Bimai-Noimbano, Deceased, Re [1967] PGSC 5; [1967-68] PNGLR 256 (25 January 1968)

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 256 - Bimai-Noimbano (deceased), Re

[1967-68] PNGLR 256

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

RE BIMAI-NOIMBANO, DECEASED

Port Moresby

Clarkson J

15 December 1967

25 January 1968

INTESTATE SUCCESSION - Position of customary law administrator - Effect of Probate and Administration Ordinance 1951-1960 on customary law - Whether Public Curator can obtain order to administer estate deceased native intestate - Effect of Native Administration Regulations, regs. 70 to 75 inclusive - Probate and Administration Ordinance 1951-1960, ss. 4(7)[cccxviii]¹, 90[cccxix]² - Native Administration Regulations, regs. 70 to 75 (incl.).

Where native custom provides for the property in certain assets held by a deceased to pass on his death to another who has administrative powers and obligations then, subject to the powers and obligations conferred on district officers under regs. 70 to 75 inclusive of the Native Administration Regulations, the property in those assets passes to the customary law representative who administers them in accordance with native custom. The rights powers and duties conferred on the customary law administrator, as modified by regs. 70 to 75 inclusive, are preserved by s. 4(7) of the Probate and Administration Ordinance 1951-1960. The Public Curator cannot therefore be granted, under s. 90 of that Ordinance, an order to administer the estate of a deceased native dying intestate where there is a customary law administrator of the estate as such an order would “affect” the provisions of the Native Administration Regulations.

Semble

An order to administer under s. 90 could be made in respect of the estate of a deceased native dying intestate and leaving no debts where the customary law provided that the assets could only be dealt with and distributed by a representative named by the deceased before his death and for some reason no such nomination was made.

There may be circumstances in which special orders, for instance to assist the preservation or recovery of property, could be made even where there was a properly appointed customary law administrator.

Petition

The Public Curator petitioned for an order under s. 90 of the Probate and Administration Ordinance 1951-1960 authorizing him to administer the estate of Bimai-Noimbano a member of the Siani people who died intestate in his home district. The relevant facts and provisions of the Native Administration Regulations appear in the reasons hereafter.

Counsel

McKinnon, for the petitioner.

Lalor, amicus curiae.

Cur. adv. vult.

25 January 1968

CLARKSON J:  The deceased was a member of, and lived according to the customs of, the Siani people at Iamei Village, Watabung, in the Eastern Highlands District of the Territory of New Guinea. He died in that district at Goroka on 16th July, 1966.

The matter comes before the Court on an application by the Public Curator of Papua and New Guinea for an order under s. 90 of the Probate and Administration Ordinance 1951-1960 authorizing the Public Curator to administer the deceased’s estate. This section provides that the Court may grant such an order in certain cases including that where a person dies leaving property within the jurisdiction and probate or administration is not applied for within three months after the death of the deceased.

The present case appears to fit that description but my attention has been drawn to other enactments which are relevant. Regulations 70 to 75 of the Native Administration Regulations made under the Native Administration Ordinance make certain provisions for the winding-up of the estate of a native dying intestate. The deceased was a native within the meaning of these Regulations (see s. 6 of Ordinances Interpretation Ordinance 1949-1967 and reg. 5 of Native Administration Regulations) and the Probate and Administration Ordinance by s. 4(7) provides that nothing in that Ordinance “shall repeal alter or effect” (sic) any of the provisions of the Native Administration Ordinance or the Regulations made thereunder. The problem thus arises of construing these various provisions and of applying them to the present case. I read “effect” as a misprint of “affect”.

Professor Salisbury and Mr. Grant have given evidence, the substance of which I unhesitatingly accept, of the relevant customs of the Siani people, and I have formed a better understanding of this evidence by referring to Professor Salisbury’s work From Stone to Steel, a study of the social and economic structure of the Siani people and to the work of Vicedom and Tischner to which counsel referred me.

The evidence shows that by what is described as the customary law of succession of the deceased’s group a distinction is drawn between permanent and non-permanent property. This division does not coincide with any major divisions recognized by English law, so for example, permanent property includes such property as land or a business, and a business could no doubt consist of a wide variety of interests tangible or intangible in both realty and personalty.

It will also be seen that the deceased is the apparent owner of assets in a form unfamiliar to many of his people and that, in addition, in order to realize some of the deceased’s assets, the title of his successor must be established with some formality to persons outside the deceased’s community. It is sufficient to refer to two of the assets, a policy of life insurance on the life of the deceased and a quantity of harvested coffee. I assume that no difficulty arises in disposing of the coffee under the customary law of succession and it may be that there would be no difficulty in disposing of the proceeds of the policy under the same law, but it is clearly a form of asset which the deceased’s people would only recently have encountered and the title to which presumably must be established by the production of certain formal documents in the manner in which the policy itself prescribes.

The deceased died leaving an infant son and the evidence shows that in these circumstances, by custom, all property of the deceased apart from that destroyed at the time of death “vested” in the deceased’s brother, Kondo, whom I shall call the representative. Professor Salisbury says that it vests in the representative “as trustee on behalf of the lineage or persons entitled to it by custom”. Mr. Grant states the position somewhat differently when he says that the estate “is administered” by the representative “who holds the estate subject to the same obligations as the deceased himself and subject to the duty of distributing certain non-permanent assets and making certain customary payments”.

One must of course exercise considerable care when using the terminology of one legal system in relation to another system: words such as “vest” and “trustee” with a settled connotation in English law almost certainly have no counterpart in the laws and customs of the Siani people and are used only in the absence of better terms to give some approximation of the notions involved. The difficulty is heightened by the differing concepts of ownership under the two systems. The Siani people apparently recognize a system of group ownership of permanent property for the benefit of the lineage subject to certain individual customary rights, and to which nothing akin to the common law rules against inalienability or perpetuities applies.

A further point should be made on the evidence before me and that is that the deceased was not the beneficial owner of all the assets he held. To the extent that the assets were “permanent property” to which he had himself succeeded or which he had acquired with the consent of the group and for its benefit, he was subject to the same restrictions and duties in their use as his representative is under the customary law, and these derogations from full beneficial ownership the deceased acknowledged during his lifetime by customary payments to various persons.

I have referred to these aspects of the evidence to show that under the customary law the position of the deceased and of his representative is significantly different from that of a European dying intestate in the Territory and of his administrator to whom a grant of representation is made under the Probate and Administration Ordinance, and who as an appointee of the Court proceeds to distribute the deceased’s estate in accordance with a set of rules little changed since the time of the Statute of Distributions.

I consider now the relevant provisions. Section 4(1) of the Native Administration Ordinance provides:

N2>“4(1)   The Administrator in Council may make regulations affecting the affairs of natives with regard to:

(a)      marriage and divorce;

(b)      the succession to property in case of intestacy;

(c)      the testamentary disposition of property;

(d)      the disposal of the dead;

(e)      the jurisdiction, powers and procedure of Courts for Native Affairs in civil and criminal matters;

(f)      the rights to real and personal property;

(g)      the observance of native customs;

(h)      the cultivation of the soil,

and generally with regard to all matters relating to, or affecting, the good government and well-being of the natives.”

Regulations were subsequently made dealing with a number of these subject matters. Regulations 65 to 68 relate to marriage and divorce, regs. 70 to 75 relate to succession of property, regs. 76 to 79 relate to testamentary dispositions of property, and reg. 102 relates to disposal of the dead. The relevant Regulations here are 70 to 75 inclusive, which provide:

N2>“70.    When a native dies intestate, leaving property, such property shall descend to those persons who in accordance with native custom are entitled to it, provided that all debts owing by him shall first be paid out of such of it as does not consist of land or water or rights accruing from the land or water. For the purpose of paying the debts the District Officer of the district in which the native dies, or in which the property is, may sell or barter the whole or such portion of such property as is necessary for the payment of the debts.

N2>71.     When a native dies intestate in a district other than that in which his home is, the District Officer of the district in which he died shall realize his assets, and, after payment of all local debts, send the balance to the District Officer of the district in which the native’s home is, and such last-mentioned District Officer shall give it to the person or persons entitled to it.

N2>72.     If after the expiration of six years from the death of a native any moneys remain to the credit of the estate of such native, and no person has apparently a right to such moneys, they shall be paid to the Treasurer of the Territory for the public use of the Territory.

N2>73.     A District Officer, before distributing the estate of a deceased native, shall deduct therefrom all expenses properly incurred by him in dealing with such estate.

N2>74.     If any dispute or doubt arises as to the person or persons entitled to any estate the matter should be determined by the court after hearing the evidence of the claimants to the property.

N2>75.     As soon as possible after the 31st Day of December and the 30th day of June in each year every District Officer shall send to the Treasurer, Commissioner of Native Affairs, and Government Secretary a half-yearly report upon the estates that he has been administering. Such reports may be in the following form:

Name of Deceased

Date of Death

Moneys Collected

Values realized on effects (other than moneys)

Debts paid and to Whom

Expenses Paid and to Whom

Balance of Moneys Collected and Effects Sold and how disposed of

Mr. McKinnon, for the Public Curator, agreed that full effect must be given to s. 4(7) of the Probate and Administration Ordinance, but he sought to show by an examination of the Regulations that, except for the first part of reg. 70, the Regulations, and in particular those conferring certain powers and obligations on a district officer in respect to an intestate estate do not apply to a case such as the present where the deceased dies leaving property only in his own district. This argument apparently assumes that no order in favour of the Public Curator can be made in a case where the Regulations apply and for that reason it was argued that regs. 71, 72, 73 and 75 applied not to all intestacies but only to those where the deceased died intestate in a district other than that in which his home is.

I do not agree with this construction nor do I think that the assumption referred to is correct. In my view regs. 70 to 75, apart from preserving the rights of those persons entitled by custom, provide a simple and informal method of winding-up the estate of a native dying intestate, but the procedure laid down is quite informal and is designed to operate where no formal order of representation is made. There are many cases where estates are so wound up and it is to this situation that the Regulations are directed. But it does not necessarily follow that no order of any kind can be made under the Probate and Administration Ordinance.

Mr. Lalor, who appeared as amicus curiae, suggested that the making of an order to administer in favour of the Public Curator would require the Public Curator to disregard the customary law of succession preserved by reg. 70 and to distribute to beneficiaries identified by the provisions of the Succession Act, and that therefore to preserve the effect of s. 4(7) of the Probate and Administration Ordinance no order could be made in favour of the Public Curator. But I find myself unable to accept this argument. The customary right of succession preserved by reg. 70 prevails over the provisions of the Succession Act by virtue of s. 4(7) of the Probate and Administration Ordinance and the persons so entitled to succeed to the deceased’s property as beneficiaries are so entitled whether any formal order to administer the estate were made or not.

It could be argued that reg. 70 relating to “succession”, when it refers to property descending to those entitled, is referring only to the interest passing to the ultimate beneficiaries and that the Regulation therefore has nothing to say about the position of the customary representative. After consideration, however, I have rejected this view. The word “succession” in its context seems to me wide enough to cover a devolution of property to a person with the rights and obligations which Kondo now has and it is significant that reg. 70 provides that the property shall “descend” to the persons specified, an expression apt to describe an immediate taking by inheritance; that is, as heir of the deceased. In other words I construe reg. 70 as saying not only that native custom shall determine the ultimate beneficiaries but also that where native custom provides in addition for the property in certain assets held by deceased to pass on his death to another who has administrative powers and obligations then the property in these assets shall so pass subject to and by virtue of the Regulations.

This passing of property, in the present instance to Kondo, is as I have said subject to the Regulations, and they confer certain powers and obligations on the district officer. He could, for instance, sell or barter such part of the property (not being land or water or rights therein) as is necessary to pay the deceased’s debts. If the deceased dies in a district other than that in which his home is the district officer in the “foreign” district is obliged to realize all the deceased’s assets in that district and after payment of the debts due there to send the balance to the district officer of the district in which the deceased’s home was. Further, a district officer is required to send half-yearly reports in the specified form on “the estates that he has been administering”, and any dispute or doubt as to the persons entitled are to be determined by “the court”, which is not the Supreme Court.

The Regulations provide a simple and informal procedure which ensures some supervision and the protection of creditors, but this does not mean that they are necessarily intended to constitute a complete code nor that they apply to the exclusion of all provisions of the Probate and Administration Ordinance. Nothing is said, for instance, of the property which consists of “land or water or rights accruing from land or water” nor of the assets which remain unsold after debts have been paid. I note also that the form of return to be used by the district officer refers to moneys collected, effects sold and debts and expenses paid and the disposal of any balance. It is significant that the district officer is not required to account for property, for instance, which consists of land or water or rights therein nor for the unsold assets. These will in many cases constitute the bulk of the estate and are administered in accordance with customary law by the customary representative.

It is not necessary to decide whether on the present facts the property in some of the assets is held by the district officer or whether the property in all assets is held by Kondo subject to a power of sale exercisable by the district officer for the purpose of paying debts. It is sufficient to say that s. 4(7) of the Probate and Administration Ordinance requires that no order shall be made under that Ordinance which would “affect” the provisions of the Regulations in their application to the particular case under consideration.

It is not difficult to envisage circumstances in which an order to administer would be proper and even highly necessary. Assume as an example that a native dies leaving considerable assets and having no debts. Assume also that by the custom of his people his assets can be dealt with and distributed only by a representative named by the deceased before death and that for some reason no such nomination was made.

In such an event the ultimate beneficiaries might be clearly identified but no person would be entitled by custom to deal with and distribute the assets. I cannot at present see any reason why this Court should not then intervene to ensure the protection and preservation of the property and its distribution to those entitled, and such a result could be achieved by a special order made under s. 90 of the Ordinance.

Here it appears that the deceased’s property is now held by the customary representative and will “descend” to those persons who in accordance with native custom are entitled to it. In addition the Regulations safeguard the position of creditors in the way in which I have indicated. Any order under s. 90 which gave to the Public Curator powers of management and distribution now held by the customary representative or which places on the Public Curator the obligation to ensure payment of debts which is cast by the Regulations on the district officer would, in my view, “affect” the provisions of the Regulations and therefore cannot be made.

But there may well be circumstances in which special orders, for instance to assist the preservation or recovery of property, would be made, but, for myself, once it is shown that the Regulations apply and that, as here, a customary representative is in possession of the assets, I would hesitate to make any order except with the consent or at least the knowledge of the customary representative and his advisers.

For these reasons the present petition is refused.

I have considered the possibility that since some special order may well be necessary in order to realize some of the assets in this estate this petition should be adjourned, but on reflection I think the proper course is to dismiss it.

The only ground on which the petition is supported is that no application for probate or administration has been made within three months after death. For reasons which I have given this is not a sufficient ground for an order in the face of the evidence before me. If grounds exist for applying for some special order to assist in the administration then a further application showing these grounds should be made.

Petition dismissed.

Solicitor for the petitioner: S. H. Johnson, Crown Solicitor.

R>

[cccxviii]Section 4(7) of the Probate and Administration Ordinance 1951-1960 provides as follows: “4(7) Nothing in this Ordinance shall repeal, alter or effect any of the provisions of the Native Regulation Ordinance 1908-1951 of the Territory of Papua or the Native Administration Ordinance 1921-1951 of the Territory of New Guinea or the Regulations made under those Ordinances.”

[cccxix]Section 90 is as follows: “90(1) The Supreme Court or a Judge may, on the application of the Curator, grant to the Curator an Order to Administer the estate of any deceased person leaving real or personal estate within the jurisdiction in any of the following cases:— (a) Where the deceased leaves no executor, widow, widower, or next-of-kin, resident within the jurisdiction, willing and capable of acting in execution of his will or administration of his estate; (b) Where the executors named renounce probate of the will of the deceased, and all the persons primarily entitled to administration by writing filed with the Registrar decline to apply for administration; (c) Where probate or administration is not applied for within three months after the death of the deceased; (d) Where after the expiration of thirty days from the death, there is no reasonable probability of application being made within that period of three months; (e) Where the estate or any portion thereof is liable to waste, and the executor, widow, widower, or next-of-kin—(i) is absent from the locality of the estate; (ii) is not known; (iii) has not been found; or (iv) requests the Curator in writing to apply for the order; (f) Where the estate, or any portion thereof, is —(i) of a perishable nature; or (ii) in danger of being lost or destroyed; and (g) Where great expense may be incurred by reason of delay. (2) The Supreme Court or a Judge may in any case require the Curator to—(a) give such notices; (b) cite such persons; or (c) produce such evidence, as the Supreme Court or a Judge thinks fit before granting the order applied for, or may make a temporary order for collection and protection only or limited to a portion of the estate or otherwise.”