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Sarapel v Kulumbu [2003] PGNC 97; N2405 (16 June 2003)

N2405

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CA No. 294 of 2004

BETWEEN:

JACOB SARAPEL

-Appellant -

AND:

FRED KULUMBU
-Respondent -

WAIGANI: GAVARA – NANU, J
2003: 13th & 16th June

PRACTICE AND PROCEDURE – Appeal from the District Court – Complaint laid in the District Court having no cause of action – Deliberate abuse of process – Proceedings not brought in good faith – Costs incurred or wasted in pursuance of such proceedings – Negligence by the lawyers acting for a party.

Cases cited:
Niugini Lloyds International Banks Ltd -v- Sakora [1997] PNGLR 275
The State -v- Gene [1991] PNGLR 33
Gulf Provincial Government -v- Baimuru Trading Pty Ltd – N1794
Don Pomb Pullie Polye -v- Jimson Sauk Papaki & Or SC637

Counsel:
T. Gene for the appellant
D. Keta for the respondent

GAVARA-NANU J: The appellant and the respondent were small business partners doing various businesses which required the use of the appellant’s Ford bus with registration number - CAB.159, from time to time.

The appellant says on 06th September, 2001, the respondent approached him to borrow the Ford bus so that he could register it for their use. The appellant further says that, after registering the Ford bus, the respondent did not return it to the appellant. The appellant becoming suspicious of the respondent then demanded the return of the bus. The appellant says, the respondent refused to return the bus and claimed ownership over it and demanded that the appellant pay him K 1,500.00 which the respondent said was borrowed by the appellant from him sometime back, to maintain the bus.

Following that, the appellant approached the respondent at his work place in Holiday Inn and discussed the matter with him with the view of settling the matter. But they could not settle the matter so they both went to Gordons Police Station on 20th October, 2001, where they in the presence of the police, went through mediation process to try and settle the matter. It appears that they could not come to an agreement so the respondent was ordered by the Police to pay the appellant the cost of the bus, and keep the bus.

The appellant not being satisfied with the outcome of their discussion at the Gordons Police Station filed a Complaint at the Port Moresby District Court against the respondent claiming the return of the bus and damages for loss of business.

The respondent in defence of that Complaint argued that there were two different vehicles that the appellant had complained about, one was the Ford bus, which belonged to the appellant and the other is a Mazda bus, which belonged to him. The two vehicles had the same registration number - CAB.159, because the appellant removed the registration number of the Ford bus and put it on the Mazda bus.

The Port Moresby District Court dismissed the appellant’s Complaint for the reason that the appellant had transferred the registration number - CAB.159, from Ford bus, which the appellant owned to the Mazda bus. The presiding magistrate held that, such transfer contravened the provisions of the Motor Traffic Regulations, and it was an offence under s. 20 (a) (1) of those Regulations.

The Court also held that the conduct of the appellant was contrary to s. 21 of the Motor Traffic Regulations, which prohibits alterations of the particulars of the registration certificates of vehicles without the notice and the approval of the Motor Traffic Superintendent. The Court held that, under those circumstances, the appellant had done things which were contrary to law and the Court would not sanction such illegal conducts.

The appellant appealed against that decision of the Port Moresby District Court, which was given on 04th June, 2002.

The appellant raised seven grounds of appeal: -

1. The learned magistrate erred in law and in fact in dismissing his Complaint in which he claimed the return of the Mazda bus.
   
2. The learned magistrate erred in law and in fact when he relied upon the respondent’s affidavit after an objection was taken against the admissibility of the affidavit on the basis that, the affidavit was sworn by a person other than the respondent.
   
3. The learned magistrate fell into error when he decided to accept and rely on the respondent’s affidavit without any supportive or corroborative evidence.
   
4. The learned magistrate erred in law when he decided not to accept the appellant’s affidavit and went onto dismiss the appellant’s Complaint, when there was evidence in the appellant’s affidavit on which the learned magistrate could have found in favour of the appellant.
   
5. The learned magistrate erred in law when he applied s. 14 of the Motor Traffic Regulations, which the appellant says is not relevant to his Complaint.
   
6. The learned magistrate fell into error when he did not address two issues before him.
   
7. There was miscarriage of justice as the decision was against the evidence and the weight of the evidence.
   

The appellant and the respondent both filed affidavits in support of their claims. The appellant in his affidavit says he is the rightful owner of the Ford bus which, he also referred to as the Mazda bus and having the same registration number as the Ford bus. He says the Ford bus was in fact a Mazda but it was registered as Ford with the same registration number.

The appellant says he first bought the Ford bus from ACB Air Conditioning for K 800.00. The appellant has produced a letter from ACB Building Services Ltd, confirming that ACP Air Conditioning Services Ltd did sell a Ford bus having registration number CAB. 159, which was a wreck and written off to the appellant for the sum of K800.00. The appellant says on 19th May, 2000, he went to the Port Moresby Wreckers and bought a body of a Mazda bus for K 800.00. Again he has produced a copy of the invoice which shows that a body of a Mazda E2000 was sold to Mr Jacobs on 19th May, 2000, for K 800.00.

The appellant says he then removed the engine from the Ford bus and fitted it into the body of the Mazda bus. He also removed some parts from the Ford bus and put them into the Mazda bus. He says one of the items he removed from the Ford bus was the number plate CAB. 159, and put it on the Mazda bus.

The appellant says he then went and registered the bus as Mazda not as a Ford, bearing the same registration number. The vehicle was registered at the Central Provincial Traffic Registry. He has produced a certificate of transfer for the Ford bus from ACP Air Conditioning Ltd to his own name.

The appellant in his affidavit says that, because parts of the Mazda bus were taken from the Ford bus, including engine and the registration number, he inquired at the Central Traffic Registry as to whether it was alright for him to register the vehicle as Ford using the previous registration certificate, but under this own name. He says he was advised by the Central Traffic Registry officials that, he could register the Mazda bus as Ford under the same registration number - CAB.159.

He says, that is how the Mazda bus happens to have the same registration number as the Ford bus. He says, he has thus proved that he is the rightful owner of the Mazda bus which is now in the possession of the respondent.

The respondent in his affidavit agreed that the appellant is the rightful owner of the Ford bus and says that, he does not dispute the appellant’s ownership over the vehicle.

But, as to the Mazda bus, he says he is the owner. He says the Mazda bus was previously owned by a person by the name of Mr Terry Asigau who was previously employed by Air Niugini. Mr Asigau sold the Mazda bus to a person by the name of Henao Pasi who then sold it to him for K800.00. He says the Mazda bus is also white in colour like the Ford bus but the chassis and the engine numbers are different to those for the Ford bus.

The respondent gave the chassis number for the Mazda bus as SRYOE2 and the engine number as FR66-66331990. The chassis and engine numbers for the Ford bus are SGNEHK686 and FE463D2. The respondent says, it is thus very clear that there are two totally different vehicles.

The respondent says the appellant has contradicted himself because, paragraph 2 of the Complaint and paragraph 5 of the Statement of Claim to the Complaint as well as paragraph 4 of Mr Thedore Gene’s affidavit, all state that, on 06th September, 2001, the respondent approached him and borrowed the bus so that he could registered it.

But the appellant in paragraph 8 of his own affidavit says, he was the one who registered the Ford bus. That is also confirmed by Annexure ‘E’ to the appellant’s own affidavit, which is the registration certificate for the Ford bus. This certificate also shows the chassis and engine numbers for the Ford bus as FE463D2 and SQNEHK686 respectively, but I think the correct engine number is SGNEHK686, which is consistent and corresponds with Annexure ‘A’ to the appellant’s affidavit. These numbers also correspond with those given by the respondent.

The appellant argued that the learned magistrate had no power to invoke the provisions of the Motor Traffic Regulations to dismiss his Complaint, because the only penalty that can be imposed under these Regulations is a fine. He argued that the Court therefore did not have the power to deny his ownership over the Mazda bus.

The respondent has denied the claims made by the appellant and says that the appellant has not proved his ownership over the Mazda bus. The respondent further argued that the vehicle which the appellant pleaded in the Complaint was the Ford bus and not Mazda bus. Therefore the vehicle pleaded in the Complaint being a wrong one, the respondent argued that there was no cause of action against him in the District Court.

The respondent referred to the case of Niugini Lloyds International Banks Ltd -vs- Sakora [1997] PNGLR 275, in support of his argument. There the Court held that where proceedings in the District Court were based on an erroneous claim, the National Court would not have the power to amend such proceedings or the particulars of the proceedings on appeal.

The respondent therefore argued that the appeal should be dismissed because this Court cannot amend the defective Complaint upon which this appeal is based.

The other reason advanced by the respondent why the appeal should be dismissed is that the cause of action pleaded in the Statement of Claim and the Complaint was at variance to the evidence that was before the District Court. The respondent in support of this argument referred to the case of The State -vs- Gene [1991] PNGLR 33, where the Court held that where the evidence differed or was at variance to the offence charged in the indictment, the indictment was held to be bad.

The respondent also relied upon s. 14 (4) of the Motor Traffic Act which says a certificate of registration shall relate to a single vehicle only, and s. 20 of the Motor Traffic Act, which prohibits transfer of registration numbers of vehicles. In this case, these requirements were breached by the appellant.

The respondent argued that, if this appeal was allowed, the Court would in effect be approving or sanctioning the illegal conducts by the appellant. He submitted that the appellant’s actions were not only unlawful but they are against public policy.

It is clear from the reasons given by the learned magistrate for his decision that, no specific Orders were made on who owned the Ford bus, because the Orders only relate to the illegal transfer of the registration number of the Ford bus to the Mazda bus. His Worship then went on to dismiss the Complaint. The other reason for the learned magistrate’s decision is that there were two buses involved in the proceedings and the bus which the appellant was complaining about was different from the bus which was owned by the respondent, namely the Mazda bus. So his worship appears to have accepted that, there was error in the appellant’s claim in the District Court, and therefore there was no cause of action against the respondent.

Having considered all the evidence and the submissions put forward by both counsel, I have come to the firm view that the appeal must fail for the reason that the appellant has not proved his claim against the respondent. I am not convinced that the Ford bus is the same as the Mazda bus. They clearly appear to be two completely different vehicles as shown by their respective chassis and engine numbers.

I find clear contradictions in the appellant’s evidence. For instance, he says, the respondent took the bus from him to register on 6th September, 2001, but the appellant in paragraph 8 his own affidavit says, he is the one who registered the Ford bus on 6th September, 2001. This is clearly born out by Annexure ‘E’ to his affidavit.

Also in paragraph 9 of his affidavit, the appellant says, he removed the engine from the Ford bus and put it in Mazda bus, but the evidence adduced clearly shows that, that could not be possible because the engine number given for the Mazda bus by the respondent does not correspond with the engine number for the Ford bus, as shown in the registration certificate and the Certificate of Transfer produced by the appellant.

There is one other significant point I will make about Annexure ‘E’ to the appellant’s affidavit. This Annexure is the registration certificate which shows that the Ford bus was registered by the appellant on 6th September, 2001. The expiry date of the registration shown there is 6th September, 2002. Although this document was referred to as Annexure ‘E’ by the appellant to his affidavit, it was not annexed to the affidavit. This document is crucial to the appellant’s claim because, it clearly confirms that the Ford bus was registered by the appellant himself, which is what he also deposed in paragraph 8 of his affidavit. This clearly contradicts his assertion that it was the respondent who registered the Ford bus on about 6th September, 2001.

The document appears to have been conveniently left out by the appellant from his affidavit. That is fatal to his case. It was only produced to me after I requested it and it was produced a day after the hearing. I discovered the omission soon after the Court adjourned after the arguments were presented and the decision was reserved. My Associate brought the omission to the notice of the appellant’s lawyer in the same afternoon, but despite the lawyer assuring my Associate that the document would be produced the same afternoon, it was not produced until much later on the next day.

I do not believe this is a matter for which the appellant’s lawyer can claim ignorance because the appellant’s affidavit was sworn before Mr Gene, the lawyer for the appellant. From that, I can conclude that Mr Gene was aware of this missing document. That is serious because it strikes at the core of the lawyer’s ethical and professional conduct. It amounts to clear negligence and misconduct by the appellant’s lawyers.

This as I said must affect the appellant’s appeal because it clearly shows that the appellant had no cause of action against the respondent in the District Court as the Complaint was about the respondent registering and keeping the Ford bus. It is now clear that the Ford bus was registered by the appellant on 6th September, 2001, and not by the respondent. The appellant’s Complaint was therefore bound to be dismissed, as it had no basis in law.

The proceedings in the District Court and this appeal are therefore an abuse of process by the appellant. The appeal is therefore, in my view vexatious and not brought in good faith, see Gulf Provincial Government -v- Baimuru Trading Pty Ltd – N1794 and Don Pomb Pullie Polye -v- Jimson Sauk Papaki SC637.

I therefore find no miscarriage of justice in the decision given by the learned magistrate on 4th June, 2002. Consequently all the grounds of appeal must be dismissed.

Costs

On 16th June, 2003, I asked counsel for the appellant as to why I should not order costs against the appellant’s lawyers in view of the findings I made. It was submitted that the lawyer who had the carriage of this appeal should be ordered to pay the respondent’s costs and not the law firm which acted for the appellant.

I am of the view that the costs should be awarded against the law firm which acted for the appellant. This was the approach taken by the Supreme Court in the case of Dom Pomb Pollie Polye -v- Jimson Sauk Papaki & Electoral Commission of Papua New Guinea – (supra).

I have found that these proceedings were not brought in good faith and are clear abuse of process. I therefore order that the law firm Lomai and Lomai Attorneys pay the respondent’s costs on solicitor/client basis.

The Court Orders that:-

1. The appeal is dismissed, and
   
2. The decision given by the Port Moresby District Court on 4th June, 2002, is affirmed.
   
3. The respondent’s costs of the proceedings to be paid by Lomai and Lomai Attorneys, on solicitor/client basis.
   

Orders accordingly.
_______________________________________________________________________
Lawyers for the appellant : Lomai & Lomai Attorney
Lawyers for the respondent: David Keta Lawyers.