Takataka v Hurrell [2005] TOSC 35; CV 283 2002 (31 May 2005)

IN THE SUPREME COURT
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY

CASE NO. CV 283/2002

BETWEEN:

1. SIONE TAKATAKA
2. LITA TRADING
Plaintiffs

AND:

1. ROBERT HURRELL
2. MALAKAI TAUFALELE
3. KULI TAULAHI
4. KINGDOM OF TONGA
Defendants

BEFORE THE HON MR JUSTICE THOMAS

Mr. Kengike for Plaintiffs
Mrs Vaihu for First Defendant
Miss Tupou & Miss Fukofuka for Third and Fourth Defendants

Date of hearing: 30 & 31st May 2005
Date of Judgment: 31st May 2005

JUDGMENT

This claim involves the ownership of and dealings with a red Nissan motor vehicle registration number C6718. This vehicle was purchased and registered by one Ivan Prema in December 1999. The claim alleges, as best as can be ascertained, alleged illegal dealings by the first and second defendants; and unlawful actions by the third defendant resulting in a loss to the plaintiff supporting his claim for damages. There were apparently no steps taken by the second defendant and judgment may have been entered against him by default although that is not clear from the file.

I say straight away that the plaintiff’s claim in respect to the first defendant and in fact also the second defendant is entirely misconceived and wrong. Were this an argument about who was entitled to the car, then their involvement would have been more relevant but it is not. There seems little argument that despite the generous nature of the oral agreement between Prema and the plaintiff, the plaintiff is probably entitled to ownership and possession of the vehicle.

It was offered back to him in May 2002 but he rejected it because of its condition. That may have been an error on his part. All that Mr. Kengike can point to as to the liability of the first defendant are allegations based on the Traffic Act in respect to alleged failures to register changes of ownership. That can never amount at law to a civil wrong that is actionable. The reality also is that the plaintiff has not provided any proper proof of loss and the claim would fail for that reason alone, despite any findings of fact that may be made that are favourable to the plaintiff.

The Nissan vehicle was first registered on the 15th December 1999. The certificate of ownership produced as exhibit 1 indicates it was then registered in the name of Prema and Tonga Development Bank on the 20th December 1999. On the 24th May 2000, it had reverted to the sole name of Prema and then it was transferred on that day also to Lita Trading. The clerk Mr. Paongo had a card from the Traffic Department, which did not appear to be complete when compared to the card produced as exhibit 2 by Mr. Taulahi. Mr. Taulahi’s evidence was that he had seen this particular card at the time of these events in April and May 2002. Exhibit 2 had names crossed out. Mr. Taulahi said that the earlier two names had been crossed out by him and he had personally entered Lita Trading Company as the owner. He acknowledged that his mistake was not to note the date that he took that action but he had been persuaded to enter Lita Trading Co. Ltd as the owner by having seen the certificate of ownership when he made that entry.

This also indicates of course an issue for the plaintiff, which has been an ongoing one despite several efforts in getting the plaintiff’s name correct. It appears that the pleadings should really have reflected the true plaintiff as Lita Trading Enterprises Limited because that seems to have been the entity that provided the cheque.

Be that as it may I look at the remaining facts. In May 2000 the plaintiff lent Prema $2000 to be repaid in three months without interest. Failure to repay on time would result in ownership being transferred to the plaintiff. To secure that loan the car was then transferred to the company name and this was on 24th May 2000. The money was not repaid. The plaintiff gave evidence of being busy in 2000 and 2001 and made no enquiries for the car until late in the 2001. At that time of course, he could not say or give any evidence about the then current state of that vehicle. Mr. Hurrell was vague about the dates of his involvement with this vehicle and Prema. He had thought it was 1999 but given the history of registration and backdating it from the date of the events we are concerned with, it seems this must have been in either late 2000 or early 2001. Prema rented a property from him and vacated when he could not pay his rent, owing approximately $600. He left behind the Nissan vehicle in Mr. Hurrell’s garage. At that time the unchallenged and indeed unchallengeable evidence of Mr. Hurrell was that the car was in a damaged state having been in an accident. It sat in his garage for six months and then the second defendant bought it from him by paying him $400. It appears that the second defendant may have done a certain amount of work on the Nissan to get it mobile although there is no direct evidence of that.

The Police then became involved in the investigation at the request of the plaintiff to try and locate and obtain the car for the plaintiff. This being in late 2001 and early 2002. Mr. Takataka persuaded a Sergeant Mokena to try and locate and seize the vehicle. He did so and the vehicle was seized and placed at the Mu’a Police Station sometime in early March or April 2002. The third defendant became involved about this time. He, as I have indicated checked the card that he located in the Traffic Department which revealed that Prema was still the registered owner. He was then contacted by Mr. Hurrell and the second defendant who advised of the dealings that they had had with Prema and on that basis he ordered the vehicle to be released to the second defendant. He then had contact with the plaintiff and having finally sighted the certificate of ownership,altered the card which was produced as exhibit 2 which indicated Lita Trading Company Limited was the owner. By then Mr. Takataka had made a criminal complaint to the Central Police Station about the vehicle. There was a gap of about 2 weeks it would seem between the release to the second defendant and the seizure by CID of that vehicle sometime in early May 2002. It may have been during that time that the second defendant had taken back some of the parts he had put on it. But of course as I said we have no actual proper evidence of that. In any event the Nissan was at the Central Police Station and Mr. Takataka freely admitted that it was offered to him to take away at that time but he declined to uplift it because it was no longer in a very good condition and he valued it at about $1000 compared to what he said as an earlier value of $6000 although of course we have no independent evidence of the value or state of this car.

These proceeding were then issued and defended and we came to the hearing yesterday and today. As I have earlier indicated it is difficult to discern any legally actionable cause against the first defendant. The plaintiff points to breaches of the Traffic Act, that is simply not sufficient. Mrs. Vaihu submitted that her client acted without knowledge of any claim by the plaintiff, in other words he was acting innocently, if you like and also exercised a right of lien in disposing of the vehicle to the second defendant to meet the rental of Prema. Of course the first defendant Mr. Hurrell did not have good title to the vehicle given the arrangement between Prema and the plaintiff and had there been a claim for the vehicle obviously the first defendant would have had to surrender the vehicle to Mr. Takataka.The reality is of course that there is no valid cause of action against Mr. Hurrell and the claim against him is dismissed on that basis. There is a judgment for the first defendant against the plaintiff on that claim.

As far as the third defendant is concerned the allegation is of wrongful and illegal actions in ordering the release of the vehicle from Mu’a Police Station back to the second defendant, where it is alleged that extra damage occurred. As I have said there is simply no evidence as to what might have happened during that time even though it seems the second defendant may have removed some of his parts.

Miss Fukofuka for the third defendant has submitted that the plaintiff has not established that any of the actions of the then Superintendent, Mr. Taulahi were illegal or unlawful and that he at all times acted in good faith and made his decision on the basis of the material he had. As Mr. Taulahi said several times if the record had been accurate the decisions would have been different. I accept that evidence. I agree and find that the third defendant did act in good faith and on the basis of the information he had.

I am not satisfied on the balance of probabilities that any of the actions he took were unlawful nor do they amount to an actionable cause at law. The claim against the third defendant and it follows of course, the fourth defendant are dismissed. There will also be judgment for the third and fourth defendants against the plaintiff.

As I indicated earlier there was simply no proper proof of the damages claim by the plaintiff and I specify the deficiencies now. The plaintiff is entitled to possession of the vehicle if he wants it but there is no adequate proof of its value after May 2000, even assuming that is a proper valuation that he gave us, and certainly not in 2001 when he started to make efforts to locate the vehicle. The loan to Prema is not a claimable item against any of the defendants but only against Prema. The claim for loss of benefits has not been proven, but in any event of course given the plaintiff’s election not to uplift the vehicle is again not a loss that can be claimed or allowed. In addition in these sorts of cases any claim for loss of reputation and distress are not appropriate. The plaintiff’s claim, therefore fails in all respects.

Further I am concerned about the position of the second defendant. All of the evidence that I have heard must relate to his position in these proceedings as well. On that basis I intend to order that any judgment against him is set aside.

In the circumstances then I make the following orders:

1. There is judgment for the first defendant against the plaintiff together with costs to be agreed or taxed.
   
2. There is judgment for the third and fourth defendants against the plaintiff together with costs to the third and fourth defendants to be agreed or taxed.
   
3. Any judgment entered against the second defendant is to be set aside as it was unsupported by the evidence.
   
4. The plaintiff is entitled to possession of the motor vehicle Nissan C6718 should he so desire and should indicate within 14 days to the Police Station if he wishes to uplift it. If he does not so uplift the vehicle then the Police may dispose of it as they wish.
   

There will be judgment accordingly.

NUKU’ALOFA 31st May 2005

JUDGE