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Christopher v Tavol [2011] PGNC 7; N4193 (17 January 2011)

N4193

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 487 OF 2009

TIMOTHY CHRISTOPHER
Plaintiff

v

JANET TAVOL
Defendant

Kimbe: Cannings J
2010: 29 January, 9 April, 18 June,
2011: 17 January

JUDGMENT

LAND – State Lease – registered proprietor died – dispute between person claiming to be adoptive son of prior deceased registered proprietor and widow of deceased registered proprietor – principle of indefeasibility of title.

The registered proprietor of a State Lease, who had no biological children, died intestate in 2005. In 2007 the lease was transferred to the deceased's cousin, who had lived with the deceased on the land for more than 30 years. The deceased's cousin later also died. The plaintiff, claiming to be the original deceased registered proprietor's adopted son, then commenced proceedings, saying that he was his adopted father's next of kin and that the land should be transmitted to him. The defendant, the second deceased's widow, says that she is entitled to the land.

Held:

(1) Under the principle of indefeasibility of title enshrined in Section 33 of the Land Registration Act, the registered proprietor of a State Lease holds it "absolutely free of all encumbrances" subject to limited exceptions, including in the case of fraud.

(2) The defendant's husband obtained indefeasible title when the land was transferred to him in 2007, and to disturb that title the plaintiff had to show that it was obtained by fraud.

(3) There was no evidence of actual fraud or constructive fraud, so the defendant's husband's title remained sound.

(4) When the defendant's husband died, also intestate, his next of kin, ie his wife, became entitled to possession of the disputed land.

(5) Accordingly it was declared that the defendant has the right to remain on the land, and that the plaintiff has no interest in the land.

Cases cited

The following cases are cited in the judgment:

Elizabeth Kanari v Augustine Wiakar (2009) N3589
Mudge v Secretary for Lands [1985] PNGLR 387
Emas Estate Development Pty Ltd v John Mea & Ors [1993] PNGLR 215

ORIGINATING SUMMONS

This was an originating summons in which the plaintiff sought declarations and orders to enforce his interest in land.

Counsel

G Linge, for the plaintiff
D Kari & R Beli, for the defendant

17 January, 2011

1. CANNINGS J: This case involves a dispute over ownership and possession of a block of land in the Tamba oil palm settlement near Kimbe. The block is formally described as Portion 435, Milinch Megigi, Fourmil Talasea. It is 7.03 hectares in area. The land is the subject of a State Lease, an agricultural lease, Volume 40, Folio 123.

2. The original registered proprietor of the land was a Tolai man, Christopher Topotol Tomarku. He was granted the State Lease on 24 April 1968. He and his wife, Yatotogo Tomarku, lived on the land and developed it as an oil palm block until his death in 2005. Mr Tomarku died intestate, ie without leaving a will. He had no biological children. Mrs Tomarku is also deceased.

3. On 11 October 2007 the State Lease was transferred to Mr Tomarku's cousin, Anton Tavol, whose wife and children had lived on the block with Mr Tomarku. On 16 March 2009 Mr Tavol died, also intestate.

4. The dispute over the block is between two people:

• The plaintiff, Timothy Christopher, says he is Mr Tomarku's only adopted and surviving son. He says that Mr Tomarku adopted him at Kabakada village, East New Britain, and brought him to West New Britain in 1968. He says that from 1968 to 1971 he helped Mr Tomarku cultivate the block and plant oil palm. In 1971 he secured a job with the Department of Works and lived at Section 10, Kimbe, and thereafter visited Mr Tomarku regularly. He says that he is Mr Tomarku's next of kin and is entitled to the block.
  
• The defendant, Janet Tavol, is Mr Tavol's widow. She agrees that Mr Tomarku had no biological children but denies that the plaintiff is Mr Tomarku's adopted son. She says that Mr Tomarku brought his cousin, Mr Tavol, on to the block in April 1970, when Mr Tavol was 15 years old, and that Mr Tavol remained living and working on the block until his death in 2009, a period of 39 years, and that during that period he married her and they brought up their children on the block, all the while with the consent and support of Mr Tomarku. She says that she and her children have a right to remain on the block and that the plaintiff's claims should be refused as he is a 'false pretender'.
  

ISSUES

5. This is a case in which I feel that counsel for both parties have skirted around the most important issue, which is the effect of the transfer of the lease on 11 October 2007 to Mr Tavol. The existence and effect of the transfer needs to be clarified. The relationships between the parties and the two deceased men will also be determined before a final decision is made as to how the dispute should be resolved. The issues are:

1. What is the status and effect of the 2007 transfer to Mr Tavol?
   
2. What are the relationships between the plaintiff and the two deceased?
   
3. What orders should the court make?
   

1 WHAT IS THE STATUS AND EFFECT OF THE 2007 TRANSFER TO MR TAVOL?

6. The defendant has adduced evidence in the form of an 'owner's copy' of the State Lease that the lease was transferred to Anton Tavol on 11 October 2007. The plaintiff's counsel, Mr Linge, does not acknowledge in his submission that any transfer took place, preferring instead to rely on a title search undertaken in 2008 which revealed that Mr Tomarku was still the registered proprietor. No reason has been provided, however, for disregarding the defendant's evidence and I consider that it should prevail over the general evidence of a title search. I find as a fact that the lease was transferred to Anton Tavol on 11 October 2007, and that there has been no subsequent transfer. The registered proprietor is therefore Anton Tavol (deceased).

7. Under the principle of indefeasibility of title enshrined in Section 33 of the Land Registration Act, Mr Tavol held the title to the land from the date of transfer "absolutely free of all encumbrances" subject to limited exceptions, including in the case of fraud (Mudge v Secretary for Lands [1985] PNGLR 387). To disturb that title, and to give himself some chance of establishing an interest in the land, the plaintiff would have to show that Mr Tavol obtained his interest in the land by fraud. This can be done by proving actual fraud or constructive fraud (Emas Estate Development Pty Ltd v John Mea & Ors [1993] PNGLR 215, Elizabeth Kanari v Augustine Wiakar (2009) N3589). Here, the plaintiff has proven neither, so Mr Tavol's title remains sound.

2 WHAT ARE THE RELATIONSHIPS BETWEEN THE PLAINTIFF AND THE TWO DECEASED?

8. As to the relationship between the plaintiff and Mr Tomarku, Mr Linge relied on Section 53 (adoptions by custom) of the Adoption of Children Act Chapter 275, to submit that the plaintiff is Mr Tomarku's adoptive child. Section 53 states:

(1) Notwithstanding any other law but subject to this section, where a child is or has at any time been in the custody of and is being or has been brought up, maintained and educated by any person or by two spouses jointly as his, her or their own child under any adoption in accordance with custom, then for the purposes of any law the child shall be deemed to have been adopted by that person or by those spouses jointly, as the case may be.

(2) An adoption to which Subsection (1) applies takes effect in accordance with the custom that is applicable and is subject to any provisions of that custom as to limitations and conditions, including limitations and conditions as to the period of the adoption, rights of access and return and property rights or obligations.

9. In light of the requirements of Section 53, I consider that it was necessary for the plaintiff to prove on the balance of probabilities that he was in the custody of Mr Tomarku as a child or that he was brought up, maintained and educated by Mr Tomarku and that this was done in accordance with custom. The only evidence he has adduced, however, is affidavits by himself, in which he deposes that he was adopted in accordance with custom by Mr Tomarku (who came from Vunavavar village) and his wife at Kabakada village, East New Britain, that Mr Tomarku came to West New Britain in early 1968 and that he followed him in September 1968, that he helped Mr Tomarku cultivate the block at Tamba from 1968 to 1971 and visited him regularly thereafter.

10. Against that evidence are affidavits by the defendant, who deposes that the plaintiff is a "stranger" to Mr Tomarku, and by Polin Mandau, who deposes that she is Mr Tomarku's biological sister and that the plaintiff did not help Mr Tomarku cultivate the block.

11. As the plaintiff's asserted status as adoptive child is challenged and there is no independent evidence to support the plaintiff's assertion, the plaintiff has not discharged the onus of proof. He has fallen well short. He does not say how old he was when he came to live with Mr Tomarku in West New Britain. He concedes that he did not live with Mr Tomarku after 1971 and that all that happened after then, until Mr Tomarku died in 2005 (a period of 34 years), is that he 'visited him regularly'. He does not say how often he visited. Was it every week, month, year? Every three years? He does not mention providing any assistance to Mr Tomarku on the block. This evidence is very vague and hardly supports the contention that a father-son relationship existed. I find as a fact that the plaintiff is not, and was not at any material time, Mr Tomarku's son.

12. As to the relationship between Mr Tavol and Mr Tomarku, the defendant deposes that they were first cousins. This evidence is supported by Polin Mandau's evidence and not directly challenged by the plaintiff, who deposes that he does not know whether they were cousins "because Anton Tavol was from Vunavavar village and not Kabakada village where I was adopted by late Tomarku". I find as a fact that Mr Tavol was Mr Tomarku's first cousin.

3 WHAT ORDERS SHOULD THE COURT MAKE?

13. As I indicated earlier, the most important issue concerns the transfer of the lease to Mr Tavol. As the transfer is valid and effective, that determines the orders that the court should make. It means that the plaintiff, who has no actual relationship with Mr Tavol, has no interest in the land. That would have been the case even if the plaintiff had proven that he was Mr Tomarku's son, as no good reason was provided to the court to disturb Mr Tavol's title; and that is why I consider that the most important issue in the case was not grappled with effectively by counsel. It follows that Mr Tavol's next of kin – his widow, the defendant – should remain on the block with her family until the question of transmission by custom is determined in accordance with the Land Registration Act. In that regard, the defendant would appear to be in a strong position to claim that the land should be transmitted to her or one of her children.

14. Costs normally 'follow the event', ie the party that loses a case has to pay the costs of the winning party. But this is always a matter of discretion. In view of the nature of this dispute and the circumstances of the case, I will order that the parties bear their own costs.

ORDERS

(1) The registered proprietor of Portion 435, Milinch Megigi, Fourmil Talasea, State Lease, Volume 40, Folio 123 – "the land" – is Anton Tavol (deceased).

(2) The defendant, Janet Tavol, being the widow of the deceased registered proprietor, is entitled to remain in possession of the land until the question of transmission by custom is determined in accordance with the Land Registration Act.

(3) The plaintiff, Timothy Christopher, has no right, title or interest in the land and shall not enter the land or interfere in any way with the defendant or her family's peaceful enjoyment of it.

(4) The Oil Palm Industry Corporation and New Britain Palm Oil Ltd shall take all such steps as are necessary to give effect to these declarations and orders.

(5) The parties will bear their own costs.

(6) Time for entry of this order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Judgment accordingly.
____________________________

Linge & Associates: Lawyers for the Plaintiff
Public Solicitor: Lawyer for the Defendant