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Nand v Commissioner of Police [2008] FJMC 16; Civil Case No 47 of 2008 (24 October 2008)

IN THE RESIDENT MAGISTRATES’ COURT
AT LAUTOKA
IN THE WESTERN DIVISION

CIVIL CASE NO.: 47 OF 2008

BETWEEN:

DEWA NAND
PLAINTIFF

AND:

COMMISSIONER OF POLICE

ATTORNEY GENERAL OF FIJI

LAND TRANSPORT AUTHORITY
DEFENDANTS

Counsel for the Plaintiff: Mr. Haroon Ali Shah
Counsel for 1st & 2nd Defendants: Mr. S. D. Turaga
Counsel for 3rd Defendant: Mr. J. Sovau

Date of Hearing: 17th September, 2008
Date of Judgment: 24th October, 2008

JUDGMENT

[1] BACKGROUND OF THE CASE

The plaintiff is the owner of a 7 seater van registration number DO 031 and on 09/02/08 he was driving in Lautoka City. He was stopped by Sgt. Paul Taito and subsequently his motor vehicle was driven by Cpl. Anil Chand to the Land Transport Authority’s (LTA) depot at Lautoka. The vehicle was seized by LTA and is still in their possession. The plaintiff has filed this claim seeking an order for the release of the motor vehicle and he is also seeking orders for general and exemplary damages and costs.

[2] AGREED FACTS

The parties agreed to the following facts:

a. That the plaintiff is the owner of motor vehicle registration number DO 031;

b. That on 09/02/08 Sgt. Taito and Cpl. Anil took the said motor vehicle from the plaintiff to the LTA’s depot at Lautoka;

c. That the motor vehicle was not inspected by the LTA;

d. That the plaintiff requested for the release of the motor vehicle and he was told to pay $72.00 fees and he refused to do so and the motor vehicle was not released and is still in the custody of LTA.

[3] AGREED ISSUES

The parties also agreed to the following issues for determination:

a. Whether the police could stop the motor vehicle and take it to LTA?

b. Whether it was taken to LTA for inspection?

c. Whether the impounding of the motor vehicle is legal?

d. Whether the demand for poundage fees of $72.00 is reasonable and legal?

[4] PLEADINGS

a. The plaintiff’s claim is that police officers took his vehicle to the 3rd defendant’s depot and he made a request for the release of the motor vehicle and he was informed that the motor vehicle would be released upon him paying $72.00 to the 3rd defendant. He claims that the demand for $72.00 is unlawful and he refused to pay that.

b. The 1st and 2nd defendant’s statement of defence states that the police were conducting a joint operation with other enforcement agencies as there was an illegal use of private motor vehicles as taxis. At paragraph 6 the defendants pleaded that the motor vehicle was emitting excessive smoke and was directed to stop and upon stopping it was found that the vehicle had extra seats and a Fijian male passenger and the plaintiff refused to cooperate with the police and left the motor vehicle and it was brought for inspection under Section 77 (1) (c) of the Land Transport Act.

c. The 3rd defendant’s statement of defence states that the motor vehicle would be released upon payment of the poundage fees of $72.00 and further states that the plaintiff has never been to their office nor has he had any communications with them for the release of the motor vehicle.

[5] EVIDENCE

(a) Plaintiff’s Evidence

The plaintiff’s motor vehicle was stopped on 09/02/08. According to the plaintiff it was stopped at Yasawa Street and according to Sgt. Taito and Cpl. Anil it was stopped at Vitogo Parade. It is completely irrelevant as to where the vehicle was stopped. The fact remains that it was stopped by Sgt. Taito. According to the plaintiff after his vehicle was stopped Sgt. Taito asked for the keys and told him that they will take the vehicle to LTA. He inquired as to why the vehicle was to be taken to LTA and he said that the police did not give him any reply. He denied that his vehicle was emitting excessive smoke and he also stated that he was not given anything in writing to say that there were any defects in his motor vehicle. He also stated that he was not served with a Traffic Infringement Notice and he stated that Cpl. Anil drove his motor vehicle to LTA’s depot.

The plaintiff went to LTA office about half an hour later and he asked for the release of his motor vehicle. He was told to pay $72.00 fees. He was unable to recall the name of the LTA officer that he spoke to. He denied that he was told to be present as his vehicle was going to be inspected. He refused to pay the $72.00. He went back again on 11/02/08 and again asked for the release of the motor vehicle and he was again told to pay $72.00 and he again refused to do so.

Mr. Turaga in cross-examination of the plaintiff suggested to him that he was stopped for two reasons, namely excessive smoke and that he was carrying a Fijian passenger. He refuted both the allegations. He said that he was driving slowly and therefore his vehicle could not be emitting excessive smoke and he also stated that the passenger was an Indian and not a Fijian. He agreed that he was charged 21 times by LTA for using his private motor vehicle as a taxi and he said that he paid the fines even when he was carrying his family members. He said that he refused to pay the fees of $72.00 and denied that he was ever asked to be present for the vehicle to be inspected.

Mr. Sovau in cross-examination of the plaintiff suggested that on both his visits he was attended to by one officer and he disputed that. It was also put to him that apart from payment of $72.00 LTA required him to give his statement and also required him to be present for his motor vehicle to be inspected. He said that he was only asked to pay $72.00 and there was never any discussions about giving a statement or having the vehicle inspected.

(b) Sgt. Paul Taito’s Evidence

Sgt. Taito said that he stopped the plaintiff’s motor vehicle as it was emitting excessive smoke and he further said that the plaintiff had a male Fijian passenger seated in the front seat. He said that he spoke to the passenger and he gave him certain information. He said he told the plaintiff that his motor vehicle would be taken to LTA for inspection and the plaintiff refused to go to LTA and he instructed Cpl. Anil to drive the vehicle to LTA’s yard. He also stated that the plaintiff’s motor vehicle was also causing obstructions to other road users. He said that he drove the police motor vehicle and he followed Cpl. Anil who drove the plaintiff’s motor vehicle. He said that Cpl. Anil handed over the keys to Samisoni Nasaivavi the Enforcement Officer of LTA. He further stated that there was joint operation between the police and LTA and the operation was to control the problems of illegal operations of people using private motor vehicle as a taxi. He said the plaintiff was not charged for the offence of emitting excessive smoke as he did not have the equipment for doing the test and the testing was to be done by LTA. He said that he was not aware as to whether LTA carried out the test.

He said that the understanding with LTA was that the police should do the booking for using the motor vehicle contrary to licence condition and thereafter hand the vehicles to LTA where the owners are required to explain to the LTA Enforcement Officers as to the purpose for which the vehicle was used. He said that the incident took place at about 4.45 p.m and not 12.30 p.m as claimed by the plaintiff.

Mr. Shah in cross-examination of Sgt. Taito asked him whether he had any record of handing over of the motor vehicle. In response he said that Cpl. Anil handed over the vehicle to Samisoni and he did not have any handing over certificate. When shown the LTA register (Exhibit P1) which had the record that the motor vehicle was handed in for illegal operations and not for emitting excessive smoke he said that he felt that he had powers to seize the vehicle for illegal operation. When pressed to point out the empowering sections in the Act for impounding for illegal operation he was unable to do so.

In cross-examination by Mr. Sovau he said that the motor vehicle was stopped for emitting excessive smoke and not for illegal operation.

(c) Cpl. Anil Chand’s Evidence

Cpl. Anil’s said that he handed over the vehicle to Samisoni and told him it was brought in as it was emitting excessive smoke. He said that he did not have any notes or records of handing over of the motor vehicle. He said that he verbally told Samisoni that it was for emitting excessive smoke and not for illegal operation and he further said that Samisoni made a wrong entry.

(d) Samisoni Naisaivavi’s Evidence

Samisoni said that he spoke to all the drivers whose vehicles had been brought in by the police. He said that he addressed them collectively and not individually. However, he said that he spoke to the plaintiff personally and told him to wait for the vehicle to be inspected and he further stated that defect orders are issued after an inspection is carried out. He agreed that no inspection was carried out on the plaintiff’s motor vehicle. He said that the plaintiff came back on 11/02/08 and he again asked him to be present to enable them to carry out an inspection he said the plaintiff did not cooperate and walked away.

In cross-examination by Mr. Shah he agreed that the plaintiff’s motor vehicle had an entry for illegal operation and not for emitting excessive smoke. When shown the entry in Exhibit P1 he said that it was also for emitting excessive smoke. When questioned further he agreed that the motor vehicle was brought in for illegal operation and not for emitting excessive smoke. He said that the information in their register about illegal operation was given to him by Cpl. Anil. He was not sure as to whether he met the plaintiff on 09/02/08 and he was unable to show the provision in the Land Transport Act or the Regulations where it states that the driver has to be present for a motor vehicle to be inspected.

In further cross-examination by Mr. Shah he said that the plaintiff was required to give a statement about the allegations of illegal operation. When asked whether the plaintiff could be forced to give a statement he said LTA did not have powers to force the plaintiff to give a statement. He said that he told the plaintiff that the LTA would be inspecting his motor vehicle and would be charging him impounding fees of $72.00. He said that the vehicle was not impounded by LTA and it was impounded by the police. He agreed that if the poundage fee of $72.00 is paid today the vehicle would be released.

Written Submissions

[6] The counsels for the 1st and 2nd defendants and the 3rd defendant handed in written submissions upon completion of the case. I find this rather strange as the written submissions also contain facts of the case. The facts of the case can only be revealed after the witnesses have given evidence and have been subjected to cross-examinations. Preparing written submissions in advance of the case is anticipating that the witness’s evidence would unfold in a certain manner. The witnesses’ statement in this case is very different to the facts that were alluded to by the counsels for the 1st and 2nd and 3rd defendants in their written submissions. Mr. Shah for the plaintiff filed written submissions after the completion of the case and I find that his submissions have addressed the specific issues raised in the case. Written submissions are filed to assist the Court and it is a pointless exercise to prepare the submissions in advance.

[7] AGREED ISSUES FOR DETERMINATION

Having set out the evidence of the witnesses I shall now discuss the agreed issues for determination.

(a) The first issue for determination is whether the police could stop the motor vehicle and take it to LTA.

A motor vehicle can be stopped and taken to LTA only in very limited circumstances. The Land Transport Act states that the circumstances under which a motor vehicle can be stopped and taken to LTA. The situations are stated in Sections 73 and 77 (1) (a) of the Land Transport Act. Under Section 73 (1) (c) a police officer for the purposes of traffic control may seize and remove a vehicle to a place of safety. Section 73 (1) (c) states the various circumstances under which a police officer may seize or remove a motor vehicle to a place of safety. The various circumstances are as follows:

1. Where a motor vehicle is involved in an accident;

2. Where it is parked contrary to a parking offence provision;

3. Where it is left in a public street for a period in excess of 12 hours and the police officer forms the opinion that the vehicle is abandoned;

4. Where the motor vehicle is left in a position and the police officer forms an opinion that it is hazardous and dangerous to other road users;

5. In the opinion of a police officer the motor vehicle is causing an obstruction;

6. When the police officer has reasonable cause to suspect that the vehicle is not registered.

Under Section 77 (1) (a) a police officer may inspect any motor vehicle in respect of a licence when he has reasons to believe that it is being used as a public service vehicle.

In this case both Sgt. Taito and Cpl. Anil stated that the motor vehicle was taken to LTA depot for emitting excessive smoke. They both said that the entry by Samisoni in the LTA register is wrong. Whereas Samisoni said that he only made the entry in the register upon the information given to him by Cpl. Anil. I do not know whether Sgt. Taito and Cpl. Anil are being truthful when they said that the vehicle was taken for emitting excessive smoke only when their own counsel put to the plaintiff that the police stopped him for two reasons, namely that it was emitting excessive smoke and that he had a Fijian passenger. The second question supports the entry made by Samisoni in the register and that question is in direct conflict with the evidence of both Sgt. Taito and Cpl. Anil.

In the case of Narayan –v- Commissioner of Police HBC 35/03 Pathik J at page 4 of unreported decision said as follows:

"The plaintiff had admitted in his statement which he gave to the police that his motor vehicle registration number DJ 026 operates as a mini bus between Suva and Lautoka. Two police officers who seized the plaintiff’s motor vehicle also confirmed this. Similarly, the other mini buses seized by the police had been ascertained as carrying passengers for hire or reward which was not registered as PSV as required to be done under the Act. Therefore all mini buses were found to be carrying passengers were stopped and seized in accordance with the powers given to the police under Section 73 (1) (c) (vi)."

In this case there is no evidence that the plaintiff had been operating the motor vehicle as a taxi and/or that he was carrying paying passengers. The LTA register states that the motor vehicle was handed in for illegal operations and in the absence of any evidence that the plaintiff was carrying paying passengers the motor vehicle could not be seized for this reason and taken to LTA.

If the motor vehicle was taken for emitting excessive smoke then none of the circumstances stated in Section 73 (1) (c) entitles a police officer to seize the vehicle and take it to LTA yard. So the answer to the first issue is that the police could stop the motor vehicle and make inquiries but could not have taken the motor vehicle to LTA for illegal operation or for emitting excessive smoke.

(b) Whether it was taken to LTA for inspection.

In light of my findings in paragraph 7 (a) hereof, it is clear that the vehicle was not taken for inspection. I say that because the LTA’s register speaks for itself. It states that it was brought in for illegal operation. The whole register was tendered and on 09/02/08 a total of 15 motor vehicles were seized during this operation. Samisoni said that the vehicle was brought in for illegal operation and he also said that the driver was required to provide his statement although he agreed that he could not compel the driver to do so. Samisoni was not present when the vehicle was seized and he has to rely on his records to question the drivers if they do turn up. In this case it is clear that the vehicle was brought in for illegal operation and not for inspection. I am not aware of any provision which precludes the LTA from carryout an inspection in the absence of the driver or the owner.

(c) Whether the impounding of the motor vehicle is legal?

Again in light of the determination at paragraph 7 (a) I hold that impounding of the vehicle was not legal.

(d) Whether the demands for poundage fees of $72.00 is reasonable and legal?

I have perused the Land Transport (Fees and Penalties) Regulations 2000 in detail and I was unable to find a figure of $72.00 as prescribed fee for seizure and impounding of a motor vehicle. At page 151 of the said Regulations in item (e) I found an item which states

"Seizure and impounding of a vehicle and the fees was stated to be $70.00".

This fee of $70.00 is inclusive of VAT and I do not know how LTA arrived at a figure of $72.00. It seems that LTA has simply imposed a figure of $72.00 which is not provided for under the Regulation. Since there is no provision for fees of $72.00 I hold that the demand for the fees of $72.00 was not legal. As to whether it was reasonable? Samisoni’s evidence is that the police were doing a joint operation and the plaintiff’s motor vehicle was brought in for inspection and I have already held that inspection was not necessary. If the vehicle was brought in for inspection then inspection should have been carried out and the plaintiff should have been notified of the defects but the inspection did not empower the LTA to demand the poundage fees of $72.00. So I therefore hold that the demand of the poundage fees of $72.00 was not reasonable.

[8] CONCLUSION

The plaintiff has succeeded in his claim and I therefore order that the plaintiff’s motor vehicle shall be released to him forthwith.

[9] CLAIM FOR DAMAGES

This is a case where police officers had no justification for taking the plaintiff’s motor vehicle to LTA yard. Both the police officers evidence was badly discredited as to the reasons for taking the plaintiff’s motor vehicle to LTA yard. Both police officers did not have any written records of the reason for seizing the motor vehicle and the only written record was prepared by Samisoni wherein it states clearly that it was brought in for illegal operation. This record was prepared on the information provided by Cpl. Anil. I have already held that the police officers had no legal basis to seize the motor vehicle under Section 73 (1) (c) of the Land Transport Act so the actions of Sgt. Taito was indeed very arbitrary and high handed. He simply got the keys from the plaintiff and then got his colleague Cpl. Anil to drive the vehicle to LTA yard. He did not have any regard for the plaintiff’s concern or welfare. In his evidence he stated and I quote

"Later on I did not check on the plaintiff. The understanding with LTA was we will do the booking for using motor vehicle contrary to licence condition and hand it over to LTA where the owners are required to explain to the Enforcement Officer the purpose of the use of the motor vehicle."

(a) Exemplary Damages

I find Sgt. Taito’s attitude to be very unreasonable. He was the officer who seized the motor vehicle and he had the responsibility towards the plaintiff. He should have either charged him for an offence. If he did not charge him for an offence then he should have ensured that the plaintiff’s motor vehicle was returned to him.

He left the plaintiff in a very invidious situation. The plaintiff had to run to LTA for the release of the motor vehicle and he was unable to have it released as he was asked for the poundage fees of $72.00 for which there was no justification. This case calls for an award for exemplary damages so that people like Sgt. Taito and others who are in position of trust and authority will learn to exercise their duties with due care and regard for the welfare of the citizens of this country.

In the case of Yasir Khan –v- Commissioner of Police & Attorney General of Fiji HBC 75 of 2004 Finnigan J in unreported decision at page 4 said as follows:

"On the authority of Avinash Singh –v- The Commissioner of Police and the Attorney General of Fiji (Byrne) J HBC 267 of 1998 Judgment dated 22 February 2002, counsel sought both aggravated and exemplary damages. He submitted that whereas in previous case the Court had assessed aggravated damages on the basis of $1,700.00 per hour of unlawful detention of a boy age 14, in the present case if a similar award were considered it should be on the basis of $2,500.00 per hour as the plaintiff is a married man with a young family and a local businessman."

He further stated:

"It is clear that aggravated damages may be awarded for oppressive, arbitrary or unconstitutional action by the servants of the Government."

In this case the action of Sgt. Taito was extremely oppressive and arbitrary.

This was a joint operation between the police and LTA and the actions of LTA in demanding fees of $72.00 was also arbitrary as it was not provided for in the Land Transport (Fees and Penalties) Regulations 2000.

I therefore award the plaintiff a sum of $10,000.00 by way of exemplary damages against all the defendants and I order that the same shall be paid by the defendants jointly and severally.

(b) Claim for Loss of Use

The plaintiff has been deprived of the use of the motor vehicle since 09/02/08 till today. This is a period in excess of 8 months. There is evidence that the plaintiff is a fisherman. There is no evidence as to actual loss that he suffered and I will allow him a nominal loss of $20.00 per day and for the last 8 months I award him a sum of $4,000.00 for loss of use against all defendants. I again order that this sum shall be paid by all the defendants jointly and severally.

[10] COSTS

This case took a good part of the day and was adjourned for further submissions after its completion. Taking into account the fact that it took almost a day to complete I award the plaintiff costs in the sum of $4,000.00 which I summarily assess and this costs is awarded against all the defendants and I order that the costs shall also be paid by the defendants jointly and severally.

[Mohammed S Khan]
Resident Magistrate

24th October, 2008