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Kilinga v Timba [2025] PGNC 128; N11260 (28 January 2025)

N11260

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS 1325 OF 2017

BETWEEN:
PASTOR JOHN KILINGA as Chairman of the Papua New Guinea Bible Church INC, Mele District Executive Council
Plaintiff

AND:
PASTOR JOHN KEWA TIMBA, ROGER KEWA TIMBA, BIULA KEWA TAITA, PROPHET JEPHENIAH TAITA BABARAH JOHN KEWA & PASTOR KAILA PAKU
First Defendants

AND:
PATRIARCHS MINISTRY
Second Defendant

WAGLUME: KANGWIA J
13, 28 JANUARY 2025

CIVIL JURISDICTION – Application for declaration that Portion 56 Pangia station belongs to the Bible Church – competing interest over land and property on land with breakaway church – who has higher interest over land and property.

Cases cited
Kula Palm Oil Ltd v Teiba (2004) N11037
Yagon v Nowra No. 59 (2006) N3375
Palmer v Railroad Commission (1914)167 Calif. 163

Counsel
K. Sino for the plaintiffs
P. Yer for the defendants

1. KANGWIA J: In this proceeding the Plaintiff seeks a declaration that land described as portion 65 at Pangia Station (The Land) belongs to the PNG Bible Church (Bible Church) and the Defendants should deliver vacant possession of it. Also sought are permanent injunctive orders against the Defendants, their followers, Pastors, agents, servants and the Patriarchs Ministry.

2. The Defendants contend that the Plaintiffs are not entitled to the relieves sought as a matter of law and on the facts as they have done substantial improvements on the land.

3. According to the statement of claim the Plaintiff is the Chairman of the Melle District of the Bible Church. He has the authority of the Mele District Executive Council to sue on behalf of the Melle District of the Bible Church.

4. The Papua New Guinea Bible Church is an incorporated entity and has many District setups in the country and one of them is Melle District. It has 33 local churches and is run by the District Executive Council (DEC) and Pangia Station Church the subject of this proceeding, is the biggest of the churches. The Pangia Station Church was established on Portion 56 by Pastor Paul Aleka in the year 2000. The land has a permanent chapel, a 3-bedroom Pastors house, and an Ace School established in 2003 under the Bible Church.

5. The Defendants are former members of the Bible Church and current members of the Patriarchs Ministry. The Patriarchs Ministry was incorporated as a church on 12 April 2017 by the Defendants after breaking away from the Bible Church over differences in doctrinal issues. It appears Patriarch Ministry and the Defendants are currently occupying portion 56.

6. From material before the Court the Plaintiffs instituted this proceeding after it was discovered that the Defendants had removed the sign board bearing the Bible Church Logo and address on Portion 56.

7. In the trial both parties rely on lengthy affidavits to support their respective positions.

8. For the Plaintiffs Mr. Sino in relying on the affidavits of Councillor Robert Norombu and the affidavits of six other persons submits that Bible Church was and is the occupier of portion 56 first in time and by law are entitled to vacant possession. The Defendants being former members of the Bible Church were no longer entitled to occupy the land and should be ordered to deliver vacant possession of the land.

9. It is also submitted that since the Defendants have incorporated Patriarch Ministry as a church, they are no longer members of the Bible Church to continue occupying the land.

10. The further submission by Mr. Sino is that the any improvements allegedly done by the Defendants were done while they were members of the Bible Church and not under Patriarch Ministry and the improvements became the property of the Bible Church.

11. For the Defendants Mr. Yer while relying on the affidavit of Roger Kewa Timba and the affidavits of 16 other persons argues the contrary and submits that the Defendants are part and parcel of the land having substantial interest with considerable input on the land and the Plaintiffs are not entitled to any of the relieves claimed and the proceeding should be dismissed.

12. It is submitted that the Plaintiffs have instituted proceedings to seek a declaratory order of ownership in the absence of a title deed or State lease as the Registered proprietor.

13. In the absence of a title deed the Plaintiff could not employ provisions of the Summary Ejectment Act in the District Court to seek eviction of the Defendants or to pursue an order for Defendants to give vacant possession. In order for the Plaintiff to secure a declaratory order for ownership it must satisfy the Court that it was the registered leaseholder as in the case of Kula Palm Oil Ltd v Teiba (2004) N11037. In that case in an eviction proceeding the Court found that the Plaintiff was the registered leaseholder and ordered injunctions and removals of structures.

14. It is submitted that the land the subject of the proceeding is yet to be subdivided and currently occupied by the Defendants who are not illegal settlers or just squatting on the land to be easily ejected.

15. He refers to the cases of Yagon v Nowra No. 59 (2006) N3375 as supporting the proposition of evicting illegal settlers or squatters.

16. This proceeding raises a controversy in which both parties are strenuously claiming ownership or possessory right over Portion 56 when they both have no valid title nor registered proprietors. However, they are under law entitled to claim real or de-facto ownership as opposed to ownership by title because both parties have equitable interests through permissive occupancy and improvements on the land.

17. It is also a principle of law on the right to possession of land that “first in time” is “first in right”. According to this principle, priority of possession to property is given to the party possessing occupying or displaying an interest first in time.

18. In the overseas case of Palmer v. Railroad Commission (1914)167 Calif. 163, in determining ownership of water rights by persons who had no title, the Court drew analogies from the common law and said:

“Since the real owner of the water-rights, permitted these diversions and was not in court to assert its rights or to be bound by the decision, the matter between the persons litigating was to be decided according to the rules of law in regard to priority of possession of the land”.

19. The Court in that case went on to declare the diversion of the water to be the equivalent of possession and applied the doctrine of he who was first in time was first in right.

20. In the present case given the competing nature of the equitable interests claimed and the competing positions taken by the parties it appears the issue to be determined is who has a better interest in equity over portion 56. It will no doubt involve the history of portion 56 and the nexus of the land to the Bible Church and Patriarchs Ministry. The individuals named as parties can be appropriately subsumed under the names of the two Churches as the brains and controllers behind the two church entities.

21. When the competing claims over the land are considered in the context of the history of Portion 56 the purported interest the two churches claim becomes clearer.

22. From material before the Court, it appears that the genesis of portion 56 is varied.

23. In the affidavit of Pastor John Kewa Timba, he states that he identified a vacant piece of State land now known as portion 56 after moving to Pangia from Mulau Local Church in1998. Mulau local Church was one of the churches belonging to Bible Church. This evidence has support in the affidavit of Roger Kewa Timba. In the affidavit of Pastor Paul Aleka, he states that the District Development Authority had allocated Portion 56 to SDA, AOG, PNG Bible Church and Baptist church. In the affidavit of Pastor Yakura Mandi he states that Portion 56 was allocated by Southern Highlands Provincial Government and Bible Church developed the area. In the affidavit of Councillor Robert Norombu he states that he submitted an expression of interest over portion 56 to the Lands Department on 20 July 1993. It is clear form those observations that all the representations made were for and on behalf of Bible Church. It is also apparent from those observations that Bible Church was given permissive occupancy of the land by the conduct of the lands Department officials.

24. Regardless of whom did what in the initial stages of the land, the undisputed fact according to the affidavits relied on by both parties is that prior to the breakaway there was a nexus between the Bible Church and Portion 56 created by members of the Bible Church who took steps to do substantial improvements on the land to acquire it. All the development on the land occurred under the banner of the Bible Church.

25. Under the circumstances when members of the Bible Church did improvements on the land, the improvements became assets to be owned by the Bible Church. The only way to distribute or remove the assets is by dissolving Bible Church.

26. The attempt by the now members of the Patriarchs Ministry to acquire the land for the Ace School appears to have surfaced after the school was developed also under the banner of Bible Church.

27. As for Patriarchs Ministry there is no evidence in the affidavits relied on by the Defendants that it was given permissive occupancy of Portion 56 by any relevant authority.

28. There is also no evidence that major developments and survey done to obtain title to the land, were made for or on behalf of Patriarchs Ministry.

29. Furthermore, there is no evidence of a proper separation from Bible Church for Patriarch Ministry to go separate ways when some members of Bible Church decided to break away. By deciding to break away from Bible Church and incorporating Patriarchs Ministry, the Defendants became former members of Bible Church and as former members they are deemed to have extinguished all rights they previously had under Bible Church.

30. The only conclusion therefrom is that the interest vested in the Bible Church far exceeds any interest whether substantial or otherwise that Patrirachs Ministry purports to possess.

31. However, the nexus created by former members of Bible Church to portion 56 cannot be ignored just because the Bible Church was first in time with substantial interest. The interest of justice warrants that the former members of Bible Church who are now members of Patriarchs Ministry be properly recognised for their contribution to the development of the land.

32. The best way to give proper recognition as a going forward matter is to maintain the status quo as best as possible until at such time the issue of title is determined by the relevant authority.

33. The statements in the affidavits relied on by the Defendants relate more to Ace School and the effect it will have if any decision contrary to the status quo of the school is made. The statements also show that substantial contributions have been made by the Defendants to advance the school to where it is now. Those statement have not been discredited by opposing statements and stand unchallenged.

34. Under the given circumstances, the proper recognition to be given to the Defendants for their contribution to the development of the land is to give them control over Ace school as a standalone entity. As for Patriarch Ministry it shall cease operating from Portion 56 since there has no nexus to the land.

35. The formal Orders to give effect to what has been determined shall be these.

1. Bible church is declared as the de-facto owner of the entire portion 56 Pangia, having acquired permissive occupancy from the relevant authority.
2. The First Defendants each and severally shall have control over the assets and running of Ace School as a standalone entity.
3. Any new developments to be done to Ace School shall be subject to the consent of Bible Church as the de-facto owner of Portion 56.
4. Patriarchs Ministry as an entity shall cease to operate from Portion 56 forthwith.
5. The Church building and the Pastors house on Portion 56 are declared as owned by Bible Church and Bible Church shall have vacant possession of them.
6. This arrangement shall remain in force until such time the title to portion 56 is settled by the relevant authority or this decision is set aside by a court of competent jurisdiction.
7. Each party shall bear their own costs.

_____________________________________________________________
Lawyers for the plaintiffs: Sino & Company Lawyers
Lawyers for the defendants: Peter Yer Lawyers