IN THE SUPREME COURT OF SAMOA
HELD AT APIA

CP 187/99

IN THE MATTER

IETI TUPUFIA
of Iva, Savaii.
Plaintiff

AND:

IN THE MATTER

MALAE ISUMU
of Vailele near Apia.
Defendant

Counsel: M Tuatagaloa for plaintiff
HJ Schuster for defendant

Hearing: 13 March 2001
Judgment: 19 March 2001

JUDGMENT OF SAPOLU CJ

In these proceedings, the Court is concerned with an action by the plaintiff for the value of his four wheel drive pick up vehicle which was exchanged with the defendant for his leasehold of land at Vailele but the leasehold was never assigned to the plaintiff.  In other words the plaintiff’s action is in contract for the value of his vehicle that was exchanged for a consideration that totally failed.  The plaintiff is in the same action also claiming general damages of $2,500.
 
The evidence given by and for the plaintiff is quite conflicting with the evidence given by and for the defendant.  Where the evidence conflict, particularly in relation to the exchange that took place, I have decided to accept the evidence given by and for the plaintiff.

According to the plaintiff’s evidence, he approached the defendant at his home at Vailele sometime in 1993, in the company of his sister in law, and offered to exchange his taxi for the defendant's land at Vailele. The land is a quarter acre section. He did not know at the time the land was a leasehold; he thought it was a freehold. The defendant replied he wanted a pick up vehicle. The plaintiff then returned to his village of Iva in Savaii and brought his Hilux pick up vehicle. However, the defendant wanted a four wheel drive pick up vehicle for use for his plantation. So the plaintiff returned to Savaii again and came back with his four wheel drive pick up vehicle. At that time, the plaintiff was residing with his wife in American Samoa and the four wheel drive pick up vehicle was a 1983 model he had purchased in American Samoa and shipped to Savaii.

When the plaintiff came with this vehicle, he met with the defendant at the Observatory mechanical workshop at Vaitele. The defendant asked him to go and view the land. They then drove to the NPF building before they went to view the land at Vailele. After viewing the land, they drove back to Apia and parked the vehicle at the NPF car park. At no time, according to the plaintiff, did the defendant complain that the vehicle was defective or that he did not want it. The plaintiff and the defendant then went up the NPF building to see a lawyer. At that time, the defendant was working for the Accident Compensation Board which was then housed in the NPF building. The law firm they went to was Kruse Vaai and Barlow, now carrying a different name because of a change in the composition of its partners. They saw a lady who works for the law firm and the plaintiff paid a deposit of $100 for legal costs. The receipt given to the plaintiff shows the word “lease”. This lady at Kruse Vaai and Barlow then told the plaintiff that the defendant would have to go and obtain the signatures of the Alii and Faipule of Vailele. It appears from the plaintiff’s evidence that it was at the NPF building that he handed over the keys to the vehicle and its yellow ownership papers to the defendant. Thus the defendant was left with the possession of the vehicle and its ownership papers.

About four months later when the plaintiff came again from American Samoa, he went to see the defendant. He was told the documents for the land were still unsigned. The defendant, according to the plaintiff, did not at that time complain that the vehicle was defective or that he wanted to reject it. Then the plaintiff continued to follow up by contacting the defendant about two or three times a year, but he was given the same reply, the documents for the land had still to be signed. This situation continued until it appeared to the plaintiff the defendant was evading him. He then sought the assistance of a solicitor. This was in 1999.

According to the evidence of Iuni Matau, who is a mechanic and was one of the witnesses called for the plaintiff, he repaired the plaintiff’s four wheel drive pick up vehicle. He also used to service it. He said the body and engine of the vehicle were in good condition even though it was a second-hand vehicle. He estimated the value of the vehicle at $15,000.

He said that on the day the plaintiff came to deliver the vehicle to the defendant, he came with the plaintiff, Fitu, Tolo and a police officer in the vehicle from the wharf at Mulifanua. He was driving the vehicle. When they came to Vaitele, Fitu, Tolo and the police officer were dropped off and then he drove inland of Vaitele with the plaintiff to a mechanical workshop where they waited for the defendant after the plaintiff called the defendant on the phone. When the defendant arrived, he talked with the plaintiff. They then drove to Apia to the NPF building where the defendant had his office. From there, they drove to Vailele to view the land. They then drove back to the NPF building where the vehicle was parked at the NPF carpark.

The witness Fitu Wong Soon, who was also one of the witnesses called for the plaintiff, is a carpenter and builder and comes from the same village in Savaii as the plaintiff and is a distant relative of the plaintiff. He said he used to travel in the plaintiff’s four wheel drive pick up vehicle which was used by the plaintiff’s family. The vehicle was in good condition. He did not see any serious dents to the body of the vehicle or any wardrobe locks used to lock the doors of the vehicle. The vehicle was originally coloured blue but was subsequently repainted grey. He denied the grey paint was a primer. He also said all the windows were in good condition. He estimated the value of the vehicle at $14,000 - $15,000. He also said he used to buy second-hand vehicles.

According to this witness, he came in the same vehicle on the day in question from the Mulifanua wharf. He can only recall for certain that the other two people who came in the vehicle were the plaintiff and the witness Iuni Mata’u. When they came to Vaitele he was dropped off and the plaintiff and Iuni Mata’u drove inland.

The witness Tolo Lui Ponifasio, who was also called as a witness for the plaintiff, said that he works for the Observatory mechanical workshop at Vaitele and has been working there for ten years. He said he came in the plaintiff’s vehicle from the Mulifanua wharf on the day in question and he was dropped off at the workshop at Vaitele. He could not recall the month or year that happened. He also could not recall what happened at the workshop except to say the defendant came to the workshop. I do not feel confident about the evidence of this witness and I put it aside.

Now the defendant’s evidence, even though it is consistent with the evidence given by and for the plaintiff in a few parts, is overwhelmingly in conflict with the defendant’s evidence in most parts. In the first place, the defendant denied that he ever went to the Observatory mechanical workshop at Vaitele to meet with the plaintiff even though he said he had worked for the Observatory for one and half years and is aware of its mechanical workshop at Vaitele. He also denied going with the plaintiff to point out and view his land at Vailele as testified by the plaintiff and the witness Iuni Matau. He also denied having seen any of the witnesses who were called for the plaintiff. He also denied that the plaintiff gave him the ownership papers for the four wheel drive pick-up vehicle as the plaintiff had testified.

The only part of the defendant’s evidence which bears consistency with that of the plaintiff is in relation to the visits made by the plaintiff to the defendant’s home at Vailele to exchange one of his vehicles for the defendant’s land and the defendant wanted a vehicle for his plantation. The consistency between the plaintiff’s and the defendant’s evidence ends at that point. According to the defendant, the plaintiff and his sister in law came to his home at Vailele in a taxi on a Sunday sometime in 1993. The plaintiff offered to exchange his taxi for the defendant’s land at Vailele. He said nice taxi but he told him he wanted a pick up vehicle for his plantation. About three weeks later the plaintiff brought a pick up vehicle. But he wanted a good four wheel drive pick up vehicle to which the plaintiff replied he had such a vehicle in Savaii. Then about four weeks later, the plaintiff came back with a four wheel drive pick up vehicle to the NPF building where the office of the Accident Compensation Board for which the defendant works was then located.

The defendant said the plaintiff came up to his office and told him he had come with the vehicle. When they came out of the office he asked the plaintiff where is the vehicle. The plaintiff pointed at the pick up vehicle parked on the side of what is now the Chan Mow building facing the NPF building. He said to the plaintiff he wanted to test drive the vehicle to the airport, but the plaintiff replied his flight to American Samoa was leaving pretty soon. When he asked the plaintiff to let him drive him to the airport, the plaintiff replied he had a taxi to take him to the airport.

When he knocked off work that day, the defendant said he went to the vehicle with one of his fellow employees named Mulifusi Togafau. He found the driver’s door would not open. He had to enter the vehicle through the passenger’s door which was locked with a wardrobe lock. The tray of the vehicle was tied with wires and there were holes on the floor. When he tried to start the vehicle, it would not start. So his fellow employee Mulifusi Togafau had to push the vehicle to make it start. And when the vehicle started, the hand and foot brakes did not function properly. He also said the “faga uila”, which I take to mean the generator of the vehicle, was defective and the battery was also defective. Mulifusi Togafau said when the vehicle started when he pushed it, it went “feto’i”. One wonders how this vehicle was able to get from Savaii to Apia if its condition as described by the defendant and Mulifusi Togafau is true. In spite of these defects, the defendant said he used the vehicle for a week to come to work.

Then according to the defendant, the plaintiff came to see him again four months after the vehicle was given to him. The plaintiff asked for the documents for the land but he refused as he told the plaintiff he did not want the vehicle because it was defective and not in a good running condition. In reply the plaintiff said his wife had a good pick up vehicle in American Samoa which he could get for him but he needed the documents for the land to show his wife. Again the defendant refused. But when the plaintiff insisted, he went and brought the documents to the office of Kruse Vaai and Barlow. It is not clear what these documents were as the land was WSTEC land leased to the Ali’i and Faipule of Vailele to be distributed on a lease basis to the families of Vailele. After the defendant got the documents, the plaintiff went inside the office of Kruse Vaai and Barlow. When he came out he told the defendant he had paid $100. The plaintiff also had a paper which he gave the defendant for the signatures of the Alii and Faipule of Vailele. It would appear from the evidence, this was the paper the defendant said he later tore up as the plaintiff had not transferred ownership of the vehicle to him. The defendant said, the plaintiff also gave him a phone number in American Samoa with which to contact him if the defendant needed any part for the vehicle. However, it was a wrong phone number.

The next time, according to the defendant, that the plaintiff came to see him was more than a year later. This is also in conflict with the plaintiff’s evidence that he contacted the defendant two or three times a year about the documents for the land. However, at this meeting, more than a year later, the defendant said he told the plaintiff again to take his vehicle back if he could not bring his wife’s vehicle in American Samoa. The plaintiff’s response was to fix the vehicle and give the plaintiff the bill. Thus the defendant gave the vehicle to a motor mechanic even though his own sons are also motor mechanics. The reason for this, according to the defendant, was that his sons did not want the plaintiff’s vehicle. This was in 1995. The defendant then obtained a loan of $400 to purchase parts to fix the vehicle. However, he said the mechanic wanted more money for the costs of labour. As the defendant had no more money, the vehicle was left standing at the mechanic’s workshop. It is not clear what was done with the parts which were purchased with the loan. It is also not clear why the vehicle was left standing at the mechanic’s workshop instead of being taken back to the defendants home for safety until there was money to pay for the costs of labour. I also find it difficult to accept that the defendant’s sons who were mechanics would continue to refuse to fix the vehicle after the defendant purchased the necessary materials with a personal loan, and the other mechanic would do nothing unless he was paid costs for labour. Then in 1996, when the defendant returned from a trip to New Zealand, the mechanic who was given the vehicle had left for New Zealand and the vehicle had disappeared. Its whereabouts are still unknown. So when the plaintiff saw the defendant again, the defendant told him the vehicle had disappeared. The plaintiff then sought the assistance of a solicitor.

The evidence given by the witness Mulifusi Togafau, the defendant’s fellow employees who was called for the defendant, relates to his pushing the vehicle to get it started on the day the plaintiff brought the vehicle to the defendant and parked it on the side facing the NPF building of what is now the Chan Mow building. He said he pushed the vehicle with the help of a boy who passed by. His description of the vehicle and how it was pushed to make it start is substantially the same as that of the defendant. He also said during cross-examination that he resides at Vailele, the same village as the defendant, as he owns freehold land there, but at present he is living at the adjacent village of Fagali’i for Church reasons.

Having considered the evidence, I have decided to accept the evidence given by the plaintiff. I have also decided to accept the evidence given by the witnesses Iuni Matau and Fitu Wong Soon that they came in the plaintiff’s vehicle from the Mulifanua wharf to Vaitele which is quite a long distance. I have also decided to accept the evidence given by the witness Iuni Matau that he drove the plaintiff and the defendant to view the defendant’s land. I do not accept the defendant’s evidence that he never went with the plaintiff to view his land. I find it more believable that the plaintiff would like to view the land for which his vehicle would be exchanged before he parted with his vehicle which was not a cheap asset.

Having accepted the evidence for the plaintiff in that regard, the distance from Apia to Vailele and back is no short distance. There is no evidence the plaintiff’s vehicle in which they drove to view the land had any mechanical fault or failure when they drove to view the land and back to Apia, just as there is no evidence the vehicle had any mechanical failure when it travelled from the Mulifanua wharf to Vaitele. Furthermore, if the vehicle was in such a condition as the defendant described, namely, a defective generator, defective hand and foot brakes, and a driver’s door that would not open, I am surprised the defendant drove to work in the vehicle for a week and then back home at Vailele, given the heavy traffic in the mornings before work and in the afternoons after work. There is also no evidence the vehicle again had to be pushed to get it started for the defendant to come to work or to return home after work, assuming the generator of the vehicle was defective as the defendant had testified.

I have also found it difficult to accept the defendant would give the vehicle to a mechanic, who has now left for New Zealand, to fix when his own sons are mechanics. This is more so when the defendant had obtained a loan with which he purchased materials required by the mechanic to fix the vehicle and then the mechanic asked for more money to pay for labour but the defendant said he had no more money. The reason given by the defendant for his sons refusing to fix the vehicle even after the defendant had purchased the necessary materials, because they did not like the vehicle, is somewhat difficult to believe.

Overall, I do not find the defendant’s evidence as to the condition of the vehicle plausible. I must also put aside the evidence of the defendant’s fellow employee, Mulifusi Togafau, as to the condition of the vehicle.

I also do not think the plaintiff tried to deceive or did deceive the defendant with a four wheel drive pick up vehicle that was mechanically defective, as the effect of the defendant’s evidence may appear to suggest. The plaintiff first offered to exchange his taxi with which he drove with his sister in law to see the defendant for the defendant’s land. When the defendant did not want the taxi, but asked for a pick up vehicle, the plaintiff went back to Savaii and brought his Hilux pick up vehicle. It was only when the defendant did not want that vehicle too, but a four wheel drive pick up vehicle for his plantation, that the plaintiff returned to Savaii again and brought his four wheel drive pick up vehicle. It thus appears the plaintiff was all along trying to comply with the wishes of the defendant. I do not see in this the plaintiff trying to defraud the defendant with a defective vehicle. And I prefer the evidence given by and for the plaintiff which shows that the vehicle given to the defendant was in good condition as opposed to the evidence given by and for the defendant that the vehicle was defective.

Having so decided, it follows that I do not accept the defendant’s evidence that he repeatedly told the plaintiff, when he met with the plaintiff several times, to take back his vehicle as it was defective. In view of my finding of fact that the vehicle was in good condition, that could not have happened. It cannot be true the defendant tried to reject the vehicle when it was in good condition. This is consistent with the plaintiff’s evidence that the defendant never complained to him the vehicle was defective or that he did not want it.

It also follows that I do not accept the defendant’s evidence, that the plaintiff agreed with him, that he would bring over his wife’s pick up vehicle in American Samoa to exchange for the defendant’s land, and that the reason for the delay in having the documents for the transfer of the land signed by the Alii and Faipule of Vailele was due to the plaintiff’s failure to bring over his wife’s vehicle. Given that the vehicle delivered to the defendant was in good condition. I do not accept the plaintiff made an offer of his wife’s vehicle to the defendant because the four wheel drive pick up vehicle was defective. It was not necessary for the plaintiff to make such an offer. And the plaintiff gave no evidence he made such an offer to the defendant. I therefore also reject the defendant’s evidence regarding the reason he gives for his not having the documents for the land signed by the Alii and Faipule of Vailele.

All in all then, I find for the plaintiff. Judgment is entered for the plaintiff in the sum of $15,000 being the value of his vehicle given to the defendant but is now lost plus general damages of $1,800.

Costs are also awarded to the plaintiff to be fixed by the Registrar as per scale.

CHIEF JUSTICE
 
Solicitors:
Richard’s Law Firm for the plaintiff
Fepuleai & Schuster Law Firm for the defendant