Bible Fellowship Church v Yamo [2007] PGDC 156; DC825 (10 September 2007)

DC825

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
CIVIL JURISDICTION

PMDC NO: 679 OF 2007

BIBLE FELLOWSHIP CHURCH
Complainant

STANLEY YAMO
Defendant

Port Moresby: Pupaka, PM
2007: 4th September

Civil proceedings – Eviction proceedings – Section 6 of Summary Ejectment Act – Complainant squatting on vacant State land – Eviction order under Ejectment Act not possible – Complaint based not on title or ownership – Bases of complaint is an assertion of a better right to possession – Equitable relief.

Civil proceedings – Eviction orders sought on the bases of possessory rights –Defendant shows no better or equivalent right in equity – Complainant initially invited defendant to occupy premises – Complainant’s apparent authority – Defendant cannot deny complainant’s apparent authority – Estoppel situation – Principle of equitable estoppel applicable.

Civil proceedings – Defence and cross-claim – Inappropriate defence against eviction proceedings – Cross-claim filed without prior written notice or leave of Court in accordance with Section 153 of District Courts Act – Improper /irregular cross-claim – Also matters raised in cross-claim appropriately dealt with in a separate proceeding.

Issue of law – Title to land not bona fide in dispute – Neither party has title – Section 21 (4) (f) of District Court Act not applicable – Issue of which party has better right – Sole relief available in law is as to which part has a better right to possession of premises – Equitable estoppel applies.

Elder Mek Poka for the Complainant
J. Kumbu Sanga, by leave of Court, for the Defendant

10th September 2007

M. M.PUPAKA: This was actually meant to be a ruling upon a point of law. When submissions were called for it was anticipated that a ruling would make the issues become clearer for a much better resolution of the impasse that seems to have developed between the parties. It does however seem a ruling may yet put an end to these proceedings. In any event the ruling will cause an outcome which is fair and is more convenient for all parties concerned.

The complainant, by a set of Complaint and Summons upon Complaint, dated 28th March 2007, sought the following orders;

1. eviction order to evict the defendant from the premises;
   
2. the cost of the proceedings;
   
3. any other order the Court deems fit
   

The undisputed facts

Undisputed facts evident from a perusal of the various affidavits filed by the parties are basically the following:

Between the years 2000 and 2002 the complainant, by its representatives, purchased two plots of land around the general vicinity of the Moitaka Wildlife Sanctuary area, N.C.D., to establish a church for the people living in the area. A church, initially a canvas tent setup, was built. It was in time replaced by a proper building. The current church building is shown in a photograph annexed to one of the affidavits. It is no more than a structure with a roof and open walls. Also in time an adjacent run down dwelling house was bought by the complainant’s representatives and renovated to be used as the pastor’s house. One other photograph on file shows it to be an improvised lodging, of a kind no doubt common in and around that area.

It is not disputed that at least the land upon which these buildings stand was purchased by the complainant’s representatives, in two lots, to be used for the church buildings. It is primarily on the bases of this fact that the current eviction proceeding has been commenced by the complainant.

When the complainant was spreading its ministry and moving into the area, one Pastor Koya Alapi was the first pastor of the infant church. The defendant replaced him between 2001 and 2002. The improvements currently on the premises were put up during the times the defendant was pastor. In 2005 there seems to have been a fallout of sorts between the complainant and the defendant. It further seems the defendant’s fallout with the complainant was a consequential effect of an initial estrangement with the complainant of the original pastor of that church, Pastor Koya Alapi.

As a result of these estrangements the defendant was advised he could no longer pastor the church and that the complainant would arrange for him and his family’s costs of travel to their village. That of course did not happen. Instead the defendant seems to have adopted the view that he was not going to go away from the premises, even though it seems to be accepted by all that the defendant is no longer a pastor in the complainant entity.

In the circumstances the defendant was asked to vacate the church premises but he has refused to move saying he has a better right to remain in the premises as against the complainant and its representatives. His reasons seem to be the bases of the parties’ contention and so those will be more fully discussed further on.

The church lands or premises are composed of two plots purchased separately. The first plot bought has upon it the church building. It was purchased from a Goroka man. The second plot was purchased from a Chimbu man. The pastor’s house is located on the latter. The two plots of course are adjacent to each other.

It is a common fact that the land on which the church premises are located is State land. It is said the land containing the church premises and the surrounding areas are the property of the Civil Aviation Authority. So it goes without saying that those who ‘sold’ the two plots to the complainant can only have had some equitable right, if at all, of temporal occupation, as against the title holder. The ‘vendors’ could have held rights, if any, due to the acquiescence of the Civil Aviation Authority. Nevertheless occupants of the land are at the mercy of the Civil Aviation Authority. Therefore the complainant cannot have acquired any better right than that which the ‘vendors’ had. Needless to say that what changed hands was only temporal and any ‘buying’ or ‘selling’ did not affect the 3rd party title holder’s rights in law. That should continue to be the situation.

The disputed facts

The disputed facts are not really as such but it is essentially one general contention by the defendant that he has a better right to remain in the premises. His contentions actually form the bases of his defence to this suit. He has filed a defence and cross-claim in like terms. The defendant’s cross-claim would be dealt with separately, and fully, in due course.

The defendant says he put up the developments; the church building and the pastor’s house; the beautifying of the place and making the premises liveable generally, at his own expense and with no input what so ever from the complainant. The defendant also says the complainant has no title to the land so it has no right to evict him. He further raises other issues, in terms of unpaid salary etc, which will be properly addressed in the context of his cross-claim.
The applicable law

The principal relief sought is eviction orders so the applicable law is the Summary Ejectment Act. A quick perusal of the provisions of that Act indicates that the ejectment or eviction orders it authorises are available summarily upon the strength of clear title. This position is confirmed by the leading case authority in this area of law; the case of Gawi –v- Ready Mixed Concrete [1984] PNGLR 74. In that case the Supreme Court stated among other things that;

"Proceedings for recovery of possession of land under the Summary Ejectment Act are intended to provide a quick remedy to people who have a clear title to land or premises: they are not intended to be available where title to land is in dispute or unclear."

I would stress at the outset that the title to the land, on which the premises the complainant wants the defendant evicted from stands, is neither disputed nor unclear. It is not even in dispute. Title lies with someone else, namely the Civil Aviation Authority.

Incidentally the State, particularly the Civil Aviation Authority, is unaware of the dispute between these parties. The complainant and its representatives, including the defendant who was a member of it, until the fallout between them, are squatters on the land. Their long occupation of the land or improvements cannot alter their squatter status or affect any of the title holder’s legal rights.

Consequently this complainant’s prayer for eviction orders per se in these proceedings is misplaced and is not a relief that can be granted lawfully by this or any other Court. Therefore an order for eviction under the Summary Ejectment Act is not available as a matter of course in relation to the land at the centre of this dispute.

I must also say that there is no issue regarding the applicability of Section 21 of the District Courts Act here. Title to land is not bona fide in dispute. Since both parties’ have no title – it remains in a 3rd party as alluded to above – Section 21 (4) (f) of the District Courts Act, which is in the following terms, does not apply.

"(4) A Court has no jurisdiction in the following causes-

.......................................................................

(f) when the title to land is bona fide in dispute"

The issue in contention

However that finding, in relation to the Summary Ejectment Act cannot put to an end all the issues raised though. Both parties have asserted that they have certain equitable rights in relation to the premises that override any rights of the other. Therefore it is fair that the parties’ respective rights are ascertained, and finality, one way or other, is reached to resolve the impasse between them. The complainant also asked for "any other order the Court deems fit", so there is avenue still for the impasse to be resolved.

The complainant’s claim to exclusive possession is based on assertions of a better right, which incidentally is very much the same thing the defendant is saying.

Findings of facts

Some facts stand out. First of all, as stated, the complainant bought two plots of land, which were specifically intended to be used for a church building and a pastor’s house. The pastor’s house was built up from a rundown structure already on one plot. No one has disputed that the plots of land were utilized as intended.

Secondly the defendant and the other pastor similarly estranged from the complainant (Koya Alapi) may have been instrumental in securing the plots but the fact is that they represented the complainant and acted on its behalf, and did not chase any interests of their own. At the time of the purchases they never entertained any thought, like maybe one day they would take over the place for themselves. They were loyal to the complainant and chances are they would still be so loyal if there had been no fallout with the complainant.

The third fact that stands out is that the defendant was invited by the complainant to pastor at the church in question. He was an integral part and member of the complainant. In fact he seems to have been a pastor with the complainant elsewhere prior to being asked to pastor the church whose buildings he now wants to take over. The defendant earnestly wants this Court to accept that he was privately invited by his friend Pastor Koya Alapi to pastor at the church in question, and not the people who now speak for the complainant. However I cannot accept that. Even if there is no evidence to show that the complainant’s leadership formally endorsed the defendant’s placement at the church, there is also no evidence either to show that he was not endorsed. The complainant’s leaders could have stopped the defendant from being pastor at the church. They did not. He was pastor at the church for 5 years it seems. In any case the evidence shows that the defendant and Pastor Koya Alapi represented the ‘Bible Fellowship Church’. They never, in any matter, acted or made representations or did anything to the express exclusion of the complainant. There is no evidence to show that the defendant or Pastor Koya Alapi bought any of the plots of land for their own use. There is no evidence to show that their own money was used to buy any of the plots of land.

I get the distinct impression that the defendant and Pastor Koya Alapi were perhaps pioneers for the complainant, if not in whole of Port Moresby, at least in some parts of it, including the church in the centre of this proceeding. Therefore one may understand why the defendant feels the way he apparently does. When there is a change of guards in any organisation, nerves would be touched and alliances would be tested or broken. There is clash of personalities and fallout is inevitable, particularly within a loosely knitted organisation. In personality-centred small time independent churches, these sorts of things can happen. For instance, one pastor, perhaps estranged for backsliding or whatever, when asked to vacate church lodgings, may say to the new team "where were you people when I was blazing trails and walking the hard yards" or "do you think things were like this or this good when I started here? I preached in the mornings and evenings and during the day I broke my back trying to put together all the good things that you now see!"

Yet, all that notwithstanding, it remains a fact that things were done or created or put in place for the benefit of the church or the complainant entity. No one, including the defendant, can say that when he leaves or moves on, for whatever reasons, someone else would not come to pastor the church he leaves behind. He, like every mortal, must have known that he would move on sooner or later and others will take his place.

Fourth; this defendant cannot deny or question the power with which the complainant, or those who led and represented the complainant, paid for the use of the lands and called him to pastor at the church and lead the congregation that patronizes it. That power, and the right to freely exercise the power; is the apparent authority of the complainant that was referred to in this case during the various times it was mentioned. In exercising its power, the complainant could have appointed someone else other than this defendant to pastor the church during its formative years. Could the other pastor have said the same thing that this defendant is saying, given similar circumstances? Perhaps not, but we would never know that now.

The point is that the complainant seems not to have relinquished its apparent authority, whether on the bases any change in the complainant’s leadership or otherwise. Those who were in charge before and those that are in charge now, all have acted for the complainant, which remains the one and same entity. None of them expressly or impliedly relinquished the complainant’s authority.

A fifth point to note is that the defendant has demonstrated no better possessory right over the complainant. In fact the defendant is estopped from denying the complainant’s authority. He may have exerted energy and resources in establishing the infant church. However he never expected to walk away with any church buildings or premises. In the circumstances the defendant, by virtue of the equitable principle of estoppel, is prevented from denying that the complainant has superior interests than his own, if any. The defendant was entrusted with the responsibility of establishing the church. He was also entrusted with the responsibility of expending and growing the congregation. He seems to have lived up to expectations. However it would be stretching the imagination too far to say that the defendant has earned the right to possess or occupy the pastor’s house without the complainant’s consent.

Further, there maybe some truth in the defendant’s assertion that the complainant may have done little or nothing to assist him. However it does not necessarily mean that the defendant is consequently entitled to usurp the complainant’s possessory rights. The complainant may not have assisted him, or protected and sustained him, or may even owe him salary and wages but any such failures do not amount to the complainant’s rights being extinguished or the defendant having become vested with better rights as if by default, such as to entitle him to walk away with any church building. Perhaps if the complainant, as a church organisation, were to become defunct or ceased to exist, the defendant might become entitled to something, rights or otherwise. But nothing like that has happened. Moreover, until their fallout with each other, the defendant recognised and respected the complainant’s apparent authority all along. He served loyally under its authority. Therefore, he cannot now deny the complainant’s possessory or occupation rights that come with the pre-eminence of its power and authority.

Defence & Cross-claim

The essence of defendant’s defence has been dealt with above, in the context of the applicable law and findings of facts. There is no reason to traverse it again. Suffice it is to say that the defence raised has not been made out. It cannot be sustained when the defendant is estopped from denying the complainant’s equitable rights.

In relation to the cross-claim, I note that the defendant did not properly plead it. It is unclear whether the cross-claim is a suit on its own or whether it is a set-off under Section 153 of the District Courts Act. If the cross-claim has been filed as a set-off then, going by the court file records, it was filed irregularly. The defendant may have had no intention of suing for the things he asserted in his cross-claim, until he was served with the eviction suit by the complainant, so his cross-claim must be a set-off to the eviction suit. In any event it amounts to a defence of set-off to the eviction suit. However, because it offends Section 153 (supra), this cross-claim cannot stand.

There is nothing on file to indicate that the defendant informed the complainant in writing of his intention to file a set-off against the latter’s claim. No copy of any appropriate notice was produced in Court. Leave of court was also not sought or obtained prior to filing the cross-claim. A defendant’s right to file and serve a cross-claim is not automatic. A defendant can only do that in accordance with Section 153 of the District Court Act, which reads:

"Division 2.—Set-off.

153. Special defences to be notified to complainant.

(1) Without the permission of the Court, the defendant in a complaint for a debt recoverable before a Court shall not—

(a) set-off a debt or demand claimed or recoverable by him from the complainant; or

(b) set up by way of defence and claim and have the benefit of illegality, infancy, coverture, or a Statue of Limitations or of his discharge under a law relating to bankrupt or insolvent debtors,

unless, a reasonable time before the hearing of the complaint, written notice of his intention to so set-off or to set up that defence, as the case may be, has been given to the complainant personally or by post or by causing it to be delivered at his usual or last-known place of abode or business or at his address for service set out in the summons on the complaint.

(2) The defendant shall produce on the hearing a copy of the notice given under Subsection (1), and, unless it is admitted, shall prove that it was given in accordance with that subsection, and in default of that proof no set-off or defence specified in that subsection shall be set up except by consent."

It seems that after the original cross-claim was filed an amended version of it was inserted, which incidentally was done without first obtaining leave of Court. Failure to obtain leave of Court to amend does not matter in the end, because the initial failure to comply with Section 153 (supra) cannot be cured by any subsequent amendment. Therefore I must strike down the defendant’s cross-claim, including any amended version. It was irregularly and unlawfully filed.

There is further reason why the defendant’s cross-claim cannot be properly raised and progressed in this proceeding. Most of the heads of claim in it are not specific which renders them speculative at best. The aggregate value of the relief claimed may exceed this Court’s financial jurisdiction. The value of the house alone may exceed this Court’s monetary jurisdiction. The other heads of claim are unquantified and unknown, and their total value, on their own, could also exceed the Court’s monetary jurisdiction. For this reason I would again, separately, strike down the defendant’s cross-claim.

There is yet another reason why the cross-claim is untenable. The substance of the cross-claim ought to be raised as a separate claim on its own merits, for it does not and cannot, align well (as a cross-claim) to eviction proceedings. Eviction proceedings are summary proceedings. Even then there is no logic in the defendant claiming equitable rights over church property whilst he actively acknowledges the vary lack of any overriding equitable rights of his own. By suing for hardships suffered whilst serving as a pastor in the complainant organisation; or by suing for pay for being pastor in the complainant; and by suing for recovery of money allegedly spend on church premises, the defendant is in fact acknowledging the authority of the complainant and his own lack of any rights to the church properties.

Moreover the defendant has tried to claim ownership or claim exclusive right of use and occupation of the pastor’s house. Yet I cannot see how it is separate from the overall church premises. It is like splitting hairs to me. And the irony of the matter is that the house is described as "pastor’s house". It therefore seems to me to be an integral part of the whole church buildings and grounds. In any event I have already explained at length above, the reasons why the defendant cannot have or be entitled to have any overriding rights in any of the two plots of lands or the improvements on them, as against the complainant. I see no further need to repeat it again.

That said, I must add that there is nothing stopping the defendant from commencing fresh proceedings of his own. When a fully pleaded, separate proceeding is commenced by the defendant against the complainant in an appropriate court of competent jurisdiction, the issues of salary and hardships and expenditure of money would be properly litigated. The defendant of course would need to particularize the salary level he was to have been on; what extra efforts he put in beyond the call of pastoral obligations; and how much of his own resources he expended towards church business, including where he got his money from if those were not part of tithed funds. The court before whom the issues are brought to should rule on them, as and when the issues are brought to it. For the time being it is neither possible nor appropriate for this instant Court to deal with matters raised in the irregularly filed cross-claim.

Conclusion

For all of the foregoing there really is no logical reason to prolong finality to this case, when the only relief that may possible to be granted is clear and open, almost solely upon the undisputed facts. That sole possible outcome is the declaration of the parties’ respective rights to use and possess and occupy the church premises located within the vicinity of the Moitaka Wildlife Sanctuary area and consequential orders.

I have found that the complainant’s rights to the exclusive use and occupation of the two plots of land and the improvements upon them cannot be denied by the defendant. I did so find in accordance with the principle of equitable estoppel. On the strength of that finding I further find that the complainant is entitled to the quite and peaceful occupation of the church premises including the church building and the pastor’s house.

The complainant’s enjoyment of these rights is of course subject to the lawful rights of the absent 3rd party title holder and certainly, as one may think, at the latter’s continued acquiescence.

Consequently I order that the defendant give up vacant possession of the church building and the pastor’s house to the complainant within 30 days from the service of the formal orders.

Further, having found the defendant’s cross-claim to have been filed irregularly and also having found it to be not an appropriate defensive pleading to the complainant’s eviction proceeding, I strike out that cross-claim.

I state for the record that the defendant is at full liberty to properly commence fresh proceedings in relation to any of the causes of action mentioned or alluded to in his cross-claim, except the issue of his claim to a right to use and occupy the pastor’s house. The rest of the causes the defendant pleaded in his cross-claim are yet to be litigated or adjudicated upon on the merits so there would be no res judicata situation in relation to those issues.

The complainant shall have his costs of these proceedings, the same to be taxed if not agreed.

_______________________________________________

Elder Mek Poka stood in for the Complainant
Parkil Lawyers for the Defendant