Lal v Pillai [2005] FJMC 14; Civil Case No 117 of 2004J (6 July 2005)

IN THE FIRST CLASS MAGISTRATES’ COURT
IN THE WESTERN DIVISION, LAUTOKA

CIVIL CASE NO: 117 OF 2004

BETWEEN:

ISHWAR LAL, father’s name Kissun Lal of Matei, Taveuni.
1ST PLAINTIFF

TINPATHI GOUNDER, father’s name Perisami Gounder, Lomolomo, Lautoka.
2ND PLAINTIFF

AND:

ANAND PILLAI, father’s name not known of Lautoka, Land Transport Authority Officer
1ST DEFENDANT

UDAY SINGH, father’s name not know of Lautoka, Land Transport Authority Officer
2ND DEFENDANT

LAND TRANSPORT AUTHORITY, a body duly incorporated under the Land Transport Act 1998.
3RD DEFENDANT

Counsel for the Plaintiffs: Mr F. Khan
Counsel for the Defendants: Mr K. Qoro

Date of Hearing: 14/06/05; 16/06/05
Date of Ruling: 06/07/05

JUDGMENT

The plaintiffs have filed a claim against the defendants for unlawful seizure of a Toyota Corolla motor vehicle registration number CY 375 (the car) at Vomo Street in Lautoka on 30/03/04 and for the harassment that the plaintiffs suffered as a result of the seizure. The defendants admit that the plaintiffs’ car was seized and subsequently released upon verification that the registration was valid. The defendants contends that the seizure was lawful and permissable under the Land Transport Act (LT Act)

BACKGROUND TO THE CASE

Plaintiffs’ Background

1. The 1st plaintiff lives in Taveuni and is the owner of the car registration number CY 375 and is a taxi proprietor and owns a small fleet of taxis.

2. The 1st plaintiff is the father of the 3rd plaintiff and he gave the possession of the motor car to her and she had possession and use of the same since February of 2004.

3. The 2nd plaintiff is the father-in-law of the 3rd plaintiff.

4. The 3rd plaintiff lives at Lomolomo, Lautoka with her husband and her in-laws.

Defendants’ Background

5. The Land Transport Authority (LTA) was set up under the LT Act 1998 which came into force in year 2000. It replaced the Department of Transport which was set up under the Traffic Act.

6. All offices of the LTA in Viti Levu and Vanua Levu are linked by computer network except the offices situated at Taveuni and Seaqaqa. The registration at Taveuni and Seaqaqa is still done manually and the arrangement is for these offices to feed the informations at Labasa office on a weekly basis which can then be accessed by all the LTA offices all over Fiji.

7. In this case the Taveuni office did not feed the information to the Labasa office. When the plaintiff carried out searches in December 2004 the records still have not been updated.

8. Anand Pillai and Uday Raj Singh are the employees of LTA and were employed by the LTA on 30/03/04.

9. On 30/03/04 Anand Pillai and Joji Sauturaga were employed by the LTA and were performing patrol duties and this was the first day at work as authorized officers without any supervision. Their appointment letter from LTA is dated 30/03/04. (see exhibit - D1 & D2)

10. That Anand Pillai, Uday Raj Singh and Joji Sauturaga being employees of LTA were acting in the cause of the employment.

11. The LTA office at Taveuni issued registration label commonly call "red sticker" which was previously issued under the Traffic Act and wrote on it in pen the date of renewal and date of the expiry of the registration.

12. All offices where computers have been installed, a green sticker is issued when the registration fees is paid.

EVIDENCE

The 1st plaintiff bought the car from one C. Prakash Kabas in 2003 and on the 18th of December, 2003 he obtained a certificate of road worthiness from Taveuni office of LTA and on 23rd of January he paid the transfer fees and had the vehicle transferred in his name. The certificate of road worthiness dated 18/12/03 shows the 1st plaintiff as the owner of the motor vehicle. (see exhibit P4). The 1st plaintiff was informed by the LTA officer’s at Taveuni that the transfer in his name had been effected.

On the 30th of March 04 the 2nd and 3rd plaintiff came to Lautoka Hospital with the 3rd plaintiff’s sickly mother who suffers from paralysis for medical treatment. They were accompanied by the 3rd plaintiff’s son. After the doctors attended to the 3rd plaintiff’s mother he drove to Lautoka City to purchase some medicine and left the 3rd plaintiff with his sickly mother at the hospital.

At Vomo Street, Lautoka the 1stdefendant and his senior enforcement officer Joji Sauturaga were carrying out inspections of motor vehicles. Joji Sauturaga stopped the car and checked the registration sticker and was unable to read the writing in ball pen and asked the 2nd plaintiff for the third party policy and the 2nd plaintiff told him that he did not have the same with him. He then called the 1st defendant who spoke to the 2nd plaintiff in Hindi. The 1st defendant noticed that the registration date on the sticker had faded and thereafter the 2nd plaintiff was told that this vehicle will have to be taken to the Lautoka LTA office for further investigation. This was around 10.00am.

The vehicle was driven by Joji Sauturaga to the LTA office and the plaintiff sat in the front passenger's seat. Having reached the LTA office Joji Sauturaga carried out a search of the registration of the car in the computer system and his search revealed that the registration had expired and he thereafter issued a Traffic Infringement Notice (TIN) to the 2nd plaintiff. He later drove the 2nd plaintiff in an LTA vehicle to Lautoka Hospital.

The 2nd and 3rd plaintiff came to Lautoka LTA office at around 1.00pm. The 3rd plaintiff said that she had possession of the certificate of road worthiness, transfer form and a copy of the third party policy and she approached two officers at the counter whose name she does not recall and showed these documents to them but was told that the motor vehicle was unregistered. The defendants dispute that the 3rd plaintiff had possession of these documents. The 2nd defendant’s evidence is that when he spoke to the 1st plaintiff he told her that the 3rd plaintiff had possession of these documents. I therefore accept that the 3rd plaintiff had possession of these documents.

The 3rd plaintiff requested the LTA officers for the use of a telephone to enable her to call the 1st plaintiff at Taveuni and her request was declined. She later had to purchase phone cards and call the 1st plaintiff and after that she went home and waited for him to call back. The 1st plaintiff subsequently called her and told her that he made inquiries with LTA Taveuni and that the registration was valid and gave her the sticker number. She again came back to the LTA office and gave the sticker numbers to the officers at the counter whose name she does not recall and they said that they did not want the sticker number and laughed at her.

She then requested to see the 2nd defendant and her request was declined. Then she telephoned the 1st plaintiff again and he subsequently spoke to the 2nd defendant and the motor vehicle was released at around 3.30 – 4.00 pm. The 2nd defendant apologized to the 3rd plaintiff for the error on the part of LTA. He said that the information was not up to date and took Traffic Infringement Notice from the 2nd plaintiff and cancelled the same. He promised to give a letter of apology to the 3rd plaintiff.

The 3rd plaintiff telephoned the 2nd defendant on the following day and asked for the letter of apology as promised and also complained to him that the wind screen of the car was damaged when the vehicle was seized whereupon the 2nd defendant hung up the phone on her.

The 3rd defendant has admitted that LTA made an error. The error being as I said previously was its failure to update its records. Despite the wide publicity that this case received in the news media (see exhibit –P11 Fiji Times article dated 01/04/04) and despite the issuance of the writ on 22/09/04 and the service of the same on the 3rd defendant on 28/09/04 the defendants have made no effort to update their records and as at 22/12/04 the record had not been updated. The transfer was effected in favour of the plaintiff on 23/01/04 and this delay of 11 months by any standard is inordinate, inexcusable and unacceptable.

The car was seized as the plaintiff had doubts and difficulties about its own document, that is, the registration sticker. I repeat that the writing on the registration sticker was done on 23/01/04 and within a matter of two months the writing had faded. The defendant could not lay any blame on the plaintiffs as the plaintiffs had done everything required of them. The defendants had no basis to seize the plaintiffs' car. After the 2nd plaintiff was issued with a TIN the plaintiffs had no means of proving to the defendants that they had complied with the requirements of LT Act. The 3rd plaintiff was made to run in circle and naturally felt very frustrated and agitated. The defendants in my view acted in a very high-handed manner. They had no regard for the welfare of the 2nd and 3rd plaintiffs.

The 1st defendant had known the 2nd plaintiff for period of 15 years and in fact they were related. Perhaps a sensible course in this matter would have been for 1st defendant to release the motor vehicle at Vomo Street and he could have carried out the investigations subsequently and laid any charges if it was necessary.

It is indeed very sad that the 3rd defendant who is the Regional Manager and also a person who served under the previous regime of Department of Transport and the new set up of the LT Act did not bother to check the registration sticker. I find his conduct to be extremely irresponsible and discourteous.

In my view the 2nd and 3rd plaintiff was simply being persecuted by the defendants. If it was not for the 3rd plaintiff’s efforts and the 1st plaintiff’s acquaintance with the officers at LTA Taveuni the 3rd plaintiff in my view would have been deprived the use of the motor vehicle for a considerable length of time.

The defendants' high-handed attitude continued even after the vehicle was released. Again they showed no regard for the 3rd defendant’s welfare. When the vehicle was released the defendants in my view should have at least given a letter to the 3rd plaintiff which should have stated that the registration for the car was valid. As soon as she drove out of the LTA office she could have been stopped by another LTA officer or a Police officer and she could have suffered the same treatment all over again. One does not expect an organization like the LTA to behave in this manner. This kind of conduct cannot be tolerated and or condoned.

The plaintiffs are entitled to compensation for all the sufferings and in my view this is an appropriate case where I should make an award for exemplary damages. Both counsels referred me to English cases which were of some assistance but I have been greatly assisted by the case of Krishna and Merchant Bank of Fiji Limited vs Automart Limited, Sanjay Shakil Ram and Commissioner of Stamp Duties. Civil Action No. HBC 0388 of 2004 unreported decision of Connors J where he said as follows at page 3 of the judgment.

"It appears not to be in dispute between the parties that the subject motor vehicle was seized by the defendant from the plaintiff and that the vehicle was retained by the defendant for a period of 14 days and that it was returned following orders being obtained from this court.

The period of deprivation with respect to both the 1st and 2nd plaintiff is therefore a period of 14 days. Paragraphs 20 and 21 of the statement of claim and the submissions on behalf of the plaintiffs that requests were made for the return of the vehicle and for the furnishing of a copy of the alleged Bill of Sale prior to action being taken in the court and that the defendants’ response to the plaintiffs requests was that they should seek their redress in the court which of course they did.

The plaintiffs also, in the statement of claim in paragraph 22, plead that the defendants actions were breach of the plaintiffs constitutional Rights. It is submitted that the reference to a breach of section 27 of The Constitution of the Fiji Islands.

I repeat that no evidence has been placed before the court with respect to any loss that has been sustained by either plaintiff as a result of the actions of the defendant.

Counsel for the plaintiffs has submitted a schedule of damages on behalf of the plaintiffs but no justification has been placed before the court with respect to the apparent arbitrary amounts that are contained in those schedules. No authorities have been placed before the court on behalf of the plaintiffs in support of those arbitrary figures.

There is therefore before the court no evidence that the plaintiffs or either of them in fact suffered a loss as a result of the actions of the defendant. It is of course obvious from the material before the court that the 1st plaintiff was deprived of the use of motor vehicle for a period of 14 days and that the 2nd plaintiff was deprived of its security for the advances it made for that same period.

The only head of damages that would appear to be available to the plaintiffs would be an award of exemplary damages. It would appear that the law in this country is as it is in New Zealand and Australia and that is unaffected by the decision of the House of Lords in Rookes v Barnard & Others [1964] UKHL 1; [1964] A.C. 1129. That position is perhaps well summarized by the High Court of Australia in Uren v John Fairfax & Sons Pty. Ltd [1966] HCA 40; 117 C.L.R. 118 at 129 where Taylor J said:

"Prior to Rookes v Barnard the law relating to exemplary damages both in England and in this country was that damages of that character might be awarded if it appeared that, in the commission of the wrong complained of, the conduct of the defendant had been high-handed, insolent, vindictive or malicious or had in some other way exhibited a contumelious disregard of the plaintiff’s rights."

The court went on to reject the principles in Rookes v Barnard and adopt the pre-existing law which supports the quotation.

It is clear from what has been placed before the court that the defendant could have made appropriate inquires and searches from public records and if it had done so, would have been made aware of the existence of the Bill of Sale, giving certain rights to the 2nd plaintiff and confirming the non existence of any registered Bill of Sale in favour of the defendant to support the seizure of the vehicle by it. This being so, it seems to me that the plaintiffs are entitled to an awarded of damages as exemplary damages.

The plaintiffs also seek costs on an indemnity basis. A schedule of costs has been placed before the court and its been submitted that schedule should have deducted from it the amount ordered by this court to be paid in its ruling of the 14th May, 2004.

Counsel for the defendant makes no submission contrary to the plaintiffs submission in this regard.

In all of the circumstances therefore I am of the opinion, the plaintiffs are entitled to an award of damages by way of exemplary damages in the sum of $1,000.00 each and that the defendant should pay the plaintiffs costs on an indemnity basis, which on the schedule presented to the court amounts to the sum of $5,827.50."

In the above case of Krishna, an award of $1,000.00 was made as exemplary damages where the motor vehicle was seized for 14 days but the facts and circumstances of this case are very different for the reasons given above and I award the plaintiffs a sum of $2,500.00 as exemplary damages.

COST OF TAXI FARE AND TELEPHONE CALLS

It is abundantly clear that the 3rd defendant had no basis to seize the car and I therefore make an award for the sum of $25.00 for taxi fares and $20.00 for telephone calls.

DAMAGES TO THE WINDSCREEN

The defendants did not deny that the windscreen was damaged. The 2^nd defendant did not refute the 3rd plaintiff’s claim that the windscreen was damaged. In their statement of defence the defendants say that if any damage was done to the windscreen then they cannot be held liable for that as the vehicle was lawfully seized. I accept the evidence of 3rd plaintiff and find that the windscreen was damaged by the defendants and I award her damages in the sum of $250.00.

So the total damages that I have ordered are as follows:

Exemplary damages	$2,500.00
Cost of taxi fares	$ 25.00
Cost of telephone calls	$ 20.00
Cost of damages to windscreen	$ 250.00
	$2,795.00

I order that the defendants shall pay the plaintiffs cost in this matter which I intend to summarily assess and before I do that I will be calling upon both counsels to make submissions.

[M S Khan]
Resident Magistrate