In the Application of Emmanuel Yaipupu [2023] PGNC 183; N10343 (21 June 2023)

N10343

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WPA NO. 102 OF 2022

IN THE MATTER OF WILLS PROBATE ADMINISTRATION ACT

CHAPTER NO. 291

IN THE MATTER OF THE ESTATE OF LATE MICHEAL YAI-PUPU, LATE OF KUPIYAPOS VILLAGE, WAPENAMANDA DISTRICT, ENGA PROVINCE, PAPUA NEW GUINEA

IN THE APPLICATION OF EMMANUEL YAIPUPU
Applicant

AND:
JESSIE YAI-PUPU
Joined Applicant/Defendant

Waigani: Anis J
2023: 18^th May, 21^st June

NOTICE OF MOTION – application for leave for joined applicant to be removed and for interested party to be joined as a party – Order 5 Rules 8(a)(b) and 9 and Order 19 Rule 44(1) - National Court Rules – consideration – application of Order 19 Rule 44 – whether Order 19 has exclusive application - whether Order 5 Rule 8 compatible rule to also apply – whether interested party has interest and should be joined – consideration of various factors - exercise of discretion

Cases Cited:

Alex Timothy v. Hon. Francis Marus (2014) SC1403
Simakada Holdings Ltd v. David Dotaona (2018) N7356
Banning Trading Ltd v. Max Kombamung (2017) N7056
Rimbink Pato v. Maku Kopylala (2017) N7279
Scholly Lang v. Paul Wagun (2009) N3933

Counsel:

Mr. A. Mana, for the Applicant
Mr. S. Wanis, for the Respondent and an interested party

RULING

21 June 2022

1. ANIS J: I heard a notice of motion that was filed (3 May 2023) (NoM) by an interested applicant King Llyod Yai-Pupu (intervener) on 18 May 2023. The intervener sought, amongst others, relief for joinder as a defendant and for leave to remove the current joined defendant Jessie Yai-Pupu. The defendant supported the NoM whilst there was partial opposition by Emmanuel Yai-Pupu (Applicant). After the hearing, I reserved my ruling to a date to be advised.

2. This is my ruling.

BACKGROUND

3. The substantive proceeding concerns a dispute over who should be appointed as Administrator of the Estate of the Late Michael Yai-Pupu (the Estate/deceased). The deceased died intestate leaving behind assets including various companies where he owned or held shares in. The Applicant filed this proceeding to primarily seek an order that he be appointed as the Administrator of the Estate. The defendant later successfully applied and was joined as a party to the proceeding.

4. On 2 December 2022, Tamade AJ granted Letters of Administration to the Applicant. Aggrieved by this decision, the defendant lodged an appeal in the Supreme Court. The proceeding is described as SCA No. 190 of 2022 – Jessie Yai-Pupu v Emmanuel Yai-Pupu (SCA 190). On 27 April 2023, the Supreme Court, in an ex tempore decision, upheld the appeal. This was after or when the Applicant conceded to one of the grounds of the appeal, which was breach of right to natural justice. The formal order of the Supreme Court reads:

“1. The Appeal is upheld.

2. Pursuant to section 16(d) of the Supreme Court Act, the matter is remitted to the National Court and adjourned to the registry to be listed before another Judge.
3. The Respondent shall pay the Appellant’s cost of and incidental to this appeal.”
   

5. Shortly after and on 27 April 2023, the Applicant filed an application where he sought interim ex parte orders to retain himself as the interim Administrator of the Estate. On 1 May 2023, I granted the application, amongst others, appointing the Applicant as the interim Administrator of the Estate pending the substantive hearing of this proceeding or until further orders of the Court.

MOTION

6. Let me address the NoM. It reads in part:

“1. Pursuant to Order 5 Rule 8(a) and (b) and Order 19 rule 44(1) of the National Court Rules, he be joined as a party or a defendant to the proceeding.

2. Pursuant to Order 5 Rule 9 of the National Court Rules, Jessie Yai-Pupu be removed as a party to the proceeding.
3. Pursuant to Order 12 Rule 8(3) of (sic) National Court Rules the Orders of this Court made on 01^st of May 2023 be set-aside.
4. Any other others (sic) the court deems fit.”
   

CONSENSUS/ STATUS QUO

7. At the start of the hearing, the Applicant conceded to relief 2 of the NoM. As such, leave was granted, and the defendant was removed from the proceeding.

8. It was also agreed then that I should first hear and determine relief 1 of the NoM, and subject to my ruling, proceed to hear and determine relief 3. The hearing proceeded in that manner.

COURT’S JURISDICTION

9. The parties did not address the Court on the sources or jurisdictional basis where the intervener has sought to invoke as pleaded in the NoM. In the interest of justice and for completeness, I will consider and make my ruling on them. I refer firstly to Order 19 Rule 44(1) of the National Court Rules (NCR). I find it to be the correct source which is directly applicable herein. It states:

44. Intervention. (78/45)

(1) An application to intervene in proceedings for a grant shall be by motion on notice in the proceedings for an order that the person applying be added as a party.

(2) Before filing the notice of motion the person applying shall give notice of his intention to defend the proceedings. [Underlining mine]

10. As underlined above, Order 19 Rule 44(1) requirement is written in mandatory terms. In my view, the rule is exclusive or comprehensive and must be invoked in cases such as this, that is, where interested applicants may seek to be joined or contest an applicant that is seeking orders for grant or administration of an estate. See examples on exclusive or comprehensive rules discussed in cases: Alex Timothy v. Hon. Francis Marus (2014) SC1403 at [22], Simakada Holdings Ltd v. David Dotaona (2018) N7356, Banning Trading Ltd v. Max Kombamung (2017) N7056 and Rimbink Pato v. Maku Kopylala (2017) N7279.

11. The intervener also relies on Order 5 Rule 8(a) and (b) of the NCR. Order 5 of the NCR [ including rule 8(a) and (b)], in my view, is applicable for joinder of parties for civil proceedings in general. However, and for the stated reasons above, I dismiss this source as relevant or applicable to invoke for this purpose or for this type of application. The proper source to invoke is Order 19 Rule 44(1).

DISCRETION

12. With that clarity, I note that exercise my powers under Order 19 Rule 44(1) of the NCR is discretionary.

CONTENTIONS

13. I note the submissions presented by the parties.

14. There is no dispute that the intervener is a beneficiary of the Estate. He is the son of the now removed defendant and the deceased. The defendant was not the first wife of the deceased but is said to be one of his other wives who is also a beneficiary of the Estate.

15. The 2 main challenges against the NoM are, (i), the alleged belated attempt by the intervener to be joined as a party, and (ii), the Applicant claims that pursuant to what the Supreme Court had stated or implied in its decision in SCA 190 of 2022, that the continuation of the hearing shall be limited only to the defendant as the only opposing party; however, the Applicant submits that since she has now been removed as a party, that there should be no one else who should be added as a party, and that the proceeding should conclude without delay with the Applicant to be confirmed and be issued with the Letters of Administration of the Estate.

CONSIDERATION

16. Let me answer the second claim by the Applicant first, that is, whether the proceeding, premised on the ruling in SCA 190 of 2022, is limited to hearing only from the defendant and for the matter to progress to a hearing, but that since she has now opted out of the proceeding, that the proceeding should conclude or be expedited without further delay where the Court should appoint or confirm the Applicant as the Administrator of the Estate.

17. I refer to the transcript of proceedings of SCA 190 of 2022 which was tendered by consent of the parties (marked as Exhibit P1). At para 23 before and at line 10, I note that the Applicant had asked the Supreme Court to make specific orders for the matter to be expedited; the Applicant had requested the Supreme Court to issue specific directions to confine the proceedings before the National Court as between himself and the defendant in the event that the appeal was upheld. The Supreme Court in response stated and I quote from Kariko J, “Well, that is the matter for the National Court. Well, we cannot interfere with that.”. That was apparently the unanimous view of the Court.

18. So, the appeal was upheld with costs, and the matter was referred to the National Court for a re-hearing.

19. It seems to me that the Applicant is rehearsing the argument which he had raised before the Supreme Court which had been refused. Therefore, I dismiss the Applicant’s submission in that regard.

20. The second leg of argument by the Applicant on the second issue is this. He claims that since leave has been granted and the defendant is now removed as a party, the Court should not add anymore parties; that the defendant was the only contesting party from the beginning; that it was premised on breach of her right to natural justice that had permitted the Supreme Court to order a re-hearing; therefore, now that she is removed as a defendant, this should essentially conclude the dispute with an expedited hearing on who should be appointed the Administrator to administer the Estate; that the defendant had also wasted the Court’s time only to come back to the National Court where she now does not what to proceed and has been removed as a party.

21. I note the submissions of the parties on this point.

22. I will answer it this way. The status quo of this matter is that it has been referred back to the National Court by the Supreme Court for a re-hearing. The defendant has sought leave of the Court and has been removed from the proceeding. What this simply means, in my view, is that the substantive matter has not been decided, and the matter must still proceed to a full hearing. The earlier decision by this Court on 2 December 2022 that granted the Letters of Administration to the Applicant has been quashed by the Supreme Court. I can see that the Applicant is attempting to make the argument that the National Court had already conducted a hearing and had substantially determined the matter save that the defendant had not been afforded the right to be heard which was the basis why the Supreme Court upheld the appeal and referred the matter back to the National Court for a hearing, but that since the defendant has opted out of the proceeding, that the matter has already been substantially determined so the hearing should be expedited without any inclusion of other parties.

23. With respect, the argument is misconceived and baseless. This matter is proceeding afresh. An interested party such as the intervener is entitled to apply to be joined. And I note that there were no conditions set by the Supreme Court on how the National Court proceeding should be conducted. There is also nothing that is part-heard that is pending; there is also no substantive findings by the National Court that favours the Applicant.

24. I note that the parties spent a considerable amount of time making submissions premised on joinder under Order 5 Rule 8 of the NCR. However, I have already ruled that Order 5 of the NCR does not apply herein thus I reject submissions that are premised on this rule.

25. Untested Evidence adduced by both parties shows, amongst others:

(i) allegations of disagreements and mismanagement of funds of the Estate;

(ii) that the Estate is worth tens of millions of kina; and

(iii) that both the Applicant and the intervener are beneficiaries of the Estate; the Applicant being a son of the deceased’s first wife, and the intervener also being a son of the deceased from one of his other wives, namely, the removed defendant Jessie Yai-Pupu.

26. In my view and premised on the evidence of both parties, there is no doubt that there are disagreements between the beneficiaries of the Estate. Given that scenario, it would, in my view, be a blatant disregard to the interest of justice, if I refuse to exercise my discretion and include the intervener to the proceeding. He appears to have a lot to say thus, in my view, should not be shut out but rather be heard. He is also not a stranger or a person without any interest in the matter. He is one of the biological sons of the deceased and appears to be well educated. I also take into account the fact that the deceased has died intestate, and also, that the Court is in the process of trying to establish who is better suited to administer the Estate.

27. The provisions of the Wills Probate and Administration Act Chapter 291 (WPAA) and Order 19 of the NCR, amongst others, permit interested applicants to publish in the public domain their intention to apply for administration of an estate. A primary purpose, apart from notifying the beneficiaries, is to also inform or alert the creditors of the deceased person concerned. I also refer to Justice Cannings’s decision in Scholly Lang v. Paul Wagun (2009) N3933 and ask myself whether, given the circumstances of the case, considerations should be given whereby the Court should appoint a neutral or independent and qualified liquidator to administer the Estate. In that case, His Honour, in his final ruling, removed the Public Curator as the Administrator of the estate of the late Galeng Lang, a member of Parliament who had died intestate. His Honour, however, refused to appoint the applicant Scholly Lang (widow) to replace the Public Curator as the Administrator of the estate of the late Galeng Lang. His Honour issued facilitative orders for a neutral or an independent appointee to be selected and presented to the Court by the Registrar of the National Court, for the Court to consider and appoint. His Honour stated and ordered in part, as follows:

10. It is not a good idea to appoint Mrs Lang as administrator of the estate. She is likely to be the primary beneficiary. Under Section 84 of the Public Curator Act the widow of a man who dies intestate with children is generally entitled to one-third of the estate. Mrs Lang would be in a conflict of interest situation in the event that other persons wish to claim an interest in the estate. Mrs Lang claims to have had a statutory marriage with Mr Lang. However, it is acknowledged in the evidence that Mr Lang had a second, de facto, wife, in addition to Mrs Lang; and it is likely that that lady is claiming an interest in the estate. It is much better that an independent person be appointed as administrator. That person should have the technical skills required to administer a complex estate and I think that the most appropriate person would be a registered liquidator. I will order the Registrar of the National Court to nominate a registered liquidator.

.....

(5) The Registrar of the National Court shall, within seven days after service on him of the affidavit and documents referred to in Order No (3), after consulting the Papua New Guinea Institute of Accountants, nominate to the Court, by affidavit, a person who is a registered liquidator under the Accountants Act 1996, for appointment as administrator of the estate of the late Galeng Lang, and the Court shall thereupon consider the nomination and decide whether to appoint the nominee.

28. When I weigh up all these factors, I must say that I am minded to exercise my discretion and grant relief 1 of the NoM in favour of the intervener.

SUMMARY

29. I will allow the intervener to be joined as a defendant in this proceeding.

30. I note that there are consequential orders that will follow under Order 19 of the NCR concerning summonses or originating summons that are filed and where the proceedings are contested. In the present case, the mode of proceeding may have to be converted and parties may be ordered to file their pleadings such as statement of claim, defence, crossclaim and defence to cross-claim.

31. I will hear the parties on that after this ruling and perhaps after I hear arguments and make a ruling on term 3 of the NoM.

ORDERS OF THE COURT

32. I make the following orders:

1. I order the intervener King Lloyd Yai-Pupu to be joined as the defendant in this proceeding.
   
2. I will now hear the parties’ arguments on relief 3 of the NoM, that is, whether I should set aside my earlier ex parte order where I have appointed the Applicant as the interim Administrator of the Estate.
   

The Court orders accordingly

________________________________________________________________
Corrs Chambers Westgarth: Lawyers for the Plaintiff
Solomon Wanis: Lawyers for the Defendant