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Waikali v Moea and The State [1996] PGNC 43; N1484 (24 October 1996)

Unreported National Court Decisions

N1484

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 678 OF 1994
BETWEEN
DANIEL WAIKALI - PLAINTIFF
AND
BRAM MOEA - FIRST DEFENDANT
AND
THE STATE - SECOND DEFENDANT

Mount Hagen

Injia J
13 September 1996
24 October 1996

MASTER AND SERVANT - Vicarious liability - of State for tort committed by policeman - Failure of policeman to comply with Court order to return motor vehicle to owner - Failure of policeman to comply with direction of superior to return Motor vehicle to owner - Motor vehicle cannot be found - Whether State vicariously liable - Wrongs Act Ch 295, S. 1 (4).

Held

1. Pursuant to Section 1 (4) of the Wrongs Act Ch (No 295), the State is vicariously liable for torts committed by policemen whilst performing a purporting to perform such functions “as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by Government”.

2. The State is not vicariously liable for wrongful action of policeman who failed to obey a Court order and his Superior’s direction requiring him to deliver the motor vehicle in his possession because the continued detention of the motor vehicle was not and would not have been lawfully authorised by the Government.

3. In the circumstances, the First Defendant is personally liable to pay damages of K16,000.00 being for the loss of the motor vehicle, K691.00 for economic loss and K400.00 for exemplary damages.

Cases Cited

Daniel Kofewi v Augustine Siviri & Ors [1987] PNGLR 5

James Koimo v The State N 1322 (1995)

Counsel

M Thoke for the Plaintiff

No appearance for the Defendants

24 October 1996

INJIA J: This is an ex-parte trial of a claim for damages following the Defendants’ failure to attend trial on 12th September 1996.

The Plaintiff claims general damages and exemplary damages for the loss of his vehicle, Nissan dump truck, at the hands of the First Defendant, a policeman, in the course of performing his duties for the Second Defendant. The Plaintiff’s statement’s statement of claim reads:

(1) The Plaintiff is a driver about 34 years old comes from Landelam Village, Laiagam District, Enga Province and was the registered owner of the vehicle Nissan truck, Registration No LAC-062.

(2) The First Defendant is a Policeman attached to Mount Hagen Police Station, Mount Hagen, Western Highlands Province.

(3) On or about 12th February 1993, at Mount Hagen Police Station, the First Defendant unlawfully and without any reasonable excuse took possession of and detained the said vehicle from the Plaintiff.

(4) The First Defendant wrongfully alleged that the Plaintiff was in possession of stolen property and charged him under Section 410 of the Criminal Code Act.

(5) On or about 20th April 1993, Mount Hagen District Court after hearing the evidence, it dismissed the charge and ordered the First Defendant to immediately return the vehicle to the Plaintiff.

(6) Despite repeated requests for the immediate release of the said vehicle, the First Defendant neglected or wilfully refused to comply with the Court Order and return the same to the Plaintiff.

(7) It has been alleged that the First Defendant acting as a servant or agent of the Second Defendant sold the vehicle away to an unknown third party and the Plaintiff cannot be able to reprocess his vehicle.

(8) At all materiel times, the First Defendant was performing his official police duties in the course of his employment with the Second Defendant and the Second Defendant is vicariously liable under Section 1 of the Wrongs (Miscellaneous Provisions), Act (Chapter No 297).

(9) In consequence thereof, the Plaintiff suffered loss and damages.

PARTICULARS

(a) Loss of road maintenance contract with the Enga Engineering Pty Ltd where Plaintiff usually makes about K100.00 per day.

(b) Loss of the said vehicle which was purchased at a consideration price of K16,000.00.

Upon being served with the Writ, the Solicitor General filed a Notice of Intention to Defend in respect of both Defendants. The Solicitor General’s however, filed a Defence only in respect of the Second Defendant. This Defence reads:

Defence

(1) The Second Defendant denies that the Plaintiff is the registered owner of the vehicle a Nissan Truck Registered Number LAC-062 but admits the rest of paragraph 1 of the Plaintiff’s Statement of Claim.

(2) The Second Defendant admits paragraph 2 of the Plaintiff’s Statement of Claim.

(3) The Second Defendant denies paragraphs 3, 4, 5, 6, 7, 8 and 9 of the Plaintiff’s Statement of Claim and says the vehicle was properly and legally detained by the Police for purposes of criminal proceedings instituted in relation to the vehicle against the Plaintiff.

At the trial the Plaintiff gave oral evidence in which he identified his affidavit sworn on 13/9/96 and further affirmed its veracity. The affidavit is in evidence. No questions were asked by his counsel or myself on his affidavit. As that affidavit is the only evidence on this trial, I will reproduce the body of the affidavit in full:

Affidavit

On this 12th day of September 1996, I, Daniel Waikali of Landelam Village, Laiagam, Enga Province dully sworn and say on oath as follows:

(1) I am the Plaintiff in this matter and as such I am authorised to depose the facts herein.

(2) I am about 36 years old married with 3 children. Currently I am employed by the Enga Engineering Pty Ltd which is a company wholly owned by the Enga Provincial and Local Level Government.

(3) In early January 1993, I bought a Nissan Dumb Truck Registration Number LAC-062 from Robert Timil of Aipus village Enga Province. I bought the said vehicle at a cash price of K16,000.00. I was interested in buying that vehicle because the Enga Engineering Pty Ltd was looking for Dumb Trucks to work on road projects in Enga. I paid K13,000.00 in cash first and later after one (1) week, I gave him K3,000.00.

(4) The vehicle was registered under Robert Timil’s name and when the registration expired, I registered it under my name on 10th February 1993. Annexed hereto and marked with letter “A” are true copies of the Registration paper and Third Party Insurance Certificate.

(5) As I bought the vehicle from my own money (K16,000.00) I am the registered owner of the vehicle Nissan Datsun Truck LAC-062.

(6) On or about 12th February 1993, I and my driver Kano Elyane drove the said vehicle to Mount Hagen, Western Highlands Province to load fuel drums. At Mount Hagen I went to Bank and the driver Kano Elyane took the said vehicle to Mount Hagen Market. While the vehicle was at the market, Mount Hagen Police came and seized the vehicle and drove it away to Mount Hagen Police Station. My driver was also arrested at the same time.

(7) I later learned that Mount Hagen Police impounded my said vehicle and was locked it up at Mount Hagen Police Station. I went to Mount Hagen Police Station and told them that vehicle was mine but they shut me up.

(8) I again tried my best to convince them (policemen) that I was the registered owner of the vehicle but they did not believe me. They charged me for having in possession of stolen property which was fraudulently obtained. I was locked up in Mount Hagen Police Station for one (1) week and was released on K250.00 bail.

(9) Then on 15th February 1993, a policeman by the name Bram Moea interviewed me and I told him that the said vehicle was mine. However, he did not accept my story and charged me under Section 410 (1) (a) of the Criminal Code Act. From then onwards I was waiting for Mount Hagen District Court to make decision.

(10) On or about 20th April 1993, the matter came before His Worship, Titus Newman at Mount Hagen District Court for decision. The Court made an order to the effect that, the case be dismissed and the said motor vehicle be returned to the owner Daniel Waikali. Annexed hereto and marked with letter “B” is the true copy of the Mount Hagen District Court order dated 20th April 1993. I was also issued with a certificate of dismissal. Annexed hereto and marked with letter “C” is the true copy of the certificate of dismissal.

(11) I then approached the Police Informant, Bram Moea to release my said vehicle at Mount Hagen Police Station. I was informed that the vehicle was taken away to Porgera Police Station. I went to check up at Porgera Police Station the next morning. The policemen at Porgera Police Station told me that they know nothing about my vehicle.

(12) In early May 1993, I went to see the Presiding Magistrate, Titus Newman, at Mount Hagen Court House and he verbally ordered the police informant Bram Moea to release the vehicle to me. However, he told me that some Porgera policemen have already took (sic) the vehicle away to Porgera and I should contact them.

(13) Then on 12th May 1993, I went to Mount Hagen Police Station again to see the Provincial Police commander. I went inside his office and shared my problem with him. At the same time I showed the court order to him. He told me that he will write a letter and sent to PPC Wabag to release the said vehicle. Annexed hereto and marked with letter “D” is the true copy of the letter from PPC S Mapi dated 12th May 1993.

(14) After some days, I took a copy of the said letter from S Mapi to see the PPC at Wabag. The PPC from Wabag, then told me to check at Porgera Police Station. I then went to Porgera Police Station again and showed all the documents to them. I told them that I am the owner of vehicle and that it should be returned to me forthwith. However, they denied having possession or in custody of the said vehicle. They then asked me to go and see Mount Hagen Police again.

(15) Once again I went to see Mr Bram Moea at Mount Hagen Police Station and he said he was not aware of the whereabouts of the vehicle. He asked me to see Wabag and Porgera Station again. I then got really frustrated and gave instructions to M.C. Thoke and his Law firm to take legal proceedings against the Police Department and State to recover the costs/value of the vehicle in the sum K16,000.00 and loss of business income.

(16) Prior to 12th April 1993, I had already secured a contract with Enga Engineering Pty Ltd for my said vehicle to work on Sirunki/Papyuk/Pialam and Pumas and Lake Rau road, Laiagam in the Enga Province. After 3 to 4 days of work on that road, my vehicle was impounded by Mount Hagen Police and I loss the contract.

(17) Under the terms of the contract my vehicle was hired at rate of K12.00 per hour and total amount Enga Engineering Pty Ltd agreed to pay after the completion of the work was K5,664.00. Annexed hereto and marked with letter “E” is a copy of the Work Agreement No. A. 00 261 bearing my signature and representatives of Enga Engineering Pty Ltd’s signature. Also attached herewith and marked with letter “F” is the true copy of the duly signed Pre-Commitment Form dated 8/2/93 which qualifies for validity of the Work Agreement.

(18) If my said vehicle was not loss, I would have had renewed my contract and my business would have had been successful and I would have made well over K53,000.00 within the last (3) three years.

(19) With assistance from the Enga Engineering Pty Ltd Accountant Sam Rau, who was a graduate of Pacific Adventist College, I prepared the cash flow based on rates provided in the contract. The cash flow was done on assumption that the income would be generated if the vehicle had never been impounded or returned in good faith to the owner after the court ordered the release. Annexed hereto and marked with letter “G” is the true copies of the 6 page cash flow which I prepared. As revealed in the cash flow, I made a projected profit loss of K53,378.00. I am claiming this amount plus the value of the vehicle in the sum of K16,000.00.

(20) Finally, Police Constable Bram Moea and Porgera Policemen were wrongfully detaining and selling away my vehicle Nissan Dumb Truck and the State of Papua New Guinea should be vicariously liable to meet the value of the vehicle and loss of projected business income of K53,378.00.”

Among the bundle of documents annexed to the Plaintiff’s affidavit is annexure “D” which is a letter from the then Provincial Police Commander of Western Highlands Mr SN Mapi to the Provincial Police Commander at Wabag dated 12 May 1993. That letter reads:

“Release of Vehicle Reg. No Lac 062 to Mr Daniel Waikali

Ref: National Court Case No N/C 21/93 of 20/4/93

It has been alleged that the National Court Case No. 21/93, held on the 20th of April, 1993 between Mr Daniel Waikali and (PJV) Porgera Joint Venture regarding this vehicle Nissan Dumb Truck Reg No. LAC 062.

That was in favour of Mr Daniel Waikali. The Court found that this vehicle belongs to that complainant Daniel Waikali. The National Court rules that there is insufficient evidence to stand trial of this person.

Therefore the Court ordered that the case dismissed, defendant discharged bail of K250.00 returned to the defendant and this vehicle be returned to the owner Daniel Waikali of PO Box 340, Wabag, Enga Province.

This case was originated by CID Wabag and transferred to CID Mount Hagen to process charges against Daniel Waikali. This vehicle was unfortunately being returned to Porgera Joint Venture for some unknown reasons by Detective S/Cont. Bram Moea who handled this case.

This member must have misunderstood the National Court’s decision made in favour of the defendant. Therefore, suggest instruct your OIC CID to re-confiscate that vehicle and returned to Mr Daniel Waikali who is the legal owner of that car, before we face all sorts of further court cases. (See attached Court Order and Decisions).

SN MAPI

CSP / PPC-WHP

cc: Pro. Senior Magistrate - District Court Mount Hagen

cc: Mr Daniel Waikali - PO Box 340, Wabag.”

The reference to the National Court in the above letter is a mistake.

This is a case in which serious allegations of unlawful actions of a member of the police force is made. On the face of the letter of PPC, S Mapi, the actions of the First Defendant appear to be clearly illegal and in contempt of a Court Order to release the truck to the Plaintiff.

These proceedings are brought pursuant to S. 1 of the Wrongs Act Ch 295. Under that section, the State is vicariously liable for the torts committed by its servants and agents: S. 1 (2), Policemen are servants of the State: David Kofewi v Augustine Siviri & Ors [1987] PNGLR 5. Section 1 (4) provides the parameters of the State’s vicarious liability for the wrongful actions of policemen. It provides:

“Where functions are conferred or imposed on an officer of state as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the state in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by Government.”

The liability of the First Defendant is clearly established by the evidence. I find on the evidence that the Plaintiff is the registered owner of the truck. I find that the seizure of the vehicle by the First Defendant prior to the District Court Order was valid or lawful because it was seized for purposes of criminal proceedings which were in fact prosecuted before the District Court. But I find that the First Defendant wrongly and unlawfully failed to return the vehicle to the Plaintiff as ordered by the Mount Hagen District Court and as directed by PPC Mapi.

Is the State vicariously liable for the wrongful actions of the First Defendant? Applying S. 1 (4) of the Wrongs Act, I am of the opinion that the conduct of the First Defendant in continuing to retain the vehicle and disposing of it in breach of the District Court Order and in breach of the directions given by his superior, PPC Mapi, constitute circumstances which exonerate the Second Defendant from vicarious liability for the First Defendant’s actions.

In my view, the First Defendant is liable to the Plaintiff for damages for the loss of his motor vehicle at the hands of the First Defendant.

On the question of damages, the Plaintiff purchased the truck in January 1993 with cash money of K16,000.00 from a private owner, one Robert Timil of Aipus village, Enga Province. There is no evidence as to the age and condition of the vehicle when it was purchased. The vehicle was seized by the First Defendant on 12 February 1993. It appears that the truck was a second-hand one. I assume that K16,000.00 was a second-hand rice for the vehicle. As the truck was used for only few months by the Plaintiff, I am not prepared to allow any discount for depreciation. I allow the sum of K16,000.00 for the truck.

In relation to economic loss, the Plaintiff claims a total of K59,042.00 for loss of income from contract work. This amount comprises of two parts. The first part is for loss of income from contract work at K5,664.00. The vehicle was hired out to Enga Engineering Pty Ltd for road works from 9/2/93 - 30/4/93 at a total of K5,664.00. There is in evidence a contract between the parties dated 8/2/93. As a result of the seizure, the Plaintiff claims he was unable to use the vehicle. He claims K5, 664.00. The second part is for the balance of K53,375.00 covering projected income and profit over a period 4 years which period, the Plaintiff assumes, the contract would have been renewed.

In my view the Plaintiff is entitled to recover only for the current contract term. Whether the contract would have been extended for another four years is conjecturous. In the absence of any evidence from Enga Engineering Pty Ltd, I am not prepared to go beyond the current contractual term.

As I have already ruled that the seizure and detention of the truck prior to the District Court Order of 20 April 1993 was lawful, the Plaintiff is only entitled to recover economic loss for the period of 10 days from 20/4/93 - 30/4/93. I allow K691.00.

The Plaintiff also claims K15,000.00 for exemplary damages. I agree that exemplary damages should be awarded. However, I consider the amount sought to be excessive: See James Koimo v The State N 1322 (1995) at p. 12. I award K400.00.

A summary of awards made to Daniel Waikali is K17,091.00 computed as follows:

I order that this judgment be settled by the First Defendant only forthwith.

In view of the matter proceeding ex-parte against the First Defendant and noting that the Solicitor General filed a Notice to Defend in respect of both Defendants but only filed a defence in respect of the Second Defendant, I grant liberty to the First Defendant to apply to vary or vacate this judgment within thirty (30) days after personal service of this judgment or order on the First Defendant.

Lawyer for the Plaintiff: Thoke Lawyers

Lawyer for the Defendants: Solicitor General