Alu v Ginga [2013] PGNC 128; N5302 (6 May 2013)

N5302

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA 37 of 2012

BETWEEN

JAMES ALU & 2 OTHERS
Appellants

AND

MANIYE GINGA & KOMNOM MANIYE
Respondents

Mount Hagen: Poole, J
2013: 22 April & 6 May

WILLS AND PROBATE – Property and possessions of person dying interstate vest only in Public Curator – Section 44 Wills Probate and Administration Act.

BAILMENT – Gratuitous Bailment – Duty of bailee – Right of bailor to demand immediate return of goods bailed.

EVIDENCE – Section 20 of Evidence Act – Dying declarations do not constitute testamentary dispositions of property.

LEGISLATION - District Court Act, Wills Probate & Administration Act.

Cases cited:
Papua New Guinea Cases

Rabtrad Niugini Pty Ltd v Ahbo Pty Ltd [1990] PNGLR 155
O'Regan v Hui Brothers Transport Pty Ltd [1969-70] PNGLR 261

Overseas Cases

Port Smettenbam Authority v T.W.W & Co. (M) Sdn, Bhd, [1979] AC 580
Ichad v Frangouis [1971] WLR 556
Morris v Martin & Sons Ltd [1966] 7 QB 716
Perpetual Trustees & National Executors of Tasmania Ltd v Perkins; Aust Torts Reports, 80

Counsel

Appellant in Person
Mr Sino, for Respondent

6 May, 2013

Decision

1. POOLE J: The background of this matter must be examined carefully in order to understand the issues the Court has to decide. Briefly stated, these are as follows:

The Appellant's father, Mr Thomas Alu, owned a Toyota Land Cruiser ("the vehicle") which he left with the Respondents for safe – keeping when he went to Madang early in December 2010. Although the Defendants belong to the same tribe as Thomas Alu, the Appellants' sworn evidence is that neither of them is Thomas Alu's sibling. This has not been contradicted.

The vehicle was left with the defendants by Thomas Alu so that no other members of his family could use it while he was away without his permission. The Court was informed that, in the past, members of Thomas Alu's family had used the vehicle without his permission and the vehicle had been damaged.

While Thomas Alu was in Madang he had a heart attack and died. The Death Certificate before the Court states that the "appropriate interval between the onset" of the condition leading to his death "and death" was six hours. It was a sudden death and he died without a Will.

By operation of law, the vehicle, on his death, became part of his estate and was vested only in the Public Curator, pending Administration of the estate and distribution of the assets in accordance with the provisions of the Wills, Probate of Administration Act dealing with Intestacy (Section 84).

After attending to the funeral and burial of his father, the Appellant (and some of his family) asked the Respondents for the vehicle. Komnom Manye refused to return the vehicle. He claimed he had been given ownership of it by Thomas Alu and backed up his claim by threats and physical violence.

As a result of this dispute the Appellants brought a Complaint before the District Court at Minj seeking an Order for return of the vehicle and Order to restrain the Respondents from threatening, assaulting (etc.) the Appellants.

On 3rd October 2011 the District Court at Minj heard the matter and delivered a decision in a printed document dated, at the heading of it, in typescript, 18 October 2011 and, at the foot of it, immediately before the Magistrate's signature, the hand written date 21st October 2011. (The difference in dates was the subject of comment in so far as it related to the time constraints imposed on any Appeal from the decision.)

The learned Magistrate took the view that he had to decide if the vehicle "should go to the Defendant or the Complainant" and, from the reasons for his decision, based his reasoning on section 20 of the Evidence Act which, under strict conditions, makes admissible in evidence in Court proceedings oral statements by a person "relating to the circumstances resulting in his death". It relates to what lawyers call "dying declarations". This section has no relevance to dispositions of property of a deceased, but the Magistrate took the view that this section was a legal basis for deciding custody of the vehicle. The magistrate, of course, had no power to make such a decision since, by law, only the Public Curator had power to decide the destination of the vehicle.

The Appellant then filed Motion in the District Court at Minj to set aside the Order which, after being adjourned a number of times without hearing, was dealt with on 29th February 2012. As there was no appearance for the Appellants, the learned Magistrate struck out the Motion and "Confirmed the Order of 3rd October 2011").

There was no Order made on that date, nor any Application made relating to an Order on that date.

The Appellant then filed a Notice of Appeal with the National Court on 20th March 2012 and prepared an Appeal Book substantially in conformity with the Rules. The Respondents refused to certify the correctness of the Appeal Book but have given no reason for that refusal.

2. The Court now has before it the Appellants' Notice of Motion and affidavit in support seeking:

"1. Pursuant to Section 11 (2) (b) and 35 d of the Wills Probate and Administration Act, 1996, the Appeal by upheld and Relief sought be granted" for non-compliance of the Appeal process by the Respondents.

2. An Order, ordering the Appellants to take possession of the said vehicle, Toyota Land Cruiser, open back, Registration No. BAT 097.

3. If Order 1 and 2 is not satisfied, pursuant to Section 155 (4) of the Constitution, leave be granted to the Appellants to file the Appeal Book without the Respondents signing the Certificate of Correctness.

4. An Order, ordering the Police from Banz and Minj to take custody of the said motor vehicle, Toyota Land Cruiser, open back, Registration No. BAT-097 until the appeal is determined by the National Court and consequential Orders for Costs.

15. The Respondents also had a Motion, returnable today, seeking to dismiss the Appeal because it was in breach of the time limitations required by sections 220, 221 and 222 of the District Courts Act.

16. The Issues the Court has to determine are as follows:

(i) Whether the Appellants are in breach of the time limitations imposed by the District Courts Act for prosecuting their Appeal in the National Court?

If the answer to the first question is "no,"

(ii) Whether the Orders sought by the Appellants should be granted by allowing the Appeal from the District Court decision, with consequential orders in favour of the Appellants for possession of the vehicle?

17. The Law relating to the facts, so far as the first question is to be determined, is clearly set out in the District Court Act.

18. The right of Appeal from the District Court to the National Court is given to a person aggrieved by the decision under section 219 of the District Court Act. Section 221 (2) of that Act requires an Appellant to give notice of his intention to Appeal within one month after the day when the decision to be appealed is pronounced, by lodging a Notice of Appeal with the Clerk of the District Court which made the Order from which it is sought to appeal. Further, section 221 requires the Notice of Appeal to be served on the Respondent and on the Registrar of the National Court within the same period. A Recognizance, also, must be entered into (section 222) within the month and sent, without delay, to the Respondent.

19. The Respondents Argument is that the Appellants have failed to comply with these conditions. They say that the Notice of Appeal refers to a decision made on the 3rd October 2011.

20. The Appellants argue that the Appeal is from the decision of the District Court to dismiss the Motion for a Review of the decision, which is pleaded as being on the 21st February 2012. The Notice of Appeal was filed on 20th March 2012. This Notice of Appeal, together with a Recognizance was served on 26 March 2012.

21. It is not necessary to enquire further into the compliance with the District Court Act, because the Notice of Appeal, which ever date is used for calculation of filing, was not served on the Respondent within one month after the day of the decision, as required by section 22 (2) of the District Court Act. Both filing and service must be done within one month, unless an application granted for dispensation under section 231 of the Act.

22. In many matters the Court has a discretion arising from the Constitution and the Common Law, in the manner in which it applies the law to the particular facts of a Case. It must be guided by the correct principles of the application of that discretion, in a matter in which a party is not entitled to call on the Court to act in accordance with a right established by Statute.

23. This means that, when parliament has passed a valid law requiring something to be done in a certain time, that time limit can only be changed by parliament. Relevant to this case, when parliament passed the District Courts Act, it set a time limit not only for filing a Notice of Appeal and Recognizance, but also for service of the documents filed within "one month after the day on which the decision was pronounced" (section 221 (2) and 222 (1)).

24. The effect of this is that Appeal 37 of 2012 is Statute barred and the decision of the learned Magistrate cannot be over turned on Appeal.

25. The terms of that decision, however, must be correctly understood. The District Court Orders were:

"1. That the custody of the vehicle owned by the late Thomas Alu shall go to the First Defendant, Ginga Maniye.

2. That the First Complainant shall have access to the vehicle from time to time with the consent of the First Defendant, Ginga Maniye.

3. Parties bear their own costs."

26. It is clear that this dispute has given rise to considerable tension, threats and violence between the families of the parties in and close to Banz. It is important, for the sake of community calm, that the correct legal status of the property of the late Thomas Alu (including the vehicle) be clearly understood and the correct legal title to, and right to possession of, the vehicle according to law be stated.

27. The unfortunate terms of the decision of the District Court did not determine these questions clearly and left open an area for dispute. The magistrate was unable to determine custody and ownership of a vehicle which, by operation of law, was an asset of an interstate estate and vested only in the Public Curator.

28. The District Court Orders, which have been set out above, overlook the fact that, when Thomas Alu died without a Will, his property, under section 44 of the Wills, Probate and Administration Act, vests in the Public Curator who alone has power of disposition of it according to law.

29. In an Intestacy such as Thomas Alu's, where a person dies leaving a spouse or, in his case, more than one spouse, and children, the Public Curator gets in and distributes the estate property in accordance with section 84 of the Wills, Probate and Administration Act. Broadly speaking the widow's share is 1/3 of the estate and the children have 2/3 to be equally divided between them, in the absence of any surviving parent of the deceased.

30. The Respondents' claim for possession of the vehicle as a gift from a dying man cannot be substantiated – especially in view of the fact that the vehicle had been left for safe keeping some days before Thomas Alu died suddenly in Madang.

31. What then, is the status of the Order that Ginga Maniye "have custody of the vehicle owned by the late Thomas Alu"?

32. The Respondent's clearly have no claim to ownership of the vehicle. It is owned by the estate of Thomas Alu and, until the Public Curator distributes the estate of the deceased, title rests in him and he has the sole right to possess and dispose of it.

33. There is a further issue to be remembered; the legal capacity in which the Respondents have possession of the vehicle.

34. It is clear that Thomas Alu left the vehicle with the Respondents for safe-keeping. They were not motor mechanics with whom he left the vehicle for repair, or professional warehousemen who were to store it as a business in special storage facilities. Thomas Alu delivered his vehicle to their keeping for a certain purpose – stated as being to prevent members of his family from using it without his permission.

35. Apparently this safe-keeping had happened before and there is no suggestion there was an agreement for any payment involved.

36. The action was a temporary change of possession, not a change of ownership. Thomas Alu retained the right to take possession of his motor vehicle whenever he wished.

37. The transfer of possession in these circumstances created a bailment. Thomas Alu, as bailor, delivered his vehicle to Ginga Maniye to hold as a gratuitous bailee – that means he was, and is, entitled to receive no payment for this.

38. There are conditions, however, which the law puts on anyone who holds properly as a gratuitous bailee. It is the duty of every person who has custody of another person's goods as a bailee to take reasonable care of those goods and not to convert them to his own use. (See Morris v Martin & Sons Ltd [1966] 1Q B716.)

39. Ginga Maniye must keep the vehicle safe and it is his duty to re deliver it to the true owner when asked to do so. If the goods are not given over on demand, or are spoiled or damaged, the bailee (in this case Ginga Maniye), must show that the spoiling or damage was not caused by his negligence. Common Law authorities for this principle go back at least 300 years (Coggs v Bernard in 1703) and, in England and Papua New Guinea this principle is clearly applied by the Courts. (See, eg. Port Swettenham Authority v TWW & Co (M) Sdn Bhd [1979] AC 580; Rabtrad Nuigini Pty Ltd v Abco Pty Ltd [1990] PNGLR C155 and O'Regan v Hui Brothers Transport Pty Ltd [1969-70] P & NGLR 261 - esp per Frost CJ @ 270/271).
40. Anyone who holds goods of another on bailment, even if he has to do nothing more then keep them secure and hold them safe without change, has quite serious duties and obligations. If he fails to return the goods, or they are in a damaged or spoiled condition, he may be found liable to pay damages to the owner. (See, eg, Ichad v Frangoulis [1971] 1 WLR 556).

41. This question of the right of a bailor to demand immediate delivery to him of property held by a bailee in a gratuitous (free and unconditional) bailment was examined in detail by the Supreme Court of Tasmania and, after an extensive review of Common Law Authorities, held that, where there is a bailment of property free (a gratuitous bailment), the party who had given possession of the property had sufficient right to demand the property be re-delivered to it, whether or not that party could prove actual legal title to it. (see Perpetual Trustees & National Executors of Tasmania Ltd v Perkins (1989) Aust Torts Reports; 80).

42. The matters covered in this decision are longer than usual so that the parties can clearly understand two things. The first is that, when Thomas Alu died neither party had ownership of the vehicle.

43. The vehicle became part of the goods making up his estate and the Public Curator, and only the Public Curator, had and has title to it. That title was created by statute and the magistrate at Minj had no power to displace that title.

44. The second is that Ginga Maniye has possession of the vehicle as a bailee only. He is to keep it safe and undamaged and not convert it to his own use. He is to deliver it to the party entitled to dispose of the title to it (the Public Curator) on demand in the same condition it was delivered to him by Thomas Alu.

45. I direct that a copy of this Judgement be made available, without delay, to the parties, the Clerk of the Court at Minj and the Public Curator in Port Moresby (with a copy, also, to the Mt Hagen Office of the Public Curator).

46. I request the Public Curator, in the interest of community calm, to get in the assets of the late Thomas Alu (including the vehicle) without delay and administer the estate by distributing the assets in accordance with the Will, Probate and Administration Act to those entitled, and in the proportions laid down by that Act.

47. The formal Orders of the Court are:

1. The Appellants Motion filed on 8 May 2012 is refused.

2. The Order sought in paragraph 1 of the Respondent's Motion filed on 18th April 2013 is granted and this Appeal is dismissed by reason for non-compliance with section 221 (2) of the District Courts Act.

3. Each party shall bear its own costs.

4. Time is abridged to the time of the Sealing of these Orders by the Registrar, which shall take place forthwith.

__________________________________________________
Lawyers for the Appellant: In Person
Sino & Co. Lawyers: Lawyers for the Respondent