Drake Solicitors Nominee Co Ltd v Soia [2018] WSDC 3 (16 February 2018)

IN THE DISTICT COURT OF SAMOA
Drake Solicitors Nominee Co Ltd v Soia [2018] WSDC 3

Case name:	Drake Solicitors Nominee Co Ltd v Soia
Citation:	[2018] WSDC 3
Decision date:	16 February 2018
Parties:	DRAKE SOLICITORS NOMINEE CO LTD (Applicant) and VEVESI SOIA of Fagalii Tai and Siusega (Defendant).
Hearing date(s):
File number(s):
Jurisdiction:	CIVIL
Place of delivery:	Judge’s Chambers
Judge(s):	Judge Alalatoa Rosella Viane Papalii
On appeal from:
Order:	On the basis of the affidavits before me, facts deposed and being mindful that all three requirements in Rule 26 a), b) and c) of the Magistrate Rules 1971 must be fulfilled, I am not satisfied the writ of arrest sought should be granted. The Application for a writ of arrest dated 14/02/18 is therefore refused.
Representation:	Mrs K Drake - Kruse of Drake & Co for Applicant
Catchwords:	Writ of arrest – supposed absconding debtor
Words and phrases:
Legislation cited:	Magistrate Rules 1971 r.26 Constitution of the Independent State of Samoa
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

DRAKE SOLICITORS NOMINEE CO LTD an incorporated company having its registered office at Apia
Applicant

AND

VEVESI SOIA of Fagalii Tai and Siusega
Defendant

Representation:
Mrs K Drake-Kruse of Drake & Co for Applicant

Chambers: 16 February 2018

DECISION ON WRIT OF ARREST FOR ABSCONDING DEBTOR
Dated 16 February 2018

APPLICATION

1. On 13/02/18 I received in chambers an application for a writ of arrest of an absconding debtor (“the Debtor”) brought pursuant to R26 Magistrate Rules 1971 (Noting that in the application and all documents filed it says “District Court Rules”)
2. Upon perusing the documents and considering the law, I directed that proof be provided that the Debtor was likely to abscond the country. I also pointed out that the matters of facts deposed to in paragraphs 3, 4 and 6 of Seivaai Ioane’s affidavit sworn on 14/02/18 were basically hearsay and these facts ought to be substantiated.
3. On Friday 16/02/18, I received an affidavit by the same deponent sworn on 16/02/18 deposing at paragraph 2 that the Debtor had left for NZ under the quota system. No evidence was exhibited substantiating this. At 7 it is deposed that the Debtor is no longer a resident in Samoa. At 8 a writ of arrest is sought for fear of absconding.
4. A Memorandum of Counsel setting out inter alia Counsel’s understanding of the law was filed with the above affidavit.

LAW

5. As stated above, the application here is brought pursuant to R26 Magistrate Rules 1971. This provides as follows:

“26. Arrest of absconding debtors - (1) Whe any acny action in the Magistrates' Court for the recovery of any debt, damages, or other sum of money for the sum of $20 or upwards the plaintiff proves to the satisfaction of the Court at any time before final judgment that -

(a) He has a good cause of action against the defendant; and

(b) There is probable cause for believing that the defendant is about to leave Western Samoa and evade payment of such sum; and

(c)The absence of the defendant from Western Samoa will materially prejudice the plaintiff in the prosecution of his action, -

the Court may order the defendant to be arrested and imprisoned for a period not exceeding 3 months unless and until he sooner gives security to the satisfaction of the Court that he will not leave Western Samoa without the prior leave of the Court.

(2) Application for a writ of arrest under this rule shall be supported by affidavit and shall be made to the Magistrate.

DISCUSSION

6. Rule 26 is clear. The power to grant a writ of arrest to an absconding debtor is discretionary.
7. It is exercised only when the Applicant proves to the satisfaction of the Court the matters set out in a), b) and c) above. The use of the word “and” and not “or” at the end of a), b) and c) means that all three requirements must be proven by the Applicant to the satisfaction of the Court.
8. It is clear that a) is not at issue. Judgment by default was granted in favour of the Applicant (Plaintiff) on 13/04/16.
9. In regards to b), even after receiving the supplementary affidavit of Seivaai Ioane, I remain unsatisfied that this has been proven by the Applicant.
10. At most, the facts deposed to alleging that the Debtor is likely to abscond is unsubstantiated and basically hearsay.
11. There is an allegation of the Debtor absconding previously. The Applicant could have solved this problem by obtaining from the Samoa Immigration Office a record of the movements of the Debtor to render more veracity, credibility and weight to the allegation of probable absconding on the part of the Debtor.
12. An onward ticket from the airline agencies would have also substantiated the allegation of risk of flight.
13. There is an allegation that the Debtor was successful in the NZ Quota. There was no proof of this from NZ Immigration.
14. Counsel invites me to find there is probable cause the Debtor is about to leave and evade payment from Seivaai Ioane’s deposed statements as these are sworn affidavits.
15. With all due respect to counsel, in the absence of independent evidence substantiating the material facts put forth, I cannot in the interest of justice and fairness take Seivaai Ioane’s word as gospel.
16. The onus rests with the Applicant. It has not discharged that onus even after an opportunity was given to remedy the shortfall or deficiencies in the affidavit evidence.

ORDER

17. On the basis of the affidavit before me, facts deposed and being mindful that all three requirements in a), b) and c) must be fulfilled, I am not satisfied the writ of arrest sought should be granted.
18. The Application for a writ of arrest dated 14/02/18 is therefore refused.

OBSERVATION

19. I note that the District Court Act 1969 at section 104 previously dealt with writ of arrests for absconding debtors. That legislation is now repealed and obsolete.
20. I also note that the new District Court Act 2016 does not provide for this anymore so it is defunct.
21. The only remaining law in the District Court that sustains this action for a writ of arrest is R26 Magistrate Rules.^[1]
22. But for my part I doubt if it will serve any purpose given its repeal in the current District Court Act 2016. At most it is a trap to the unwary.
23. The rules of natural justice and rights of any person to be heard come to mind and should be observed in proceedings of this nature.
24. The right to freedom of personal liberty and movement guaranteed under the Constitution (Articles 6 & 13 (d)) are significant considerations that must also be taken into account in weighing whether this Rule should continue.
25. A writ of arrest effectively means a person’s right to liberty is at stake upon the execution of the order. Unless a security is deposited the alleged debtor is held in custody without being heard for up to three months.
26. I believe it is timely the new District Court Rules be put in place and this provision revisited. There is already a departure prohibition procedure which should suffice for these situations but an amendment may be required to reduce the sum from $7000 to cover for smaller debts.

JUDGE A R VIANE PAPALII

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^[1] But also note s46(m) District Court Act 2016 on the enforcement on an absconding debtor.