Emosi v ANZ Bank (Samoa) Limited [2016] WSSC 193 (26 October 2016)

IN THE SUPREME COURT OF SAMOA
Emosi v ANZ Bank (Samoa) Limited [2016] WSSC 193

Case name:	Emosi v ANZ Bank (Samoa) Limited
Citation:	[2016] WSSC 193
Decision date:	26 October 2016
Parties:	SULUAPE EMOSI of Sogi, married man. (First Plaintiff) and AIGA EMOSI of Sogi, married woman (Second Plaintiff) and ANZ BANK (SAMOA) LIMITED, a company duly incorporated company having its registered office at Apia. (Defendant)
Hearing date(s):	26 October 2016
File number(s):	CP: 136/15
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	The Motion to Strike Out has no basis. It is dismissed. The plaintiffs are entitled to costs to be fixed upon the final determination of these proceedings. Defendant to file and serve a Statement of Defence forthwith. Matter adjourned to 07 November 2016 for mention.
Representation:	R Drake for plaintiffs M G Latu for defendant
Catchwords:	Motion to strike out - res judicata – default notices – eviction proceeding – judgment by formal proof - undue influenc - unjust enrichment - illegal sale of property - discharge of a guarantee – stopped - breach of fiduciary duty - committal proceedings
Words and phrases:
Legislation cited:
Cases cited:	Reed v Matailiga [2005] WSSC 1
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

SULUAPE EMOSI of Sogi, married man.
First Plaintiff

AND:

AIGA EMOSI of Sogi, married woman.
Second Plaintiff

AND:

ANZ BANK (SAMOA) LIMITED, a company duly incorporated company having its registered office at Apia.
Defendant

Counsel: R Drake for plaintiffs
M G Latu for defendant

Hearing: 26 October 2016

Ruling: 26 October 2016

RULING OF NELSON J
(Motion to Strike Out)

Background

[1] The plaintiffs were registered owners of property at Siusega mortgaged to the defendant bank to secure advances made originally to the plaintiffs and subsequently to their son and daughter-in-law. By the end of 2010 the mortgagors were in default and default notices were served on all concerned. The default was not remedied and the defendant exercised its power of sale to a third party. The third party was unable to take possession of the property so the defendant issued eviction proceedings. Returns of service were filed and because the proceedings were not defended, the Chief Justice on 10 June 2013 issued a judgment by way of formal proof evicting the plaintiffs. Committal proceedings also became necessary but were subsequently withdrawn by the defendant.

[2] In July 2013 the plaintiffs applied to set aside the formal proof judgment on the basis that they were not served with the relevant summonses or default notices. The matter came before me for hearing and by oral decision dated 20 November 2013 I dismissed the application finding that the plaintiffs had been properly served with all relevant documentation.

[3] The plaintiffs have now filed a claim against the Bank alleging breach of fiduciary duty by the Bank and/or its solicitors, undue influence, unjust enrichment, illegal sale of their property and discharge of a guarantee given by the first plaintiff. Substantial damages both general and exemplary are claimed.

[4] The defendant has filed a Motion to strike out the claim or at least the second, third, fourth and fifth causes of action based on the doctrine of res judicata. It alleges because of that, the claims are frivolous, vexatious and an abuse of process. During the course of hearing argument, defence counsel conceded the first cause of action premised on breach of fiduciary duty was maintainable. But not the rest. He argues these were or at least could and should have been raised in the proceedings of 2013 before me.

[5] As indicated to counsel I have considered the written submissions filed as well as his oral arguments. I respectfully disagree with the proposition that the issues raised in the current proceedings were addressed or judicially determined in the 2013 action or could and should have been. He has misconstrued the scope of the previous proceeding. That was simply an application to set aside the formal proof judgment, nothing more.

[6] I accept that in the course of the enquiry the parties gave evidence on a number of collateral and extraneous issues. This is reflected in the courts judgment. But they were not part of the essential questions to be determined and were not the subject of the ruling. In relation to at least one matter, the Guarantee, I observed at paragraph 23, it:

“has no relevance to the present proceedings. Which are about setting aside a judgment in relation to actions taken pursuant to the mortgage. A mortgage the validity of which has not been challenged.” (emphasis mine and reinforces the last sentence of paragraph 1 of the judgment where it is stated “defendant counsel advised at the outset of these proceedings the validity of the mortgage was not in question”).

[7] Counsel cited paragraph 23 as indicative of the fact that the court considered argument on matters such as the Guarantee and made findings which now estop the plaintiffs. That is not correct generally or in relation to paragraph 23 specifically. From the plain words of the judgment it is clear I considered the issue of the Guarantee irrelevant. It is further clear I made no ruling in relation to the validity or otherwise of the Guarantee or like matters. The courts decision was specific to the application before it, viz setting aside judgment on the basis of non-service of the relevant summons. The reference to other matters matters not.

[8] Counsel also relied on the doctrine of abuse of process arguing that if the plaintiffs were not estopped by res judicata they were because of abuse of process. To this end he cited in his oral and written submission inter alia, from the judgment of Chief Justice Sapolu in Reed v Matailiga [2005] WSSC 1 the oft quoted words of Wigram, V-C:

“.....when a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward.....”

[9] That indeed is the accepted exposition of the law. But with respect it does not support his argument. To wit the opening words of the quote: “when a given matter” i.e. the matters now before the court of allegations of undue influence, unjust enrichment, etc. “becomes the subject of litigation in and adjudication by a court....” The issues now raised by the plaintiffs were neither the subject of litigation or the subject of adjudication. And I assume he is not challenging the competency of the court. At least for the moment! That being the case and in view of the plaintiffs indication that the validity of the mortgage was not in dispute, it was not incumbent on the plaintiffs to raise these matters in the earlier proceeding.

[10] The Motion to Strike Out has no basis. It is dismissed. The plaintiffs are entitled to costs to be fixed upon the final determination of these proceedings. Defendant to file and serve a Statement of Defence forthwith. Matter adjourned to 07 November 2016 for mention.

JUSTICE NELSON