Tukutukunga v Ministry of Police [2001] TOSC 18; C APP 0015 2001 (25 May 2001)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

CAPP.NO.15/01

BETWEEN:

KILUPI TUKUTUKUNGA
Appellant

AND:

MINISTRY OF POLICE AND KINGDOM OF TONGA
Respondent

BEFORE THE HON. CHIEF JUSTICE WARD

Counsel: Mr Paasi for appellant
Ms Simiki for respondent

Date of Hearing: 14 May 2001.
Date of Judgment: 25 May 2001 in Nuku'alofa

JUDGMENT

The appellant brought an action in the Magistrates' court in which he claimed the costs of repairing a car that had been in the custody of the police. The basis of the claim was that the police between April and July 2000 had held the car unlawfully and "damages happened to the vehicle due to the fact that the plaintiff was not using the vehicle".

The vehicle had been shipped to Vava'u by the appellant and, when it arrived in late March, the shipping company demanded payment of the freight, a sum of $400.00, before they would release the vehicle. Understandably that was company policy but the appellant asked to pay a deposit and then use the vehicle as a taxi to obtain the remainder. A deposit of $250.00 was asked but the appellant only had $100.00 and eventually, the shipping company representative, Sivoki Naitoko, agreed to release the vehicle against that deposit and on the understanding the balance would be paid within a week.

The appellant is a schoolteacher but he was unable to pay the balance because the vehicle broke down on the first day he used it, he was admitted to hospital with high blood pressure and his father died. Sivoki had tried to find him to obtain her money and discovered he was in hospital. When he was released, she went with police officers to his home and asked for the money. When the appellant explained he could not pay, Sivoki wanted to take the car. There is no dispute that it was then agreed that the car should be taken into the custody of the police and an officer drove it to the police station. The appellant told the court that he only agreed to that arrangement because of the appearance of the officers with Sivoki. He was frightened into agreeing.

In his judgment, the magistrate after a lengthy and careful analysis of the evidence concluded that the appellant was not honest or reliable. He specifically found that he was not frightened into making the arrangement and, on the contrary, found it was made voluntarily and at the appellant's suggestion.

It appears that, in early May, the appellant's lawyer contacted the police and asked for the vehicle to be returned. The officer with whom the lawyer spoke gave evidence and ascertained that the car was being held as the result of an agreement between he parties and effectively took no further action. However, the police did call the parties and gave the keys to the vehicle to Sivoki but retained the vehicle at the police station.

In July when the appellant went to collect the vehicle it would not drive. He called an engineer who looked at it and concluded the gearbox needed replacing.

The magistrate found that the police were holding the car as a result of the request of both the appellant and Sivoki, that there was no evidence to show that the failure of the gearbox had anything to do with the fact the vehicle was in the police custody and that the evidence of the nature of the fault and the cost of remedying it had not been proved in any event.

The grounds of appeal are lengthy and unclear and include a number of statements of fact that do not appear in the record of the lower court. In summary, they complain that the magistrate reached the wrong conclusion about the involvement of the police, that the police had no right to hold the car, that the gearbox was working when the engineer first examined the vehicle and was not at the subsequent examination and that there was no understanding to change the arrangement and hand over the key to Sivoki. Finally it is suggested that, even if the claim was not accepted, there should have been no award of costs.

Mr Paasi for the appellant first raises the suggestion that the appellant was pressured into letting the police have the car. I have already mentioned that the magistrate found to the contrary. He had the advantage of seeing and hearing the witnesses and formed the view he could not trust the evidence of the appellant. He had ample evidence on which to base such a conclusion and this court will not intervene unless it is clear that there has been a serious error. In fact the evidence makes it clear the magistrate reached the right conclusion about the agreement that the police should hold the car.

Mr Paasi continued that the gearbox was working when it was first with the police and so the fault occurred while it was in their custody. He complains that the magistrate did not refer to the time it was with the police. I do not understand what that means. The whole case concerned the time the police had the car. The magistrate based his whole decision on the fact that the vehicle was with them for that time. Mr Paasi suggests that the mere fact that the gearbox failed while the car was with the police meant they were liable. I cannot agree. There was no evidence of the exact nature of the fault or the likely cause and there was nothing to link it to the other suggested cause put forward by counsel, namely that the car had not been kept under cover. There was simply no evidence upon which the magistrate could have found the police were liable and he rightly did not.

Finally, Mr Paasi suggests that the police should not have changed the agreed arrangement by giving the keys to Sivoki. He accepts that the vehicle still remained with them but asks the court to find that the handing of the keys to Sivoki in some way affected the issue. I have tried to see how this could be relevant but I am afraid to say that I can see no link.

What is clearly demonstrated by this case is that the police should not become involved in matters of this nature. It was a private civil matter between the shipping agent and the appellant. He police said they only went to the appellant's home with Sivoki in order to take her there. They should not have done so. Having gone there, they should not have been involved in any arrangement to keep the vehicle.

The basis of the appellant's final suggestion that he should not have to pay costs appears to be that he cannot afford it and that he hopes the respondent will agree. I find no merit in that suggestion. The normal rule is that the loser pays the successful party's costs but the court always has discretion to vary it. In this case there was no good reason why he should have exercised that discretion and he was perfectly entitled to refuse to do so. I can find no reason why that should not apply here also.

The appeal is dismissed with costs to the respondents to be taxed if not agreed.

NUKU'ALOFA: 25^th May, 2001.

CHIEF JUSTICE