Lane Kult Pill Onga v Theresia Bob and Others

• Jurisdiction: Papua New Guinea
• Judge: Shepherd J
• Judgment Date: 07 December 2022
• Neutral Citation: N10072
• Citation: N10072, 2022-12-07
• Counsel: Mr Christopher Kup-Ogut, for the Plaintiff,Mr Andrew Kuria, for the Defendants
• Hearing Date: 12 October 2022,07 December 2022,12 October 2020
• Docket Number: WS NO. 886 OF 2015
• Court: National Court

N10072

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 886 OF 2015

Between

Lane Kult Pill Onga

Plaintiff

v.

Theresia Bob

First Defendant

and

Alua Investments Limited

Second Defendant

Waigani: Shepherd J

2020: 12^th October

2022: 7^th December

PRACTICE & PROCEDURE — claim filed by original plaintiff alleging fraud by defendants in acquisition of title to land and alleging defendants hold title to land in trust for plaintiff — original plaintiff died after commencement of suit — son of original plaintiff continued the proceeding initially for benefit of himself and later for benefit of himself and other next of kin of deceased original plaintiff — challenge by defendants to standing of replacement plaintiff and to representative capacity of replacement plaintiff — requirements for standing to continue proceeding for beneficiaries of deceased intestate estate — substituted plaintiff must be personal representative of deceased and must obtain grant of letters of administration from National Court — replacement plaintiff failed to obtain grant of letters of administration — requirements for representative action — replacement plaintiff failed to produce proper evidence of authorities from co-plaintiffs for him to represent them — no evidence of appointment of lawyer to act for co-plaintiffs — proceeding dismissed.

Cases Cited:

Angula v Barrick (PNG) Ltd (2014) N5750

Kambao v Yakka (2016) N6514

Laki v Alaluku [2000] PNGLR 392

Mamkuni v Ly Cuong-Long and Jant Ltd (2011) N4674

Medaing v Ramu Nico Management (MCC) Ltd (2010) N4158

Malewo v Faulkner (2009) SC960

Mali v Independent State of Papua New Guinea [2002] PNGLR 548

Owa v Popuna (2015) N6111

Public Curator v Bank of South Pacific Limited (2006) SC832

Public Curator of PNG v Konze Kara (2014) SC1420

Philip v Tiliyago (2019) SC1783

Re Estate of Joseph Kubak Demas (2017) N7044

Singut v Kinamun (2003) N2499

Toligai v Chan (2012) N4842

Taila v Silas (2018) N7334

Wari v Dekenai Construction Ltd (2017) N7649

Legislation:

Land Registration Act 1981: ss. 2(1), 2(2), 171.

National Court Rules: Order 5 Rules 10(1), 11(1)(d), 13(1), 16, 19; Order 19 Rules 24, 25(1)(b)(vii), 25(1)(c), 25(3), 32(4); Forms 78 and 80 of Schedule 1.

Public Curator Act Ch. 81: ss.4(1), 10, 14, 16.

Trustee Companies Act Ch. 288: s.7.

Wills, Probate and Administration Act Ch. 291: ss. 1, 44, 45(2), 66, 81(2), 84.

Wrongs (Miscellaneous Provisions) Act Ch. 297: ss.34, 38.

Counsel

Mr Christopher Kup-Ogut, for the Plaintiff

Mr Andrew Kuria, for the Defendants

Kup & Co Lawyers: Lawyers for the Plaintiff

Kuria Lawyers: Lawyers for the Defendants

DECISION

7^th December, 2022

1. Shepherd J: This case concerns disputed title to a residential property at Boroko, National Capital District. The lead plaintiff seeks declarations from the Court that title to the property is held by the second defendant on trust for the lead plaintiff and other beneficiaries of the intestate estate of the late Gabriel Pill Onga. It is alleged that title to the property was allegedly acquired by the second defendant by fraudulent means and that title is held by the second defendant on trust for certain beneficiaries of the estate. The lead plaintiff seeks, among others, a consequential order that title to the property be transferred to him and other beneficiaries of the estate.

BACKGROUND

2. The property in question is situated at Allotment 123 Section 42, Laurabada Avenue, Boroko, National Capital District being all the land described in State Residence Lease Volume 53 Folio 203 together with a substantial residence and other improvements constructed thereon (the Property).

3. When this proceeding was commenced on 3 July 2015 the first plaintiff was Gabriel Pill Onga, now the late Gabriel Pill Onga (the deceased), who passed away on 27 March 2016.

4. At commencement of suit in July 2015, the second plaintiff was cited in this proceeding as Lane Kult Pill Onga (Lane), the eldest son of the deceased. It seems that at that stage Lane had no identifiable cause of action against the defendants and that the only reason he was joined as a co-plaintiff in this proceeding at its outset was because the initial statement of claim pleaded that as he was the eldest son of his father who was then still alive, he was the beneficiary to “all properties owned by the First Plaintiff”.¹

5. Theresia Bob, the first defendant (Theresia), is the niece of the deceased. She is an accountant by profession. Alua Investments Limited, the second defendant (Alua), is a company owned by the first defendant which was incorporated on 18 May 2009 and which is trading under the name or style of TB Accountants. Theresia is the sole shareholder and sole director of Alua.

6. Title to the Property is currently registered in the name of Alua. The Property is subject to mortgage no. S.70153 to Australia and New Zealand Banking Group (PNG) Ltd (ANZ Bank) which was registered against the subject State Lease Volume 53 Folio 203 on 22 May 2015.

7. The Property was initially owned by the National Housing Corporation (NHC) and was leased by the NHC to the deceased in 1986. The deceased, several of his four wives and numerous of their children, including the current lead plaintiff, occupied the Property as their family home for many years, the deceased paying rent to the NHC.

8. Theresia was working in New Zealand from 2006 to 2009. In early 2009 the deceased was in ill health. He urged Theresia to return to Papua New Guinea and stay with him and his other family members at the Property and to assist him to purchase the Property from the NHC because the deceased had insufficient savings of his own to enable him to pay the purchase price of K357,250 and incidental expenses required by the NHC. The deceased was concerned that if he did not purchase the Property, the NHC would sell it to some other purchaser and he and various of his family members would be evicted from what by then was considered to be the family home.

9. Theresia was reluctant to return to Papua New Guinea at first but she relented because of family pressure. Theresia and her children returned to Port Moresby and took up residence at the Property with the deceased and other family members in April 2009.

10. By letter dated 27 May 2009 the NHC offered to sell the Property to the deceased under the NHC's Cash Sale Scheme for the sum of K357,250. with a 10% deposit of K35,725 and legal and valuation fees totalling K1,160, a total of K36,885, to be paid within 14 days.

11. According to Theresia, it was agreed by the deceased in or about June 2009 that Theresia would fund the purchase on the basis that the NHC would transfer title to the Property to the deceased, who would then in turn simultaneously transfer title to Theresia, this dual transaction to be funded by a mortgage by Theresia over the Property obtained from the ANZ Bank and paid on settlement by the ANZ Bank via Theresia to the NHC. This arrangement was subsequently varied by agreement between the deceased and Theresia such that the deceased would transfer title to the Property to Alua rather than to Theresia. This was because the ANZ Bank required Alua to be the mortgagee rather than Theresia personally and therefore Alua had to have title to the Property to be able to lawfully mortgage it to the ANZ Bank.

12. During July and August 2009 Theresia negotiated with the NHC in an endeavour to try to obtain a lower purchase price for the property for the deceased but the NHC would not budge. So on 9 September 2009 Lane's mother Joanne Noma Pill, the deceased's first wife who was then living in Australia, apparently borrowed the sum of K36,885 from friends which was then paid to the NHC for the 10% deposit for the Property and associated legal and valuation fees to secure the purchase. A week later Lane and his mother Joanne demanded that Theresia refund to Joanne the whole of that deposit, of which the sum of K31,885 has subsequently been paid by Alua to Lane and his mother, leaving a balance of K5,000 which is still outstanding but which has not been paid by Alua because of the complications which then ensued and which gave rise to this proceeding.

13. Following payment of the deposit and related fees totalling K36,885 on 9 September 2009, almost three years later, as a result of Theresia's negotiations, the NHC by letter dated 20 June 2012 to the deceased agreed to allow a deduction of K39,481 from the sale price of K357,250 for the Property on account of past rent already paid by the deceased, which when credited against the sale price along with a further credit for the deposit and fees of K36,885 already paid left a balance of K280,883 required to be paid to settle NHC's sale of the Property to the deceased and the deceased's simultaneous onward transfer of title to the Property to Alua.

14. By letter dated 10 October 2012 the deceased accepted the NHC's revised offer to settle his purchase of the Property on payment of a net balance of K280,883.

15. Nandape Lawyers were engaged by Theresia to approve the NHC's transfer instrument and contract for sale of the Property to the deceased for the total sum of K357,250. Nandape Lawyers were also instructed to prepare a separate transfer instrument and contract for sale between the deceased as transferor and initially Theresia, but this conveyancing documentation was later changed to a transfer instrument and contract for sale between the deceased and Alua because, as already noted, the ANZ Bank insisted that Alua be the mortgagee, not Theresia, which meant that Alu had to obtain title to the Property in order to secure funding. The deceased signed the contract for sale between the NHC and himself on 26 January 2013. The onward contract for sale between himself and Alua was signed by the deceased several months later on 15 May 2013.

16. Ad valorem stamp duty of K17,872 was assessed on the two contracts for sale and this was paid by Alua to the Stamp Duties...