SC2069
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 3 OF 2019

THOMAS CONLIFE AS EXECUTOR OF THE ESTATE OF LATE ALBERT CONLIFE
Appellant

V

JURA INVESTMENT LIMITED
First Respondent

STEPHEN TONG & PATSY TONG
Second Respondents

REGISTRAR OF COMPANIES
Third Respondent

REGISTRAR OF TITLES
Fourth Respondent

Waigani: Gavara-Nanu J, Cannings J, Makail J
2020: 27th November
2021:  3rd February

SUPREME COURT – practice and procedure – objection to competency – standing of appellant – absence of grant of probate – right to represent deceased estate.

WILLS, PROBATE AND ADMINISTRATION – Section 44 (initial vesting in Public Curator) Wills, Probate and Administration Act – whether an executor of a deceased estate can commence proceedings in the National Court or maintain an appeal to the Supreme Court, on behalf of the deceased estate, in the absence of probate. 

The appellant was appointed under a will as executor of his late brother’s deceased estate. The appellant commenced proceedings by writ of summons in the National Court, before being granted probate, against the respondents, regarding his alleged right to occupy a property covered by a State Lease, in respect of which the first respondent was registered proprietor. The National Court dismissed the proceedings as disclosing no reasonable cause of action, being frivolous and vexatious and an abuse of process as the issue of title, which the appellant was agitating, was res judicata vis-à-vis previous, separate and concluded National Court proceedings, the proceedings ought to have been instituted under Order 16 of the National Court Rules and the appellant lacked standing to commence the proceedings in the absence of a grant of probate, by virtue of s 44 of the Wills, Probate and Administration Act. In response to the appellant’s appeal to the Supreme Court, the first respondent filed a notice of objection to competency, raising objection to each of the four grounds of appeal. This is the judgment of the Supreme Court on the objection to competency. 

Held:

(1)	Objection 1 upheld as the effect of s 44 (initial vesting in Public Curator) of the Wills, Probate and Administration Act is that no person including a duly appointed executor has standing to commence legal proceedings on behalf of a deceased estate unless and until there is a grant of probate. The property of the deceased estate is vested in the Public Curator but even that vesting does not give standing to the Public Curator to initiate legal proceedings. The National Court properly dismissed the proceedings due to an absence of a grant of probate and properly found that the appellant lacked standing. For the same reason that the appellant lacked standing in the National Court – viz, absence of probate – he lacked standing to initiate the appeal. Objection 1 upheld. This is a matter going to the jurisdiction of the Court, and renders the entire appeal incompetent.

(2)	Objections 2, 3 and 4 challenged the competency of other grounds of appeal due to their lack of compliance with Order 7, Rules 9 and 10 of the Supreme Court Rules. Objections 2, 3 and 4 also upheld.

(3)	Objection to competency upheld. Appeal dismissed. Appellant ordered to pay first respondent’s costs on party-party basis. 

Cases Cited:

Jimmy Lama v NDB Investment Ltd (2015) SC1423
Julius Pololi v Bryan James Wyborn [2013] 1 PNGLR 1
Jura Investment Ltd v Albert Conlife (2018) N7286
Placer (PNG) Ltd v Joshua Yako (2019) SC1764
Public Curator v Bank of South Pacific Ltd (2006) SC832
Talibe Hegele & Ors v Tony Kila & Ors (2010) SC1124
Thomas Malcolm Opa Conlife as Executor of the Estate of the Late Albert Conlife v Jura Investment Limited, Steven Tong and Patsy Tong and Registrar of Companies and Registrar of Titles (2018) N7713
Waim No 85 Ltd v The State (2015) SC1405

OBJECTION TO COMPETENCY 

This was an objection to the competency of an appeal against a decision of the National Court to summarily dismiss proceedings under Order 12, Rule 40(1)(a), (b) and (c) of the National Court Rules. 
Counsel

J Talopa, for the Appellant
I Shepherd, for the First Respondent

3rd February, 2021

1.	BY THE COURT: Before the Court is an objection by the first respondent, Jura Investment Ltd, to the competency of an appeal by Thomas Conlife as Executor of the Estate of the Late Albert Conlife against the decision of Dingake J of 19 December 2018 in the National Court in WS No 904 of 2018 (reported as Thomas Malcolm Opa Conlife as Executor of the Estate of the Late Albert Conlife v Jura Investment Limited, Steven Tong and Patsy Tong and Registrar of Companies and Registrar of Titles (2018) N7713). 

2.	The hearing of the objection has been conducted on the papers pursuant to Supreme Court Practice Direction No 3 of 2020. 

WS 904 OF 2018

3.	The subject of those proceedings was a property, Section 54, Allotment 16, Hohola, National Capital District, in respect of which the plaintiff, now the appellant, claimed the right to occupy. Dingake J, on 19 December 2018, upheld a motion by the first defendant, Jura Investment Ltd (now first respondent) and dismissed the entire proceedings pursuant to Order 12, Rule 40(1)(a), (b) and (c) of the National Court Rules for disclosing no reasonable cause of action, being frivolous and vexatious and an abuse of process. His Honour held that:

•	the proceedings were res judicata as it had been held by Hartshorn J in separate proceedings, OS 460 of 2017, that Jura Investment Ltd had indefeasible title in the property (Jura Investment Ltd v Albert Conlife (2018) N7286); 

•	the proceedings ought to have been instituted under Order 16 of the National Court Rules as the plaintiff was seeking orders in the nature of prerogative writs;

•	the plaintiff lacked standing to sue as he had not been granted probate in relation to the estate of Albert Conlife (deceased), on behalf of which he was purporting to sue, and, by virtue of s 44 of the Wills, Probate and Administration Act, until probate was granted, the property of the deceased vested in the Public Curator, so only the Public Curator or a person with the Public Curator’s authority could sue. 

APPEAL 

4.	The appellant raises four grounds of appeal, which are numbered, confusingly, as 1, 3, 4 and 5.

Ground of appeal 1 argues that his Honour erred in law by holding that the issue of indefeasibility of title had been determined by Hartshorn J in OS 460 of 2017. The appellant argued that the only question in OS 460 of 2017 was whether a writ for vacant possession should be issued, not whether the first respondent had indefeasible title. 

Ground of appeal 3 argues that Dingake J erred in law “in driving the appellant from the judgment seat” as the statement of claim pleaded fraud against the second respondents, Steven and Patsy Tong, which issue had never been raised in previous court proceedings, and the first respondent’s motion for dismissal was premature as it had been filed before all of the defendants filed their defences.

Ground of appeal 4 argues that his Honour erred in fact and law in holding that the appellant lacked standing as s 35, 37 and 38  of the Wills, Probate and Administration Act conferred standing on him notwithstanding the absence of a formal application for probate, as he was the “constructive executor” of the will.

Ground of appeal 5 argues that Dingake J erred in law by holding that the action in the National Court was misconceived due to it being commenced  by writ rather than by an application for leave to seek judicial review under Order 16 of the National Court Rules, as the primary allegation in the statement of claim was fraud by the second respondents, Steven and Patsy Tong, in their transfer of title to the first respondent, and there were no allegations of fraud against the third and fourth respondents, so there was no need to commence the proceedings under Order 16. 

OBJECTION TO COMPETENCY

5.	The first respondent’s notice of objection to competency, filed 13 February 2019, raises four grounds of objection.

Objection 1 refers to ground of appeal 4 and argues that the appellant has misconceived s 35 of the Wills, Probate and Administration Act and that the primary Judge correctly ruled that the appellant lacked standing to commence the action in the National Court and that, for the same reason given by the primary Judge in the National Court, viz s 44 of the Wills, Probate and Administration Act, the appellant lacks standing to appeal against the decision of the National Court. 

Objection 2 refers to ground of appeal 1 and argues that it fails to comply with Order 7, Rules 9 and 10 of the Supreme Court Rules and is therefore incompetent.

6.	Order 7, Rules 9 and 10 provide:

9.	The notice of appeal shall—

(a)	state that an appeal lies without leave or that leave has been granted and/or annex the appropriate order to the notice of appeal; and
(b)	state whether the whole or part only and what part of the judgment is appealed from; and
(c)	state briefly but specifically the grounds relied upon in support of the appeal; and
(d)	state what judgment the appellant seeks in lieu of that appealed from; and
(e)	be in accordance with form 8; and
(f)	be signed by the appellant or his lawyer; and
(g)	be filed in the registry.

10.	Without affecting the specific provisions of Rule 9, it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law.

Objection 3 refers to ground of appeal 3 and argues that it also offends against Order 7, Rules 9 and 10 of the Supreme Court Rules as it does specify with particularity how the primary Judge allegedly erred.

Objection 4 refers to ground of appeal 5 and argues that it also offends against Order 7, Rules 9 and 10 of the Supreme Court Rules as it does specify with particularity how the primary Judge allegedly erred.

OBJECTION 1

7.	It is uncontested that:

•	the deceased Albert Conlife died, leaving a will, under which his brother, Thomas Conlife, the appellant, was appointed as executor of the deceased estate; and 

•	the appellant had not been granted probate prior to instituting the proceeding WS 904 of 2018 in the National Court, and this appeal, SCA 3 of 2019, in the Supreme Court.

8.	The absence of a grant of probate is critical to the appellant’s standing, in view of s 44 (initial vesting in Public Curator) of the Wills, Probate and Administration Act, which provides:

Until probate or administration is granted, the property of a deceased person vests in the Public Curator, in the same manner and to the same extent as formerly personal estate in England vested in the Ordinary.

9.	The effect of s 44 was explained by the Supreme Court (Los J, Sevua J, Lay J) in Public Curator v Bank of South Pacific Ltd (2006) SC832 in these terms:

Until grant of probate or letters of administration the property of a deceased person vests in the Public Curator. See Wills Probate and Administration Act, s 44. However he may not administer the estate unless he is granted representation rights. The deceased’s property vests for the purpose of administration in the person appointed by the National Court  to have representation rights (probate or letters of administration) (s 45(2)). Property includes a thing in action and an interest in property (s 36(1)). Therefore property includes an interest in any action at law. If representation rights (probate or letters of administration) are granted to a person other than the Public Curator, all of the property of the estate transfers from the Public Curator to that person. 

10.	We uphold the submission of the first respondent that although the appellant was appointed as executor of the deceased’s estate, he must be granted probate before commencing proceedings, and purporting to represent the deceased’s estate in the National Court, and also in the Supreme Court. The absence of probate means that by operation of s 44 he had no standing in the National Court. It also means he has no standing in the Supreme Court. 

11.	We reject the appellant’s submission that s 44 is restricted in its operation to circumstances in which a person dies intestate. That submission is clearly contrary to the terms of s 44. 

12.	We also reject the appellant’s submission that ss 35, 37 or 38 of the Wills, Probate and Administration Act have the effect of conferring standing on the appellant to initiate the appeal, despite the absence of a grant of probate.  

13.	Section 35 (defective and informal wills) states:

(1)	Notwithstanding anything in this Division or in any other law but subject to Subsections (3) and (4), a will, whenever made, is not invalid, and a gift, devise, bequest, appointment or thing in or under any such will is not invalid and does not fail, solely by reason of—

(a)	any defect or want of formality; or
(b)	any failure to comply with this Act or of any such law,

if it is proved that the testator intended the will to be his last will and that intention is clear.

(2)	Subject to Subsection (3), a gift, devise, appointment or thing to which Subsection (1) applies shall be given effect to, and has effect, according to the intention of the testator so far as that intention is clear and can be given effect to.

(3)	Subsection (1) does not affect the operation of Section 19.

(4)	Subsection (1) does not apply to or in relation to the will of a person who died before the commencement date.

14.	Section 37 (saving of certain other laws) states:

This Part does not—

(a)	derogate any powers of the National Court that exist independently of this Act; or
(b)	affect any law dispensing with probate or administration; or
(c)	affect any law expressly regulating the distribution of money or other property of a deceased person.

15.	Section 38 (general jurisdiction) states:

The National Court has jurisdiction to grant probate of the will or administration of the estate of a deceased person leaving property within the country.

16.	None of those general provisions have any effect on or qualify the operation of s 44. 

17.	We also reject the appellant’s submission that the appellant had a right in equity to initiate this appeal, notwithstanding the absence of probate. Any rights in equity that might have inured in the appellant’s favour are overridden by s 44. 

18.	We endorse as correct the state of the law as explained by Hartshorn J in Julius Pololi v Bryan James Wyborn [2013] 1 PNGLR 1: any legal proceedings commenced on behalf of a deceased estate (including proceedings commenced by the Public Curator, other than those calculated to preserve the property of the estate) before the grant of probate or letters of administration, are a nullity.

19.	We uphold objection 1. We agree with the learned primary Judge that the appellant had by virtue of s 44 of the Wills, Probate and Administration Act, no standing to commence WS 904 of 2018 in the National Court. For that reason, WS 904 of 2018 was properly dismissed as an abuse of process. For the same reason, the appellant has no standing to initiate this appeal. This is a matter that goes to the jurisdiction of this Court. It renders the entire appeal incompetent. 

OTHER GROUNDS OF OBJECTION

20.	It is not necessary to address in detail the other grounds of objection. However, as they have been fully argued we make the following brief remarks.

Objection 2 (re ground of appeal 1): The first respondent correctly refers to Jimmy Lama v NDB Investment Ltd (2015) SC1423 and Placer (PNG) Ltd v Joshua Yako (2019) SC1764, in which the Supreme Court held that grounds of appeal must make grammatical and legal sense and be intelligible. If the judgment is claimed to be wrong in law, the grounds relied upon must clearly show such errors and the errors must be clearly pleaded with reasons why the judgment was wrong in law. We consider that ground of appeal 1(a) is merely a statement and not a ground of appeal at all. Ground 1(b) is unintelligible. Grounds 1(c) and 1(d) refer to another proceeding and do not relate to the judgment appealed against. Also, where a point of law is raised in an appeal, it must be one which was raised in the National Court (Talibe Hegele & Ors v Tony Kila & Ors (2010) SC1124). Ground 1(e) is largely unintelligible. We uphold objection 2. 

Objection 3 re ground of appeal 3: Whilst grounds of appeal 3(a) and 3(b) appear to object to the fact that the motion to dismiss was heard before pleadings had closed, ground of appeal 3 fails to identify and particularise the alleged errors of law by the primary Judge. Even if the grounds did comply, Waim No 85 Ltd v The State (2015) SC1405 and other Supreme Court cases stand for the proposition that there is no requirement for the filing and service of a defence before a defendant can move to dismiss proceedings. Grounds of appeal 3(c) and 3(d) also do not give particulars of the alleged errors of law. We uphold objection 3. 

Objection 4 re ground of appeal ground 5. Ground of appeal 5 raises an alleged error in law without particularizing the error or stating reasons for the judgment being wrong in law. It is also largely unintelligible. We uphold objection 4.

CONCLUSION

21.	We have upheld the primary ground of objection to competency, No 1: that the appellant lacks standing. For that reason alone the appeal is incompetent. Other grounds of objection (Nos 2, 3 and 4) also support the objection to competency. The objection must be upheld and the appeal must be dismissed, with costs.

ORDER

(1)	The objection to competency is upheld.

(2)	The appeal is dismissed.

(3)	The order of the National Court in WS 904 of 2018 of 19 December 2018 is affirmed.  

(4)	Any order of this Court or any other Court staying the order of the National Court in WS 904 of 2018 of 19 December 2018 is dissolved.

(5)	The appellant shall pay the first respondent’s costs of the appeal on a party-party basis, which shall, if not agreed, be taxed. 
________________________________________________________________
Justin Talopa Lawyers: Lawyers for the Appellant 			
Ashurst Lawyers: Lawyers for the first Respondent