Papalii v Kwan [1994] WSCA 12; 09 1993 (31 March 1994)

IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C. A. 9/93
BETWEEN:

AFA PAPALII

of Vaivase-uta, Chief Accountant for and on behalf of
the Agriculture Store Corporation Staff Association
Appellant
AND:

RUTH KWAN

of Motootua, Unemployed
Respondent

Coram: The Rt. Hon. Sir Gordon Bisson, President
The Hon. Sir John Jeffries
The Hon. Mr Justice Lussick

Hearing: 28 March 1994

Counsel: Mrs R. Drake for Appellant
P. Fepuleai for Respondent

Judgment: 31 March 1994

JUDGMENT OF THE COURT DELIVERED BY SIR JOHN JEFFRIES

This is a civil appeal from the judgment of the learned Chief Justice Sapolu delivered in the Supreme Court of Western Samoa on 6 July 1993.

The decision of the Court is to remit the case to the Supreme Court for a new trial. We follow this course with some hesitation, but have reached the conclusion it is the only safe way justice can be done between the parties. Because there is to be a new trial we think it wise to say as little as possible about the case leaving all issues to be tried de novo. However we owe to the parties, and to the learned trial Judge, some brief reasons why we are following this course.

The factual background now to be outlined is largely undisputed. Appellant sued respondent in a representative capacity on behalf of the Agriculture Store Corporation Staff Association of which respondent had been the treasurer from March 1992 to end of November 1992. It appeared some monies were unaccounted for and a staff meeting was called for 28 November 1992 and respondent's attendance was requested to present a financial statement. She failed to turn up and ultimately resigned on 1 December 1992. In her letter of resignation and in a subsequent one dated 8 December respondent made generalised admissions to the effect that all was not right with her stewardship of the staff fund. She promised to repay shortfalls.

The staff fund made loans to members for which they were charged a flat rate of 10% interest with apparently no term for repayment. We mention that the judgment appealed from in more than one place mentions "10% per annum", which is different. Once plaintiff on behalf of the fund carried out an investigation it was found that there was a significant shortfall based on some records supplied by respondent, and other investigations carried out. There were in fact two loan schemes in operation but this case directly concerns only one. We are satisfied that the calculations made were inadequate, or even wrong, and were presented to the Chief Justice at trial in a confusing and tortuous manner. The confusion could not be satisfactorily resolved on appeal.

The amended statement of claim alleged there was $7,649.46 misappropriated. We are by no means certain, but it is possible that the claim advanced in the lower Court by the time of trial had been reduced to $3,263.96, which was the amount claimed in this Court on appeal.

As stated earlier we wish to avoid travelling into the facts and confine ourselves to these observations. On appeal Mrs Drake argued that plaintiff should have been given judgment for $3,263.96. With respect to Mrs Drake her submissions on appeal even were not clear, but it must be said that under questioning by the Court she was able to explain by reference to the documents (mainly Ex.4 and attachments) how that figure was arrived at. We should mention Ex.4 was a reviewed statement as at 27.11.92 prepared by plaintiff. Attached to it was another statement headed "Reviewed Staff Lending Scheme Statement as at 27.11.92". That document at paragraph 4 states as follows:

Loans:

There are no records available for Loans from the Staff Association funds. However, the amount of $6,180.00 balance on outstanding loans has been calculated from the interest received on loans as per Treasurer's report (suppl. sheet No. 3) of $1,562.70. The Associations Interest Policy is 10% fixed regardless of repayment terms.

The $1,562.70 was a foundational figure for Ex.4 under the item of Total Cash Available. That figure of $1,562.70 was used to establish the figure of Total Loans (Principal Amounts) at $15,627.00 by capitalising it at 10%. It suffices to say that the learned Chief Justice quite firmly rejected that method of calculation and so do we, but do not need to express why.

The decision of the Chief Justice was that plaintiff had failed on the burden of proof and whilst seeing sense in that we think in view of other factors in the case the plaintiff deserves the opportunity to present his case again.

The case is therefore remitted back to the Supreme Court for a new trial.

There will be no award of costs.

Solicitors:
Drake & Co., Apia for Appellant
Fepuleai, Apia for Respondent