Gewa v Vele [2000] PGDC 30; DC225 (26 October 2000)

DC225

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2718 OF 2000

BETWEEN

Leana Gewa
Complainant

V

Mape Vele
Defendant

Mr Iova. S. Geita - Senior Magistrate
Date 2000: 2, 26th October 2000

Case Cited
N1359 - Enga Enterprises Pty Limited Vs. Danny Porakoli.

COUNSELS
Complainant in person
Lawrence Pukali for the Defendant

DECISION

GEITA - By a written agreement dated 15th January 1998 the Defendant agreed to release his Nissan Navara Utility Registration No: AGO-189 to the Complainant for K3,000.00. The first installment of K1,500.00 was to be made on or by 21st January in the same year followed by the final installment of K1,500.00 to be paid before 23rd January 1998. A copy of their agreement termed Sale Agreement was tendered into Court as evidence.

From the evidence before me it appears that only K2,000.00 was paid by the Complainant leaving only K1,000.00 remaining. Approximately 18 months later the Defendant took out a Court Summons to recover the K1,000.00 from the Complainant. Unfortunately the Complaint was struck out for want of prosecution.

According to the Complainant the Defendant used a self-help approach with assistance from some reserve police officers and impounded the vehicle in May 2000. The motor vehicle was later sold to a third person hence this complaint.

It is not disputed that the Defendant received K2,000.00 and the vehicle was given to the Complainant. It is not disputed that the Complainant breached the terms of the agreement and that he still owed K1,000.00 to the Defendant.

ISSUES:

The issue here is did the Complainant acquire good title in the subject motor vehicle. First I look at the question of title: Section 21 (1) of the Goods Act Chapter No. 251 provides that where the goods are sold by a person who is not the owner and does no sell them under the authority or with the consent of the owner the buyer acquires no better title to the goods than the seller had unless the owner of the goods is precluded by his conduct from denying the sellers authority to sell.

The Defendant deposed that he was still the rightful and legal owner of the motor vehicle and as such took full possession of the vehicle from the Complainant and sold it to recover his losses. The Complainant on the other hand is asserting that he is the legal owner. In support of his assertions he tendered into court registration papers and third party insurance documents to show that he has title to the motor vehicle. The Defendant produced none however, maintains that he has legal title over the same vehicle. I note that a memorandum of change of address was duly completed on the 15th January 1998 thus authorising the transfer of the registration to the Complainant.

The Complainant submitted that by virtue of the transfer and registration he holds legitimate title to the said motor vehicle. Whereas the Defendant does not have title but only has possession and no ownership rights. He submitted that ownership; possession, use and dealings relating to motor vehicle were governed by the Motor Traffic Act, Chapter. No. 243. In the absence of any contrary contention and evidence I am more inclined to agree with the Complainant's submission. In a hire purchase agreement or a lease agreement possession, and the right to use of the goods pass at once to the hirer, but the property or ownership remains with the owner.

However this agreement is neither of those and so the only applicable legislation in this factual situation are those governing motor vehicles.

It is generally understood that the fact of registration of the motor vehicle in the owner's name is not conclusive evidence of ownership. Although the registration document is not a document of title it is the best evidence of title. The Defendant did not give any rebuttal evidence on this point.

The Complainant has referred this Court to Section 432 (3) (b) Motor Traffic Act, Chapter No. 243. It provides as follows:

"In any proceedings under this Act, ... Proof that a person registered a motor vehicle is prima facie evidence that he is the owner of the vehicle"

As such the Complainant submits that the Defendant's actions of impounding the vehicle and converting it to a third party is unlawful under the circumstances. I am more inclined to agree with the Complainant’s submission.

As I mentioned earlier on, in the absence of any evidence to the contrary, the execution of the memorandum of change of address authorised the transfer of registration to the Complainant. It follows that he is the owner of the vehicle at that point in time. It is disturbing to note that despite the Complainant's name appearing on all registration and insurance documents the Defendant was able to convert ownership to a third party.

I have been referred to the case of Enga Enterprises Pty Ltd vs. Denny Porakali N1359 in which the Court held:- -

"... A trespass to chattels is actionable without proof of actual damages where goods have been destroyed or the Plaintiff is permanently deprived of them, the measure of damages and looses been restored but depreciated, the measure of damages is the cost of repairs, if any, and depreciation."

The Complainant submitted that since the said motor vehicle has been disposed off by the Defendant he has suffered damages and is entitled to same under the following heads as follows: -

1.	Deposit paid on 15th January 1998	K2,000.00
2.	Cost for the overhaul of the engine	K l,776.00
3.	Cost of registration of the vehicle	K 0,302.l7
4.	Cost of tubes and tyres (5 x 5)	K 0,495.l7
5.	Interest under the statute 8%	K0,235.58
	Total =	K4,809.89

Other expenses incurred by the Complainant included the purchase of new tyres, tubes and the overhaul of the engine totalling K1,776.85. All receipts where tendered into Court as evidence. The Complainant submits that these expenses be recovered.

Since the Complainant has been permanently deprived of the said motor vehicle I find that he is entitled to damages. I allow for depreciation and the length of time the complainant has enjoyed the use of the motor vehicle up to the time the vehicle was impounded from him. I estimate this amount to be K1,000.00 deductible from the above total.

I feel I should make a comment on the way and manner in which the Defendant went about impounding the said motor vehicle from the Complainant.

The use of police personal to assist citizens is in order if proper and legitimate Court Orders and or directions are obtained for such conduct. In the absence of such orders, wrong signals are sent to the general public. It is disturbing to note that the Defendant having failed to seek redress from the Courts has embarked on what I term as a 'self help' approach to get the motor vehicle back from the Complainant. Not only that but the Defendant engaged reservist police officers who are employed by his Company to impound the motor vehicle.

His actions must be condemned in the strongest possible terms and in the interest of public policy reasons the matter must be brought to the attention of all responsible authorities concerned to address immediately and swiftly.

The end result is that I make findings for the Complainant in the sum of K3,809.89 together with cost of these proceedings.

Orders accordingly.