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Totip v Roberts [2024] PGNC 4; N10644 (16 January 2024)

N10644

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 114 OF 2023

BETWEEN:
MICHAEL TOTIP AND TINA MICHAEL
Plaintiffs

AND
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

DECISION

16th 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:
   
   1. Affidavit of Michael Totip filed on 19^th May 2023.
   2. Affidavit of Michael Totip filed 19^th October 2023
   3. Affidavit of Jacob Popuna filed 7^th September 2023
      
7. The Defendants rely on the following affidavits:
   
   1. Affidavit of Norah Roberts filed 18^th August 2023.
   2. Affidavit of Alendra Roberts filed 18^th August 2023
   3. Affidavit of Alexandra Roberts filed 12^th October 2023
   4. 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:
    
    1. Whether the Plaintiffs are the proprietors of Allotment 27 Section 168 Lae.
    2. Whether there is a bona fide dispute as to title.
    3. 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 registered proprietor of an estate or interest holds it absolutely free from all encumbrances except for fraud and other exceptions set out in (1)(a) to (f). (Mudge -v- Secretary for Lands (1985) PNG LR 387)
    

(ii) Whether there is a bona fide dispute as to Title

14. The defendants argue that there is a bona fide dispute as to the title of the property currently held by the Plaintiffs. The sale and transfer of title orchestrated by the Public Trustee of PNG to the Plaintiffs was improper and unlawful as the rightful beneficiaries of the estate have not consented to the sale of the property to the Plaintiffs and have not benefited from the sale proceeds.
    
15. Clearly, the Defendants are raising serious allegations disputing the Plaintiffs title on grounds of illegality and impropriety on the part of the Public Trustee in effecting the sale and transfer. Without making any finding of fact and expressing any binding opinion on the matter since the Public Trustee of Papua New Guinea is not a party in the proceedings, it is nevertheless arguable that the Defendants do have a genuine complaint. It is arguable that they are the legitimate beneficiaries to the estate of late Peter Roberts as opposed to Ken Lukas Poga considering that the Public Trustee was dealing with the estate of late Peter Roberts and not Balbina Roberts. It is arguable that the Defendants should have been consulted in the disposal of the estate property and should have benefitted from the sale proceeds. It is arguable that the Public Trustee of PNG failed in his fiduciary and statutory duty to administer the estate of late Peter Derek Roberts lawfully and properly resulting in loss and injustice to the Defendants. It is arguable that the circumstances surrounding the sale and transfer of title of the property to the Plaintiffs is unsatisfactory, irregular, and/or unlawful.
    
16. Whilst the allegations are serious, the Defendants have not taken any proper and appropriate action or steps to challenge the title in some tangible ways to raise the issue of bona fide dispute as to title. The First and second Defendants have not commenced any proceedings challenging the title obtained by the Plaintiffs. They have not challenged the decisions of the Public Trustee of PNG for the sale and transfer of the title. The title was transferred in June 2022. The Defendants have been aware since. The validity of the title was not challenged so far in a Court of competent jurisdiction.
    

17. The onus of challenging the validity of title rests on the defendants. Refer: Yandu v Waiyu (2005) N2894, Godowan Investment Ltd v Wambea (2018) N7263, Evangelical Lutheran Church of PNG v Jack David (2022) N 10060.

18. In Yandu v Waiyu (2005) N2894, the National Court (Cannings J) in dealing with an eviction matter held that:

“2. If the registered proprietor of a State Lease commences proceedings in the District Court to enforce their interest in the land there is no bona fide dispute about title to the Land unless some other person demonstrates that they have taken some distinct, formal, legal steps to disturb that title.”

19. Again, in Godowan Investment Ltd v Wambea (2018) N7263, Cannings J said this at paragraph 9 of his judgment:

“The fact that the leases were granted to and registered in the name of the plaintiff gives rise to the presumption that it has good and indefeasible title subject only to the exceptions prescribed by Section 33(1) of the Land Registration Act (Mudge v Secretary for Lands [1985] PNGLR 387). The onus of proving a case of fraud or that any of the other exceptions in Section 33(1) applies rests with the person who challenges the title of the registered proprietor (Niugini Properties Ltd v Londari (2014) N5727).”

20. In the present case, I find the defendants have not appropriately challenged the Plaintiff’s title to the property. I find from the evidence that the Plaintiffs are the registered proprietor of land described as Allotment 27 section 168 Lae under State Lease, Volume 46 Folio 105. As stated earlier in the judgment, the law on Section 33(1) of the Land Registration Act is settled. A registered proprietor has indefeasible title under section 33 of the Land Registration Act except for fraud and other exceptions listed in subsection one (1).

21. There is no evidence of any wrongdoing on the part of Plaintiffs when they purchased the property from the Public Trustee of Papua New Guinea and therefore are an innocent third party, a bona fide purchaser, who bought the subject property for value. By registration of the transfer, the Plaintiffs are now the owners of the property and have indefeasible title under sections 32 and 33 of the Land Registration Act. There is therefore no bona fide dispute as to the title the Plaintiffs have.

2. ii. Whether the Plaintiffs are entitled to the reliefs sought in the Originating Summons
   

23. The Plaintiffs seek several reliefs in the Originating Summons. I will deal with them together. Firstly, the Plaintiffs seek a declaration that they are the registered proprietors of Allotment 27 Section 168, Lae. From the evidence provided, it is clear the Plaintiffs are the registered proprietors of Allotment 27 Section 168 Lae, Morobe Province, State Lease, Volume 46 Folio 105.

24. The second and third reliefs sought is for a judgment for possession and for the Defendants to deliver up vacant possession. This will involve the defendants giving up possession of the property they call home for the last 25 years or so. Unfortunately, as I have found, the Plaintiffs are now the registered owners of the property. The Defendants’ dispute as to the Plaintiffs title is not properly before this Court to determine. The Defendants are at liberty to challenge the decisions and administrative actions of the Public Trustee of PNG in separate proceedings if they so decide.

25. As between the Plaintiffs and the Defendants, the Plaintiffs have a better and legal interest in the property, Allotment 27 Section,168, Lae as recognised by law under sections 32 and 33 of the Land Registration Act. The Plaintiffs paid for the property in part late November 2021, settled the conveyance in full in April 2022 and have the title registered in their names in June 2022. They have been denied possession for the last one and half years by the Defendants for understandable reasons advanced in this proceeding.

26. The Court notes the competing interests of the Defendants, but it is not unreasonable or unjust to grant an order for vacant possession. The evidence shows the Plaintiffs has taken steps, requesting the Defendants to give up possession in mid-2022. Even before that, the Public Trustee gave notice to the Defendants to vacate the property and instituted District Court proceedings for summary ejectment. Despite the Notice to Vacate was served on the Defendants, they have not moved out and continue to occupy the land. The Plaintiffs are therefore entitled to take up possession of the property and there is no good reason for refusing it. This may be difficult for the defendants, but it should not be a surprise as the defendants knew or ought to have known the consequences of continuous occupation after the property has been transferred to the Plaintiffs.

27. In cases of illegal settlements, the Court has been consistent in granting orders for possession except for reasonable time to vacate. Whilst the Defendants are not to be treated as illegal settlers on someone else’ property, they have now become unauthorised occupants since the transfer of the title to the Plaintiffs.

28. The Defendants have been on the property since birth and have fond memories of the property which has been their home. They have an equitable interest in the property and are entitled to reasonable period to vacate the property. Refer: Jure Investment v Conlife (2018) N7286, Paga Hill Development Company v Daure Kisu (2014) N5683, Laka v Nui (2013) SC1223 and Evangelical Lutheran Church of PNG v Jack David (2022) N10060. In my view, a period of three (3) months is reasonable for the Defendants, their families and servants or agents to deliver up vacant possession.

29. The final relief is for an order for leave to issue a Writ for Possession. The Court has upheld the application for vacant possession. For the same reasons and as a matter of course, leave to issue a Writ for Possession is granted, and if necessary, to be followed by a Writ of Possession should the Defendants fail to deliver up possession within the time given by the Court.

Costs

30. Finally, as to cost, it is a discretionary matter. Generally, an order for cost is awarded to a successful party in a contested hearing. The proceedings have been vigorously defended and substantial cost is incurred. The Defendants have raised genuine reasons for not giving up possession of the property which has been their home for their lifetime. To award costs against them will be oppressive. In the circumstances, there shall be no order as to costs. The parties shall bear their own cost.

ORDERS

31. The Court orders:

1. By way of a Declaration that the Plaintiffs are the registered proprietors of the property described as Allotment 27, Section 168, Karoka Street, Lae, Morobe Province, under State Lease Volume 46 Folio 105.
   
2. By way of a Declaration that the Plaintiffs as the registered proprietors of the property, are entitled to vacant possession of the property from the defendants, their families, relatives, wantoks, servants, and agents on the property described Allotment 27, Section 168, Karoka Street, Lae, Morobe Province, under State Lease Volume 46 Folio 105.
   
3. That the Defendants, their families, relatives, wantoks, servants and agents on the property deliver up vacant possession of the property described Allotment 27, Section 168, Karoka Street, Lae, Morobe Province, under State Lease Volume 46 Folio 105 within three months from the date of this order.
   
4. That leave is granted to the Plaintiffs to issue a Writ for Possession to be followed by an issuance of a Writ of Possession to be executed after three months from the date of this order, should the Defendants fail to comply with the Order 3 above.
   
5. That the parties bear their own costs of the proceedings.
   
6. Time be abridged.

____________________________________________________________________
Jaku Lawyers: Lawyers for the Plaintiffs
Daniels & Associates: Lawyers for the Defendants