Samoatel v Procom Systems Ltd [2012] WSSC 93 (20 December 2012)

SUPREME COURT OF SAMOA

Samoatel v Procom Systems Ltd [2012] WSSC 93

Case name: Samoatel v Procom Systems Ltd

Citation: [2012] WSSC 93

Decision date: 20 December 2012

Parties:

Samoatel of Samoa, a company duly incorporated under the Companies Act 1955
Procom Systems Limited, a duly incorporated Company having its registered office at Saleufi

Hearing date(s): 11 November 2010

File number(s):

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s): Justice Vaai

On appeal from:

Order:

(1) Judgment for the plaintiff in the sum of $64,133.35
(2) Defendant to pay costs of $1,800.

Representation:
R Puni for plaintiff
S Leung Wai for defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

SAMOATEL of Samoa a company duly incorporated under the Companies Act 1955

Plaintiff

AND:

PROCOM SYSTEMS LIMITED a duly incorporated Company having its registered office at Saleufi

Defendant

Counsel:

R Puni for Plaintiff

S Leung Wai for Defendant

Decision: 20 December 2012

DECISION OF THE COURT

Introduction

1. The reasons for the undue delay in the delivery of this judgment has been relayed to counsel at the chambers meeting this morning Thursday the 20^th December 2012. Again the delay is very much regretted.
2. Both the plaintiff and the defendant are incorporated companies carrying on business in Samoa; the plaintiff as a provider of telecommunication services, and the defendant as a supplier of communication services.
3. In January 2007 the plaintiff launched its mobile telephone service, titled, Go Mobile. One of its promotional plan, the post paid plan (the plan) was introduced to the existing customers of the plaintiff who had land line phone accounts with the plaintiff. Customers were visited by the plaintiff’s salespeople who explained the different levels of the plan, entitlements under the plan and the prices for each level of the plan. Brochures were also given and distributed to prospective customers as well.
4. In January 2007 the plaintiff at the request of the defendant supplied the defendant with 23 mobile phones under the plan. It supplied a further 8 mobile phones in February at the request of the defendant. Services by the plaintiff were terminated in October 2007 due to failure by the defendant to update payment of arrears totalling $64,133.35.
5. Refusal by the defendant to pay the arrears owing is the cause of this action.

The Claim

6. Following the launch of its mobile phone in January 2007, Urika Semua (Urika) of the plaintiff, telephoned the defendant’s office requesting an audience with the boss concerning the plan. His call was transferred to one Lisi Paea (Lisi) who agreed to meet with Urika later that month at the defendant’s office to talk about the plan.
7. Details of the plan were explained to Lisi at the meeting. A brochure was also given. Before leaving the meeting Urika left with Lisi the Application Contract Form for the defendant to complete if it was interested in joining the plan. Lisi told Urika she would need to talk to Tapasu Leung Wai (Tapasu) for his approval.
8. Tapasu is the sole director of the defendant and a brother of Lisi.
9. Lisi subsequently informed Urika by phone that the Application Form has been completed. Twenty three mobile phones were requested in the application form dated 23 January 2007 which detailed the names of the phone user, the suggested phone numbers, the level of the plan and the type of phone for each user.
10. The twenty three mobile phones were supplied and delivered to the office of the defendant.
11. Eight more mobile phones were requested by Lisi in February and all eight phones were applied and delivered when she completed the Application Contract Form dated 26^th February 2007.
12. As the defendant had an existing account with the plaintiff for its landline telephones, the mobile phone account was incorporated into the existing land line account. However in March 2007 Lisi requested the two accounts to be separated. The request was granted so that as from March 2007 the defendant had two separate accounts with the plaintiff.
13. In April 2007 Lisi complained to the plaintiff about the size of the defendant’s mobile phone account and in July and August 2007 she instructed the plaintiff to terminate some of the mobile phone connections.
14. By October 2007 when the defendant’s mobile phone account had reached $64,133.35, the plaintiff disconnected the rest of the mobile phones issued to the defendant.

The Defence

15. It was contended that as Lisi was not authorised by the defendant to sign the contract, she therefore lacked the requisite authority to bind the defendant.
16. It was also argued that since the two contracts were not supported by any consideration they were therefore unenforceable and of no legal effect. An extension of this argument was that the proper defendants were the persons who utilized the mobile phone, so that the persons whose names were listed by Lisi on the Contract Form were the appropriate defendants.
17. Additionally the defendant argued that as there were no standard terms and conditions incorporated into or attached to the contracts, the contracts were accordingly unenforceable due to uncertainty.
18. Neither Lisi nor Tapasu testified. Ray Ah Tune (Ray) an employee of the defendant gave evidence to the effect that although Lisi was a sister of Tapasu it was he (Ray) who took charge of the office when Tapasu is away or not available, so that Lisi who was in fact a mere secretary had no authority to bind the company.
19. Counsel for the defendant submitted that there was no representation by Tapasu, the sole director, to the plaintiff that Lisi possessed any authority to enter into any agreement for the defendant. Since the plaintiff has failed to discharge the onus that Lisi is an agent and possessed the requisite the authority the plaintiff’s claim must accordingly fail.
20. Neither can it be established from the evidence that Tapasu did ratify the two agreements entered into by Lisi on behalf of the defendant.

Discussion

21. In my respectful view it can be stated quite confidentiality at the outset that Tapasu, the sole director, knew of the plan proposal by the plaintiff, and he did authorise Lisi to complete and submit the application forms to the plaintiff for approval.

Or alternatively if Tapasu did not initially authorised Lisi he did subsequently ratified the agreements.

22. In the first place when Urika met with Lisi to discuss the plan, Lisi told Urika that she would need to get the approval of Tapasu. When she gave the completed application forms to the plaintiff for approval some of the names on the first submitted form dated 23^rd January 2007 speak for the fact that Tapasu had an input in the compilation. The names are:
    • (i) Meatusi Leung Wai and Simon Leung Wai. The plaintiff’s evidence which was not challenged by the defendant is that these two which are numbered 1 and 2 on the list are the children of Tapasu.
    • (ii) Number four in the same list is one Tapuai Sepulona. Both Tapasu and Tapuai Sepulona were at the time Members of Parliament and Associate Ministers under the ruling Human Rights Protection Party.
    • (iii) Number 23 is one Letelemaana Fuga, an elderly unemployed, but a high ranking and influential chief of the village of Satuimalufilufi, the same village as Tapasu and within the constituency represented by Tapasu under his chiefly title name Vaeolenofoafia. Letelemaana Fuga is well known to the Court. He was and still is a staunch supporter of the Human Rights Protection Party.
23. Similarly some of the names on the second application dated 26^th February 2007 speak volumes of Tapasu’s contribution:
    • (1) Lealailepule Rimoni the number one name on the list is Urika’s brother in law. Urika told the court that Tapasu and Lealailepule Rimoni were friends. In fact Lealailepule Rimoni was also a Member of Parliament at the time, he still is, and a friend of Tapasu.
    • (2) Number two of the same list is Sharon Aiafi the wife of Lealailepule Rimoni.
    • (3) Number eight on the list is one Nu’u Pouniu, an elderly retired unemployed and a matai of the family of Tapasu at Vailoa, Faleata.
24. Secondly the defendant made payments on five separate occasions in May, July and August 2007 to the plaintiff for its obligations under the plan. Defendant counsel’s submissions avoided addressing this issue and the conclusions to be drawn are blatantly obvious. It was also Lisi who requested the plaintiff to separate the defendant’s mobile account from its fixed land line account.
25. Ray who testified for the defendant and who was issued with one of the mobile phones told the court he regularly paid his rental to the defendant which is an indication the other users were required to do the same. And when they did not pay Lisi instructed the plaintiff to discontinue connection of those other phones.
26. In response to the plaintiff’s demand letter of May 2009 Tapasu in response telephoned and told Mr Lafoga, the Legal Recovery officer, that he would sue the plaintiff for fraudulent conduct in relation to third party sales agent agreement, an issue totally isolated from the mobile post paid plan of which the defendant was indebted to the plaintiff.
27. The argument by the defendant that the agreements are unenforceable for uncertainty cannot be sustained. The post paid mobile phones were issued under two plans; the Go 50 plan and the Go 100 plan. Each plan had its own features which were verbally explained and contained in the brochures. The Application Contract Form completed by the defendant was to list the names of its designated phone users, the requested numbers, the brand of phones and the plan level. Before the service was terminated by the plaintiff, there was never any complaint, criticism or inquiry from the defendant relating to any confusion, uncertainty or unreliability of the service or plan. Similarly no complaints were made when the monthly accounts were issued and part payments made.
28. The contention that the agreements were unsupported by any consideration is not only misconceived, but it is also not supported by the evidence. Neither of the two witnesses for the plaintiff were questioned under cross examination on the issue of consideration. In any event, the defendant had an account with the plaintiff over its land line phones and with the introduction of mobile phones the defendant were attracted to the plan and originally its mobile phone account was incorporated with its fixed land line account. Ray who testified for the defendant did not utter a single word concerning the lack of consideration.
29. For very obvious reasons, the argument that the persons who used or utilized the mobile phones were the proper defendants, must also fail. No explanation need be given. They were simply not privy to the two agreements.

Result

(1) Judgment for the plaintiff in the sum of $64,133.35
(2) Defendant to pay costs of $1,800.

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JUSTICE VAAI