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IN THE INTENDED MATTER OF JAI NARAYAN RAMCHARAN DECEASED AND IN THE INTENDED MATTER OF AN APPLICATION BY CHITRA KUMARIE PERAMOTO INTENDED APPLICANT [2006] TTHC 74 (1 December 2006)

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

H.C.A. No. 1376 of 2005

BETWEEN

IN THE INTENDED MATTER OF

JAI NARAYAN RAMCHARAN

DECEASED

AND

IN THE INTENDED MATTER OF

AN APPLICATION BY CHITRA

KUMARIE PERAMOTO

INTENDED APPLICANT

BEFORE THE HONOURABLE MADAM JUSTICE JUDITH JONES

Appearances:

Mr. Khan instructed by Ms. Dookeran for Plaintiff

Mr. Rambally for Intervenor

Ms. Ramjit for the Registrar - General

REASONS

The Applicant, Chitra Kumarie Peramoto, claims to be the surviving cohabitant of the deceased, Jai Narayan Ramcharan, and seeks from the Court an extension of time for the filing of the notification of interest required by section 25(3) of the Administration of Estates Ordinance Ch.8 No.1 as amended (“the Ordinance”).

The intervener, Evelyn Ramcharan, the lawful wife of the deceased, objects to the extension of time sought on the ground that the Court does not have the power to extend the time limited under the section.

Section 25(3) of the Ordinance provides:

“A surviving cohabitant claiming a share of the estate of an intestate under this section shall, within 21 days of the death of the intestate, file with the Registrar of the Supreme Court a notification of interest as the surviving cohabitant and, within three months thereafter or such other time as the Court considers appropriate having regard to all the circumstances, obtain an Order from the Court affirming the cohabitational relationship with the intestate and stating the quantum of the share of the estate to which the cohabitant is entitled.”

The application, made on the 27^th July 2005, gives the date of the death of the deceased as the 29^th January 2005.

The Intervener submits that the word “shall” used in the section is to be given its usual and ordinary meaning and is to be interpreted strictly. She submits that the section makes it mandatory for an applicant to do two things, file a notification of interest and obtain an order from the Court affirming the relationship. According to the submission, the fact that the section specifically gives the Court the discretion to extend the time for taking one of the steps and not both must mean that the intention of the legislature must have been that in order to found a claim the requirement of filing a notification of interest within the 21 day period must be strictly complied with and that the Court has no power to extend the time.

This Court was referred to various authorities in the course of the arguments. I need only to refer to two of them arising out of this jurisdiction. In both the relevant case law was examined.

In the case Dayfoot v Maharaj (1966) 10 WIR 493 the Trinidad Court of Appeal was called upon to consider whether the failure of the licensing committee to cause a notice of the appointment of the time and place of its next session to be published in the Gazette at least 28 days before the commencement of the session was fatal.

In that case, as in this one, the relevant section provided that the licensing committee “shall within 28 days at least before each licensing session….”

In arriving at the conclusion that the provisions as to notice were directory only Wooding CJ states at page 496 letter I to 497 letter C:

“We would refer also to the judgement of LORD PENZANCE in Howard v Bodington (1877) 2 PD 203 @ p 211 where speaking of the distinction between directory and imperative enactments he said that, after reading the cases, the tendency of his mind

“is to come to the conclusion which was expressed by LORD CAMPBELL in the case of the Liverpool Borough Bank v Turner (3) that:

‘No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with implied nullification for disobedience. It is the duty of the courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.’

“ I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory”

In Herbert Charles v The Judicial and Legal Service Commission and The Disciplinary Tribunal, Privy Council Appeal No 26 of 2001 the Privy Council had to consider the failure of an Investigating Officer appointed under the Public Service Regulations to comply with the time frame required for the taking of certain steps under the regulations. All the relevant time frames were introduced into the Regulations by the use of the word “shall”.

In the judgment, delivered by The Rt. Hon. Justice Tipping referring to the Privy Council decision of Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286 he states:

“Lord Slynn then said:

“their lordships consider that when a question like the present one arises-an alleged failure to comply with a time provision- it is simpler and better to avoid these two words ‘mandatory’ and ‘directory’ and to ask two questions. The first is whether the legislature intended the person making the determination to comply with the time provision, whether a fixed time or a reasonable time. Secondly, if so, did the legislature intend that a failure to comply with such a time provision would deprive the decision maker of jurisdiction and render any decision which he purported to make null and void?”

Some five years earlier the New Zealand Court of Appeal had taken much the same approach in New Zealand Institute of Agriculture Science Inc v Ellesmere County [1976] 1 NZLR 630. Cooke J (now Lord Cooke of Thorndon) speaking for the court said at 636:

“Whether non-compliance with a procedural requirement is fatal turns less on attaching a perhaps indefinite label to that requirement than on considering its place in the scheme of the Act or regulations and the degree and seriousness of the non-compliance”.

Later in the said judgment in the Law Lords in referring to the case of Howard v Bodington (1877) 2 PD 203 quoted from the judgment of Lord Penzance as follows:

“There may be many provisions in Acts of Parliament which, although they are not strictly obeyed, yet do not appear to the Court to be of that material importance to the subject-matter to which they refer, as that the legislature could have intended that the non-observance of them should be followed by a total failure of the whole proceedings. On the other hand, there are some provisions in respect of which the Court would take an opposite view, and would feel that they are matters which must be strictly obeyed, otherwise the whole proceedings that subsequently follow must come to an end.”

It would seem to me therefore that in order to resolve the issue before the court it is necessary to ask the two questions posed by the Privy Council in Wang’s case and accepted in the Herbert Charles case in this manner:

1. Did the legislature intend a cohabitant to comply with the time provision?

2. If so did the legislature intend that a failure to comply with such a time provision would render the rights of a surviving cohabitant to inherit in the event of the intestacy of a cohabiting partner unenforceable?

The answer to the first question is obviously yes. The answer to the second question is not so obvious and requires an examination of the legislative scheme introduced by the amendment in order to ascertain whether the legislature could have intended that the non-observance of the time limit for the filing of the notification of interest with the Registrar of the Supreme Court should be followed by the inability of a cohabitant to claim an entitlement to share in the estate of the cohabiting partner.

Prior to September 2000 the law did not provide for a cohabitee to inherit or receive any benefit from the estate of a cohabiting partner who had either died intestate or who, in a will, had failed to make reasonable financial provision for the cohabitee. In September 2000 the Distribution of Estates Act, (“the Act”) described as an Act to amend the law relating to the distribution of estates of deceased persons, was passed. This Act amended the Succession Act, the Administration of Estates Ordinance and the Wills and Probate Ordinance.

Insofar as the Act amended the Succession Act the amendment related only to Part VIII of that Act dealing with the Family Provision, that is, that part of the Succession Act which allowed a spouse, former spouse or dependant of a deceased to apply to the Court in circumstances where the deceased had failed to make reasonable financial provision for the applicant.

Insofar as it is relevant to the instant case, the amendment:

1. repealed the whole of the existing definition section in Part VIII, section 94(1), and replaced it with a new section which introduced into the Succession Act a definition for “cohabitant”, “cohabiting partner”, “cohabitational relationship”;

2. redefined “reasonable financial provision” to include a reference to a cohabitant; and

3. Provided for a cohabitant to be treated in the same manner as a spouse or former spouse or dependant of the deceased by giving a cohabitant the right to apply to the court for an order that reasonable financial provision be made for that cohabitant out of the estate of the deceased.

Insofar as the Act amended the Ordinance, among other things, it included a definition of cohabitant and repealed then existing sections 23, 24. 25 and 26 and replaced them new sections including the section 25 which is now under scrutiny. The new section 25 provides for:

1. the distribution of the estate of the deceased, in circumstances of intestacy, to various persons including a cohabitant;

2. the identifying of that portion of the estate available for distribution to a cohabitant; and

3. the procedure by which the cohabitant may establish entitlement.

In my opinion it is clear from the legislation that by the passing of the Act the legislature intended that a cohabitee be given the right to inherit or to be maintained out of the estate of the deceased in a like manner as a spouse or child of the deceased.

Unlike a spouse or child of the deceased whose relationship to the deceased is recognisable by reference to a marriage or birth certificate there is no procedure for the registration of a “cohabitational relationship”. It is in these circumstances that section 25(3) sets out the manner in which such a relationship may be established.

Section 25(3) therefore does two things, first, it provides for the cohabitant to notify the Registrar of the Supreme Court of the cohabitant’s interest within 21 days of the death of the deceased and second, it requires the cohabitant to obtain from the Court an order affirming the relationship and stating the quantum of the share of the estate of the deceased to which the cohabitant is entitled. Such application is required to be made within three months or such time as the Court considers appropriate.

The purpose of the second requirement is obvious. It is this order that will afford the cohabitant the recognition given to a spouse by a marriage certificate and to a child by a birth certificate or paternity order. The order will, as well, allow the beneficiaries to the estate to ascertain that portion of the deceased’s estate available for distribution to the cohabitant.

What then is the purpose of the first requirement? The notification is to the Registrar of the Supreme Court. The Administration of Estates Ordinance provides that it is to the Registrar of the Supreme Court that all applications for the administration of estates are to be made. It would seem to me that the rationale for the requirement that the Registrar be notified could only be to put the Registrar on notice of the cohabitant’s interest in the event of an application for letters of administration being made in the estate.

Given the reason for the notification and in the light of the intention of the legislation to provide for a cohabitant to receive some financial benefit in the event of the intestacy of a cohabiting partner, it would seem to me that the legislature could not have intended that a failure to comply with the time frame for providing such notice would render the rights of the cohabitee unenforceable.

Of course that is not to say that the court is to ignore the fact that there is a time frame provided by the legislation. An applicant would be required to apply to the court to extend the time for the filing of the notice and put evidence before the court to satisfy it that it is reasonable for the court to exercise its discretion to extend the time for the filing of such notification. One of the factors that a court would have to consider in such a deliberation would of course be whether there was any prejudice suffered by any party by the applicant’s failure to file within the required 21 days.

The practice has been for an applicant to seek such relief as an adjunct to the order affirming the cohabitational relationship. In my opinion this is appropriate, particularly given the short time frame established by the Act, otherwise the Court will be flooded with applications merely seeking an extension of time for such notification. It seems to me that as a matter of practice the 21 days requirement is too short a time frame in the circumstances.

I find therefore that despite the use of the word “shall” in the Ordinance, and despite the fact that section 25(3) only purports to give the court the discretion to extend the time within which a cohabitant may make obtain an order affirming the cohabitational relationship and stating the quantum of the estate to which the cohabitant is entitled, the court has the jurisdiction to extend the time for the filing of the notification of interest as a surviving cohabitant with the Registrar of the Supreme Court.

Dated this 1^st day of December, 2006

………………………….

Judith A.D. Jones

Judge

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