Papua New Guinea Law Reports - 1986
[1986] PNGLR 73
N530(M)
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
DON KAPI
V
MANA YALIOCK
(DECEASED) BY HIS WIDOW BETTY TRAMUN
Wabag & Waigani
Los J
13 February 1986
14 March 1986
WILLS PROBATE AND ADMINISTRATION - Administration of intestate estates - Automatic citizens - Power and obligations of Provisional Commissioner - Power distinct from obligation - Where customary administrator challenged - Duty of Provincial Commissioner to act - Native Administration Regulations (TNG) (Ch No 315) - Wills Probate and Administration Act (Ch No 291).
SUCCESSION - Automatic citizens - Intestate estates - Administration - Power and obligations of Provincial Commissioner - Power distinct from obligation - Where customary administrator challenged - Duty of Provincial Commissioner to act - Native Administration Regulations (TNG) (Ch No 315) - Wills Probate and Administration Act (Ch No 291).
Held
(1)      Except in relation to the payment of debts the power given to the Provincial Commissioner to administer estates of intestate automatic citizens is distinct from any obligation to administer such estates: other persons may administer or be appointed to administer such estates.
In the Lands and Goods of Doa Minch [1973] PNGLR 558, followed.
(2)      Where an automatic citizen dies intestate the Native Administration Regulations (TNG) (Ch No 315), intends that the Provincial Commissioner shall be the general administrator of the property of the deceased; his obligation is to ensure that the debts are paid before the distribution of properties.
(3)      Where the standing and authority of a customary administrator are challenged, the obligation of the Provincial Commissioner under the Native Administration Regulations (TNG) (Ch No 315) requires that he should act.
(4)      In circumstances where the authority of the widow of a deceased intestate automatic citizen to continue in her name proceedings for breach of contract commenced by the deceased, was challenged and there was no positive evidence as to the right of the widow by custom to administer the estate, the Provincial Commissioner should be required to exercise his obligations under the Native Administration Regulations (TNG) (Ch No 315).
Cases Cited
Bimai-Noimbano (deceased), Re [1967-68] P&NGLR 256.
In the Land and Goods of Doa Minch [1973] PNGLR 558.
James Allan Sannga (deceased), Re [1983] PNGLR 142.
Appeal
This was an appeal from a decision of a Grade V Magistrate awarding damages for breach of contract.
Counsel
S Alonk, for the appellant/defendant.
The respondent/plaintiff (widow) in person.
M Gene, amicus curiae.
Cur adv vult
14 March 1986
LOS J: This appeal arises from the decision of a Grade V Magistrate made against the appellant on 26 June 1985 at Wabag. The appellant was ordered to pay to the respondent a sum of K3,644 for breach of contract. The case had an interesting beginning however. In short it is said the matter started in the Local Court, the District Court and eventually came before a Grade V Magistrate because of the amount of money involved.
It is claimed that at the request of the appellant, the respondent built a house at the appellant’s village and the appellant agreed to pay K4,644 but so far he has paid only K1,000.
Before the matter came for hearing the complainant died and it seems this was not known until the hearing on 10 April 1985 when it came out in the evidence of the widow. At the end of the plaintiff’s evidence on that day the case was adjourned to 26 June 1985. Before adjourning, the learned magistrate substituted the name of Betty Tramun, the wife of Mana Yaliock (deceased) as the plaintiff.
On 26 June 1985 the appellant was not present in court. As a result the court entered judgment for the plaintiff.
The appellant has advanced four grounds of appeal:
(1)      There was no evidence for K3,644 damages;
(2)      The wife, Betty Tramun could not sue as the contract was between the deceased husband of Betty Tramun and the appellant, if any contract existed;
(3)      The decision was made against the principles of natural justice in that the appellant was not heard; and
(4)      Evidence before his Worship on the agreement on damages was unsatisfactory.
I deal with the grounds 1, 3 and 4 together. But first I deal with ground 2.
GROUND 2
Mr Alonk has argued that the respondent could not sue for breach of contract as she was not a party to the alleged contract. The respondent speaking for herself at the hearing of the appeal said in every community like in Enga, when a husband dies somebody in the family takes the properties. The husband must notify who is to benefit from the properties when he dies. The deceased took action himself and in the course of the action he died. She said “I as wife and my infant son brought the action because he (appellant) promised to pay my husband”.
Mr Alonk appeared to argue that the only person who could proceed with the action is the customary administrator or representative in accordance with the Native Administration Regulations (TNG) (Ch No 315). Mr Gene who appeared as amicus curiae suggested that the respondent has elected to use the provisions of the Wills Probate and Administration Act (Ch No 291). At any rate he said the provisions of the Native Administration Regulations (TNG) are limited only to the distribution of properties.
The deceased was a villager and there is no suggestion that he made any statutory will under the Wills Probate and Administration Act or a customary will under the Native Administration Regulations (TNG). The deceased died intestate.
Section 4 of the Native Administration Regulations (TNG) says:
“Part II of the Regulations — Succession to property — has effect notwithstanding anything in the Wills Probate and Administration Act.”
In Re James Allan Sannga (deceased) [1983] PNGLR 142 the Supreme Court said that where there is a partial intestacy under a statutory will, customary law cannot be taken into account or over-ride the statutory provisions. Further where there are administrators validly appointed under a statutory will and where there is a partial intestacy, no other administrators may be appointed. The effect of this, in my view, is that even if there is a person entitled by custom to administer the deceased’s properties not covered under a will, he has no authority.
In the matter before me resort has to be made to the provisions of the Native Administration Regulations (TNG). Section 5 says that the property of the deceased descends to the persons entitled to it by custom and it authorises the Provincial Commissioner of the province where the deceased died or where his property is situated to pay for the deceased’s debts before distributing the property.
Section 5 provides:
“Distribution on intestacy
(1)      When a person who is subject to this Regulation dies intestate, leaving property, the property descends to the person who are entitled to it in accordance with custom, after all debts owing by the deceased are paid out of such of the property as does not consist of land or water or rights accruing from land or water.
(2)      For the purpose of paying debts under Sub-section (1), the Provincial Commissioner of the province in which:
(a)      the person died; or
(b)      the property is situated,
may sell or barter the whole or such portion of the property as is necessary for the payment of the debts.”
The wording in s 5 is such that it is not clear to me whether the Provincial Commissioner is the Administrator in all cases or only where debts are owing by the deceased. Section 6 makes the Provincial Commissioner the Administrator where an automatic citizen dies intestate outside his home province.
Section 6 provides:
“Death outside home province
When a person who is subject to this Regulation dies intestate in a province other than the province in which his home is situated, the Provincial Commissioner of the province in which he died shall realize his assets, and after payment of all local debts send the balance to the Provincial Commissioner of the province in which the person’s home is situated, who shall give it to the person or persons entitled to it.”
Reading both sections together it appears to me that the rules intend the Provincial Commissioner to be the general Administrator of the property of a deceased who dies intestate. The specific mention of the Provincial Commissioner’s obligation over the debt is to ensure that the debts are paid before the distribution of properties. The Provincial Commissioner may allow other persons to administer the estate as was done in In the Land and Goods of Doa Minch [1973] PNGLR 558. The major factors which appear to have influenced an order in favour of the Public Curator in that case to administer the deceased’s properties were that the estate was so substantial that the Provincial Commissioner would have incomplete powers for an effective administration. Also the closest living relatives of the deceased authorised the Public Curator to be the Administrator because even among them it was not clear who might be the customary administrator of the estate.
Legally, and with respect I agree with Robson AJ in Doa Minch, that except in relation to payment of debts, power given to the Provincial Commissioner under the Native Administration Regulations (TNG) is distinct from obligation. Consequently someone else could be appointed to administer the property of the person who dies intestate. A similar view was also expressed in Re Bimai-Noimbano (deceased) [1967-68] P&NGLR 256 at 263:
“The Regulations provide a simple and informal procedure which ensures some supervision and the protection of creditors, but this does not mean that they are necessarily intended to constitute a complete code nor that they apply to the exclusion of all provisions of the Probate and Administration Ordinance. Nothing is said, for instance, of the property which consists of ‘land or water or rights accruing from land or water’ nor of the assets which remain unsold after debts have been paid.”
Returning to the appeal before me, there are numerous factors which could be ascertained without difficulty. But other factors are difficult to determine from the depositions. Who is to sue for breach of contract? It is claimed the deceased initiated the claim in the Local Court at Wabag but the depositions show that the complaint was laid with the District Court at Wabag in the name of the deceased. The deceased appeared to have signed the complaint. The matter was then it seems recommenced before the Grade V Magistrate. It was during the evidence of the widow that she mentioned that her husband had died. His Worship thereupon substituted the widow’s name for the deceased. The evidence did establish that the widow was the customary wife of the deceased. But I cannot see how it could be concluded that the widow was entitled by custom to administer the deceased’s property and hence she was entitled to sue for breach of a contract between the deceased and the appellant. The appellant appears to be a leader in the deceased’s area and he challenges the authority of the widow. The challenge could be a mere technicality on the part of the appellant as part of his appeal but its other implication ie the widow might not be the person entitled by custom to administer the deceased estate, cannot be dismissed lightly unless there is some positive evidence to show to the contrary.
The other factor is that the widow gave evidence before the District Court and later addressed me at the hearing of the appeal that the deceased owed some money to another person who helped to build the house. Part of the reason she has been pushing so hard is to pay this person.
Finally in making a decision under this heading of the appeal I take note of the following: The claim by the estate of the deceased is for a small sum of money. No customary administrator has been established by the evidence. Together with this is the fact that the widow’s authority is challenged. The estate owes some money to a third person. In the circumstances therefore, in my view, the obligation of the Provincial Commissioner under the Native Administration Regulations requires him to act. He can authorise someone else to sue on behalf of the estate. That includes the widow but as there is already a challenge, he may refer this question for determination by the Local Court at Wabag in accordance with s 9 of the Native Administration Regulations (TNG).
GROUNDS 1, 3 AND 4
I deal with these three grounds together because it appears to me that the arguments that have been advanced in relation to each ground are interrelated. It appears that the court treated the matter as a judgment by default. The magistrate’s notes state that when he was subsequently told of the reasons for the appellant’s absence he said he could not see any reason either in law or equity to set aside the order he made on 26 June. He did not accept the letter of Dr K Nemba of Sapos Hospital dated 28 June 1985 that the appellant was in the hospital following a motor vehicle accident in which he was injured.
The appellant admitted that he had asked the deceased to build him a house but there was no agreement that he was to pay a specific amount. The kitchen is yet to be completed. He said he paid K200 to the deceased. The widow and her witness said the appellant had paid K800. As to the amount claimed, without adducing any evidence from the appellant either through his own examination in chief or through a cross examination to assist the Court, the evidence by the respondent and her witness at the most is a hearsay evidence. Of course it may be argued that the appellant’s failure to give evidence has strengthened the amount claimed by the widow. His Worship was in a better position to accept or reject the reasons for the appellant’s absence from the court when it was his turn to give evidence. But I do say that whatever slight weight he has given to the appellant’s reason for his absence, this together with the nature of the evidence produced by the respondent and her witness, it would have been just to adjourn the matter to ensure that appellant was given a chance to give evidence. This I say particularly because the widow has not explained the basis of what appears to be a peculiar amount she claims ie K4,644. For the reasons I have stated l would uphold the grounds 1, 3, 4 of the appeal.
I remit the matter back to the District Court with a direction that the Provincial Commissioner be asked to exercise his obligation under the Native Administration (TNG) Act in respect of the claim.
Orders accordingly
Lawyer for the appellant: S Alonk.
Respondent appeared in person.
Amicus curiae, M Gene.