Tofa Nauer Ltd v Luteru [1954] WSLawRp 2; [1950-1959] WSLR 25 (2 September 1954)

[1950-1959] WSLR 25

HIGH COURT OF WESTERN SAMOA

TOFA NAUER LIMITED

v.

FEPULEA'I LUTERU

High Court, Apia.
1954. 26, August; 2, September.
MARSACK C.J.

Contract - sale of goods - trade debt - nature of Samoa Trade Debts Ordinance 1925 - Finance Ordinance, 1953 section 5 - Application of 1925 Ordinance to outstanding debt - whether repeal operates retrospectively - Acts Interpretation Act 1924 (New Zealand) section 20.

This was an action against a Samoan trader for balance alleged to be owing for goods sold and delivered and moneys advanced by the plaintiff during the period of operation of the Samoa Trade Debts Ordinance 1925 which was repealed by the Finance Ordinance 1953 as from July 1st 1953. The formalities proscribed by section 3 of the Samoa Trade Debts Ordinance 1925 had not been complied with. Defendant submitted that the debt was a "trade debt" as defined by the Ordinance and was therefore not recoverable while the Ordinance remained in force and further that the repeal of the Ordinance could not operate retrospectively to confer any right of action which did not exist before the repeal.

Held: (1) The subject matter of the claim was a "trade debt" as defined by section 2 of the Samoa Trade Debts Ordinance 1925.

(2) The right to bring an action for debt against Samoans, which was taken away by the Samoa Trade Debts Ordinance 1925, was a positive and substantive right and not a mere matter of procedure.

(3) The repeal of the 1925 Ordinance effected by section 5 of the Finance Ordinance 1953 is not retrospective in its effect and does not operate to confer or revive any such right of action.

Sutrees v. Ellison (1829) 9 B. and C. 750; Hay v. Goodwin [1830] EngR 605; (1830) 6 Bing 576 referred to.

Colonial Sugar Refining Company v. Irving [1905] UKLawRpAC 29; (1905) 74 L.J.P.C. 77 applied.

Judgment for defendant.

Metcalfe, for plaintiff.
Phillips, for defendant.

Cur. adv. vult.

MARSACK C.J.: This is a claim by a Samoan limited liability company which carries on the business of a trader at Faleasi'u, against a Samoan trader carrying on business at Nofoalii, for £561.16.9 the balance said to be owing by the defendant to the plaintiff company in respect of moneys advanced and goods supplied to the defendant by the plaintiff.

A preliminary defence based on a point of law has been raised by the defendant and this has been argued before the Court. It is founded on the provisions of the Samoa Trade Debts Ordinance 1925 sections 2 and 3 of which ad as follows:

"2. In this Ordinance "Trade Debt"' means a debt arising out of a contract to pay for goods sold, or to repay money lent to a Samoan by a person carrying on in Samoa the business of a trader in the ordinary course of such business. "Samoan" has the same meaning as in section 3 of the Samoa Act 1921.

(a) Such trade debt was incurred before the coming into operation of this Ordinance; or

(b) A note or memorandum in writing of the contract is made and signed by the party to be charged and the signature of such party is witnessed by the Secretary of Samoan Affairs or by the Resident Commissioner for Savai'i."

This Ordinance was repealed by section 5 of the Finance Ordinance 1953 which reads as follows:

"5. (1) The Trade Debts Ordinance 1925 is hereby repealed.

(2) This section shall come into force on a date to be appointed by the High Commissioner for the repeal of the Trade Debts Ordinance 1925 by notice published in the Western Samoa Gazette."

This section by notice duly published came into force on the 1st July 1953.

The financial transactions between the plaintiff company and the defendant began in August 1952 and terminated on the 28th February 1953.

The defendant makes two submissions:

(1) that the debt which is the subject of the plaintiff's claim is a "trade debt" as defined in section 2 of the Samoa Trade Debts Ordinance 1925; and

(2) that section 5 of the Finance Ordinance 1953 was not retrospective in effect, and confers upon a creditor no right of action which he did not possess at the time the debt was incurred.

1. As to whether the debt in question is a "trade debt", Mr. Metcalfe contends that though the debt arose out of a contract to pay for goods sold, or to repay moneys lent to a Samoan by a person carrying on in Samoa the business of a trader, such a contract was not made "in the ordinary course of the business" of the trader. He submits that section 2 covers only ordinary retail business, and does not include a selling by wholesale to another trader and advancing money to enable that other trader to carry on. I am unable to accept that contention. If the section had been intended to refer only to sales by retail it would have, been easy to say so. It is common knowledge that many trading institutions in Western Samoa sell goods on a wholesale basis, and also give credit or advance moneys upon the undertaking of the other party to supply cocoa and copra towards the extinction of the debt. Such sales and advances are undoubtedly, in my opinion, made in the ordinary course of the trader's business. The transactions which are detailed in the Statement of Claim seen to me to come very clearly within the definition laid down in section 2 of the Ordinance.

2. At the time the debt was incurred, and in fact at the time of all transactions between the plaintiff and the defendant up to the date of termination in February 1953, it is clear that the plaintiff had no right to sue in this Court in respect of the debt. He had not taken the steps provided for in section 3(b) of the Ordinance to protect himself in respect of a right to take action. He can obtain no such right now unless the effect of section 5 of the Finance Ordinance 1953 is held to be retrospective. It will be noted that section 5 makes no reference to antecedent transactions and it is a mere repeal simpliciter.

The old rule was that when an Act was repealed without saving clauses, the effect of the repeal was to expunge the original Act as though it had never existed, except as to transactions past and closed. This is clear from the judgments of Lord Tenterden in Surtees v. Ellison (1829) 9 B. and C. 750 and of Tindal C.J. in Hay v. Goodwin (1830) 6 Bings. 576 followed.

Qualifications to this rule have, however, been introduced by various Statutes, so that the learned author of Maxwell on the Interpretation of Statutes is now enabled to say (9th Edition page 222)

"No rule of construction is more firmly established than this: that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only."

The relevant statute in force in Western Samoa is the Acts Interpretation Act 1924 (New Zealand). Section 20 deals with general provisions as to repeals. Reference was made in the course of the argument to the provisions of subsection (e), but in my view the matter may be determined without great difficulty under section 20(f), which reads:

"(f) The repeal of an Act shall not revive anything not in force or existing at the time when the repeal takes effect."

The word "anything" in this subsection would include a "right": Craies on Statute Law, 5th Edition page 323 note (c). As the learned author points out, it certainly requires very clear and unmistakable language in the subsequent Act to revive or recreate an expired right. Such clear and unmistakable language is not present in section 5 of the Finance Ordinance 1953.

Mr Metcalfe, however, contends that the power to bring an action for debt in a specific Court is not a right, but only the method of enforcing. It is thus in his submission a mere matter of procedure; and he relies on the principle stated in Maxwell 9th Edition page 233:

"The general principle, however, seems to be that alterations in procedure are retrospective unless there be some good reason against it."

In my opinion, the power to bring an action in this Court is a substantive right and cannot be considered merely as a method of enforcing a right. In Colonial Sugar Refining Company v. Irving [1905] UKLawRpAC 29; (1905) 74 L.J.P.C. 77, the Privy Council held that a right of appeal to a higher tribunal was a positive right and not a mere matter of procedure. Per Lord Macnaghten at page 79:

"And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that affect is manifested."

I find it hard to accept the contention that whereas a right of appeal from the judgment of one tribunal to another is a substantive right and not a mere matter of procedure, the right of recourse to the original tribunal in the first instance is something of far lower standing and in fact only a matter of procedure. I therefore find myself compelled to hold that the right to bring an action for debt against Samoans in this Court, which was taken away by the Samoa Trade Debts Ordinance 1925, was a positive and substantive right; that it could not be considered as a mere matter of procedure; that it would be included in the term "anything not in force or existing at the time when the repeal takes effect"; and would therefore not be revived by the simple repeal of the Samoa Trade Debts Ordinance by section 5 of the Finance Ordinance 1953.

Mr Metcalfe strongly urges that the effect of this decision would cause substantial injustice, in that it would enable a number of Samoans to escape the legal consequences of their falling into debt. But it must be remembered that if there is such injustice, it was created by the Samoa Trade Debts Ordinance 1925; that the same Ordinance provides the traders with satisfactory safeguards under section 3(b); that the provisions of the Trade Debts Ordinance have been thoroughly understood during the 28 years it remained in force; and that if the plaintiff company had wished to rely in its transactions with the defendant, on the right of recourse to the Courts, the company could have acquired that right by having the contract signed in an the presence of the Secretary of Samoan Affairs.

I hold, therefore, that section 5 of the Finance Ordinance 1953 is not retrospective in its effect and does not enable action in the High Court to be taken against Samoans in respect of trade debts incurred before the repealing Ordinance came into force.

Accordingly the plaintiff's claim cannot succeed. There will be judgment for the defendant with costs £10.10.0