Samoa Trust Estates Corporation v Albacorp Investment Company Ltd [2002] WSSC 29 (15 May 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

SAMOA TRUST ESTATES CORPORATION
a corporation established under the Western Samoa Trust Estates Corporation Act 1977.
PLAINTIFF

AND:

ALBACORP INVESTMENT COMPANY LIMITED
a duly incorporated company having its registered office at Matautu.
DEFENDANT

Counsel: Mr R. Schuster for Plaintiff
Mr P. Fepuleai for Defendant

Date of Hearing: 19 November 2001
Date of Decision: 15 May 2002

DECISION OF VAAI J

The plaintiff and the defendant in March 1997 entered into a lease agreement whereby the defendant was to lease the plaintiff’s premises of approximately 2 acres at a monthly rent of $3,750.00. Both parties agreed that the lease was terminated on the 30th September 2000 and the defendant removed all its belongings from the leased premises except for 2 cargo-sized containers, a fishing boat and a trailer. It also padlocked the gate and kept the key until the 13th March 2001.

In these proceedings the plaintiff says the defendant should pay rent for the total period it kept the keys amounting to about 6 months and secondly the defendant should also pay for the cost of repairs to the premises as a result of damage caused by the defendant during the lease period.

Repairs

Costs of repairs are claimed under 6 different headings namely repairs for:

(i) The Engine shed
(ii) Lean-to to the engine shed
(iii) Toilet block
(iv) Main building
(v) Floor repairs to the main building
(vi) Cleaning the yard

The plaintiff has abandoned (correctly in my view) the claim for repairs under the headings of Toilet Block and Lean-to to the engine shed, and at the same the defendant has conceded that there were repairs, which were required to be carried out to the engine shed and to the main building. What is in dispute is the cost of repairs. In respect of the engine shed, what is really in dispute is the price of the roofing iron, which the defendant should pay since the roofing irons removed and taken by the defendants were old and rusty and a discount should therefore be allowed from the price of new roofing irons. Since the quantity and price of the materials required for repairs were not challenged by the defendant I therefore accept the evidence called by the defendant that it costs $2,423.20 to repair the engine shed. In my view there should be no discounting from the price of the new roofing irons required having considered the high manner in which these materials were removed from the premises and the period of time which elapsed before the defendant offered to carry out the repairs. In any event the removed materials were never returned nor was there any offer to return them to the plaintiff. Accordingly I allow the claim under this heading of $2,423.20.

In respect of the main building, the defendant again conceded that it is liable for the repairs claimed by the plaintiff but it also argued that there should be a discount from the price of the new roofing irons. For the reasons, which I have given earlier, I refuse any discount and I allow the plaintiff to recover the full amount of $2,833.00.

In respect of the yard the evidence is so unsatisfactory that I cannot on its preponderance accept the claim for repairs and it is accordingly dismissed.

Unpaid Rent

When the defendant terminated the lease effective from the 30th September 2000 it also requested the plaintiff for 2 weeks to remove all its equipments and materials from the premises. Since the defendant did not remove two cargo sized containers, a trailer and an alia fishing boat until the 13th March 2001 the plaintiff alleges that the defendant is liable for rent at $3,700 per month to the 13th March. Both parties concede that the lease was terminated in September 2000. I accept from the evidence that the two containers and the trailer occupied some insignificant area of the leased premises, which during the wet season was swampy. But I do not accept that it was impossible to remove the containers during the wet weather because in the end the containers were in fact removed while the part of the premises where they were stored was still swampy. In other words I do not accept the reasons given by the defendant for the delay in removing the containers and the trailer from the leased premises. I accept from the evidence that the alia fishing boat was removed from the leased premises before March 2001; it was probably removed in January 2001.

More significantly I find that the very small swampy area occupied by the containers and trailer and by the alia fishing boat did not prevent the plaintiff from re-entering the land back in October 2000; it did not in my view of the evidence hinder the plaintiff in any way whatsoever from doing anything it wanted to do with the land. The fact that the gate was locked with a padlock is of no significance; it could have been broken or forced opened. The plaintiff cannot say in the circumstances that it was kept out of possession; in fact the defendant has moved its operation out of the plaintiff’s premises with a total area of about two acres and left on the premises 3 items namely containers, trailer and fishing boat. Apart from those items the premises have been restored to the possession of the plaintiff. In my view therefore the plaintiff cannot be allowed to claim the rent for 6 months during which the containers and the trailer were left in the premises. In fact counsel for the plaintiff during his closing submissions conceded that the plaintiff is in fact seeking damages and rent payable is a factor to be considered when determining damages. Counsel for the defendant suggested $500 per month.

I have considered and rejected the reasons given by the defendant for the delay in removing the items from the leased premises; I take into consideration that the defendant padlocked the gate and took the keys for almost 6 months; but at the same time I accept that the plaintiff was not actively pursuing the removal of the defendant’s items, and I am not prepared to accept the evidence of the accountant for the plaintiff that there was another party interested but could not recall the name of the party interested in leasing the same premises.

In the circumstances I fix damages at $3,700 as equivalent to one month’s rent. I therefore give judgment for the plaintiff as follows:-

(a) Cost of Repairs = $5,256.20

(b) Damages = $3,700.00

(c) Each party to bear its own costs.

JUSTICE VAAI