National Court of Papua New Guinea

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

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

(2) &&#160 Firet Deft Defendantndant is a Policeman attached to Mount Hagen Police Station, Mount Hagen, Western Highlands Province.

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

(4) The Firft Dentndaongwrlly ully alleged that the Plaintiff was in possession of stolen property and charged him under Section 410 o CrimCode /p> <ـ On or about 20th April 1993, M93, Mount ount HagenHagen Dist District rict Court after hearing the evidence, it dismissed the charge and ordered the First Defendant to immediately return the vehicle to the Plaintiff.

(6) &#16spite repeated requestsuests for the immediate release of the said vehicle, the First Defendant neglected or wilfully refused toly wie Couder aturn the same to the Plaintiff.

(7) &160; &#160 It ; I bees been alleged tged 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 cann ableeprocis vehicle.

(8)p>(8)&#160 ټ At all 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 ofWrongscellaneous ProviProvisionssions), Act (Chapter No 297).

(9) In consequencr the tof,Plae Plaintiff suffered loss and damages.

PARTICULARS

(a) ofssoad raintenance contraontract withEnga eerin Ltd Plai usually makes abou about K10t K100.00 0.00 per dper day.

(b) ҈ ofss e sthe said veid vehicle whic purc at aideration price oice of K16f K16,000.,000.00.

Upon being served with the Writ, the Solicitor General filed a Notice of Intention to Defe respf botendantsdants.&#16. Th0; The Solr General̵’s however, filed a Defence only in respect of the Second Defendant. This De reads:

Defe>Defence

(1) Sece d Denendant denies thas that the Plaintiff is the regid owner of the vehicle a Nissan Truck Registered Number LAC-062 but admits the rest of para paragraph 1 of the Plaintiff’s Stat of C

(3)&ـ҈ econd Defendant denies paragraphs 3, 4, 5, 6, 7, 8 and 9 of t of the Plhe Plaintiaintiffff’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 eve.&#ce. No questions were askedis his counsel or myself on his affidavit. As that affidavit i only enly evidence on this trial, I will reproduce the body of the affidavit in full:

Afit

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

(1) I am the Plai tiffhin tatt matter and as such I am authorised to depose the facts herein.

(2) ; I am about 36syears old mold married with 3 children. Currently emplby tha Eerineering Ptyg Pty Ltd Ltd whichwhich is a company wholly owned by the Enga Provincial and Local Level Government.

(3) Iny January 1993, I bought a Nissan Dumb Truck Registration Nion Number LAC-062 from Robert Timil of Aipus village Enga Province. ught aid ve at h pri K16,0.0.00. I was interested in buyhat that that vehicvehicle bele becausecause the the Enga Engineering Pty Ltd was looking umb Trucks to work on road projects in Enga. I paid K13,000.00 in carstfirst and late later after one (1) week, I gave him K3,000.00.

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

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

(6) ;&#16 out 12brua2bruar3, I 3, I an I and my driver Kano Elyane drove the saie said vehd vehicle to Mount Hagen, Western Highlands Province to load fuel drums.&#At Moagen t to Bank and the driver Kano Elyane tone took thok the saie 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 ted a sthe same time.

(7) ټ I laterlater learned that Mount Hunt Hagen Police impounded my said vehiclewas locked it up at Mount Hagen Police Station. I went to Mount Hagen Police Station tion and told them that vehicle was mine but thut me/p>

(8) &160; #160; ¦&#1 again tried my bemy best to convince them (policemen) that I was the registered ownerhe vehicle but they did notd not believe me. Tharged me for having in p in possession of stolen property which was fraudulently obtained. I wcked up in Mount Hagen agen Police Station for one (1) week and was released on K250.00 bail.

(9) ; The15th February 1993, a 3, a policeman by the name Bram Moea interviewed me and I told hold him that the said vehicle was mine.&#1oweve did ccepttory and charged me under Section 410 (1) (a) of the Criminalminal Code Code Act. Act.&#160 Fron onwards I was waitingiting for Mount Hagen District Court to make decision.

(10) ; On out 20th Apth April 19il 1993, the matter came before orship, Titus Newman at Mount Hagen District Court for deci decision. Thet made an order to the the effect that, the case be dsed ae said motor vehi vehicle bcle be returned to the owner Daniel Waikali. Annexed hereto and marked with letter “B” i true copy of the Mount Hagt Hagen District Court order dated 20th April 1993. I was also issued witertifertificate of dismissa60; Annexed hereto and marked with letter “C” i21; is the true copy of the certificate of dismissal.

(11) ҈ n approached the Pohe Police Informant, Bram Moea to r to release my said vehicle at Mount Hagen Police Station. I was inf thatvehicle was was taken away to Porgera Police Station. I went tck up at Port Porg Porgera Police Station the next morning.; The policemen at Porgera Police Station told me that they know nothing about my vehicle.

(12) In earl 1993enI wo s t thee the Prhe Presiding Magistrate, Titus Newman, at Mount Hagen Court House and he verbally ordered the police inforBram to re the vehicle to me. However, he me that some Pome Porgera policemlicemen haen have alve already took (sic) the vehicle away to Porgera and I should contact them.

(13) Then2th May 19 3, I went tent to Mount Hagen Police Station again to see the Provincial Police commander. I wnside his office and shnd shared my problem with him. At the same I shthe corderorderim.&#16. He told told me that he wihe will write a letter and sent to PPC Wabag to release the said vehicle. Annexed hereto anked wetter “D” is the true copy of the lete letter from PPC S Mapi dated 12th May 19ay 1993.

(14) Aftme da took a copy of thof the said letter from S Mapi to see the PPC at Wabag. The PPhe PPC from Wabag, then told me to check agera e Sta I tent to Porgera Police Sice Station again and showed all the dthe documeocuments tnts to them. I them that I am tner oicl oicle and that it should be returned to me forthwirthwith. However, tenied havingavingaving possession or in custody of the saidcle. They then asked me to go and see Mount Hagen Poln Police again.

(15) Once aI went to see Mr Moer Moea at Mount Hagen Police lice Station and he said he was not aware of the whereabouts of the vehicle. He asked meee Wabag anderandera Sn aga160; I then got really frustrated and gand gave iave instrunstructions to M.C. Thoke and his Law firm to take legal proceedings againe Police Department and State to recover the costs/value ofue of the vehicle in the sum K16,000.00 and loss of business income.

(16) Prior th April 1993, I hadI 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 days of work on thon that road, my vehicle was impounded by Mount Hagen Police and I loss the contract.

(17) &#160er thms of s of the cohe cot my vehicle was hired at rate of K12.00 per hour and totaltotal amount Enga Engineering Pty Ltd agreed to pay after the completion o workK5,664.00. Annexed hereto and m with with lith letteretter “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 attachedwith and mark 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 Aent.

(18) Ifaid ve icl nwas nwas nots 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 assistanoe fre tha Enga Engineering Pty Ltd Accountant Sam Rau, who was a graduate of Pacific Adventist College, I prepared the cash flsed oes prd in the contract. The cash flo done on assumassumption that the the incomincome woue 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 e cash flow, Iow, I made a cted profit loss of K53,378.00. I amming this amount plus plus the value of the vehicvehicle in the sum of K16,000.00.

(160; Finally, Police Constable Bram Moea and Pond 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, on the 20th of April, 1993 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 Nationart rules that that there is insufficient evidence to stand trial of this person.

Thee the Court ordered that the case dismissed, defendant disc 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 misunded the National Court’s decision made in favour of thef the defendant. Therefore, suggest uct yout 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 coases. (See attached Court OrderDand 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 ttter of PPof 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 se, the State iate is vicariously liable for the torts committed by its servants and agents: S. 1 (2), Policemen are servants of the State: David Kofewi v Augustiviriiviri & Ors [1987] PNGLR 5. Section 1 (4) provides the parameters of the State’s vicarious liability for the wrongful actions of policemen. It des:

&#822re fune funs are conferred rred or imposed on an officer of state as such either by a rule of the unde underlying law or by statute, and the of commits a tort while performing or purporting to perform torm 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 evidehat thet the Plaintiff is the registered owner of the truck. I that the seizure of the the vehicle by the First Defendantr to the District Court Order was valid or lawful because it was seized for purposes of crif criminal proceedings which were in fact cuted before the District Cict Court. But I find that the FirstnDefendant 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 liablethe wrongful actions of thef the First Defendant? Applying S. 1of the Wrongsrongs 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 e directions given by his shis 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 le was seized by the Fthe First Defendant on 12 February 1993. pears that the truck was awas a second-hand one. I assume that 00.00 was a as a second rice for the vehicle. As the truck was for onlr onlr only few months by the Plaintiff, I am not prepared to allow any discount foreciation. I allow the sum of K16,000.00 for the trucktruck.

In relation to economic loss, the Plaintiff claims a total of K59,042.00 for loss of income from contract work. This amount comp of two pawo parts. The first ps for loss of i of income from contract work at K5,664.00. The le was hired out to Ento Enga Engineering Pty Ltd for road works from 9/2/93 - 30/4/93160; al of K5,664.00.&.00. There is in eve a contracttracttract between the parties dated 8/2/93. As a r of the seizure, the, the Plaintiff claims he was unable to use the vehicle. He claims K5, 664.160; The; The second part is for the balance of K53,375.00 ing projected income and profit over a period 4 years whichwhich period, the Plaintiff assumes, the contract would have been renewed.

In my view the Plaintiffntiff is entitled to recover only for the current contract term. Whethe contract would have have been extended for another four years is conjecturous. In the absen any evidence ence from Enga Engineering Pty Ltd, I am not red to go beyond the current contractual term.

As I As I have already ruled that the seizure and detention of the truck prior e District Court Order of 2 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 exemplary damages ages should be awarded. However, I consider mount ount sought to be excessive: See James Koimo v Tate N (1995) at p. 12.. 12. I award K400.p>

A summasummary of awards made to Daniel Wail Waikali is K17,091.00 computed as follow>

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 respe both Defendants bnts 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 judgmethin thirty (30) days after personal service of this judgmeudgment or order on the First Defendant.

Lawyer for the Plaintiff: Thoke Lawyers

Lawyer for the Defendants: Solicitor General