed.

Hansen (P)
Gavara-Nanu (JA)
Lawry (JA)