Baiyer Local Level Government v Wimb [2009] PGNC 85; N3717 (12 August 2009)

N3717

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

W.S. NO. 453 OF 1999

BETWEEN

BAIYER LOCAL LEVEL GOVERNMENT
Plaintiff

AND:

GORDON NIKINTS WIMB
Defendant

Mt Hagen: David, J
2009: 6 & 12 August 2009

DETINUE – Plaintiff’s motor vehicle in possession of former District Administrator – motor vehicle not returned after leaving office - demand to return motor vehicle not heeded – election by Plaintiff to order return of motor vehicle – ordered accordingly.

Cases cited:

None

Treatises cited:

Halsbury’s Laws of England, 4th Edition, Vol.12
Halsbury’s Laws of England, 4th Edition, Vol.45

Counsel:

P.M. Dowa, for the Plaintiff

JUDGMENT

12 August, 2009

1. DAVID, J: INTRODUCTION: This matter was set down for trial on Thursday, 6 August 2009 at 09:30 am. The Defendant did not appear at the trial. Having been satisfied that there was evidence from the Affidavit of Service of Julie Kak sworn on 6 August 2009 that the Defendant had due notice of the trial, the Plaintiff was granted leave to proceed ex parte.

2. On 6 May 1999, the Plaintiff filed its writ of summons endorsed with its statement of claim. The Plaintiff’s action here is primarily based on the common law tort of detinue, but the pleadings also raise matters relative to an action in conversion.
   
3. The Plaintiff claims that it has suffered loss and damage, particulars of which are set out below, as a result of being wrongfully deprived by the Defendant of the use of its motor vehicle namely, a Nissan Navara, Double cab, white in colour and bearing registration number HAB 770 (the motor vehicle). The Plaintiff seeks, amongst others, orders for the return of the motor vehicle or its value at the current market price.
   

BACKGROUND

Statement of Claim

4. The Plaintiff, Baiyer Local-level Government claims that it is a Local-level Government which is established in the Western Highlands Province and the Defendant was its former District Administrator.

5. The Plaintiff also claims that at all material times it was the owner of and was in possession or entitled to the immediate possession of the motor vehicle.

6. The Plaintiff further claims that the Defendant by his actions has converted the motor vehicle to his own use and benefit since August 1996 and despite being requested by the current District Administrator, Mr. Ogla Makindi on numerous occasions by letter and orally to return the motor vehicle, he has either refused or ignored the requests and continues to use and have in his possession the motor vehicle wrongfully.

Particulars of loss and damage

7. The loss and damage suffered by the Plaintiff are particularised in the statement of claim as follows:-

• Loss of use and benefit of the motor vehicle.
  
• The smooth running of the Plaintiff’s operations have been inconvenienced and delayed.
  
• The District Administrator and his staff have experienced a lot of anxiety and pain.
  
• The motor vehicle has been lost altogether and cannot be regained.
  

Orders sought

8. The Plaintiff claims:-

• the return of the motor vehicle; or
  
• the current market price of the motor vehicle;
  
• costs of these proceedings;
  
• interest at 8%.
  

Defence and Reply

9. The Defendant filed his statement of defence on 11 April 2000. He admitted, inter alia, that he was the former District Administrator for Mul-Baiyer and Lumusa and also Advisor to the Plaintiff and that the motor vehicle was owned by the Plaintiff. He however denied that:-

• he was in possession of it;
  
• he had converted it to his own use and benefit either directly or indirectly;
  
• he had received any request either formally or otherwise from the current Administrator, Mr. Ogla Makindi to return it to the Plaintiff which he refused or ignored;
  
• he had deprived the Plaintiff of its use;
  
• he had done anything to cause the Plaintiff to suffer loss and damage;
  
• the Plaintiff had suffered any loss and damage.
  

10. The Plaintiff filed its reply on 4 May 2000. It adopted the admissions of the Defendant and joined issue with the denials.

EVIDENCE

11. The Plaintiff relies on the evidence contained in the Affidavit of Ogla Makindi sworn on 7 August 2008 and filed on 15 September 2008. Paragraphs 2 to 8 of the Affidavit are in similar terms as paragraphs 2 to 7 of the statement of claim which I have paraphrased already.

12. Additional evidence contained in the Affidavit is that:-
    
    • at the time of swearing of the Affidavit, Ogla Makindi was the District Administrator of the Plaintiff Local-level Government;
      
    • letters were issued to the Zone Commander, Police Station, Kagamuga, Western Highlands Province seeking his assistance to locate, confiscate and return the motor vehicle to the Plaintiff, one under the letterhead of the Baiyer River Local Government Council by Kiaka Minaka, President dated 24 December 1997 (annexure "A") and the other by a Joseph Neng, Provincial Local Government Officer dated 22 January 1998 (annexure "B").
      

13. The Plaintiff also filed the Supplementary Affidavit of Ogla Makindi sworn on 4 August 2009 and filed on 5 August 2009, but did not rely on it. I will state the reason why shortly below.

THE PLAINTIFF’S SUBMISSIONS

14. Mr. Dowa of counsel for the Plaintiff submitted that the Plaintiff would not rely on the Supplementary Affidavit of Ogla Makindi because the only order the Plaintiff was seeking now which was supported by evidence was the return of the motor vehicle. The Supplementary Affidavit of Ogla Makindi contains, inter alia, evidence of Ogla Makindi’s estimation of the value of the motor vehicle at the time of the alleged conversion by the Defendant.

ISSUE

15. The only triable issue to be determined is whether the Plaintiff has proven on the balance of probabilities that the Defendant has been in wrongful possession of the motor vehicle since August 1996 which he has not returned when demanded.

THE RELEVANT LAW

16. The law is succinctly stated in Halsbury’s Laws of England, 4th Edition, Vol.12 at paragraph 1161 that ‘[i]n actions of detinue, the judgment is usually for the return of the chattel detained or its value, together with damages for its detention...’
    
17. The statement in Halsbury’s Laws of England, 4th Edition, Vol. 45 at paragraph 1430 is also instructive. It reads:-
    

"Wrongful detention was the essence of the cause of action in detinue; in order to establish a wrongful detention, it was usual to prove that the person entitled to the goods had made a demand for their return and that the person in possession or control had refused or failed after a reasonable time to comply with that demand. It seems that conversion will lie in every case in which detinue was the remedy.... It follows that cases governing liability in detinue for a wrongful withholding are now equally indicative of liability in conversion."

ANALYSIS OF THE LAW, ISSUE AND EVIDENCE

18. It is not disputed that the Defendant was the former District Administrator of the Plaintiff Local-level Government. It is also not disputed that the motor vehicle belongs to the Plaintiff.

19. I find that there is sufficient evidence pointing to the Defendant being in possession of the motor vehicle when he was the District Administrator of the Plaintiff Local-level Government and that it was not returned to the Plaintiff after leaving that office since August 1996 despite numerous requests for its return by letter or orally from or on behalf of the Plaintiff. I also find in this regard that there is evidence to show that the assistance of the police was sought to locate the motor vehicle, confiscate it from the Defendant and return it to the Plaintiff which appears to have been unsuccessful translating into the filing of these proceedings.

20. The Plaintiff’s evidence is unchallenged. I am satisfied that the Plaintiff has proven on the balance of probabilities that the Defendant has been in wrongful possession of the motor vehicle since August 1996 and has not returned it to the Plaintiff when demanded. This warrants an order of this Court for its return to the Plaintiff forthwith.

ORDER

21. The formal orders of the Court are that:-

1. the Defendant return to the Plaintiff the motor vehicle namely, Nissan Navara, Double cab, white in colour and bearing registration number HAB 770 forthwith;
   
2. the Defendant shall pay the Plaintiff’s costs of these proceedings.
   

_____________________________________
Paulus M Dowa: Lawyers for the Plaintiff