KL Taekwando Association of Samoa v Samoa Taekwando Federation Incorporated [2010] WSSC 183 (29 September 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

KL TAEKWONDO ASSOCIATION OF SAMOA
a duly incorporated society having its head office at Matautu-uta
Applicant

AND:

SAMOA TAEKWONDO FEDERATION INCORPORATED
of PO Box 224 Apia
First Respondent

AND:

SAMOA ASSOCIATION OF SPORTS AND NATIONAL OLYMPIC COMMITTEE INCORPORATED (SASNOC)
a body incorporated under the Incorporated Societies Ordinance 1952, Matafele.
Second Respondents

Counsel: K Enari for Applicant
V Wulf for First Respondent
S Leung Wai for Second Respondent

Submissions: 29 September 2010
Oral Ruling: 29 September 2010

Reasons for Ruling: 28 February 2011

REASONS FOR THE RULING BY THE SPORTS TRIBUNAL

Introduction

1. In the late 1970s the first Taekwondo club was formed in Samoa. It was eventually registered in December 1996 under the Incorporated Societies Ordinance 1952 as the Samoa Taekwondo Association (the first respondent). Membership of the first Respondent consisted of:
   
   • (a) Foundation members
   • (b) Officers of the Association
   • (c) Ordinary members.
     

One of its aims was to seek membership with the World Taekwondo Federation (WTF).

2. One of the foundation members of the first Respondent was Kasimani Lautusi (as he was then known) now more commonly known by his matai title Fuataga Kasimani Lautusi (Fuataga). He formed another Taekwondo club called the KL Taekwondo well before the first Respondent was incorporated so that Fuataga was not a member of the first Respondent in December 1996.
   
3. Following its incorporation in 1996 the first Respondent applied to and was accepted by the Samoa Association of Sports and National Olympic Committee (SASNOC) as the mother body for the sport of Taekwondo in Samoa. SASNOC did accept the first Respondent as the mother body with full knowledge (as counsel for the first Respondent conceded) that there was another Taekwondo club in existence.
   
4. KL Taekwondo was incorporated in the year 2009 under the name KL Taekwondo Association (the Applicant).
   
5. SASNOC was incorporated in 2002. Fuataga is one of the signatories in the Application for Incorporation as a current member of SASNOC. The first Respondent which claimed to be a member of SASNOC since 1996 is not a signatory to the application. Neither its president, officer or member is a signatory.
   
6. Counsel for SASNOC told the tribunal through his written submissions that SASNOC is the mother body for all sports in Samoa. Only its members can be the mother or parent body for each sport. SASNOC operates at the national level and represents Samoa at international level meetings such as the Olympics, Commonwealth and Pacific Games. Disputes between and among members of SASNOC are dealt with by SASNOC but disputes amongst sports clubs are dealt with by the mother or parent body of those sports clubs.
   

Dispute between the Applicant and the First Respodent

7. SASNOC and the first Respondent insist that soon after the first Respondent was incorporated in 1996 under the name Samoa Taekwondo Association it was accepted as a member of SASNOC as the mother or parent body for all Taekwondo clubs in Samoa. The first Respondent is without argument a club registered as such, and did not seek the views of the applicant when it applied to be a member of SASNOC when at that time SASNOC itself was not incorporated.
   
8. The grievance raised by the applicant is very simple but SASNOC has simply turned a blind eye. One club in any particular sport cannot claim to be a mother or parent body of that sport without consulting with the other clubs. The logic is so glaringly obvious. "E lei fono le pa'a ma ona vae."
   
9. When the applicant commenced to generate some noise and requested rectification of the oversight by both SASNOC and the first Respondent, the first Respondent in 2006 passed a resolution for a change of name and did change its name from Samoa Taekwondo Association (STA) to Samoa Taekwondo Federation (STF). Counsel for first respondent told the Tribunal the change of name was to remove the confusion between the first Respondent and the Samoa Tourism Authority which is also known as STA. The Tribunal rejects the reason given for the change. The use of the word Federation suggests that the first Respondent was formed as a result of meetings and consultations with other existing clubs and associations. The Tribunal also doubts that the first Respondent was accepted by SASNOC as the mother body for the sport of Taekwondo in or about 1996 or soon thereafter as SASNOC, according to the materials given to the tribunal, was not incorporated until 2002. The constitution of SASNOC given to the tribunal by counsel is neither signed by the then current members nor is it dated.
   

Legal Challenge

10. When the applicant's challenge fell on death ears of both SASNOC and the first Respondent who both appear to have misled the responsible authorities the applicant instituted a legal challenge in the Supreme Court and sought orders challenging the incorporation of the first Respondent and to delete the word Federation from the name of the first Respondent. It also requested the court to refer the dispute to the Sports tribunal.
    
11. Section 7 of the Sports Disputes Resolution Act 2008 empowers the Court to refer a sports litigation to the Tribunal. Proceedings before the court are deemed to be transferred for all purposes to the Tribunal when an order is made under section 7.
    
12. On the 8th July 2010 the court ruled inter alia:
    
    • (a) The order sought by the applicant to declare the incorporation of the first Respondent null and void is struck out.
      
    • (b) The order sought by the applicant to have the "Federation" deleted from the name of the first respondent is also struck out.
      
    • (c) This matter being a sports dispute is referred to the Sports Dispute Tribunal to deal with it.
      
13. On the 29th September 2010 the Tribunal heard submissions. The issues were whether, given the ruling by the Supreme Court striking out the two main orders sought by the applicant what if any is the dispute before Tribunal, and given the ruling by the Court does the Tribunal have jurisdiction to adjudicate and make any other orders.
    
14. At the conclusion of the hearing of the submissions the Tribunal ruled that given the orders given by the Supreme Court there is no sports litigation before the Tribunal for determination. These are the reasons for that ruling.
    

Reasons

15. The crux of the complaint by the applicant is the use of the word "Federation" when the first Respondent in 2006 changed its name from Samoa Taekwondo Association to Samoa Taekwondo Federation. The Supreme Court has ruled that legally the applicant cannot establish a cause of action against the first Respondent for the use of the word Federation and consequently the application by the applicant to remove the word Federation was struck out.
    
16. The Tribunal disagrees with counsel for the applicant and the second respondent that there is a sports dispute which the Supreme Court has referred to the Tribunal for determination. In the first place the Supreme Court does not refer a sports dispute per se to the Tribunal. A sports litigation before the Supreme Court is referred by the Court to the Tribunal. A sports dispute is referred to the Tribunal by the Head of State on the advice of Cabinet. Secondly counsel for the applicant insists that the essential issue in the dispute is the use of the word Federation by the first Respondent and the membership of the first Respondent with SASNOC as the mother body. Membership of the first Respondent with SASNOC was not a legal issue before the Supreme Court. What was before the court was the use of the word Federation and the court has spoken on that issue. Accordingly there is nothing before the Tribunal to determine.
    

Recommendation

17. In delivering its oral ruling the Tribunal said it will make recommendations. It is apparent from the earlier remarks expressed in paragraphs 7 to 9 above that the arguments expressed by the first Respondent and SASNOC that the first Respondent was accepted as the mother body of Taekwondo soon after its incorporation in 1996 are questionable and difficult to accept.
    
18. The Tribunal is of the view that the primary purpose of the change of name in 2006 of the first Respondent was an attempt to boost credibility of the notion that the first Respondent is indeed the mother body for the sport of Taekwondo. Change of name does not remedy the original mistake and can be viewed as an attempt to cover up the wrong doing.
    
19. By failing or neglecting to correct the irregularity, SASNOC has failed to honour one of its objects to the detriment of the sport of Taekwondo. A serious precedent has been set and although the friction between the Applicant and the First Respondent may eventually disappear the setback and damage to the sport and especially to the young enthusiasts may never be healed.
    
20. SASNOC is urged to take positive steps to rectify the current unsatisfactory situation to protect the national and international interest of the sport of Taekwondo.
    

_____________________
Justice Lesatele Rapi Vaai
(Presiding Member)

_______________________
Rev. Dr Iutisone Salevao
(Member)

_______________________
Matafeo George Latu
(Member)