Eastern Highlands Provincial Government v Ivarato [1998] PGLawRp 765; [1998] PNGLR 268 (19 November 1998)

[1998] PNGLR 268

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EASTERN HIGHLANDS PROVINCIAL GOVERNMENT

V

AITA IVARATO

GOROKA: KIRRIWOM J
18, 19 November 1998

Facts

By a notice of motion the defendant/applicant sought variation of a previous ex parte interim order granted by the court. The plaintiff/respondent had earlier obtained an ex parte interim order impounding a motor vehicle from the defendant/applicant and which motor vehicle was entrusted to the police for safe keeping pending final determination as to ownership. By the defendant/applicant’s application, he sought to vacate this order and have the said motor vehicle kept in his custody for safe keeping in view of the police’s failure to keep a proper care of the said motor vehicle.

Held

1. That interlocutory injunctions may be dissolved or varied by the court when appropriate. The court has jurisdiction over its own orders and is therefore entitled to dissolve its previous orders and entrust custody of the motor vehicle to the defendant/applicant for safe keeping pending final determination as to ownership. Mullens v Howell [1879] UKLawRpCh 212; (1897) 11 Ch D 763 and Sioti Baut & Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278 applied.
   
2. The defendant/applicant has the right to expect the plaintiff/respondent that at the time it sought and obtained the ex parte interim orders for the vehicle to be impounded by the police and kept at the police station, it was obligated to the court to assure the vehicle’s security. The plaintiff/respondent was required to satisfy itself of the soundness of the place as to the security it provided to the vehicle before entrusting it to its care and custody. This it failed materially which affects the interim orders it obtained ex parte earlier. Sioti Baut & Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278
   

Papua New Guinea case cited

Sioti Baut & Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278.

Other case cited

Mullens v Howell (1879) II Ch. D. 763.

Counsel

N Teninge, for the plaintiff/respondent.
K Wogaro, for the defendant/applicant.

19 November 1998

KIRRIWOM J. The defendant/applicant applies to this court by notice of motion seeking the following orders:

1. ‘The Interim Order obtained on 19 June 1998 impounding a motor vehicle, a Toyota Land cruiser VX Station Wagon registration EAC 313, entered on 7 July 1998 and further extended indefinitely until substantive issues is determined be stayed forthwith.
   
2. The costs are in the cause.
   
3. Any other further orders that may be deem just and fair under the circumstances with liberty to apply, and
   
4. Time of entry of this order is abridged to the date of settlement by the Assistant Registrar which shall take place forthwith.’
   

In moving this motion the applicant relied on the affidavit of Aita Ivarato, the applicant herein sworn on the 26 October 1998 and filed herein. The relevant paragraphs in that affidavit that directly relate to the subject of application are reproduced hereunder:

"2. The substantive issue pending in this proceedings is over the legal ownership of a motor vehicle Toyota Land cruiser VX station wagon, grey in colour and registered as EAC 313.

3. The said vehicle has been impounded by Police and is at the Goroka Police Station as from the 19th June 1998 when the Plaintiff obtained an interim order.
   
4. Without going into detailed argument as to the legal ownership of the said vehicle, the plaintiff is claiming that the vehicle is theirs because the Provincial Administration was not permitted to advance vehicle allowance per SRC determination. I am alleging this may be true, the Provincial Administrator at that time opted not to pay my vehicle allowance and instead bought this vehicle for me to use on 24 hours basis therefore the said vehicle is mine.
   
5. I was a politician at that time and it was not an area of my duties to be responsible for administrative matters.
   
6. The Provincial Administration used my vehicle allowance of K21,696.00 p.a. and bought this vehicle for me on a duty free basis and not on a normal commercial market value.
   
7. After having taken the said vehicle in my possession and believed that it was a personal vehicle I fitted the following extras at my own expenses:-
   

(a) 5 x new radial tyres with tubes on two occasions at the total cost of K2,130.00

(b) One only new battery K107.00.

(c) Two spot lights K150.00.

(d) Seat covers K200.00.

(e) Tinting K550.00.

(f) Sub beam K308.55

(g) Two way radio aerial K1,300.00.

(h) Back tyre holder K450.00

(i) Bumper Bar K1,200.00.

Annexed herewith and marked with letters "A1-6" are some of the invoices which I find that goes to show that I paid for such parts and services out of my own pocket.

8. Since the Police impounded the vehicle I am very concern and annoyed to note the following extras missing from the Police Station:-
   

(a) Two way radio set and aerial

(b) Tyre bolts or nuts

(c) Spot lights

(d) General condition of the vehicle is bad. There is no guarantee from the police that the vehicle will be in good shape until the substantial hearing in April next year (1999).

9. Therefore I request that the vehicle EAC 313 should be released to myself until the courts decision is handed down in April 1999.
   
10. I feared that the vehicle may not be in good condition for the next 8 months and I undertake that I will keep the vehicle in good and safe condition until the final court decision. I swear I will fully co-operate with the courts and other authorities."
    

Background

The defendant/applicant was a Member of Parliament and Governor of the Eastern Province until he lost at the polls in the last National Election in 1997. At the time he was the Governor, the Provincial Government expended money to the tune of K21,696 and bought a Toyota Land cruiser at a duty-free price for the use of the Governor. The money spent was the equivalent of the vehicle allowance that the Governor was entitled to under the SRC Determination. He said he was never paid his vehicle allowance as he opted for a vehicle instead. All these are matters for this court in the substantive hearing of this suit and I am not concerned with them now. After losing the election, hence the governorship, he continued to retain the vehicle as his entitlement owed to him in his immediate past office. The plaintiff herein however says otherwise and on 10 June 1998 filed Originating Summons seeking declarations that the vehicle concerned belonged to the Provincial Government and not the defendant. And on 19 June 1998 in an ex parte application obtained a court order directing the police to impound the said vehicle and to keep the same in their lawful custody at Goroka Police Station.

Much to the applicant’s surprise the vehicle was impounded by Police and taken into their custody at Goroka Police Station. It has been there since while the parties now await the hearing dates in April 19, 20 and 21, 1999. The defendant was not legally represented until 22 July 1998 when Narakobi Lawyers were instructed and who entered and appeared on his behalf.

On 26 October 1998 the applicant filed this applications, which after several adjournments was finally argued before me on 18 November 1998, and I have to now rule on it.

I am not herein concerned with the issue of ownership. That is for the substantive hearing to resolve. The applicant prays to this court to cancel or revoke the interim orders of 19 June 1998 that empowered the police to impound the vehicle, a Toyota Land cruiser VX station wagon registration No. EAC 313 and for it to be detained at the Goroka Police Station until the hearing on the ownership. He had placed evidence before the Court, which has not been challenged by the plaintiff, that the Police Station at Goroka is unsafe and insecure in that a number of parts and accessories of the vehicle have gone missing whilst the vehicle is sitting in police custody. And the applicant expressed fears that by April 1999 when they go to trial on the substantive issue, the vehicle would no longer be the same as when it was last seized from him. If these concerns raised by the applicant are true the court is equally concerned because this subject matter is the property, subject to a pending suit before this court, which the interim orders made on 19 June 1998 was meant to protect. It is of graver concern that the plaintiff showed absolutely no initiative nor interest to check out the allegations of pilfering of the parrots whilst the vehicle is in police custody as raised by the defendant/applicant when it was its instigation that placed it there. After all, the onus was and is on the plaintiff to ensure that the vehicle is kept in safe custody and it was its opinion that the police station was the best safe place. Therefore, once a contrary view was expressed, it was incumbent upon the plaintiff to investigate on the truth or otherwise of that allegation. But it failed to do so. The allegations raised in para 8 of the applicant’s affidavit remain uncontradicted and I must accept them as true.

In paragraph 7 of his affidavit the applicant listed a number of extras that he fitted on the vehicle at his own expense since becoming possessed of the vehicle. Total values of these items are K6,395.55. This evidence again had not been refuted nor denied so I must accept them as true. Some of these accessories have also disappeared from the Police Station at Goroka since the vehicle was confiscated from the defendant and detained there.

Mr Teninge for the plaintiff submitted that his client’s only concern was the money applied by the plaintiff to purchase the vehicle.

With greatest respect, that is not a very helpful and responsible attitude. It is like saying, we don’t care about the vehicle and what happens to it, all we worry about is K21,696.00 that the Provincial Government expended on the purchase of the vehicle. That is quite a careless stance to maintain especially after creating a situation that has proven to be more disastrous than the way things were before the interim orders were issued.

Those interim orders are interlocutory injunctions. Usually interlocutory injunctions are sought for purposes of preserving the value, condition and quality of the subject matter in dispute. The plaintiff must as a matter of course, file an undertaking as to damages. No such undertaking was filed in this case when the interim orders were made. Now damages have been caused that need to be remedied. Plaintiff must therefore remedy the loss occasioned. And I see the reliefs sought by the defendant/applicant are wide enough for this court to make appropriate orders to rectify the situation.

The law is that interlocutory injunctions may be dissolved or varied at any time when appropriate. As was said by Sir George Jessell, MR in Mullens v Howell (1897) II Ch. D. 763 at p. 766:

‘the court has jurisdiction over its own orders, and there is a larger discretion as to orders made on interlocutory applications than as to those which are final judgements.’

The application herein is saying that the police station, the safest place in the town of Goroka for the vehicle to be kept under the order of the court pending final disposition of the case, is not safe. He is therefore offering that his own place will be a lot safer place for the vehicle to be kept. His concern over the disappearance of the parts of the vehicle whilst stationery at the police station stems from the fact that he has his own personal investments in that vehicle that he wishes protected and preserved. If the attitude expressed by plaintiff’s counsel is any indication of how government institutions, national or provincial, seriously take their responsibilities in safeguarding what is entrusted to their care of safe-keeping, is any measure to go by, it is pointless turning to such institutions to preserve status quo in cases like this one. It is not just the question of damages being adequate remedy for the losses now occasioned to the vehicle. There is also the serious question of restoring the vehicle to its original shape because with the current rates of inflation, prices have doubled and there may even be difficulties in obtaining replacement parts within the country for those that have gone missing. Thus the applicant’s concern is genuine. And the plaintiff has not even shown the court how best and how effectively it can arrest the situation that has arisen, let alone refute or contradict his claims.

As expressed to the plaintiff’s counsel, the court is equally concerned about the allegations raised because in reality the subject matter of the dispute strictly speaking has become the property of this court pending determination for the ultimate issue of ownership. If the court had its own secured premises, in all propriety, that is where it should be kept. Unfortunately, space and secured premises for the court here and elsewhere is probably a luxury that will take a long time to be appreciated. May be what has happened here is perhaps an eye-opener for the authorities to seriously take note of the inadequacies of the court establishments to cater for preservation of properties that are subject of court disputes not only in Goroka but also throughout the country.

Complaints by vehicle owners of motor vehicles detained at police stations being stripped bare down to mere body frame by vehicle owners is nothing new. Everybody reads about them in the newspapers all the time when enraged owners discover what had happened to their vehicles when they go to repossess or recover them from police stations. However, when a vehicle is entrusted to police custody by order of the court on request of a party and is not given the protection and safekeeping that must be accorded to it, there is something seriously wrong with the institution concerned. It is a serious concern. The interim orders for the police to impound the vehicle and to have the same detained at the police station in Goroka whilst the ownership issue was being decided was to preserve the status quo. So that when the substantive issue is resolved, whoever is the owner decided by the court takes possession of the same vehicle that was sought after the time of the institution of the proceedings, and not a wreck or a run-down machine hardly worth fighting over.

This case is comparable with that of Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278 where an interim injunction was granted, ex parte, restraining a company, its servants or agents, from entering, clearing and planting a piece of land. In the statement of claim in support of the injunction the plaintiff claimed no interest in the land which was, in fact, registered in the name of a third party. The defendant’s interest in the land as purchaser under a contract of sale was not revealed to the court on the ex parte application. The court held that a party seeking to obtain an interim injunction, ex parte, is under an obligation to demonstrate utmost good faith and to bring to the attention of the court all facts material to the applicant’s right to the injunction as well as any material, which could be put in favour of the defendant. He had a duty to make full and proper disclosure. Failure to do so may justify interim injunction obtained ex parte being dissolved.

Now by analogy, the applicant in this case, has the right to expect from the plaintiff that at the time it sought and obtained ex parte orders for the vehicle to be impounded by the police and for it to be detained at the police station, he was obligated to the court to assure the security of the vehicle. It was incumbent upon the plaintiff to satisfy itself of the soundness of the place as to the security it provided before instructing the vehicle to its care and custody. It is a material failure on its part, which therefore must affect the interim orders then obtained ex parte on 19 June 1998, which were extended indefinitely pending the substantiative hearing.

In this case, as mentioned earlier, I have not been helped by the plaintiff in either refuting or verifying the concerns raised by the applicant, although there was adequate time for its various officers to have carried out the inspection to assist the court with. Plaintiff’s failure in this regard is miserable, deplorable and displays a total lack of care and indifference. The vehicle concerned was purchased from public funds and any responsible government must show and demonstrate concern when complaint such as this one is raised. It is not just a matter for the defendant/applicant alone. It therefore places this court in no other position without further options but to dissolve the interim orders of June 19, 1998 as extended to date. The further orders I make, as justice of the case requires, therefore are as follows:

1. That the plaintiff shall immediately engage a mechanic or a plant and transport inspector in consultation and in close cooperation with the defendant/applicant and a full inspection of the said vehicle Toyota Land cruiser VX S/W EAC 313 presently detained at Goroka Police Station is carried out forthwith in the presence of the defendant/applicant and his lawyer and supervised by the plaintiff’s lawyer within 14 days from the date of this order.
   
2. That a full inventory shall be taken of any parts, spares or accessories of the said vehicle that have gone missing, including to those mentioned in paragraph 8 of the applicant’s affidavit sworn on the 25th October 1998 and each missing item is to be priced according to its approximate cost value or as per current retail price.
   
3. That the plaintiff pay into the court such amount of money equivalent to and not less than the total value of the items that have gone missing from the vehicle as assessed per the inventory above.
   
4. That following the completion of the inspection and inventory referred to in 1 and 2 above, the vehicle shall be removed to the custody of the defendant/applicant at his residence within Goroka town under the supervision of an authorised officer on behalf of the plaintiff and in full consultation with the lawyers representing both the plaintiff and the defendant/applicant.
   
5. That following completion of the removal and relocating of the vehicle from the Goroka Police Station to the defendant/applicant’s residence, the applicant shall file an Undertaking as to Damages with the court so long as the vehicle remains under his custody.
   
6. That the said vehicle whilst in the custody of the defendant shall not be moved, tampered with, driven out of the premises, defaced or damaged in any way by the defendant, his servants or agents or by any one for that matter until further orders from this court.
   
7. Orders 4, 5 and 6 are interim only pending a more permanent solution as to the safe-keeping of the vehicle as acceptable to both parties is identified and sanctioned by the Court.
   
8. These interim orders herein are returnable before this court for review on December 7, 1998.
   
9. Costs of this application are awarded to the defendant/applicant.
   
10. Time for entry of this Order is abridged to the time of settlement by the Assistant Registrar to take place forthwith.
    

By way of concluding remarks, let me reiterate that the above interim orders now supersede those made ex parte on 19 June 1998 and they are necessary for the preservation of property in this vehicle that the parties in this suit are contesting for. There is no need for this contest without this property. Under the miscellaneous powers of this court provided in Order 14 Rule 10 of the National Court Rules it has power to make these orders for the detention, custody and preservation of the property in this vehicle. The subject property concerns vested interests in it by the plaintiff and the defendant. At the instigation of the plaintiff, the property was detained at the Police Station for its preservation. But the defendant has satisfied me that the police cannot be trusted to look after the property. And if the court cannot provide that safe custody within its own precincts, who else can provide a better place and safe custody to the property than the defendant? It is in his interest to ensure that the property does not lose its value, which concern is of little or no significance to those under custody the vehicle is presently kept.

Lawyer for the plaintiff/respondent: Nosohuno Teninge.
Lawyer for the defendant/applicant: Narakobi Lawyers.