Mike v Tavake [2003] SBMC 5; CMC-CC 031 of 2003 (30 May 2003)

IN THE CENTRAL MAGISTRATES COURT
HONIARA
Civil Division

Case No. 031 of 2003

BETWEEN

TIMO MIKE

Plaintiff

-and-

ALLAN TAVAKE

First Defendant

-and-

THOMAS TAVAKE

Second Defendant

Mr I Kako for the Plaintiff
Defendants not present and not represented
Hearing 30^th May 2003

RD Chetwynd - The situation outlined to me is becoming depressingly familiar. There is a dispute. The Police intervene. They seize or otherwise deprive a person of their property and hand it to another person. They do not do so under any order of any Court and they do not do so in furtherance or in the proper execution of their duties as Police Officers.

If there is an allegation of a crime having been committed or some kind of illegal activity then the Police have specific powers under the law. Provided they comply with the requirements of the law they are entitled to seize property. If they are ordered by a Court to seize property they have authority to seize the specific property described in the order.

The Police cannot seize property in any other circumstances, no matter how well intentioned they are. If they do so then effectively they are converting another’s property for their own use. They are liable to the true owner. If an officer seizes property out of malice the individual officer may well be personally liable in damages to the true owner. It is even possible that by acting unlawfully and seizing property an officer is committing a criminal offence.

It follows then that the Police should be very careful when they are asked to intervene in a civil dispute. Unless they have authority to seize property they should not do so and if they do seize the property then they are responsible for any loss suffered by the true owner. This is so even if they hand the property over to a third party.

In the present case I bear in mind that I have not heard from the Defendants and I have not heard from the Police. I have however heard allegations that the vehicle seized by the Police has been or is being used by the Police. Even though I am concerned about the way the Writ of Summons is worded and the possibility that the proper parties in this case have not been joined I feel that in all the circumstances I should make an order preserving the subject matter of this claim, namely the vehicle, registration number A9948. The property needs to be protected quickly and the matter brought back to Court quickly.

I will therefore order the Police to recover the vehicle, if indeed they have released it from their “custody”. They must then keep the vehicle safe and secure and ensure that it can be returned to the true owner in much the same condition it was in when it last left his possession or control. I have also given leave that the Commissioner of Police be joined as a Defendant. I stress again however that it may be possible that individual officers will also be liable to the true owner and they too may be joined in at a later date. I therefore urge the Police to act quickly on this interim order. Failure to do so may have a bearing on the damages which flow from any unlawful act that has taken place.

I make the following order:-

1. The Plaintiff be given leave to amend the Writ of Summons and Statement of Claim contained therein;
   
2. The Plaintiff be given leave to join the Commissioner of Police as a Third Defendant;
   
3. The Toyota vehicle with the registered number A9948 be recovered forthwith by the Police and thereafter kept safe and secure at Central Police Station (or some other such place as may be authorised by the Court) until further order of the Court;
   
4. Following such recovery and safe storage all keys for the said vehicle be surrendered forthwith to Central Magistrates Court;
   
5. The case is adjourned to Friday 6^th June 2003 at 09:30 hours at Central Magistrates Court Honiara;
   
6. If the Commissioner of Police has not been joined as Third Defendant prior to the adjourned hearing I direct that the Director of CID, or some other officer authorised by him, attend the adjourned hearing and for the avoidance of doubt I make this direction pursuant to sections 58 and 60 of the Magistrates Courts Act [Cap 20].
   

Dated 30^th May 2003

R D Chetwynd
Chief Magistrate