Kamano v Nomi [2005] PGDC 27; DC203 (5 May 2005)

DC203

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2265 OF 2003

BETWEEN

Kalino Kamano
Complainant

V

Elepe Nomi
First Defendant

Paul Lapa Kamano
Second Defendant

Port Moresby: Bidar, Pm
2005: 22nd April, 5th May.

Dependency Claim - Dependency claim by widow and dependant children- claim paid by MVIL and collected by defendants – whether defendants entitled persons under s.25 of Wrongs (Miscellaneous Provisions) Act-

District Court - Jurisdiction – District Court creature of Statute – District Court Act (Ch No. 40) ss.21(1),22.

District Court - Jurisdiction – Dependency claim – whether or not Court has Jurisdiction – District Court Act, 22.21(1),22.

Cases Cited
No cases cited in the Judgement.
Counsel

Mr. Nasil for Complainant
Mr. J. Sasingian for Defendants

RULING

6th May 2005.

BIDAR, PM: On the 11th August 2003, the complainant filed summons upon complaint against the first defendant claiming inter alia, reimbursement of K10,000.00 being her part of the payment made by Motor Vehicle Insurance Limited for death of late Namba Kamano who died as a result of motor vehicle accident in 1995.

Pato Lawyers upon instruction by first defendant lodged the claim with MVIL and a cheque for K17,388.25 was raised and was made payable to Kalino Kamano. Pato Lawyers retained their fees in the sum of K5,816.35 and wrote out a cheque to Kalino Kamano in the sum of K10,011.90, but on further instructions by first defendant, Kalino Kamano's name was crossed out inserted with Elepe Nomi's name. Another cheque for K1,500.00 was drawn from Pato Lawyers Trust account which was made payable to some unknown account to be held in trust for the three dependent children.

Basically, the claim by complainant is reimbursement of K10,000.00 by the first defendant and the second defendant was joined subsequently as it is said that K5,000.00 was paid to him by 1st defendant to hand over to the complainant, which did not eventuate.

The immediate issue to resolve is that of jurisdiction of this Court

On the 17th March 2005, when the matter came before me, Mr. Sasingian counsel for the defendants raised the issue of jurisdiction of this Court and submitted that this Court lacked jurisdiction and sought transfer of proceedings to the National Court. He submitted that a number of issues including distribution of deceased estate who died intestate arise.

The Court directed both counsel to file and serve written submissions addressing the issue of jurisdiction which they did, and I am much indebted to both counsel for their efforts.

Submissions

Counsel for defendants, Mr. Sasingian's submissions are basically these:-

Complainant's action is statutory, under s.25 of Wrongs (Miscellaneous Provisions Act) s.25 provides for liability for death caused wrongfully etc. s.26 provides for person or persons to whose benefit action can be brought under s.25. It lists people such as wife, husband, parent and child of the deceased person, and a person who is the issue of a brother, sister, uncle or aunt of the deceased person, and shall be brought by and in the name of the executor or administrator of the deceased person.

In the case of the death of a native within the meaning of Interpretation Act, an action referred to in subsection (1) may be for the benefit of the persons who by custom were dependant on the deceased immediately before his death, in addition to persons specified in that subsection.

S.27 provides for actions for damages by persons interested.

Distribution of estate of the deceased person is provided under Division 5 of Wills Probate and Administration Act.

S.35A provides that distributor means the Public Curator and a person appointed by Public Curator under s.35G.

S.35D of the provides that:-

Where-

(a) a person dies intestate.

(b) The estate of that persons is dealt with under this Division the estate of that persons shall be distributed in accordance with custom applicable to that person...............

Mr. Pasingan refers to various provisions of Wills Probate and Administration Act, as well as the Public Curators Act. By operation of various provisions of these legislations, counsel submitted that, the issue revolves around distribution of deceased estate and as such this Court lacks jurisdiction to deal with the matter.

Mr. Nasil counsel for the complainant countered Mr. Sasingian's submissions in this manner.

He stated the background which gave raise to these proceedings. He made submissions based on law and stated that complainant was exclusively entitled to make a dependency claim against MVIL. Complainant is the wife of the deceased Namba Kamano.

The first defendant is not the blood sister of the deceased and was not dependent on the deceased immediately prior to his death. Counsel also refers to the provisions of Wrongs Miscellaneous Provisions Act and submitted that, claim is a dependency claim and not distribution of deceased estate left behind which is later realized and vested with Public Curator, so the provisions of Wills and Probate and Administration Act does not apply. The operation of Public Curators Act does not apply first of all, no deceased estate involved and secondly, there is no dispute as to the distribution of deceased estate. Counsel finally submitted that this Court has jurisdiction to deal with the matter of dependency claim, which was wrongfully picked up by the defendants.

I have considered thoroughly the background to these proceedings which has been subjected various applications and motions since the proceedings were filed. But these have come and gone and the proceedings are still in tact.

As to the submissions by Counsel which I have considered very thoroughly, I am inclined to accept the submissions by Mr. Nasil. Basically, I accept that the deceased Namba Kamano died as a result of motor vehicle accident and that he died intestate. Complainant lodged basic protection claim (Bel Kalmoni) and received K4,000.00 and no dispute of any sort arose or appeared to have arisen.

Sometime later she sought assistance from a literate friend and wanted to pursue dependency claim for herself and her three children, only to discover that some K17,000.00 had been paid by MVIL to Pato Lawyers and collected by the first defendant. At this juncture I note will interest that, Public Curator never had his hand on the cheque from MVIL or cheques drawn from Pato Lawyers Trust Account. In my view, under those circumstances, the provisions of Public Curators Act and Wills Probate and Administration Act do not apply. In any case, the applications of these provisions entail cumbersome process.

In all the circumstances, I am firmly of the view that the proceedings filed by the complainant is a dependency claim. It does not involve distribution of deceased estate or dispute as to distribution of estate.

I rule therefore that this Court does have jurisdiction to deal with the dependency claim filed by the complainant, and I rule against the submissions by counsel for the defendants.

Costs of these proceedings be costs in the cause.

Nasil Lawyers: Complainant
Ikennas Lawyers and Notaries: Defendant