N3792

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 1018 OF 2005

BETWEEN

GABRIEL MAPA
Plaintiff

AND

PUGSIL TAMAKU WANI
First Defendant

AND

PUBLIC CURATOR OF PAPUA NEW GUINEA
Second Defendant

Mount Hagen: Makail J,
2008: 29th & 30th July &
2009: 4th June & 17th September

WILLS, PROBATE & ADMINISTRATION - Action for recovery of debt - Deceased dying interstate - Motor vehicle held as security for payment of debt - Whether motor vehicle formed part of deceased’s estate - Whether action maintainable - Lack of jurisdiction - Action dismissed - Wills, Probate & Administration Act, Ch 291 - Sections 44 & 67 - Public Curators Act Ch, 81 - Sections 10, 14, 20, 34 & 40.

Cases cited:

Rex Paki -v- Adam Koldop & Jenny Hart: OS No 304 of 2005 (Unnumbered & Unreported Judgment of 29th July 2008)
Paul Wagun - Public Curator of Papua New Guinea -v- Peter Pilembo (2008) N3487
Arsenia Malumnga -v- The Public Curator & The State (2008) N3497

Legislations:

Motor Traffic Act 1950
Wills, Probate and Administration Act, Chapter No 291
Public Curators Act, Chapter No 81

Counsel:

Mr P Kunai, for Plaintiff
Mr R Otto, for Defendants

JUDGMENT

17th September, 2009

1. MAKAIL, J: This is an action by the Plaintiff for the recovery of a motor vehicle described as an Isuzu Truck bearing Registration No. P-352 ("vehicle") purportedly owned by one late John Wani Tamaku ("deceased"). The vehicle is currently held at Mount Hagen Police Station pursuant to an interim order of this Court made on 11th October 2007. 

2. The Plaintiff claims that the deceased left the vehicle with him as security for his debt in the sum of K80,000.00 prior to his death. The Plaintiff further says that if the First Defendant or the Second Defendant want to take the vehicle from him then, they should pay him the sum of K80,000.00 before the vehicle can be released to them. This is because it was agreed between the deceased and the Plaintiff that the Plaintiff would keep the vehicle until such time the debt is settled in full.

3. On the other hand, the First Defendant who is the younger brother of the deceased denies that the deceased gave the vehicle to the Plaintiff as security for his (deceased’s) debt prior to his death. He says that the vehicle was given to him by the deceased to own prior to his (deceased’s) death therefore, the vehicle, now in police custody should be released to him and the Second Defendant for sale and for distribution of its proceeds to the creditors and beneficiaries of the estate on 02nd February 2005. His claim is supported by the Second Defendant.

4. The Second Defendant says that the deceased is the registered owner of the vehicle and had died intestate. Therefore, the vehicle forms part of the estate of the deceased and since he (Second Defendant) has been granted letters of administration to administer the estate of the deceased, he has every right or power over the vehicle and it should be released to him for sale and for distribution of its proceeds to the creditors and beneficiaries of the estate.

5. The Plaintiff called a total of six witnesses including himself and each has filed an Affidavit as follows:-

1. Affidavit of the Plaintiff sworn on 12th May 2008 and filed on 13th May 2008 (Exhibit "P1"); 

2. Affidavit of Wai Rumints sworn and filed on 24th July 2008 (Exhibit "P2");

3. Affidavit of Billy Kombel sworn and filed on 12th May 2008 (Exhibit "P3");

4. Affidavit of Kome Topela sworn on 2nd May 2008 and filed on 13th May 2008 (Exhibit "P4");

5. Affidavit of Simon Appe sworn on 2nd May 2008 and filed on 13th May 2008 (Exhibit "P5"); and

6. Affidavit of Kepaka Antap Wangi sworn and filed on 28th July 2008 (Exhibit "P6"). 

6. These witnesses were also cross examined by counsel for the Defendants in respect of whether there was mediation on 5th January 2005 and also the terms of the mediation.

7. The Defendant relies on the following Affidavits which were tendered by consent:

1. Affidavit of Eric Ranpi sworn and filed on 13th November 2007 (Exhibit "D1");

2. Affidavit in Response of Eric Ranpi sworn on 7th July 2008 and filed on 08th July (Exhibit "D2");

3. Affidavit of Rodger Otto sworn and filed on 28th July 2008 (Exhibit "D3");

4. Affidavit of Pugsil T Wani sworn on 05th December 2005 and filed on 8th December 2005 (Exhibit "D4");

5. Supplementary Affidavit of Pugsil T Wani sworn and filed on 16th August 2007 (Exhibit "D5"); and

6. Affidavit of Pugsil T Wani sworn and filed on 15th November 2007 (Exhibit "D6").

8. The First Defendant also gave oral evidence and was cross examined by counsel for the Plaintiff in relation to his claim of ownership of the vehicle and the mediation meeting of 5th January 2005.

9. Having read the Affidavits and noting the oral evidence of the First Defendant, the following facts are not in dispute. First, the vehicle is registered in the name of the deceased and at no time has registration been changed. Secondly, the deceased died intestate on 2nd February 2005. Thirdly, the Second Defendant has been appointed administrator of the estate of the deceased by the National Court on 21st December 2005. Fourthly, prior to the death of the deceased the vehicle was in the possession of the Plaintiff. Finally, there was a mediation held in Mount Hagen on 05th January 2005 and the parties to the dispute were the Plaintiff and the deceased.

10. What is in dispute is first, the deceased gave the vehicle to the Plaintiff as security for his debt of K340,000.00 for provision of consultancy services to the deceased after the deceased had only paid him K20,000.00 from a total of K360,000.00. Secondly, it was agreed at the mediation of 05th January 2005 that the Plaintiffs claim of K340,000.00 be reduced to K100,000.00 and the deceased would pay him only K80,000.00. On the other hand, the deceased gave the vehicle to the First Defendant to own. The First Defendant denies that the deceased owed the Plaintiff K340,000.00 or any money at all.

11. From these undisputed and disputed facts, I consider the following to be the issues for determination:-

1. Whether the vehicle forms part of the estate of the deceased  which the Second Defendant has control over; and

2. If so, whether the proceeding should be dismissed.

3. If the vehicle does not form part of the estate of the deceased, whether the Defendants are liable to settle the debt of the deceased with the Plaintiff before the release of the vehicle to them.

12. I have considered the written submissions of both counsel in respect of the first issue and in my view, this is a fundamental issue to the entire dispute between the parties in this action. If I find that the vehicle forms part of the estate of the deceased, the second issue is whether the proceeding should be dismissed. If I find that the vehicle did not form part of the estate of the deceased, then, I shall consider whether the Defendants are liable to settle the debt of the deceased with the Plaintiff before the release of the vehicle to them.

13. This would then require a consideration of the evidence of the Plaintiff and his witnesses in respect of the mediation meeting in Mt Hagen town on 5th January 2005 and also the evidence of the First Defendant and his witnesses as to his claim of ownership of the vehicle. 

14. In respect of the first issue, as I said above, it is not disputed that the deceased is the registered owner of the vehicle. The deceased’s ownership is in accordance with section 43 of the Motor Traffic Act ("MT Act") which states:

"43. Evidence of registration and ownership.

In any proceeding under this Act:

(a) Proof that a motor vehicle has not on it the prescribed distinguish number is prima facie evidence that the vehicle is not registered; and

(b) Proof that a person registered a motor vehicle is prima facia evidence that he is the owner of the vehicle." (Underlining is mine).

15. The vehicle was registered in the name of the deceased despite the assertion by the First Defendant that the deceased had given it to him. In law, the registration of the vehicle under the MT Act creates a legal presumption of ownership and until the presumption is rebutted the person under whose name a vehicle is registered is the owner of the vehicle for all intent and purposes. See Rex Paki -v- Adam Koldop & Jenny Hart: OS No 304 of 2005 (Unnumbered & Unreported Judgment of 29th July 2008).

16. In this case, I am not satisfied based on the evidence before me that the deceased gave the vehicle to the First Defendant to own. On the contrary, I find that the deceased is the owner of the vehicle because the computer print out of the registration from the Motor Traffic Registry marked as annexure "A" to the Affidavit of the First Defendant (Exhibit "D4") show that the deceased is the registered owner of the vehicle.

17. As I have found that the deceased is the owner of the vehicle, does the vehicle form part of the estate of the vehicle? Counsel for the Plaintiff submits that there was an agreement between the Plaintiff and the deceased prior to the deceased’s death. The agreement was for the Plaintiff to keep the vehicle as security for the debt of K340,000.00 until the debt is settled. 

18. Based on this agreement, the death of the deceased, and subsequent appointment of the Second Defendant as the administrator of the estate of the deceased is irrelevant to the Plaintiffs right of possession. What is relevant here is that, there is an agreement between the Plaintiff and the deceased for the Plaintiff to keep the vehicle as security for the debt of K340,000.00 until it is settled before the vehicle maybe released to the Defendants.

19. To determine the possessory right of the Plaintiff, as I alluded to above, I must first determine whether the vehicle forms part of the estate of the deceased. To do that, it is necessary to consider the law in respect of a deceased person’s estate. As noted above, it is not disputed that the Second Defendant is the administrator of the estate of the deceased after having been granted administration of the estate by the National Court on 21st December 2005. See copy of letter of administration dated 21st December 2005 marked as annexure "A" of the Affidavit of Roger Otto sworn on 28th July 2008 and filed 29th July 2008 (Exhibit "D3").

20. Section 44 of the Wills, Probate and Administration Act Ch 291 ("WPA Act") provides for the initial vesting of the estate of a deceased person in the Public Curator. It states as follows:

"Initial vesting in Public Curator.

Until probate or administration is granted, the property of the deceased person vests in the Public Curator in the same manner and to the same extent as former personal estate in England vested in the ordinary."

21. This means that, the Public Curator is automatically in control of the property of the deceased person irrespective of whether or not there is a "will". In reality the Public Curator may not be physically in possession of the property but by operation of law, he is in control of the deceased person’s property. Section 44 is a deeming provision which comes into force upon the death of a person. The initial vesting of the property in the Public Curator takes place immediately upon the death of a person. 

22. But that power or authority of the Public Curator is not absolute. He must thereafter apply for either probate if the deceased person died testate or, for letters of administration if intestate. See also my discussions in Paul Wagun - Public Curator of Papua New Guinea -v- Peter Pilembo (2008) N3487.

23. In this case, I find that the vehicle having been owned by the deceased came within the control of the Second Defendant upon the deceased’s death on 2nd February 2005. The vehicle became part of the estate of the deceased. My view of the effect of section 44 of the WPA Act is strengthened by section 14 of the Public Curators Act Ch 81 ("PC Act") which complements section 44 of the WPA Act. Section 14 of the PC Act states as follows:

"14. Taking possession of deceased estates.

1. Where a person dies leaving property in the country and as far as the agent can ascertain.

(a) he left no Will, or

(b) he left a Will, but not 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 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 expenses that he thinks necessary for reserving it or anything in, on, or annexed to it; and 

(b) collect and sell any product to it that would decrease  in value by being kept, and incur any necessary  expense in connection 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, it if appears to him and 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 the Public Curator’s agent has taken any action under this section, he shall immediately give full particulars or the action to the Public Curator."

24. I further find that the vehicle formed part of the estate of the deceased regardless of whether or not it was held by the Plaintiff as security for the debt of K340,000.00 or K80,000.00 whichever the case maybe. I will elaborate on this point later when I consider the second issue of dismissal of the action.

25. But for now, the Second Defendant was not aware of the demise of the deceased until the dispute in respect of the vehicle arose when the Plaintiff and his line held up the First Defendant on the road between Tambul and Mt Hagen and impounded it. It was then that the First Defendant sought his assistance. Upon becoming aware, the Second Defendant took steps to recover the vehicle from the Plaintiff and also applied for letters of administration before the National Court for the administration of the estate of the deceased. I find that, the Second Defendant acted within his powers under section 44 of the WPA Act and section 14 of the PC Act to take possession of the property of the deceased including the vehicle with the help of the First Defendant and the police. 

26. The vehicle was detained at Mt. Hagen Police Station until the Plaintiff took out an ex-parte order to have it released to him on 08th November 2005. That prompted another application by the Defendants to the National Court to have the vehicle impounded and returned to the police station for safe keeping on 11th October 2007. Since it is also not disputed that Plaintiff and the deceased held mediation in Mt Hagen town on 5th January 2005 to resolve the dispute, although the terms of the mediation maybe in dispute, I consider that, the mediation was not only irrelevant but unnecessary. 

27. This is because the vehicle was already vested in the Second Defendant by virtue of section 44 of the WPA Act and section 14 of the PC Act even though the administration of the estate was granted to the Second Defendant on 21st December 2005, some 12 months after the mediation of 5th January 2005. See also section 10 of the PC Act, (Orders to administer).

28. For these reasons, I find that the vehicle formed part of the estate of the deceased and should be or should have been dealt with by the Second Defendant pursuant to the provisions of the PC Act and WPA Act.

29. As I have found that the vehicle formed part of the estate of the deceased, the second issue is whether the action should be dismissed. In other words, is the action maintainable against the Defendants? This issue requires again a consideration of the PC Act and WPA Act.

30. First, I consider that the decision to accept the mediation agreement of 5th January 2005 as binding between the Plaintiff and the First Defendant is a matter within the jurisdiction of the Second Defendant under section 14 of the PC Act. It is not a matter for the Court to decide as it falls outside the jurisdiction of the National Court.
 
31. In that regard, I observe that what the Plaintiff is really after from the Defendants is the payment of K80,000.00. He says that the deceased owed him about K340,000.00 for provision of consultancy services to the deceased. He further says that the deceased agreed to pay him K360,000.00 but in the interim, agreed to give him the vehicle to keep until he (deceased) is able to pay K360,000.00 to him.

32. In fact, it is accepted by the parties that the deceased had paid K20,000.00 to the Plaintiff and since then had been unable to pay the balance until his demise on 2nd February 2005. This led to the Plaintiff impounding the vehicle from the First Defendant whilst it was on the road. The mediation of 5th January 2005 resulted in the amount of K340,000.00 reduced to K100,000.00 and further reduced to K80,000.00 after deducting K20,000.00 that was paid to the Plaintiff earlier. If the K80,000.00 is paid to the Plaintiff, he is willing to release the vehicle to the Defendants. In my view, this confirms my initial view that, the Plaintiff is after the payment of the debt. The view I hold is also consistent with and confirmed by section 20 of the PC Act which states:

"20. Payment of debts.

(1) The Public Curator shall, at such times as he thinks proper, cause advertisements to be published in the National Gazette, and in such public newspapers as he thinks expedient, calling on the creditors of the persons whose estates he is administering to come in and prove their debts before him, on or before a time fixed in the notice.

(2) The Public Curator may allow any claim made before him on the affidavit or statutory declaration of the claimant alone, or, where he thinks fit, on such further evidence as he requires.

(3) As soon after the expiration of the time allowed for proof of debts as he can conveniently do so, the Public Curator shall -

(a) pay the debts proved, if they can be paid in full; or

(b) if they cannot be paid in full, declare and pay a dividend on them.

(4) If the Public Curator collects any further assets after making the payment under Subsection (3), he shall pay -

(a) any part of the proved debts remaining unpaid; and

(b) any debts subsequently proved before him, 

or a dividend on them.

(5) Creditors who subsequently prove shall first be paid a dividend equal to the dividend paid to creditors who previously proved their debts."

33. I consider that parties, especially the Plaintiff was misguided when he decided to bring the dispute to mediation on 05th January 2005. Whilst there was good intention to bring the dispute to mediation so that the dispute could be quickly resolved for the benefit of all parties, mediation was not the correct avenue for redress. In my view, the correct avenue and, indeed the legitimate authority vested with power under the law, vis versa, section 20 of the PC Act to resolve the dispute is the Second Defendant.

34. According to section 20, the Second Defendant may inter-alia give notice by way of public advertisements calling on all creditors of the deceased to submit their claims to him for consideration. The creditors of the deceased are required to prove their claims to the Second Defendant before he may settle their debts. I consider that this is what the Plaintiff should have done immediately after the death of the deceased on 2nd February 2005. 

35. I say this because I find the Plaintiff is a creditor of the estate of the deceased and instead of submitting his claim to the Second Defendant for consideration, went ahead to impound the vehicle until it was recovered by the Defendants with the assistance of the police from Mt Hagen Police Station. The actions of the Plaintiff in my view, not only has protracted this litigation but has also caused both sides more grief than good.

36. Secondly, this brings into play the operation of section 40 of the PC Act. It states that, whoever has in his possession the property of a deceased person must notify the Public Curator of the death and the property. I set it out in full hereunder:

"Section 40 - Disclosure of Public Curator.

(1) Where;-

(a) a corporation, association or person is in possession of any property of the deceased person; or

(b) any property or money is to be the credit of the deceased person in the books or accounts or otherwise of a corporation, association or partnership; or

(c) under any association or partnership:-

(i) a deceased person is entitled to shared in the assets of the association or partnership; or

(ii) his representatives and entitled to any payments as his share in such assets; or

(d) any person is the registered proprietor of any shares in a corporation or association; or

(e) any person is indebted to a deceased person, 

and the property, money, shares, or debts are vested in or belong to the Public Curator, the association, corporation or person must give notice immediately to the Public Curator or to a Public Curator’s agent of the extent, nature and situation of property, money, shares or debt." (Underlining is mine).

37. I find that the Plaintiff did not disclose to the Second Defendant that he had in his possession the vehicle after the demise of the deceased on 2nd February 2005. By virtue of section 40 of the PC Act, the Plaintiff should have notified the Second Defendant immediately but did not do so, even if there was an order of the Court or agreement for him to keep the vehicle as security. It seems to me that the Plaintiff was of the view that it was a dead man’s property which he could own and never cooperated with the Second Defendant. I consider that what the Plaintiff did was in breach of section 40 of the PC Act.

38. It follows, I reject the submission of his counsel that there was a prior agreement between him and the deceased that he would keep the vehicle as security for the debt of either K340,000.00 or K80,000.00 until it is settled. This submission ignores the fact that the Plaintiff became a creditor of the estate of the deceased upon the death of the deceased on 2nd February 2005 under section 44 of the WPA Act and also section 14 of the PC Act. 

39. In other words, there can be no confusion here. The vehicle although maybe held as security for the deceased’s debt, is still part of the estate of the deceased and any prior agreement the deceased made with the Plaintiff to hold the vehicle as security for his debt is subject to or overridden by the administrator of the estate, namely the Second Defendant.

40. In my view, what the Plaintiff is seeking to do in this action is to force the Defendants to settle his claim of either K340,000.00 or K80,000.00 before he releases the vehicle to them. This is in complete breach of the established procedures of disposition and settlement of debts of deceased persons under the provisions of the WPA Act and PC Act which I have alluded to above. It is also an abuse of process of the Court. 

41. And speaking of abuse of process, I dealt with that issue in similar circumstances in Arsenia Malumnga -v- The Public Curator & The State (2008) N3497. In that case, the Plaintiff sued the Defendants to recover K100,000.00 allegedly withdrawn from a bank account of her late husband, one John Kilburn Kil without her authority or consent. The deceased was a private lawyer and was practicing as John Kilburn Kil Lawyers at the time of his death.

 42. She claimed that she was one of the wives of the deceased and claimed that the money was held in an interest bearing deposit account on her and her children’s account. She further claimed that the Second Defendant was negligent in the discharge of his duties, when he directed the bank to release the money to him and subsequently converted it without her authority and consent.

43. The Second Defendant applied to dismiss the action for not disclosing a reasonable cause of action, frivolous and vexatious and also as being an abuse of process under Order 12, rule 40(1)(a),(b)&(c) of the National Court Rules. I upheld the application of the Second Defendant and dismissed the action. One of the reasons for doing so was that, the Plaintiff had not made a complaint to the Second Defendant before bringing the action against the Defendants under section 34 of the PC Act. I said at pp 29-31 of the judgment:

"This brings me to the second reason for saying that the Plaintiffs’ court proceeding is premature. I am of the view that the Plaintiff should have made a complaint to the Court under section 34 of the PC Act and obtained an order calling on the Second Defendant to show cause before the Court or a Judge, on a day not less than two days after the service of the order on him, why he should not do or abstain from doing the act, that is from dealing with the money. Section 34 states as follows:

‘34. Complaints against Public Curator.

(1) A person interested as creditor, next of kin, or otherwise in the estate of a deceased person that the Public Curator is administering under this Act, may -

(a) on the neglect or refusal of the Public Curator to do any act in relation to the administration of the estate; or

(b) on the Public Curator's doing, or threatening to do, any act in breach of his duty with reference to the estate,

apply on affidavit to the National Court or a Judge -

(c) for an order calling on the Public Curator to show cause before the Court or a Judge, on a day not less than two days after the service of the order on him, why he should not do or abstain from doing the act; and

(d) for an interim order in the nature of an injunction, if warranted by the facts of the case.

(2) An order under Subsection (1) may be granted subject to such conditions as to security for costs as the National Court or a Judge imposes.

(3) On the hearing of a complaint under Subsection (1), the National Court or a Judge may -

(a) receive proof of the matters in relation to the complaint orally or by affidavit; and

(b) make such order as the circumstances of the case require, and in particular as to payment of costs -

(i) by the complainant; or

(ii) by the Public Curator; or

(iii) from the estate administered by the Public     Curator,

as, in the discretion of the Court or Judge, seems just.

(4) An order under Subsection (3)-

(a) has the same effect; and

(b) is enforceable by the same process,

as if it had been made by the National Court in a suit between the parties to the complaint’.

In my view, the present proceeding is not a complaint under section 34 of the PC Act. As I said earlier, the Plaintiff is suing the Defendants based on negligence. But the correct process should have been by filing a complaint before the Court or a Judge under section 34 of the PC Act. This is the remedy for the Plaintiff and also the correct process by which the Plaintiff should have followed to get the Second Defendant to consider her claim to the money. It is a statutory remedy always available to the Plaintiff to use but I find that she did not follow this process.

That being the case, I consider that she is not entitled to sue the Defendants in this court proceeding. She did not exhaust the alternative avenues available to her to seek redress. This is where I find the Plaintiffs claim in this court proceeding premature. Again, this Court has no jurisdiction and so it renders the court proceeding frivolous and vexatious, and also an abuse of process and should be dismissed for these reasons."

44. The same reason can be given for saying that the present action is an abuse of process. The action is not a complaint under section 34 of the PC Act. As I said earlier, the Plaintiff is suing the Defendants to recover the motor vehicle allegedly given to him by the deceased owner as security for a debt. But in my view, the correct process should have been by filing a complaint before the Court or a Judge under section 34 of the PC Act if the Plaintiff believes that the Second Defendant has inter-alia, been negligent in administering the estate of the deceased. 

45. This was and is the remedy for the Plaintiff and also the correct process by which the Plaintiff should have followed to get the Second Defendant to consider his claim of either K340,000.00 or K80,000.00. It is a statutory remedy always available to the Plaintiff to use but I find that he did not follow this process.

46. I also find that the action is not commenced as a complaint against the Public Curator (Second Defendant) under section 34 of the PC Act because the Plaintiff had initially commenced the action against the First Defendant only. It was only after the First Defendant brought the dispute to the Second Defendant’s attention that the Second Defendant applied and obtained leave of the Court on 11th October 2005 to join in the action as a party (Second Defendant). This confirms that the Plaintiff did not commence the action as a complaint against the Public Curator under section 34 of the PC Act. In my view therefore, the dispute is not properly before the Court.

47. I observe here too that, if the Plaintiff had reservations about his claim not given priority by the Second Defendant at that time, then he need not be troubled because his concern is adequately accommodated in section 67 of the WPA Act. In my view, if he had brought his claim to the Second Defendant for settlement, under section 67 of the WPA Act, he would have enjoyed the right of being given priority as a creditor of the deceased because his claim is a "secured debt" and is not affected by other claims of creditors under sub section (2) of that section. In such a case, the Second Defendant is bound to settle his claim as a matter of priority from other un-secured creditors of the deceased. 

48. Section 67 of WPA Act states:

"Division 5. - Administration of Assets.
67. Priorities of debts.

(1) Subject to Subsection (2) and to the Insolvency Act 1951, in the administration of the estate of a deceased person no debt or liability of the person is entitled to a priority or preference by reason only of the fact that the debt or liability is secured by or arises under a bond, deed or other instrument under seal or is otherwise made or constituted a specialty debt, but all the creditors, both specialty and simple contract creditors, of the person stand in equal degree and shall be paid accordingly out of the assets, legal and equitable, of the deceased person, notwithstanding any law to the contrary.

(2) Subsection (1) does not prejudice or affect any lien, charge or other security that a creditor holds or to which he is entitled for payment of his debt.

(3) In the administration of the estate of a deceased person, debts of record, whether of record in his lifetime or obtained against his executor or administrator for debts incurred by the deceased, rank in the same degree as if they were specialty or simple contract debts.

(4) A person who has obtained or obtains representation of a deceased person shall pay, in due course of administration, all the debts of the person ratably and proportionably and according to the priority required by law, and without preferring his own debt by reason of his having obtained the representation." (Underlining is mine).

49. As can be seen from the above section, the process of settling the Plaintiffs claim was and is still open to the Plaintiff under section 14 of the PC Act and section 67 of the WPA Act. In my view, it is not too late for the dispute to be brought to the Second Defendant, now that the Second Defendant is properly informed of the nature of the Plaintiffs claim, for consideration and perhaps, settlement. But whether or not the claim is settled is a matter for the Second Defendant to decide upon the Plaintiffs proof of the claim which I am not entitled to speculate here.

50. What all the forgoing discussions mean is that, first there are avenues available by which the Plaintiff could have avail himself of but he did not. Secondly, they show that the action for the recovery of the vehicle is not properly before the Court. The Court lacks jurisdiction to determine whether the Defendants are liable to the Plaintiff for the debt of the deceased. It is a matter for the Second Defendant to decide.

51. This means, the onus is on the Plaintiff to prove his claim, thus, his assertion that the deceased agreed to pay him K80,000.00 after mediation on 5th January 2005 as witnessed by mediators who have also given evidence by way of sworn Affidavits which I have referred to above before the Court, are matters for the Second Defendant to determine.

52. It follows I do not need to consider the last issue of whether or not the Defendants are liable to pay the debt of the deceased to the Plaintiff before the vehicle can be released to them. For these reasons, I find that the Plaintiffs action is misconceived. It should be dismissed and I so order. There shall also be an order that the interim injunction of 11th October 2007 be dissolved.

53. There shall be another order that the vehicle held at Mt Hagen Police Station be released forthwith and placed in the hands of the Second Defendant who shall deal with it as part of the estate of the deceased pursuant to the letters of administration of 21st December 2005 and the provisions of the PC Act and the WPA Act. 

54. There shall be a further order for costs to the Defendants to be taxed if not agreed. Finally, I order that time shall be abridged to the date of settlement by the Registrar which shall take place forthwith.

Orders accordingly.

_________________________________________

Kunai & Co Lawyers: Lawyers for the Plaintiff
Mawa Lawyers: Lawyers for the Defendants