Unreported National Court Decisions
N1893
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS NO. 269 OF 1998
BETWEEN: EASTERN HIGHLANDS PROVINCIAL GOVERNMENT
PLAINTIFF
AND: AITA IVARATO
DEFENDANT
Goroka
Kirriwom J
19-21 April 1999
11 June 1999
Counsel
Mr Teninge for the Plaintiff
Mr Wogaro for the Defendant
11 June 1999
KIRRIWOM J: The Plaintiff in this case is the Eastern Highlands Provincial Government and the Defendant is the former interim Governor of Eastern Highlands Province. He was ousted in 1997 National Election. 
During his term in office as the interim Governor in the period immediate leading up to the 1997 National Elections, he was entitled to certain benefits including an official vehicle or allowance in lieu of vehicle at K21,696 which was to be paid to him fortnightly. These entitlements or benefits were provided for under the SRC Determination Eleventh and Twelfth Reports.
By a Circular letter to all Provincial Administrators, all Provincial Treasurers and Provincial Governors the Commission through its responsible officer tried to explain in general terms how these entitlements were to be administered in the interim period ie: between 8th August 1995 and 15 July 1997. 
With regard to Vehicle Allowance for Interim Provincial Governor, the Determinations provide:
b)       Vehicle Allowance - The Governor is given an option of an official vehicle or an allowance in lieu of vehicle at K21,696 pa. If official vehicle option is chosen the vehicle shall be hired with a PTB driver from PTB and made available to the Governor for his use on a 24 hours basis. Where the Governor opts for allowance, he shall be paid the allowance at fortnightly intervals from which he will be expected to meet all his transport needs both official and private. No advance on the allowance however, shall be permitted during the interim period.
This allowance is the only benefit which is taxable at present time. The tax is paid on a flat rate amount of K75.00 per fortnight regardless of whether he is using an official vehicle or receiving the allowance.
The cost of this benefit will be borne by the Province. 
c)       Support Vehicle - K9,769 pa.: This allowance shall be paid fortnightly and it shall be the Governor’s responsibility to provide for transport needs for his support staff out of this allowance. Where the governor wishes to buy a support vehicle an advance to the end of the interim period may be considered. The allowance shall be paid for out of the Provincial Budget. It is non-taxable.
The Determination covers Salary, Housing Allowance, Entertainment Allowance, Utilities Allowance, Telephone Allowance and even Personal Staff. 
During the period of his service as Interim Governor from 8th August 1995 to 15 July 1997 approximately for some two years for the Eastern Highlands Province, the Defendant was not accorded either of the two options under the Determinations on vehicle.
In April 1996 three vehicles were purchased by the Plaintiff for the Governor’s usage one of which is a Toyota Landcruiser VX Station Wagon Grey Neo in colour Engine No. 0114438 Chassis No. 0004401 and Reg No. EAC 313. A total of K160,000 was expanded and all paid off in two instalments. These vehicles were purchased for the Governor’s Office. This particular vehicle was subsequently transferred to the Governor as his personal vehicle according to one interpretation of the SRC Determination. This is where the Affidavit of Baunke Uke, Former Acting Provincial Administrator of Eastern Highlands is most important and quite crucial. The Defendant did not on his own accord choose to take possession of vehicles that belonged to the Government of the people of Eastern Highlands. It was Mr Baunke Uke who advised the Defendant that he could take the vehicle as his entitlement under the Determination in lieu of allowances that were not paid to him and being the Chairman of the Provincial Supply and Tenders Board, he directed the government support services staff to dispose off the vehicle Toyota Land cruiser VX Station Wagon to the Defendant. The vehicle was thus officially transferred to the defendant. It was removed from the Government Asset Register.
I set out herein the full text of Baunke Uke’s affidavit sworn the 24th of July 1998:
On this 24th day of July 1998, I Baunke Uke Former Acting Provincial Administrator of Eastern Highlands Province of P O Box 880, Goroka, Eastern Highlands Province SAY ON OATH:
1.       I was the caretaker Provincial Administrator at the time the vehicle Registration No. EAC 313 was purchased in April 1996 by the Eastern Highlands Provincial Government and transferred to Aita Ivarato the then Provincial Governor as an entitlement under the Salaries and Remuneration Commission (S. R. C) Determination.
2.       The said vehicle purchase was partly paid by the former Provincial Administrator Mr Joshua Unua. Sometimes in April 1996, I as Caretaker Provincial Administrator paid the balance to get  the vehicle for the defendant who  was then the Provincial Governor of Eastern Highlands Province.
3.       I interviewed the then Governor Ivarato, whether he wanted the vehicle as an official Government vehicle for the Governor’s Office or transfer to himself as a transport allowance under the SRC determination. Then Governor Ivarato agreed to take the vehicle and not the allowance.
4.       I was then the Chairman of the Provincial Supply and Tenders Board. I directed the government support service staff to dispose the said vehicle to Mr Aita Ivarato.
5.       That the said vehicle was then legally transferred to the then Governor Aita Ivarato. The said vehicle has no record in the Government’s Asset Register, indicating the legal ownership to the Provincial Government.
In other words Mr Aita Ivarato came to own the said vehicle through normal and proper channel as his entitlement under the existing laws.
This evidence is complimented by the evidence of former Premier Robert Atiyafa and Deputy Governor. His affidavit sworn 3/8/98 is set out below:
On this 3rd day of August 1998, I Robert Atiyafa Former Premier and Deputy Governor under Mr Ivarato’s Government of Goroka, Eastern Highlands Province SAY ON OATH:
1.       As per discussion of Members Benefits and Remuneration Committee certain benefits were awarded to members of National and Provincial Members. See annexure “A” of Mr Ivarato’s affidavit.
2.       I was present, sat in the Provincial Executive Council meeting and as member of Provincial Executive Council of that government of the day had made the decision in favour of Mr Aita Ivarato (Former Governor) for the Provincial Government to purchase a vehicle to the value as stated in the remuneration to be owned by him.
3.       The vehicle was to be owned by Mr Ivarato is retrospective i.e. Mr Ivarato made the decision to own the vehicle instead of all benefits and allowances which were due to him.
4.       Thus I personally wish to acknowledge that a decision of the government of the Day should be respected. In this regard the vehicle now taken away from Mr Ivarato was not done in the good spirit of all the above discussion and reasons and that it should be returned to him.
5.       The above statement are done and written with my clear understanding of the meetings and discussions made in the Provincial Executive Council. 
This is how the vehicle concerned found itself a new registered owner in the Defendant. Consequently, there is a valid Certificate of Transfer of Registration of Motor Vehicle No. EAC 313 dated 10/12/97 No. 556438 to Aita Ivarato of P O Box 1242, Goroka, a Toyota Station Wagon, Grey Neon in colour Engine No. 0114438 and Chassis No. 0004401.
On 10th June 1998 the Plaintiff filed originating Summons in this Court claiming
1.       A declaration that the motor vehicle described hereto:
Make: Toyota Landcrusier VX Station Wagon
Registration: EAC 313
Colour: Grey Neo
Engine No.: 0114438
Chassis No.: 004401
is property belonging to the Plaintiff.
2.       A declaration that the Defendant does not have any right at law or at all to have and or to exercise any rights or powers of possession over the heretofore described motor vehicle.
3.       An Order that the motor vehicle described heretofore be surrendered or returned to the possession of the Plaintiff forthwith.
At the same time the Plaintiff successfully moved the Court for an Order for the said vehicle to be impounded by the Police and to be detained at the Police Station as an interim measure while the substantive issue was dealt with. On the 19th of November 1998 this interim order was dissolved by an order issued by me for want of a secured premises for safe-keeping of the car. Evidence was produced before me that the vehicle was being tampered with at the police station and parts were going missing bit by bit. The plaintiff did not refute this allegation nor did it have an alternative safer place, so I ordered for the vehicle to be kept at the Defendant’s well secured premises at West Goroka. 
Plaintiff contends that the vehicle concerned belongs to it and it relies on the Affidavit evidence of Ati Lomutopa - OIC - Transport unit who claims strongly that the vehicle belonged to the Plaintiff. In support he annexed an old registration certificate with the expiry date showing 29th April 1996 and Third Party Insurance Cover Certificate covering the period 11 June 1997 to 11 June 1998. Both documents have the same description of the vehicle in dispute.
At the same time the plaintiff relies on the evidence of Ako Onnise, Assembly Clerk who annexes to his affidavit, a copy of the SRC Determination showing the entitlements and benefits due to the persons to whom they applied including interim Governors. 
As to the SRC Determination I can’t see how far that evidence advances the plaintiff’s case. That evidence provides the basis upon which a senior officer of the plaintiff saw fit in April 1997 to transfer this particular vehicle to the Defendant because he was entitled to receive his transport allowance but he never did. That was the interpretation and instruction given to the Determination on Vehicle by the then Acting Provincial Administrator to whom the circular letter containing the SRC Determination was directed to for administration. Here the Court sees two junior officers below the Provincial Administrator giving their opinion on their interpretation of the SRC Determination countermanding that of the Provincial Administrator. Plaintiff has not established to any degree of satisfaction as to how these SRC Determination assisted its case. The problem with the SRC Determination is that it is not a legal document and it does not provide any exhaustive answers to all those goodies it brings to those who benefit from them. There is not one clear interpretation. Under this Determination a Member of Parliament can purchase a motor vehicle within the limit he is allowed. He does not hand that vehicle over to his successor who beats him in the next election. This is the unsatisfactory thing about this Determination. Therefore in the absence of any convincing evidence over-ruling the interpretation given by Mr Baunke Uke, I don’t think I can accept any other interpretation.
The Plaintiff tried to prove that it owned the vehicle by producing an expired registration paper and the third party insurance cover certificate. All these evidence are irrelevant because the Certificate of Transfer of Registration of Motor Vehicle No. EAC 313 dated 10/12/97 by the authority of the Acting Provincial Administrator Baunke Uke gives exclusive ownership of the vehicle to the Defendant. This seems to be that more current transaction on that vehicle as opposed to what the Plaintiff had produced as evidence. 
In light of overwhelming evidence of the Defendant holding a legitimate Certificate of Transfer of Registration of the said vehicle, how can the Plaintiff lay a valid claim on the same vehicle? I therefore dismiss the Plaintiff’s claim, direct the vehicle to be delivered to the Defendant forthwith and I order all interim injunctive orders associated with this action be dissolved. And I further order the plaintiff to pay the Defendant’s costs.
Lawyer for the Plaintiff: Nosohuno Teninge
Lawyer for the Defendant: Narakobi Lawyers