Papua New Guinea Law Reports

(10) &#The; eetimeeting at “Panga” attended by some membershe Palan group at which the Public Curc Curator ator was requested to bring this application and at which the question of succession under custom to the deceased’s estate was discussed did not bind all the members of the clan group and could not be construed as a waiver of their rights.

Application by Public Curator Under s. 90 (1) (c) of the Probate and Administration Ordinance (1951-1960)

The facts and the arguments of counsel are sufficiently set out in the judgment hereunder.

Counsel

G. Toop, for the applicant.
J. Fingleton, for the intervener.
Cur. adv. vult.

24 August 1973

ROBSON AJ: This is an application by the Public Curator of Papua New Guinea for an order under s. 90 of the Probate and Administration Ordinance 1951-1960 authorizing him to administer the estate of Doa Minch, also known as Doa Mints, who died intestate at Mount Hagen in the Western District on 29th March, 1972. In the context of this case the word “intestate” means the absence of a will effective either under the Wills, Probate and Administration Ordinance 1966-1970 or under Pt. V of the Native Administration Regulations 1924 (New Guinea) or any other law.

The deceased was an “aboriginal native” of Papua New Guinea and throughout his life was a member of the Palge clan group. The Panga Estate, which was his home at the time of his death, is a few miles from Mount Hagen and near the village of Paragai. He was survived by his widow Yana, a number of children of whom Kerua Doa is the eldest son and other relatives including two brothers.

There is no evidence as to the number of persons presently comprising the Palge clan but the 1967 census showed that its members residing in Paragai Village comprised approximately 135 men, women and children.

At the time of his death the estate appeared to have a gross value of $60,834.38. It comprises land known as “Panga” ($19,000); plantings of 7.4 hectares of tea and coffee ($10,000); structural improvements comprising a residence, trade store, boundary fences and cattle yards ($5,000); livestock ($26,000); 35 bags of processed coffee ($771.60) and a credit with the Bank of New South Wales ($62.78). The plantings and structural improvements are on the Panga property.

The processed coffee was sold and the proceeds paid into the “Doa Mints Trust Account” with the Bank of New South Wales at the Mount Hagen branch which is operated by the present District Commissioner and by the District Officer (Lands), both of the Western Highlands District. The latter officer, Mr. Wetzel, has managed to some extent the affairs of the deceased’s estate in conjunction with officers of the Department of Agriculture since April, 1972. There is no opposition by these officials to this application and indeed Mr. Wetzel and the Deputy District Commissioner have given evidence in support of it.

The debts claimed against the estate as at the date of death amount to $16,151.25 of which the sum of $16,141.00 is secured by a first mortgage on the land.

At the commencement of these proceedings counsel sought and was granted leave to intervene on behalf of the First Assistant Secretary, Division of District Administration, Department of the Chief Minister and Development Administration of Papua New Guinea, pursuant to O. 1 r. 1 and O. XII r. 17 of the Rules of the Supreme Court (Queensland adopted). Such First Assistant Secretary performs the duties previously assigned to the Director of Native Affairs.

The Wills, Probate and Administration Ordinance 1966 as amended came into operation on 14th May, 1970. It repealed, inter alia, the Probate and Administration Ordinance 1951-1960 (see s. 3 (1) and the First Schedule). The Wills, Probate and Administration (Amendment) Ordinance 1970 operated retrospectively and is deemed to have come into operation on 14th May, 1970.

Under the latter Ordinance certain provisions of the Probate and Administration Ordinance 1951-1960 were saved from repeal, including s. 90 (s. 4), and it was also provided that nothing in the Ordinance was to repeal, alter or affect, inter alia, Pt. V of the Native Administration Regulations 1924 of the Territory of New Guinea as in force immediately before the commencement of the 1970 Ordinance, and insofar as that part relates to the intestate estate of deceased natives (s. 6a).

The relevant provisions of s. 90 of the Probate and Administration Ordinance 1951-1960 are as follows:

“(1) ҈ The; The Supreme Court or a Judge may, on the application of the Curator, gto the Curator an Order to r to Administer the estate of any deceased person leaving real or personal estate within the jurisdiction in any of the following cases:

(a) e; Whhee the deceased leaves no executor, widow, widowr nexkin, ent w the jurisdicisdiction,tion, will willing aing and capable of acting in execution of his will or administration of his estate;

(c) &  Whroe pe oate or administration is not applied for within three months after the death of theased;

(2)p>(2) The Supreme Court or a Judge may in any case require the Curator to:

(a)&##160;;#1600¦
i0; give suve such notices;

(b) ټ such persopersons; or

(c) ټ pe sucdence,

as the Suhe Supremepreme Court or a Judge thiit begranthe orde order appr applied lied for, or may make a temporary order for collection and protection only or limited to a portion of the estate or otherwise.”

The last-mentioned subsection is awkwardly expressed but in my view it gives the court power to make an order as to the whole or part of an estate which order may be limited in time on the happening of a contingency. This view is supported by the construction of the phrase “or otherwise” both in the context of that section and in its necessary relationship to ss. 91, 92 and 93.

This application is brought under sub-s. (1) (c) of s. 90 and appears to fall within it. No caveat has been entered in the matter and, except for the intervener, there is no evidence of opposition to the order as asked.

The real difficulty comes from the terms of the Native Administration Regulations 1924 (New Guinea) which apply under s. 6a of the Wills, Probate and Administration Ordinance 1966 as amended. Since the deceased was “a native” in the material sense, would the making of the order sought “repeal, alter or affect” the provisions of Pt. V of the Native Administration Regulations?

The relevant regulations in this matter are 70 to 75:

“70. ; When a na a native dies intestate, leaving property, such property shall desce thossons who in accoraccordancedance with native custom are entitled to it, provided that all debts owing by him shall first be paid out of such of it as does not consist of land or water or rights accruing from the land or water. For the purpose of paying the debts the district officer of the district in which the native dies, or in which the property is, may sell or barter the whole or such portion of such property as is necessary for the payment of the debts.

71. &  When a n dive dies intestate in a district other than that in which his home ie dis rictcer of the distriistrict inct in which he died shall realize his assets, and, after payment of all local debts, send the balance to the district officer of the district in which the native’s home is, and such last-mentioned district officer shall give it to the person or persons entitled to it.

72. &##160; If athe exhe expiration of six years from the dof a native any moneys remain to the creditredit of the estate of such native, and no person has apparently a right to such moneys, they shall be paid to the Treasurer of the Territory for the public use of the Territory.

73. &; A d; A district officer, before distributing the estate of a deceased natshallct therefrom all all expenexpenses properly incurred by him in dealing with such estate.

74. ; If any disy dispute or doubt arises as to the person or persons entitledny esthe m shouldhould be d be determetermined by the court after hearing the evidence of the claimants to the property.”

Regulation 75 requires the district officer to furnish certain periodic reports as to the estates he has been administering.

First it must be observed that the customary rights of beneficial succession preserved by reg. 70 prevail over the provisions of the Succession Act by virtue of s. 6a of the Wills, Probate and Administration Ordinance 1966, as amended, and the persons thereby entitled to succeed to the deceased’s property as beneficiaries are so entitled whether any formal order to administer the estate is made or not (Re Bimai-Noimbano, Deceased[dcli]8).

Secondly, reg. 70 should be construed as providing not only that native custom shall determine the ultimate beneficiaries but also that where native custom provides in addition for the property in certain assets held by the deceased to pass on his death to another who has administrative powers and obligations then the property in these assets shall so pass subject to and by virtue of the regulations. (Bimai’s case[dclii]9).

Thirdly, these regulations confer certain powers on a district officer which permit him to administer informally and simply certain types of estates. For the purpose only of paying debts he may sell or barter so much of the estate as does not consist of land or water or rights accruing from land or water. Where, as in the instant matter, the deceased dies leaving property only in his own district one may not treat reg. 70 in isolation. It is necessary to read regs. 70 to 75 together. He may therefore distribute the estate after paying the debts and deducting from it all expenses properly incurred by him in dealing with it. Accordingly, an order may not be made under the Probate and Administration Ordinance which prevents a district officer from exercising his powers under these regulations since it would “affect” their provisions. Other than in cases where reg. 71 operates however, what he is given is power as distinct from obligation. This follows from the lack of directive words in the first sentence of reg. 70 and the use of “may” as distinct from “shall” in the second sentence. There are many instances of course of legislation where “may” in the particular context means “shall” but in my opinion this is not one of them. The language of reg. 70 is in sharp contrast to the imperative language of reg. 71. Further, this set of regulations is obviously designed to permit a district officer to administer simple estates and not to require him to intermeddle in those more complicated where his incomplete powers prevent effective administration by him. This view is entirely consistent with the limited subject matter for report under reg. 75.

Consequent upon this reasoning I consider that reg. 74 does not arise where a “native” dies intestate leaving property only in his own district and the limited powers of a district officer do not permit him to administer the estate or he elects not to exercise such powers as he may have regarding it. As a result in that situation any dispute or doubt arising as to the person or persons entitled to the estate does not fall to be determined by the “court” therein mentioned, that is to say, a local court.

It follows from the foregoing that an order such as is sought here does not touch succession to beneficial interests under native custom; it is only beyond power to grant it if it denies or affects the rights of an administrator springing from such custom or the powers of a district officer as expressed in the regulations.

A distinct question arose in this case as to the real estate, that is to say the land in Certificate of Title Vol. 23 Fol. 137 and whatever forms part of it.

There is no doubt that the property mentioned in Pt. V of the Native Administration Regulations may include realty (see the proviso in the first sentence of reg. 70). This is certainly so as to “native” land as defined in the Ordinances Interpretation Ordinance 1949 as amended.

The problem now arising, however, is whether the land in Doa Minch’s estate raises different considerations because it was the subject of an order under the Land (Tenure Conversion) Ordinance 1963, as amended, made on 17th July, 1968, following what was the first application for tenure conversion in the Western Highlands District. The Certificate of Title was issued on 3rd October, 1969, subject to the conditions and restrictions of the Land (Tenure Conversion) Ordinance. It was made subject to the following limitations:

“(a)
he; Tnd land may be transferred or leased only to the administraor totive and in accordance with the pthe provisrovisions of the Land Ordinance 1962-1967.

(b) ¦t The land may be mortgaged or charged but notwithstanding anythingny laforcehe Terr Territoryitory or a part of the Tere Territory to the contrary contained, the mortgagee or chargee is not entitled to remain in possession for longer than three years or to foreclose the right of the mortgagor or chargor to redeem the mortgaged or charged land.

(c) &##160; &#160 land land shall not be taken under a writ of execution or under or in consce ofna bankruptcy or insolvencyvency, or in any similar or analogous manner.”

Section 16 of the Land (Tenure Conversion) Ordinance is in Div. 3 headed “Effect of Conversion Order”. It reads:

“Upon the making of a conversion order, but subject to any decision on review or appeal under Part V of the Land Titles Commission Ordinance 1962:

(a) ; the land tand the subject of the order (other than land referred tparag(c) osection (1) (1) of Seof Sectionction 11 of this Ordinance) ceases to be native land, and the land and any right to the ownership or possession of the land, and any other right, title, estate or interest in or in relation to the land, cease in all respects to be subject to or regulated by native custom;

(b) ټ ightr, tit, titles, estates and interests, er legal or equitable and whether arising fing from or regulated by native custom or otherwise, and whether in rem or in personam, subsisting before the date of the order, are abolished, other than such rights, titles, estates and interests as are specified in the order; and

(c) &##16;& the orderehas effect in respect of the land the subject of the (othan laferred rred to into in paragraph (c) of Subf Subsection (1) of Section 11 of this Ordinance) in all respects as though the Registrar has taken the action referred to in paragraphs (a), (b) and (d) of that subsection under the order, whether or not that action has been taken.”

It was submitted that by reason of this section such registered land is not subject to Pt. V of the Native Administration Regulations because a right to succession under such Regulations is a “right” or “interest” within the contemplation of s. 16 of the Land (Tenure Conversion) Ordinance.

In my view this is not so for at least three reasons.

First the Land (Tenure Conversion) Ordinance is designed to give guaranteed individual titles to land in lieu of a claim to land held in accordance with native custom with its attendant uncertainties. It is concerned with matters of land tenure and not of succession. The preamble, the conversion process including the giving of notices and compensation to those whose interests by native custom in the land would be abolished or reduced by the making of the order, and the whole scheme of the Ordinance points to this. The “rights, titles, estates or interests” referred to in s. 16 are such as must cease in all respects to be subject to or regulated by native custom under s. 16 (a) and are such as must be abolished if subsisting before the order under s. 16 (b) if a guaranteed individual title is to come into existence.

Secondly, the reference in s. 27 (1) of the Land (Tenure Conversion) Ordinance to “any law relating to succession” must include not only the Succession Act, but also Pt. V of the Native Administration Regulations read in conjunction with s. 6a of the Wills, Probate and Administration Ordinance, and s. 159c and the 20th Schedule of the Lands Registration Ordinance 1924, as amended.

Thirdly, the method in s. 27 of avoiding fragmentation by devolution can only be sensible in the entire legislative complex relating to the registration of land and transmission to beneficiaries if succession by native custom is relevant.

The real estate belonging to Doa Minch ceased in his lifetime to be “native land” but it continued to be the land of a “native” for succession purposes.

Accordingly, so far as this application is concerned the estate may and should be considered as a whole.

The evidence as to the relevant customs of the Palge clan comes from three sources. First, there is the affidavit of Mr. Aisbett who was Deputy District Commissioner at Mount Hagen, Western Highlands District, at the time it was sworn. He has had more than five years experience in the area in question and is thoroughly conversant with the customs of the people of the Palge clan. Secondly, there is an affidavit by Miss Inge Riebe who is doing post-graduate studies involving fieldwork in the Western Highlands District and who is fluent in both the German and English languages. She annexed a copy of the title page of a monograph in the Hamburg Museum of Völkerkunde by Herman Strauss together with copies of certain pages from it. These are in German and she has provided either a translation or a summary of these in English. Herman Strauss was a missionary at Ogelbeng near Mount Hagen during the years 1936 to 1939 and again for some considerable time after 1945 up to 1956. It appears that he acquired an extensive knowledge of the language and customs of the people living in an area which includes the Palge people. Thirdly, Professor Strathern who occupies the Chair of Social Anthropology at the University of Papua New Guinea made an affidavit in which he expressed the opinion that what appears in the translated extracts from Herman Strauss’ monograph remains today a true statement of the customs of the Mount Hagen people including the Palge group in relation to the distribution of the estate of a dead person from that area and that the estate of Doa Minch comprises property to which customary rules of inheritance would apply. More importantly he gave oral evidence amplifying those views and commenting on the affidavit of Mr. Aisbett. The latter also supplemented his affidavit by oral evidence during these proceedings.

There was some conflict on the evidence as to whether or not it was possible under the relevant group custom for a deceased member of it during his lifetime to appoint a person to become absolute owner of his property after his death with a power to apportion or not as he saw fit and whether death bed requests and commands would be held binding by the group. It is unnecessary to form a conclusion as to this since there is no evidence that Doa Minch ever expressed any clear views either as to the destination of beneficial interests in his estate or the method of its administration and distribution. In the circumstances if such existed they would have been brought to the attention of the court.

The evidence made apparent of course the dangers of over-simplification, the difficulties of expressing clan custom in the language and understanding of more sophisticated societies, the differences in its property classifications and possible conflict between local custom and the existence of property which of its very nature is necessarily impressed with legal characteristics alien to the clan traditions.

Paragraph 6 of Mr. Aisbett’s affidavit is as follows:

“The customary law of the group is organic rather than static. The custom of the group evolves to meet new circumstances and solve new problems.”

Professor Strathern agrees with this.

Paragraph 7 of the same affidavit reads:

“After the death of the deceased his eldest son if of mature age, or, more correctly, married would be looked upon by the group as having the ‘most say’ in the distribution and handling of the estate. It would be incorrect to say that the assets vest in the eldest son. The property vests in the group. The eldest son could not sell or transfer any portion of the deceased’s assets without the consent of the other members of the group. He has a power to apportion to his brothers and sisters when they come of age but there are customary limits to the exercise of this power. He could not do anything foolish or unfair, e.g. give one brother a very large share and another a much smaller share. He could not in fact apportion any property until his action has been discussed at some length with the other members of the group. If he attempted this there would be an uproar.”

Commenting on this Professor Strathern said that the statement that property vests in the group is too simplified and general. It does not distinguish between different kinds of property, particularly between personally acquired wealth and land claims. “It is likely that ultimate decision as to the personally acquired wealth of the deceased should be made by a smaller group within the clan. This small group is traditionally determined. As to land certain interests of the wider group are involved. Land could not be alienated without the consent of the clansmen. The partition of use rights is recognized.” He further said that some assets in this estate could present particular problems. He was unable to express any firm view as to whether the plantings and the structural improvements would in accordance with clan custom fall to be considered by a committee or by an individual such as the eldest son. If there is a dispute native custom envisages continued discussion until it is resolved. It does not provide machinery for final resolution and apparently ultimate deadlock is avoided by group pressures.

The relevant opinion in the monograph of Herman Strauss on this aspect of the matter is too general to be of much assistance. He says: “If a dying man has not nominated anyone as the distributor of his estate, then one of his brothers or sons who stand closest to him takes over the task of distributing the estate.”

Mr. Aisbett amplified this part of his affidavit by his oral evidence. “The eldest son would have most say; he has not the sole right. He may apportion parts of land, owned and used by his father, to members of the father’s family and to his father’s brothers for usage purposes only. The usufructuary system exists whereby land is the property of the clan and can only be disposed of by full agreement of the clan. If the son wanted to sell portion he could not do it without the approval of all the elders of the clan.”

The final paragraph of Mr. Aisbett’s affidavit is as follows:

“There is no customary administrator of the deceased’s estate according to the custom of the Palge clan.”

He said when cross examined about this that there is no customary administrator with full powers; the clan could, for example, override the son’s controlling interest. As to goods, chattels and money, the son would have powers to distribute them but in an estate such as this there would be a good deal of authority to the widow since custom changes with the times.

Commenting on this paragraph Professor Strathern said that the phrase “customary administrator” in that context is ambiguous. There may be a customary administrator subject to his obligation to discuss the matter with the appropriate group within the clan. If, however, the phrase means somebody in whom the whole property vests on death who has independent rights to administer as he pleases, then there is no customary administrator in that sense.

Mr. Aisbett said that where the clan members are unable to resolve problems of distribution or usage rights it would be normal now for them to seek assistance from an officer in the Administration or a person whose authority they recognize.

I find on the whole of the evidence that at present there is no particular person or group designated and required or permitted by the custom of the Palge clan to administer this estate in any real sense but such custom has a characteristic of flexibility which may produce one at some time.

There is another aspect of the case which requires attention. On 25th July, 1972, at Panga there was a conference attended by the Public Curator, Mr. Wetzel who has been mentioned, other officers from various departments of the Administration, the widow, the eldest son and two brothers of Doa Minch together with fifteen or more indigenous people. After considerable discussion, which was described by Mr. Wetzel in some detail, the Public Curator asked the family group if they wanted him to administer the estate. The widow replied in pidgin which Mr. Wetzel in his affidavit interpreted thus: “We would like you to sort out the problems of this estate as soon as possible so that we all know who will inherit this estate. We want to keep it within my family, that is, me and my children.” The eldest son agreed with his mother. This evidence in my view justified the Public Curator in making this application and strengthens the inference that there is at present no administrator in the relevant sense who is the product of the custom of the Palge clan group. Other than that it does not assist the court. I am unable to conclude that those then present were necessarily able to bind all members of the clan group who may have an interest in the estate. It cannot be construed as constituting a waiver of their rights by all those who may be concerned in the effect of the Native Administration Regulations. This court cannot in the present proceedings express any opinion as to the identity of such person or persons.

For all the above reasons it is proper to make the order as asked but it must be subject to conditions.

The formal order of this Court is:

Order. That the Public Curator of Papua New Guinea be authorized to administer the real and personal estate of the above-named deceased, intestate, who died at Community Hospital, Mount Hagen, aforesaid on 29th March, 1972, subject to the condition that this Order shall cease to operate as to the whole or any part of the estate in the event of this court being satisfied that as to such whole or part there exists or exist some person or persons designated and required or permitted by the custom of the Palge clan group of the Western Highlands District to administer the same who is or are ready, willing and able to perform such administration or that a district officer within the meaning of the Native Affairs Regulations elects to exercise such powers as to the administration of this estate as are given to him by such regulations.

Costs of the applicant of these proceedings may be paid out of the estate.

The intervener to bear his own costs.

Liberty to apply.

Orders accordingly.

Solicitor for the applicant: P. J. Clay, Crown Solicitor.
Solicitor for the intervener: G. R. Keenan, Acting Public Solicitor.

[dcxliv]Infra p. 563.
[dcxlv]Infra p. 564.
[dcxlvi]The effect of s. 6a is set out at pp. 562-3.
[dcxlvii]Infra p. 564.
[dcxlviii]The effect of s. 6a is set out at pp. 562-3.
[dcxlix]Infra p. 564.
[dcl]The relevant provisions of the Land (Tenure Conversion) Ordinance 1963-1970 are as follows:—

Section 16. Upon the making of a conversion order, but subject to any decision on review or appeal under Part V of the Land Titles Commission Ordinance 1962—

(a) &##160; ـ the lan suhe subject of the o(other than land referred to in paragraph (aph (c) of Subsection (1) of Se 11 of this this Ordinance) ceases to be native land, and the land and any right to the ownership or possession of the land, and any other right, title, estate or interest in or in relation to the land, cease in all respects to be subject to or regulated by native custom;

(b) alltrighit, titles, estates and interests, whether legal oitabl whetrising from or regulated byed by nati native cuve custom or otherwise, and whether in rem or in personam, subsisting before the date of the order, are abolished, other than such rights, titles, estates and interests as are specified in the order;

and

(c) ¦
he; the order has effect in respect of the land the subject of the order (other than land referred to in paragraph (c) of Subsection (1) of Section 11 of this Ordinance) in all respects as though the Registrar has taken the action referred to in paragraphs (a), (b) and (d) of that subsection under the order, whether or not that action has been taken.

Section 27. (1) If, under any law in force in the Territory or a part of the Territory relating to succession to property upon death, any land registered in pursuance of this Ordinance devolves upon more than six persons, the Registrar of Titles shall so inform the Commission.

(2) ¦
ot; Nothing in the last preceding subsection contained prevehe Coion faking, of its owns own moti motion, aon, action under the next succeeding subsection.

(3) ټ &; In ; In default of agreement between the beneficiaries to transfers terests be themselves whichwhich woul would have the effect of reducing the number of proprietors to six or less, or to a sale of the land to not more than six persons, the Commission shall—

(a) ـ &##16;& sel; select by ballot not more than six of the beneficiaries and order that those benefici&#821>;

(i) &##16;& ¦
ak; make such payment to the remaining beneficiaries as the Commi cons derstequi; and