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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
Civil Action No. 62 of 2012
BETWEEN:
AIYUB KHAN t/a A KHAN HIRE SERVICES
of Tabia,Labasa
Plaintiff
AND:
ATONIO LAVEKAU -504
of Labasa Police Station.
1st Defendant
AND:
LAND TRANSPORT AUTHORITY
a body corporate established under LAND Transport Act 1998.
2nd Defendant
Appearance: Mr. Amrit Sen for the Plaintiff
1st Defendant In Person
Mr. Adrian Ram for the 2nd Defendant
Date of Judgment: 8th April 2014
JUDGMENT
i. THAT the 2nd defendant has refused to transfer ownership of motor vehicle registration no. DHL 786 / DY 468 belonging to Damono Holdings Ltd to the plaintiff on the basis of objection/advise from the 1st defendant.
ii. ALL other material facts deposed in the affidavit of the plaintiff and filed with this summons.
7.1 On 18th August 2012 the Plaintiff entered into agreement with Dalomo Holdings Limited purchase a Motor Vehicle No. DHL 786/DY 468 in a sum of $250001 (Annexure 'A')
7.2 Subsequent to the said Agreement the Plaintiff made inquiry with the 2nd Defendant and was advised there was a charge in favour of the Fiji Islands Revenue and Customs Authority (FIRCA) for the sum of $6000.00.
7.3 On 22nd August the Plaintiff had paid $6000.00 to FIRCA and advised to remove the charge.
7.4 Upon clearing the charge Transfer form and other documents were presented to the 2nd Defendant and the 2nd Defendant advised the Plaintiff transfer will not be registered since 1st Defendant has advised to stop all dealings in respect of the motor vehicle Nos. DHL 786/DY 468.
7.5 On 3rd September 2012 the Solicitors for the Plaintiff requested to provide reasons for the refusal. (Annexure B)
7.6 The said Letter was replied by the 2nd Defendant on 10th September 2012 and informed that the Divisional Police Commander Northern had requested the 2nd Defendant to stop all further transactions on the said vehicle and the Plaintiff made response through his solicitor.
7.7 When inquired from Divisional Police Commander Plaintiff was informed the 1st Defendant never gave directions to take action and the 1st Defendant acted on his own accord.
7.8 The 2nd Defendant's officer had advised that she cannot act against the instructions of the 1st Defendant since the 1st Defendant would complain against her.
7.9 The Plaintiff also alleged that when he spoke to the 1st Defendant, he had stated that as a Police Officer he can stop any transaction pertaining to any vehicle.
7.10 The Plaintiff further stated that the 1st Defendant's decision is unlawful, illegal and without any right or power to stop any transaction pertaining to motor vehicles and it is contrary to the provisions of Land Transport Authority Act and Regulations.
7.11 Further the Plaintiff alleged that the refusal by the 2nd Defendant to perform its statutory functions was against Natural Justice.
7.12 Further the Plaintiff had stated 1st Defendant must be sanctioned by the court and he should be ordered to pay costs on Solicitor client bans.
8.0 The first Defendant did not file his Affidavit in Reply. The second Defendant filed its Affidavit dated 5th March 2013 sworn by Isoa Tawakevou and averred inter-alia.
8.1 2nd Defendant was hot aware of the Plaintiff's dealing with a third party. The vehicle No. DHL786 was registered to Dalmo Holdings (copy of the vehicle registration details annexed as Annexure 1).
8.2 The 2nd Defendant informed the Plaintiff there was a change by the Fiji Islands Customs and Revenue Authority. The charge by FIRCA was in relation to vehicle owning company Daloma Holdings and not the Plaintiff. The 2nd Defendant withhold the Transfer of the vehicle to the Plaintiff's company that dues were attached to the vehicle No. DHL786. For the registration purposes, the 2nd Defendant is obliged to submit additional documents.
8.3 It was further stated there were two directives to the Second Defendant to freeze the transfer of the vehicle No. DHL786 one by FIRCA and other directive was by the Police Department from the Divisional Police Commander in Labasa. FIRCA had imposed the freeze concerning unpaid charge or tax and the Police Commander had informed the 2nd Defendant there was a police investigation against the said vehicle and to stop any transaction.
8.4 When the dues were cleared by the Plaintiff to FIRCA, THE Plaintiff had to wait for the confirmation. During August 2012, a police paper with registration No. 218/12 was produced to the 2nd Defendant to withhold the transactions on vehicle No. DHL786 since it was under police investigation. Police Department's directive was lifted on 8th August 2012 (Vehicle Freeze extract detail in the 2nd Defendant's system was annexed as Annexure 2).
8.5 It was stated on or about 25th October 2012 the FIRCA advised the 2nd Defendant's office in Suva the charge or dues attached to the vehicle registration Nos. DHL786/DY468 was cleared. The Manager Legal at Suva office of the 2nd Defendant had instructed the Team Leader Labasa to uplift the freeze attached to the said vehicle. Same day it was uplifted. This was informed to the Plaintiff's officer when he visited 2nd Defendant's Labasa office (copy of the Notice on the uplifted freeze annexed as Annexure 3).
8.6 The 2nd Defendant further stated when there was a directive from FIRCA and Police Department freezing the Transfer the 2nd Defendant had to abide by such directive and it is in line with the Land Transport Act and Regulations and the prescribed conduct or code of practice of the 2nd Defendant.
8.7 The Defendant denied it didn't advise the transfer was suspended on more than one occasion. Between October and November 2012, the Plaintiff was advised the freeze was uplifted.
9. When the matter was taken up for hearing on 5th March 2013, Mr. Sen counsel for the Plaintiff made an application to call the Plaintiff as a witness which was objected by Mr. Ram counsel for the 2nd Defendant. The objection was overruled and the Plaintiff was allowed to give evidence under oath.
10. Abdul Khan in his evidence stated inter-alia.
10.1 Contents of the Affidavit sworn by the Plaintiff was confirmed.
10.2 In addition he stated that the vehicle the 2nd Defendant registered was on receipt of the summons.
10.3 The First Defendant who appeared in person did not cross examine the witness.
10.4 Mr. Ram cross examined the witness on behalf of the 2nd Defendant. In replying the Plaintiff stated:
(a) There was a charge to FIRCA and the Plaintiff paid it;
(b) FIRCA had not issued a no interest letter but the Plaintiff was informed charge was cleared;
(c) To the suggestions made by the 1st Defendant, FIRCA had advised the 2nd Defendant on 25th October 2012.The Plaintiff denied and stated that FIRCA advised in August 2012 by an email.
(d) The 2nd Defendant advised that the registration could be effected only after the Summons being served on the 2nd Defendant and the Plaintiff was unaware charges were lifted on 25th October 2012.
(e) The Plaintiff had not checked the prior to instituting of this action whether the charges were lifted and although when he inquired from FIRCA they advised Charges were lifted.
(f) The Plaintiff also stated that he was informed by the 2nd Defendant Police Department didn't remove the charge.
(g) LTA removed the charge only when the Summons was served on the Defendant. Before 29th of October 2012 the Plaintiff didn't check whether the charges were removed.
11. The first Defendant tendered letters dated 8th August 2012 marked as X and Bail Surety form dated 11/08/2012 marked as Y and the Registry was informed to issue copies to the Counsel. The 2nd Defendant's Counsel's Application to adjourn the case to call his witnesses and the said application was refused and directed the parties to file their submissions.
12. The Preliminary issue to be addressed by this Court is:
(a) As to whether the Plaintiff has a right to continue with his action pursuant to Order 5 Rule 4 (1) and (2) of the High Court Rules 1988.
(b) If the paragraph (a) is answered negative then this Court can proceed with this matter under Originating Summons.
Order 5 Rule 4 (1) and (2) of the High Court Rules 1988 states:
"Order 4 –(1) Except in the case of proceedings which by writ or originating summons or are required to be begun by writ or originating summons or are required or authorized to be begun by petition, proceedings may be begun either by writ or by originating summons as the Plaintiff consider appropriate.
(2) Proceedings –
(a) which the sole or principle question at issue is, or is likely to be, made one of the construction of an Act or of any instrument made unclear an Act, or of any deed, will, contract or other document or some other question of law, or
(b) on which there is unlikely to be any substantial dispute of fact.
Are appropriate to be begun by originating summons unless the Plaintiff intends in those proceedings to apply for judgment under Order 14 or Order 86 or for any other reason consider the proceedings more appropriate to be begun by writ."
I now consider how the above order is applicable in this case to decide on the preliminary issue.
13. The Plaintiff was permitted to give evidence in this matter and admitted that he was aware FRCA and Police had registered encumbrances. Further the Plaintiff stated he paid FRCA and FRCA emailed the Land Transport Authority and failed to substantiate the same by tendering the email. In contrast dated 5th March 2013 in paragraph 8 of the Affidavit filed by the Land Transport Authority sworn by Isoa Tawakevou Regional Manager stated the FRCA had advised its Manager Legal – Suva of LTA on 25th October 2012 the Freeze on the vehicle nos. DHL 786/ DY 468 being lifted which was informed to the Labasa Office and the freeze was released. The 2nd Defendant had filed annexure 3 computer records in this regard. The Plaintiff had disputed this position in his submission and stated that the Plaintiff failed to establish that when was the instruction given to uplift the seizure and when was it uplifted. Counsels' submissions and evidence led in this case the issue had to be decided considering the facts. The Plaintiff answering at the cross examination stated:
"Q: LTA say in clause 8 of the Affidavit 2nd Defendant FRICA advised on 25th October 2012?
A: No. It was advised in August 2012 I went and checked. They have sent an email.
Q: The 2nd Defendant stated LTA advised they can register?
A: Yes after summons served.
Q: On 25th charges are lifted?
A: I didn't check.
Q: Is it your duty to check before instituting action?
A: No, I don't think. I inquired lot of times but they didn't took it seriously. When I went to FIRCA I was told it was held by the 1st Defendant.
Q: Isn't it the Tax Department had to write to LTA?
A: They have written.
Q: LTA was relying on the communication of the Authority?
A: Yes."
14. Considering all the material and evidence given by plaintiff before me I conclude that the reliefs claimed by the Plaintiff for general damages will depend on the disputed facts by the Defendants. I further conclude that liability of the 1st and 2nd Defendants should be considered at a proper trial where action begun by a writ. As such the plaintiff is not entitled to initiate this action by originating summons procedure. Further it is observed the Plaintiff failed to establish the facts stated in his affidavit by tendering supportive evidence.
15. The second Defendant appeared before this court with regard to the encumbrances placed by the Police pertaining subject vehicle. The 1st Defendant produced bail surety form date 11/2/2012, letter dated 5th August 2012 sent to LTA by the Divisional Police Commander, Northern, which documents establish there was prima facie case where the 1st Defendant acted in his official capacity for stoppage of the Registration of the vehicle nos. DHL 786/ DY 468. The Plaintiff alleged in his affidavit that the 1st Defendant acted unlawfully, illegally and without any right. However in pursuant to the documents tendered by the 1st Defendant I conclude there is a serious question of fact to be decided by this court.
In case of Reserve Bank of Fiji v Trevor Robert Gallager and Alan Charles Newham Civil No. ABU 0030 of 2005 (unreported decided on 14th July 2006) Barker JA stated in paragraph (57):
"(57) Order 5 Rule 4(2) reflects the normal use of originating summons procedure; indicating that the procedure is appropriate for interpretation arguments or cases where there is unlikely to be any substantial dispute of fact ..."
It was further stated by Barker JA in paragraph (60):
"(60) Order 28 Rule 9 empowers the court, in effect, to convert an originating summons procedure into writ and for the proceedings thereafter to continue as of they had been commence by way of writ, subject to any direction of the Court..."
In the present case it is evident there is substantial dispute of fact as stated in the preceding paragraphs to be decided at a proper trial.
In this case there are various incidental factual matters raised by the Defendants and such matters should be decided at a proper trial. As such I conclude this matter to convert as a case to begun by writ of summons.
Accordingly, I make the following Orders:
(a) The plaintiff should take steps to continue with this case as if the matter has begun by writ;
(b) Cost of this matter is cost in the cause.
Delivered at Suva this 8th Day of April, 2014.
C. Kotigalage
JUDGE
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