DC893

PAPUA NEW GUINEA
[In the District Court of Madang]
Civil Jurisdiction

Case Number DCC 180 of 2008

BETWEEN:

ALEX WERNER
(Complainant)

AND:

RUTH DON & 6 Ors.
(Defendants)

MADANG: ERNEST WILMOT (DCM)
2008: 22 August

CASES CITED: RE: APPLICATION OF HUTCHINSON [1984] PNGLR 71
LEGISLATION CITED: Wills, Probate and Administration Act 1966

RULING

WILMOT (DCM): This is a ruling on an application filed by the Applicant/Complainant on 4 August seeking order to evict the Defendant from a property known as Section 26, Allotment 20 Bougainville Drive, Madang.

Supporting the application are affidavits sworn by Alex Werner and Brigitta Benjamin filed respectively on the 25 July 2008 and 30 July 2008 and further supported by the affidavit of Jim Wala filed on 11 July 2008.

FACTS

The Complainant makes claim of the said property by way of a will that was declared on a statutory declaration dated 20 September 1993. By the said will the complainant comes by way of the Summary Ejectment Act under section 6 of that Act.

The property in question is currently being occupied by the defendants, who reside on the said property without the consent or Authority of Mr. A. Werner.

FACTS IN DISPUTE

Ruth Don disputes the fact that Mr. A. Werner is the true owner of the property in question. In support she produces a Will also signed by the deceased Jan Werner and is supported or witnesses by my brother Mr. Sareng.

Further facts that are in dispute Mrs. Don claims she has always looked after Mr. Werner up till his death. That the claim put by Mr. A. Werner in that his family looked after Mr. J. Werner till his death is an out right lie.

At trial Counsels for each parties put their arguments to the court.

Mr. Lai submitted that his client was the rightful owner. He submitted that the Public Curator had recognizes Mr. A. Werner as the beneficiary to the property. And as such he has been appointed caretaker by the Public Curators. This claim sees to be substantiated by the affidavit of Jim Wala.

He further submits that the Will that the defendant on is falsecifide document and the Court should be cautious of considering the document.

He submitted that with the recognition given by the Public Curators Office his client pursuant to s. 6 of the Summary Ejectment Act, as the legal custodian of the property is well within his rights to evict the defendants by way of act.

Mr. Tabai for the defendants argued that the will Mr. A. Werner appears to have been falsecified also. There were two dates shown on the document. That on the face of it cannot be relied on by the Court. He puts it that it appears to be a document that has been doctored to defraud his client.

He submits that the documents were sighed and witnessed by Mr. Sareng and that the Late Jan Werner signed it in his worships presence.

And he states that the Will of September 1993 was tainted ambiguous and unreliable. Therefore the court should not place weight on that Will.

He further contends that the Court on the other hand can look at the two Will and note his clients Will in sighted after that September 1993 Will therefore his clients Will would super cede that of Mr. A. Werner.

I disagree with both counsels. A Will may be in place and may nominate a beneficiary but in order to exercise your right over what has been left in a Will the beneficiary must apply for administration. And until such time where this happens the thing in question would be vested in the Public Curators Office. s. 44 of the Wills Probate and Administration clearly states this. 

This contention is supported by the case of RE: Application of Hutchinson [1984] PNGLR 71where his honour noted in obita Dictum at page 72. Both may have perfectly legal Wills and can claim by that Will. However the property or I should say the legal right over the property will not be recognized until such time as administration or probate is applied for in the National Court.

I note that the orders sought in this application are the same as that sought in the substantive matter. I find both the application and the substantive matter misconceived.

In saying this I also find that the defendants also do not have good title to the property.

Both parties have not applied for administration of their Wills thus both parties claim to the property is defective.

In light of my discussions above I make the following orders:-

The Application and the substantive matter are misconceived and are dismissed, and the title of the property be vested in the Public Curators until such time the parties apply for administration.

Cost be borne by each party.

___________________

Mr. J. Lai for the Complainant.
Mr. B. Tabai for the Defendants.