PNG Bible Church Inc v Carol Mandi and Minister for Lands & Physical Planning Guinea (2018) SC1724and National Housing Corporation and Independent State of Papua New Guinea (2018) SC1724

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, Toliken & Bona JJ
• Judgment Date: 31 October 2018
• Court: Supreme Court
• Citation: (2018) SC1724
• Docket Number: SCA 07 OF 2017
• Year: 2018
• Judgement Number: SC1724

Full Title: SCA 07 OF 2017; PNG Bible Church Inc v Carol Mandi and Minister for Lands & Physical Planning Guinea (2018) SC1724and National Housing Corporation and Independent State of Papua New Guinea (2018) SC1724

Supreme Court: Kandakasi, Toliken & Bona JJ

Judgment Delivered: 31 October 2018

SC1724

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 07 OF 2017

BETWEEN:

PNG BIBLE CHURCH INC

Appellant

AND:

CAROL MANDI

First Respondent

AND:

MINISTER FOR LANDS & PHYSICAL PLANNING

Second Respondent

AND:

NATIONAL HOUSING CORPORATION

Third Respondent

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Respondent

Waigani: Kandakasi, Toliken & Bona JJ.

2018: 25th and 26th June

31st October

REAL PROPERTY - State Land – Land granted to National Housing Corporation – Particular allotments – Transfer to private individuals or incorporated entities - Process for such transfers - Correct authority to deal with such land - Whether Lands Department or National Housing Corporation? – Gazettal and transfer of land outside process provided for under the National Housing Corporation Act – Constructive and real fraud – Transfer declared null and void – Transfer and registration to be cancelled and set aside – Title and property re-vested in the National Housing Corporation – National Housing Corporation to deal with the land in accordance with the process under its Act as between itself and the appellant.

PRACTICE & PROCEDURE – State land owned by National Housing Corporation – Process for dealing with National Housing Corporation land – Fundamental breach of – Issue not presented and considered by the trial judge – Trial judge’s decision arrived at in ignorance of – Beneficiary of trial court’s decision not meaningfully participating in the appeal and opposing reliefs sought – Only party responding to the appeal supporting the appeal and the reliefs sought – Appeal upheld – Title restored to the National Housing Corporation – Sections 37 – 39, 65 of the National Housing Corporation Act 1990 and ss.111 and 113 of the Lands Act 1996.

Papua New Guinea Cases Cited:

Pius Tikili v. Home Base Real Estate Ltd (2017) SC1563

Paru Aihi v. Peter Isoaimo (2013) SC1276

Rimbunan Hijau(PNG) Ltd v. Ina Enei (2017) SC1605

PNG Deep Sea Fishing Ltd v. Luke Critton (2010) SC 1126

Emas Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215

Counsel:

Ms. C. Kot, for the Appellant

Mr. A. Luke, for the Third Respondent

31st October, 2018

1. BY THE COURT: On 26th June 2018, we delivered the Court’s decision with the reasons for the decision given verbally. This is a written version of that decision and its reasons.

2. PNG Bible Church Inc. (the Church) is appealing against a National Court decision which dismissed its proceedings in the National Court and ordered one of its pastors occupying a residential property described as Volume 15, Folio 84, Allotment 13, Section 69, Goroka, Eastern Highlands Province (the property), located within the Goroka township to vacate. Carol Mandi, the First Respondent was a pastor of the Church and the Church authorised him to occupy the property and take all steps necessary to purchase and have the title to the property transferred to the Church. Against that, Mr. Mandi had the property transferred and registered in his name. The Church and the NHC submitted that the transfer was fraudulent in that the transfer was done without either of their knowledge and consent or approval. They also submitted that the transfer was in breach of ss. 37 – 39 and 65 of National Housing Corporation Act 1990 (NHC Act). These provisions were not drawn to and therefore not considered by the learned trial judge.

3. Despite being served with the notice of appeal and all other documents including the notice of hearing of the appeal, Mr. Mandi failed to take any meaningful steps against the appeal and has failed to appear at the hearing. The NHC was the only respondent that attended the hearing. At the hearing, the NHC supported the Church in the appeal and consented to the reliefs sought in the appeal.

Relevant Issues

4. Gathering from the parties’ arguments and the notice of appeal there are two main issues for this Court to consider and determine. They are:

(1) Did the Church establish by appropriate evidence its claim of fraud against Carol Mandi and the trial judge erroneously dismissed the claim?

(2) Are the NHC and the Church entitled to raise in the appeal issues not previously raised at the trial level?

Issue 1 - Did the Appellant Establish its Claim Based on Fraud?

3. The Church’s claim in the National Court was by a writ of summons. In its statement of claim the Church claimed that Mr. Mandi fraudulently had the title to the property transferred to himself. According to the evidence the Church adduced at the trial, Mr. Mandi was a pastor in the employ of the Church in the period 1984 to 1992. The Church decided to have a mission established in Goroka. Straight upon Mr. Mandi’s graduation from the Tambul Bible College, the Church decided to task him to take charge of establishing a mission in Goroka. That was Mr. Mandi’s only form of employment. His salaries came from offerings collected from the church members and allowances provided by the Church. One of Mr. Mandi’s tasks was to look for land for the Church to build a house to accommodate its pastors in Goroka, starting with him. A Mr. Dick Tambua who is the chair of the board of directors of the Church assisted Mr. Mandi with this task.

4. Eventually, Mr. Mandi successfully secured the property. The Church fully funded Mr. Mandi thinking he was acting in the best interest of the Church to help purchase and secure the property for the Church. In 1992 when the Church decided to have Mr. Mandi transferred to Kainantu and he refused to take the transfer saying it was not his calling. Consequently, the Church asked him to vacate the property to make way for another Pastor, a Pastor Timothy Asi who later moved into the property. Before leaving the property, Mr. Mandi organised several youths to occupy the property. This required the Church to remove the youths and get Pastor Timothy Asi into the property. Pastor Asi occupied the property from 1992 until 2005 when a Pastor Ian Rami replaced him.

5. In 2005, Mr. Mandi went to the District Court and instituted summary ejectment proceedings. That proceeding got struck out because by that time, he did not have any title. That was not the end of the matter. In 2009, Mr. Mandi issued District Court proceedings again seeking to evict the Church from the property. By this time, it became clearer to the Church that, Mr. Mandi had acquired title. The transfer and registration of the title to the property in Mr. Mandi’s name did not have the approval and consent of NHC, nor was it by any contract of sale between the NHC and him. Upon discovering this, the Church issued proceedings WS No. 1016 of 2009. After a trial, the National Court sitting in Goroka, per Neil J., dismissed the Churches claim and ordered the Church to vacate the property.

6. The learned trial Judge reasoned that:

“The First Defendant found there was delay in obtaining title to the property, so he went to Port Moresby to find out what had been done in this regard. He was informed to make an application under the Land Act. He did this and a Notice under section 45 of the Act, dated 10 September 2004 was placed in the Government Gazette as to extinguishing all rights of the NHC to that property.

The property was put up for tender/lease and a notice was put in Government Gazette G138, published on 13th July 2006.…

It would seem that the Plaintiff made no further follow up of the NHC after 1993. By then it was clear to the Plaintiff that the First Defendant [Mr. Mandi] wanted the title. The matter was no longer one of the First Defendant being an agent or employee of the Plaintiff. Instead it was a contest between the parties as to acquiring title.

The Plaintiff did not tender in response to the gazettal Notice of 13th July 2006. On the other hand, the First Defendant was proactive in resolving the title and went to Port Moresby to find out how to do this. He pursued the tender process though the money paid to Bane and the NHC was lost when the NHC title was extinguished and the land was put up for tender.”

7. The evidence regarding gazettal referred to in the learned trial judge’s reasons for judgment came from Mr. Mandi. There was no evidence of the gazettal being published in the normal way. Instead, it is clear there was a closed tender which meant only those who published the gazettal and Mr. Mandi knew about the gazettal. Hence, neither the Church nor the NHC were aware of that gazettal. Consequently, it was not surprising that only Mr. Mandi responded to the gazettal, applied for the allocation of the land to himself and that was done. However, there was neither any evidence nor any submission from Mr. Mandi explaining how all these was possible without any direct involvement of the NHC who had the title to the property at the first instance. At the hearing of the appeal the Court raised the question of how was the gazettal...