Tuitama v Westpac Bank Samoa Ltd [2010] WSSC 154 (24 September 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CP.23/05
JS. 351/05 Misc.854/09

BETWEEN:

TAUSALA TUITAMA, Taxi Operator of Faleasiu.
Applicant/Judgment Debtor

AND:

WESTPAC BANK SAMOA LIMITED formerly known as PACIFIC COMMERCIAL BANK LIMITED, a duly incorporated company carrying on business in Apia.
Respondent/Judgment Creditor

Counsels: Mr P. Fepuleai for applicant
Ms R. Drake for respondent

Ruling: 24 September 2010

RULING OF NELSON J.

[1] On 2 March 2005 the respondent bank issued proceedings against the applicant and a guarantor in relation to a delinquent loan in the applicants name from the respondent for the purpose of acquisition of a motor vehicle namely a van. On 16 May 2005 the applicant appeared in person before the Supreme Court at Apia and consented to judgment in the sum of $36,888.53 in favour of the respondent in respect of that loan. On 22 June 2005 a judgment summons was issued to enforce that judgment. According to the affidavit of respondents counsel which was not contested by the applicant in these proceedings, a judgment summons was served on the applicant on 6 July 2005. On 25 July 2005 the matter was called in court, no appearance was made by the applicant and the court made a default order for payment of the judgment debt which then stood at $37,293.13 by installments of $600 per month. The first payment was due 7 days after service of the judgment order in default of which 4 months in prison was to be served by the judgment debtor. This order was served on the applicant on 1 August 2005 and on 23 August there being no payment received a warrant of committal was sought by the respondent. This was issued by the court and delivered to the Police for execution on 23 November 2005 and it would appear the warrant of committal has only now finally been executed.

[2] The applicant seeks to have all orders made against him set aside. He acknowledges the loan from the respondent was taken out in his name in December 1998 but says that he did this on instructions and at the behest of his uncle who is his father's younger brother Fa'asau Tuitama who was then employed by the respondent bank. He maintains that his uncle told him the loan could not be taken in the uncles own name as he and his wife already had a number of loan liabilities but that he was not to worry about it they would take care of all the loan payments. The loan was for the purpose of buying a van which the applicant drove for the couple. The applicant was not paid a salary but appears to have been dependent on the couple for his upkeep. In September 2000 he got married and left his uncles employ leaving the van in the care of the uncle. But the van appears at that stage to still have been registered in the applicants name. The applicant also admitted that he signed some papers mortgaging the vehicle but he said he did not understand what these were.

[3] The applicant also says that he was surprised in July 2005 when his uncle Faasau told him he had to appear in court and if he was asked by the judge about the claim of the respondent that he was to agree to it and if he was asked as to the repayment of the loan that he was to tell the court that he could only afford $100 per month.

[4] The applicant further says that in August 2007 Faasau and his family migrated permanently to New Zealand where he presently lives. He said he never personally made any payments towards the loan and that he did not understand any of the documents that he signed at the bank. He also denied that anyone at the bank had explained the documents to him before he signed. And that as far as he was concerned the loan was in his name but it was really his uncles loan.

[5] A bank officer Miss Susitina Asiata gave evidence about serving the applicant the day he came in to execute the loan documentation. She said she explained all the important terms to the applicant and he initialed each page on the side thereof following such explanation and he signed the loan application form appended as document "A" in her affidavit as well as the last page of the loan agreement appended as document "B". She also said he signed the form of acceptance of loan offer which sets out the essential terms and conditions of the contract a copy of which is also appended to her affidavit. Her testimony was she explained all this in Samoan to the applicant but overlooked signing the certification at the end of the loan agreement to that effect. I have no reason to doubt the truthfulness of the bank officers evidence. In any event the applicant accepts that the loan was actioned in his name and that he executed the relevant documentation at the bank.

Relevant law:

[6] The relevant law is as set out by the Court of Appeal in Lauano v National Provident Fund [2009] WSCA 3 which states that in order for an application for re-hearing to succeed, three things need to be established by the applicant:

(a) that he has a substantial defence;

(b) that there is some reasonable explanation for the delay in bringing the proceedings; and

(c) that the plaintiff will not suffer irreparable harm if judgment set aside.

[7] As to the first ingredient it is very difficult to see what the applicants defence to the claim would be. He acknowledges understanding that at all material times the loan was being taken out in his name even though it was for the uncles vehicle and further that he executed all the necessary loan documentation at the bank as well as a chattel mortgage over the vehicle in front of a lawyer whose name he cannot recall. And as I have said I accept the bank officers evidence having seen the witnesses testify. I do not accept that he was as ignorant of the bank documentation as he tries to portray.

[8] The applicant also acknowledges appearing before the Supreme Court and consenting to judgment in favour of the respondent bank and to receiving other documents subsequently relating to the matter. Documents which he says he passed on to his uncle. This case may well be one of the loan being the uncles loan and the applicant a foolishly trusting pawn in the game but it is his signature that appears on all the documentation and it was him who appeared in person before the court and consented to judgment being entered against him and in favour of the bank. Even if I were to accept the applicants version of these events which I do not necessarily do, he cannot now seek to evade responsibility in law for his actions. Actions which according to his own evidence amounted to deliberate misrepresentation and possible fraud as against the respondent bank. Even if the applicant were to seek a remedy against the uncle he would face certain difficulties because he who comes and seeks equity must do so with clean hands. The common law traditionally does not enforce a contract tainted by illegality and a conspiracy to defraud is not an enforceable contract at law. The applicant has no defence of any substance, he fails to make out the first ground.

[9] As to the second ground as pointed out to counsel even if I accept as I said which I do not that the loan was in fact the uncle, after judgment was entered into further documents were served on the applicant from the court. The applicant still at that point chose to do nothing except refer the documents according to him to his uncle. I have seen him testify and he has told the court that he schooled up to Year 11. He does not appear an uneducated or illiterate person. When all these documents from the court started flowing post judgment he surely should have been on the alert that there was something seriously wrong as the loan and everything else was in his name not the uncles. At the least he should have sought legal advice on his situation. He did not do so. And as of August 2007 the uncle and the family had migrated permanently to New Zealand. Surely at that point any reasonable person would become more concerned about the loan which was in the applicants name. He still elected to do nothing and was only moved to action when the police enforced the warrant of committal. An enforcement delay which appears quite inexcusable and the reason for which is not apparent from the documents before me.

[10] There has been no reasonable explanation advanced for the applicants inaction over the years and there is nothing in the documents remotely suggesting a reasonable explanation as to his delay in challenging the judgment he consented to in May 2005.

[11] The third and final ground is that of prejudice to the respondent in setting aside the order. It is clear setting aside the judgment would greatly prejudice the respondent which for a number of years has been trying to collect its money on this delinquent account. And as time goes on interest keeps accruing on the debt at the judgment rate which is pardon the pun not in anyones interest. The third ground favours the respondent.

[12] The applicant has not established the three things required to be established and the overall merits of the case in my view also lie in the respondents favour. The application for re-hearing is refused. The courts judgment dated 16 May 2005 in favour of the respondent in the sum of $36,888.53 is affirmed. Costs on the present application of $750 plus reasonable disbursements fixed by the Registrar are awarded to the respondent.

[13] However that is not necessarily the end of the matter. It was not canvassed by counsel but pursuant to rule 15(2) of Judgment Summons Rules 1965 a judgment summons order is only effective for one (1) year from the date of its issue. The judgment summons order made here is obviously long since expired and any warrant of committal issued in reliance thereon is no longer valid. It would appear to me a fresh judgment summons application is necessary if this matter is to be taken further. No such application has been filed in the present proceedings and I leave that as a matter for counsels to pursue. The application to set aside the judgment summons order and the resultant warrant of committal is therefore redundant and is dismissed.

JUSTICE NELSON