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Narayan v Commissioner of Police [2003] FJHC 262; HBC0035j.2003s (7 October 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0035 OF 2003

Between:

SURYA NARAYAN
F/n Latchmaiya Naidu
Plaintiff

and

THE COMMISSIONER OF POLICE
SUVA CITY COUNCIL
ATTORNEY GENERAL OF FIJI
Defendants

Mr. R. Prasad for the Plaintiff
Mr. L. Daunivalu for the 1st and 3rd Defendants
Ms. T. Waqanika for the 2nd Defendant

JUDGMENT

By originating summons dated 27 January 2003 the plaintiff sought the following relief/orders: -

(a) A Declaration that the seizure and impounding of Vehicles (as

listed in annexure ‘A’ of the Affidavit in Support) by the Defendants on 23^rd January 2003 was illegal and unlawful and ultra vires of the defendants.

(b) An Order that the 1^st Defendant forthwith release the vehicles (as listed in annexure ‘A’ of the Affidavit in Support) presently impounded by the 1^st defendant at the Police Mobile Unit in Nasinu.

(c) An Order that the Defendants restrain from seizing and impounding the vehicles in future in the manner and for the reasons as was carried out on 23 January 2003.

(d) Damages

(e) Exemplary Damages

(f) An Order that the Defendants pay the costs of and incidental to this action on an indemnity basis.

(g) Such further or other relief(s)/order(s) as this Honourable Court deems just.

The summons was heard inter partes on 30 January 2003 when an order was made to file affidavits in reply and reply thereto, if any. It was further ordered that ‘the vehicles that are listed in the Annexure to the Affidavit of the Plaintiff that have not already been released must be released forthwith to the respective owners’.

On 3 March 2003 an order was made for Plaintiff to file and serve affidavit in Reply which he failed to do. As ordered on that day the Defendants filed their written submission but the plaintiff failed to comply with the Court order despite a reminder. I am left with the defendants’ submissions.

Consideration of the issue

On the affidavit evidence before me and on Ms. Waqanika’s submissions I find that the issue raised by the plaintiff is mainly between the plaintiff and the first defendant. The second defendant took no part in the seizure and impounding of the vehicles.

As stated by counsel the Enforcement Officers of D2 are authorized officers and they have been delegated the powers under sections 73 and 77 of the Land Transport Act (No. 35 of 1998).

Section 77(1)(a) provides:

“A police officer or an authorised officer may for the purposes of this Act –

(a) inspect any vehicle, or any equipment in respect of which a licence is or has been in force which the officer has reason to believe is being used as a public service vehicle, and the equipment thereof; or..”

As authorized officers, the D2’s officers were merely ‘flagging down’ vehicles for inspection on grounds that the vehicles are used as public service vehicles. The plaintiff has not disputed this submission.

I therefore find that there is no cause of action against the second defendant. Hence the summons against D2 is dismissed with costs in the sum of $150.00 to be paid within 21 days.

As far as the case against D1 and D3 is concerned, a comprehensive written submission has been filed by counsel and I have given due consideration to it. The plaintiff’s counsel has not responded although he had the opportunity to do so. In fact the plaintiff’s counsel as stated earlier made no submissions at all.

I do not intend to give a background to the circumstances in which the vehicles in question were seized as they are covered very well in D1 and D3’s written submissions suffice it to say that the plaintiff instituted this action following a joint operation between the Fiji Police Force and the Suva City Council targeting the illegal operations of taxis, mini buses and buses within the Suva City and surrounding areas. The joint operation took place between Thursday 23^rd January 2003 and Saturday 25^th January 2003.

The main issue for court’s determination is whether the seizure and impounding of the plaintiff’s vehicles by the defendants was illegal, unlawful and ultra vires. The determination of the other claims by the plaintiff can be determined once the main issue is addressed.

The law

The learned counsel for D1 and D3 submitted that the defendants particularly the first defendant acted within the law. He has set out very well the law in his written submission as follows in accordance with the powers given pursuant to Land Transport Act 1998 (the ‘Act’):

Under Part IV of the Act, all motor vehicles are required to be registered with the Authority (s.49) under a particular licence class and must be issued with a registration certificate. Under section 51 of the Act, the registration certificate that is issued in respect of a motor vehicle must contain the following information:

(a) date/year of manufacture;

(b) chassis or engine No. of motor vehicle;

(c) registered owner & all other parties with financial interest in motor vehicle;

(d) date of 1^st registration in Fiji & expiry date of registration;

(e) country of manufacture;

(f) classification of m/v as either new, second hand, recondition or other;

(g) registered number licence class & any exemptions & conditions;

(h) any other appropriate matter.

Subsection (2) of s51 specifies other types of information which may be recorded on the registration certificate and includes, amongst other things, the renewal of registration, modifications to the vehicle and changes in the licence class.

Section 50(1) of the Act prohibits a person from driving or using or permitting to be driven or used on a public road any motor vehicle which does not comply with the Regulation as to construction, equipment, dimension and load applicable to the class or description to which the motor vehicle belongs.

Pursuant to Part VI of the Act, a motor vehicle used for the carriage of passengers for hire, reward or other consideration is deemed to be a public service vehicle (“PSV”) and must be licensed. Section 62 prohibits a person from driving or using a motor vehicle or cause or permit one to be driven or used as a PSV unless it is licensed as a public service vehicle. A PSV means a motor vehicle licensed under Part VI for the purpose of carrying passengers for hire or reward.

Part VIII of the Act specifies the powers of enforcement of police and authorised officers. Section 73 gives power to a Police Officer to control traffic as well as parking. In particular, s73(1)(c)(vi) states that a police officer may, for the purpose of traffic control seize and remove to a place of safe custody a motor vehicle where the police officer has reasonable cause to suspect that the vehicle is not registered pursuant to this Act or the Regulations. Subsection (7) provides that a police or authorized officer shall not be held liable for any damage to or loss of item from a motor vehicle during its seizure and removal under paragraph (c) of subsection (1). In addition, the owner is responsible to pay all reasonable expenses for a motor vehicle removed and stored by a police or authorized officer (s74). Section 74(2) also authorises the Authority to sell by auction or public tender a motor vehicle where the owner has not claimed it or paid the reasonable costs of its removal and storage within 1 month in order to recover those expenses.

Under section 77 a police or authorised officer is empowered to inspect PSC vehicles and require any mechanism or part of the vehicle to be dismantled if the officer has reason to believe that the PSC is not in a fit condition to be used for that purpose.

In addition, the Criminal Procedure Code, Cap. 21 at section 51 authorises every police officer to interpose for the purpose of preventing, to the best of his ability, the commission of any offence. This prevention power is also reflected in the Police Act, Cap. 85 section 5 of which requires a police officer to also protect life and enforce all laws with which it is directly charged (including the Land Transport Act 1998).

The plaintiff has admitted in his statement which he gave to Police that his motor vehicle registration No. DJ.026 operates as a mini bus between Suva and Lautoka. Two police officers who seized the plaintiff’s vehicles also confirmed this. Similarly, the other mini buses seized by the Police had been ascertained as carrying passengers for hire or reward which were not being registered as PSV as required to be done under the Act. Therefore all mini buses that were found to be carrying paying passengers were stopped and seized in accordance with the powers given to Police Officers under s73 (1)(c)(vi) .

The seizure and impounding of the vehicles was also necessary to inspect the vehicles, inter alia, for their respective ownership and registration in accordance with the Act.

There are various other reasons for these inspections such as for ‘health and safety’ of passengers and whether there are ‘third party insurance’ cover which Public Service Vehicles have for their paying passengers as required under the Motor Vehicles Third Party Insurance Act Cap. 177.

Conclusion

I agree with the submissions made by the learned counsel for the first and third defendants in response to the allegations made by the plaintiff.

I find that the defendants exercised their powers pursuant to powers vested in the Enforcement Officers under the Act, the Police Act and the Criminal Procedure Code.

There was nothing unlawful or illegal in the way the vehicles in question were seized. These buses were found to be operating as Public Service Vehicles whilst not being registered as PSVs under the Act. Therefore these buses were stopped and seized pursuant to the powers given to police officers under s73 (1)(c)(vi).

I am satisfied that the defendants had acted intra vires. The plaintiff has failed dismally in proving the case against them. He did not even bother to respond to the defendants’ submissions despite the opportunity given him to do so. This indeed was a frivolous action instituted by him.

For these reasons the plaintiff’s claim against the defendants is dismissed with costs the sum of $150 to counsel for 1^st and 3^rd defendants and similar amount to counsel for second defendant to be paid within 21 days of this decision.

D. Pathik
Judge

At Suva
7 October 2003