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Yai-Pupu v Yai-Pupu [2025] PGNC 414; N11569 (5 May 2025)

N11569

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 90 OF 2025 (IECMS)(CC2)

BETWEEN:
ELSIE YAI-PUPU FOR HERSELF AND ON BEHALF OF JOHN BANDA YAI-PUPU, SERAH MARY YAI-PUPU & BATHSHEBA YAI-PUPU
Plaintiffs

AND:
JESSIE YAI-PUPU
First Defendant

AND:
KING LLOYD YAI-PUPU AND BELLADONA YAI-PUPU
Second Defendants

WAIGANI: COATES J
5 MAY 2025

INTESTATE- deceased owned company – he died intestate- decision pending on letters of administration – three wives – bitter dispute – one wife evicted from company property by Director of company – Companies Act 1997– no power to prevent such under company law.

PRACTICE & PROCEDURE – no final order sought – one party not served – dismissed.

Counsel
L Aigilo, for the plaintiff
S Wanis and M John, for first and second defendant

EX TEMPORE DECISION

1. COATES J: Michael Yai-Pupu died on 25 May 2022. He had, I am told, three wives and 18 children.
   
2. The deceased died intestate.
   
3. There have been a number of court proceedings as to who will administer the estate. There has been one decision overturned on appeal and a decision is pending after a trial of that matter in March. There has also been, as I understand the situation, police assistance in relation to land and property which the deceased had within his control in response to family disputes.
   
4. The deceased left an estate worth some millions of Kina, although no useful figure was given to the court today to identify the size of the estate.
   
5. Today, before the court, is an application by the third wife of the deceased to restrain the second wife of the deceased from evicting her from premises where she has lived for some time.
   
6. By originating summons filed on 28 April 2025, the plaintiff seeks a number of orders. These are:
   
   1. A declaration that the defendants and their servants or agents are not personal representatives of the late Michael Yai-Pupu or shareholders or legal owners of the company described as PNG Bottle Industries Limited and any other companies or businesses owned by the late Michael Yai-Pupu.
      
   2. An injunctive order restraining the defendants and their agents or servants from acting as a personal representative of the late Michael Yai-Pupu, or representing or acting on behalf of the company, described as PNG Bottle Industries Limited, and any other companies or businesses owned by the late Michael Yai-Pupu.
   100. An injunctive order restraining the defendants and their agents or servants, from dealing with any properties of PNG Bottle Industries Limited, and any other companies or businesses owned by the late Michael Yai-Pupu, and accessing any funds or income held on behalf of PNG Bottle Industries Limited and any other companies or businesses owned by the late Michael Yai-Pupu at any of the commercial banks and financial institutions of Papua New Guinea or overseas.
        
   4. An injunctive order retraining the Registrar of Titles of the Department of Lands and Physical Planning and all commercial banks and financial institutions of Papua New Guinea that may maintain bank accounts or hold funds and properties on behalf of PNG Bottle Industries Limited, and any other companies or businesses owned by the late Michael Yai-Pupu, not to allow the defendants and their servants or agents, from dealing or accessing same on behalf of PNG Bottle Industries Limited or any other companies or businesses owned by the late Michael Yai-Pupu.
      
   5. An injunctive order restraining the defendants and members of the police force from evicting the plaintiffs and their family members from property owned by PNG Bottle Industries Limited described as section 52, allotment 55, Kawai Drive, that is K-A-W-A-I, Gordons, National Capital District, or any other properties owned by the late Michael Yai-Pupu. The originating summons also seeks costs and any further orders which occurs to the court to make.
      
7. As can be seen from those orders which are sought, the plaintiff wants to exercise control by way of a court order over the company.
   
8. The defendants before the court are Jessie Yai-pupu, who as I said is the second wife of the deceased, but she is also the Director of the company, and also before the court are King Lloyd Yai-pupu and Belladonna Yai-pupu.
   
9. Mr King Lloyd Yai-Pupu is the son of the second defendant, and he is awaiting judgment as to whether he or Mr Emmanuel Yai-Pupu, who is the son of the first wife of the deceased, is appointed as administrator of the deceased’s estate.
   
10. As to the context of the dispute, the first defendant, who is also the Director of the company, has evicted the plaintiff from a property owned by the company.
    
11. The evidence before the court is that she did so as Director of the company. And given that the company has a separate legal status, only proper officers of a company can give orders and directions as to what occurs with or to company property.
    
12. The plaintiff says the court has the power to prevent the eviction.
    
13. The plaintiff says that, as this is an estate matter and the plaintiff is a beneficiary of the estate, the power exists to prevent the eviction. The plaintiff also says that the court has the power to make each and every one of those orders even though any such order or any such injunctive order or restraint would affect the operations of the company.
    
14. The plaintiff says that as the first defendant is not the owner of the company, she cannot purport to make decisions which affect the company.
    
15. The plaintiff says only the owner, being the deceased with his shareholding power could direct the Director as to what to do and of course, the issues surrounding the deceased’s shareholding will be the subject of distribution once letters of administration are made by this court.
    
16. Further, the plaintiff says, pursuant to Section 110 of the Companies Act, the Director cannot enter into major transactions and so does not have the power to evict the plaintiff here.
    
17. Section 110 of the Companies Act 1997 is headed ‘Major Transactions’. Subsection (1), says the company shall not enter into a major transaction unless the transaction is approved by special resolution or is contingent on a special resolution and, that is, of the Board, and the section then refers to values of company assets, and transactions which are likely to have an effect on the company either acquiring rights or interests or occurring obligations and liabilities.
    
18. The section also says nothing in the definition of the term ‘major transaction’ applies by reason only of the company giving or entering into an agreement to give a floating charge secured over assets of the company, the value of which is more than half of the value of the assets of the company for the purpose of securing a repayment of money or the performance of an obligation.
    
19. The first defendant says that the Director does have the power to do what she did by evicting the plaintiff. She took the court to Sections 108 and 109 of the Companies Act. Section 108 defines terminology including the Board of Directors, and where there is only one Director, as there is in this case, that Director becomes the Board.
    
20. Section 109 is very important; It is headed ‘Management of the Company’. The business and affairs of the company shall be managed by, or under the direction or supervision of the Board of the company, that is, the Director and the Board of the company has all the powers necessary for managing, and for directing and supervising the management of the business and affairs of the company. Subsections (1) and (2) of this section are subject to any modification, exceptions or limitations contained in this Act or the company’s constitution.
    
21. The company’s constitution is not put before the court today, so that part is not relied on. But what the defendants say is that that section authorises the Director to do what she has done.
    
22. I have to interpret the sections for the parties.
    
23. Courts often interpret the wording of Acts of Parliament.
    
24. Major transactions refers, on my reading of the Act, to those transactions which would see an acquisition of, or an agreement to acquire, whether contingent or not, assets, the value of which is more than half the value of the assets of the company before acquisition, or the disposition of the same, or a transaction which is likely to affect the company in the future.
    
25. What the Director has done here cannot in any way imaginable be considered to be a major transaction under the Companies Act.
    
26. What the Director has done is simply manage the property of the company and the plaintiff was living in a residence on the property of the company.
    
27. The first defendant would have no right to evict her on any basis, but for the fact that, she, as a director, has that legal power to manage the company.
    
28. Without being taken to the company’s constitution, the only possible interpretation of Section 109 is to make a finding that the eviction notice given by the first defendant to the plaintiff is well within her powers as a director of the company.
    
29. She has duties to ensure that the company operates profitably and properly within the law.
    
30. There is nothing here to say that what she has done is not in pursuit of those duties.
    
31. Even though I am fully aware that there is a toxic family relationship, that does not mean that what has been done is in breach of the Companies Act.
    
32. Section 110 does not prevent day-to-day decisions from being made.
    
33. When this matter came before the court last week, I insisted that there be an affidavit before the court from the first defendant telling the court in sworn form what had occurred.
    
34. That affidavit is now before the court.
    
35. The plaintiff wants an order to preserve the status quo. But for the existence of this company which owns the residential premises in which the plaintiff was living, there may well be a power to preserve the status quo.
    
36. But what is the status quo?
    
37. The status quo is what exists today.
    
38. There is evidence before the court, accepted by the plaintiff, given by the defendant, that the plaintiff and the children have now left the premises. That is the status quo.
    
39. In any case, I do not have the power as is contemplated by this originating summons to make any order preserving the status quo, but the status quo is that she has left the company premises.
    
40. I am also concerned about this originating summons.
    
41. On my reading of it, it does not appear to seek final orders.
    
42. In order to make interim or interlocutory orders, there must be a final order sought; otherwise, all sorts of abuses can occur, injunctions could be made, restraints could be made which could last forever by default because there is never a final hearing of a matter.
    
43. No matter how I look at this set of orders, I cannot see that there is a final order sought.
    
44. The other point about these orders which are sought is that they purport to extend to orders which will affect the company, and the company is not a party before the court. The company has never been served.
    
45. The Director has been served but the company has not been served. The company is not part of the estate.
    
46. The deceased’s shareholding is part of the estate, but the company is not part of the estate.
    
47. The shareholding will be determined when distribution is made by whoever is given the letters of administration, but in the meantime, the company must be left to operate as a company under the Companies Act.
    
48. I will repeat this, I realise that the relations between the parties are now toxic, that is extremely unfortunate because the plaintiff and her children, on this evidence, are being affected, but this is not the application which can prevent any of that unfortunately.
    
49. This application cannot repair that position where a whole family fabric has broken down into dispute over monies they may get.
    
50. On that basis, I dismiss the originating summons and award costs to be agreed or taxed.
    

ORDERS

1. The Plaintiffs’ Notice of Motion filed on 28 April 2025 is dismissed.
2. The Plaintiffs shall pay costs incidental to this proceeding as agreed or as taxed.
   

Lawyers for the plaintiff: Laken Lepatu Aigilo Lawyers
Lawyers for the first and second defendant: Solomon Wanis Lawyers