Michael Totip and Tina Michael v Alexandra Roberts and Others

• Jurisdiction: Papua New Guinea
• Judge: Dowa J
• Judgment Date: 16 January 2024
• Neutral Citation: N10644
• Citation: N10644, 2024-01-16
• Counsel: B. Tomake, for the Plaintiffs,F. Dagina, for the Defendants
• Docket Number: OS NO. 114 OF 2023
• Hearing Date: 17 November 2023,13 October 2023,16 January 2024
• Court: National Court

N10644

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 114 OF 2023

Between:

Michael Totip and Tina Michael

Plaintiffs

v.

Alexandra Roberts

First Defendant

and

Norah Roberts

Second Defendant

and

Monika Kibuna

Third Defendant

Lae: Dowa J

2023: 17^th November 13^th October

2024: 16^th January

LAND LAW — state lease — plaintiff seeking declaratory relief of ownership of state lease under section 32 of the Land Registration Act — — Indefeasibility of title under section 33 of Land Registration Act — Seeking orders for possession — where process involving transfer of deceased estate property by administrator of estate to a third party — onus is on defendants to initiate own proceedings — innocence of third party buying in good faith for value, evidence disclosing no bona fide dispute as to title-unauthorized occupants only entitled to equitable relief of a reasonable period to deliver up possession — Orders granted in favour of the Plaintiffs.

Cases Cited:

Mudge v Secretary for Lands (1985) PNGLR 387

Godowan Investment Ltd v Wambea (2018) N7263

Kimas v Oala (2015) SC1475

Robinson v Airlines Corp (1983) PNGLR 476

Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144

Lae Rental Homes Ltd v Seravo (2003) N2483

Yandu v Waiyu (2005) N2894

Jure Investment v Conlife (2018) N7286

Paga Hill Development Company v Daure Kisu (2014) N5683,

Laka v Nui (2013) SC1223

Evangelical Lutheran Church of PNG v Jack David (2022) N10060.

Counsel:

B. Tomake, for the Plaintiffs

F. Dagina, for the Defendants

Jaku Lawyers: Lawyers for the Plaintiffs

Daniels & Associates: Lawyers for the Defendants

DECISION

16^th January 2024

1. Dowa J: This is a ruling on the Plaintiffs application seeking orders amongst others, for possession of property described as Allotment 27 Section 168, Lae, Morobe Province, registered as State Lease Volume 46, Folio 105.

2. By Originating Summons, the Plaintiffs seek the following orders:

1) A declaration—that the Plaintiffs are the registered proprietors and joint tenants of the property located at Section 168, Allotment 27 in Lae. Morobe Province and the State Lease is contained in Volume 46, Folio 105.

2) An Order that the Defendants and their servants and agents and whosoever in possession of the property located at Section 168, Allotment 27 in Lae, Morobe Province shall deliver vacant possession of the property to the Plaintiffs within 14 days from the date of this order.

3) Leave be granted to the Plaintiffs for a Writ of Possession to be issued should the Defendants and their servants and agents and whosoever in possession of the property located at Section 168, Allotment 27 in Lae, Morobe Province fail to deliver vacant possession of the property to the Plaintiffs within 14 days from the date of this order.

……”

Background facts

3. The Plaintiffs are the registered owners of the property described as Allotment 27 Section 168, Lae Morobe Province under State Lease Volume 46 Folio 105. The Plaintiffs purchased the property from the Public Trustee of Papua New Guinea, the Administrator of the estate of late Peter Derek Roberts, the previous owner of the subject property. The transfer was registered in the names of the Plaintiffs on 6^th June 2022.

4. After the conveyance, the Plaintiffs could not take possession as the Defendants who are occupying the property refused to give up possession. The Defendants, especially the first and second Defendants claim they have a right to remain on the property as they are children of the late Peter Roberts and Balbina Roberts, both now deceased. The property was disposed without their consent as legitimate beneficiaries in the estate of the deceased.

5. As a result, the Plaintiffs instituted the current proceedings. The Defendants have vigorously contested the application.

Evidence

6. The Plaintiffs rely on the following affidavits:

i. Affidavit of Michael Totip filed on 19^th May 2023.

ii. Affidavit of Michael Totip filed 19^th October 2023

iii. Affidavit of Jacob Popuna filed 7^th September 2023

7. The Defendants rely on the following affidavits:

i. Affidavit of Norah Roberts filed 18^th August 2023.

ii. Affidavit of Alendra Roberts filed 18^th August 2023

iii. Affidavit of Alexandra Roberts filed 12^th October 2023

iv. Affidavit of Alexandra Roberts filed 19^th October 2023.

The Plaintiffs Claim

8. Based on the facts sworn in the affidavits filed, this is the summary of the Plaintiffs claim. The Plaintiff's submit they are the registered proprietors of the property, Allotment 27, Section 168, Lae. They purchased the property from the Public Trustee of Papua New Guinea, the Administrator of the estate of late Peter Derek Roberts, deceased, for the purchase price of K 500,000.00. The conveyance was settled on 29^th April 2022 and the Transfer of title was registered on 6^th June 2022. After settling the purchase price, the Plaintiffs could not enter and occupy the property because the Defendants refused to give up possession of the property. The Plaintiffs submit they have paid for the property in good faith more than a year ago and are being unnecessarily deprived of immediate possession of the property.

9. The Plaintiffs' claim is supported by the evidence from Jacob Popuna, the Public Trustee of Papua New Guinea. He deposes he is the Administrator of the estate of late Peter Roberts by virtue of Letters of Administration granted to him in proceedings WPA No 45 of 2012. Late Peter Roberts died intestate on 20^th September 2000. He was survived by his wife, Balbina Roberts, who also passed away on 13^th January 2018. According to their investigations, the deceased Peter Roberts had no biological children. The deceased wife Balbina Roberts had a biological son, Ken Lukas Poga, from a previous relation, who appeared to be the closest surviving beneficiary. The first and second Defendants were only Forster children. In exercising the powers under the Letters of Administration, the Public Trustee sold the property to the Plaintiffs with the express consent of Ken Lukas Poga, the only surviving beneficiary of the estate.

The Defendants Claim

10. The Defendants oppose the application. The main gist of their evidence and submission is that the first and second Defendants are adopted children of late Peter Roberts and Balbina Roberts, both deceased and the property, the subject of the proceedings was wrongfully sold by the Public Trustee without their consent. They were adopted into the family since birth and have been raised by the Roberts. They have been living on the property since birth spanning over more than 25 years. They have not been consulted and have not given their consent for the sale of the property. They dispute that Ken Lukas Poga is a beneficiary as he was not a family member of the Roberts family even though he was the biological son of Balbina Roberts through a previous illegitimate relation. The property was still in the name of late Peter Roberts and the Public Trustee of PNG was the administrator of the estate of late Peter Roberts and as such the direct beneficiaries were the first and second Defendants and not Ken Lukas Poga.

11. The Defendants submit further that the Public Trustee of PNG unfairly delayed administration and distribution of the estate of late Peter Roberts. The deceased died in September 2000. The Letters of Administration was obtained in May 2013, 13 years later. The Public Trustee failed to distribute the estate of the deceased until 2021. The defendants testify further that Public Trustee failed to advise them of the purchase price, and the distribution of the proceeds of the sale. Much worse, the Defendants were not given any share from the sale of the property.

Issues

12. The issues for consideration are:

i. Whether the Plaintiffs are the proprietors of Allotment 27 Section 168 Lae.

ii. Whether there is a bona fide dispute as to title.

iii. Whether the Plaintiffs are entitled to the reliefs sought.

Consideration of the Issues

(i) Whether the Plaintiffs are the registered proprietors of Allotment 27 Section 168, Lae, Morobe Province.

13. The main issue to determine is whether the Plaintiffs are the owners of property, Allotment 27, Section 168, Lae, Morobe Province. The Plaintiffs have produced, a certificate of title, issued under State Lease, Volume 46 Folio 105 over the subject land, Allotment 27, Section 168, Lae. The Title shows the Plaintiffs as the current registered owners. Section 32 of the Land Registration Act provides that where an instrument of title describes a person as the proprietor of an estate or interest, that person is the registered proprietor of the estate or interest. Section 33 of the Land Registration Act provides that a...