Seuala v State [2010] WSSC 177 (16 December 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CP 147/09

BETWEEN:

TAUA KITIONA TAVAGA SEUALA,
for and on behalf of the Chiefs and Orators of Lalomanu Aleipata.
First Plaintiff

AND:

ATTORNEY GENERAL,
for and on behalf of the Government of the Independent State of Samoa.
Second Plaintiff

AND:

DIGICEL (SAMOA) LIMITED,
incorporated company.
Defendant

Counsels: F K Ainuu for the first plaintiff
A Lesa for second plaintiff
T K Enari for the defendant

Hearing: 16 December 2010

Decision: 16 December 2010

DECISION OF NELSON J.

[1] This is a claim by the first plaintiff for the sum of $57, 699 alleged to be the defendants share of a contract to construct a road in the first plaintiffs district leading to the defendant telecommunications tower. Why the second plaintiff joined the action is not clear, neither is its cause of action against the defendant as the Government of the Independent State of Samoa were not privy or party to the negotiating or concluding of the so called contract. The defendant elected not to pursue its strike out motion filed in this matter and the motion was on its application struck out before the hearing commenced this morning.

[2] After the hearing the plaintiffs only witness the first plaintiff, it became apparent the plaintiffs case suffered obvious deficiencies. An adjournment was granted to allow the plaintiffs to consult with their counsels following which an application to withdraw the proceedings was made orally by the first plaintiffs counsel. This was supported by the second plaintiffs counsel. I did not require to hear from defendants counsel and gave the following ruling.

[3] The application to withdraw the proceedings is refused. These proceedings should never have been brought. It is clear from what I heard from the first plaintiffs one and only witness that the essentials of the alleged contract namely as to who will pay what, who will go and look for a contractor, as to the time frame for completion of the road and as to other fundamental matters normally present in contracts of this nature were not even discussed at the meeting that occurred outside the lift under the Government building. This was the meeting that occurred between the CEO of the defendant company and the Honourable Minister of Agriculture and Fisheries who is the first plaintiff in this matter on behalf of his district. I also imagine that both these gentlemen would normally not regard themselves as contractually bound to an arrangement discussed in such informal circumstances.

[4] I find that what was agreed upon was for the defendant to consider the first plaintiffs proposal in the coming years budget and nothing more. No agreement was given by the defendants CEO to the contract as alleged in the plaintiffs statement of claim. The plaintiffs claim should be dismissed and the plaintiff is accordingly non-suited pursuant to rule 120 of the Civil Procedure Rules of the court.

[5] I will deal with the question of costs now. Defendants counsel had indicated his charge out rate is $300.00 per hour. Costs are awarded as against the first and the second plaintiffs, the latter being here for reasons known only to them but who have chosen to be a party as a plaintiff to this lawsuit nevertheless, in the sum of $1,500.00 each plaintiff together with VAGST and reasonable disbursements as approved by the Registrar.

..............................

JUSTICE NELSON