Posada v Talanga [1990] KICA 7; Civil Appeal No 1 of 1989 (30 March 1990)

IN THE COURT OF APPEAL OF KIRIBATI

Civil Jurisdiction

Civil Appeal No 1 of 1989

BETWEEN:

RORMY POSADA
Appellant

AND

MIIKA TALANGA
Respondent

Mr. Teiwaki for Appellant
Mr. Tabanou for Respondent

Date of Hearing: 28th March 1990
Delivery of Judgment: 30th March 1990

JUDGMENT OF THE COURT
(Gibbs V.P., Frost and Mitchell J.J.A.)

In this appeal from a decision of the learned Chief Justice, the facts were that in December 1984 the appellant Rormy Posada agreed to repair the respondent's motor vehicle for the sum of $1200 or $1300 and was given $300.00 as advance payment. The list of parts to be replaced was estimated to cost a total of $1251.00. Later in December 1984 the respondent made another payment of $200 to the appellant. The appellant retained the car for about four years without repairing it. During that time many parts were removed from the car, including three new tyres, the starter meter, the wires to the spark plugs, the radiator hose, the fan belt and the carburettor. In addition, according to the evidence of the respondent, "my engine now was stuck while before my engine works." It should be mentioned that the repairs which the appellant was supposed to do were to the bodywork and not to the engine. The repairs were said to have been completed in 1988. However in September of that year a claim was brought before the Magistrates' Court by the respondent for $3,000.00 expressed to be as "compensation on a double cabin pick up". The appellant counterclaimed for the balance of the agreed cost of repairs. The Magistrates gave Judgment in favour of the respondent, but made no decision on the appellant's counterclaim.

There were five grounds of appeal to the High Court. The first ground that the magistrates erred in law and fact in failing to entertain the counterclaim, was upheld, but in the circumstance the learned Chief Justice held that no order should be made on the counterclaim.

The second ground as put by the appellant was that the magistrates did not consider the appellant's evidence in reply to the allegation that parts of the car were removed. That ground failed because the learned Chief Justice held that the appellant's evidence which was ignored was irrelevant and did not affect the magistrates' decision.

The third ground of appeal to the High Court was stated in the following terms:

"The magistrates erred in law in ordering the appellant to own the car against his will."

The learned Chief Justice said that if no order had been made that the appellant should retain the vehicle after paying the $3000 compensation to the respondent, the respondent would have been entitled to retain the vehicle, and that the order made was a proper order to make in the circumstances of the case.

The fourth ground was that the Magistrates erred in law in ordering the appellant to pay $3000.00, as compensation in the absence of proof of damage.

In support of this ground counsel for the appellant referred the learned Chief Justice to the reasons for judgment of Jones C.J., dated 27th April 1984 in a claim for damages arising out of the collision in which the motor vehicle, the subject of this claim, had suffered damage. In those reasons the learned judge referred to and adopted evidence as to the value of the vehicle set by a witness at $2500.

Counsel for the appellant submitted that the assessment of the magistrates could not be right in light of the decision of Jones C.J. The learned Chief Justice however said that there was no evidence of this matter before the magistrates, and no reason why that evidence was not given at the lower court. Counsel also referred to the fact that the respondent, in his evidence, valued the vehicle at $700. The conclusion reached by the learned Chief Justice on this ground was that he could not find any basis in law to set aside the magistrates' finding, "bearing in mind that the case was brought in a magistrates' court where the rules of pleading and proof based on that pleading are relaxed."

Ground five was that the magistrates erred in law and in fact in claiming that the vehicle was worn out without inspecting it. It was held that the magistrates were entitled in law to draw that inference from the facts before them. We were told in the course of argument that although the magistrates made no formal inspection of the vehicle, it was in fact visible to them from the court in which they were sitting, and that the magistrates would be aware of the value of vehicles in Kiribati.

Before this Court, the grounds of appeal are:

1. The learned Chief Justice erred in law and in fact in confirming an award in the sum of $3000.00 against the appellant; which was computed on a basis which is wrong in law.

2. The learned Chief Justice erred in law and in fact in confirming an award for the missing parts of the said car in the absence of evidence as to their value.

3. The learned Chief Justice misdirected himself as to the true nature of the respondent's claim and in that respect erred in law and in fact in making the award of $3000.00.

The appeal to this Court is limited by section 10(1) (b) of the Court of Appeal Act 1980 Cap 16B to one in which the ground of appeal involves a question of law only. We have no power to interfere with the decision of the court below in so far as it is based upon that court's findings of fact or the findings of fact of the magistrates.

A good deal of confusion appears to have arisen in this case from the statement that the magistrates "ordered the appellant to own the car against his will". The magistrates did not make, nor could they properly have made such an order. Their finding, when understood, is that the appellant had converted the motor vehicle to his own use and their order was that he should pay to the respondent as damages for conversion the sum of $3000.

To constitute conversion there must be a withholding of property "in such a way as that it may be said to be a conversion to a man's own use" (per Bramwell B in Barroughes v Bayne (1860) 5 M & N 296 at 309[1860] EngR 449; , 157 E.R. 1196 at 1201).

Denying the owner of goods his rights of ownership, including the right to possession for an indefinite period may amount to conversion. See Howard E. Perry & Co. Ltd. v British Railways Board (1980) 2 All E.R. 579 and particularly the cases cited at 582-583.

The appellant had not handed back the vehicle to the respondent when the proceedings were taken in the magistrates' court and the magistrates were entitled upon the evidence, to determine, as they did determine, that the appellant had converted the vehicle to his own use. They made no error of law in reaching that conclusion.

The measure of damages for conversion is ordinarily the value of the goods at the date of conversion (See Halsbury's Laws of England 4th edition volume 12 p. 455 para 1160).

We mentioned earlier in these reasons the evidence as to the value of the vehicle which was adopted by the appellant's counsel as one basis for his arguments. The only oral evidence before the magistrates as to the value of the vehicle was that of the appellant who estimated its value when he took possession of it at $700. Of course the magistrates were not bound to accept his estimate. The value of $3000 which the magistrates placed upon the vehicle appears very high but the estimate of damages is a question of fact not law and is not subject to appeal to the Court of Appeal. The award proceeds on the basis that the appellant has assumed dominion of the vehicle and may keep it, and will then have the benefit of the repairs for which he counterclaimed.

For the sake of completeness we point out that the magistrates' jurisdiction to award damages is limited to an amount less than $3000. They should therefore, have assessed damages at no higher than $2999.99. We regard this point as of no significance in the appeal.

In our view it has not been shown that any ground of appeal from the decision of the learned Chief Justice involved a question of law only. Accordingly, by section 10(1) (b) of the Court of Appeal Act 1980 no appeal lies in this case.

The appeal will be dismissed and the appellant ordered to pay the respondent's costs to be taxed.

Vice President
Judge of Appeal
Judge of Appeal