N11477

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WPA NO. 35 OF 2023

IN THE MATTER OF APPLICATION BY ALEX AIKEL

IN THE ESTATE OF ESTATE OF PAUL DEPO AIKEL, LATE OF APINAMANDA CENSUS, TEREMANDA VILLAGE, WABAG DISTRICT, ENGA PROVINCE, SELF-EMPLOYED, DECEASED, INTESTATE

AND
JUNIOR PAULDEPO AIKAL
First Respondent

AND
JOSEPH TARAKALI
Second Respondent

&

WS NO N632 OF 2023

ALEX AIKAL, ROCKY AIKAL, FIONA AIKAL, SOLOMON AIKAL & JENNY AIKAL
Plaintiff

AND
JUNIOR PAUL DEPO AIKAL
Defendant

LAE: DOWA J
9 DECEMBER 2024; 20 FEBRUARY, 8 SEPTEMBER 2025

WILLS PROBATE AND ADMINISTRATION PROCEEDINGS-application to set aside grant of letters of administration of deceased estate-whether Court has discretion to revoke grant on grounds of fraud and irregularity- consent of siblings forged-grant set aside and appointment revoked- Application for grant of letters of administration-application opposed -whether applicant met requirements under Order 19 Rule 25 of the National Court Rules-where competing eligible persons seek appointment, main consideration is whether applicant is suitable-application granted. 

Counsel
K Aisi for the plaintiff  
Junior Paul Depo, first defendant/respondent, in person
D Levy for second defendant/applicant

DECISION

1.	DOWA J: This is a decision on the joint hearing of the proceedings WPA No 35 of 2023 and WS No 632 of 2023 between the parties. The proceedings concern the estate of late Paul Depo Aikal, deceased of Teremanda village, Wabag, who died intestate on 30th September 2022. 

 Background Facts

2.	In the proceedings WS No 632 of 2023-Alex Aikal & others v Junior Paul Depo Aikal & other, the Plaintiffs seek amongst other reliefs, an order that the Letters of Administration dated 5th July 2023 granted to the Defendant, Junior Paul Depo Aikal, over the estate of late Paul Depo Aikal be declared null and void. The Plaintiffs in the proceedings are children of the deceased. They allege, Junior Paul Depo, also a son of the deceased from another mother, obtained Letters of Administration without their consent. The application is supported by one Joseph Tarakali, a creditor of the estate of the deceased.

3.	In the proceedings, WPA No 35 of 2023, the Plaintiff Alex Aikal seeks Letters of Administration of the estate of the deceased. The application is opposed by Junior Paul Depo and Joseph Tarakali, a creditor of the estate of the deceased who also seeks an order that he be granted letters of administration.

Trial

4.	By consent of parties, the two matters were jointly tried, as the parties, the evidence and issues are related.

Evidence

5.	The Parties relied on their various affidavits filed in these proceedings without cross examination and presented their submissions thereafter.

Issues

6.	Based on the pleadings, evidence and submissions of parties the following are issues identified for deliberation:

i.	Whether the Letters of Administration dated 5th July 2023 granted to Junior Paul Depo in WPA No 95 of 2023 be revoked.
ii.	Whether Joseph Tarakali, a creditor, be granted Letters of Administration of the deceased estate.
iii.	Whether Alex Aikal be granted Letters of Administration of the deceased estate
iv.	What other orders should the Court make in the circumstances.

WS No 635 of 2023-Alex Aikal & others v Junior Paul Depo

7.	The Plaintiffs Alex Aikal and his siblings and widow bring this action against the Defendant, Junior Paul Depo Aikal, seeking revocation of the Letters of Administration obtained by the defendant on 5th July 2023 in proceedings WPA No 95 of 2023. The Plaintiffs allege they are the only children of the deceased, late Paul Depo Aikal and they deny that the Defendant is their stepbrother. Their late father has not introduced him to the family. The Plaintiffs gave evidence that the Defendant misled the Court when he obtained the orders. The Plaintiff’s deposed that the Defendant falsely signed consent forms in the names of the Plaintiffs giving the impression that the Plaintiffs, all children of the deceased have consented to the Defendant to apply for the grant of Letters of Administration. After obtaining the letters of administration, the defendant proceeded to change the shareholding and directorship of PDA Maintenance Trading Ltd, a company owned by the deceased father. He proceeded to withdraw cash from the bank and took over the fleet of company vehicles. The Plaintiffs deposed, the actions of the Defendant are fraudulent, and they have filed a complaint with the Police.

8.	In response, the Defendant, Junior Paul Depo, deposed that he is a biological son of late Paul Depo Aikal. He conceded that he prepared and signed the consent forms in the names of the Plaintiffs without their consent. He deposed in his affidavit that he acted quickly to secure the deceased estate from a third-party creditor, Joseph Tarakali, who was attempting to take the assets of the deceased.

9.	The Defendant explained in his affidavit that after he was granted the Letters of Administration, he took every step necessary to secure and manage the company and assets left behind by the deceased father. The actions he took and decisions he made were lawful in his capacity as the Administrator of the deceased estate.

10.	Joseph Tarakali, a creditor of the deceased estate, supported the Plaintiffs in the application for the revocation of the Letters of Administration for his own interest. He deposed that he is a major creditor of the estate of the deceased. He alleges the deceased estate owes him substantial amount of money advanced to the late Paul Depo’s trucking business and thus he is more qualified to be administrator of the deceased estate than Junior Paul Depo. 

i)	Whether the Letters of Administration dated 5th July 2023 granted to Junior Paul Depo in WPA No 95 of 2023 be revoked 

11.	Order 19 Rule 42 of the National Court Rules allow for a party to apply for the revocation of the Letters of Administration. The Court has a discretion whether to revoke the Letters of Administration previously granted.   That discretion must be judicially exercised considering the interests of the parties and the justiciability of the case.

12.	Turning to the present case, I have considered the pleadings, the evidence and submissions of the parties and am satisfied that the grant of Letters of Administration on 5th July 2023 was fraught with misleading documents bordering on fraud. The Defendant filed false affidavits in the names of the Plaintiffs, who are entitled persons under Order 19 Rule 25(3) of the National Court Rules, purporting to consent or endorse the application by the Defendant. On the contrary, the Plaintiffs did not give their consent nor signed the endorsing affidavits filed and relied on by the Defendant in the application. It is disappointing that apart from gaining an unjust advantage over his siblings, the Court was misled. The Defendant has conceded his misdeeds, though belatedly. The explanation or justification offered by the Defendant pales into insignificance when compared to the gravity of the misdemeanour. Not only that. The evidence shows Junior Paul Depo signed a power of Attorney authorising Joseph Tarakali to administer the deceased estate pending grant of administration, which conduct was against the interests of the immediate family members and beneficiaries of the estate. I therefore conclude that the Letters of Administration granted on 5th July 2023 appointing the Defendant as Administrator of the deceased estate were obtained irregularly and are a nullity. I will therefore order that the appointment of Junior Paul Depo be revoked.

WPA No 35 of 2023-Application by Alex Aikal

13.	In WPA No 35 of 2023, Alex Aikal, the eldest son of late Paul Depo Aikal, applies for the grant of Letters of Administration of the deceased estate. He filed all relevant documents pertaining to the application as prescribed by Order 19 Rule 25 of the National Court Rules. The application is consented to by his siblings except for Junior Paul Depo who opposes the application. The application is also opposed by Joseph Tarakali, a creditor of the deceased estate.

ii. Whether Junior Paul Depo is suitable to be granted letters of administration. 

14.	Junior Paul Depo opposed the application by Alex Aikal on the basis that it is an abuse of the process. He submitted that he was already granted the Letters of Administration in WPA 95/2023 for the same estate and there is no need for a second grant. In my view, Junior Paul Depo’s submission is misconceived. Having found the earlier grant of Letters of Administration to Junior Paul is a nullity, he is no longer the Administrator of the estate of the deceased and cannot continue in that role. In my view, though eligible, Junior Paul Depo is not a suitable person to be granted Letters of Administration for his proven misdemeanours and being the very reason for the revocation of the earlier appointment.

iii. Whether Joseph Tarakali be granted Letters of Administration

15.	Joseph Tarakali opposes the application of Alex Aikal. He applies for the grant of Letters of Administration himself as creditor.  Joseph Tarakali is a businessman. Tarakali alleges his company Memkitts Investment Limited entered a business deal with late Paul Depo Aikal’s trucking company PDA Maintenance and Trading Limited (PDA) in 1999. Tarakali alleges late Paul Depo Aikal and PDA owes Memkitts a substantial amount of money in unpaid lease payments and earnings from Porgera Joint Venture (PJV) under a cartage agreement PDA was managing on behalf of Memkitts. He alleges he is owed more than K 20 million. 

16.	Alex Aikal opposes Tarakali’s application. Aikal submitted that the estate does not owe Tarakali and Memkitts any money. Tarakali’s claims were prosecuted in earlier Court proceedings but were all dismissed by both the National and Supreme Courts and is no longer an eligible creditor.

17.	Under sections 38 of the Wills Probate and Administration Act and Order 19 Rule 31 of the National Court Rules a creditor in a deceased estate is eligible to apply, with leave of Court, for the grant of Letters of Administration.  Tarakali has obtained consent of the Public Curator and leave of the Court to be joined as a party in the proceedings. I have carefully considered the evidence and submissions of parties and reached a conclusion that though eligible, Joseph Tarakali is not a suitable person to be granted Letters of Administration. The reason is clear. Joseph Tarakali and his company, Memkitts Investment Limited brought several proceedings in Court against late Paul Depo Aikal and his company PDA since 2006 over a cause of action that commenced in 1999. The evidence shows three of such proceedings were filed in both the National and Supreme Courts.  Each of those proceedings were dismissed by the Court, although Tarakali maintains that legal avenues for recovery are not exhausted. In these circumstances, although leave is granted to Tatakali to apply for the grant as an eligible person being a creditor, he is not a suitable person who would impartially manage and distribute the assets of the deceased estate. 

iv. Whether Alex Aikal be granted Letters of Administration

18.	Alex Aikal as stated earlier applies for the grant of Letters of Administration of the estate of deceased, Paul Depo Aikal, late of Teremanda, Enga Province.  

19.	The application is made pursuant to Order 19 Rule 8 of the National Court Rules, and Section 38 of the Wills Probate and Administration Act 1966.

20.	The Applicant filed the following documents in support of application as required by Rule 25.

1.	Summons filed 24/08/23.
2.	Affidavit of Death (Form 76) filed 24/08/2023
3.	Affidavit of Alex Aikal (Form 80) filed 24/08/2023
4.	Consent by Jenny Aikal filed 24/08/2023
5.	Consent by Rocky Aikal filed 24/08/2023
6.	Consent of Fiona Aikal filed 24/08/2024
7.	Affidavit of Alex Aikal filed 08/03/2024

21.	The applicant, Alex Aikal is the eldest son of late Paul Depo Akail, deceased. He represents the widow and children of the deceased. Save for Junior Paul Depo, the applicant is supported by the members of the family, to seek the grant of Letters of Administration.

22.	Order 19 Rule 25 of the National Court Rules provide for certain requirements to be met before the Court issues a grant.  I have considered the documents filed and note the applicant has substantially complied with the minimum requirements under the Rules 

23.	I note the contention by counsel for Joseph Tarakali that the applicant did not produce evidence of notice being served on the Public Trustee of PNG prior to filing the application as required by section 9(2) of the Public Curator Act. Section 9 (1) and (2) of the Act is relevant and it reads:

“ 1) Where an order has been made under this Part, the National Court may nevertheless grant probate of the will, or administration of the estate, of a deceased person to any person–
(a) in such manner; and
(b) subject to such limitations or conditions,
as it thinks proper.
(2) In a case referred to in Subsection (1), an application for a grant shall not be made until seven days after written notice of the intention to apply for the grant has been left at the office of the Public Curator.” (underlining mine)

24.	Subsection (2) is mandatory. Before an eligible person applies for probate of a Will or administration of an estate, notice of intention to apply for the grant must be first served at the Office of the Public Curator. And in some cases, consent is necessary. This is important because under section 44 of the WPA Act, the property of the deceased person vests in the Public Curator until probate or administration is granted.

25.	Although the applicant did not give notice, the Public Trustee is aware of the deceased estate and the clear intentions of the family members of the deceased. The Public Trustee has previously published notice of intention to apply for administration of the estate. This did not go through after the Public Trustee learnt that the immediate family members took possession of most of the assets. The Public trustee issued a notice on 17th May 2023 declining trust pursuant to section 8 of the Public Curator (Amended) Act 2020. On the same day, the Public Trustee gave consent for Junior Paul Depo and Joseph Tarakali of Memkitts Investment Ltd to seek grant of administration. The applicant has also, on his part, published notice of the intended application. Except for the objections raised by Junior Paul Depo and Joseph Tarakali no caveats or objections were filed by the Public Trustee or any other person pursuant to section 90 and 120 of the Wills, Probate and Administration Act.

26.	It is clear to my mind, even if the Court were to grant Letters of Administration to persons other than the parties in this proceeding, the Public Trustee would not be one of them. The Public Trustee has consciously declined trust and having previously consented to the eligible persons other than the applicant; he is not a suitable person to be appointed administrator of the deceased estate. 

27.	While the contentions and concerns of Junior Paul Depo and Joseph Tarakali are valid and genuine as eligible persons, Alex Aikal is more suitable for the grant of administration amongst the three. Alex Aikel has been given the consent by the immediate family members. He is the eldest son of the deceased. The applicant has been managing the business and assets of the deceased estate since the death of his late father. The Court is reluctant to disturb the status quo.

28.	In my view, the grant of the Letters of Administration will not materially prejudice the rights of persons having an interest in the estate of the deceased.  Division 7 of Order 19 of the National Court Rules makes provision of revocation of grant.  Any person aggrieved by the grant shall commence his own proceedings if he wants to. 

29.	In conclusion, I am satisfied that the applicant met the minimum requirements for the grant of the Letters of Administration of the estate of the deceased, late Paul Depo Aikal, and the Court shall grant the orders sought in the Summons.

Costs

30.	The Court has a discretion to award costs. Generally, costs follow the event. In the present case, the parties have genuine interests in opposing the application. I am reluctant to award costs against Junior Paul Depo and Joseph Tarakali in the interest of justice. The parties shall bear their own costs except for the costs specifically ordered on 12th March 2024 and 9th December 2024. For clarity Joseph Tarakali’s costs for 12th March 2024 were ordered against the Plaintiffs/applicant. As for the costs of 9th December 2024, I will order that the first Defendant, Junior Paul Depo pay Joseph Tarakali’s costs because the adjournment was requested by Junior Paul Depo Aikal.

Orders

31.      The Court orders that:
:
1.	The Letters of Administration of the estate of Paul Depo Aikal, deceased, dated 5th July 2023, granted to Junior Paul Depo in proceedings WPA No 95 of 2023, is declared null and void.
 
2.	The appointment of Junior Paul Depo as administrator of the estate of late Paul Depo Aikal dated 5th July 2023 in proceedings WPA No. 95 of 2023 is hereby revoked.

3.	The applicant, Alex Aikal, son of Paul Depo Aikal, late of Teremanda village, Wabag, Enga Province, Businessman, deceased, intestate, is granted Letters of Administration of the estate of the deceased to him and that the administration bond be dispensed with.

4.	The parties bear their own costs except for the costs specifically ordered on 12th March 2024 and 9th December 2024.

5.	The first Defendant, Junior Paul Depo, shall pay Joseph Tarakali’s cost of 9th December 2024 to be taxed if not agreed.

6.	Time be abridged.

Lawyers for the applicant: Aisi Lawyers			
Lawyers for Joseph Tarakali: Livingstone Lawyers