Evangelical Brotherhood Church v Assemblies of God Church [2010] PGDC 71; DC4055 (17 November 2010)

DC4054

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]

DCCi of 2008
BETWEEN

Evangelical Brotherhood Church
Complainant

AND

Assemblies of God Church
Defendant

Kundiawa: S. Lavutul

2008: 24^th July, 13^th August, 4^th, 23^rd September, 07^th, 15^th 0ctober,
2009: 10^th December,
2010: 16^th February, 30^th March, 30^th April, 11^th, 19^th May, 16^th June,
04^th, 05^th, 09^th, 18^th August, 03^rd September, 04^th, 06^th October

CIVIL – Recovery of possession- Application under Section 6 of the Summary Ejectment Act- Occupation of Land without Right, Title, License and/or Certificate of Occupancy- Orders for Eviction/Warrant to Enter and Return Possession to Legal Owner.

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

References
Section 6 of the Summary Ejectment Act.(202)

Appearance
Complainant appeared for by Pastor Timothy Nombril
Defendant appeared for by Pastor Marigold Yegiora

DECISION

17^th November 2010

SLavutul: This is an action brought by Senior Pastor Timothy Nombril on behalf of the Complainant, the Evangelical Brotherhood Church against the defendant, the Assemblies of God, claiming the defendant is in illegal possession of their portion of land to wit Allotment 30 at Section 10 in Kundiawa Town. This proceeding was instituted under Section 6 of the Summary Ejectment Act on the 26^th of June 2008. The Complainant is seeking the following orders;

1. An order to evict the defendant, it’s servants, agents and associates from its portion of land at Section 10 Allotment 30 in Kundiawa Town, Simbu Province.
2. An order to permanently restrain the defendant, its servants, agents and associates from interfering with the Complainant, it s servants and agents to the use of the land.
3. Any other orders the court deems fit.

2. The defendant even though with their issue of “loco standi” in the best interest of justice were given the opportunity to be heard, I briefly recollect the history of this proceeding; from court records after several appearances in 2008 the matter was stayed and was referred to the Department of Lands and Physical Planning by an order of 15^th of October 2008.

3. The matter was then relisted before the court after attempts to have the matter sorted out by the Department of Lands and Physical Planning presumably failed. However both parties were given every opportunity to have the matter settled out of court even after the matter was relisted before this court. That also failed and the court ordered that the matter be set for hearing. Both parties were given the opportunity to be heard including their witnesses on the 6^th of October 2010. The court also had the opportunity to visit and inspect the portion of land with the assistance of both parties.

PLEADINGS

4. The Complainant contends that they have a legal state lease to Allotment 30 at Section 10, Kundiawa town in which the defendant and its servants are in illegal possession of.

5. Whilst the Defendant contends that upon the permission and approval of the then Provincial Lands Officer namely Senny Kai; they moved in, cleared and improved the said portion of land in about 1987. And that they did spent a considerable amount of money on the improvement.

6. Senior Pastor Timothy Nombril on behalf of the complainant, testified the Evangelical Brotherhood Church is the legal title holder or lease holder to the property described as Allotment 30 at Section 10, in Kundiawa Town as supported by Annexure A (a true copy of the state lease/title to the property) which was issued on the 27^th of September 2004.

7. In 2004 attempts by the Complainant and its servants to take possession of the said property were prevented by the defendant and its servants.

8. The Complainant then engaged a private Surveyor namely Duambo Surveys to survey the said land then complied a report confirming that the defendant and its servants had encroached onto the Complainant’s land to wit Allotment 30 at Section 10. This is supported by Annexures B and C, a true copy of the letter dated 15^th of August 2008 from Duambo Surveys, including a true copy of the Survey Report dated the 23^rd of October 2004.

9. Pastor Timothy added this dispute was also referred to the Provincial Lands Office for deliberation and wrote advising that the property was a mission lease granted to the EBC church. This is supported by annexure D is a true copy of the letter dated 28^th October 2008 from the Provincial Lands Officer.

10. They therefore contended they have clear title to the property and want AOG church to move out and allow them the peaceful and quite enjoyment of their property.

11. On the contrary; Senior Pastor Marigold Yegiora on behalf of the defendant AOG church stated they applied for the two (2) allotments (28 and 30). However due to the size of the allotments they were advised by the then Lands Officer namely, Senny Kai to keep both allotments and apply to formalize their occupancy of the other piece of land.

12. Based on the advice of the Lands Officer they then improved both allotments and formally applied to the Department of Lands and Physical Planning in Port Moresby for official allocation. Unfortunately their application was not considered by the Land Board and the allotment was awarded to the Complainant. Despite having filed an appeal against the Land Board’s decision they have yet to receive a reply.

13. Pastor Marigold added they are prepared to give the land to the complainant except that the land is one (1) feet apart. She claims their right to enjoy their portion of land will be greatly hampered especially on Sunday main worship.

14. Moreover, Pastor Marigold claims they have put substantial improvement by grading the land, building drainage and putting up two (2) houses, a prayer house and a pastor’s house.

15. She claims the Lands Department was at fault and they should sort out their mess, in pursuant of this issue cited is Annexure B a letter dated the 14^th of August 2008 addressed to the Secretary of the Department of Lands and Physical Planning written by Mr. Francis Yegiora, as the Church Administration Officer on behalf of the defendant Church clarifying the issue and what had transpired in relation to the land in issue .Whilst Annexure C is a letter of acknowledgment dated 21^st May 2009 by one Vele Serek from the Department of Lands and Physical Planning on behalf of Tiri J. Wanga the a/Land Allocation Manager as reply to Mr.Yegiora’s letter dated the 14^th of August 2008.

16. Witnesses Francis Yegiora and Pastor Banda affirmed the evidence of Pastor Marigold. Francis claims upon the allocation of the land the Land Officers, Senny Kai and Jerry Kapal undertook to arrange for issuance of the Certificate of Occupancy. Upon the words and undertakings of the Land Officers they cleared developed the land.

17. Francis added despite their application for the said land after it was tendered on the Government Gazette, the land was awarded to EBC Church. He claimed they lodge an appeal challenging the Land Board decision and he assumed it may have not been considered and were not notified of the outcome.

18. Both parties agreed the Complainant have a legal title to Allotment 30 at Section 10, the portion the subject of the dispute. And that the Defendant and its servants are currently in possession of the said property.

ISSUES

a). Whether the Assemblies of God Church has any right and/or interest in law in order to continue occupying the said land/property.

b). The improvements and cost of improvements on the land and whether EBC as the Complainant and holder of clear title is liable to pay costs to the defendant AOG Church.

Deliberations

19. First I am satisfied the Evangelical Brotherhood Church as the complainant has clear title to Allotment 30 at Section 10 at Kundiawa Town, Simbu Province as per the state lease granted by the Minister on behalf of the Independent State of Papua New Guinea and signed on behalf of the Independent State of Papua New Guinea by a delegate of the Minister on the 27^th of September 2004. Thus supported by Annexure A (Owners copy of State Lease) and Annexure C clarification letter dated 28^th October 2008 by one Lawrence Kambu of the Provincial Lands Office, Kundiawa, I presume written after the court order of the 15^th of October 2008, which read in part and I quote “... 3. Lot 30, Sect. 10 was granted to EBC for Special (Mission) purpose, 4. It is now registered under Evangelical Brotherhood Church for ninety (99) years lease, commencing on 18/05/1995 to 17/05/2094. Copy of the Title is enclosed for your reference” as tendered in evidence by Pastor Timothy on behalf of the Complainant.

20. Secondly, the defendant and its servants had encroached onto the complainant’s land by erecting two (2) buildings inside Allotment 30 at Section 10. This was clearly visible when the court physically inspected the property with the assistance of both parties.

21. This was also confirmed by the copy of the letter marked as Annexure B and a copy of the Survey Report marked as Annexure C done by Duambo Surveys dated 15^th of August 2008 and 23^rd of October 2004 respectively as tendered in evidence by Pastor Timothy on behalf of the complainant. Thus the Survey Report read in part and I quote “...The survey also revealed 2 permanent houses erected by AOG (the tenant of allotment 28) being entirely on the subject allotment (allotment 30). One building (Residence) is in allotment 30 and the other (office), is on road frontage of allotment”.

22. The evidence by the Pastor Timothy on behalf of the complainant weren’t rebutted by Pastor Marigold on behalf of the defendant.

23. Now Section 6(1) and 6 (2) of Summary Ejectment Act clearly stipulates;

“(1) Where a person without right, title or licence is in possession of premises, the owner may make a complaint to a magistrate of a District Court to recover possession of the premises, the magistrate may issue a summons in the prescribed form to the person in illegal occupation.”

“(2) Where the person summoned under Subsection (1) -

(a) ...
(b) Appears and does not show cause why possession of the of the premises should not be given,

the Court may, on proof of the matter of the complaint, issue a warrant directed to a member of the Police Force requiring him, on or before a day specified in the warrant-

(c) to enter, by force and with assistants if necessary, into the premises; and
(d) to give possession of the premises to the complainant.

24. From reading Section 6(1) of the Summary Ejectment Act the requirement on the other hand the person making the complaint must have right, title or licence in order for him to be qualified to have standing to lay a complaint and seek orders and vice versa. In this instant EBC through its Pastor Timothy have legal standing to lay a complaint and seek orders from this court as they have clear title to the property (Allotment 30 at Section10). This right is legally imposed upon them by law through their title.

25. On the other hand from the evidence by Pastor Marigold and her witnesses on behalf of the defendant does not disclose their right in law, title, or licence to continuously hold possession to the complainant’s property. In this instant AOG’s right in law would be a certificate of title over the property as conclusive evidence in which it does not have.

26. Having considered the evidence, AOG’s rights remains in equity and not in law in view of the two (2) properties and improvements on the said allotment. AOG have continuously held the said property without right, title or licence.

27. Mr. Francis Yegiora in his evidence confirmed, despite their verbal arrangement with Lands Officer Senny Kai over Allotment 30 at Section 10 for the AOG Church to go ahead and take possession of it and a Certificate of Occupancy to be arrange against it, it never eventuated until the lease against it was granted to the Complainant, EBC.

28. The second issue is on whether EBC as the lawful owners of the property would be liable for costs directly associated to the improvements and development on their land. Although I am of the view this not the right avenue for this issue, I feel obligated to make some clarification on this issue.

29. First evidence indicated very clearly that the arrangement for AOG to also take possession of Allotment 30 was directly between the Department of Lands and Physical Planning through its officer Senny Kai and AOG through its leaders. The complainant never had interest in the said property, only after the property was tendered as vacant and a lease was granted to it on the 27^th of September 2004.

30. The evidence before this court does not show that there was some agreement or undertaking made by the complainant to defendant in relation to the current improvements on the land. It was solely an arrangement done out for good faith between the defendant and the Department of Lands and Physical Planning through its officer.

31. The complainant in my view was a bona fide applicant who responded to the notice in the government gazette in relation to the said vacant land and was awarded the land based on the consideration of the Land Board which deliberated on the applications including that of the defendant.

32. In my view the defendant is at liberty to sue for damages at the proper forum, which is the National Court in light of the monetary evaluation filed before this court.
33. However in relation to the issue before me I adopt the view in Herman Gawi –vs- PNG Ready Mixed Concrete (PNG) Pty Ltd [1984] PNGLR 74 which clearly established as precedent in the majority that “(1) Proceedings for recovery of possession of land under the Summary Ejectment Act Chapter 202 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.(2) A judicial assumption for purposes of a hearing to determine occupiers rights that a party had a legal estate in the leasehold but without making a positive decision to that effect is not declaratory of the party’s right and is not evidence of clear title sufficient to found proceedings for recovery of land under the Summary Ejectment Act”.

34. I hereby conclude that the complainant have clear title to allotment 30 at section 10 and have absolute right to retain possession of its property from the defendant and its servants.

35. Orders entered accordingly

Complainant appeared for by Pastor Timothy Nombril
Defendant appeared for by Pastor Marigold Yegiora