In re Chande Lutu Drabele [2003] WSSC 42 (7 February 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of the Supreme Court of Samoa (Civil Procedure) Rules 1980 Rule 184

AND

IN THE MATTER of an action commencing the 8th day of January 2002 wherein CHANDE LUTU-DRABELE of Tafuna, American Samoa, Guesthouse Proprietor is the Plaintiff and JURGE DA SILVA of 43 Ryrie Road, Earlwood, Sydney NSW 2206 Australia, Promoter and presently of Teuila Hotel, Malifa, ALEX BABYTH of Sydney, Australia, Manager and presently of Teuila Hotel, Malifa, ALEXIS FAKU, TEBA SHUMBA, JOHN TEBA MAKONI MAKONI and EDWARD MPHATSENG all of Johannesburg, South Africa, Entertainers and all presently of Teuila Hotel, Malifa are the Defendants

Counsel: Ms R Drake for the Plaintiff
Ms MVR Peteru for the defendants

Ruling: 7th February 2003

REASONS FOR A DECISION AS TO COSTS OF VAAI J

The plaintiff is entitled to costs but the defendant against whom costs should be ordered has skipped the jurisdiction and as a consequence the plaintiff seeks costs against counsel for the defendant.

Background

The defendants are a group of entertainers from South Africa together with their promoter and manager who were accommodated by the plaintiff, a guesthouse proprietor, in American Samoa. When they left American Samoa the defendants came to Samoa while monies for accommodation in American Samoa were owing to the plaintiff who then issued proceedings in Samoa for recovery of rents owing and she also applied for and obtained a writ of arrest against the defendants on the 11th January 2002. The said writ of arrest commanded a bailiff of the court or a police constable to bring the defendants before the court unless the defendants deposit with the constable or with the bailiff US$4,613.15 and $102 costs. And since the writ was issued on a Friday, Sapolu CJ added two further conditions namely:

(1) When the defendants are arrested they may be released by surrendering their travel documents to the Registrar and providing two sureties to the Registrar’s satisfaction in the sum of US$2,500 each.

(2) The defendants to appear in court on Monday 14/01/02 at 9.30am when this matter is called for mention

Facts

The writ of arrest was executed on Friday night the 10th January 2002 but it appears that neither the defendants were arrested nor were their passports surrendered because on Monday the 14th January the court ordered the defendants to be placed in custody if by 12 noon the next day the travel documents have not been surrendered. On Tuesday the 15th January counsel for the defendants file a statement of defence as well as a Notice of Motion to rescind the Writ of Arrest. Travel documents were also surrendered to the Registrar of the court and the matter was adjourned to the 21st January for the plaintiff to reply to the application by the defendants to rescind the writ of arrest. When the matter was called on the 21st January 2002 the plaintiff had already filed affidavits in response and the matter was set for hearing on the 1st February 2002 but the hearing did not proceed through no fault of either party and was further adjourned to the 4th March for hearing. On that day the court was told by counsel for the defendants that the defendants have departed from Samoa. Counsel also told the court she will proceed with the Notice of Motion as she had witnesses coming from American Samoa. The matter was set down for hearing on the 26th March for hearing but on that day counsel for the defendant did not come to court and no explanation was forwarded for counsels or her witnesses non-appearance. As a consequence the Notice of Motion by the defendants to rescind the Writ of Arrest was dismissed and Judgment was entered by default against the defendants in the sum of US$4,613.15 and ST$79.00. On the question of costs the plaintiff was ordered to file memorandum of costs and to serve copies on the Registrar who released the passports and counsel for the defendant.

Counsel for the plaintiff has filed memorandum of costs seeking against counsel for the defendant costs of $4,892.62. No costs are claimed against the Registrar.

In considering the question of costs it must be borne in mind that the travel documents of the defendants were in accordance with the order of the court in the custody of the Registrar of the court and it is not disputed that it was the Registrar of the court who released the passports enabling the defendants to leave the jurisdiction after the amount claimed by the plaintiff against the defendant was paid to the court. It is not denied by counsel for the defendants that she did request the Registrar for the release of the passports. I am satisfied from the memorandums filed that counsel for the defendant did or said nothing more than simply requesting the Registrar for the release of passports. But the Registrar was granted custody of the passports; he released the passports without court order and despite the questionable and unprofessional conduct of counsel for the defendant the blame must fall squarely on the custodian of the passports. The plaintiff has however chosen not to seek costs against the Registrar.

On the 4th March 2002 counsel for the defendant informed the court that despite the departure of the defendants from Samoa she will proceed with the Motion to Rescind the Writ of Arrest. Despite suggestions from the bench and objections from counsel for the plaintiff counsel for the defendants insisted she will proceed with the motion as the defendants have appointed agents to act on their behalf. In her memorandum opposing costs counsel for the defendants says that the defendants instructed Ms Sera Lee Hang and two other businessmen (all from American Samoa) as agents to appear on the defendant's behalf. What concerned the court on the 4th March 2002 was the point raised by counsel for the plaintiff that to pursue the Motion to Rescind is a purely academic exercise given the fact that the defendants were no longer within the jurisdiction. The second matter concerning the court was that the so called agents in American Samoa (Ms Lee Hang and two businessmen) have probably not had the benefit of competent legal advice that they will firstly be subject to pay security for costs and secondly they would be liable for costs because after all the defendants were not disputing the monies owing to the plaintiff but that arrangements have been made for the payment of the debt. The so called agents therefore stood to loose rather than gain anything from being involved in the Notice to motion pursued by counsel.

On the 26th March 2002 counsel for the defendant made no appearance. She says in her memorandum that she was called home urgently that morning by her daughter’s caregiver to attend to her seven year old daughter, who had a recurring illness. Attempts by her to advise the court in time were not successful. The court does not accept the explanation. Counsel has shown a complete lack of respect for the court. Normally counsel should instruct another counsel to appear. At least in our Supreme Court it is conduct expected from counsel. Whatever attempts were made by counsel to contact and advise the court that day it must be said that the court did not receive any form of correspondence from counsel that day or any other day to explain her non-appearance. In any event it takes only about 5 minutes for someone to walk from counsel’s office to the courthouse to advise the court if the phone and email facilities were not functioning. It is conduct unbecoming and unprofessional; the explanation lacks sincerity, integrity and maturity.

In my view the plaintiff is entitled to costs against counsel for the defendants for the proceedings on the 4th and 16th March 2002. Memorandum by counsel for the defendant simply says Ms Sera Lee Hang has not made contact to explain the non-appearance. There is no mention of the other 2 businessmen whoever they are. The court is of the view that in the absence of the defendants from the jurisdiction; and in view of the financial problems and restraints they faced in American Samoa resulting in their unpaid debts, the defendants or anyone acting on their behalf would risk further expenses pursuing the Motion; and if those agents were not made aware of possible costs against them they were denied the advantage of competent legal advise.

Counsel for defendant is therefore ordered to pay the following costs:

Plaintiffs costs on Notice of Motion to rescind = $ 700.00

Airfare and Transportation for witnesses on

26th March 2002 = $ 748.06

$1,448.06

JUSTICE VAAI