Mandari v Kambuka [2020] PGDC 59; DC5050 (22 December 2020)

DC5050

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL COURT JURISDICTION]

IN THE MATTER OF COMPLAINT No. 9 of 2020

BETWEEN

GABRIEL MANDARI

Complainant

AND

MALAKAI KAMBUKA

First Defendant

AND

SAMMY MARIPAL

Second Defendant

Madang: Kome, B

2020: 22 December

CIVIL- Proceeding Seeking Restraining Orders – Defendant’s application by way of Notice of Motion to revoke Orders sought by Complainant - Background issues of ownership of land & properties discussed to enable Parties to appreciate Court’s Ruling – Court to only deal with the Restraining Orders – District Court Act, 1963, Sections 209 & 210

Cases cited:

Nil

Counsel

Mr Tabai for Complainant

Defendants in person

DECISION

INTRODUCTION

1. 2020, 28 October, Kome, B, A/PM. Complainant, Gabriel Mandari, filed this proceeding seeking certain Restraining Orders against the two (2) Defendants on 20 February 2020 pursuant to Sections 209 & 210 of the District Courts Act, 1963. Complainant and Defendants are members of a church known as “Family Life Centre Church” (herein after referred to as “the church”).
   
2. Things seem to have started well for this church and after operating, they constructed a number of buildings including the church building on the land described as Lot 1, Section 29 (herein after referred to as “the Land”), along Bougainvillea Drive in Madang. However, after some time, disputes arose between the Complainant who is the Pastor of the church and its members.
   
3. Complainant then applied for these Restraining Orders for his protection and that of his family. Taking into consideration that parties belonged to the same church, the Court advised them to mediate and reconcile between themselves on a number of occasions but that did not eventuate for reasons only known to them.
   
4. Defendants had also filed a Notice of Motion (NOM) on 24 February 2020 to revoke the Orders sought by the complainant based on the grounds that it was misleading and false. After the failed Court ordered mediations, Court then set the Defendants’ NOM for Hearing which took place on 28 October 2020.
   
5. This ruling is based upon this NOM.

BRIEF BACKGROUND INFORMATION

6. The Court is of the view that it should discuss a number of brief background information, especially in regard to the causes of the problems between the parties so that they can have an understanding as to how the Court will arrive at its Ruling.
   
7. At this juncture, the Court would like to point out an important fact which is that the Land upon which the church and the other buildings were built on is owned by the Madang Urban Local Level Government (MULLG). This was clarified in a letter from the Director of Natural Resources, Madang Provincial Administration, Mr. Francis I Iram.
   
8. Mr. Iram stated in that letter that they had allocated the Land on a temporary basis to the church for them to use and that when the title holder (MULLG) has plans to develop it, the church and its members would be told to vacate the land.
   
9. Taking into consideration that both parties had no right to the land and that the properties on the Land belonged to the church, the Court, as stated above, had directed them to mediate the matter but that did not produce any positive outcome. This resulted in the Court proceeding to hear the Defendants’ NOM.
   

SUBMISSIONS

10. The Defendants made oral submissions and also filed a number of affidavits as evidence. They basically submitted that the Complainant and his family were the main party causing the problems and that they had tried to settle these problems through mediation and so forth but Complainant and his family had continued to be stubborn and escalate the problems. Defendants also maintained that they had the support of the church members and elders.
    
11. Counsel for Complainant, Mr. Tabai on the other hand, argued on behalf of his client that the restraining orders were sought because of threats and violence from the Defendants, and unless the Defendants gave their assurance that they will cease such actions, the Restraining Orders cannot be revoked. He stated that the Restraining Orders were for the protection of his client and his family and their properties.
    

ISSUE:

12. Whether the Restraining Orders should be revoked.

RELEVANT LAWS:

13. The following are the relevant laws in this proceeding: Sections 209 & 210 of the District Court Act:
    

209. INFORMATION PRAYING FOR SURETY OF THE PEACE.

Where a written information is laid before a Magistrate that a person has–

(a) threatened–

(i) to do to the complainant or to his wife or child, or a person under his care or charge, bodily injury; or
(ii) to burn or injure his house; or
(iii) to commit a breach of the peace towards him or his wife or child or that other person,

or to procure others to commit any such injury; or

(b) used language indicating an intention to commit any such breach of the peace or to do any such injury or procure it to be committed or done,

and that the complainant is in fear of the defendant, and the complainant prays that the defendant may be required to find sufficient sureties to keep the peace, proceedings may be had under this Part.

210. INFORMATION PRAYING FOR SURETY TO BE OF GOOD BEHAVIOUR.

Where a written information on oath is laid before a Magistrate that a person is a person of evil fame, and the complainant prays that the defendant may be required to find sufficient sureties to be of good behaviour, proceedings may be had under this Part.

DISCUSSION – APPLICATION OF LAW TO THE FACTS

Findings & Decision:

14. As stated above, even though this is an Application for Restraining Orders, the Court feels that the issues raised above in paragraphs 6-9 should be discussed in some detail to appreciate the ruling of the Court.
    
15. The Court has considered the evidence before it, and is of the view that the root cause of the violence and threats between the parties are twofold, which are stated below:
    
    1. The violence and threats between the parties have arisen mainly because of disputes over the church properties, including other things like the collection and use of tithes.

2. In relation to the above point, disputes have also arisen as to who should be residing on the properties that the Complainant (Pastor) and his family currently reside in.
   

16. Without the need to go into all the evidence before the Court, it is obvious that this Court would not have any power to make orders as to who owns the properties and who should reside on the property. First and foremost, this case is not to determine who owns the land and properties. Secondly, even if this Court has powers to decide ownership, it cannot do so based on these two (2) facts:
    
    1. Both parties do not have any rights over the land, and
    2. Court cannot make a ruling as to who should stay on the properties as the properties (not the land) belong to the church and not individuals.
       
17. In line with the above discussions, it is quite clear that the church should be the entity to decide all its business matters including, decisions as to who should stay on the property and who should not and also other issues like who collects tithes and so on and so forth. It is obvious that the Church is not a person so such decisions should be made in line with the Constitution or By-laws of the Church if it has any and not by individuals.
    
18. The Court wishes to make it clear that all the above is mostly obiter dictum. The Court has only raised it to understand the background of this case and the root causes of the violence and threats and also to make it clear what the powers or jurisdictions of the Courts are.
    
19. Having outlined the above, the Court has now made it clear that it will only concentrate on the issue at hand, which is basically whether the Restraining Orders sought by the Complainant should be revoked or not.
    
20. Taking all the above into consideration the Court is of the view that it cannot revoke the Restraining Orders as per the application by the Defendants. The Court is of the view that the Restraining Orders should be made permanent over a period of time basically to protect the lives of individuals and properties while the church members try to sort out their issues.
21. The Court also notes here that this ruling of the Court has already dealt with the substantive issues of the proceedings and thus will make substantive retraining orders here.
    
22. In regard to costs, parties shall bear their own costs.
    

ORDERS

The Court makes the following orders pursuant to Sections 209 & 210 of the District Court Act:

1. Complainant and the Defendants and all their servants, agents, family members and associates are restrained from damaging each other’s properties and those of the church.

2. Complainant and the Defendants and all their servants, agents, family members and associates are restrained from intimidating, provoking, assaulting and threatening each other physically, or by way of any other form of media communication like social media.

3. Parties are to stay away from each other at least 100 meters and are only to come into contact for purposes of resolving their issues by consent and in a peaceful manner.

4. At the moment, Complainant and his family can remain on the church property while the concerned parties sort out their differences.
5. These orders are made permanent and are to be in place for the next twelve (12) months.
6. Police are empowered to arrest and charge any parties or individuals who breach the above orders.

7. Parties to meet their own costs.

_________________________________________________________________

Lawyers for the Complainant: Tabai Lawyers
Lawyers for the Defendant: Defendant in Person