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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS No.667 of 2015
BETWEEN:
RELYNA KOMET
Plaintiff
AND:
ANGELINE KOMET
First Defendant
AND:
JACOB POPUNA, Public Curator
Second Defendant
Waigani: David, J
2017 :4 & 6 July
2018 :8 August
WILLS, PROBATE AND ADMINISTRATION – deceased dying intestate – no valid will - property vested in Public Curator – powers and duties of Public Curator - Wills, Probate and Administration Act, Sections 1, 13, 14, 35E and 44 – Public Curator Act, Sections 14 and 15.
COMPANY LAW – legal nature of shares – a share in a company is personal property – deceased had one share - only personal representative entitled to deal with share – appointment and removal of directors – director ceasing to hold office upon death - Companies Act 1997, Sections 36, 37, 40, 73, 86, 101, 102, 103, 104, 105, 130, 131, 132, 133, 134, 135 and Schedule 2.
Cases cited:
Gawan Kuyan v Andrew Sallel; Andrew Sallel v Gawan Kuyan (2008) N3376
Paul Wagon, Public Curator of Papua New Guinea v Peter Pilembo (2008) N3487
Public Curator of Papua New Guinea v Rei Renou & Ors [1978] PNGLR 253
Counsel:
Philip Feareka, for the Plaintiff
Karen P. Nugi, for the first Defendant
No appearance for the second Defendant
JUDGMENT
8 August, 2018
1. DAVID, J: INTRODUCTION: By originating summons filed on 14 October 2015, the plaintiff, Relyna Komet (Relyna) seeks the following principal relief:
“1. A declaration that the Letter of Indemnity from the Public Curator stating that the defendant is the next of kin in the estate of the late Parkop Komet is misleading, without legal basis and null and void.
2. A trial was conducted to determine the substantive action.
EVIDENCE
3. Relyna gave sworn oral evidence and was subjected to cross-examination. Her affidavit sworn and filed on 2 March 2017 was admitted into evidence through her without objection and was marked as Exhibit A.
4. The first defendant, Angeline Komet (Angeline) also gave sworn oral evidence and was subjected to cross-examination as well. Her affidavits, the first one sworn on 17 November 2015 and filed on 17 November 2015 (first affidavit) and the second one sworn on 23 June 2017 and filed on 28 June 2017 (second affidavit) were also admitted into evidence through her without objection and were marked as Exhibits 1 and 2 respectively.
SUMMARY OF PLAINTIFF’S EVIDENCE
5. She is the daughter and next of kin of former serving member of the PNG Defence Force, 87633, late Sergeant Parkop Komet (the deceased) from his first marriage to Merelyn Komet.
6. The deceased resigned or was retrenched from the PNGDF on or about 31 May 2002.
7. After his retrenchment, they relocated and took up residence with her mother’s relative at Manu Autoport. The deceased operated four PMV buses known as Pukos 19 while serving in the PNGDF and continued to do so after he was discharged. The buses were operating on Route 19 between Taurama and Manu Autoport.
8. In 2004, the deceased had an extra-marital affair with Angeline. She was her mother’s cousin and her baby sitter. Her mother sought counselling with the Catholic Family Services and Archdiocesan Caritas Office in February 2005: annexure D of her affidavit. She then took out proceedings against the deceased and Angeline in the Family Court in Port Moresby which resulted in that court making orders for the deceased to pay a fine of K1,000.00 and for the deceased and Angeline to desist from continuing the affair. Notwithstanding the court order, the deceased and Angeline continued to live together in a de facto relationship until his death.
9. The deceased was the Head Coach of the Defence Soccer Club. During his involvement with soccer, he befriended Fabian Chow, the owner of Lae Biscuit Company. He was asked by Mr Chow to provide security over his property namely, Allotment 11 Section 349 Gerehu Stage 2 (the property) and he obliged and moved in and resided there with Angeline: annexure E is a copy of a computer advice from the Department of Lands dated 30 April 2015 showing the addressee as Torokina Corporation Limited of PO Box 1331 Lae.
10. The deceased died testate on 27 July 2013. He left a will before travelling to Buka in or around 1990 during the Bougainville crisis in compliance with PNGDF requirements. The will is in the custody of the PNGDF Records Office together with his personal records found at FAP page 1. Annexure A to her affidavit is a copy of the deceased’s Personal Particulars. The Personal Particulars form part of the will.
11. A letter from the PNGDF by Eremas Benson, Warrant Officer and Acting Supervisor, PNGDF Records Office addressed to the office of the second defendant, Jacob Popuna, Public Curator (the Public Curator) dated 2 October 2014, a copy of which is annexed to her affidavit as annexure B, confirms that their records showed that:
It was recommended that the children were the deceased’s biological children and as the deceased’s will was made in favour of his daughter, Relyna as per PNGDF Records Authority number 972/91 recorded in his Record of Service, Relyna had full right to claim his assets.
12. The family business, Pukos Service Masters Ltd (Pukos) which was registered on 1 June 2007 was started from all their savings. All of the deceased’s repatriation moneys and funds received from conversion of MCOs supplied for tickets and entitlements or pension received from Comrade Trustee when the deceased was discharged from the PNGDF were applied towards expanding the business.
13. She was never in good terms with Angeline. She physically threw her out of her home and started claiming ownership of all of the deceased’s properties which she believes is rightly hers. She returned to stay with her mother. She reconciled with the deceased on 23 May 2013 and he told her that he would put her back to school to continue her education.
14. Angeline and some relatives conspired with her and went to the office of the Public Curator and got Angeline to be recognised or made to be the deceased’s wife and next of kin. This was done without the family’s knowledge.
15. As the legitimate beneficiary, she went to the office of the Public Curator and made enquiries and on 27 August 2013, file number PCI030/13 was created. Copies of official receipt number R00000270220 dated 27 August 2013 issued by the Department of Finance for payment of Nationals Death Registration fee of K20.00 and Checklist for Deceased File Registration & Creation for Administration are annexed to her affidavit as annexures F and G respectively.
16. She later paid the National Court filing fee of K50.00 to pursue an application for the grant of letters of administration of the estate of the deceased. Annexure H to her affidavit is a copy of Official Receipt number R00000452998 dated 7 May 2015 issued by the Department of Finance for the payment of the filing fee. Annexure I comprises copies of a receipt issued by ANZ Banking Group (PNG) Ltd (ANZ Bank) to Relyna for a payment of K1,500.00 made to the office of the Public Curator dated 17 March 2014 and a receipt number 9927 issued by that office to Relyna dated 17 March 2014 for the payment of K1,500.00. That was the fee for applying for the grant of letters of administration. Despite the creation of her file in relation to the deceased’s estate and the payment of the appropriate fees, the Public Curator has not taken any proactive step to pursue an application for the grant of letters of administration of the estate of the deceased.
17. On 31 July 2013, the Public Curator and one Peter Waninumbo who looked after the New Guinea Islands Region assisted Angeline by doing a Letter of Indemnity stating that Angeline was the deceased’s wife and next of kin and to which was attached a letter to the bank advising that Angeline be allowed to access the company account and all properties belonging to the deceased without a file being opened. A large amount of money was withdrawn. Annexure J to her affidavit is a copy of a document entitled Letter of Indemnity.
18. Armed with the Letter of Indemnity, Angeline made changes to the Investment Promotion Authority (IPA) records in order to access the deceased’s account operated at ANZ Bank, Harbour City without the grant of administration. Annexure K to her affidavit is a copy of a document containing two resolutions passed by Angeline as director of Pukos; first, authorising her to be the sole signatory to the company account in the interim in order to repatriate the body of the deceased to his home Province; and second, to apply to IPA to appoint her to be the Managing Director of the company and others to be appointed as directors in order to be signatories to the company account. Angeline illegally accessed K1,301,857.28 from 30 July 2013 to 27 November 2014: see copy of Bank Account Summary demonstrating transactions conducted on the business account annexed to her affidavit as annexure L.
19. The Public Curator laid a complaint against Angeline with the police for illegally changing company records of Pukos at IPA and accessing and withdrawing substantial amounts of money from the company account number 13207547 operated at ANZ Bank and applying them for her personal use without his authority and requested that they investigate Angeline and charge and arrest her for fraud: see copy of letter by the Public Curator to the Criminal Investigation Division, Boroko Fraud Squad dated 19 June 2014 annexed to her affidavit as annexure M. A copy of a Notice of Change of Directors and Particulars of Directors, Form 16 for Pukos Service Master Ltd filed with the Office of the Registrar of Companies on 31 July 2013 giving notice of the cessation of the deceased as director and making Angeline as the sole director is annexed to her affidavit as annexure O. A search warrant number 267 of 2015 dated 22 May 2015 was subsequently issued: annexure N to her affidavit. The search warrant was executed on 28 May 2015, but the police investigations were hampered by non-cooperation of the Public Curator and the relevant file going missing or not released to the police. Annexure P is a copy of a follow up letter from the police to the Public Curator dated 2 December 2015.
20. The Public Curator published a notice entitled “Probate Jurisdiction” dated 14 January 2015 for her to apply for a grant of letters of administration of the estate of the deceased, intestate, as daughter and next of kin after the expiration of fourteen days from publication of the notice: annexure Q is a copy of the notice. However, despite that, the Public Curator allowed Angeline and her current husband to operate the deceased’s estate. She has suffered and struggled while third parties are benefitting themselves illegally.
21. Angeline did not cooperate to resolve their dispute. A Court order filed on 3 December 2015 was subsequently issued. By that order, the Public Curator was added as a party to the proceedings and interim restraining orders then subsisting were ordered to continue. Angeline destroyed properties worth K1.2 million including two permanent houses after being served the Court order and in contempt of that order. Annexures R and S respectively are copies of the Court order and photographs of properties before and after the Court order was served.
22. Attempts to resolve the dispute by mediation failed as; the defendants did not cooperate; Angeline went into hiding for failing to comply with Court orders; and she could not be located or contacted on addresses given by her earlier: see annexures T, U, V and W to her affidavit.
23. On 8 February 2016, one Haro Gorua (Haro), Angeline’s current husband, almost ran over her whilst driving a white Toyota 10 Seater bearing registration number BEG515 at her workplace at Rainbow Stop and Shop car park at around 2:15 pm.
24. Haro is employed by Digicel Foundation as Project Manager and he awarded a “master contract” worth K5.4 million to the deceased. He entered into a relationship with Angeline after two months of the deceased dying. Both of them were operating Pukos. The company employs 35 staff: see copy of Pukos’ Employment records annexed to her affidavit as annexure Y. He is in charge of administration and operation of Pukos. He and Angeline have destroyed vital documents such as the contract, company profile, cheque books, company records, company stamp, etc.
25. Angeline and Haro have removed equipment belonging to Pukos and destroyed them and all vehicles have been sold.
26. She has suffered and continues to suffer loss and damage from the actions or inactions of the defendants.
SUMMARY OF FIRST DEFENDANT’S EVIDENCE
27. She is the legal wife of the deceased and his next of kin. The deceased resigned from the PNGDF in 2000. They met in 2004 and got married thereafter. Asked in cross-examination whether she had any documentary evidence to substantiate her claim that she was married to the deceased, she said they got married at home according to custom. Under cross-examination whether she had evidence to substantiate her claim that she was the next of kin of the deceased, she said she had none, but the Public Curator gave her a letter that Relyna takes issue with recognising her to be the next of kin and to act in that capacity after conducting investigations. Relyna does not specify how the letter is void or what actions taken by the Public Curator were unlawful to support her claim that the letter is void.
28. She bore four children from her marriage to the deceased. They are, Anna Komet (aged 7 years), Junior Komet (aged 5 years), Tapai Komet (aged 4 years) and Esther Komet (aged 2 years).
29. Relyna is not the heir and next of kin of the deceased as:
30. She has taken no steps to apply for either the grant of probate or letters of administration.
31. She and the deceased wanted to start a small business so they registered Pukos on 1 June 2007. She has been one of the directors and shareholders of the company since its incorporation.
32. Annexed to her first affidavit as annexure B is a copy of a Consent of Director of Proposed Company (Form 2) submitted to the Office of the Registrar of Companies on 1 June 2007. Angeline is named in the form as a proposed director of the company and the form was signed in the space provided on 1 June 2007.
33. Annexed to her first affidavit as annexure C is a copy of a Consent of Shareholder of Proposed Company (Form 4) submitted to the Office of the Registrar of Companies on 1 June 2007. Angeline is named in the form as a proposed shareholder of the company consenting to hold one ordinary share and the form was signed in the space provided, but not dated.
34. Annexed to her first affidavit as annexure D is a copy of an Application for Reservation of a Company Name (Form 6) submitted to the Office of the Registrar of Companies on 1 June 2007. Two proposed company names were listed in the order of preference and the applicant was the deceased.
35. Sometime in 2014, without her knowledge and authority, Relyna attended the IPA and fraudulently tampered with company records and had her removed as director and shareholder and appointed herself as director and shareholder. At that time, no letters of administration for the estate of the deceased had been granted.
36. Annexed to her first affidavit as annexure E is a copy of Notice of Change of Directors and Particulars of Directors (Form 16) submitted to the Office of the Registrar of Companies on 8 October 2014 giving notice that Angeline ceased as director on 7 October 2014 and Relyna was appointed as director on 7 October 2014. The form was signed by Relyna named as Relyna Glenda Komet as Managing Director.
37. Annexed to her first affidavit as annexure F is a copy of a Consent and Certificate of Director (Existing Company) (Form 15) submitted to the Office of the Registrar of Companies on 8 October 2014 by Relyna. Relyna’s details are given in the form and it is signed and dated 7 October 2014.
38. Annexed to her first affidavit as annexure G is a copy of a Resolution for Change of Company Director and Signatory to Company’s Account purportedly passed on 6 October 2014 and submitted to the Office of the Registrar of Companies on 8 October 2014. It was resolved, inter alia, that due to the passing of the Managing Director of the company, the deceased on 27 July 2013; Relyna would replace him and formalities in that regard with IPA would be made; and Angeline would be referred to the police for illegally tampering with the directorship and shareholding of the company contrary to Section 44 of the Wills Probate and Administration Act and Sections 14 and 15 of the Public Curator Act. The resolution was signed by Relyna named as Relyna Glenda Komet as Managing Director.
39. Annexed to her first affidavit as annexure H is a copy of a Statutory Declaration declared by Relyna on 8 October 2014 and submitted to the Office of the Registrar of Companies on 8 October 2014. In the Statutory Declaration, Relyna declares that; she was appointed as the Managing Director of Pukos; and that Angeline was no longer a company director and shareholder of the company and that Angeline’s role in the company was no longer recognised and ceased as of that date.
40. Annexed to her first affidavit as annexure I is a copy of a Company Extract produced as at 17 October 2014 reflecting the changes made by Relyna to the company records. She was also removed as a shareholder and Relyna listed as a shareholder holding one share.
41. After the company records were fraudulently tampered with by Relyna and armed with the changes, Relyna lodged a complaint with the police and also went to the bank to stop transactions being conducted on company accounts. Her actions caused a lot of problems and affected the company’s business.
42. There were a lot of debts to pay after the deceased’s demise so as a director of the company, she continued to operate the company as she had the right to do so and she continues to do so. She struggled to pay off all the debts and to find ways to generate income. The deceased was in charge of finance so she had no idea of the financial status of the company until after his passing. Asked in cross-examination whether she accessed the company account when a restraining order was in place, she said no.
43. Relyna was not identified as a beneficiary by the Public Curator who has a lawful duty to do so. Relyna therefore is in no position to seek an order to prejudice her rights to the company which she helped to incorporate and is part owner and director of the company. After the second defendant ascertained that she was a director and part owner of the company, he wrote to the bank to allow her to conduct transactions and carry on business. Asked in cross-examination what her financial contribution was in setting up the company, she said none.
44. Copies of the Company Extract produced as at 18 November 2015 and annexed as annexures A to both of her affidavits show, amongst others, that:
45. The property is neither owned by the deceased nor herself. It is situated right behind or next to the Tete Settlement. The property was actually owned by Lae Biscuit Company whose owner had a good relationship with the deceased. They were only leasing the property from that company to operate their business from and also to provide security in fear of settlers squatting on it. They built a three bedroom house and had electricity, water and sewerage connected. They lived there for about ten years. During that time, she played her role as the wife of the deceased and put in her time and effort in improving the property.
46. The proprietor of the property moved in and demolished it in order to develop it. She moved out as a result.
47. She has not intentionally refused to settle the dispute out of Court. She recalled she attended the Anakapu Hall at the Legal Training Institute at IPA, Waigani for an out of court settlement negotiations on one occasion some two years ago as directed by Kandakasi, J with Relyna’s legal representative, but negotiations did not materialise as no one was around.
48. After learning of the changes made to the company records by Relyna and the bank stopping transactions on the company account, on 17 October 2014, she wrote to; the ANZ Bank to lift the embargo placed on the company account; and to the IPA attaching a company resolution dated 18 October 2014 requesting it to reverse the changes made to the company records fraudulently by Relyna: Copies of the letters are annexed to her first affidavit as annexures J and K respectively. On 22 October 2014, Malis Miningi, Deputy Registrar of Companies with IPA wrote to ANZ Bank advising that the changes made by Relyna to the company records were illegal and that since incorporation of the company the first defendant was the rightful shareholder and director. Annexure L to her first affidavit is a copy of the letter.
49. On 28 October 2014, the Public Curator wrote to the IPA and ANZ Bank essentially advising that if she were the surviving director of the company as had been intimated by the Deputy Registrar of Companies, she could continue to operate the company account. However, the Public Curator was mandated by law to safeguard the shares and interest of the deceased subject to the making of an application for a grant of letters of administration to his estate. Annexures M and N are copies of the letters to the IPA and ANZ Bank respectively.
50. On 31 October 2014, she again wrote to the ANZ Bank to lift the embargo placed on the company account. Annexure O is a copy of that letter.
51. Relyna’s reliance on PNGDF records to justify her claim to be beneficiary and next of kin has no real basis or is without merit as circumstances have changed due to the deceased being discharged from the PNGDF.
UNCONTESTED FACTS
52. From all the evidence before me, the Statement of Agreed and Disputed Facts and Legal Issues for Trial filed on 3 July 2017 and submissions of counsel, I consider that the following principal facts are not contested.
CONTESTED FACTS
53. From all the evidence before me, the Statement of Agreed and Disputed Facts and Legal Issues for Trial filed on 3 July 2017 and submissions of counsel, I consider that the following principal facts are contested.
LEGAL ISSUES
54. The main issues that arise from the present case for my consideration and decision are:
WHETHER THE LETTER OF INDEMINITY BY THE PUBLIC CURATOR DECLARING ANGELINE AS NEXT OF KIN AND BENEFICIARY OF THE ESTATE OF THE DECEASED IS LAWFUL?
55. It is submitted by Relyna that as she is the daughter of the deceased, she is his legitimate next of kin and beneficiary of his estate. The Letter of Indemnity was therefore unlawful it was submitted.
56. On the contrary, Angeline submits that the Public Curator is mandated by law to administer the estate of the deceased who died intestate. In carrying out his lawful duty and after carrying out investigations, the Public Curator was entitled to identify Angeline as the next of kin and beneficiary of the estate of the deceased on the ground that she was the wife of the deceased.
57. In addressing this issue, I also ask whether the deceased died testate leaving a will.
58. Section 1 of the Wills, Probate and Administration Act defines the term “will” and it includes -
(a) a testament; and
(b) a codicil; and
(c) an appointment by will or by writing in the nature of a will in exercise of a power; and
(d) a disposition by will; and
(e) a testament or devise of the custody and tuition of a child; and
(f) any other testamentary disposition”.
59. The requirements of a will are dictated by Sections 13 and 14 of the Wills, Probate and Administration Act: Paul Wagon, Public Curator of Papua New Guinea v Peter Pilembo (2008) N3487; Public Curator of Papua New Guinea v Rei Renou & Ors [1978] PNGLR 253.
60. Section 13 states:
“13. Execution of will.
(1) Subject to this Part, a will is not valid unless it is written and executed in the following manner:—
(a) subject to Subsection (3), it is signed at the foot or end by the testator or by some other person in his presence and by his direction; and
(b) subject to Subsection (3), the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(c) the witnesses attest and subscribe the will in the presence of the testator.
(2) A form of attestation is not necessary.
(3) Notwithstanding Subsection (1)(a) and (b), a will may be signed or acknowledged in the presence of, and may be attested and subscribed
by, an authorized witness.
(4) A will—
(a) made by a person who by reason of infirmity of body or illiteracy or otherwise is unable to execute it without assistance; or
(b) signed by a person other than the testator,
is not valid unless there is contained in, or annexed to, the will a certificate by the witness or witnesses, or it is otherwise proved, that at the time of the making of the will—
(c) the provisions of the will were read to the testator by or in the presence and hearing of the witness or witnesses; and
(d) the testator acknowledged the will, as so read, to be his intended last will.
(5) A will made by a person in a language other than a language that he habitually uses is not valid unless there is in, or annexed to, the will a certificate by an authorized witness, or it is otherwise proved, that at the time of the making of the will—
(a) the provisions of the will were properly translated, or were apparently properly translated, into a language understood, or apparently understood, by the testator by or in the presence of the authorized witness; and
(b) the testator acknowledged the will, as so translated, to be his intended last will.”
61. Section 14 states:
“14. Validity of signature to will.
(1) So far only as regards the position of the signature of the testator or of the person signing for him under Section 13, a will is valid within the meaning of this Division if the signature is so placed at, after, following, under, beside or opposite the end of the will that it is apparent on the face of the will that the testator intended to give effect by his signature to the writing signed as his will.
(2) A will referred to in Subsection (1) is not affected by the circumstances that—
(a) the signature does not follow, or is not immediately after, the foot or end of the will; or
(b) a blank space intervenes between the concluding word of the will and the signature; or
(c) the signature is placed among the words of the testimonium clause, or of the clause of attestation, or follows, is after or is under the clause of attestation, with or without a blank space intervening, or follows, or is after, under or beside the names, or one of the names, of the subscribing witnesses; or
(d) the signature is on a side or page or other portion of the paper or papers containing the will on which no clause, paragraph or disposing part of the will is written above the signature; or
(e) there appears to be sufficient space on or at the bottom of the preceding side or page, or other portion, of the same paper on which the will is written to contain the signature.
(3) Subsection (2) does not restrict the generality of Subsection (1), but a signature under this Division is not operative to give effect to a disposition or direction that—
(a) is underneath or follows it; or
(b) is inserted after the signature is made.”
62. A will is not valid unless it is written and executed in the manner prescribed under Sections 13 and 14 of the Wills, Probate and Administration Act.
63. Relyna relies on the deceased’s Personal Particulars as forming part of his will. If the Personal Particulars forms part of a will, there is no other written document in evidence that has features of a will. A letter of clarification from Eremas Benson of the PNGDF Records Office offers no real assistance in that regard. The Personal Particulars itself does not fall within any of the categories of documents defined as a will under Section 1 of the Wills, Probate and Administration Act. Unless a valid will is produced by Relyna, from the evidence available, the deceased died intestate without a will.
64. A notice entitled “Probate Jurisdiction” published by the Public Curator dated 14 January 2015 in a newspaper circulating in the country giving notice of an impending application for a grant of letters of administration to be made by Relyna demonstrates that a decision had been made by Relyna with the assistance of the Public Curator or vice versa by the Public Curator with instructions from Relyna to ascertain that the deceased died intestate.
65. A copy of a document entitled “Letter of Indemnity” issued by the Public Curator is annexed as annexure J of Relyna’s affidavit. In that document, it is certified that Angeline was the next of kin as she was the wife of the deceased. A letter supposedly attached to that document which would have assisted to some degree in determining this issue is not in evidence. Was the decision by the Public Curator lawful or not?
66. The onus is on Relyna to prove on the balance of probabilities that Angeline was not the wife of the deceased therefore could not be the next of kin of the deceased. It is common ground that the deceased met Angeline in 2004, left his first wife and started living together with Angeline. There is evidence that Relyna’s mother took out proceedings in the Family Court which made certain orders. As no official records of that court including orders made have been adduced in evidence by Relyna, I place less or no weight on that piece of evidence from Relyna. What is certain however is that at the time of the death of the deceased, Angeline had been residing with the deceased for about 9 years.
67. It was Angeline’s evidence that she was married to the deceased at home by custom and that out of the marriage, she bore four children. There is no strong or credible evidence before me to substantiate this claim nor is there any strong or credible evidence from Relyna to rebut this evidence. The complaint by Relyna is really about a decision made by the Public Curator to recognise Angeline to be the deceased’s wife and next of kin, so it is not for the Court to decide now as to whether or not Angeline was legally married to the deceased and therefore his next of kin before his death. In any event, no evidence has been produced by the Public Curator as to how he arrived at making the decision complained of by Relyna so as to make an informed determination. Nothing adverse can be read into the conduct of the Public Curator in continuously failing to defend this matter in Court. The lacuna adversely affects Relyna’s case. In addition, Relyna’s allegation that Angeline unlawfully conspired with the Public Curator for Angeline to be declared the lawful beneficiary by way of the Letter of Indemnity is unfounded and lacks merit.
68. Section 44 of the Wills, Probate and Administration Act provides that until probate or administration is granted, the property of a deceased vests in the Public Curator.
69. Sections 14 and 15 of the Public Curator Act are also relevant. They state:
14. Taking possession of deceased estates.
(1) Where a person dies leaving property in the country and, as far as the Public Curator or a Public Curator's agent can ascertain—
(a) he left no will; or
(b) he left a will, but no executor was appointed in the will; or
(c) he left a will and an executor was appointed in the will, but the executor—
(i) is dead; or
(ii) is too far from the place where the property or any part of it is situated to be able to take care of it without delay; or
(iii) does not intend, or neglects, to act as executor,
the Public Curator, or a Public Curator's agent on his behalf, may immediately and without any order under this Division take possession of the property or any part of it.
(2) When the Public Curator or a Public Curator's agent has taken possession under Subsection (1) of the real estate of a deceased person, he may—
(a) take any steps and incur any expense that he thinks necessary for preserving it or anything in, on, or annexed to it; and
(b) collect and sell any product of it that would decrease in value by being kept, and incur any necessary expense in connexion with the collection or sale.
(3) Where the Public Curator or a Public Curator's agent has taken possession under Subsection (1) of the personal estate of a deceased person, he may—
(a) sell or dispose of it, or any part of it, if it appears to him that it will be for the benefit of the estate of the deceased person that he should do so; and
(b) pay out of it, or of the proceeds of it—
(i) the funeral expenses of the deceased person; and
(ii) the expenses incurred in collecting, preserving, selling, or disposing of the personal estate; and
(iii) the expenses incurred under Subsection (2).
(4) Where a Public Curator's agent has taken any action under this section, he shall immediately give full particulars of the action to the Public Curator.
15. Powers pending grant.
(1) Where any person dies, and notwithstanding that some person other than the Public Curator is—
(a) appointed executor; or
(b) entitled to letters of administration,
the Public Curator may, if he thinks fit, until probate or letters of administration are granted—
(c) exercise with respect to the estate of the deceased person all such powers and authorities; and
(d) do all such acts and things,
as he could exercise or do if the deceased person had died intestate and the Public Curator had obtained an order under Section 10.
(2) The Public Curator shall not sell, lease, exchange, mortgage or partition any portion of the property (except for the sale of any of the personal estate that is of a perishable nature or that would decrease in value by being kept) unless the property is ordered to be sold by the National Court on the application of the Public Curator.
(3) Subject to Subsection (6), before the Public Curator first acts under this section in respect of an estate, he shall give notice,
in writing or by telegram, to any person known to him as a person who (not being an infant or of unsound mind) would be entitled
to obtain probate or letters of administration, informing him that he intends so to act unless the person proceeds to apply for probate
or letters of administration immediately.
(4) If the person referred to in Subsection (3)—
(a) does not, within 21 days after the posting or other service of the notice or of the despatching of the telegram, as the case may be, give notice, in writing or by telegram, to the Public Curator that he intends to apply for probate or letters of administration; or
(b) gives notice in accordance with Paragraph (a) but fails to apply within 14 days after giving the notice for probate or letters of administration; or
(c) applies for probate or letters of administration and the application fails,
then, unless the National Court otherwise orders, the Public Curator may proceed to exercise any of the powers and authorities given by this section.
(5) In the event of more persons than one being entitled to take out probate or letters of administration, it is sufficient for the purposes of this section if notice is given to one of the persons only.
(6) Where it is not actually known to the Public Curator that there is any person entitled to obtain probate or letters of administration, or in a case of emergency (of which the Public Curator is the sole judge), this section does not prevent the Public Curator from exercising the powers and authorities given by this section without giving notice in accordance with Subsection (3).
(7) Any expenses incurred by the Public Curator under this section are a first charge on the property of the deceased person.
(8) Any person who takes out probate or letters of administration of the estate of the deceased person after the Public Curator has taken any action under this section must pay any fees and expenses payable to, or incurred by, the Public Curator before he is entitled to a grant of probate or letters of administration.
70. A combined reading and application of these legislative provisions gives the Public Curator wide and extensive powers on how to deal with the property or estate of a deceased person pending grant of probate or administration. These provisions give the Public Curator power to locate or identify the existence or the identity of any or all persons beneficially entitled to share in an estate or the next of kin and it is necessary for the Public Curator to make inquiries or to advertise within or outside the country where necessary, for the purpose of locating any person beneficially entitled to share in an estate, or the next of kin.
71. In certain cases under Section 35E of the Wills, Probate and Administration Act, the Public Curator may appoint certain persons who in his opinion are competent to certify customary entitlements where a person dies intestate to certify the persons entitled to the estate of that deceased person. I think this is not one of those cases.
72. As to the evidence about PNGDF Records Office recognising Relyna as being fully entitled to claim the deceased’s assets because she is the deceased’s daughter, I think events after the deceased’s discharge from the PNGDF and entering into a relationship with Angeline took over and changed the landscape as to her ranking as a beneficiary to the estate of the deceased. As the adopted daughter of the deceased and step daughter of Angeline, I find that Relyna is a lawful beneficiary to the estate of the deceased.
73. Given that, as to whether or not Relyna, as a lawful beneficiary, should continue to pursue the application for a grant of letters of administration she has initiated in consultation with the Public Curator in light of the progress made so far with the publication of the notice entitled “Probate Jurisdiction” and that Angeline has not taken any such step, this is a matter that should be resolved by the parties. There is no evidence before the Court that any objection was received from anyone in response to that notice.
74. There is no cogent or credible evidence from Relyna to show that the decision by the Public Curator to recognise Angeline as the wife and next of kin manifested by the Letter of Indemnity was wrong or unlawful.
75. The relief sought in paragraph 1 of the originating summons is refused.
WHETHER ANGELINE IS A DIRECTOR OF PUKOS?
76. Relyna submits that Angeline, without any letters of administration, but armed with a Letter of Indemnity from the Public Curator, attended the Office of the Registrar of Companies at the IPA and unlawfully made changes to the records of the company appointing herself as a director.
77. On the converse, Angeline submits that there is substantial evidence before the Court which demonstrate that Angeline has been a director and shareholder of Pukos since its incorporation.
78. I accept Angeline’s submission. I am satisfied on the balance of probabilities that she has been a director of Pukos since its incorporation. I am also satisfied from the evidence that she has been a shareholder of Pukos since its incorporation.
79. Unless the company’s constitution provides otherwise, the directors of a company are removed and appointed by the company’s shareholders: Gawan Kuyan v Andrew Sallel; Andrew Sallel v Gawan Kuyan (2008) N3376. The powers of shareholders are succinctly discussed in that case by Cannings, J which I, with respect, adopt and endorse.
80. Section 134 of the Companies Act sets out how a director of a company may be removed. That provision provides that subject to the Constitution of the company, a director of a company may be removed from office by ordinary resolution passed at a meeting of shareholders called for that purpose or for purposes that include the removal of the director: see also Sections 37(1)(a)(i) (rights and powers attaching to shares), 86(1) (exercise of powers reserved to shareholders), 101 (annual meeting of shareholders), 102 (special meeting of shareholders), 103 (resolution in lieu of meeting), 104 (court may call meeting of shareholders) and 105 (proceedings at meetings of shareholders) and Schedule 2 of the Companies Act. Notice provisions under the Companies Act and or the company’s constitution for the holding of a meeting of shareholders must be complied with.
81. The National Court may order a meeting of shareholders to be held or conducted in such manner as it directs in circumstances set out under Section 104(1) of the Companies Act.
82. A resolution in writing in lieu of meeting for the purpose of removing a director can also be passed by shareholders by virtue of Section 103 of the Companies Act. The resolution is as valid as if it had been passed at a meeting of shareholders.
83. The office of director of a company is vacated in circumstances set out in Section 135 of the Companies Act one of which is upon death under sub-section 1(d). Angeline was the surviving director of Pukos upon the death of the deceased.
84. For the appointment of directors, Sections 130 (director’s consent required), 131 (appointment of first and subsequent directors), 132 (court may appoint directors) and 133 (appointment of directors to be voted on individually) are relevant. Again, notice provisions under the Companies Act and or the company’s constitution for the holding of a meeting of shareholders must be complied with: see Section 105 and Schedule 2 of the Companies Act. Unless a director is appointed by the Court under Section 132, there must be a meeting of shareholders called for that purpose or for purposes that include the removal of the director or a resolution in writing in lieu of a meeting (Section 103) for the purpose of appointing a director is passed. Section 131(2) (subsequent directors) of the Companies Act provides that all subsequent directors of a company shall, unless the Constitution of the company otherwise provides, be appointed by ordinary resolution. If there is no meeting of shareholders, the resolution for appointment of a director must meet the requirements of Section 103.
85. The evidence before the Court shows that sometime in 2014, without the knowledge and authority of Angeline and the Public Curator, given no letters of administration for the estate of the deceased had been granted at the time, Relyna attended the IPA and tampered with company records and had Angeline removed as director and shareholder and appointed herself as director and shareholder. Relyna had no right to tamper with the company records of Pukos at the IPA and her conduct at the material time was unlawful. She was neither an existing shareholder nor a director of the company.
IF THE ANSWER TO THE SECOND ISSUE IS YES, WHETHER ANGELINE SHOULD CARRY ON THE BUSINESS OF PUKOS AND ACCESS ITS BANK ACCOUNT AND DEAL WITH THE ASSETS OF THE COMPANY BOTH TANGIBLE AND INTANGIBLE?
86. It suffices to state that as the surviving director and shareholder of Pukos, Angeline was entitled to conduct the business of the company and operate the company account with ANZ Bank. However, since the property of the deceased was vested in the Public Curator until grant of letters of administration, the Public Curator’s direct interest in the company was by virtue of the share held by the deceased in the company prior to his death. Section 36 of the Companies Act provides that a share in a company is personal property.
87. The Companies Act regulates how a deceased’s share should be dealt with. Section 40(3) of the Companies Act provides that the personal representative of a deceased shareholder may transfer a share even though the personal representative is not a shareholder at the time of transfer. Section 73 of the Companies Act provides that a personal representative of a deceased shareholder is entitled to be registered as the holder of a share held in a company by the deceased. It is abundantly clear from these provisions or alternatively by necessary implication that until the grant of administration that formalises the appointment of a personal representative as administrator of the deceased, the deceased’s share in Pukos cannot be dealt with or transferred by anyone to another person.
88. It is therefore incumbent upon the Public Curator to ensure in the interim that the deceased’s share is preserved and that Pukos is operated for the benefit of the estate of the deceased as well.
89. Given that, the referral by the Public Curator of Angeline to the Criminal Investigation Division, Boroko Fraud Squad for possible criminal prosecution for fraud by way of a letter dated 19 June 2014 was invalid and without any legal basis.
90. The relief sought in paragraph 2 of the originating summons is refused.
WHETHER THE PROPERTY FORMS PART OF THE ESTATE OF THE DECEASED?
91. It is common ground that the property was not owned by the deceased. A copy of the title over the property has not been produced in evidence to prove who the registered proprietor really is. However, the best evidence available is a copy of the computer advice from the Department of Lands dated 30 April 2015 that is annexed as annexure E to the plaintiff’s affidavit which shows that a Torokina Corporation Limited of PO Box 1331 Lae may be the proprietor of the property. Both the plaintiff and the first defendant’s evidence is that the property belongs to Lae Biscuit Company whose owner Fabian Chow was a good friend of the deceased’s.
92. I am satisfied on the balance of probabilities that the deceased is not the proprietor of the property. Therefore, the property does not form part of his estate.
93. The relief sought in paragraph 3 of the originating summons is refused.
ORDER
94. The formal orders of the Court are:
________________________________________________________________
Pauline Mogish, Director, Legal Training Institute: Lawyer for the Plaintiff
Pang Legal Services: Lawyers for the First Defendant
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