N11346

    PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO 142 OF 2018 

BETWEEN:
MMK TRANSPORT LIMITED  
Plaintiff/cross-defendant

AND:
EXPRESS FREIGHT MANAGEMENT LIMITED 
Defendant/cross-claimant

LAE: DOWA J
6 SEPTEMBER &10 OCTOBER 2022; 30 JUNE 2025

CIVIL CLAIM- Plaintiffs claim for unlawful detention-whether detention of truck during police investigation unlawful- failed to prove unlawful detention-claim dismissed. 

CROSS-CLAIM-defendant’s crossclaim for unlawful theft and conversion of Semi-Trailer--whether Crossclaim of conversion proved- Defendant proved on the balance of probabilities tort of conversion-Damages- Cross claimant has burden to prove damages with credible evidence- -assessed and damages awarded on the crossclaim.

Cases cited
Yooken Paklin v The State (2001) N2212
 Samot v Yame (2020) N8266
Covec (PNG) Ltd v Kama (2020) SC1912

Counsel
T Berem for the plaintiff/cross defendant
J Langah for the defendant/cross claimant

DECISION

1.	DOWA J:	This is a decision on both issues of liability and damages on competing claims by the parties. 

2.	The Plaintiff/cross defendant, MMK, claims against the Defendant/cross claimant, EFM, damages for unlawful detention of its Kenworth Truck, Prime Mover, Reg No HAT 342 for 16 days resulting in loss of income. 

3.	The Defendant/cross-claimant, EFM, claims against the Plaintiff/cross-defendant MMK, damages for unlawful conversion and use of its Semi-Trailer Reg. No. TR7823.

Facts

4.	The Plaintiff/cross-defendant is a trucking company and is the registered owner of Kenworth Truck, Prime Mover, Reg. No. HAT 342. On 1st October 2018, the Plaintiff’s Truck, was on its way to Porgera with cargo when it was confiscated by Police at 40 Mile, outside of Lae city on allegations that the truck used a stolen trailer belonging to the Defendant/cross-claimant. The truck was then escorted back to Lae. The truck driver was remanded in Police custody and the truck was detained at the Defendant/cross-claimant’s yard. The truck was eventually released on 16th October 2018 after the commencement of this proceeding. The Plaintiff/cross-defendant alleges that the detention of its truck was unlawful and because of the detention, the Plaintiff/cross-defendant suffered loss of income.

5.	The Defendant/cross-claimant is also involved in trucking business. It is the owner of the Semi-Trailer Reg. No. TR7823. EFM alleges that the trailer was stolen and detained by the Plaintiff as of 8th August 2018. The Defendant/cross-claimant alleges that the Plaintiff/cross-defendant changed the Registration Number from TR7823 to TR2550 and repainted same to conceal its identity.  The matter was reported to police which resulted in the impounding of the Plaintiff’s truck in the normal course of police duties. As a result of the conversion of its trailer, the Defendant/ cross-claimant alleges it suffered loss of income as well as repair costs and claims same in the Crossclaim. 

Evidence-Plaintiff/crossdefendant

6.	The Plaintiff/cross defendant relies on the following Affidavits:

a.	Affidavit of Luke Talian filed 12th October 2018
b.	Affidavit of Philomen Tame filed 17th October 2018
c.	Affidavit of Luke Talian filed 9th November 2018
d.	Affidavit of Isaac Poke filed 13th April 2021
e.	Affidavit of Chris Kandege filed 6th May 2021

7.	This is the summary of the Plaintiff/cross defendant’s evidence. The Plaintiff is the owner of the Kenworth Truck, Reg. No. HAT 342. The truck is used for ferrying cargo between Lae and Porgera for the Operator of the Porgera Mine. On 1st October 2018, the truck was confiscated by the Lae based Police on allegations that the trailer hooked on to the truck was a stolen property belonging to the Defendant/cross-claimant. The Truck was brought back to Lae and detained for 16 days. As a result of the detention, the Plaintiff suffered loss in its haulage business in the sum of K 94,530.25

8.	In response to the Defendant/cross-claimant’s allegations, the Plaintiff/cross defendant refutes same saying, the Defendant/cross claimant’s trailer was brought and left at their yard in the night, and the owner has not reclaimed same. As for the criminal charges laid against the driver and the Operations Manager, the charges were struck out for want of prosecution. 

Defendant/cross-claimant’s evidence.

9.	The Defendant/cross-claimant relies on the following Affidavits:

a.	Affidavit of Richard Howden filed 18th May 2021
b.	Affidavit of Richard Howden filed 17th June 2021.

10.	This is the summary of the Defendant’s evidence. The Defendant, Express Freight Management Limited (EFM) is the owner of Semi-Trailer Registration No. TR 7823, blue in colour. The trailer was stolen on 4th August 2018 during the night from Mainland Holdings yard at Speybank Street, Lae. The Trailer was then taken to the Plaintiff’s yard and was subsequently painted in the colours of MMK Transport and given new Registration No. TR 2550. The Trailer was then used by the Plaintiff to transport goods to and from Porgera on three occasions. On 1st October 2018, the Trailer hooked to the Plaintiff’s Kenworth Truck, Reg No. HAT 342, was spotted at 40 Mile by Police. It was impounded and brought back to the Defendant’s yard pending criminal investigation. The police released the keys to the Plaintiff later. On 4th October 2018, the Defendant permitted excess to remove the cargo but retained the vehicle pending settlement of loss because of the deprivation of the trailer. On 5th October 2018, the Defendant wrote to the Plaintiff offering to release the Defendant’s Truck on condition that the Plaintiff acknowledge their illegal actions and pay compensation of K 20,000.00. The Plaintiff did not respond and instead instituted the current proceedings.

11.	The Defendant refutes the Plaintiff’s assertion that they did not know how and why an unknown Trailer was left at their yard because the Plaintiff made no enquiries nor reported the matter to the Police. Instead, the Plaintiff repainted the Trailer and attached false Plates without informing the Traffic Authority. The actions of the Plaintiff were criminal in nature. Three persons namely Luke Talian, the Operational Manager, Sailas Waro and Apollo Kuddie both drivers, were charged with criminal offences for receiving and using stolen properties under the Criminal Code Act. Mr. Howden deposes that the criminal charges were struck out under suspicious circumstances.

12.	In the Crossclaim, the Defendant claims apart from economic loss, it cost them K33,375.49 for repairs to the Trailer including replacement of tyres. 

Issues

13.	 The issues for consideration are:

a.	Whether the Plaintiff has established liability for unlawful detention against the Defendant
b.	Whether the Defendant has established liability for conversion and detinue
c.	What are the remedies available to the parties in their respective claims. 

Burden of Proof

14.	The burden of proving the claim rests on the claimant and it must discharge the burden on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and hope to be awarded damages claimed. Refer: Yooken Paklin v The State (2001) N2212,  and Samot v Yame (2020) N8266.

a.	Whether the Plaintiff has established liability for unlawful detention against the Defendant

15.	 There is no dispute that the Plaintiff is the registered proprietor of the Kenworth Truck Registration No. HAT 342 at all material times. The Plaintiff’s Kenworth Truck was impounded by Police on 1st October 2018 at 40 Mile outside of Lae City on complaint of a stolen Trailer belonging to the Defendant. There is no dispute that the Defendant’s Trailer Reg. No. TR 7823 was hooked on to the Plaintiff’s Truck when impounded. The Kenworth Truck was driven to the Defendant’s yard pending investigation and laying of criminal charges. Two employees of the Plaintiff company were identified and charged for conversion and for receiving stolen property vis-à-vis the Defendant’s Semi-Trailer. 

16.	Although the criminal charges against the employees of the Plaintiff were struck out for want of prosecution, their actions were nonetheless unlawful. The Defendant’s Trailer was driven to their yard without the Defendant’s permission. The Plaintiff made no attempt to enquire and return the Trailer to the lawful owner. Instead, they repainted the Trailer in MMK Transport colours and got the Registration Number changed from TR 7823 to TR 2550. These are deliberate actions to conceal the identity of the Trailer. The Plaintiff proceeded to use the Trailer for several return trips to the highlands transporting cargo for the Porgera Mine. 

17.	I note the initial detention of the Plaintiff’s Truck at the Defendant’s yard was orchestrated by the Police in their normal course of duty. The detention was necessary while the investigation was ongoing. The Plaintiff was allowed to remove its cargo on 4th October 2018. The Plaintiff was also permitted to remove its Truck from the Defendant’s yard on condition or undertaking that it would pay compensation of K 22,000.00 for the unlawful use of the Trailer for the past eight weeks at the rate of K 2,500. 00 per week. The Truck was eventually released on 16th October 2018 after the commencement of these proceedings.

18.	 The Plaintiff’s proceeding is based on unlawful detention or an action in detinue. It is an action in tort for the recovery of damages for detention of personal property wrongfully detained by another party. According to the evidence, the Plaintiff’s truck was a subject of criminal investigation by the Police. It was initially impounded by the Police. The criminal investigations resulted in the Operations Manager; Mr. Talian and two drivers being charged with the offence of knowingly receiving stolen property under the Criminal Code Act. Mr. Talian was charged on 24th October 2018, eight (8) days after the release of the Truck. The Defendant’s stolen Semi-Trailer was hooked to the Plaintiff’s Kenworth Truck, and it is arguable that they are potentially Court exhibits. Apart from that, the Defendant/cross claimant had a lien over the truck pending settlement of loss of income due to the deprivation of its trailer. It was not an unreasonable request.

19.	In the circumstances, I am not satisfied that the Plaintiff’s Kenworth Truck was wrongfully detained by the Defendant as alleged. I find the Defendant is not liable and will dismiss the Plaintiff’s claim.

b.	Whether the Defendant/cross claimant has established liability for conversion and detinue

20.	The Defendant filed a cross claim in detinue and conversion. The facts are not disputed. The Defendant/cross claimant is the owner of the Semi-Trailer, Registration No. TR7823. It was stolen from its yard on 4th August 2018 and handed up at the Plaintiff’s yard at Omili, Lae, Morobe Province. The Trailer was repainted into the Plaintiff’s MMK Transport colours. The Plaintiff replaced the Defendant’s Registration Number TR 7823 with their own plate number TR2550. This was done to conceal the identity of the Trailer. The Trailer was then hooked onto the Plaintiff’s Kenworth Truck, Reg No. HAT 342 and transported cargo between Lae and Porgera. It was during one of the trips when the Plaintiff’s Truck was impounded at 40 Mile, outside of Lae and escorted back to Lae.

21.	According to Isaac Poke, a witness for the Plaintiff, the Trailer was dropped off at their yard in the night and they noticed it the next morning. They waited for the owner to come around to collect it, but no one came to pick it up. 

22.	Although the Plaintiff contends that it is innocent, the actions of its employees clearly manifest an intention to keep the Trailer, a stolen property and converted it to its own use by transporting goods between Lae and Porgera along the Highlands Highway. There is no evidence of any attempt made to find the owner of the Trailer to return same. Instead, they repainted the Trailer, had its Registration Number changed to conceal its identity and used it to earn income as though they were the owners to the detriment of the Defendant, the true owner.  The Defendant was deprived of the use of its Trailer and suffered financial loss because of the conversion.

23.	The Defendant/cross-claimant’s claim is based on tort of conversion. In Covec (PNG) Ltd v Kama (2020) SC 1912, the Supreme Court stated the relevant principles to be applied when determining damages for conversion:

‘’128. The principle that obtains from these authorities then is this: A defendant may pay for the market value only of the materials after they become chattels at time of conversion if he acted fairly and honestly in a bona fide belief that he had the right to do what he did, wholly ignorantly, without sinister intention, or where the plaintiff passively stands by and does not protest the act of trespass or conversion from continuing. This is the milder rule. If, on the other hand, the defendant’s conduct is willful, or is designed to deprive, frustrate or embarrass the plaintiff in exercising his full rights to his land or chattels, or the defendant persists in his wrongful conduct in the course of active opposition or litigation between him and the plaintiff, the plaintiff is entitled to recover the market value of the converted chattels together with the cost of severing the mineral. This is the strict rule.’’
 	(underlining mine)

24.	In the present case, it has been established that the Plaintiff/cross defendant has been deliberate and willful, depriving the Defendant/cross claimant of ownership and possession of its Semi-Trailer and is entitled to reasonable compensation.

25.	In all the circumstances, I find the Defendant/cross claimant has proved its crossclaim on the balance of probabilities. I find the Plaintiff/cross defendant liable 
for damages.

c.	What are the remedies available to the parties in their respective claims. 
26.	As I have found, the Plaintiff is liable to the Defendant in the Crossclaim. Whilst the issue of liability is settled, the Defendant/cross claimant is still required to prove the crossclaim with credible evidence.  Ref: Yooken Paklin v The State (supra) and Samot v Yame (supra).

27.	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, National 
•	Court, Kandakasi J.)”

28.		I will apply the above principles to the present case. In the present case, the Defendant/cross claimant claims the following reliefs in the crossclaim:

      a) 	Loss of income-    K22,000.00 
      b)  	costs of repairs-	K33,575.49
      c)   special damages-	K 5,000.00
      c) 	Interest.
      d) 	Costs

a)	Loss of Income-K 22,000 
 
29.	The Defendant/cross-claimant claims K 22,000.00 for loss of income. The Defendant/cross claimant submits it made a loss of K 2,500.00 per week for eight (8) weeks (8th August to 1st October 2018) when it was deprived of the usage of the Trailer. While the Cross-claimant produced an invoice for the period it was deprived from using the trailer to earn income, I am not convinced that it would have consistently and without fail earned that amount. Allowing for lapses and for contingencies, I will allow only 60 % of the claim. 60% of K 22,000.00 is K 13,200.00 and   I will award K 13,200.00 for loss of income. 

      b)  	costs of repairs-	K33,575.49

30.	The Defendant/cross claimant claims K 33,575.49 for cost of repairs. The pleading in the Crossclaim shows a general claim for repair costs without particulars. As for evidence, the Defendant/cross claimant provided detailed documentary evidence of the repair costs. I accept the evidence that the cost of repainting and replacement of tyres were necessary costs after the Trailer was repainted and used by the Plaintiff for a considerable period.  As to the amounts, it is noted that the repairs were done at the Defendant’s own Workshop and internal job cards were issued. There is no evidence of external invoices or payments made. In the circumstances, the Court will allow only a portion of the repair costs. I will allow 60% of the costs which amounts to K20,145.29 and make an award for that sum only. 

Special damages-K 5,000.00

31.	The Defendant/cross claimant claims K 5,000.00 being out of pocket expenses incurred for the search and recovery of the Trailer involving police personnel and others.  This claim is not supported by evidence. No award shall be made.

Total award

32.	 The total award shall be K 33,345.29

     Interest
33.	The Defendant/cross claimant is claiming interest at 8%.  I will allow interest at 8% on the amount assessed.  Interest is to commence from date of Crossclaim, (06/12/2018) to date of judgment (30/06/ 2025) for a period of 2,396 days.  Interest is calculated as follows:

K 33,345.29 x 8/100	=	K 2,667.62 per annum	
K 2,667.62/365 days	 =     	K    7.31 per day	
K 7.31 x 2,396 days	=	K 17,514.76	

34.	The total award inclusive of interest is		=	K 50,860.05

	Costs

35.	     The Defendant/cross claimant is claiming cost.  I will allow cost in its favour.

Orders
36.      The Court orders that:

1.	The Plaintiff/cross defendant’s proceeding is dismissed.
2.	Judgment is entered for the Defendant/cross-claimant in the sum of K 50,860.05 inclusive of interest.
3.	Post Judgment interest shall accrue at the rate of 8% until settlement.
4.	The Plaintiff/cross defendant shall pay the cost of the proceedings to be taxed, if not agreed.
5.	Time be abridged.
______________________________________________________________________
Lawyers for the plaintiff/cross-defendant: Berem Lawyers 
Lawyers for the defendant/cross-claimant: Warner Shand Lawyers