Bank of South Pacific (Samoa) v Lalanavanua [2022] WSDC 6 (13 May 2022)

IN THE DISTRICT COURT OF SAMOA
BSP vs Lalanavanua [2022] WSDC 6 (13 May 2022)

Case name:	BSP vs Lalanavanua
Citation:	[2022] WSDC 6 (13 May 2022)
Decision date:	13 May 2022
Parties:	BANK OF SOUTH PACIFIC (SAMOA) (Applicant) and LAVINIA LALANAVANUA, female of Vaivase-uta (Respondent)
Hearing date(s):	13 May 2022
File number(s):
Jurisdiction:	CIVIL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Alalatoa Rosella Viane Papalii
On appeal from:
Order:	The departure prohibition order dated 18 March 2022 issued by the deputy registrar was granted in error and without any legal authority (ultra vires). It is therefore void and null and revoked immediately (forthwith). The executive arm of MJCA must take note that the court registrar and deputy registrar by operation of s.3(2)(b) of the Immigration Act 2020 do not have any statutory authority to issue a departure prohibition order. All departure prohibition applications must be submitted to a judge of either the Supreme or District court, as the case may be, for determination.
Representation:	Plaintiff self-represented. Respondent self-represented.
Catchwords:	Departure prohibition order (DPO) – application to revoke DPO – validity of DPO.
Words and phrases:	“Powers of Registrar & Deputy Registrar to issue DPO.”
Legislation cited:	Act Interpretations Act 2015, s. 7(3)(a); Immigration Act 2020, ss. 3(2)(a); 3(2)(b); 24(2); 25(4); Immigration Act 2004, ss. 20; 20(1); 21; 25.
Cases cited:	Li v Attorney General [2018] WSSC 137 (8 February 2018); Sussex Peerage Case [1844] EngR 822; (1844), 11 Cl. & Fin. 85, 8 E.R. 1034.
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

BANK OF THE SOUTH PACIFIC (SAMOA) FORMERLY KNOWN AS WESTPAC BANK SAMOA

Applicant

A N D:

LAVINIA LALANAVANU female of Vaivase-uta

Respondent

Counsel:
Plaintiff: self represented
Respondent: self represented

Ruling date: 13 May 2022

RULING ON REVOKING DEPARTURE PROHIBITION ORDER

Brief Background

1. The Plaintiff lodged with the court registry on 18 March 2022 an Ex-parte Notice of Motion (“The Motion”) for a departure prohibition order against the Respondent accompanied by a Statement of Claim and Affidavit in support.
2. The motion was not brought to the attention of a District Court Judge for determination rather the Deputy Registrar Ms Faapoi (“Deputy Registrar”) of the Ministry of Justice and Courts Administration (“MJCA”) dealt with it and she granted the departure prohibition order dated 18 March 2022 (“DPO”). The DPO effectively prohibits the Respondent from leaving Samoa for 6 months from 17 March 2022 to 17 September 2022.
3. On 12 May 2022, the Plaintiff filed with the court registry an application seeking to revoke the DPO (“Application to Revoke”) and it was set down for mention the very next day, 13 May 2022. It came before me for first calling on 13 May 2022 where I noted with concern a number of flaws including:
   • (a) The application was filed under the repealed Immigration Act 2004;
   • (b) The issue of whether the court registrar and/or deputy registrar is empowered by statute to issue a DPO; and
   • (c) Ultimately the validity of the DPO.

Application filed under the Repealed Legislation

4. For a) the Plaintiff relied on s25 of the Immigration Act 2004 (“Repealed Act”). This legislation however is repealed and was replaced by the Immigration Act 2020 (“Immigration Act”) which came into effect on 1 March 2021. So at the time of filing on 18/03/22, it was the Immigration Act which applied not the repealed legislation.
5. The correct statutory provisions governing DPO applications under the Immigration Act are sections 20 (1) and 21. Section 20 (1) provides that:
   • (1) A person is prohibited from departing or attempting to depart Samoa if he or she is subject to the following:
   • (a) a Court order;
   • (b) the Attorney General’s order;
   • (c) unless consented to by the official assignee, a declared bankrupt under the Bankruptcy Act 1908.
6. On its plain meaning, section 20 allows for three types of DPO. First, by order of the court; second, an order of the Attorney General and third, an order under the Bankruptcy Act 1908.
7. Section 21 provides amongst other things that:
   • 21. Court departure prohibition order:
   • (1) The Court order may be issued for the following grounds:
   • (a) the person has a debt in excess of the amount prescribed in a Notice by the Minister that the person is unlikely to pay if allowed to leave Samoa; or
   • (b) the person is a party or a witness in Court proceedings which renders the person leaving Samoa, as contrary to the interests of justice; or
   • (c) the person is on bail.
   • (2) Where the Court considers it in the interests of justice, the Court may make an order under this section without notice to the person that is subject to the order.
8. Apart from the incorrect legislative scheme, the motion for DPO on its face do not have some merit. A practical approach to rectify the defects in the DPO application would have been an amendment to reflect the correct legislative scheme. However, the error was not picked up. Perhaps if it was given to a judge (as it should) to consider, it might have been.
9. But then again it is not the job of a judge or court registrar/ deputy registrar to check that the Plaintiff cites the correct law at the time of filing. This is solely the Plaintiff’s responsibility. As a commercial banking institution it should educate its staff of current legislative developments so it is kept abreast of the law to avoid filing court proceedings based on outdated templates and wrong law. Better still instruct a lawyer to act rather than filing documents without seeking advice. The court will not condone errors of this nature especially since it is avoidable. But if it recurs, then documents should be rejected at the counter. The Plaintiff Bank is warned accordingly. But this is not the only problem.

Registrar and Deputy Registrar have no power to issue a DPO

10. It is crucial to draw the attention of the court registrar and deputy registrars of MJCA and all concerned to section 3 (2) (a) and (b) of the Immigration Act 2020 which provides:
    • 3. Application of this Act:
    • ...
    • (2) Despite any other law:
    • (a) this Act applies to any act or omission or event which occurs in Samoa or any other place; and
    • (b) the Court of Appeal, the Supreme Court and the District Court have jurisdiction to hear and determine any matter for which this Act provides that Court with jurisdiction irrespective of whether any act or omission or event occurs in Samoa or any other place.
11. Subsection (4) is similarly important as it provides that “the Court’s power to issue an order under section (3) includes the power to extend, revoke or amend the order.” There is however a stark distinction between the current section 3(2)(b) and the repealed enactment specifically sections 24(2) and 25(4) which convenience is recited below:
    • 24. Order prohibiting departure from Samoa –
    • (2) For the purposes of this Part, "Court" means the Court of Appeal, the Supreme Court, the District Court, and any Judge of the Court of Appeal, the Supreme Court and the District Court and any Registrar or Assistant Registrar of the Supreme Court.”
    • 25. Court Departure Prohibition Order –
    • ...
    • (4) Where a decision is made by a Judge of the District Court or the Registrar or an Assistant Registrar of the Supreme Court under subsection (1), any interested party may appeal to a Judge of the Supreme Court against such decision and the Judge may make such order concerning the appeal as the Judge determines.
12. The difference in the two legislative schemes is critical and to understand this better, it is important to consider Parliament’s intention envisioned in s3(2)(b) of the Immigration Act. The plain meaning rule in section 7(3)(a) of the Act Interpretations Act 2015 as Tuala- Warren J observed in Li v Attorney General[1] originated in a passage from the judgment of Lord Tindal in the Sussex Peerage^[2] where he wrote:
    • “If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver. But if any doubt arises from the terms employed by the legislature, it has always been held a safe means of collecting the intention, to call in aid the ground and cause of making the statute, and to have recourse to the preamble...and “the mischiefs which [the makers of the Act] intended to redress.”
13. Section 7 Act Interpretation Act expounds the purposive principles to interpreting statutes. It states:
    • 7. Principles of interpretation –
    • (1) An Act is considered as speaking from time to time, and if a matter or thing is expressed in the present tense, the Act applies to the circumstances as they arise, so that effect may be given to the Act according to its spirit, true intent, and meaning.
    • (2) An Act must be interpreted in such manner as best corresponds to the intention of Parliament.
    • (3) The intention of Parliament is to be derived from the words of the Act, having regard to:
    • (a) the plain meaning of ordinary words; and
    • (b) the technical meaning of technical words; and
    • (c) the whole of the Act and the specific context in which the words appear; and
    • (d) headings and any limitation or expansion of the meaning of words implied by them; and
    • (e) grammar, rules of language, conventions of legislative drafting and punctuation.
14. Applying the purposive approach, section (3)(2)(b) of the current legislative regime are precise and unambiguous. It excludes reference to the court registrar or an assistant registrar as having discretionary power to grant a DPO. The explicit reference in section 3 to the three courts with jurisdiction to hear proceedings brought under the Immigration Act means jurisdiction to issue DPO is confined to those courts only. In my view this was placed in the enactment as a safety valve. The exclusion of the court registrar and deputy registrar is deliberate and no doubt with good reasons. Had Parliament intended to empower them to issue a DPO as it did with the repealed legislation, it would have expressly said so. But it did not.

Was the DPO Valid?

15. Was the DPO validly issued? The simple answer is, it was not. Not only was it issued under a repealed legislation but the deputy registrar did not have any statutory authority to grant it. As the law now stands, the court registrar and deputy registrars no longer have any legal authority to issue a DPO as previously allowed under the repealed legislation. There, the granting of the DPO by the registrar in this instance, was unlawful, ultra-vires or without legal authority.
16. But I do not believe for a moment that the deputy registrar involved here deliberately acted outside her legal boundaries. There is certainly nothing to suggest bias or that she acted in bad faith, or out of malice or in the absence of reasonable grounds. She did not have any of those states of mind. Rather it was a genuine mistake or error on her part, that the repealed legislation still applied. It is not her fault however, that she held the belief as she is not a lawyer. As mentioned above, the onus of proof for this type of application is on the Plaintiff bank who should cite the correct statutory enactment relied upon. It is most certainly unacceptable to place the deputy registrar in an unfair position such as here.
17. But this incident should be a learning curb for the executive and administrative arm of MJCA as it cannot afford to make mistakes of this nature in the future. Perhaps this also presents an opportune time for the executive of MJCA to prioritise, amongst other things, continuing legal education and training for deputy registrars and key staff members on new legislative developments so they may exercise their duties within the confines of their statutory functions and powers. This would go a long way in avoiding a recurrence of unfortunate incidents like this which may be potentially costly on the Ministry, if a claim is brought by those affected. There should be zero tolerance for complacency and ignorance of the law within the Ministry of Justice and Courts Administration.
18. It must be borne in mind that a DPO by its very nature, imposes significant restrictions on the rights of those subject to it in that it basically deprives them of their freedom to travel outside of Samoa. So it impacts on the Respondent’s liberty and freedom of movement and should not be taken lightly. A critical phase in granting of a DPO is the process of determining whether there are ‘reasonable grounds’ upon which a DPO ought to be granted. To meet the test, material facts must be pleaded in the Statement of Claim and evidence of imminent travel, proof of the debt (if relied upon) and others must be exhibited to supporting affidavit(s) to substantiate the pleadings. For obvious reasons, a judge is the best placed to weigh the merits of an application and evidence adduced.
19. Subsection (4) of s3 provides that where a court as in the (Court of Appeal, Supreme Court or District Court) considers it in the interest of justice, it may make a DPO under s21 of the Immigration Act without notice on the Respondent. However, the fact of the matter is, in practice, this type of application is normally filed ex-parte or without notice on the respondent who ends up not having a say unless the matter is called in court. So we are looking at competing interests which includes a person being withheld from leaving the country on the Plaintiff’s without notice application and weighing this against the constitutional right of a person to freedom of movement as well as principles of natural justice, or the right to be heard. Hence why it is so prudent that a judge deals with a DPO application as envisaged by Parliament in passing s3(2)(b) of the Immigration Act.

ORDERS

(a) The departure prohibition order dated 18 March 2022 issued by the deputy registrar was granted in error and without any legal authority (ultra vires). It is therefore void and null and revoked immediately (forthwith)
(b) The executive arm of MJCA must take note that the court registrar and deputy registrar by operation of s3(2)(b) of the Immigration Act 2020 do not have any statutory authority to issue a departure prohibition order.
(c) All departure prohibition applications must be submitted to a judge of either the Supreme or District court, as the case may be, for determination.

JUDGE A R VIANE PAPALII

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[1] Li v Attorney General [2018] WSSC 137 (8 February 2018).

^[2] Sussex Peerage³ Case [1844] EngR 822; (1844), 11 Cl. & Fin. 85, 8 E.R. 1034.