Barnes v Strickland Brothers Ltd [2002] WSSC 45 (24 April 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER: SAISAMOA BARNES
of Vaitele-fou, Accountant
PLAINTIFF

AND:

STRICKLAND BROTHERS LTD
a duly incorporated company having its principal place of business at Pesega.
DEFENDANT

Counsel: Mr FPF Meredith for the plaintiff
Ms K Sapolu for the defendant

Date of Hearing: 17 April 2002
Date of Judgment: 24 April 2002

JUDGMENT OF VAAI J

At the time the statement of claim dated the 12^th November 2001 was filed the plaintiff was residing at Vaitele-fou where she has built a house on a ¼ acre section. After several adjournments the matter was set down for hearing on the 27^th March 2002; but on that date counsel for the plaintiff sought an adjournment on the grounds that the plaintiff was unable to attend due to work commitments in American Samoa. Counsel for the defendant then intimated to the court that she would be filing an application for security for costs since the plaintiff now resides and work in American Samoa. The other grounds relied upon by the defendant in its application for security for costs are:

(a) that the defendant strongly denies the plaintiff’s claim;

(b) that there is no reciprocal enforcement of Judgments between Samoa and American Samoa so that if any order for costs is made against the plaintiff the defendant would be unable to enforce it in American Samoa.

The plaintiff opposes the application on the ground that the plaintiff is still a resident of Samoa.

Rule 30 of the Supreme Court (Civil Procedure Rules) 1980 provides:

“Plaintiff not resident in Samoa (1) In any civil proceeding and at any stage thereof the Supreme Court may require a plaintiff or applicant resident out of the jurisdiction of the Supreme Court to deposit any sum of money as security for costs, and may stay the proceeding pending the making of that deposit.”

I accept from the plaintiff’s affidavit that she has been staying with her sister and husband; has attended to several job interviews; and she has done some odd jobs in American Samoa but she has not secured permanent employment. The plaintiff therefore regards and treats (correctly in my view) Samoa as her place of residence.

In any event even if the plaintiff was to be treated as residing out of the jurisdiction the plaintiff has substantial properly, not of a floating, but of a fixed and permanent nature in Samoa, so that it would be very unlikely for the court in the exercise of its discretion to order security for costs.

In the circumstances the application for security for costs is declined but I reserve leave to the defendant to reapply if necessary.

JUSTICE VAAI