Maniosa Yakasa, Ezekiel David Peter, John Nathan, Pesato Epe, Ketae Enomba, Yapata Puia, Seke Nete, Matai Kungu, Philip Piake, Elizah Waipu, Rasak Polyo and Timothy Yano and Nick Aiyene v David Piso and Gutnius Lutheran Church of PNG Inc (2014) SC1330

• Jurisdiction: Papua New Guinea
• Judge: Lenalia, Murray and Logan JJ
• Judgment Date: 26 February 2014
• Court: Supreme Court
• Citation: (2014) SC1330
• Docket Number: SCA 186 OF 2010
• Year: 2014
• Judgement Number: SC1330

Full Title: SCA 186 OF 2010; Maniosa Yakasa, Ezekiel David Peter, John Nathan, Pesato Epe, Ketae Enomba, Yapata Puia, Seke Nete, Matai Kungu, Philip Piake, Elizah Waipu, Rasak Polyo and Timothy Yano and Nick Aiyene v David Piso and Gutnius Lutheran Church of PNG Inc (2014) SC1330

Supreme Court: Lenalia, Murray and Logan JJ

Judgment Delivered: 26 February 2014

SC1330

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 186 OF 2010

BETWEEN:

MANIOSA YAKASA, EZEKIEL DAVID PETER, JOHN NATHAN, PESATO EPE, KETAE ENOMBA, YAPATA PUIA, SEKE NETE, MATAI KUNGU, PHILIP PIAKE, ELIZAH WAIPU, RASAK POLYO and TIMOTHY YANO

First Appellants

AND

NICK AIYENE

Second Appellant

AND

DAVID PISO

First Respondent

AND

GUTNIUS LUTHERAN CHURCH OF PNG INC

Second Respondent

Waigani: Lenalia, Murray and Logan JJ

2014: 26th February

APPEAL – Practice & Procedure – Appeal from National Court – Where judgment under appeal made orders not originally sought in pleadings – whether breach of natural justice – whether any breach of constitutional provisions relating to Freedom of conscience, thought and religion (s 45); Freedom of employment (s 48) and Right to Privacy (s 49) – appeal dismissed, save for that of three of the appellants found to have been denied natural justice.

Cases Cited:

Papua New Guinea Cases

CL Toulik Business Consultant Ltd v Kuek [2006] PGSC 32; SC876

Koki v Inguba [2009] PGNC 161; N3785

Okuk and State v Fallscheer [1980] PGSC 13; [1980] PNGLR 274

Premdas v The State [1979] PNGLR 329

Skate v Tau [2001] PGNC 81; N2126

Ume More & Ors v University of PNG [1985] PNGLR 401; [1985] PGSC 401

Overseas cases:

Al Rawi v Security Service [2012] 1 AC 531

Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279

Blay v Pollard and Morris [1930] 1 KB 628

Bomanite Pty Ltd v Slatex Corp Australia Pty Ltd (1991) 32 FCR 379

General Assembly of the Free Church of Scotland v Lord Overtoun:

Kanda v Government of Malaya [1962] AC 322

London Passenger Board v Moscrop [1942] 1 All ER 97

Macalister v Young [1904] AC 515

Papua New Guinea Banking Corporation v Tole [2002] PGSC 8; SC694

Peters v Kerle [1997] QSC 68

Counsel:

Mr Ame, for the Appellants

Mr RJ Mann-Rai, for the Respondents

26th February, 2014

1. BY THE COURT: INTRODUCTION: At the heart of this appeal lies a controversy as to whether, lawfully, the first respondent, Mr David Piso, is the Head Bishop of the Gutnius Lutheran Church in Papua New Guinea (GLC) or whether, lawfully, he has been ex-communicated by the congregation and replaced by the second appellant, Mr Nick Aiyene, as Head Bishop. In the National Court, by an order made on 6 December 2010, it was declared that Mr Piso was lawfully elected as Head Bishop, had not been lawfully excommunicated and that, accordingly, Mr Aiyene was not Head Bishop.

2. Also said by the appellants to arise are a number of questions under The Constitution, which entail alleged breaches of constitutionally guaranteed rights and freedoms - Freedom of conscience, thought and religion (s 45); Freedom of employment (s 48) and Right to Privacy (s 49). Having regard to the course of submissions on the appeal it will also be necessary to make observations with respect to a question as to whether, in the disposition of the case before the National Court on 6 December 2010, the appellants were afforded what is termed natural justice or, as that obligation is alternatively described, procedural fairness.

3. The respondents’ position is that the National Court correctly concluded that Mr Piso was elected Head Bishop un-opposed by secret ballot during a bi-annual Synod of the GLC held at Wapendmanda from 26 June to 2 July 2010. The appellants argue that Mr Aiyene was elected Head Bishop during a separate Synod held on concurrent dates at Irelya and that this meting must be regarded as the ‘true’ Synod.

4. The GLC has more than 500 congregations and about 150,000 members. It forms part of a wider Lutheran community of some 40,000 churches and 80 million adherents internationally. In that wider sense, the origins of the GLC may be traced to the Reformation. In a more immediate sense and so far as Papua New Guinea is concerned, the origins of the GLC may be traced back to 1948. Within the GLC, there are now to be found over 230 ordained pastors, 500 evangelists, 36 community and primary schools, 3 high schools, one large secondary school, one international school, 68 elementary schools, 2 bible schools, two seminaries, the Kristen Press, the Lutheran School of Nursing, the Balob Teacher’s College, Martin Luther Seminary, the Lutheran University of PNG and health centres, aid posts and hospitals. At the apex of the GLC within Papua New Guinea is the Head Bishop. As can be seen, the position is one carrying significant pastoral and administrative leadership responsibilities.

5. Disputes within the Lutheran branch of the Christian faith are not unique to Papua New Guinea: see Peters v Kerle [1997] QSC 68, a case which also arose against the background of a controversy concerning an expulsion from a Lutheran church, on that occasion in a congregation in Marburg, Queensland. Nor are such disputes confined to the Lutheran branch of the Christian faith: see, for example, General Assembly of the Free Church of Scotland v Lord Overtoun: Macalister v Young [1904] AC 515 (the Free Church case), which was decided against the background of a controversy in Scotland in the Presbyterian branch of the Christian faith. Nor even, notoriously, are such disputes confined to modern times, as is attested to by the division of the early Christian church following the Council of Chalcedon (451 AD) into Chalcedonian and non-Chalcedonian (or Oriental Orthodoxy) churches, the later East-West Schism in Chalcedonian Christianity, beginning in 1053 AD, into the Eastern Orthodox Church and the Roman Catholic Church and the split within the Roman Catholic Church at the time of the Reformation in 1517 from which sprang Protestantism in general and the Lutheran Church in particular.

6. This recollection of these past events serves to put in context the deeply felt and genuine differences which divide the parties to this appeal. Our task, however, is not the resolution of ecclesiastical differences and theological disputes but the secular one of determining whether, having regard to the grounds stated in the notice of appeal, the orders made by the National Court on 6 December 2010 should be set aside.

7. That there exists a jurisdiction to grant declaratory relief in respect of disputes involving churches is not in doubt. Justice Peter Young, writing extra-judicially, has stated:

Although there have been few reported cases involving church disputes, there is no doubt that, in a country without ecclesiastical courts, disputes may be determined by declaration: see A-G v Dean and Chapter of Ripon Cathedral [1945] Ch 239; [1945] 1 All ER 479 as interpreted in A-G (NSW) v Wylde (1948) 48 SR (NSW) 366 at 387; on appeal (1948) 78 CLR 224 at 271.

So in Baker v Gough (1962) 80 WN (NSW) 1263; [1963] NSWR 1345, a clergyman obtained a declaration that his dismissal as a school chaplain was invalid: a clergyman failed in a similar case in Gladstone v Armstrong [1908] VLR 454. See also Gent v Robin [1958] SASR 328, where the court considered in a declaratory action the power to revoke the license of a priest in charge of an ecclesiastical district in the Church of England in Australia and Ukranian Greek Orthodox Church v Trustees of Ukranian Greek Orthodox Cathedral [1939] 2 DLR 494, where a declaration was sought that a priest had not been validly excommunicated.

A case as to the right of whether the persons having right of presentation are entitled to have the priest of their selection instituted as rector of a parish was tried by a declaration, though the case was unsuccessful on the merits in Heywood v Bishop of Manchester (1884) 12 QBD 404; see also Gore-booth v Bishop of Manchester [1920] 2 KB 412, a similar case.

In Stuart v Haughley PCC [1936] Ch 32, a plaintiff obtained a declaration that his name should be restored to the Parish Roll.

In Blades v Jaggard (1961) 4 WIR 207, a declaration was made as to the extent of faculty jurisdiction in Barbados.

Young. 1984. Declaratory Orders, 2nd Ed., (Butterworths: Sydney), p. 209.

1

8. In Papua New Guinea, the National Court, as a superior court of general jurisdiction, possessed the necessary jurisdiction, given the extant controversy, to grant the declarations found in the orders made on 6 December 2010.

BACKGROUND TO THE APPEAL

9. The GLC filed an originating summons (No 614 of 2009) in the National Court on 20 October 2009 in which it pleaded and claimed the following:

The Plaintiff claims that:

1. The Plaintiff is Christian Church incorporated under...