N11348

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO 189 OF 2022

BETWEEN:
JACOB BONA
Plaintiff

AND:
BERNARD KAISOM
First Defendant

AND:
EVANGELICAL LUTHERAN CHURCH OF PAPUA NEW GUINEA
Second Defendant

LAE:     DOWA J
28, 29 SEPTEMBER, 2 NOVEMBER 2022; 30 JUNE 2025

EMPLOYMENT LAW -termination of Council Membership to Evangelical Lutheran Church of PNG-whether disciplinary procedures under Church Constitution followed-whether reinstatement as council member viable-whether alternative remedy of damages be considered-damages awarded.

Cases cited
 PNGBC v Jeff Tole (2002) SC694
Yooken Paklin v The State (2001) N2212
 Samot v Yame (2020) N8266

Counsel
J Zauya for the plaintiff 
S Gor & S Gimai for the defendants

DECISION

1.      DOWA J: This is a decision on both issues of liability and damages. 

2.     The Plaintiff is an ordained Pastor of the Evangelical Lutheran Church of Papua New Guinea, ELCPNG, and former President of the Madang District of the ELCPNG.

          Background Facts

3.      The Plaintiff is an ordained Pastor with ELCPNG and was the President of the Madang District of the ELCPNG until his suspension and eventual termination of employment. The Plaintiff was elected President of the Madang District by the members of the Madang District on or around 28th February 2018.On 23rd May 2021, the Plaintiff was suspended from duties as President of Madang District by the first Defendant.  The reasons for suspension were that, without the authority and consent of the National Church Council of ELCPNG, he colluded with other individuals that applied to the Investment Promotion Authority (IPA) and had the defunct company Lutheran Church Madang Limited re-registered. That the re-registration of LCML was against the resolutions of the National Church Council of ELCPNG. 

1.	The Plaintiff alleges that the decision by the first Defendant was made without authority as no allegation of misconduct by the Plaintiff was referred to the Church Ombudsman for an investigation and that the re-registration of LCML was not a breach of the Church Leadership Code. 

2.	Aggrieved by the decision of the first Defendant, the Plaintiff seeks various reliefs including damages for defamation and for loss of employment. 

3.	After the filing of the proceeding, the Plaintiff was eventually terminated from employment as President of Madang District, ELCPNG on 29th June 2022.

4.	The Defendants filed a Defence pleading that the Plaintiff was suspended for good cause.

Trial 

5.	The trial was conducted on presentation of both affidavit and oral evidence.

Evidence – Plaintiff

6.	 Apart from oral examination, the Plaintiff relies on the following Affidavits:

i. Affidavit in Support of Jacob Bona filed 26th April 2022. 
ii. Affidavit in Support of Jacob Bona filed 15th September 2022. 
iii. Affidavit in Support of Rev Yassam Aiwara filed 1st July 2022 

7.	 This is the summary of the Plaintiff’s evidence. The Plaintiff is a Pastor with ELCPNG.  He was ordained in July 1990. The Plaintiff was elected President of the Madang District by the members of the ELCPNG Madang District on 28th February 2018.His role as President involves overseeing the district administration of the ELCPNG Madang District and represents the District in National ELCPNG Council. On 23rd May 2021, the Plaintiff was served a letter of suspension from the first Defendant. He was suspended from the position of President of Madang District ELCPNG. He was suspended on grounds that: i) he colluded with other individuals and re-registered Lutheran Church Madang Limited, a defunct company. ii) the re-registration was against the instructions of the National Church Council. iii) that the Plaintiff was a director of the reinstated company, LCML. 

8.	On 2nd August 2021, the Plaintiff responded to the letter of suspension arguing that: i. the allegations were not supported by evidence of misconduct; ii.  that the Defendants failed to follow the ELCPNG disciplinary policy and procedures, iii. the first Defendant as Secretary for ELCPNG failed to consider relevant factors in his decision which renders the decision unreasonable. The Plaintiff deposed that the first Defendant failed to first refer the matter to the church Ombudsman to investigate the allegations and thereafter allow the Chairman of ELCPNG National Council to issue suspension notices rather than the General Secretary.

9.	In respect of LCML, the Plaintiff deposes that the decision to reinstate LCML was made by the Madang District in 1997 and reaffirmed in 2008, many years before he became President. He deposes that the reinstatement of LCML was done to conduct business and earn income to support Pastors and pastoral duties in the Madang Province. He deposes there is nothing untoward in the actions taken by ELCPNG Madang District under his leadership.

10.	 The Plaintiff deposes further that the decision by the first Defendant was made without authority as no allegation of misconduct was referred to the Church Ombudsman for an investigation and that the re-registration of LCML was not a breach of the Church Leadership Code. 

Defendants’ Evidence

11.	The Defendants rely on the Affidavit of Bernard Kaisom filed 7th July 2022 and oral evidence presented in Court. Mr. Kaisom is the Church Secretary for ELCPNG. He is the Chief Executive Officer of ELCPNG and has administrative control of the affairs of ELCPNG. ELCPNG incorporated LCML to run businesses to generate income for the church work. LCML was deregistered in 1996 and remained defunct until it was illegally re-registered in 2020 by the Plaintiff and his cronies. Prior to that ELCPNG became aware that certain people within ELCPNG Madang District took steps to illegally transfer certain properties owned by LCML to third parties. ELCPNG issued proceedings in WS No 1220 of 2017-ELCPNG V Gunar Gee & Others. On 11th January 2019, the National Court per Cannings J ordered by way of declaration that the transfer of the property Allotment 17 Section 34, Madang to Frank Maru was null and void and the title be restored. Despite the orders, Mr. Gunar Gee and the defendants entered an illegal lease agreement with Frank Maru which resulted in second proceedings in WS No 296 of 2019. Again, the Court ruled that LCML, though deregistered, holds the subject property in constructive trust for ELCPNG. The National Council of ELCPNG passed resolutions to transfer all properties in LCML to ELCPNG.

12.	 Despite the actions taken by ELCPNG to protect its proprietary interest in the properties, the Plaintiff and his cronies illegally reregistered LCML against the resolutions and interest of ELCPNG. The Plaintiff was therefore suspended from his position as President of ELCPNG Madang District by letter dated 23rd May 2021 with conditions that the Plaintiff take steps to deregister LCML.   The Plaintiff did not take any action to de-register LCML. A letter dated 15th December 2021 was sent to ELC Madang District advising them of the reasons for suspension and further notifying them that the Plaintiff must de-register LCML and apologize to ELCPNG National Executive for his conduct with a warning that if he fails to de-register LCML, he would be terminated. The Plaintiff was informed of the conditions, but he continued with his defiance. As a result, the Plaintiff was terminated as a National Church Council Member representing ELC Madang District by letter dated 29th June 2022.

Submissions

13.	Mr. Karu, counsel for the Plaintiff, submits that the suspension and eventual termination of the Plaintiff as a member of the National Church Council of ELCPNG representing the Madang District is unlawful because:

a.	The first Defendant, as General Secretary of the Church did not have authority to suspend and terminate the Plaintiff.
b.	The Defendants did not follow the disciplinary procedure set out in the ELCPNG Constitution.

14.	Ms. Gigmai, counsel for the Defendants, submits that the suspension and eventual termination of the Plaintiff was lawful. Counsel submits that the first Defendant has administrative authority to suspend and terminate the Plaintiff for misconduct, particularly for defying the resolutions and instructions of the National Church Council. 

Issues

18.	The issues for consideration are:

a.	Whether the suspension of the Plaintiff is unlawful.
b.	Whether the Plaintiff is entitled to the reliefs pleaded.

Consideration of the Issues

a.	Whether the suspension of the Plaintiff is unlawful

19.	Based on the pleadings, evidence and submissions of parties, the relevant law to be considered is the ELCPNG Constitution and its By-Laws. The Plaintiff contends that the Defendants did not follow the disciplinary procedure under Section 26 of the Church Constitution and the By-Laws. Section 26 reads:

“26. Discipline
(1) Where there are allegations of misconduct against a leader for
breaches of the Church Leadership Code, the matter shall be referred to the Church Ombudsman.
(2) An allegation under this Section shall be in writing-
(3) The Church Ombudsman shall investigate the matter and make
appropriate recommendations to the implementing institution of the Church.
(4) Where the leader is aggrieved by the decision of the implementing
institution, he may appeal against the decision to the Appeals Committee.
(5) The Appeals Committee shall review the matter and take a decision
on the matter and inform the leader accordingly.
(6) The principles and procedures for discipline under this Section shall
be as follows-
(a) ecclesiastical discipline shall be carried out in an evangelical
manner in accordance with the procedure laid down in Matthew 18 15-17.
(b) the person shall be presumed innocent at all times and be
accorded the principles of natural justice; and
(c) where the allegation relates to a criminal matter, the Church,
District, circuit or the Congregation shall cooperate with the
relevant State agencies to resolve the matter and also endeavour to provide spiritual comfort and guidance to the
leader; and
(d) where a person is adversely affected by the actions of the
leader the disciplinary proceedings under this Constitution is
not a bar to any legal proceedings that the person may want
to institute against the leader of the Church.

(7) The leader who-
(a) is the subject of an allegation under this Section shall be
suspended from office immediately with pay and shall
remain suspended pending the outcome of the
investigations; and
(b) if found guilty of misconduct under this Section the leader'
shall-
(i) in the case of Church Secretary, the Church
Treasurer, member of the Church Council,
Departmental head, or an officer of the Church,
be dismissed from office and is not eligible to
hold any office in the Church; and 
(ii) in the case of a pastor, be suspended from pastoral duties indefinitely.
(8) The By-laws may provide the specific procedures for there of a member of the Church or Executive, a pastor, a Departmental Head, or an officer of the Church”

20.	 Section 26 is clear. Where there are allegations of misconduct against a leader	for breaches of the Church Leadership Code, the matter shall be referred to the Church Ombudsman for investigations. A “leader” in the Interpretation clause means a member of the executive, a pastor, or Departmental Head, or a member of the Church Council. The “Church Ombudsman” under the interpretation clause means a person appointed by the Church Council who is a lawyer and has more than 10 years of experience and has high standing in the community.

21.	In the present case, the Plaintiff is a Pastor and a member of the National Church Council and thus a leader within the definition of the Church Constitution. The disciplinary process and procedure under Section 26 of the Constitution and clauses 35 and 36 of the By-Laws would apply. The evidence shows, the complaint against the Plaintiff was not referred to the Church Ombudsman for investigation. The Defendants did not follow the disciplinary process under Section 26 (6) and clause 35 and 36 of the By-Laws. The first Defendant, in his evidence, stated that the suspension and eventual termination were administrative actions taken by him.

22.	The question then arises is whether the first Defendant, as General Secretary of the Church, has powers to suspend and terminate Church leaders. The powers and functions of the General Secretary are set out in Section 13 of the Constitution, and it reads:
			
“13. GENERAL SECRETARY
(1) There shall be a General Secretary of the Church.
(2) A person appointed to be the Secretary must be a professionally
qualified and experienced person with a good standing within the Church.
(3) The General Secretary is the Public Officer of the Church.
(4) The powers and functions of the General Secretary shall include- 
(a) be the administrative head of the Church; and 
(b) ensure the implementation of the Objectives of the Church; and 
(c) to oversee the operations of the Departments and other
instrumentalities of the Church; and 
(d) to coordinate, supervise and monitor the functions of the Departmental heads; and 
(e) be the executive officer to the Church Council; and 
(f) to ensure the implementation of the decisions of the Synod and the Church Council; and
(g) be an ex officio member of relevant instrumentalities (except business arms) of the Church; and
(h) to initiate and implement activities and programmes as approved by the Church Council. .....”

23.	Section 13 does not expressly confer the General Secretary the power to suspend or terminate a leader. However, reading Section 13 (4) in conjunction with Section 26 (6), the General Secretary may in the exercise of his administrative duties suspend a leader where the leader is referred to the Church Ombudsman for investigation. 

24.	In the present case, the Plaintiff was not referred to the Church Ombudsman for investigation for breach of the Church Leadership Code in Schedule 2 of the By-Laws. There is no evidence of any investigation being conducted into the allegations. There is no evidence of the matter being brought before the Church Council or the Executive of the Church for any resolution. What is clear is the first Defendant suspended the Plaintiff in the exercise of his administrative powers as submitted by counsel for the Defendants.

25.	ELCPNG is a big Christian church entity. It is established under the Evangelical Lutheran Church of Papua New Guinea Act 1991, an Act of Parliament. Apart from church and ecclesiastical activities, it runs education and health institutions in the country. It owns properties and conducts businesses through companies it has set up. Its governmental and management functions and activities are governed by Statute as well its Constitution and By-Laws. The exercise of powers in the performance of its core functions is as conferred or provided for in this legislative framework. These powers must be exercised with due diligence and utmost care to achieve its main objectives and purposes of its existence.

26.	That said, I find the Defendants did not follow due process under Section 26 of the Church Constitution and Part VII, clauses 33 and 38 of the By-Laws to discipline the Plaintiff. I find the suspension of the Plaintiff by the first Defendant is procedurally flawed. 

20.	Whether the Plaintiff is entitled to the reliefs pleaded.

27.	The Plaintiff claims the following reliefs in the statement of claim:

			a. Damages to be assessed
			b. a declaration that the suspension is null and void
			c. interim injunction staying the suspension
			d. costs of the proceeding

	Setting aside suspension

28.	The main relief sought by the Plaintiff is for a declaratory order that the suspension is null and void. As I have found, the suspension of the Plaintiff was procedurally flawed and would therefore be null and void. Does this then follow that the Plaintiff be restored to his position as member of the Church Council. The Plaintiff was suspended on 23rd May 2021. The current proceedings were filed on 26th  April 2022, eleven months after suspension. A month later and pending the hearing of this matter, the Plaintiff was terminated as a member of the Church Council on 29th June 2022. The Plaintiff did not amend or take other steps to reflect the termination, being the later development in the proceedings. Although the Plaintiff submitted that he be restored as Council Member, the Plaintiff did not specifically seek an order for reinstatement in the statement of claim. Given that he is now terminated, and the issue of termination is not properly before this Court, especially where no relief is sought for the setting aside the termination, the Court is not inclined to grant the relief that is not consistent with the pleadings and the evidence. 

29.	The law on pleadings is settled in the case Papua New Guinea Banking Corporation Ltd v Jeff Tole (2002) SC694 that …unless there is foundation in the pleadings of a party, no evidence and damages or relief of matters not pleaded can be allowed. The Plaintiff will only be entitled to what he has pleaded and not otherwise.

30.	Furthermore, since the suspension and subsequent termination of the Plaintiff, another person was appointed as a member of the Church Council representing the Madang District and it is not in the best interest and good administration of the Church to order reinstatement. This is especially so in the light of overwhelming evidence of defiance by the Plaintiff and other persons in observing the resolutions of the National Church Council and the decisions of the National Court in proceedings WS No 1220 of 2017 and WS No 296 of 2019. 

31.	In the circumstances, although the suspension was flawed, the Court is not inclined to order reinstatement. Instead, the Court shall consider the alternative relief of damages as appropriate remedy.

Damages 

32.	The Plaintiff claims damages for loss of renumerations and for defamation.

33.	In respect of damages, the law is clear.  Whilst the issue of liability is settled, the Plaintiff is still required to prove his damages with credible evidence.  Ref:  Yooken Paklin v The State (2001) N2212, and Samot v Yame (2020) N8266.

34.  	In Samot v Yame (Supra), His Honour, David J referring to legal principles to be applied in assessing damages said this at paragraph 46 of his judgment:

“The Supreme Court in  William Mel v Coleman Pakalia (2005) SC790 and the National Court decision of Cannings, J in Steven Naki v AGC (Pacific) Ltd (2006) N5015 summarise or identify a number of legal principles that are applicable in assessing damages where liability is established either following a trial or after the entry of default judgment and these are:

•	The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)

•	Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.)

•	The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)

•	The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)

•	If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)

•	Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)

•	The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)

•	The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)

•	The person who has been wronged has a duty to mitigate their losses; though it is the defendant who has the onus of proving failure to mitigate (Dia Kopio v Employment Authority of Enga and Others (1999) N1865, National Court, Hinchliffe J; Coecon v National Fisheries Authority (2002) N2182 

35.	In the statement of claim, the Plaintiff seeks damages for:

a) loss of earnings and privileges 
b) defamation.

Loss of Earnings and Privileges 
36.	The Plaintiff has not particularised the loss of earnings in the statement of claim. The only relief sought is that damages be assessed. The parties have not agreed on when this is to be done. The Plaintiff has not given any evidence on the loss of earnings. The parties have not addressed or made any submissions on the loss of earnings. In the circumstances, the Court will not do any assessment. Instead, the Court will order that the Defendants pay any outstanding pay and allowances it owes the Plaintiff, if any, for the period of suspension to the period of termination.

Defamation
37.	The Plaintiff alleges that the actions of the Defendants tarnished his good name, and he seeks damages for defamation. Again, the Plaintiff has not particularised his claim. He has not given any evidence supporting his claim for defamation.  No submissions have been on this claim by the parties, especially the Plaintiff. Besides, the actions taken by the Defendants are disciplinary actions within the confinement of the employment relationship. For these reasons, no award for defamation shall be considered and awarded.
	General Damages
38.		As I have decided against the reinstatement of the Plaintiff to his position as Council member and District President for Madang, it is appropriate to make an award for damages against the Defendants for the wrongful actions of the first Defendant apart from any loss of pay during the suspension period. In my view, a sum of K 10,000.00 is sufficient compensation and shall be awarded.
Costs
39.	The Plaintiff claims costs of the proceedings. As the Plaintiff succeeded in part; he is entitled to the costs of the proceedings. The Defendants shall pay the Plaintiff’s cost of the proceedings. 

ORDERS

	The Court orders:

1)	By way of Declaration that the suspension of the Plaintiff by the first Defendant dated 23rd May 2021 is procedurally flawed and is null and void.

2)	That despite the invalidity of the suspension and for clarity, there shall be no order for the reinstatement of the Plaintiff as Council Member of ELCPNG representing Madang District. 

3)	Judgment is entered for the Plaintiff in the sum of K 10,000.00. 

4)	Apart from the K 10,000.00 compensation, the Defendants shall pay all outstanding pay and entitlements, if any, owing to the Plaintiff for the period of his suspension to the date of termination, that is from 23rd May 2021 to 29th June 2022.

5)	The Defendants shall pay the Plaintiff’s cost of the proceedings to be taxed, if not agreed.

6)	Time be abridged       
_____________________________________________________________________
Lawyers for the plaintiff: Daniels & Associates Lawyers    
Lawyers for the defendants: Fiocco &Nutley Lawyers