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Evangelical Lutheran Church of Papua New Guinea v Biang [2022] PGNC 503; N10022 (16 November 2022)

N10022

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 65 OF 2021

BETWEEN:
THE EVANGELICAL LUTHERAN CHURCH OF PAPUA NEW GUINEA
-Plaintiff-

AND:
JOHN BIANG, TIMI JIABE, WARES WENG, KALEP DAMBI & ALL THE OTHER ILLEGAL SQUATTERS ON PORTION 329, AMPO, LAE, MOROBE PROVINCE WHOSE NAMES APPEAR IN THE SCHEDULE ATTACHED TO THIS WRIT OF SUMMONS
-Defendants-

Lae: Dowa J
2022: 31^st October 11^th & 16^th November

LAND LAW – state lease – application seeking orders for vacant possession of property – plaintiff is registered proprietor of state lease – defendants alleged to be squatters residing on vacant portion of the state lease – defendants argue they are residing on parts of customary land not covered by the state lease – whether plaintiff is registered proprietor of state lease- whether court should grant relief sought -Plaintiff is registered owner of Portion 329, Ampo, Lae, Morobe Province – plaintiff is entitled to vacant possession of the property – defendants to deliver up vacant possession of portion 329 to plaintiff within 4 months from date of this order – defendants and their relatives are restrained from remaining on portion 329 – defendants to pay plaintiff’s costs

Cases Cited:

Mudge -v- Secretary for Lands [1985] PNGLR 387
Godowan Investment Ltd v Wambea (2018) N7263
Jure Investment v Conlife (2018) N7286
Paga Hill Development Company v Daure Kisu (2014) N5683
Laka v Nui (2013) SC1223
Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144

Counsel:

S.Gor, for the Plaintiff
No Appearance by the Defendants

DECISION

16^th November, 2022

1. DOWA J: The Plaintiff is seeking judgment for vacant possession of land described Portion 329, Ampo, Lae, Morobe Province, and other consequential orders.

2. By Originating Summons, the Plaintiff seeks the following orders:

1. Pursuant to section 33 of the Land Registration Act Chapter No. 191 and Order 12 Rule National Court Rules, a declaration that the Plaintiff as the registered owner of Portion 329, Ampo, Lae, Morobe Province (Portion 329), is entitled to vacant possession of the property as against the Defendants and their relatives, family members, friends and associates.
   
2. Pursuant to Order 12 Rule 30(1) National Court Rules an order that the Defendants deliver vacant possession of Portion 329 to the Plaintiff forthwith.
   
3. Pursuant to Order 13 Rule 3(2) National Court Rules an order to restraint the Defendants (and their relatives, family members, friends and associates) from remaining in possession of Portion 329.
   
4. Pursuant to Order 14 Rule 10 and Order 12 Rule 1 National Court Rules an order to restrain the Defendants (and their relatives, family members, friends and associates) from remaining in possession of Portion 329.
   
5. In addition, and in the alternative damages against the Defendants to be assessed for trespass and unlawful occupation of Portion 329 for a substantial period of time.
   

Background Facts

3. The Plaintiff is a Christian church organisation established under the Lutheran Church of Papua New Guinea Act. It is the registered proprietor of land, described as Portion 329, Ampo, Lae, Morobe Province, contained in State Lease, Volume 21 Folio 28.

4. Portion 329 is a huge land containing several hectares. It contains substantial improvements, which include the headquarters of the Lutheran church, buildings for the offices and staff houses.

5. The Defendants are residing on vacant parts of the land. Despite repeated requests by the Plaintiff to give up possession, the defendants have not vacated. This resulted in the current proceedings. The defendants filed a defence disputing the Plaintiff’s claims for various reasons set out in their defence. The main reasons are that they are living outside the boundary of Portion 329 and that the early German missionaries have allowed them to settle on that strip of land.
   

Issues

6. The issues for consideration are:

1. Whether the Plaintiff is the registered proprietor of Portion 329, Ampo, Lae Morobe Province.
   
2. Whether the Plaintiff is entitled to the reliefs it seeks.
   

The Plaintiff’s Evidence

7. The Plaintiff relies on the following affidavits:

(1st) Affidavit of Bernard Kaisom sworn: 05/04/2022 & filed: 08/04/2022.
(2^nd) Affidavit of Bernard Kaisom sworn: 25/052022 & filed: 31/05/2022.

8. The summary of the Plaintiff’s evidence as deposed to by Bernard Kaisom is this.

He is the Church Secretary of the Plaintiff the Evangelical Lutheran Church of Papua New Guinea (ELC PNG). The Plaintiff is a body incorporate established under the Evangelical Lutheran Church of Papua New Guinea Act 1992 (the Act). That the Church is the registered proprietor of land described as Portion 329, Ampo, Lae, Morobe Province, contained in Certificate of Title Volume 21 Folio 28, (a copy of the title being attached to his affidavit). He deposed that erected on Portion 329 is the Headquarters of the Church, commonly called Ampo. It has all the buildings for the offices, staff houses and many other improvements. That the Defendants are squatting on the strip of land at the back of the staff houses to the Church within the boundary of Portion 329. This squatting by the Defendants has never been allowed or approved by the National Church Council. The squatting has been going on for a very long time and that the Defendant has erected houses, dwellings, shelters, fences, and other improvements and have planted food crops. Despite numerous verbal and written notices to the Defendants to vacate, they defy those notices and continue to squat on the land, causing nuisance and disturbances.

DEFENDANTS’ EVIDENCE

9. The Defendants did not attend court to give evidence, but I have considered their affidavit evidence as deposed to by the following defendants:

(1^st) Affidavit of Kalep Dampi sworn 26 / 07/ 22 & filed 03/08/2022

(2^nd) Affidavit of Elizah Manah sworn: 26/07/2022 & filed: 03/08/2022

(^3rd) Affidavit of Maunala Sapong sworn: 26/07/2022 & filed: 03/08/2022

4th) Affidavit of Pastor Jonathan Ainge sworn: 26/07/2022 & filed: 03/08/2022

5th) Affidavit of Bosing Emos sworn: 26/07/2022 & filed: 03/08/2022

10. This is the summary of the Defendants’ evidence. The defendants are members of the Kote Memorial Lutheran Church. Originally from Finschaffen, they are currently residents of Hanta, Lae city, Morobe Province. They are either children, or grandchildren of early mission workers brought in by the early German missionaries, Rev. Schumutterer and Rev. Dr. Kyser to establish the Lutheran mission headquarters at Ampo. The late Bishop Dr J Kruder, and the church station manager, and the customary landowners of Butibam allowed the defendants’ parents to reside at a strip of land near the boundary to the church property. The defendants testify that currently some of them are church leaders while many are workers with the Plaintiff church. They are not illegal settlers. They reside close to but outside of the boundary of the church property. They are residing on customary land owned by the Hong clan of Butibam. The Kote Memorial Church is also outside the boundary of Portion 329. They dispute the perimeter boundary of Portion 329 relied on by the Plaintiff insofar as it extends to the area they are residing. They allege the boundary was illegally extended only recently in 2019 by the current church administration. They are assured by the original customary landowners, the Hong clan of Butibam, that they (defendants) are living on customary land and not on the Plaintiff’s land as alleged.

Submissions of Counsel for the Parties

11. Mr. Gor, counsel for the Plaintiff submitted that the Plaintiff is the registered proprietor of Portion 329 and has an indefeasible title to the property by virtue of sections 32 and 33 of the Land Registration Act. That the Defendants are unlawfully squatting on the land and dealing with same. The only way the Plaintiff’s title to the property can be challenged is by reason of fraud and other exceptions under section 33(1) of the Land Registration Act.

12. The defendants did not appear in court and made no submissions. However, based on their defence and the affidavits filed in court, the defendant’s case is this. The Defendants’ grandparents were allowed by the First Bishop of the Church, Dr. J. Ruder, in consultation with the customary landowners, to settle near to protect the boundaries of the church land and that they are not illegal squatters. They, as children of the pioneer church leaders and workers, have since established a church called the Kote Memorial Church and are living outside of the church boundary on the customary land and the Plaintiff’s proprietary interests does not extend to where they are living.

Consideration of the issues

Whether the Plaintiff is the registered proprietor of the land, Portion 329, Ampo, Lae, Morobe Province.

13. The Plaintiff has produced, a certificate of title, issued under State Lease, Volume 21 Folio 28 over the subject land, Portion 329, in the name of Evangelical Lutheran Church of Papua New Guinea. Section 32 of the Land Registration Act provides that where an instrument of title describes a person as the proprietor of an estate or interest, that person is the registered proprietor of the estate or interest. Section 33 of the Land Registration Act provides that a registered proprietor of an estate or interest holds it absolutely free from all encumbrances except for fraud and other exceptions set out in (1)(a) to (f). (Mudge -v- Secretary for Lands (1985) PNG LR 387)

14. The defendants have not disputed that the Plaintiff is registered as proprietor of Portion 329. They are, however, disputing the boundaries of the property in relation to the location of the area they are residing. The defendants have not presented credible evidence to dispute the Plaintiff’s property as to its proper boundary and therefore I reject the defendants’ claims.

15. If the defendants are serious about challenging the boundaries to the Plaintiff’s property in Portion 329, they can do so by bringing their own proceedings. For the time being, there is no bona fide dispute as to title of the Plaintiff.

16. I find as a matter of fact from the undisputed evidence that the Plaintiff is the registered proprietor of land described as Portion 329, Ampo, Lae under State Lease, Volume 21 Folio 28.

Whether the Plaintiff is entitled to the reliefs it seeks.

17. The Plaintiff seeks several reliefs in the originating summons. I will consider each one of them.

Vacant Possession

18. The first and second reliefs sought is a judgment for vacant possession and for the Defendants to deliver up vacant possession. This will involve the demolition and removal of any buildings, homes, structures, and improvements done on the property. As I have found, the Plaintiff is the registered owner of the Property, Portion 329. There is no bona fide dispute as to title. The Defendants and other unauthorised persons are illegally squatting on parts of Portion 329. It appears the Defendants, relatives and other persons have been residing on the land for many years. They have built homes and structures on the land. One might argue, the Plaintiff has not done enough and allowed the Defendants, and their agents to move in and settle on the land. However, the evidence shows the Defendants, knew many years back that the Plaintiff had a Title over the property. The evidence shows the Plaintiff has taken steps, requesting the Defendant to stay clear off the land. The Plaintiff is entitled to take up possession of the property and there is no good reason for refusing it. This may be difficult for the defendants, but it should not be a surprise as the defendants knew or ought to have known the consequences of settling on someone’s land without their consent.

19. In the case of Godowan Investment Ltd v Wambea (2018) N7263, Cannings J in dealing with a similar case said this at paragraphs 19-20 of his judgment:

“19. I have no hesitation in granting orders generally in terms of paragraphs 3 and 4. Such orders follow naturally from the declaration that the plaintiff is the registered proprietor of the State Leases over Section 173, Allotments 6, 7 and 8. The person who will be directly affected by such orders is the second defendant. He has erected buildings and other structures on the subject properties and conducts his businesses there. He invested in and improved the properties without the consent of the registered proprietor. That is a risk he voluntarily took and he has to bear the consequences of taking such a risk.

20. There is no evidence or suggestion that the plaintiff by its conduct acquiesced in the second defendant’s conduct. In fact, the evidence shows the contrary. The plaintiff warned him on several occasions that he was acting unlawfully. He took no notice and continued to develop the properties. There is no good reason for refusing the relief sought in the originating summons.”
    

20. I am therefore inclined to grant orders for vacant possession and for the defendants to deliver up vacant possession within the time frame the Court considers reasonable.

Writ of Possession

21. The third relief is an order for leave to issue a Writ of Possession. The law is settled. If a person moves in and settles on someone else’s land and builds homes and structures, he does it at its own peril. Such persons are entitled to an equitable interest of being granted a reasonable time to remove their structures and vacate the property. Refer: Jure Investment v Conlife (2018) N7286, Paga Hill Development Company v Daure Kisu (2014) N5683 and Laka v Nui (2013) SC1223.
    

22. In the present case, the Court has upheld the application for vacant possession. For the same reasons and as a matter of course, leave to issue a Writ of Possession be granted. In my view, a period of four (4) months is reasonable for the Defendants, their families and servants or agents to remove their homes and structures and deliver up vacant possession.

Permanent Injunction

23. The fourth relief is for an order in permanent injunction restraining all the Defendants, their families from trespassing on the subject land, and from threatening, intimidating or otherwise harassing the Plaintiff, its associates, agents, and employees living on the subject land.

24. Generally, a grant of an interlocutory injunction is discretionary. Its purpose is to maintain status quo until final determination. See Robinson v Airlines Corp (1983) PNGLR 476. A permanent injunction on the other hand is more serious and is sparingly granted. The Supreme Court in Medaing v Ramu Nico Management (MCC) Ltd (2011) SC144 discussed the law on permanent injunction. At paragraphs 58-63of the judgment, the court said, and I quote:

“58. The law in relation to the grant of permanent injunctions is summarised in the text Spry, Equitable Remedies, Injunctions and Specific Performance, Seventh Edition (1980). At pg.392, Spry (supra) states;

"In all cases, it is a matter of discretion whether an injunction will or will not be granted; but the manner of exercise of that discretion depends on the precise nature of the particular rights that it is sought to protect and on all other material circumstances."

59. Spry (supra) quotes further at pg.393 from the case Pride of Derby and Derbyshire Angling Association Ltd v. British Celanese Ltd [1953] ch.149 at 189, which states;

"An injunction may nonetheless, be refused, as a matter of discretion, should it appear to be unjust or 'highly unreasonable' to grant it, by reference to established equitable considerations such as laches, hardship, acquiescence, the absence of clean hands or such other matters. Further, statutory rights must be taken into account by the Court."
25. The Plaintiff, as the registered owner, is entitled to peaceful of the use of the property. It is not highly unreasonable or unjust to grant the orders sought. I will therefore grant an order for permanent injunction against the defendants.

Damages for Trespass
26. The alternative relief sought by the Plaintiff is for damages for trespass and unlawful occupation. I am not inclined to grant this relief. The reliefs granted are sufficient and to add onto the reliefs granted would be more burdensome to the defendants.

Costs

27. Finally, as to cost, it is discretionary matter. Generally, an order for cost is awarded to a successful party in a contested hearing. The proceedings have been defended and cost is incurred. In the circumstances, cost shall be awarded to the Plaintiff to be taxed.

ORDERS

The Court orders that:

1. The Plaintiff as the registered owner of Portion 329, Ampo, Lae, Morobe Province is entitled to vacant possession of the property as against the Defendants and their relatives, family members, friends, and associates.
   
2. The Defendants deliver up vacant possession of Portion 329 to the Plaintiff within four (4) months from date of this order.
   
3. Leave to issue Writ of Possession pursuant to the judgment for possession is hereby granted to be executed after the lapse of the four (4) months.
   
4. The Defendants and their relatives, family members, friends, and associates are restrained from remaining in possession of Portion 329.
   
5. The Defendant pay the Plaintiff’s cost after being taxed if not agreed.
   
6. Time be abridged.
   

_____________________________________________________________________
Fiocco Nutley & Kesno Lawyers: Lawyers for the Plaintiffs

Defendants in person