Elisaia v Ropati [2006] WSSC 19 (12 April 2006)

IN THE SUPREME COURT OF SAMOA

HELD AT APIA

BETWEEN

BOB PAUPAU ELISAIA

of Tulaele, Retired.

PLAINTIFF

AND

VAEPULE ROPATI

of Talimatau, Businessman.
FIRST DEFENDANT

AND

POLIMA ISABELLA MAEPU

of Tulaele.
SECOND DEFENDANT

Counsel: R Papalii for plaintiff
R T Faaiuaso for first defendant
Second defendant made no appearance

Hearing: 5 April 2006
Judgment: 12 April 2006

JUDGMENT OF SAPOLU CJ

Proceedings

These proceedings are concerned with a motion by the plaintiff for an interim injunction to restrain the first defendant, his servants and agents from:

(a) selling or using a vehicle in the possession of the first defendant which the plaintiff claims to belong to him;

(b) interfering with the plaintiff’s rights to retake possession of the said vehicle; and

(c) an order directing the first defendant to surrender the said vehicle to the plaintiff or alternatively to the Registrar for safe-keeping until the plaintiff’s substantive claim has been dealt with by the Court.

The interim injunction sought by the plaintiff is really in restraining form and therefore a prohibitory injunction. Orders sought in (a) and (b) above are in substance restraining orders and are properly the subject of a motion for a prohibitory interim injunction. However, in the course of these proceedings counsel for the plaintiff quite rightly did not pursue an order in terms of (b).

The order sought in (c) above is not prohibitory but mandatory and seeks to direct the first defendant to surrender the vehicle in his possession to the plaintiff or to the custody of the Registrar for safe-keeping pending the determination of the plaintiff’s substantive claim against the first defendant. Prior to the present proceedings, counsel for the plaintiff made application for an order directing the first defendant to surrender the vehicle to the custody of the Registrar pending the outcome of these proceedings for an interim injunction as there was a risk that the vehicle might be sold by the first defendant to someone else. I granted the application so that the vehicle is now in the custody of the Registrar. It has been a longstanding practice of this Court upon application by a party in appropriate circumstances to make such an order pending determination of a dispute as to ownership of an asset, particularly in the case of a vehicle as most such disputes which come before the Court relate to motor vehicles.

It is unfortunate that there are no provisions under the Supreme Court (Civil Procedure Rules) 1980 which provide for a summary judgment procedure, as it exists in some of the other jurisdictions, whereby disputes as to ownership of a vehicle, as this case is, can be dealt with expeditiously without such vehicle being held up in the custody of the Registrar for too long pending the hearing of a substantive claim. This is particularly so where the vehicle is an income-earning asset.

Essentially what these proceedings come down to is whether (a) an interim injunction should be granted to restrain the first defendant, his servants and agents from selling or using the said vehicle and (b) whether the vehicle should continue to remain in the custody of the Registrar until determination of the plaintiff’s claim in damages.

Alleged facts

The facts alleged in these proceedings show that on 14 September 2005 the plaintiff purchased from the previous owner a second hand 1998 Toyota Hiace taxi van (taxi van) with licence plate number T431 for the price of $21,000. Thus the plaintiff became the new owner of the taxi van. However, the plaintiff did not register the taxi van under his name in the register of motor vehicles. The plaintiff then employed his nephew, the second defendant, as the driver of his taxi van. The taxi van was stationed at the Call-A-Cab taxi stand at Talimatau which is directly opposite the house of the first defendant.

Towards the end of 2005, a few months after he had purchased the taxi van, the plaintiff left for New Zealand to visit some of his relatives. He left his taxi van with the second defendant. Being his nephew the plaintiff trusted that the second defendant will continue to drive his taxi van and earn income from passengers' fares. But his nephew had other ideas in mind. He took the plaintiff’s absence in New Zealand as the opportunity for him to sell the taxi van to the first defendant for $22,000 without the knowledge, consent or authority of the plaintiff. He has since fled to New Zealand leaving behind the plaintiff and the first defendant to contest who is the legal owner of the taxi van.

The circumstances of the sale of the taxi van from the second defendant to the first defendant are explained by the first defendant in his affidavit. The second defendant offered to sell the taxi van to the first defendant who then inspected the register of motor vehicles kept by the Ministry of Works, Technology and Infrastructure. This register is referred to by the first defendant as the vehicle ownership register. Upon inspection of the register the first defendant discovered that the vehicle registered under licence plate number T431 is a different vehicle from the taxi van which carries that plate number. It was also discovered that the registered owner of the vehicle with licence number plate T431 was not the second defendant but someone else who was not the plaintiff or the owner from whom the plaintiff had purchased the van. The first defendant then told the second defendant that he was not interested in buying the taxi van given what he had found from his inspection of the register. Subsequently the second defendant somehow obtained a vehicle ownership certificate with the name of the first defendant shown on it as the owner of the taxi van. He showed that document to the first defendant who then agreed to purchase the van and paid the second defendant $22,000 for the price. As mentioned earlier, the second defendant has since fled to New Zealand.

The nemo dat rule

The transaction between the second defendant and the first defendant whereby the second defendant sold to the first defendant the plaintiff’s taxi van without the knowledge, consent or authority of the plaintiff’ was a sale of goods transaction. The provisions of the Sale of Goods Act 1975 therefore apply to it.

At common law no person can give what he does not have. That means no person can give a better title than he himself possesses. In the context of a sale of goods transaction, this means that a seller of goods cannot give a better title than he possesses in the goods to a buyer. So if a seller has no title in the goods which he purports to sell to a buyer then the buyer gets no title in the goods. This principle is often expressed in the Latin maxim nemo dat quod non habet which is often referred to in shortened form as the nemo dat rule. See George Westbrook v Fata Esera [2002] WSSC 4.

The nemo dat rule is subject to a number of statutory and common law exceptions. The statutory exceptions are provided in ss. 23, 24 and 25 of the Sale of Goods Act 1975. Section 22(1) preserves the common law principles of estoppel and s.58 of the Act continues to apply the rules of the common law which are not inconsistent with the Act to contracts of sale of goods. Again see George Westbrook v Fata Esera.

The relevant provision of the Act for the purpose of this case is s.22(1) which provides:

'(1) Subject to the provisions of this Act, where goods are sold by a person who is not the owner thereof, and he does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell'.

The first part of s.22 (1) re-enacts the common law nemo dat principle. The second part provides an exception to the nemo dat principle by providing 'unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell'. These words apply the common law principles of estoppel by conduct in certain cases of sale of goods transactions where the question of whether title in the goods has passed from the seller to the buyer is in issue. I will come back to this later in this judgment.

Application of nemo dat rule to this case

As it often happens in the case of a fraudulent sale of a motor vehicle, the owner of the vehicle is defrauded of his vehicle by a rogue who then sells it to a buyer for valuable consideration without notice of any defect in the rogue’s authority to sell. The rogue then disappears with the buyer’s money and the owner, who subsequently discovers the fraud by the rogue, has to contest with the innocent buyer as to who has legal ownership of the vehicle. It is rather difficult that in this kind of situation one of the innocent parties, the owner or the buyer, will have to suffer loss as often the rogue has disappeared and cannot be found or if he is found he usually does not have the means to pay the owner or the buyer whichever of the two parties is going to suffer loss as a result of his fraud.

In this case, as mentioned earlier, the second defendant sold the plaintiff’s taxi van to the first defendant without the knowledge, consent or authority of the plaintiff as owner. There is no satisfactory evidence that the first defendant was aware of the second defendant’s lack of authority to sell the van. Both counsel were in agreement that as the true owner was the plaintiff and the fraudulent sale was without his consent or authority, the first defendant acquired no title from the second defendant under the sale because of the nemo dat rule. However, counsel for the first defendant sought to rely on two of the exceptions to the nemo dat rule as having conferred title in the taxi van on the first defendant.

The two exceptions to the nemo dat rule relied upon by first defendant

The two exceptions to the nemo dat rule relied upon by the first defendant are estoppel by conduct provided in s.22(1) of the Act, and s.23 which refers to a sale under a voidable title. The particular manifestation of estoppel by conduct relied upon for the first defendant is estoppel by negligence. I will discuss estoppel by negligence first and then the sale under a voidable title exception.

In his submissions, counsel for the first defendant referred to The Sale of Goods (1980) 6th ed by P S Aliyah where the learned author states at p. 224:

'It seems that there are two distinct cases where the owner is so precluded. The first is where by his words or conduct represented to the buyer that the seller is the true owner, or has the owner’s authority to sell, and the second is where the owner, by his negligent failure to act, allows the seller to appear as owner or as having the owner’s authority to sell. These are generally known as estoppel by representation and estoppel by negligence respectively... A person may make a representation by words or conduct, but how does a person make a representation by negligence? The answer appears to be that this is really a representation by omission.'

In Benjamin Sale of Goods 4th ed, estopped by negligence is explained in summary form at para 7-012 where it is stated:

'The true owner of goods may by his conduct be ‘precluded from denying the seller’s authority to sell’ within section 21(1) of the Act where he has been negligent in allowing the seller to create an appearance of ownership of the goods. But the circumstances in which negligence on the part of the true owner can raise such an estoppel are narrowly circumscribed. It is necessary for the buyer to show, first, that the true owner owed him a duty to be careful; secondly, that in breach of that duty the true owner was negligent; and, thirdly, that this negligence was the proximate or real cause of the buyer being induced to buy the goods and part with the purchase price to the seller. The requirement of a duty of care is essential to this type of estoppel. In the absence of such a duty, the true owner will not be prejudiced or affected by his carelessness in relation to the goods, however gross this may have been. Thus a failure on his part to take normal precautions to prevent his goods being stolen by a thief or to report the theft to the police, a careless loss of the goods, a culpable credulity in entrusting possession of goods, or of the documents of title to goods, to another, or a careless failure to register in a central register his interest in a vehicle let by him on hire purchase, will not of itself preclude him from recovering the goods from a person who has bought them from a seller without title, even though it could be said that it was the carelessness of the true owner which enabled the seller to pass the goods off as his own. The mere neglect of what would be prudent conduct in respect of the true owner himself is insufficient. It has, however, been cogently said that ‘the principal task is to find what situations or relationships may give rise to the duty to be careful,’ and on this point decided cases provide no reliable affirmative guidance. The mere fact that the true owner could reasonably foresee that his carelessness would lead the buyer to believe that the seller was the owner of the goods, or that the true owner had no interest in the goods, does not in itself impose such a duty; the circumstances must be such that a legal duty of care is owed to the buyer.'

In Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890, which was cited by counsel for the first defendant, the House of Lords considered the question of estoppel by negligence in relation to a sale of goods transaction. In a dissenting judgment based on the facts rather than the applicable law, Lord Wilberforce said at pp. 902-903:

'The second possible contention is also based upon estoppel. It is that the appellants are estopped from asserting their ownership by their conduct, i.e., by their negligent omission to register their agreement.

In a consideration of this argument it is first necessary to be clear as to what elements are necessary in order to validate a claim of estoppel, a question which requires to be answered in the light of 'the fact that what, on this argument, is relied upon as founding the estoppel is inaction or silence rather than positive conduct. English law has generally taken the robust line that a man who owns property is not under any general duty to safeguard it and 'that he may sue for its recovery any person into whose hands it has come: see Farquharson Brothers & Co v King & Co. [1902] UKLawRpAC 26; [1902] AC 325 per Earl of Halsbury, p. 332 and in andante Lord Macnaghten, p. 336. He is not estopped from asserting his title by mere inaction or silence, because inaction or silence, by contrast with positive conduct or statement is colourless: it cannot influence a person to act to his detriment unless it acquires a positive content such that that person is entitled to rely on it. In order that silence or inaction may acquire a positive content it is usually said that there must be a duty to speak or to act in a particular way, owed to the person prejudiced, or to the public or to a class of the public of which he in the event turns out to be one. The necessity for this duty, particularly with regard to silence or omission, has been stated in many authoritative judgments too well known to need complete citation, for they were comprehensively reviewed by Lord Wright in Mercantile Bank of India Ltd v Central Bank of India Ltd [1938] AC 287. Lord Wright says there, at p. 304:

’the existence of a duty is essential, and this is peculiarly so in the case of an omission... The duty may be, in the words of Blackburn J in Swan v North British Australasian Co Ltd, [1862] EngR 354; 2 H & C. 175, 182 to the general public of whom the person is one.’'

Further on at p. 903, Lord Wilberforce went on to explain what is meant by the test for determining whether a duty exists where estoppel by negligence is in issue by saying:

'[I] think that the test of duty is one which can safely be applied so long as it is understood what we mean. I have no wish to denigrate a word which, to modern lawyers, has become so talismanic, so much a universal solvent of all problems, as the word ‘duty,’ but I think that there is a danger in some contexts, of which this may be one, of bringing with it some of the accretions which it has gained - proximity, propinquity, foreseeability - which may be useful, or at least unavoidable in other contexts. What I think we are looking for here is an answer to the question whether, having regard to the situation in which the relevant transaction occurred, as known to both parties, a reasonable man, in the position of the ‘acquirer’ of the property, would expect the ‘owner’ acting honestly and responsibly, if he claimed any title in the property, to take steps to make that claim known to, and discoverable by, the ‘acquirer’ and whether, in the face of an omission to do so, the ‘acquirer’ could reasonably assume that no such title was claimed.'

Lord Wilberforce then said at pp 904-905 that:

'the duty of care should not be stretched so widely as to make it a universal duty on the part of property owners to safeguard others against loss.'

In the Australian case of Johnson Matthey (Aust) Pty Ltd v Dascorp Pty Ltd & Others [2003] VSC 291 (8 August 2003) Redlich J states in paras 39 and 40:

'39. There is much controversy about the propriety of the term ‘estoppel by negligence.’ Some writers have argued that there is no such thing as estoppel by negligence: see The Sale of Goods (1980) 6th ed by P S Atiyah at p. 229. Lord Pearson in Saunders v Anglia Building Society [1971] AC 1004 at 1038 expressed such a view. There appears to be consensus amongst the text writers 'that this estoppel, like all others, rests in the last resort on a representation, estoppel by negligence really being a representation through omission: see Sales and consumer law (1995) 4th ed by KTC Sutton; Sale of Goods (2000) by Professor Ewan Mc Kendrich; Benjamin Sale of Goods (1997) 5th ed by A G Guest et al (eds); and The Sale of Goods (1980) 6th ed by PS Atiyah at p. 224. Where the estoppel is by negligence, the representation is deemed by the Courts to have occurred. This was expressed in unequivocal terms by Collins MR in Bell v Marsh [1903] UKLawRpCh 26; [1903] 1 Ch 528 at p. 541:

’A man may act so negligently that he must be deemed to have made a representation which in fact he did not make, but because he has acted negligently he is deemed to have made it.’

Silence or acquiescence may in some circumstances have the same consequences as an expressed representation: Thompson v Palmer [1933] HCA 61; (1938) 49 CLR 507 per Dixon J at 547; Mathews v Doctrieve Corporation Pty Ltd [2003] FCA 459. The representation must mislead another. In addition, the relationship 'of the owner to the party misled must be such that the owner has a duty to correct the misunderstanding and was negligent in not doing so.

40. In both Australia and England, negligence on the part of the true owner can only be raised as an estoppel in limited circumstances. It is generally recognised, that a true owner will not be precluded from denying the seller’s authority to sell by virtue of his or her omission to act unless it is established that the owner has a duty of care to the purchaser, and in breach of that duty was negligent. Such negligence must be the proximate or real cause of the buyer being induced to purchase the goods.'

Further on in paras 42 and 46 Redlich J goes on say:

'42. For almost one and a half centuries the common law has recognised a duty of care as an essential requirement of estoppel by omission: see the cases referred to in Benjamin Sale of Goods (1997) 5th ed by A G Guest et al (eds) at para. 7-015. It has been acted upon by Courts of the highest authority. It need not be an existing duty. As Glass JA observed in Thomas Australia Wholesale Vehicle Trading v Marac Finance Australia (1985) 3 NSWLR 452 at 469 the owner’s failure –

’...must be in breach of the duty to speak out. Unless the conduct of the taciturn owner is subjected to the litmus test of duty, I know of no way to discriminate between conduct which precludes and that which does not’.

45. The defendants accept that whilst a duty of care to the innocent converter is required, the wholesale importation of principles applicable to the tort of negligence is not appropriate: Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890 per Lord Wilberforce at 903. Yet the defendant’s second basis for supporting the estoppel depends upon conduct of the owner which is more reminiscent of a claim in negligence. The transportation of principles relating to the tort of negligence into the area of estoppel by omission would substantially broaden the scope of the estoppel. It would enable contributory negligence of an owner to be raised by a buyer as a defence to a cause of action in conversion'.

I have quoted at some length from the judgments of Lord Wilberforce in Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890 and Redlich J in Johnson Matthey (Aust) Pty Ltd v Dascorp Pty & Others [2003] VSC 291 but it is recommended that those judgments should be read in full in order to get the full flavour of the passages I have quoted.

For the purpose of this case, there are certain points mentioned in the authorities which I need to reiterate if only to emphasise or highlight them. These may be stated as follows. Estoppel by negligence is a manifestation of estoppel by conduct. It is really a representation by omission and estoppel by negligence is sometimes referred to as estoppel by omission. The omission may be silence, or failure to speak, or inaction, or failure to act. But such an omission alone is not sufficient to give rise to an estoppel. There must be a duty on the person sought to be estopped to speak out or to act in a particular way and the duty must be owed to the person prejudiced or to the public or a class of the public of which the person prejudiced turns out to be one. Such person may be a bona fide purchaser for valuable consideration to a sale of goods transaction. The duty, as mentioned, is a duty of care, but the authorities have cautioned against the wholesale importation of principles applicable to the tort of negligence to the area of estoppel by omission in a sale of goods transaction as not appropriate. It is also clear that estoppel by omission can only be raised in limited circumstances.

In order to successfully raise an estoppel by omission to preclude an owner of goods from denying a seller’s authority to sell the goods to a buyer, ti is essential to establish that the owner owed a duty of care to the buyer, that the owner was in negligent breach of that duty, and that such negligence was the proximate or real cause of the buyer being induced to buy the goods.

The argument by counsel for the first defendant in support of estoppel by omission was that, in terms of s.17 of the Road Traffic Ordinance 1960, the plaintiff was under a duty to register his taxi van under his name when he purchased it second-hand from its previous owner. If the plaintiff had done so, the first defendant would have dealt with him instead of purchasing the van from the second defendant. By failing to register his van under his name the plaintiff was negligent through his omission to register and it was the plaintiff’s negligent omission that induced the first defendant to purchase the van from the second defendant. Implicit throughout the argument for the first defendant is the assumption that the register of motor vehicles is a register of ownership or title in a motor vehicle. I have already dealt with this issue in Mt Vaea Company Ltd v Susi Quan Faanunu [2000] WSSC 20 (judgment delivered on 18 July 2000) where I pointed out that the term 'owner,' as used in the Road Traffic Ordinance 1961, is defined in relation to a motor vehicle to include a person in possession of a vehicle under a hiring or hire purchase agreement or a person in apparent possession of a vehicle under a bill of sale. So the term 'owner' under the Ordinance includes a person in possession or apparent possession of a vehicle in certain circumstances. In any event, I do not find it necessary to express any conclusive view on the question of whether the plaintiff owed to the first defendant a duty of care to have his taxi registered in the register of motor vehicles. On a similar question, the House of Lords were divided in Moorgate Mercantile Co Ltd v Twitchings (supra) with the majority of Lord Edmund-Davies, Lord Fraser and Lord Russell holding that there was no duty owed by the finance companies, the car owners, to the car dealers to have their hire purchase agreements registered in the central register of hire purchase agreements for motor vehicles. The minority of Lord Wilberforce and Lord Salmon held that there was such a duty to register on the part of the finance companies. On the submissions before the Court, I have decided to leave this question for further consideration on another occasion.

However, and without intending any discourtesy to the argument by counsel for the first defendant, I am of the view that estoppel by omission cannot succeed in this case on another ground. As earlier mentioned, for estoppel by omission to succeed it is essential to establish that the owner owed a duty of care to the buyer, that the owner was in negligent breach of that duty, and that such negligence was the proximate or real cause of the buyer being induced to buy the goods. It is the last limb of the estoppel where the first defendant has real problems.

The affidavit filed by the first defendant shows that when the second defendant first offered to sell the taxi van to the first defendant, the first defendant went and inspected the register of motor vehicles. He discovered that the taxi van was not registered under the name of the second defendant but under the name of a different person. That person was not the plaintiff or the previous owner from whom the plaintiff had purchased the van. The first defendant also discovered from his inspection of the register that the licence plate number carried by the taxi van related to a different vehicle. He then returned to the second defendant and told him that he was not interested in buying the van given the information he had discovered from his inspection of the register of motor vehicles. So the information on the register did not induce the first defendant to purchase the van. To the contrary, it made the first defendant refuse to purchase the van. It, therefore, cannot properly be said that the omission by the plaintiff to register the van under his name induced the first defendant to purchase the van from the second defendant. The plaintiff’s omission to register and the actual purchase of the van that eventually took place between the first defendant and the second defendant do not connect.

After the first defendant had refused to purchase the van, the second defendant somehow obtained a vehicle ownership certificate with the name of the first defendant shown on it as the owner of the van. The second defendant then showed that certificate of ownership to the first defendant. It was then that the first defendant paid over the price of the van to the second defendant. On those facts alleged by the first defendant in his own affidavit, it is clear that what really induced the first defendant to buy the van was the certificate of ownership for the van with his name on it that was given to him by the second defendant. So it was not the omission by the plaintiff to register the van under his name that induced the first defendant to buy the van but the fraudulent actions of the second defendant.

I have also considered whether it can soundly be said that the omission by the plaintiff to register the van under his name facilitated the sale by the second defendant to the first defendant. I think the answer must be no. When the first defendant purchased the van he was fully aware from his inspection of the register that vehicle T431 was registered under the name of someone else and not the second defendant. However, when the second defendant handed a certificate of ownership with the first defendant’s name on it to the first defendant, the first defendant went ahead and purchased the van knowing full well that vehicle T431 was registered under the name of someone else. That fact does not appear to have mattered to the first defendant. He obviously relied on the certificate of ownership given to him by the second defendant. So if the name appearing on the register at the time of the first defendant’s inspection did not matter to the first defendant when he purchased the van, would it have made any difference to him if the name on the register was that of the plaintiff. I think not. The first defendant was so taken by the second defendant’s trickery and deception that he was willing to purchase the van regardless of what was on the register he had inspected. In the circumstances, I do not think it would have made any difference to the first defendant if the name on the register he had inspected was that of the plaintiff instead of the name of someone else. I have therefore come to the conclusion that the omission by the plaintiff to register the van under his name did not facilitate the fraudulent sale of the van by the second defendant to the first defendant. In other words the plaintiff’s omission to register was not the proximate or real cause of the first defendant being induced to purchase the van.

I turn now to the sale under a voidable title exception to the nemo dat rule and whether it applies to this case. Section 23 of the Act provides:

'Where the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of the seller’s defect of title.'

One of the clear prerequisites for the application of s.23 is that the seller must have a voidable title in the goods. A case that is often cited in this connexion is Lewis v Averay [1971] EWCA Civ 4; [1972] 1 QB 198 where the owner of a car who had advertised it for sale was deceived by a fraudster into believing that he was a film actor when in actual fact he was not. The owner then accepted a cheque from the fraudster and handed over possession of the car to him. The cheque was dishonoured. The fraudster then posed himself as the true owner of the car and resold the car to an innocent buyer. It was held by the English Court of Appeal that a contract of sale existed between the true owner and the fraudster and the innocent buyer had acquired a good title to the car. That case is often contrasted with Ingram v Little [1960] EWCA Civ 1; [1961] 1 QB 31 where a fraudster deceived the owners of a car that he was a businessman of substance. The owners then sold their car to the fraudster who paid for it by cheque. The cheque was dishonoured. The fraudster then resold the car to an innocent buyer. A differently constituted English Court of Appeal held by a majority that the sale from the true owners to the fraudster was void, not voidable, and therefore the fraudster was incapable of passing a good title to the innocent buyer to whom the car was resold.

In Lewis v Averay (supra) the contract of sale between the true owner and the fraudster would be voidable for fraud and the fraudster would have had a voidable title to the car which he later resold to an innocent buyer who was held to have acquired a good title to the car. That is quite different from the circumstances of this case because the second defendant did not, by deception, purchase the taxi van from the plaintiff, the owner of the van. The second defendant came into possession of the taxi van because he was employed by the plaintiff as its driver. Thus there was no sale between the plaintiff and the second defendant. So the second defendant could not have had a voidable title to the taxi van in terms of Lewis v Averay. He was given possession of the van by the plaintiff for the purpose of operating it as a taxi. He was a driver employee of the plaintiff. His mere possession of the van did not give him any voidable title to the van. Section 23, therefore, does not apply to this case.

Interim injunction

The two issues to be considered in determining whether or not to grant a motion for an interim injunction are (a) is there a serious question to be tried, and (b) where the balance of convenience lies. The latest relevant Samoan case is Dive and Fly Samoa Ltd v Tiapili Filisi Schmidt and Penina Schmidt [2005] WSSC 40 (judgment delivered on 22 December 2005). On both issues I have decided to grant the interim injunction and continue the order for the custody of the taxi van to remain with the Registrar until the hearing of the substantive claim by the plaintiff if settlement cannot now be reached.

Orders

(a) An interim injunction to issue to restrain the first defendant, his servants and agents from selling or attempting to sell the taxi van until the substantive claim by the plaintiff against the first defendant has been determined or until further order of the Court.

(b) The taxi van to continue in the custody of the Registrar until further order of the Court.

Costs reserved.

CHIEF JUSTICE

Solicitors
Toa Law for plaintiff
Fepulea’i & Schuster for first defendant