Lauano v Samoa National Provident Fund Board [2009] WSSC 15 (26 February 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of the Court of Appeal Rules 1961; the Judicature Ordinance 1961 and the Judicature Amendment Act 1992/1993.

BETWEEN:

TOIAIVAO FILI LAUANO Businessman of Lotopa.
Appellant

AND:

SAMOA NATIONAL PROVIDENT FUND BOARD a corporate body established under the National Provident Fund Act 1976 and carrying on business in Apia.
Respondent

Counsels: TK Malifa for the appellant
AK Su’a for the respondent

Hearing: 26 February 2009

Decision: 26 February 2009

ORAL DECISION OF NELSON J

By Notice of Motion dated 26 September 2008 the appellant claims an appeal as of right to the Court of Appeal pursuant to section 51(a) of the Judicature Ordinance 1961 as the matter in dispute exceeds $400. Section 51(a) provides as follows:

"An appeal shall lie in any action, cause or matter not being a criminal proceeding to the Court of Appeal from the Supreme Court:

(a) as of right when the matter in dispute amounts to or is of the value of $400 or upwards, and ....."

Alternatively the appellant seeks leave of this court to appeal to the Court of Appeal pursuant to the next subsection 51(b) arguing that the issue raised is of such general and public importance that it ought to be submitted to the appellate court for determination. Section 51(b) provides:

"An appeal shall lie in any action, cause or matter not being a criminal proceeding to the Court of Appeal from the Supreme Court:

(b) with leave of the Court of Appeal or of the Supreme Court if in the opinion of either court the question involved in the appeal is one which by reason of its general or public importance or the magnitude of the interests affected or for any other reason ought to be submitted to the Court of Appeal for decision."

If leave is refused the appellant pursuant to the said section 51(b) seeks leave direct from the Court of Appeal. The issue in the appellants notice of motion said to be of such general and public importance requiring leave is "the question of the application of constitutional liberty and equality before the law to a loan contract and in respect of a judgment summons." In words seeming to find much favour these days, counsel argues in his submission for a holistic approach to constitutional interpretation based on Simpson v Attorney General [1955] NZLR 271 and the celebrated judgment of Lord Wilberforce in Minister of Home Affairs v Fisher [1979] UKPC 21; [1980] AC 319 as endorsed by our Court of Appeal in Attorney General v Saipaia Olomanu [1982] WSCA 1 and Tagaloa Pita v Attorney General [1995] WSCA 6.

The appellant does not appear to be relying or basing his appeal on section 45(2) of the Judicature Ordinance which allows for appeals to the Court of Appeal where the Supreme Court certifies that the particular case involves a question as to the interpretation or effect of any provision of the Constitution, neither does the appellant seem to be seeking special leave from the Court of Appeal pursuant to section 64.

The appellant also seeks a stay of execution of the courts judgment under section 58 of the Ordinance which provides:

"An appeal to the Court of Appeal shall not operate as a stay of execution unless the Supreme Court or the Court of Appeal otherwise orders."

The application is opposed by the respondent who argues that sections 51(a) and 51(b) must be read together because of the use of the word "and" between 51(a) and 51(b) thus indicating that the requirements of both subsections must be fulfilled before leave can be granted. They also say no question of general or public importance is involved and that private litigation over a debt cannot be categorized as having any general or public importance. Furthermore that the "for any other reason" limb appearing in s.51(b) which as noted in the Asiata v Asiata application for leave to appeal [2008] WSSC 73 must mean "for any other sufficient reason", has not been established by the appellant.

The respondent also maintains that the notice of appeal filed is difficult to follow and is a confusing jumble of material usually accompanied by an assertion that the trial judge was in error. And that for this reason the court should consider the option of adjourning these proceedings and ordering the appellant to file a more specific and detailed notice of appeal. The respondent further contests the granting of a stay of execution of judgment citing the criteria laid down in Durst v PPS Ltd [2007] WSSC 84 and argues that the balance of convenience plainly favours the respondent.

With due respect to the argument of the respondent I do not agree with their interpretation of sections 51(a) and 51(b). To read these conjunctively would mean an appeal as of right always requires the leave of either the Supreme Court or the Court of Appeal. The question must then be asked what is the value of the words an appeal "as of right" (my emphasis). However s.51 cannot be read in isolation and regard must be had to the provisions of section 54(1) of the Judicature Ordinance 1961 which says:

"(1) No such appeal whether as of right or not, shall be brought except in pursuance of an order of the Supreme Court granting leave to appeal."

This would seem to put the matter beyond doubt, i.e. all appeals require a grant of leave from the Supreme Court. But this is followed by a proviso which is fairly clear in its terms namely that subject to provisions regarding the giving of security in sections 54(3)and 54(4) "the Supreme Court shall grant leave in every case where the appellant is entitled to appeal as of right." The stipulation in the proviso is mandatory in its use of the word "shall" and while this is a curious way of drafting the procedure I am drawn to the conclusion that it must mean an appeal as of right under 51(a) is a different species to an appeal with leave under section 51(b). This seems to be a case where the draftsman's use of the word "and" really means "or", that is the only way to make sense of the provisions.

The respondent has not been able to point to any authority supporting their interpretation and I have been unable in the limited time available to find any reported authority directly on point but in my experience this has been the basis upon which appeals proceed from the Supreme Court to the Court of Appeal. If it is as of right under section 51(a) the court automatically grants leave pursuant to s.54(1) subject only to the payment of security for costs. This leaves section 51(b) free to be applied to cases where the matter in dispute cannot be quantified in monetary terms and in such cases leave of either the trial court or the appellate court is required based on a general or public importance, etc. test. I believe this to be the proper construction of these provisions.

Accordingly as there is no dispute that the amount involved in this action is greater than $400, leave will be granted pursuant to sections 51(a) and 54(1) of the Judicature Ordinance and security for costs in the sum of $200 is to be paid within 7 days hereof if that has not already been attended to.

As to the remaining issue of a stay of execution of judgment I agree with counsel for the respondent that the principles to be applied are those outlined in Durst v PPS Ltd. Considering all those factors and bearing in mind that this case has been listed for hearing in the upcoming Court of Appeal sitting in April less than two months hence plus the fact that courts of appeal sitting in this jurisdiction always make a point of issuing timely judgments while in session in Samoa if possible but in any event always shortly thereafter, the balance of convenience in my view favours a stay of execution of the judgment. I am also unconvinced that the plaintiff as the successful party will be in the language of the authorities "injuriously affected by the stay" given that according to the Statement of Claim filed, its cause of action first arose in June 2004 or thereabouts but it only initiated recovery litigation in May 2007 some three years later. Pursuant to section 58 of the Judicature Ordinance 1961 there will accordingly also issue an order to stay execution of judgment until this appeal has been determined by the Court of Appeal.

JUSTICE NELSON