PacLII Home | Databases | WorldLII | Search | Feedback

National Court of Papua New Guinea
You are here:  PacLII >> Databases >> National Court of Papua New Guinea >> 2023 >> [2023] PGNC 8

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Estate of Paul Nari; Application by Grace Painale Nari [2023] PGNC 8; N10096 (6 January 2023)

N10096

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WPA NO. 52 OF 2016


IN THE ESTATE of PAUL NARI, late of Hohola,
National Capital District, Deceased


AND
IN THE MATTER OF AN APPLICATION
BY GRACE PAINALE NARI
FOR LETTERS OF ADMINISTRATION
Plaintiff


Waigani: Shepherd J
2017: 22nd November
2023: 06th January

      
WILLS, PROBATE & ADMINISTRATION – deceased estate – deceased dying intestate - no evidence of will - application by widow for letters of administration – evidence and documents in support - National Court Rules, Order 19 Rules 8(1) and 25 - application for letters of administration challenged by Public Curator – contentious proceedings - application by Public Curator for joinder – National Court Rules, Order 15 Rule 4 - principles for joinder of a party to proceedings in respect of a deceased estate - application for joinder granted - separate application by non-party to intervene – National Court Rules, Order 19 Rule 44 - principles applicable to applications to intervene – application to intervene refused.


PRACTICE AND PROCEDURE - directions consequent upon joinder of Public Curator - steps to be taken by Public Curator on cross-claim for grant of letters of administration -National Court Rules, Order 19 Rule 43(1) – further directions to expedite proceeding to substantive hearing.
Cases Cited:


Re Constitution Section 18(1); Reference by Igo Namona Oala (2011) SC1128
Timbers PNG Ltd v Papua New Guinea Forest Authority (2012) N4638


Legislation:


National Court Rules: Order 5 Rule 8(1); Order 15 Rules 1, 2, 3, 4(1); Order 19 Rules 8(1), 10(1), 25, 43(1) and (2), 44; Schedule 1, Forms 70, 72, 76, 78, 79, 80, 81, 82
Public Curator Act Chapter 81: s.10(1)
Public Curator (Amendment) Act 2020: s.2
Wills, Probate and Administration Act Chapter 291: ss.1, 44


Counsel


Mr Jessy Biar, for the Plaintiff
Mr Darius Taru, for the Applicant for Joinder
Mr R. Mann-Rai, for the Applicant Intervener


DECISION


06th January 2023


  1. SHEPHERD J: This is a decision on two interlocutory motions by applicants who seek to be included in the substantive proceeding, which relates to a widow’s application for the grant of letters of administration in respect of the estate of her late husband.

BACKGROUND


  1. The late Paul Nari was self-employed who died intestate at his home at Hohola, National Capital District on 3rd February 2016. He was aged 60 years at date of death.
  2. There are two wives who claim that they were customarily married to the late Paul Nari and that they are the mothers of the deceased’s adult children. The widows and their respective adult children assert that they are all beneficiaries who are entitled to share in the distribution of the deceased’s estate.
  3. Particulars of the beneficiaries in the estate of late Paul Nari given by or on behalf of the two claimant wives to the Public Curator[1] are set out below:

(a) Leanne Nari, daughter, born on 28 May 1980

(b) Avillah Karen Nari, daughter, born on 24 March 1985

(c) Castello Nari, son, born on 6 November 1989

(d) Naipo Paul Nari, son, born on 6 November 1995

(e) Omega Junior Nari, son, born on 28 August 1999


(2) Nancy Puki Nari, widow and mother of Solomon Nari, adult son (date of birth not given).
  1. On 6 September 2016 the primary applicant in this proceeding WPA No. 52 of 2016 Grace Painale Nari (Grace) by her lawyers Namani & Associates filed a summons seeking the grant to her of letters of administration in respect of the intestate estate of her late husband. It is not in dispute that Grace’s summons is in the correct form, which is Form 70, and is the mode for commencing non-contentious proceedings for grant of letters of administration prescribed by Order 19 Rule 8(1) of the National Court Rules (NCR). All of the documents required by Order 19 Rule 25 NCR to be filed at first instance in support of Grace’s application for the grant were filed by Namani & Associates on 6 September 2016. The supporting documents comprise:

(8) Affidavit of Peter Tangwien, law clerk of Namani & Associates Lawyers sworn on 20 July 2016 annexed to which is a copy of a letter dated 12 July 2016 from lawyer Asher Chillion of that law firm giving notice to the Public Curator pursuant to s.9(2) of the Public Curator Act Chapter 81 of Grace’s intention to apply for grant of letters of administration in respect of the estate of the late Paul Nari, the original of which letter was served by Mr Tangwien on the office of the Public Curator on 13 July 2016.


  1. After filing Grace’s application for grant of letters of administration on 6 September 2016, Namani & Associates arranged for copies of all of the court process filed at that stage in WPA No. 52 of 2016 to be served on the Public Curator’s Office on 19 September 2016, as is evidenced by the affidavit of service of Mr Tangwien sworn on 20 September 2016 and filed on 21 September 2016.
  2. On 31 October 2016 Mannrai Lawyers filed a notice of appearance in this proceeding as well as a separate notice of intention to defend for a company named Amazon Realty Limited. Mr Rex Mann-Rai of that law firm followed that up by filing an affidavit on 30 November 2016, sworn by him the day before, which explained that the late Paul Nari was a shareholder in Amazon Realty Limited and that he had held 10% of the shares in that company.
  3. Mr Mann-Rai’s affidavit informed the Court that:
  4. On 24 February 2017 Public Curator Mr Jacob Popuna filed his notice of intention to defend Grace’s application for grant of letters of administration in respect of her late husband’s estate. On the same date the Public Curator also filed a notice of motion and his affidavit in support sworn on 23 February 2017 seeking joinder as a party to this proceeding WPA No. 52 of 2016.
  5. The case came before Justice Kandakasi for the first time on 19 April 2017, on which occasion his Honour directed Grace and the Public Curator to negotiate a settlement, but that if settlement could not be reached then mediation would be ordered. His Honour’s order stated if a negotiated settlement did not eventuate, Grace and the Public Curator were to settle a statement of relevant events and an outline of the basis for their continuing dispute. The case was adjourned to return before his Honour on 3 May 2017.
  6. After an adjournment on 3 May 2017, on 17 May 2017 counsel Mr Asher Chillion of Namani & Associates appeared for Grace and Mr Darius Taru, in-house counsel from the Public Curator’s Office, appeared before Justice Kandakasi. Term 2 of his Honour’s order of 17 May 2017, in reference to the estate of the late Paul Nari, stated:

“ 2. All the beneficiaries shall meet with both counsels no later than 22nd May 2017, and resolve the question of a fair distribution of the Deceased Estate and the grant of Letters of Administration to give effect to the parties’ agreement on distribution of the Deceased Estate.”


  1. His Honour’s order of 17 May 2017 also directed that if the parties could not resolve the matters covered by term 2 of that order, then the parties were to return to Court on 6 June 2017 with a statement of agreed relevant facts and issues presented for determination by the Court, the statement to demonstrate which issues were incapable of resolution by direct negotiation or mediation. His Honour indicated in that order that if the matters in issue could not be resolved by direct negotiation or mediation and those matters had to be judicially determined by the Court, then his Honour would disqualify himself and the parties would need to go before a different judge.
  2. On the appointed return date of 6 June 2017 for the case, there was no appearance before Justice Kandakasi by any of the parties or their counsel. His Honour issued an order on 6 June 2017 for the case to be referred to me. The order of 6 June 2017 also directed Grace and the Public Curator to prepare the statement referred to in the Court’s earlier order of 17 May 2017, in default of which the case was to be dismissed if the defaulting party was Grace; alternatively if the defaulting party was the Public Curator then the relief claimed by Grace was to be granted unless the Court considered other orders would be more appropriate.
  3. Due to administrative reasons within the Civil Registry, the Court’s file for this proceeding WPA No. 52 of 2016 and the orders which were made by Justice Kandakasi in this suit on 17 May 2017 and 6 June 2017 were not brought to my attention until 31 October 2017, which is when Mannrai Lawyers, acting for Amazon, filed a notice of motion and affidavit material in support seeking orders that Amazon be granted leave to intervene in this proceeding and that Dennis Biribudo, the newly appointed administrator of the estate of his father the late Kakau Biribudo, be restrained from actioning his powers of administration under letters of administration granted to him on 18 September 2017 in separate proceedings WPA No. 22 of 2016. I directed the Civil Registry clerks to list WPA No. 52 of 2016 to come before me on 7 November 2017 and for the clerks to notify the parties’ lawyers accordingly.
  4. When the present proceeding WPA No. 52 of 2016 was called on 7 November 2017, Mr Jessy Biar of Namani & Associates Lawyers appeared for Grace. Mr Rex Mann-Rai appeared for Amazon. There was no appearance by or on behalf of the Public Curator on that occasion. On 7 November 2017 I ordered that the Public Curator’s motion filed on 24 February 2017 seeking joinder and the motion of Amazon filed on 31 October 2017 seeking leave to intervene be set down for hearing as a joint special fixture on 22 November 2017 at 1.30 pm.
  5. The two motions were duly heard by me on 22 November 2017. Mr Jessy Biar of Namani & Associates Lawyers appeared for Grace. Mr Darius Taru appeared for the Public Curator. Mr Rex Mann-Rai of Mannrai Lawyers appeared for Amazon. After presentation of affidavit evidence and submissions, I reserved the Court’s decision to a date to be notified to counsel. I now deliver that decision.

PUBLIC CURATOR’S MOTION SEEKING JOINDER


  1. The Public Curator’s motion filed on 24 February 2017 originally sought joinder as a party to this proceeding as well as leave to file a defence out of time. The motion was opposed by Grace, who contends that the Public Curator has a conflict of interest as he has been appointed as a director of Amazon and that, as at the date of hearing of the motion, Grace and her adult children had not received any benefits at all from the deceased’s 10% shareholding in Amazon.
  2. As this suit concerns an application for grant of letters of administration of an intestate estate, correctly commenced by summons in Form 70 in accordance with Order 19 Rule 8(1) NCR, this is not a mode of proceedings where pleadings comprising a statement of claim, defence and reply are required by the Rules to be filed. At the hearing, counsel Mr Taru therefore properly withdrew the Public Curator’s inappropriate application for leave to file a defence out of time. Mr Taru proceeded solely on the Public Curator’s primary application for joinder.
  3. The Public Curator has applied for joinder on three grounds:

(1) Order 15 Rule 4 NCR, and/or

(2) Section 2(2) of the Public Curator Act; and

(3) Order 5 Rule 8(1) NCR.


I address the merits or otherwise of each of these three grounds in turn.


Order 15 Rule 4 NCR


  1. Section 38 of the Wills, Probate and Administration Act Chapter 291 (WPA Act) provides:
    1. The National Court has jurisdiction to grant probate of the will or administration of the estate of a deceased person leaving property within the country.
  2. Section 1 of the WPA Act defines “administration”, in relation to the estate of a deceased person, as meaning letters of administration and an “administrator” as meaning a person to whom letters of administration is granted.
  3. Applications for grant of formal letters of administration in respect of intestate deceased estates are made pursuant to Order 19 NCR, in particular Order 19 Rules 8 and 25. This is the mode of proceedings that has been correctly commenced by Grace in the present proceeding WPA No. 52 of 2016.
  4. However, the Public Curator has not applied for joinder to this proceeding pursuant to any of the provisions in Order 19 NCR. Instead, as already noted, one of the grounds for joinder relied on by the Public Curator is Order 15 Rule 4 NCR. That Rule states:

4. Parties; Executors, etc


(1) In proceedings relating to an estate, all the executors of the will of the deceased, or all the administrators of the estate, must be parties.
(2) In proceedings relating to a trust, all the trustees must be parties.

(3) Where proceedings are brought by executors, administrators or trustees, an executor, administrator or trustee who does not consent to being joined as a plaintiff shall be made a defendant.


  1. I observe that this Rule comes within Order 15, not Order 19 NCR. Order 15 applies in part to the ancillary powers which the National Court can exercise in circumstances where formal application for grant of probate or grant of letters of administration is not being sought.
  2. The term “administration proceedings” has a restricted meaning for the purposes of Order 15 NCR. Rule 1 of Order 15 defines “administration proceedings”, where it appears in the text of Order 15, as meaning “the administration of an estate or the execution of a trust under the direction of the Court”.
  3. In other words, the term “administration proceedings” where that term appears in Order 15 means proceedings for formal administration of an estate under Order 19 NCR by way of grant of probate or grant of letters of administration. However, the provisions contained in Order 15 make a distinction between formal “administration proceedings”, which are governed by Order 19, as opposed to the more general term “proceedings” in connection with a deceased estate where formal administration proceedings have not been commenced, that is to say, where an applicant has not applied to the National Court for grant of probate or for grant of letters of administration under Order 19. Order 15 Rule 2 makes this clear. Order 15 Rule 2 states:

2. Relief without general administration


(1) Proceedings may be brought for the determination of any question which could be determined in administration proceedings, including any question—

(a) arising in the administration of an estate or in the execution of a trust; or

(b) as to the composition of any class of persons having a claim against an estate or a beneficial interest in an estate or in property subject to a trust; or

(c) as to the rights or interests of a person claiming to be—

(i) a creditor of the estate; or

(ii) entitled under the will or on the intestacy of a deceased person; or

(iii) beneficially entitled under a trust.


  1. However, Order 15 Rule 3 then states that Rules 4 to 9 of Order 15 apply to “administration proceedings and to proceedings brought pursuant to Rule 2” of Order 15.
  2. Therefore, the reference in Order 15 Rule 4(1) to it being mandatory that “all administrators of the estate” must be parties to a proceeding before the Court brought under Order 15 NCR presupposes or implies that an administrator has already obtained grant of letters of administration.
  3. I consider that Order 15 Rule 4(1) is simply declaratory that all executors of the will of a deceased person and all administrators of an intestate estate must be parties relating to a proceeding involving a deceased estate. Order 15 Rule 4(1) is not a machinery provision which creates a right of joinder in Court actions relating to a deceased estate.
  4. In any event, Grace’s suit in WPA No. 52 of 2016 is not a proceeding seeking to invoke ancillary powers of the National Court under Order 15 in connection with her late husband’s estate. Grace’s proceeding seeks formal grant of letters of administration under Order 19 NCR - but that grant is still pending and has not yet been made by this Court because what was initially a non-contentious proceeding then became the subject of challenge by both the Public Curator and by Amazon.
  5. I accordingly find that Order 15 Rule 4(1) NCR has no application to the circumstances of Grace’s proceeding now before this Court. The Public Curator’s reliance on Order 15 Rule 4(1) as a ground for joinder in WPA No. 52 of 2016 is misconceived and will be disregarded.

Section 2(2) of the Public Curators Act


  1. The Public Curator’s reliance on Section 2(2) of the Public Curator Act as a ground for joinder is also misconceived.
  2. Prior to amendment of the Public Curator Act in 2020, sub-sections 2(1) and 2(2) of the Act stated:

2(1). Subject to the Public Services (Management) Act 1995, the Minister may, by notice, appoint an officer to be the Public Curator.

(2) The Public Curator—

(a) is a corporation by the name of “Public Curator of Papua and New Guinea”; and

(b) has perpetual succession; and

(c) shall have a seal.

  1. Section 2 of the Public Curator Act established the Public Curator as a statutory corporation. Section 2(2) of the Act provides no jurisdictional basis for this Court to consider joinder of the Public Curator to this proceeding.

Order 5 Rule 8(1) NCR


  1. Order 5 Rule 8(1) NCR, being the third ground relied on by the Public Curator for joinder to this proceeding, is more on point. This sub-rule provides:

8. Addition of parties


(1) Where a person who is not a party—

(a) ought to have been joined as a party; or

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on,

the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings.


  1. The principles relating to joinder of a party under Order 5 Rule 8(1) NCR are well established. A leading case authority on these principles is Timbers PNG Ltd v Papua New Guinea Forest Authority (2012) N4638 where Hartshorn J said this at paragraphs 8 to 10:

“ 8. These principles are:

  1. whether the applicant has sufficient interest in the proceedings,
  2. whether the applicant’s joinder as a party is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon.
  1. In considering whether a proposed party has a sufficient interest in the proceeding or whether his joinder is necessary to ensure that all matters in dispute in the proceeding can be effectively and completely adjudicated upon, certain factors warrant consideration:

a) any relief sought against the proposed party,

b) the plaintiff opposes the application for joinder,

c) the proposed party will be affected if the relief sought in the statement of claim is granted;

d) the joinder of the proposed party is necessary to satisfy any orders made in the proceeding.


  1. I now apply each of these factors to the present application by Grace for grant of administration:
    1. The relief sought by Grace is grant of letters of administration of the deceased’s intestate estate. The summons for that grant does not claim any relief at all against the Public Curator. This factor favours Grace.
    2. Grace opposes the Public Curator’s application for joinder on the basis that the order of the National Court made by consent of the parties in earlier proceeding WS No. 934 of 2014 appointed the Public Curator as a director of Amazon, even though that appointment was limited to executing documents necessary to give effect to rectifying and correcting the company’s “issues and records”. It is clear from the affidavit evidence adduced in this suit that the Public Curator’s appointment as a director of Amazon by way of resolution of the proceeding in WS No. 934 of 2014 arose out of a shareholders’ dispute regarding shareholding entitlements in that company. The Public Curator initially represented two other deceased shareholders of Amazon in that suit, the late Kajeeman Ghotane and the late Evan Gill Iewago, but in the result the Public Curator ended up representing the interests of two other minority shareholders, the late Kakau Biribudo and the late Paul Nari, whose shareholdings were vested in the Public Curator on their respective deaths by operation of Section 44 of the WPA Act. That vesting was, however, only a temporary measure pending the grant by this Court of letters of administration of the intestate estates of those two shareholders to the person’s most acceptable to the Court as being their personal representatives.

Section 44 of the WPA Act provides:


44. Initial vesting in Public Curator

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


The reference to “the Ordinary” in Section 44 is a reference to the long since abolished ecclesiastical courts of England known by that name which historically had jurisdiction over the estates of deceased intestate persons.

Grace has deposed in her second affidavit filed on 22 November 2017 that she and her five adult children have not received any benefit at all from the deceased’s 10% shareholding in Amazon. Therefore Grace, by her counsel Mr Biar, has argued that the Public Curator has compromised himself by not keeping Grace and her children fully informed of the status of the late Paul Nari’s 10% shareholding in Amazon and by not accounting to them for the value of that shareholding or how Amazon proposes to deal with the redemption of that shareholding.

I find that there is real substance in Grace’s objection to the Public Curator’s motion for joinder as a party to Grace’s application. This factor favours Grace.


  1. If Grace’s application for grant of administration were to be granted, would the Public Curator be affected? The answer to this question is obviously yes. The Public Curator is already by virtue of the order made by consent in earlier proceeding WPA No. 934 of 2014 a director of Amazon and he is also by that order in temporary control of the deceased’s shareholding in Amazon pending grant of letters of administration of the deceased’s estate to whoever the Court determines is the most appropriate person entitled to that grant. That person may or may not be Grace and the determination of her application at a final hearing is awaiting the outcome of this present decision. The Public Curator will inevitably be called on by the beneficiaries of the estate of the late Paul Nari as a director of Amazon to account to them and to the Court for the present status of the late Paul Nari’s 10% shareholding in Amazon. If, for cause, the Court were to be satisfied that the Public Curator is the most appropriate person to whom grant of letters of administration of the estate of the late Paul Nari should made, then the Public Curator would most definitely be affected if his motion for joinder were to now be refused. This factor favours the Public Curator.
  1. Is the Public Curator’s joinder necessary to satisfy any orders made in this proceeding? I find that the Public Curator’s joinder would be necessary if the Court were to consider that Grace is not the most appropriate person to whom administration of the deceased’s estate should be granted because of the potential for conflict of interest on the part of Grace. There is already evidence before this Court that there are two widows of the late Paul Nari and therefore two families, each member of which is claiming entitlement to participate in the distribution of the intestate estate of the late Paul Nari. The Public Curator is concerned that if Grace is granted letters of administration, she would be in a conflict situation if she were to disallow or ignore the claims of the other wife Nancy Puki Nari and her adult son Solomon Nari to participate in the distribution of the estate. However, the Court has yet to arrive at the substantive hearing of Grace’s primary application for grant of letters of administration. The Court has also yet to determine any potential contest, as to who are the lawful beneficiaries of the late Paul Nari. These proceedings are still at an interlocutory stage.

This factor, the necessity of the Public Curator’s joinder to satisfy any orders made in this proceeding, favours the Public Curator.


  1. On reviewing the application of the principles which pertain to a motion for joinder of a party made pursuant to Order 5 rule 8(1) NCR, I am persuaded that on balance, despite Grace having claimed no order for relief against the Public Curator in her summons for grant of administration and although I am satisfied that Grace has good reason to oppose the Public Curator’s motion based on her perceived conflict of interest on the part of the Public Curator in his capacity as a director of Amazon, the Public Curator as a potential party to this proceeding is a person who will be affected if letters of administration were to be granted to Grace. There is also the potential for Grace herself to be placed in a position of conflict of interest if she were to be granted letters of administration of her late husband’s estate because of the claims to distribution in the estate made by the other widow and her son and by creditors who have given notice of their claims to the Public Curator.
  2. I therefore consider that the Public Curator should be given the opportunity at the substantive hearing of Grace’s application for grant of letters of administration to address the Court as to why he should be considered for grant of formal administration of the deceased’s estate in preference to Grace. The Public Curator should also be called to account to the Court and all beneficiaries in the deceased’s estate as to the present status of the late Paul Nari’s shareholding in Amazon. Furthermore, if the Public Curator were to be joined as a party to this proceeding, the Public Curator would then be bound by the terms of any order which the Court may make at the substantive hearing in accordance with Order 5 Rule 8(1) NCR, even if that substantive order were to be in Grace’s favour.
  3. For these reasons, I am satisfied that the Public Curator should be joined as the defendant to Grace’s primary application in this proceeding for grant of letters of administration in respect of her late husband’s estate.

AMAZON’S MOTION SEEKING TO INTERVENE IN THIS PROCEEDING


  1. Amazon, by its motion filed by Mannrai Lawyers on 31 October 2017, has applied for leave to intervene in this proceeding pursuant to Order 19 Rule 44 NCR. Amazon was also seeking by that motion to obtain an interim order to restrain Dennis Biribudo from performing his functions as the Court-appointed administrator of the estate of his deceased father, the late Kakau Biribudo. However, counsel for Amazon, Mr Mann-Rai, sensibly withdrew that second application at the interlocutory hearing the subject of this decision as any such application should have been made in WPA No. 22 of 2016, not in this proceeding WPA No. 52 of 2016. Amazon has nevertheless still sought an order that it be allowed to intervene in Grace’s application for grant of letters of administration.
  2. Order 19 Rule 44 NCR, relied on by Amazon as applicant to intervene, provides as follows:

44. Intervention


(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.

  1. Order 19 Rule 44 NCR is silent as to the criteria to be applied by the Court when determining an application by a non-party to intervene in existing proceedings involving a deceased estate. Intervention is a procedure which is a creature of statute, not of common law. While intervention is akin to joinder of a party, such as that which has been applied for by the Public Curator in this case, the intervention procedure which Amazon seeks to invoke by its motion is not the same.
  2. The law on intervention by intervenors in proceedings in the superior courts of Papua New Guinea was extensively addressed by Davani J in Re Constitution Section 18(1); Reference by Igo Namona Oala (2011) SC1128. After reviewing Australian authorities on this procedure, her Honour summarised at paragraph 41 of the Court’s decision the general principles to be applied by our Courts when considering an application to intervene. The general principles enunciated by her Honour in this regard are these:

(1) The discretion to permit intervention is a very wide one.

(2) The applicant for intervention must have a substantial interest in the issues to be decided in the case.

(3) It can either be a direct interest, in that the decision of the Court could immediately and directly affect the interests of the applicant to maintain or abrogate some particular right, power or immunity, or an indirect interest, in that the decision will bind another jurisdiction where the applicant is about to be a party in proceedings involving the same legal principles.

(4) The applicant’s position/submissions should contribute some new or a more comprehensive aspect to issues not previously considered by the Court, and not simply be repetitive of the position of someone who is already a party.

(5) Leave to intervene can be restricted to the particular issues of interest to the applicant.


  1. To address these principles, it is necessary to articulate in the clearest possible terms the nature of Amazon’s substantial interest which the company asserts would be adversely affected if the Court were not to allow the company to intervene in Grace’s application for grant of letters of administration.
  2. The reasons for Amazon’s motion to intervene are set out in the affidavit of its Malaysian managing director Mr Eii Sing Hii filed on 31 October 2017. Mr Hii says that he became associated with Amazon in 2012 and that he is the managing director of the company. He says that he is also a director of Monarch Development Pte. Limited which as at October 2017 owned 80% of the shares in Amazon.
  3. Annexed to Mr Hii’s affidavit is a company extract for Amazon furnished by the Office of the Registrar of Companies which indicates that the corporate structure of Amazon as at 30 October 2017 was as follows:

Directors:

Shareholding:

Share Bundles and Shareholders:

  1. Based on these shareholdings as disclosed in the company extract for Amazon, Mr Hii says in paragraph 6 of his affidavit that Monarch Development Pte. Ltd owns 80% of the shares in Amazon and that the remaining 20% of the shares in Amazon are “currently owned by the Public Curator for and on behalf of both the late Kakau Biribudo and the late Paul Nari who owned 10% shares each”.
  2. I disagree with Mr Hii’s characterization of the shares held by Public Curator Mr Popuna in Amazon as being “owned” by him on behalf of the two deceased shareholders. Rather, the evidence before the Court establishes that the Public Curator holds those two 10% shareholdings in trust as trustee and fiduciary for the beneficiaries of the estates of the late Kakau Biribudo and the late Paul Nari.
  3. Mr Hii says in paragraphs 8 and 9 of his affidavit to the effect that prior to their deaths, the late Kakau Biribudo and the late Paul Nari had engaged the services of the law firm Lakakit & Associates to act for them in National Court proceedings OS No. 167 of 2013, WS No. 607 of 2013 and WS No. 601 of 2013, proceedings which no doubt related to a dispute regarding their shareholdings in Amazon, a dispute which was later resolved by the order made by Kandakasi J with the consent of all parties in proceeding WPA No. 934 of 2014 on 7 April 2016. Although Mr Hii’s affidavit does not say so, the inference is that the estates of the late Kakau Biribudo and the late Paul Nari, and now the Public Curator, all owe legal fees which are, or were, owed to Lakakit & Associates.
  4. The remainder of Mr Hii’s affidavit goes to irrelevant matters in connection with Amazon’s application seeking interim restraining orders against Dennis Biribudo as administrator of his late father’s estate in National Court proceeding WPA No. 22 of 2016. Those other matters are now of no consequence for the purpose of Grace’s substantive application for grant of letters of administration of her late husband’s estate because Amazon, but its counsel Mr Mann-Rai, has withdrawn the company’s application for interim restraining orders against Dennis Biribudo.
  5. What therefore is the substantial interest that Amazon seeks to protect or which could be seriously adversely affected if the company’s application to intervene in Grace’s application for grant of letters of administration of her late husband’s estate were to be refused? Is it because the law firm Lakakit & Associates has made demand of Amazon as a company to pay outstanding legal fees owed by the Public Curator and/or the estates of the late Kakau Biribudo and the late Paul Nari, which legal fees Amazon disputes? If so, what is the contractual or other basis for any such claims having been made by Lakakit & Associates against Amazon? And how do any such claims impinge on Grace’s application for grant of letters of administration? The Court is left guessing as to what the amounts of those outstanding legal fees might be, if indeed, any such claims for outstanding legal fees, possibly disputed by Amazon, is the interest which Amazon seeks to protect itself from through being allowed by this Court to intervene in what is obviously an unrelated substantive application for grant of letters of administration.
  6. The only other interest which Amazon seeks to protect by intervention in this proceeding is the interest of the Public Curator. This is evidenced by the assertion of Amazon’s counsel Mr Mann-Rai in paragraph 7 of his affidavit filed 30 November 2016 that it would be “in the best interests of the estates of the late Paul Nari and the late Kakau Biribudo that the Public Curator be allowed to continue to administer the estates in order to avoid conflicting creditor claims as well as conflicting beneficiary claims”. That is not an interest specific to Amazon that the company is seeking to protect but rather a general interest already asserted by the Public Curator.
    1. Grace’s response to Amazon’s motion to intervene is succinct. Grace says in paragraph 4 of her second affidavit filed on 22 November 2017 that Amazon cannot be a party to this proceeding in WPA No. 52 of 2016 because Amazon’s rights will not be affected in any way. I observe that Grace’s second affidavit was relied on by her in Court on 22 November 2017 without objection from Amazon’s counsel.
  7. Grace has alleged in paragraph 5 of her second affidavit to the effect that there were discrepancies in the dealings which resulted in Monarch Development Pte. Ltd’s purchase of shares in Amazon, the shares having not been purchased at the agreed price, and that if she is granted administration of her late husband’s estate then she will be filing separate suit to redeem certain of those shares.
  8. As to the inference in Mr Hii’s affidavit that Lakakit & Associates is owed legal fees by the estates of the late Kakau Biribudo and the estate of the late Paul Nari, Grace has deposed at paragraph 11 of her second affidavit to the effect that the Public Curator indicated to her in June 2017 that he had paid K20,000 to Lakakit & Associates for legal work that law firm had done for Amazon at the Public Curator’s request. Grace also deposed that the Public Curator later said to her that he had paid Lakakit & Associates an amount of K40,000.
  9. However, even if there were or are legal fees owing to Lakakit & Associates for legal services rendered by that law firm to the late Kakau Biribudo and the late Paul Nari and/or to the Public Curator in connection with discontinued proceeding WS No. 934 of 2014 and the other cases instituted by the Public Curator involving the shareholdings in Amazon, those would be debts which, on proof, would be the responsibility of the administrators of the two deceased estates to settle. They are not debts, which if they still exist, have anything to do with the merits of Grace’s substantive application before this Court for grant of letters of administration of the estate of her late husband.
  10. Given these circumstances, I find that Amazon has failed to demonstrate that it has any substantial interest in Grace’s application for grant of letters of administration which could in any way be directly or indirectly affected if grant of letters of administration were to be ordered by the Court in favour of Grace.
  11. Amazon’s position is that it supports the Public Curator’s application for joinder, which I have already found will be ordered so as to allow the Public Curator the opportunity to address the Court at the substantive hearing of Grace’s application, thereby enabling the Public Curator to ventilate his reasons why he, not Grace, should be formally appointed by the Court as administrator of the estate of the late Paul Nari.
  12. I accordingly find that Amazon’s motion to intervene in this proceeding WPA No. 52 of 2016 is without foundation under Order 19 Rule 44 NCR and must be refused.

WHAT ORDERS SHOULD NOW BE MADE BY THE COURT?


  1. I have already observed that Order 5 Rule 8(1) NCR empowers the Court when ordering the joinder of a party to do so on terms for the further conduct of the proceedings. I consider it appropriate that as the Public Curator is to be joined as the defendant to Grace’s substantive application, directions should be given by the Court for Grace and the Public Curator to file updating affidavits, and in particular for the Public Curator to file, or cause to be filed, affidavit material which clearly discloses to the Court the present status of all shareholdings in Amazon, including the 10% shareholding which the Public Curator holds as trustee and fiduciary for the beneficiaries of the estate of the late Mr Paul Nari.
  2. Importantly, directions should also be made by the Court to enable the Public Curator, if he wishes to pursue his intention to seek grant of letters of administration for the estate of the late Paul Nari, to avail himself of Order 19 Rule 43(1) NCR which provides that a party in contentious proceedings such this suit may file a cross-claim for grant of letters of administration.
  3. Directions will also be made by the Court for an expedited date and time for the substantive hearing of Grace’s application for grant of administration of her late husband’s estate, with a timetable to progress this case to substantive hearing.
  4. As to the costs of the two motions which are the subject of this decision, I will order that as Amazon’s motion was refused but the Public Curator’s motion for joinder has succeeded, Amazon is to nevertheless pay Grace’s costs of and incidental to both motions. The Public Curator and Amazon are to each bear their own costs for those two motions.

ORDER


  1. The terms of the formal order of this Court are:

1. The Public Curator’s application for joinder as a defendant to this proceeding is granted.

2. Until further order of the Court, the entituling for all court process to be filed in this proceeding is as follows:


“ In the National Court of Justice

WPA No. 52 of 2016

In Estate of PAUL NARI, late of Hohola, National Capital District,
Self Employed, Deceased

IN THE MATTER
of an Application for Letters of Administration

AND

GRACE PAINALE NARI
Plaintiff

AND

THE PUBLIC TRUSTEE
Defendant”


  1. Grace Painale Nari and the Public Curator shall no later than 31 January 2023 each file and serve, or cause to be filed and served, affidavits which update the content of their existing affidavits filed in this proceeding.
  2. The affidavit material to be filed by the Public Curator pursuant to term 3 of this Order shall include, among other things, a comprehensive report to the Court by the Public Curator in his capacity as a director of Amazon Realty Limited as to the present status of all shareholdings and purported shareholdings in that company, including the present status and estimated value of the shareholding of the estate of the late Paul Nari in Amazon Realty Limited.

  1. If the Public Curator intends to still apply for grant of formal letters of administration (or orders in lieu thereof) in respect of the estate of the late Paul Nari, he shall:

(b) no later than 31 January 2023 file and serve pursuant to Order 19 Rule 43(1) of the National Court Rules a cross-claim seeking grant of letters of administration (or orders in lieu thereof) in reliance, inter alia, on Section 10(1) of the Public Curator Act Chapter 81 (consolidated to Amending Act No. 13 of 2020).


  1. This proceeding is adjourned to return before the Court on Monday 13 February 2023 at 1.30 pm for the parties’ counsel to hand up by consent a set of draft Directions, including a proposed timetable for the Court to consider, with the view to an expedited hearing date being allocated by the Court for determination at a substantive hearing as to the most appropriate personal representative of the late Paul Nari to whom letters of administration (or orders in lieu thereof) should be granted.
  2. Amazon Realty Limited shall pay the costs of Grace Painale Nari of and incidental to the two motions which have resulted in this Order, such costs to be taxed if not agreed.
  3. The Public Curator and Amazon Realty Limited shall each bear their own costs of and incidental to the said two motions.
  4. The time for entry of this order is abridged to the time of signing by the Court which shall take place forthwith.

__________________________________________________________________
Namani & Associates: Lawyers for the Plaintiff
Mr Darius Taru: In-house legal officer for the Public Curator
Mannrai Lawyers: Lawyers for Amazon Realty Limited


[1] The Public Curator Act Chapter 81 was amended by the Public Curator (Amendment) Act 2020 (Act No. 13 of 2020) which came into operation on certification on 14 August 2020. Section 2 of the Amending Act provides that the term “Public Curator” in the principal Act is replaced with the term “Public Trustee” and that reference to the “Public Curator” in any other law must be read as a reference to the “Public Trustee”. However, for the purposes of this Decision reference to the “Public Curator” will be maintained throughout, except for the Order at the conclusion of this Decision. This is because the Amending Act came into operation after the commencement of this proceeding.

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2023/8.html