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Estate of Hengebe Haluya [2020] PGNC 64; N8257 (18 March 2020)

N8257

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WPA NO.121OF 2019


IN THE ESTATE OF HENGEBE HALUYA, late of Amboga village, Komo/Magarima District, Hela Province, Papua New Guinea, self-employed, deceased


Waigani: David, J
2020: 17th & 18th March


PROBATE JURISDICTION – complaint against Public Curator, application for revocation of grant of administration.


Cases Cited:


Estate of Darius Tali (2011) N4281
In the Estate of Darius Tali (2012) N4729


Treatise cited:


Injia, et al, Papua New Guinea, Civil Procedure in the National Court, Colorcraft Ltd, 2016


Counsel:


Rickson Pokea, for the Applicant
Victoria Balio, for the Public Curator


JUDGMENT


18th March, 2020


  1. DAVID, J: INTRODUCTION: This is a ruling on an application made by Sharon Hengebe, the widow of the deceased and a beneficiary of the estate of the deceased, Hengebe Haluya which is moved pursuant to an amended notice of motion filed on 6 March 2020. The applicant, Ms Hengebe seeks the following main relief:
    1. Pursuant to Order 5 Rule 8 (1)(b) or alternatively Order 19 Rule 39 of the National Court Rule 1983, Sharon Hengebe be added as a party.
    2. Pursuant to Order 13 Rule 21 of the National Court Rule 1983, Section 155(4) of the Constitution, and the inherent powers and jurisdiction of the Court, the Letters of Administration granted to the Public Curator on 25 October 2019 be stayed pending the outcome of this application (if necessary).
    3. Pursuant to Order 12 Rule 1 of the National Court Rule 1983 or alternatively pursuant to Section 24, 32, 33 and 34 of the Public Curator Act, Sharon Hengebe as the widow’s share of the deceased Estate of Cash component of K43,000.00 (less fees) out of the K430,000 already distributed and other monies not disclosed be paid to her in full by the Public Curator.
    4. Pursuant to Order 12 Rule 1 of the National Court Rule 1983, or alternatively pursuant to Section 24, 32, 33 and 34 of the Public Curator Act, the outstanding balance for Rodvinnah Hengebe, Rebecca Hengebe and Whilminna Hengebes’ deceased Estate of cash component of additional K69, 000.00 (less fees) out of the K430,000.00 already distributed and other monies not disclosed be paid to them in full by the Public Curator since K60,000.00 for the three (3) children have been paid already.
    5. Pursuant to Order 12 Rule 1 of the National Court Rule 1983 or Section 155(4) of the Constitution the caution or restriction placed on the BSP Bank Account number 70001804892 of Sharon Hengebe holding monies for the three (3) children under the direction and instruction of the Public Curator be set aside or uplifted by Bank South Pacific Limited for normal transactions to be conducted.
    6. Pursuant to Order 12 Rule 1 of the National Court Rule 1983 or alternatively pursuant to Section 28, 29, 34 of the Public Curator Act, the Public Curator disclose to the widow Sharon Hengebe all the details of the estate received including cash from various back account of the deceased and other assets and properties and disclose who benefited from the deceased estate so far realised and distributed and give a full detail account of the deceased estate.
    7. Pursuant to Order 12 Rule 8(2)(b), and 8(3)(a) of the National Court Rules 1983, Section 155(4) of the Constitution, and the inherent powers and jurisdiction of the Court, the Letters of Administration granted to the Public Curator on 25 October 2019 be set aside forthwith.
    8. Pursuant to Order 12 Rule 8(2)(b), and 8(3)(a) of the National Court Rules 1983, Section 155(4) of the Constitution, and the inherent powers and jurisdiction of the Court, the Letter of Administration be granted to Sharon Hengebe and the transfer of the property described as Section 313, Allotment 46, Holola (Gerehu State 5) National Capital District to her name on behalf of the children.
    9. Costs to be paid by the Office of the Public Curator.
    10. Any other orders that the Court may see appropriate.
    11. That the time of entry be abridged to the time of settlement by the Registrar which shall take place forthwith.

PUBLIC CURATOR’S POSITION


  1. The Public Curator was represented by his lawyer, Ms Balio from the Office of the Solicitor-General at the hearing with the leave of the Court as no notice of appearance had been filed since the last appearance. He contests the application.

EVIDENCE


  1. In support of the application, Ms Hengebe relies on the following affidavits:
    1. Affidavit in Support of Notice of Motion of Sharon Hengebe sworn on 7 February 2020 and filed on 13 February 2020;
    2. Further Affidavit in Support of Sharon Hengebe sworn on 18 February 2020 and filed on 20 February 2020;
    3. Affidavit of Service of Rickson Pokea sworn on 17 February 2020 and filed on 19 February 2020; and
    4. Affidavit of Service of Rickson Pokea sworn and filed on 10 March 2020.
  2. The Public Curator does not rely on any affidavit.

BACKGROUND FACTS AND ALLEGATIONS


  1. The brief background facts are contained in the two affidavits sworn by the applicant herself and these are:
    1. The applicant, Ms Hengebe is the widow of the deceased.
    2. She and the deceased got married on 1 January 2010 at Lomia village, Komo/Magarima, Hela Province.
    3. Their marriage was solemnized under the provisions of the Marriage Act by Marriage Celebrant, Pastor Alia Pongoli of the Seventh Day Adventist Church.
    4. Prior to marrying the applicant, the deceased had two wives.
    5. The applicant’s younger sister namely, Delma Tupigo had a promiscuous relationship with the deceased resulting in her bearing two children namely, a female, Rodvinnah Naggai Hengebe (DOB 16/11/2011) and another female, Rebecca Petai Hengebe (DOB 21/08/2013).
    6. The applicant has custody of her sister’s two children.
    7. Three children were born from the applicant’s marriage to the deceased; two have died and the surviving child is a female, Wilheminna Nathalia Hengebe (DOB 15/02/2018).
    8. Two other children the deceased had from another woman, Elisha James are females, Priscilla Hengebe (DOB 17/10/2010) and Sheila Hengebe (DOB 27/07/2013).
    9. There is a male child from a previous relationship which was disputed by the deceased.
    10. The deceased owned a residential property at Gerehu Stage 5 described as Allotment 46 Section 313 Hohola and contained in State Lease Volume 83 Folio 234.
    11. That property got burnt down so she and her children do not have their own accommodation and now reside with her mother.
    12. The deceased also owned another residential property namely, Allotment 10 Section 214 Hohola contained in State Lease Volume 91 Folio 203 which is actually registered under the name of Midal Enterprises Pty Ltd.
    13. The deceased died intestate on 26 July 2019 at Gerehu Stage 2 in Port Moresby.
    14. The deceased died of acute myocardial infarction due to coronary artery narrowing as a result of severe coronary atherosclerosis.
    15. Letters of Administration were granted to the Public Curator on 25 October 2019.
  2. The allegations raised by the applicant are also contained in the two affidavits sworn by the applicant herself and these can be summarised as follows:
    1. Her consent for letters of administration to be granted to the Public Curator was obtained by deceit and fraud perpetrated by the Office of the Public Curator.
    2. The Public Curator has failed to properly administer the deceased’s estate or is guilty of negligence or maladministration of the affairs of the deceased’s estate and has failed to properly discharge his duties under the Public Curator Act and the Wills Probate and Administration Act.
    3. The Public Curator is wrongly dealing with unauthorised persons including relatives of the deceased and a woman claiming to be another wife of the deceased in its administration of the deceased’s estate.
    4. The Public Curator has failed to provide or disclose to her a statement of account or an inventory of the property of the deceased including that relating to the distribution of K430,000.00 she has not personally benefitted from despite repeated written requests by her.
    5. Fraud is committed by others on the deceased’s estate right under the nose of the Public Curator with regard to the deceased’s other properties including motor vehicles and heavy machinery located in Komo, Mendi and Port Moresby, unlawful transfer of shares and directorship in companies owned by the deceased including those in Komo Township Redevelopment Company Ltd and signatures of various company bank accounts changed thereby having access to funds and depleting them.

LEGAL ISSUES


  1. The legal issues are:
    1. Whether the application should be dismissed for being an abuse of the process of the Court?
    2. If not:
      • (a) Whether the applicant should be added as a party?
      • (b) Whether the exercise of the interest, powers, rights and duties of the Public Curator conferred by the Letters of Administration on 25 October 2019 should be stayed pending the outcome of this application?
      • (c) Whether the applicant should be paid in full her share of the sum of K43,000.00 from the sum of K430,000.00 already distributed and other sums she is entitled to receive from the distribution of the deceased’s estate?
      • (d) Whether the balance due to the three children of the deceased namely, Rodvinnah Hengebe, Rebecca Hengebe and Wilhelminna Hengebe from the sum of K430,000.00 already distributed should be paid to her by the Public Curator?
      • (e) Whether the restriction placed on the applicant’s Bank South Pacific account number 7001804892 where monies for the three children are held at the direction and instruction of the Public Curator should be lifted by Bank South Pacific in order for normal transactions to be conducted?
      • (f) Whether the Public Curator should disclose to the applicant a full account or details of the deceased’s estate and its administration including cash from various bank accounts of the deceased and other assets and properties?
      • (g) whether the Letters of Administration granted to the Public Curator should be set aside?
      • (h) Whether the applicant should be appointed as administrator of the deceased’s estate?
      • (i) Whether the property described as Allotment 46 Section 313 Hohola(Gerehu Stage 5) should be transferred to the applicant to be held by her on behalf of the children?

ABUSE OF PROCESS


  1. The Public Curator, through Ms Balio of counsel, contends that the applicant’s application which is brought by way of a motion should be dismissed as it is an abuse of the process of the Court for adopting the wrong mode of process to seek the kind of relief she seeks which are substantive in nature.
  2. The applicant refuted the Public Curator’s contention by arguing that the application is properly before the Court by way of a motion as that mode of making a complaint is authorised by Section 34 of the Public Curator Act and Section 41 of the Wills, Probate and Administration Act. Counsel cited the National Court decision of In the Estate of Darius Tali (2011) N4281 which he argued held that an application of this nature could be made by a motion.
  3. Complaints against the manner in which the Public Curator administers an estate of deceased person can be made to the National Court or a judge by affidavit for an order calling on the Public Curator to show cause why he should not do or abstain from doing the act complained of and an interim order in the nature of an injunction can be issued where the circumstances of the case warrants. A complaint can be made by a creditor or next of kin or any other person having an interest in some way in the estate of a deceased person. The relevant provision permitting that process is Section 34 of the Public Curator Act. It states:

Complaints against Public Curator.


(1) A person interested as creditor, next of kin, or otherwise in the estate of a deceased person that the Public Curator is administering under this Act, may—

(a) on the neglect or refusal of the Public Curator to do any act in relation to the administration of the estate; or

(b) on the Public Curator's doing, or threatening to do, any act in breach of his duty with reference to the estate,

apply on affidavit to the National Court or a Judge—

(c) for an order calling on the Public Curator to show cause before the Court or a Judge, on a day not less than two days after the service of the order on him, why he should not do or abstain from doing the act; and

(d) for an interim order in the nature of an injunction, if warranted by the facts of the case.


(2) An order under Subsection (1) may be granted subject to such conditions as to security for costs as the National Court or a Judge imposes.

(3) On the hearing of a complaint under Subsection (1), the National Court or a Judge may—

(a) receive proof of the matters in relation to the complaint orally or by affidavit; and

(b) make such order as the circumstances of the case require, and in particular as to payment of costs—

(i) by the complainant; or

(ii) by the Public Curator; or

(iii) from the estate administered by the Public Curator,

as, in the discretion of the Court or Judge, seems just.

(4) An order under Subsection (3)—

(a) has the same effect; and

(b) is enforceable by the same process,

as if it had been made by the National Court in a suit between the parties to the complaint.


  1. The Court has jurisdiction to grant probate of a will or administration of the estate of a deceased person leaving property within the country: Section 38, Wills, Probate and Administration Act. The term “property” includes a thing in action and an interest in property: Section 36, Wills, Probate and Administration Act. The Court has power to revoke the grant of probate or administration.
  2. In non-contentious proceedings where there is no defendant, they are to be commenced by summons in Form 87 of the National Court Rules. The relevant rule in the National Court Rules is Order 19 Rule 39 and it states:

Commencement of non-contentious proceedings. (78/40)


Proceedings for revocation of a grant shall, where there is no defendant, be commenced by summons in Form 87.


  1. In contentious proceedings where there is a defendant, they are to be commenced by a writ of summons. The relevant rule in the National Court Rules is Order 19 Rule 42 and it states:

Commencement of contentious proceedings. (78/43)


Proceedings for revocation of a grant shall, where there is a defendant, be commenced by a writ of summons.


  1. The grant of probate or administration may be deposited in the Registry by order of the Court prior to or after the commencement of proceedings for revocation of grant. This is permitted by Order 19 Rule 37 (Deposit of grant) on application by a plaintiff or the Court of its own motion after proceedings have been commenced and Rule 38 (Order before commencement of proceedings) upon application by a person who intends to commence proceedings for revocation of a grant. The Court’s power under both rules is discretionary.
  2. Order 19 Rule 37 states:

Deposit of grant. (78/38)


Where proceedings have been commenced for revocation of a grant the Court may on the application of the plaintiff, or of its own motion, order the executor or administrator to deposit the grant in the Registry.


  1. Order 19 Rule 38 states:

Order before commencement of proceedings. (78/39)


In an urgent case the Court may, on the application of a person who intends to commence proceedings for revocation of a grant, order the executor or administrator to deposit the grant in the Registry to the same extent as if the applicant had commenced the proceedings and the application were made in the proceedings.


  1. The circumstances in which the Court will revoke a grant of probate or administration are conveniently set out in Injia, et al, Papua New Guinea, Civil Procedure in the National Court, Colorcraft Ltd, 2016 at pp.434-435 and these are:
    1. Where the grant relates to the estate of a person who was not deceased
    2. Where it was subsequently shown that the [testator or] testatrix had not known and approved of certain words which appeared in the will.
    3. Where the grant was made on the basis of a material mistake.
    4. Where a will has been discovered after a grant of letters of administration or a later will after grant of probate or where the grant has been made pending a caveat.
    5. Where executors or administrators become incapable of acting by reason of insanity or ill-health or are unwilling to act and cooperate with a co-executor or administrator.
    6. Where an executor or administrator is not a fit and proper person (whether because of a conflict of duty and interest or for other reasons).
    7. Where the executor or administrator is guilty of dereliction of duty or tardiness.
  2. As to Mr Pokea’s argument under Section 34 of the Public Curator Act, it is misconceived and rejected for reasons I give below.
  3. Mr. Pokea argues that Section 41 of the Wills, Probate and Administration Act permits the application to be moved by motion. That argument is misconceived and therefore rejected because Section 41 applies to an application for revocation of grant where the person was living at the date of grant. In the present case, the application is in relation to a person who was deceased at the date of grant.
  4. The application for revocation of grant of administration in the case of In the Estate of Darius Tali (2011) N4281 is a decision of the National Court and therefore is not binding on me. In addition, that decision was made assuming jurisdiction under Section 41(2)(b)(i) and (ii) of the Wills, Probate and Administration Act when the Section 41, as I have alluded to already, applies to applications for revocation of grant of administration where the person was living at the date of the grant. To my mind, Section 41(2)(b)(i) and (ii) would come into play where since the grant, the person who was living at the date of grant, has died. That is not the situation here.
  5. In the National Court decision concerning the case In the Estate of Darius Tali (2012) N4729, a case where the applicant sought an order to set aside the order made by the Court on 20 April 2011 (In the Estate of Darius Tali (2011) N4281) because he was not aware that the Court had revoked the grant of administration previously made, the Court said the applicant should commence a contentious proceedings by writ of summons under Order 19 Rule 42 of the National Court Rules.
  6. The application here is essentially an application for revocation of the grant of administration. It may appear that the relief sought might be a mixed bag where matters of complaint could be addressed under Section 34 of the Public Curator Act as well, but the requirement to obtain the relief under that provision on application by affidavit is specific and twofold, first, there will be an order calling on the Public Curator to show cause why he should not do or abstain from doing an act; and secondly, an interim order in the nature of an injunction will follow if warranted by the facts of the case. The relief sought here do not meet the requirement of Section 34.
  7. The applicant should commence fresh contentious proceedings for the revocation of the grant of administration by writ of summons under Order 19 Rule 42 of the National Court Rules. One reason why a writ of summons should be the proper mode of proceedings to be adopted is that the applicant has raised allegations of fraud and proper pleading is required: see Order 4 Rule 2(b), Order 8 Rules 14 and 30, National Court Rules.
  8. I uphold Ms Balio’s submission. The applicant’s application is dismissed for being an abuse of the process of the Court.

OTHER ISSUES


25. Given the above outcome, it is now not necessary to address the remaining issues.


COSTS


26. Costs will follow the event, i.e., the Public Curator is awarded costs. This means that applicant shall pay the Public Curator’s costs on a party-party basis, which shall, if not agreed, be taxed.


ORDER


27. The formal orders of the Court are:


  1. The applicant’s application moved by amended notice of motion filed on 6 March 2020 is dismissed.
  2. Costs shall follow the event, i.e., the applicant shall pay the Public Curator’s costs on a party-party basis, which shall, if not agreed, be taxed.
  3. Time is abridged.

Judgment and orders accordingly.
____________________________________________________________
Pokea & Associates: Lawyers for the Applicant
Solicitor-General: Lawyers for Public Curator

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