PNG Bible Church Inc v Paul Wagun

• Jurisdiction: Papua New Guinea
• Judge: Poole, J
• Judgment Date: 23 May 2013
• Citation: (2013) N5297
• Court: National Court
• Year: 2013
• Judgement Number: N5297

Full : OS No 213 of 2009; Papua New Guinea Bible Church Inc v Paul Wagun EBM Field Director (PNG) and Benjamin Samson Deputy Registrar of Title and Registrar of Titles (2013) N5297

National Court: Poole, J

Judgment Delivered: 23 May 2013

N5297

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 213 OF 2009

BETWEEN:

PAPUA NEW GUINEA BIBLE CHURCH INC

Plaintiff

AND:

PAUL WAGUN

EBM FIELD DIRECTOR (PNG)

First Defendant

AND:

BENJAMIN SAMSON

Deputy Registrar of Title

Second Defendant

AND:

REGISTRAR OF TITLES

Third Defendant

Mount Hagen: Poole, J

2013: 23 May

EQUITY – Property held on bare trust – Creation of absolute interest – beneficiary entitled to terminate trust and require transfer of trust property.

COMPANY LAW – Section 378 of Companies Act – time for Registrar to restore a company to register - Capacity of de registered Company to transfer trust property – Section 372 of Companies Act – Power of Registrar as representative of defunct company to act for company.

Cases cited:

Saunders v Vautier (1841) 3 My & Cr, 711

Loke Yew v Sweetenham Rubler Co Ltd [1913] AC 491

Lord Shathcona Steamship Co. Ltd v Dominion Coal Co Ltd [1926] AC 108 Howie v New South Wales Lawn Tennis Ground Ltd (1956) 95 CLR 132 National Provincial Bank Ltd v Airsworth [1965] AC 1175

Counsel

Mr Kunai, for Plaintiff

Miss P Tamutai, for the Defendants

23rd May, 2013

1. POOLE, J: This action is the culmination of a long standing dispute between various groups who are engaged in a bitter contest about ownership of real estate which was acquired for mission purposes, to spread the Gospel.

2. The conduct of the parties is notable for its lack of charity to their neighbours and the court file contains a great number of documents of varying degrees of relevance which deal more with questions of what, in the deponent’s view, may be regarded as true holiness rather than objective facts of property ownership.

3. The background of this unholy row may be summarized as follows:

· In about 1948 the Evangelical Bible Mission of Summerfield, Florida, U.S.A, dispatched a Mr Green Talbod Bustin to Papua New Guinea as a missionary. Over the years he was joined by a number of other similar minded people and several members of his own family joined him in his missionary endeavors.

· In the process of the mission work, Mr Bustin and his fellow missionaries set up a numbers of mission stations and centers in a number of places and, in so doing, applied for and were granted mission leases over land. These were registered in the name of the Evangelical Bible Mission. Eight of these properties are the subject of this action.

· The Evangelical Bible Mission of Florida, U.S.A. was a corporation under the laws of that State and, in January 1970, it became registered under the Companies Ordinance of 1968 as a Foreign Company. It was removed from the register of registered companies on 26 November 1965 and is recorded as re-instated on 11th August 2009.

· With the passage of time the mission became less dependent for its day to day conduct on the parent body in the U.S.A. and, in 1974, the Evangelical Bible Mission, both in its America head office and in Papua New Guinea, decided to set up a separate National, Papua New Guinea Church and named it Papua New Guinea Bible Church. It became incorporated under the Companies Act. By this time the Evangelical Bible Mission had been de-registered as a Foreign Company in Papua New Guinea, but remained recorded on the title to the real estate it had acquired.

· The American parent body, of course, continued to exist and, in March 1980, resolved that the Evangelical Bible Mission would, in the words of one of the former long serving Missionaries, Mr Robert Brock, who was present at the meeting, “now indeed turn all governing authority over to the Papua New Guinea Bible Church. This was stated to include placement of Missionaries, existing housing and real estate.” Another similar Missionary, Esther Hershy, deposed that she attended and voted at that meeting and stated that “all properties of Evangelical Bible Mission transferred to Papua New Guinea Bible Church which included all missionary housing and all real estate.” The same facts are deposed to by Mr. Jacob Miller, who was the Secretary of the Evangelical Bible Mission. Although the affidavits of these witnesses were taken by Notaries Public, unfortunately none of them annexed a Minute of the meeting formally recording this resolution. In any event, despite this decision being taken, nothing was done in Papua New Guinea to implement it.

· In time Mr Green Tallbod Bustin died and the First Defendant, who says he is a director of and shareholder in the now re-instated Evangelical Bible Mission (P.N.G.) Ltd, instituted action in his capacity as Public Curator against the Registrar of Companies and the Investment Promotion Authority (OS 19 of 2009) and was party to OS 22 of 2009 between Papua New Guinea Bible Church Inc and the Acting Public Curator, Julius Pololi. These proceedings concerned the estate of the deceased. Act on OS 9 of 2009 sought Orders to reinstate the Evangelical Bible Mission and resulted in an Order re-instating it to the register.

OS 242 of 2010 was brought to set aside that Order which was made, by consent, and endorsed by the Court on 5 August 2009. This was Ordered on 2 April 2012. On that day the Court also declared that Evangelical Bible Mission Incorporate changed its name on 9th October 1981 to Papua New Guinea Bible Church Incorporated pursuant to section 9(3)(b) of the Associations Incorporation Act. An Association Search dated 11 February 2012 shows that Papua New Guinea Bible Church was recorded as being incorporated on that day, not that the Evangelical Bible Mission changed its name.

4. Be that as it may, the position has now evolved whereby the Defendants are asserting that the Evangelical Bible Mission Incorporated is a valid legal entity as from 11th August 2009, and the properties are vested in it absolutely.

5. It is common ground, both in the evidence of the Plaintiff and from the First Defendant, that the express intention of the Evangelical Bible Mission was that its real property was to be transferred to the Plaintiff- although no time was expressed for doing this and, apparently though neglect, this was not acted on.

6. The Plaintiff, for many years, has been occupying the properties, but now, on the purported re instatement of the Evangelical Bible Mission in 2009, the First Defendant and others are asserting that the Plaintiff has no right to occupy the land nor claim to any entitlement in it.

7. The issues to be determined are:

1. What is the status of the party recorded on the title to the properties, and

2. What party is the beneficial owner of the properties;

8. The titles still record the Evangelical Mission (PNG) Ltd as the owner of the properties. This company, as previously noted, was deregistered on 26th November 1965.

9. The First Defendant, Mr Wagun, states that this company was re- instated and that he is a director and a shareholder of it. He asserts that this re-instatement took place on 11th August 2009.

10. When a company is removed from the Register the Companies Act states, explicitly, the consequences.

11. The first in importance, in relation to this case, is contained in section 378 of the Companies Act, which sets out the conditions upon which the Registrar may restore a company to the register. The relevant parts of that section are sub section (1), (2) and (3) and are in these terms.

378. Registrar may restore Company to Register

(1) Subject to this section, the Registrar shall, on the application of a person referred to in Subsection (2), and may, on his own motion, restore to the register a company that has been removed from it during the previous six years where the Registrar is satisfied that, at the time the company was removed from the register-

(a) the company was still carrying on business or other reason existed for the company to continue in existence; or

(b) the company was a party to legal proceedings; or

(c) the company was in receivership, or liquidation, or both; or

(d) the company should not have been removed from the register.

(2) Any person who, at the time the company was removed from the register, was-

(a) a shareholder or director of the company; or

(b) a creditor of the company; or

(c) a liquidator, or a receiver of the property, of the company; or

(d) any aggrieved person,

May make an application under Subsection (1).

(3) Before the Registrar restores a company to the register, the applicant in Subsection (2), or where there is no applicant, the Registrar, shall give public notice, in a format approved by the Registrar setting out-

(a) the name of the company; and

(b) the name and address of the applicant; and

(c) the section under, and the grounds on which, the application is made or the Registrar proposes to act, as the...