Citation: TT 2012 HC 393
Title: RAHIM, RAZIA Re:
Country: Trinidad and Tobago
Court: High Court
Suit No.: FH 586 of 2011
Judge(s): Mohammed, J.
Date: February 14, 2012
Subsubject: Interpretation – Administration of Estates Act, Chap 9:01, s. 25 (3) – Whether ‘shall’ could be construed as directory or mandatory.
Ms. Safiya Charles – for the applicant
Mr. Ken Winfield Wright – for the Interested Parties
Ms. Whitney Charles for the Chief State Solicitor (Administrator General)
INTRODUCTION AND APPLICATION
- MOHAMMED, J.: The applicant, Ms. Razia Rahim, claims to be the surviving cohabitant of the deceased, Mr. Neville Whiskey, who died on 27th day of October, 2005 at the Sangre Grande Hospital, Ojoe Road, Sangre Grande.
- On the 11th January, 2006, pursuant to section 25 (3) of the Administration of Estates Act Chap 9:01, the applicant filed a Notification of Interest with the Registrar of the Supreme Court in the Probate Registry of the High Court of Justice. This notice was filed some two and a half (2 ½ ) months after the death of the deceased, which fell outside of the statutory timeline of twenty eight (28) days stipulated by the said section 25 (3) of the Administration of Estates Act.
- On the 18th March, 2011 the applicant filed an Application wherein she sought the following reliefs:
(i) That the time for filing the Notification of Interest pursuant to section 25 (3) of the Administration of Estates Act Chap. 9:01 (hereinafter referred to as “the Act”) be extended to the 11th day of January, 2006.
(ii) That the time for filing this Application (to affirm the cohabitational relationship) pursuant to section 25 (3) of the Act be extended to the 18th March, 2011.
(iii) That a cohabitational relationship existed between the applicant and Neville Whiskey, deceased, who died on the 27th day of October, 2005 (hereinafter referred to as “the deceased”) for a period of more than five (5) years immediately preceding the death of the deceased.
(iv) That the quantum of the applicant’s share in the estate of the deceased is one half (1/2) pursuant to section 25 (1) and 25 (3) of the said Act.
- On the 19th day of May, 2011 this Court ordered inter alia:
(i) That the Administrator General to commission a field investigator’s report which is to be completed and submitted to the Court on or before 29th July, 2011.
(ii) That service of these proceedings to be effected on Linda Whiskey, Margaret Alcia also known as Margaret Whiskey Bennet, Anthony Whiskey and Gizelle Whiskey-Edwards (all children of the deceased and interested parties).
(iii) That permission is granted to effect service on Linda Whiskey and Gizelle Whiskey-Edwards by serving the said proceedings on either Glenda Whiskey-Williams or Joseph Whiskey who shall bring same to the attention of the said Linda and Gizelle accordingly.
(iv) That permission is granted to all interested parties to file and serve their response affidavits to the Application on or before 15th July, 2011 and consequently permission is granted to the applicant to file and serve a reply affidavit on or before 9th September, 2011.
- On the 26th day of August 2011 three of the interested parties filed their respective response affidavits. The field investigator’s report which was dated the 2nd August, 2011 was received on the 7th September, 2011.
- On the 29th of September, 2011 before the matter could proceed any further counsel for the interested parties, Mr. Ken Winfield Wright, made a preliminary objection to paragraphs 1 and 2 of the Application filed on 18th March, 2011 citing section 25 (3) of the Act and the statutory time frame of 28 days stipulated therein within which the Notification of Interest ought to have been filed.
- On the 11th January, 2012 the Court heard submissions from both sides on the preliminary objection. Mr. Ken Winfield Wright objected to the extension of time for the filing of the Notification of Interest sought by the applicant on the ground that it was out of time, being filed some three (3) months after the expiration of the statutory time limit, and further that the use of the word ‘shall’ in section 25 (3) of the Act should be interpreted as mandatory thereby preventing the Court from extending the time for filing the Notification of Interest.
ISSUES ARISING FOR DETERMINATION
- From the submissions made on the objection and the facts presented before the Court the following issues arise for determination before the matter can proceed any further:
(i) Whether the Court has the discretion to extend time for the filing of the Notification of Interest by the applicant? If so, under what circumstances should the Court exercise its discretion?
(ii) Whether the use of the word ‘shall’ as contained in section 25 (3) of the Act confers a mandatory interpretation of the requirements of the said section?
(iii) Whether the Court should exercise its discretion under section 25 (3) of the Act to extend the time for the filing of the application seeking an order affirming the existence of a cohabitational relationship between the applicant and the deceased under circumstances where the application is being filed some six (6) years later?
- The relevant section of the Act which is the subject of interpretation is section 25 (3) which provides as follows:
“A surviving cohabitant claiming a share of the estate of an intestate under this section shall, within twenty eight 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.”
- In order to determine the interpretation of the word ‘shall’ as contained in section 25 (3) of the Act one must first decipher the intention of Parliament. The intention of the Legislature is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. [Salomon v Salomon & Co Ltd  AC 22 at 38, HL]
- Where, then, there are no ambiguities in the provision to be interpreted or no contradiction between that provision and other provisions of the statute concerned, it is not difficult to discover the intention of the provision. In any other circumstances, however, the intention may be uncertain and open to argument. As Lord Watson said in Salomon v Salomon op. cit.:
“Various rules and presumptions of construction have therefore been developed over the years to aid the Courts in their task of interpretation, but, as will be seen from what follows, these rules and presumptions often appear to conflict and may be cited in support of either a narrow or a wide interpretation in any particular case.”
- The object of all interpretation is to discover the intention of Parliament. This intention must be deduced from the language used. [Capper v Baldwin  2 QB 53 at 61,  1 All ER 787 at 791 DC, per Lord Parker CJ] Statutes should be interpreted in such a way as to carry out the intention of the legislature or, as Lord Radcliffe said in Attorney General for Canada v Hallett and Carey:
“The paramount rule remains that every statute is to be expounded according to its manifest and expressed intention”. [Attorney-General for Canada v Hallet and Carey Ltd  AC 427 at 429]
- In Westminster Bank v Zang  1 All ER 114 at 120 Lord Reid shed some light on how the intention of Parliament is to be ascertained. He stated that –
“No principle of interpretation of statutes, however, is more firmly settled than the rule that the Court must deduce the intention of Parliament from the words used in the Act. If those words are in any way ambiguous — if they are reasonably capable of more than one meaning — or if the provision in question is contradicted by or is incompatible with any other provision in the Act, then the Court may depart from the natural meaning of the words in question; but beyond that we cannot go.”
- It is a well-established tenet of our statutory interpretation that the use of the word ‘shall’ generally indicates the legislature’s intention to make a provision mandatory, as opposed to discretionary. However, the Courts in recent times have held that the word ‘shall’ used in statutory provisions may, under certain circumstances, be construed as merely `directory’ rather than ‘mandatory’.
- In ascertaining the effect of the failure to comply with the relevant requirement, it is necessary to determine whether the requirement was intended by the legislature to be mandatory or merely directory. For this purpose it may be relevant to consider whether the person affected and the person bound are the same, and whether the thing done under the enactment is beneficial or adverse to the person affected. If the enactment is held to be mandatory, the failure to comply with it will invalidate the thing done under the enactment unless in its discretion the Court otherwise directs. Where, however, the relevant requirement is held to be merely directory, the failure to comply with it will not invalidate the thing done under the enactment; and the law will be applied as nearly as may be as if the requirement had been complied with. [Bennion Francis, Bennion on Statutory Interpretation (LexisNexis, 2008) 44 – 45]
- In Petch v Gurney (Inspector of Taxes) [19941 3 All ER 731 Millett LI said of the difficulty in deciding whether a statutory requirement is mandatory or directory (at 736):
‘The difficulty arises from the common practice of the legislature of stating that something ‘shall’ be done (which means that it ‘must’ be done) without stating what are to be the consequences if it is not done.’
- There are instances where statute confers a dual obligation. For example, where the Act requires something to be done in a particular manner, it may be possible to regard the requirement that the act be mandatory, but the requirement that it be done in a particular manner, as merely directory. In such a case the statutory requirement can be treated as substantially complied with if the act is done in a manner which is less satisfactory having regard to the purpose of the legislature in imposing the requirement. But that is not the case with a stipulation as to time. If the only time limit which is prescribed is not obligatory there is no time limit at all. Doing an act late is not the equivalent of doing it on time. [Petch v Gurney (Inspector of Taxes)  3 All ER 731 at 738 Millett LJ]
- The case of Robinson v Secretary of State for Northern Ireland and Others  UKHL 32 is illustrative. In that case the issue to be determined was whether the election by the Northern Ireland Assembly of a First Minister and Deputy First Minister on 6 November 2001, more than six weeks after the restoration of devolved government in Northern Ireland on 23 September 2001, was legally valid and that the vacancies cannot validly be filled by an election held after the expiry of that period. The relevant section of the Act considered by the Court was section 16(8) of the Northern Ireland Act 1998 which provides:
“Where the offices of First Minister and the Deputy First Minister become vacant at any time an election shall be held under this section to fill the vacancies within a period of six weeks beginning with that time.”
- Referring to the use of the word ‘shall’ and its implication when used, Lord Millet said:
“78. The requirement to hold an election within the six weeks is not discretionary but obligatory. This is the effect of the word “shall”: see R v. Secretary of State for the Home Department, Ex p Jeyeanthan  1 WLR 354, 358 per Lord Woolf:
“The requirement is never intended to be optional if a word such as “shall” or “must” is used.”
- In an earlier case of Wang v Commissioner of Inland Revenue  1 WLR 1286 Slynn LJ on considering the issue of statutory provisions which requests an act to be done within a particular time frame had this to say:
“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?”
- Similarly, in the case of H.C.A No. 1376 of 2005 In the Intended Matter of An Application by Chitra Kumarie, Madam Justice Judith Jones in interpreting section 25 of the Act and in particular, dealing with an issue which mirrors the one before this Court had this to say:
“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 in this manner:
(i) Did the legislature intend a cohabitant to comply with the time provision?
(ii) 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?”
- Like Madam Justice Jones, I would answer the first question in the affirmative. Again, if the only time limit which is prescribed is not obligatory there is no time limit at all. Doing an act late is not the equivalent of doing it on time.
- The second question to be answered is whether the legislature intended 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? In answering this question Jones, J. traced the history behind the Distribution of Estates Act, 2000 (DEA) which amended the Succession Act, Administration of Estates Ordinance (now an Act) and the Wills and Probate Ordinance (now an Act).
- Prior to the DEA surviving cohabitants were not entitled to apply for Letters of Administration to administer the estate of the deceased cohabitant who died intestate nor were they entitled to benefit from the estate as they were not recognized by law as having legal interest in the deceased’s estate. By the enactment of the DEA it was clearly the intention of Parliament that cohabitants be entitled to inherit or be maintained out of the deceased cohabitant’s estate. This in my opinion was the fundamental reason behind this amending legislation.
- Section 25 (3) of the Act does not state that the cohabitant is debarred from filing the notification of interest where there has been a failure to do so within the stipulated time. In Robinson v Secretary of State for Northern Ireland and Others 120021 UKHL 32
Millet LJ said in relation to an Act not stating what is to be the outcome should the time frame not be complied with:
“94. I think that section 16(8) operates in a similar but in one respect significantly different way. Like sections 16(2) and (3) it does not implicitly confer a power to elect the First Minister and deputy First Minister; it assumes the existence of such a power the source of which lies elsewhere. It superimposes on that power a requirement that an election (not, it should be observed, the election) be held within the six-week period, and provides for what is to happen if the vacancies are not filled within that time. BUT WHAT IT CONSPICUOUSLY DOES NOT DO IS PROVIDE THAT THE VACANCIES CAN BE FILLED ONLY WITHIN THE TIME LIMITED OR BY AN ELECTION HELD WITHIN THAT TIME. IN OTHER WORDS, IT DOES NOT EXPRESSLY MAKE THE ELECTION CONDITIONAL ON ITS BEING HELD WITHIN THE TIME ALLOWED. In this respect section 16(8) is to be contrasted with sections 16(2) and (3), which make the election of the First Minister and deputy First Minister conditional upon their standing jointly and receiving the requisite cross-community support.
- In my opinion the Assembly has power at any time to fill the offices of First Minister and deputy First Minister by election from among its members provided only that the requirements of section 16(2) and (3) are complied with. SECTIONS 16(1) AND 16(8) REQUIRE THE ASSEMBLY TO HOLD ELECTIONS TO FILL THE VACANCIES WITHIN THE RELEVANT PERIODS OF SIX WEEKS, BUT THEY DO NOT PRECLUDE IT FROM FILLING’ THE VACANCIES BY AN ELECTION HELD AFTER THE EXPIRY OF THAT TIME.” [Emphasis mine]
- Section 25 (3) of the Act specifies a time frame within which the surviving cohabitant ought to file the notification of interest, but it does not exempt her from filing the notification thereafter. The object of filing the notification of interest is to notify the Registrar of the Supreme Court (at the Probate Registry) of the cohabitant’s interest in the deceased’s estate in the event of any application by anyone for a grant of representation being made in the estate of the deceased. [H.C.A No. 1376 of 2005 In the Intended Matter of An Application by Chitra Kumarie]
- Moreover, many applicants are unaware of the required procedure regarding their status as cohabitants who wish to claim their rights under the Act. In some instances it is only when faced with a problem regarding the property of the deceased that they are informed of what they need to do in order to conduct any transaction regarding the deceased’s properties. In some cases this only comes about several months or even years after the death of the intestate by which time the surviving cohabitant is out of the statutory time frame.
- Like my sister, Madam Justice Jones, I find that despite the use of the word ‘shall’ in the Act, the Court has the jurisdiction and discretion to extend the time for the filing of the notification of interest as a surviving cohabitant with the Registrar of the Supreme Court in that the time limit specified in section 25 (3) of the Act is merely directory and not mandatory.
- Counsel for the applicant has also asked the Court to extend the time for the filing of her Application for an order declaring or affirming the cohabitational relationship with the intestate pursuant to section 25 (3) of the Act.
- The relevant part of section 25 (3) section reads:
“…..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.”
- It is here that the Act gives the Court the expressed discretion to extend the time for a surviving cohabitant to file an application for the declaration to affirm the cohabitational relationship. It is clear, therefore, that the Court has the jurisdiction and discretion to extend time both for the filing of the notification of interest with the Registrar of the Supreme Court and for filing of the application to affirm the cohabitational relationship under section 25 (3) of the Act. The question which must now be addressed is whether the applicant has satisfied the Court that having regard to all the circumstances it would be just for the Court to exercise its discretion in favour of the applicant.
- In order for the Court to grant the extensions sought, as with any order for an extension of time, cogent reasons must be provided for the delay in compliance.
- The applicant has deposed to three reasons for the delay in strict compliance with the provisions of section 25 (3) of the Act. These are:
(i) That her former Attorney-at-law applied for Letters of Administration without first making the application which is currently before the Court. [Applicant’s affidavit filed on 18th March, 2011, paragraph 15]
(ii) The she was ignorant of the fact that a notification of interest ought to have been filed within 28 days of the death of the intestate. [Applicant’s application filed on 18th March, 2011, ground 3]
(iii) That the period after the deceased’s death was traumatic for her since she depended solely upon the deceased. She had no knowledge of her rights and what documents had to be filed and that she was only informed of her right to make the application for Letters of Administration upon advice from her then Attorney-at-law. [Applicant’s affidavit filed on 14th November, 2011, paragraph 22]
- The Act is silent on what considerations the Court must take into account when exercising its discretion whether to grant extensions of time. The approach by the Courts in this jurisdiction in granting extensions of time was clarified by Jamadar JA in The National Lotteries Control Board v Michael Deosaran [Civ. Appeal No. 132 of 2007] at paragraph 53 where the learned Judge stated that the Court must consider “all the circumstances of the case with the overriding objective that justice be done…”
- The learned Judge then went on to set out several factors which must be considered, some of which are as follows:
(i) The length of the delay and whether it is inordinate (the longer the delay the less likely a Court would find that there is reason to extend);
(ii) The reasons for the delay and whether there is an acceptable explanation for it; the cogency of the explanation should be greater the longer the delay;
(iii) The promptness of the application for the extension and the assessment of promptness should be made in relation to the default and the reasons for it but could also include all other relevant circumstances;
(iv) The degree of prejudice to the defendant caused by the delay and that may result if the extension is granted. The greater the prejudice the less likely a Court would find that there is reason to extend;
(v) Special cases or exceptional circumstances;
(vi) Whether the party seeking the extension has generally complied with the rules and any orders and directions; and
(vii) The interest of the administration of justice not limited to justice between the parties to the litigation but includes larger considerations of the administration of justice.
- Although Jamadar JA was dealing with an appeal in relation to an application for an extension of time for the filing of the record of appeal, which in effect concerned the noncompliance with Rules of Court, this Court is of the opinion that the approach laid down by the Court of Appeal in that case is of general application to all applications for extensions of time, whether the application arises from the delay in compliance with statutory provisions or Rules of Court, unless some other consideration is specifically intended by the statute or rule.
- Attorney-at-law for the interested parties submitted that the applicant did not furnish the Court with cogent or sufficient reasons for the lateness of her Application and for filing of her notification of interest with the Registrar. In this Court’s opinion the applicant does not have to provide the Court with a plethora of reasons for the lateness in that regard so long as the reasons provided are sufficient to warrant the Court granting the extension of time after consideration of the principles set out by the Court of Appeal in the National Lotteries case (supra).
- While ignorance of the law is no excuse the Court must consider the delay by the applicant in light of all the other circumstances ensuring that the overriding objective of this exercise is that justice be done. Where a party is legally represented the onus is on the Attorney-at-Law acting on behalf of the party to ensure that all statutory requirements and rules of procedure are complied with. The ordinary person or the average lay litigant may not be aware of the rules or laws to which such applications relate.
- Moreover, there are instances where the parties are only made aware of their rights when a problem arises and this may very well be (as in some cases) months or years after the death of the intestate.
- I have noted that Counsel for the Interested Parties did not seriously question the truthfulness of the applicant’s reasons for the delay but rather emphasized that his objections were based on two grounds: first, that cogent reasons were not given by the applicant for the delay and secondly, section 25 (3) stipulated a mandatory time frame for filing of the notification of interest.
- In relation to the filing of the notification of interest with the Registrar of the Supreme Court I do not find that the delay of 2 months after the time stipulated in section 25 (3) was inordinate nor was it so unreasonable having regard to the circumstances in which the applicant found herself after the death of the deceased. It appears to the Court that she acted promptly in filing the said notification of interest when she was advised of her right to seek an interest in the deceased’s estate.
- It further appears to the Court that the applicant’s former Attorney-at-law, after filing the notification of interest, acted negligently, in that he applied for Letters of Administration of the deceased’s estate on behalf of the applicant before applying for a declaration to affirm that a cohabitational relationship existed between the applicant and the deceased. Needless to say that such application would have been queried by the Probate Registry resulting in unnecessary delay in making the instant application to this Court. While it was not stated in the applicant’s affidavits filed, the Court heard from the applicant’s Attorney in answer to the Court that one of the reasons for the length of the delay in filing the instant application was because the applicant sought legal advice from several Attorneys after the Application for Letters of Administration was queried. Upon being retained, Ms. Safiya Charles, the applicant’s present Attorney-at-law, informed Court that she promptly filed the said application. Though this information should have been included in the applicant’s affidavits, the Court is prepared to take it into account in the interest of justice.
- Furthermore, I do not see the Interested Parties suffering any prejudice as a result of any extension granted to the applicant. By granting the extension the Court will be able to determine whether the cohabitational relationship really existed as that seems to be the source of contention between the parties. That apart, if a relationship is found to have existed, the Court will make the necessary order stating the quantum of the deceased’s estate to which she is entitled. This will greatly assist the parties in the distribution of the deceased’s estate amongst themselves. If the Court finds that a cohabitational relationship did not exist within the meaning of the provisions of the Act, then this will clear the way for the Interested Parties to make the appropriate application for Letters of Administration of the deceased’s estate. This appears to be the approach that will best serve the interests of justice taking into account the larger considerations of the administration of justice.
CONCLUSION AND ORDERS
- For the reasons outlined above, this Court is prepared to grant the extensions as requested and makes the following orders:
- The preliminary objections made on behalf of the Interested Parties are hereby overruled.
- That time for the applicant to file her Notification of Interest pursuant to section 25(3) of the Administration of Estates Act Chap. 9:01 in the estate of Neville Whiskey, deceased, be and is hereby extended to the 11th day of January, 2006 (that is, the actual date of filing).
- That time for the applicant to file her Application for an order to declare or affirm the cohabitational relationship between the applicant and the deceased (intestate) pursuant to section 25 (3) of the Administration of Estates Act Chap. 9:01 be and is hereby extended to the 18th day of March, 2011 (that is, the actual date of filing).
- That there be no order as to costs. Dated this 14th day of December, 2012
Robin N. Mohammed