N5820
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NO 355 OF 2014

RICKY LAMANG
Plaintiff

V

KAY ATU
Defendant

Madang: Cannings J
2014: 15 September, 17, 21 November

PROPERTY – chattels – motor vehicle – ownership and possession – defendant took possession of plaintiff's motor vehicle after it was damaged in an accident – whether the court should order that the vehicle be returned to the plaintiff

The plaintiff's bus was involved in a collision near the defendant's home, and the defendant took possession of it. The plaintiff claimed that the defendant refused to return the bus and had repaired it and was using it for profit-making purposes as a public motor vehicle (PMV). The plaintiff commenced proceedings by originating summons seeking a declaration that he was the owner of the bus and an order that it be returned to him.
 
Held:

(1)	A presumption of the law of property is that the owner of personal property is entitled to its possession.

(2)	There is also a presumption that the person in possession of property is its owner unless someone else proves a superior title.

(3)	The plaintiff was and remains the owner of the bus, even though the defendant took possession of it, as there was no agreement for transfer of ownership to the defendant. Though the defendant spent his own money repairing the bus and paid some money to the plaintiff and though the defendant might have a cause of action in unjust enrichment and has commenced separate proceedings to prosecute such a cause of action, none of those facts defeated the presumption that the plaintiff, being the owner of the bus, is entitled to possess it.

(4)	The Court accordingly exercised its discretion to declare that the plaintiff is the owner of the bus and is entitled to possess it, and to order the defendant to give up possession to the plaintiff at a time and place determined by the Court.

Cases cited

The following cases are cited in the judgment:

Bloxam v Sanders (1825) 4 B & C 941
Burroughes v Bayne (1860) 5 H & N 296
Fouldes v Willoughby (1841) 8 M & W 540
Glenwood Lumber Co Ltd v Phillips [1904] AC 405
Rogers v Spence (1844) 13 M & W 571

ORIGINATING SUMMONS

These were proceedings in which the plaintiff sought declarations and orders as to ownership and possession of personal property.

Counsel

D F Wa'au, for the plaintiff
D A Umba, for the defendant

21st November, 2014 

1. CANNINGS J: The plaintiff, Ricky Lamang, seeks a declaration that he is the owner of a Toyota Coaster 25-seater bus and an order that the person who has possession of it, the defendant, Kay Atu, must return it to him. The defendant does not dispute that the plaintiff is the owner of the bus and does not dispute that he, the defendant, has possession of it. He says, however, that the Court should not order him to return the bus as the plaintiff owes him money for protecting it from being vandalised and for repairing it.

2. The plaintiff was the registered owner of the bus, which was used as a PMV to ferry passengers along the Okuk Highway. On 3 March 2013 the bus was involved in a collision with another bus near Sege village in the Henganofi District of Eastern Highlands Province. It was a serious accident. One person was killed and a number of others were injured and hospitalised. The defendant lives at Sege and attended the accident scene. He took the plaintiff's bus into his yard. He did this with the knowledge and approval of the Police. He has kept possession of it ever since and has repaired it and used it as a PMV.

3. The issue is: who is now entitled to possession of the bus, the plaintiff or the defendant?

THE PLAINTIFF'S CASE

4. The plaintiff argues that he is the owner of the bus and it should be returned to him. He and his wife have been asking the defendant to return it but the defendant keeps giving them excuses. The defendant has repaired the bus and is now using it as his own PMV and this has deprived the plaintiff of his income.

THE DEFENDANT'S CASE

5. The defendant argues that he has spent K170,342.40 on repairing the bus and resolving this dispute with the plaintiff. He has already paid the plaintiff K24,300.00, which was deposited into his bank account. This was done as part of an agreement that was reached with the plaintiff after a mediation that took place in the presence of the Police at Goroka Police Station on 8 November 2013.

WHO IS ENTITLED TO POSSESSION OF THE BUS?

6. There are two principles of property law that need to be considered. These are common law principles that have been adopted as part of the underlying law of Papua New Guinea by virtue of Section 20 (underlying law and pre-independence statutes) of the Constitution. First, there is a presumption that the owner of personal property is entitled to its possession (Bloxam v Sanders (1825) 4 B & C 941, Fouldes v Willoughby (1841) 8 M & W 540, Burroughes v Bayne (1860) 5 H & N 296 and see generally Halsbury's Laws of England Fourth Edition 1981, Butterworths, Volume 35 para 1116). Secondly there is a presumption that the person in possession of property is its owner unless someone else proves a superior title (Rogers v Spence (1844) 13 M & W 571, Glenwood Lumber Co Ltd v Phillips [1904] AC 405 and see generally Halsbury's Laws of England Fourth Edition 1981, Butterworths, Volume 35 para 1122).

7. Applying those principles to this case I conclude that:

•	The plaintiff is the owner of the bus. He was the registered owner on the date of the collision, 3 March 2013. He remains the owner, even though the defendant has been in possession of it, as there has been no agreement for the transfer of ownership to the defendant. Whatever were the terms of the agreement that was reached at Goroka, they did not include transfer of ownership.

•	Though the defendant has spent his own money repairing the bus and has paid some money to the plaintiff (K24,300.00) – which fact the plaintiff does not dispute – this does not entitle the defendant to possession of the bus.

•	There has been no agreement to allow the defendant to continue possession of the bus.

•	Though the defendant might have a cause of action in unjust enrichment against the plaintiff, and has evidently commenced separate proceedings to prosecute such a cause of action (OS No 445 of 2014, Kay Atu v Ricky Lamang, filed in the Goroka Registry of the National Court), this does not defeat the presumption that the plaintiff, being the owner of the bus, is entitled to possess it.

•	The presumption that the defendant, being the possessor of the bus, is its owner, is rebutted by the evidence that the plaintiff was, and has been at all material times including on the date that the defendant took possession of it, the owner of the bus.

8. The plaintiff is therefore entitled to possession of the bus.

CONCLUSION

9. I will exercise the discretion of the court to declare that the plaintiff is the owner of the bus and is entitled to possess it. I will order that the defendant give up possession to the plaintiff at a time and place to be determined by the Court. The defendant will be at liberty to prosecute his claim, which is apparently of unjust enrichment, in the related proceedings. As the present proceedings are part of a broader dispute and both parties have come to court in good faith and engaged counsel to represent them, I will order that they pay their own costs. It would have been better for those proceedings to be consolidated with the other proceedings (OS No 445 of 2014). However, no application for consolidation was made and both parties were keen to see the present proceedings resolved. That has been done and they can now switch their attention to the related proceedings. I suggest that the most efficient way of dealing with those proceedings might be referral of the matter to a mediator.

ORDER

(1)	It is declared that the plaintiff is the owner of the motor vehicle described as a Toyota Coaster 25-seater bus, registration No P-041 and is entitled to its possession.

(2)	All persons including the defendant who are in possession of that motor vehicle or in a position to control its possession shall give up possession of the vehicle to the plaintiff in a peaceful and orderly manner, ensuring that it is in the same condition it is in at the date of this order, at such time and place as is ordered by the Court.

(3)	The parties shall bear their own costs of these proceedings.

Judgment accordingly.
_________________________________________________________
Meten Lawyers: Lawyers for the Plaintiff
Umba Lawyers: Lawyers for the Defendant