Kopen Yanda, Donald Onne and Gibson Nakandaul v Apostolic Church Properties Association of Papua New Guinea Incorporated (2006) N3042

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 31 March 2006
• Court: National Court
• Citation: (2006) N3042
• Docket Number: CIA NO 19 0F 2003
• Year: 2006
• Judgement Number: N3042

Full Title: CIA NO 19 0F 2003; Kopen Yanda, Donald Onne and Gibson Nakandaul v Apostolic Church Properties Association of Papua New Guinea Incorporated (2006) N3042

National Court: Cannings J

Judgment Delivered: 31 March 2006

N3042

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 19 0F 2003

KOPEN YANDA, DONALD ONNE AND GIBSON NAKANDAUL

Appellants

V

APOSTOLIC CHURCH PROPERTIES ASSOCIATION

OF PAPUA NEW GUINEA INCORPORATED

Respondent

Waigani: Cannings J

2004: 15 December

2006: 1, 31 March

APPEAL

LAND – Summary Ejectment Act – Section 6 (recovery of premises held without right, etc) – pre-conditions to exercise of power by the District Court to order summary ejectment – need for proof of ownership.

ASSOCIATIONS – incorporated religious group – Associations Incorporation Act – incorporated association may sue in its own name – pre-conditions to exercise of power of incorporated association to commence court proceedings

COURTS AND JUDICIAL OFFICERS – need to conduct due inquiry to be satisfied that a matter is properly before the court – duty to protect the court against abuse of its processes.

The appellants, long term members of a religious organisation, the Apostolic Church, live on land at Waigani in the National Capital District on which there is a church and a pastor’s residence. The lessee of the land on which the appellants live is an incorporated association closely tied to the Church. A schism developed in the Church and one of the groups into which the Church split purported to excommunicate the appellants. The first group obtained an ejection order from the District Court under the Summary Ejectment Act requiring the appellants to vacate the land on which they lived. The appellants appealed against the order on the ground that the first appellant is the chairman of the association in whose favour the eviction order was made and that association did not, in fact, authorise the institution of the District Court proceedings and had and has no wish nor does it intend to evict the appellants.

Held:

(1) It is clear that the respondent association is the lessee of the land on which the appellants are living.

(2) It is not clear that the proceedings in the District Court were instituted with the authority of the association. On the contrary it is clear that the District Court proceedings were improperly instituted.

(3) The District Court failed to conduct adequate inquiry to satisfy itself that the proceedings were properly instituted.

(4) Proceedings under the Summary Ejectment Act are intended to provide a quick remedy to people who have a clear title to premises.

(5) Here the title was clear but the individual persons who initiated the proceedings in the District Court in the name of the respondent appear to have deliberately or inadvertently misrepresented their authority to do so.

(6) There was a substantial miscarriage of justice and accordingly the appeal was upheld and the orders of the District Court quashed.

Cases cited

The following cases are cited in the judgment:

Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74

In the matter of an application by Linah Edward (2005) N2804

SCR No 4 of 1987; Re Central Provincial Government [1987] PNGLR 249

Abbreviations

The following abbreviations appear in the judgment:

Inc – Incorporated

PNG – Papua New Guinea

SCR – Supreme Court Reference

PNGLR – Papua New Guinea Law Reports

APPEAL

This was an appeal from a decision of the District Court ordering the vacation of property under the Summary Ejectment Act (Chapter No 202).

Counsel

H Nii, for the appellants

E Boada, for the respondent

31 March, 2006

1. CANNINGS J: INTRODUCTION: This is an appeal against a decision of the District Court at Port Moresby, constituted by Mr T Vogusang, in which his Worship upheld a claim to evict the appellants from land at Waigani in the National Capital District.

BACKGROUND

2. The land in question is Allotment 9, Section 43. It is at Pelican Street, North Waigani, between Mokoraha Road and Gannet Road. The registered proprietor is the respondent, the Apostolic Church Properties Association of Papua New Guinea Incorporated. It holds the land under a 99-year mission lease granted under a predecessor to the Land Act 1996 on 13 August 1979. On the land is a church called the Waigani Apostolic Church and a pastor’s residence.

2. The first appellant, Kopen Yanda, is a founding member and pastor of the Apostolic Church of Papua New Guinea. He has lived in the pastor’s residence at Allotment 9, Section 43 since 1975. The other appellants, including Pastor Donald Onne, also apparently live there.

3. Several years ago a schism developed in the Church. In October 1997 Pastor Papi Keso became the National President of the Church, which is a separate corporate body known as the Apostolic Pentecostal Church of PNG Incorporated.

4. In January 2001 Pastor Keso initiated the excommunication of the first appellant and others associated with him; or at least steps were taken in an attempt to excommunicate them. There is apparently an ongoing dispute about whether the excommunication is ecclesiastically correct.

5. In March 2002 Pastor Keso, in his capacity as National President of the Church, wrote to the first appellant requesting him to vacate Allotment 9, Section 43 on the ground that he had been excommunicated from the Church and he was on Church property.

6. The first appellant did not accede to that request and stayed put.

DISTRICT COURT PROCEEDINGS

7. On 28 August 2002 Complaint No 2657 of 2002 was filed in the District Court at Port Moresby. The complainant was the Apostolic Church Properties Association of PNG Inc (the respondent in the present appeal). The defendants were “Donald Onne, Kopen Yanda, Gibson Nakandaul and all other persons and relatives of the three named defendants inclusive of one James Yanda, residents of Waigani, Section 43, Allotment 9, Hohola (Waigani), National Capital District”.

8. The complaint was that the defendants had failed to comply with an eviction notice dated 30 June 2002 by refusing to give vacant possession to the complainant and continuing to reside and carry on business at the complainant’s property at Allotment 9, Section 42, thereby contravening Section 7 of the Summary Ejectment Act Chapter 202. The complaint was signed by a person, whose name is not printed or clear, above the name of the complainant’s lawyers, Pato Lawyers of Port Moresby.

9. A summons to a person upon complaint was then issued commanding the appearance of the defendants at the District Court. The complaint was supported by an affidavit by Pastor Keso sworn on 31 October 2002. The defendants filed a notice of intention to defend and supporting affidavits.

10. Pato Lawyers filed a written submission on behalf of the complainant. This asserted that the complainant was the legal owner of the property, that the defendants did not have any reasonable cause to remain on its property and therefore the court should issue an order for the defendants to deliver vacant possession forthwith and a warrant of ejectment.

11. Harvey Nii Lawyers filed a written submission on behalf of the defendants. Their principal argument was (and remains so in the present appeal) that there were two different legal entities involved in the case:

· the Apostolic Church Properties Association of Papua New Guinea Inc; and

· the Apostolic Pentecostal Church of Papua New Guinea Inc.

12. The Properties Association was, and apparently still is, headed by Pastor Yanda; whereas the Church was, and apparently still is, headed by Pastor Keso. Each association has its own constitution. The management and control of the affairs of the Properties Association was, and apparently still is, carried out according to its constitution by a committee chaired by Pastor Yanda. Pastor Keso was not, and apparently still is not, a member of the Properties Association’s management committee, and therefore lacked any power or authority to commence the proceedings in the District Court in the name of the Properties Association.

13. On 22 January 2003 the case was heard by his Worship Mr Vogusang who decided in the complainant’s favour by making an order in the following terms:

1 Defendants to vacate within 14 days (ie 04.02.03);

2 Warrant issued in default.

3 Parties to meet their own costs.

14. His Worship published the following reasons for decision:

This is an application by complainant Apostolic Church Properties Association of Papua New Guinea to evict the defendants Donald Onne, Kopen Yanda, Gibson Nakandaul and all other persons, individuals and relatives of the three named respondents inclusive of one James Yanda who is living on the said property ie Allotment 9 Section 43 Hohola National Capital District.

The complainant Apostolic Church Properties Association of PNG Inc has a mission lease granted under Section 96 of the Land Act.

The defendant is living without right, title or licence in the said property Allotment 9 Section 43 Hohola National Capital District and has not shown to the satisfaction of the Court reasons to balance being in possession of this property.

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