Eastern Highlands Provincial Government v Ivarato [1998] PGNC 114; N1828 (19 November 1998)

Unreported National Court Decisions

N1828

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 269 OF 1998
EASTERN HIGHLANDS PROVINCIAL GOVERNMENT
PLAINTIFF/RESPONDENT
AND
AITA IVARATO
DEFENDANT/RESPONDENT

Goroka

Kirriwom J
18-19 November 1998

Cases Cited

Mullens v Howell (1879) II Ch. D. 763 at p. 766

Sioti Baut & Lavoi Nodai v Poliamba Pty Ltd (1990) PNGLR 278

Counsel

N. Teninge, for the Plaintiff/Respondent

K. Wogaro, for the Defendant/Applicant

INTERLOCUTORY JUDGEMENT

19 November 1998

KIRRIWOM J: The Defendant/Applicant asplies to this court by Notice of Motion seeking the following orders:

1. ҈& &60;16;8216;The Inhe Interim Order obtained on 19 June 1998 impounding a motor vehicle, a Toyota Landcruiser VX Station Waegistn EAC entered on 7 July 1998 and further extended indefinitely until substanbstantive tive issueissues is determined be stayed forthwith.

2. ـ Tse coe s be in the cause.ause.

3. Any othrr fu oherrs deat mhat may be deem just and fair under the circumstances with liberty to apply, and

4. & T60; Timentry is ors abr to tte oflement bynt by the the AssisAssistant tant RegisRegistrar trar which shall take place forthwith.’

In moving this motionapplireliethe Affidaf Aita Ivarato, the applicanticant here herein swin sworn oorn on the 26 October 1998 and filed herein. The relevant paragraphshat that Affidavit that directly relate to the subject of application are reproduced hereunder:

“2. ټ&#The sntstantive isve issue pending in this proceedings is over the legal ownership of p of a motor vehicle Toyota Landcruiser VXion w grey in colour and registered as EAC 313.

3. ټ �
The said&#aid ve has been impounded by P by Police and is at the Goroka Police Station as from the 19th June, 1998 when an interim order was obtained by the Plaf.

5. &##160;; I was a politicianician at that time and it was not an area of my duties to be resporesponsible for administrative matters.

7. ـ A6ter having taken aken the said vehicle in my possession and believed that it was a personal vehicle I fitted the following extras at my own expenses:

<ـ҈& 5 x new radial tyres with tuth tubes obes on twon two occa occasions at the total cost of K2,130.00

(b) ټ Ole onw new batterattery K107.00.

(c) spoo ligh s K150.00.

(d) &ـ s K20

>

(e) ټ&#Tintingnting K550.K550.00.0.00.

(f

(f) ـ&#1ub b30b b308.5 (60; ټ Tw radio aeri aerial K1,300.00.

(h

(h) ;ټ Back Back Back tyrk tyre tyre holder K450.00

(i) 𧝼&#Bumper Bar KBar KBar K1,200.00.

Annexed herewith andh and marked with letters “A1-6̶” are some of the invoices which I find goes ow that I paid faid for such parts and services out ofut of my own pocket.

8. ـ҈ S60; Since tnce tlice impounded the vehicle I am very concern and annoyed to note the following extras missimissing from tlice Station:

a)&p>a)҈ Two way radio set and aeri aerial

(b) ـ&#1yre bore bolts orts or nuts

(c)& Spot s>d) ##160;  Gen; General cinditf the vthe vehicle is bad. Therno guaranrom tlice thee the vehicle wilin goape uthe substantial hearing in April next yeat year (19r (1999).<99).

9.&p>9. #160; &##10;& Therefore I requhatquhat the vehicle EAC 313 sho3 should be released to myself until the courts decision is handed down in April, 1999.

10. &&#160eared the le ma be inbe in good conditindition foon for ther the next next 8 months and I undertake that I will keep the vehicle in good and sandition until the final court decision. I swear I will fully coateerate with the cour courts and other authorities.”

BACKGROUND

The Defendant/Applicant was a member of Parliament and Governor of the Eastern Province until he losthe Polls in the last NatioNational Election in 1997. At the ti was the Governorernor, the Provincial Government expended money to the tune of K21,696 and bought a Toyota Landcruiser at a duty-free price for the use of thernor. The money ney was the eluivalent of the the vehicle allowance that the Governor was entitled to under the SRC Determination. He said he wasr pai vehille allowance as he opted for a vehicle inst instead. Alle areeratteratters for for this court in the substantive hg of this suit and I am not concerned with them now. After losing tee eln,tion,tion, hence the governorship, he continuedetainvehicle as his enis entitletitlement owed to him in his immediate past office. The plaintiff herein however says otherwise and June filed Originatinnating Sumg Summons seeking declarations that the vehicle concerned belonged to the Provincial Government and not thendant. And on 19 June 1998 in >exexparte appl>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 hen there since while tile the parties now await the hearing dates in April 19, 20 and 21, 1999.

The defendant was not legally represented until 22 July 1hen Narakobi Lawyers were instructed and who entered and apnd 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 aant pto thto this cous court to cancel or revoke the Interim Orders of 19 June 1998 that empowered the police to impound the veh a ToLandcruiser VX Station Wagon Registration No. EAC 313 and for it to be detained aned at thet the Goroka Police Station until the hearing on the ownership. He haced evidence before tore 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 expd fead 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. Ife concerns raised by tply tplicant are true the court ourt is equally concerned because this subject matter is the property, subject to a pending suit before thurt, which the interim orders made on 19 June 1998 was mean meant to protect. It is of graver cn that that the plaintiff showed absolutely no initiative nor ist to check out the athe allegations of pilfering of the parrots whilst the vehicle is in p custody as raised by the defendant/applicant when it was iwas 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 place. Therefore, once a contraew view was expressed, it was incumbent upon the plainplaintiff to investigate on the truth or otherwise of that allegation. But it failed to do so. The allega raised in para para 8 of the applicant’s affidavit remain uncontradicted and I must accept them as true.

In para 7 of his affidavit the applicant listed a number of extras that hted on the vehicle at his ohis own expense since becoming possessed of the vehicle. Total valuehese items are are K6,395.55. evidence again had not beet been refuted nor denied so I must accept them as true. Some of thesessories have have alsappearom the Police Station at Goroka since the vehiclehicle was confiscated from the defendant dant and detained there.

Mr Teninge0;for the plaintiff submitted that his client’s only only concern was the money applied by the plaintiff to purchase the vehicle.

With greatest rt, ect, that is not a very helpful and responsible attitude. Itike saying, we don’#8217;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 ite a careless stas stas 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 interory injunctionctions are sought for purposes of preserving the value, condition and quality of the subject matter in dispute. Aertaking as to damages mues must, as a matter of course, be filed by the plaintiff. No such unding was filed iled 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 fs sought byht byht by the defendant/applicant is wide enour this court to make appropriate orders to rectify the situ situation.

The law is that interlocutory injunctions may be dissolr varied at any time when ahen appropriate. As was said by Sir e JesseJessell, 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 oerlocutory applications thas 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 diarapearance of the parts of the vehicle whilst stationery at the police station stems from act that he has his own pern 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 respilities in safeguarding what is entrusted to their care of safe-keeping, is any measure to e 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 thious questquestion of restoring the vehicle to its originale because with the current rates of inflation, pricesrices have doubnd thnd there may even be difficulties in obtaining replaceparts within the country fory for those that have gone missing. Thusapplicant’s conc concern is genuine. And the plff has not shownshown the cthe court how best and how effectively it can arrest the situation that has arisen, let alone refute or coict haims.

As e>As expressed to the plaintiff’s counsel, the court is equally conceconcerned 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 ecureecured premises, in all propriety, that is where it should be kept. Unfortunately, space acureecured premises for the court here and elsewhere is probably a luxury that will take a time to be appreciated.&#16. May be #160; has happened ened 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 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 aboum in t in the newspapers all the time when engaged owners discover what had happened to their vehicles when they go to repossess or recover them from police sta. However, when a vehicle is entrusted to police cust custody by order of the court on request of a party and is not given the protection and safe-keeping that must be accorded to it, there is something seriously wrong with the institution concerned. It serious concern. 160; The interders for ther the police to impound the vehicle and to have the same detained at the policeion in Goroka whilst the ownership issue was being decided was to preserve the status quo.&quo. So then the substantive isve issue is resolved, whoever is the owner decided by the court takes possession of the same vehicle that was sought after the time of theitution of the proceedings, and not a wreck or a run-down mown 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, exparte, restraining a company, its servants or agents, from entering, clearing and planting a piece of land. In the statement ofm in suin 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 rest in the land as purchaser under a contrcontract of sale was not revealed to the court on the exparte application. The court held that a pseey seeking to obtain an interim injunction, exparte, is under an obligation to demonstrate utmost good faith and to bring to the attention of the court all facts material to the appli#8217;s right to the injuncnjunction as well as any material which could be put in favour of the defendant. He had a duty to mall and and proper disclosure. re to do so may justify infy interim injunction obtained exparte being dissolved.exparte wherein 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 materailurits part part which therefore must affect the interim erim orders then obtained exparte on 19 June 1998 which were extenddefinitely pending the substantiative hearing.

In this case, as mentioned earlier, Ier, 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 le concerned was purchpurchased from public funds and any rsible government must show and demonstrate concern when comn complaint such as this one is raised. Inot just a matter for efer efendant/applicant alone.&#ne. If thre places this court ourt in no other position without further options but to dissolve the im orders of June 19, 1998 as extended to date. The fThe further ord make,make, as justice of the case requires, therefore are as follows:

1. ҈& T60; that the plai plaintiff shall immediately engage a mechanic or a plant and transinspector in consultation aion and in close cooperation with the defendant/applicant and a full inspection of the said vehicle Toyota Landcruiser 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. ټ&##160; T60; That a at a full inventory shall be taken of any parts, spares or accessories of the said vehicle that have goneing, ding to those mentioned in paragraph 8 of the applicant’s affidavit sworn oorn on then 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 tiff pay into the court such amount of money equivalent to and not less than the total value of the itemt have misfrom ehicle as assessed per the inventory above.

4. < &#160 &#160 &#160 That followhe ctmpletion oion of the inspection and inventory referred to in 1 and 2 above, the vehicle shall be removed to the custody of the defendanlicanhis rnce within Goroka town under the supervision of an autn authorishorised ofed officer on behalf of the plaintiff and in full consultation with the lawyers representing both the plaintiff and the defendant/applicant.

5. &##160;; T60t foat followinlowing completion of the removal and relocatinghe vthe vehicle from the Goroka Police Station to the defendant/applicant&#8&#160idence applicant shall file an Undertaking aing as to s to DamagDamages with the court so long as the vehicle remains under his custody.

6. That thd saiicvehwhie t inst 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. ـ O60; 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. &##160;;&#16ese interim erim erim orderorders herein are returnable before this court for review on December 7, 1998.

9. ;160;;ټ &osts; 160this applicationation is ed to#160; d60; def; defendefendanendant/applicant.

10. 0; fo trder is a is abridgeridged to the time time of settlement by the Assistant Registegistrar trar to tako take place forthwith.

By way of concluding ks, l reiterate that the above interim orders now supe supersedersede those made exparte 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. the miscellaneous powers wers of this court provided in Order 14 Rule 10 of the NatiCourt Rulehait has power to make these orders for the detention, custody and preservation oion of the property in this vehicle. The ct pry concerns vestedested interests in itself by the plaintiff and the defendant. A60; At the inston of the the plaintiff, toperty was detained at the Police Station for its preservation. But efendant hast has sati satisfied me that the police cannot usted to look after the property. Anthe court cart cannot prot provide that safe custody within its own precincts, who else canide a better place and safe safe custody to the property than the defendant? It is in his interest turensure 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.

L for the Plaintiff/Respondent: Nosohuno Teninge

Lawy>Lawyer for the Defendant/Applicant: Narakobi Lawyers