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Kambao v Yakka [2016] PGNC 312; N6514 (29 September 2016)

N6514

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 872 OF 2013

IN THE MATTER OF THE ESTATE OF LEN KAMBAO, SELF EMPLOYED, LATE OF PORT MORESBY, NATIONAL CAPITAL DISTRICT, DECEASED INTESTATE

BETWEEN:
TIMOTHY KAMBAO,
for and on behalf of Sam Kambao, Sharon Kambao
and 6 other minors in his capacity as the Personal
Representative of the Beneficiaries herein
Plaintiff

AND:
MARK YAKKA
– Administrator of the Estate
of Late Len Kambao
First Defendant

AND:
THE PUBLIC CURATOR
– The Official Trustee
Second Defendant

Waigani: Hartshorn J
2015: 3^rd December
2016: 29^th September

Application to Dismiss Proceeding

Cases Cited:

Eliakim Laki v. Maurice Alaluku, Secretary Department of Lands [2000] PNGLR 392
Louis Medaing v. Ramu Nico Management (MCC) Ltd (2010) N4158 and
Mereke v. Board of Directors of PNG Federation of Cooperative Associations Ltd (2007) N3203
Simon Mali v. Independent State of Papua New Guinea [2002] PNGLR 548
Tigam Malewo v. Keith Faulkner (2009) SC960
Wilfred Mamkuni v. Ly Cuong-Long and Jant Ltd (2011) N4674

Counsel:

Mr. L. Putupen, for the Plaintiff
Mr. W. Mapiso, for the First Defendant

29^th September, 2016

1. HARTSHORN J: This is a decision on a contested application to dismiss this proceeding. The first defendant, Mr. Mark Yakka, the Administrator of the Estate of Len Kambao, seeks to dismiss this proceeding on the ground that the proceeding is an abuse of process as certain mandatory requirements of the National Court Rules as to capacity in a representative proceeding have not been complied with.
   
2. The application to dismiss is opposed by the plaintiff, Mr. Timothy Kambao, who purportedly sues as personal representative of named beneficiaries.
   

Background

3. Mr. Len Kambao died intestate on 2^nd June 2010. On 18^th February 2011 this court granted Letters of Administration of Mr. Kambao’s Estate to the first defendant. On 12^th August 2013, the plaintiff filed this proceeding in which he seeks to revoke the grant of the Letters of Administration to the first defendant.
   

Preliminary

4. Counsel for the plaintiff took issue with the first defendant’s notice of motion filed 28^th October 2015 as:
   

a) the first defendant has not given reasons why his amended notice of motion filed 2^nd April 2014 (second dismissal motion) was allowed to be dismissed for want of prosecution;

b) there remains current a notice of motion of the first defendant filed 29^th November 2013 seeking a dismissal of the proceeding (first dismissal motion) which has not been prosecuted;

c) the plaintiff’s notice of motion filed 10^th August 2015 seeking dismissal of the first and second dismissal motions, restraining orders and the deposit of the Letters of Administration granted to the first defendant, remains part heard;

d) its wording is cumbersome as it does not contain a concise reference to this court’s jurisdiction: Order 4 Rule 49 (8) National Court Rules.

5. As to no reasons being given for the second dismissal motion not being prosecuted, as the motion was not heard on its merits, another motion may be filed. It is not a requirement that reasons be given for a previous motion being allowed to be dismissed for want of prosecution, although common courtesy would dictate that such reasons be given.
   
6. As to the first dismissal motion being current, given that it has been outstanding for two years and the plaintiff sought to dismiss it in its notice of motion filed 10^th August 2015, I will adopt that course and order its dismissal.
   
7. As to the plaintiff’s notice of motion filed 10^th August 2015 being part heard, at the hearing of the court on 3^rd December 2015, counsel for the plaintiff agreed for the first defendant’s notice of motion filed 28^th October 2015 to be heard first, as it sought dismissal of the proceeding.
   
8. As to the wording of the notice of motion of the first defendant filed 28^th October 2015 not containing a concise reference to the court’s jurisdiction, from a reading of it, I am satisfied that it does. It is clear in my view that what is sought is that pursuant to Order 12 Rule 40 (1) (c) this proceeding be dismissed as an abuse of process for failure to comply with Order 4 Rule 4 (20) (2) and (3).
   

This application

9. The first defendant submits that the proceeding should be dismissed as amongst others:
   

a) Order 4 Rule 20 (3) National Court Rules has not been complied with as the plaintiff did not file an affidavit verifying the endorsement on the writ before issuing this writ of summons;

b) Mr. Sam Kambao and Ms Sharon Kambao have not filed any affidavits to verify that they gave their authority or consent for the plaintiff to bring this action on their behalf;

c) the two widows of Len Kambao Deceased and Mr. Sam Kambao have deposed that the plaintiff lacks the representative capacity to bring this probate action.

10. The plaintiff submits that this proceeding should not be dismissed as amongst others:
    

a) the plaintiff has reasonably complied with Order 4 Rule 20 as he filed an endorsement as to capacity on 10^th of August 2015 to correct any defect;

b) Order 4 Rule 20 (1) is the deciding Rule in Order 4 Rule 20 and not 20(2) and (3);

c) the purpose of Order 4 Rule 20 is not to dismiss proceedings but to ensure that representative actions are properly filed and defects corrected. Here the defects have been cured;

d) the first defendant does not come to court with clean hands as he has failed to perform his role as Administrator of the Estate of the Deceased.

Consideration

11. Order 4 Rule 20 is as follows:
    

“(1) Before a writ of summons is issued it must be endorsed —
(a) where the plaintiff sues in a representative capacity—with a statement of the capacity in which he sues; and
(b) where a defendant is sued in a representative capacity—with a statement of the capacity in which he is sued.
(2) In probate actions the endorsement shall show whether the plaintiff claims as creditor, executor, administrator, residuary legatee, legatee, next-of-kin, heir-at-law, devisee, or in any and what other character.
(3) The issue of a writ of summons in a probate action shall be preceded by the filing of an affidavit by the plaintiff, or by one of the plaintiffs, verifying the endorsement on the writ.”

12. No issue was taken with the fact that this proceeding is a probate action as defined in Order 1 Rule 6 National Court Rules and I am satisfied that it is as it is an action for the revocation of a grant of letters of administration of an estate. Further, the plaintiff did not file an affidavit verifying the endorsement of the writ before issuing the writ of summons as required by Order 4 Rule 20(3). Davani J considered Order 4 Rule 20 in Mereke v. Board of Directors of PNG Federation of Cooperative Associations Ltd (2007) N3203.
    
13. The plaintiff submits that he has reasonably complied with Order 4 Rule 20(3) by filing on affidavit as to capacity on 10^th of August 2015 by way of “correcting the defect”. This affidavit was however, filed just over two years after the writ of summons and statement of claim were filed. Further, it was filed about 20 months after an affidavit was filed by the son of the deceased, who the plaintiff purportedly represents, in which it is deposed amongst others that the plaintiff does not have the authority or consent to act on the son’s behalf or to bring this proceeding on behalf of the family. The affidavit of the plaintiff was also filed about 20 months after the two widows of the deceased deposed in affidavits that the plaintiff does not have the authority and consent to bring proceedings on behalf of the other children of the deceased.
    
14. It is clear that the plaintiff has not complied with Order 4 Rule 20(3) in not filing an affidavit verifying the endorsement on the writ before the writ was issued. As to whether there has been reasonable compliance with Order 4 Rule 20(3) by the plaintiff, the Rule is mandatory by use of the word “shall”. In my view there cannot be reasonable as distinct from actual compliance with a provision that is expressed in mandatory terms. Either it is complied with or it is not.
    
15. If however, reasonable compliance is permissible, in circumstances where the Rule provides that it is mandatory for the subject affidavit to be filed before the writ was issued, and a correcting affidavit was filed two years after the writ was issued and after affidavits challenging and opposing the plaintiff’s right to represent the children of the deceased were filed 20 months before, I am not satisfied that the actions of the plaintiff could constitute reasonable compliance with Order 4 Rule 20(3).
    
16. At this juncture, I also take into account the representative requirements referred to in Simon Mali v. Independent State of Papua New Guinea [2002] PNGLR 548. In that case the Supreme Court stated amongst others, that in all actions or proceedings of a representative nature, all of the intended plaintiffs must be named and duly identified in the originating process and pursuant to Order 5 Rule 8 National Court Rules, each and every intending plaintiff must give specific instructions evidenced in writing to their lawyers to act for them. Tigam Malewo v. Keith Faulkner (2009) SC960 confirmed the representative principles stated in Simon Mali v. State (supra).
    
17. Further, any person in whose name proceedings are commenced and who claims to represent other intended plaintiffs must produce an authority to the Court to show that he was authorised by them to file proceedings as a class representative. Other authorities on point include: Eliakim Laki v. Maurice Alaluku, Secretary Department of Lands [2000] PNGLR 392; Louis Medaing v. Ramu Nico Management (MCC) Ltd (2010) N4158 and Wilfred Mamkuni v. Ly Cuong-Long and Jant Ltd (2011) N4674.
    
18. To my mind, the same requirements are applicable in this instance. This proceeding is bought as a representative proceeding. Intending plaintiffs must give specific instructions and a person who claims to represent other plaintiffs must produce an authority to do so. In this instance the persons who the plaintiff purportedly represents are the children of the deceased. The children, being a son by himself, and the other children by their mothers have given evidence of the plaintiff not having their consent or authority to bring this proceeding.
    
19. In all of the circumstances for the above reasons, I am satisfied that the first defendant is entitled to the relief that he seeks.
    

Orders
20.

1. This proceeding is dismissed;
2. The plaintiff shall pay the first defendant’s costs of and incidental to this proceeding to be taxed if not otherwise agreed;

100. Time is abridged.
     

_____________________________________________________________
Lyons Putupen & Associates : Lawyers for the Plaintiff
Guardian Legal Services : Lawyers for the First Defendant