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Talopa v Popuna [2024] PGNC 266; N10934 (21 June 2024)

N10934

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS NO. 354 OF 2023


BETWEEN:
ANNA TALOPA, ADMINISTRATOR OF ESTATE OF JUSTIN L. TALOPA, DECEASED, INTERSTATE
Plaintiff


AND:
JACOB POPUNA
PUBLIC TRUSTEE OF PAPUA NEW GUINEA
Defendant


Waigani: Dingake J
2024: 24th May, 21st June


WILLS PROBATE & ADMINISTRATION - letters of administration- deceased died intestate - orders seeking revocation of letters of administration granted to defendant – letters of administration alleged to be irregular and erroneous – plaintiff also seeks orders declaring letters of administration granted to her by a separate court be declared proper and lawful and to be sealed by Registrar – two competing letters of administration -one issued by Deputy Registrar and another issued by Court – which one is valid – letters of administration issued to defendant by Deputy Registrar declared invalid and of no force and effect – letters of administration issued to Plaintiff proper and lawful – Registrar to seal letters of administration granted to the plaintiff


Cases Cited:
Grace Painale Nari v Public Curator N10421 (WPA N0 52 of 2016);
Sankin v PNG Electricity Commission [2022] PNGLR 432.


Counsel:
Mr. Terry Berem, for the Plaintiff
Mr. J Andrew (In house Lawyer), for the Defendant


DECISION

21st June 2024


  1. DINGAKE J: This is my decision with respect to the Plaintiff’s claim filed with this Court on the 25th of July, 2023, by way of a writ of summons, endorsed with a statement of claim.
  2. The Plaintiff seeks an order that the letters of administration (“LA”) of Justin Talopa, who died intestate, granted to the Defendant on or about the 17th of February 2023, in proceeding entitled, “WPA No. 16 of 2023” be revoked for being erroneous or irregular.
  3. The Plaintiff also seeks another order, that the “LA” granted to her, by this Court, per Dowa J, in proceedings entitled, “WPA No.134 of 2022” be declared proper and lawful and the Registrar be directed to seal the LA forthwith.
  4. The Plaintiff’s claim is supported by six affidavits:
    1. Affidavit on Section 5 Notice of Limen Puri sworn on 28th July 2023 filed on 1st of August, 2023 (Doc No. 2).
    2. Affidavit in Support of Anna Talopa sworn on 4th September 2023 filed on 20th September 2023 (Doc No. 8).
    1. Affidavit in Response of Pastor James Koropa sworn on 31st January 2024 filed on 31st January 2024 ( Doc No. 15).
    1. Additional Affidavit of Joseph Talopa sworn on 1st February 2024 filed on 1st February 2024 (Doc No. 16).
    2. Affidavit of Florance C Parkil sworn on 27th February 2024 filed on 28th February 2024 (Doc No. 21).
    3. Affidavit in Response of Anna Talopa sworn on 11th March 2024 filed on 12th March 2024 (Doc No. 23)
  5. All the above affidavits were admitted as evidence, by consent of the parties, and marked Exhibits “P1” to Exhibits “P6” respectively.
  6. The Plaintiff’s claim is opposed by the Defendant.
  7. In support of his application the Defendant relies on the following affidavits:
    1. Affidavit of Jacob Popuna sworn on 15th December, 2023 and filed on 22 December, 2023 (Doc No. 12).
    2. Affidavit of Cinderella Talopa sworn on 15th December 2023, and filed on 22nd December, 2023 (Doc No. 14).
    1. Affidavit of Jacklyn Talopa sworn on 28th December 2023, and filed on 8th February 2024 (Doc No. 15).
    1. Affidavit of Joseph Talopa sworn on 1st February 2024 filed on 1st February 2024 (Doc No. 18).
    2. Affidavit of Rehana Puluwa sworn on 15th December 2023, and filed on 22nd December, 2023 (Doc No. 13).
    3. Affidavit of Jacob Popuna sworn on 4th March 2024, and filed on 11th March, 2024 (Doc No. 22)
  8. The Defendant’s affidavits were admitted as evidence and marked Exhibit “D 1” to “D5” respectively.
  9. The dispositive facts of this case are largely common cause. The deceased Justin Talopa died intestate on the 4th of October 2021. It is not in dispute that the deceased is survived by his children, namely: Synclaire Talopa (F) DOB: 13th March 2017, Courtney Kimberly Talopa (F) DOB: 12th May 2021, and Justin Talopa Jnr (M) DOB: 2021. There is a dispute as to whether the deceased was married to three women, being Jacklyn Koroba, Florence Parkil and Cinderella Simon. In this matter, nothing of significance turns on this dispute of fact and or law.
  10. The Plaintiff’s evidence establishes that the Plaintiff was appointed by the surviving brothers of the deceased to pursue the matter of the administration of the deceased estate “See Doc No. 8 – Exhibit P2”. The Public Trustee of PNG was duly informed of the Plaintiff’s intention. On the 18th of April 2022 the Plaintiff published the probate notice in the National Newspaper of her intentions to apply for letters of administration.
  11. It is not in dispute that on the 22nd of June 2023 the Plaintiff gave notice of her intention to make a claim against the Defendant, its officers, and employees pursuant to Section 5 of the Claims By and Against the State Act.
  12. It is common cause that on the 9th day of September 2022, the Plaintiff filed National Court proceedings entitled, WPA N0. 134 of 2022 seeking to be granted Letters of Administration of the deceased estate.
  13. It is also common cause that at all material times the Defendant was served with a Statement of Claim (WPA N0 134 of 2022) and the Court Order of the 4th of November 2022 which fixed the hearing of the matter on the 2nd of December 2022. The court being satisfied that the Defendant had been served with court process and the Notice of Hearing proceeded to hear the matter.
  14. On the 3rd of February 2023, this Court per Dowa J, granted the Plaintiff “LA” as prayed, being satisfied that the Plaintiff had met all the requirements to be granted “LA”.
  15. The above notwithstanding, the Defendant on or about the 10th of February 2023, filed proceedings WPA N0 16 of 2023, at the Waigani National Court seeking to be granted “LA” of the deceased estate.
  16. The matter was heard by the Deputy Registrar who granted the “LA” as prayed. This resulted in two “LA’s” with respect to the estate of the deceased.
  17. The issue that has arisen as a result of the common cause facts outlined above, is whether the letters of Administration (“LA”) granted by the Deputy Registrar on or about the 17th of February 2023 were valid and or whether the said letters ought to be set aside and the LA issued to the Plaintiff by this Court as outlined earlier, be confirmed?
  18. The Plaintiff argues, inter alia, that the LA granted to the Defendant in WPA N0. 16 of 2023 was irregular and defective and that the Defendant should have invoked Order 19 Rule 42 of NCR to revoke the grant of LA to the Plaintiff rather than apply to the Registrar for the “LA”.
  19. The Plaintiff also argues that the granting of “LA” to the Defendant was not accompanied by reasons, contrary to the authority of Sankin v PNG Electricity Commission 2022 PNGLR 432.
  20. The Thrust of the Defendant case is that the Office of the Public Trustee is best suited to administer the estate of the deceased because of its neutrality. The Defendant relied for this proposition on the case of Grace Painale Nari v Public Curator N10421 (WPA N0 52 of 2016).
  21. The Defendant argued that it is in the interest of the deceased wives, namely, Jacklyn Talopa, Cinderella Talopa and their children that the Defendant be granted “LA”.
  22. The Defendant also argued that the Plaintiff as the wife of the deceased eldest brother, is a third party and not suited to be granted “LA”. According to the Defendant, the Plaintiff as a third party seems to be interested only in advancing the interest of the siblings of the deceased.
  23. The Defendant argues that after he was approached by the Plaintiff for consent pursuant to Section 9 (2) of the Public Curator (Amendment) Act 2020, it took the view that the Plaintiff would not be an impartial administrator of the deceased estate following a complaint from the wives.
  24. In his Ruling Dowa J, concluded that he was satisfied that the Applicant (Plaintiff) met the minimum requirements for the grant of letters of Administration of the estate of the deceased, late Justin Talopa, and granted LA to the Applicant accordingly. There is in my mind no basis to successfully challenge this decision based on the grounds the Defendant advanced.
  25. The Plaintiff also pleads that the Plaintiff and the surviving family members and beneficiaries have been denied a fair representation in the administration of the estate. The Plaintiff says that they suffered physical and emotional loss and stress as a result of the malafide conduct of the Defendant and his officers and employees and are entitled to general damages. This particular point was hardly argued at the hearing of this matter. Besides on a consideration of the evidence I am not satisfied that the claim for general damages has been proven on a balance of probabilities. This claim is accordingly denied.

26. In the result, the Court orders that:


  1. The Letters of Administration issued by the Deputy Registrar to the Defendant in WPA N0.16 of 2023 on the 17th of February 2023, are declared invalid and of no force and effect and accordingly quashed.
  2. A Declaration that the Letters of Administration granted to the Plaintiff in WPA N0 134 of 2022 on the 3rd of February 2023, is proper, lawful and the Registrar is directed to seal the Letters of Administration granted to the Plaintiff.
  1. The Defendant shall pay the Plaintiff costs of this suit and such costs to be agreed or taxed.

_______________________________________________________________
Berem Lawyer: Lawyers for the Plaintiff
Public Curator (In-house Lawyer): Lawyers for Defendant

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