Siaosa v Electric Power Corporation [2017] WSSC 153 (3 November 2017)

SUPREME COURT OF SAMOA
SIAOSA v ELECTRIC POWER CORPORATION [2017] WSSC 153

Case name:	Tuiletufuga Le’apai Siaosa v The Electric Power Corporation
Citation:	[2017] WSSC 153
Written Reasons date:	3 November 2017
Parties:	TUILETUFUGA LE’APAI SIAOSA (Applicant) v THE ELECTRIC POWER CORPORATION Respondent
Ruling date(s):	27 October 2017
File number(s):	CP 109/17
Jurisdiction:	Civil
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Leilani Tuala-Warren
On appeal from:
Order:	The Motion for an Interim Injunction is denied. An incidental order is made that any obstacles placed on the access road by the Applicant be removed forthwith
Representation:	J Stowers-Fiu for the Applicant T Lamb for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Taking of Land Act 1964, section 6
Cases cited:	ANZ Bank (Samoa) Ltd v Summit Cargo Group Samoa Ltd [2005] WSSC 44 (22 April 2005)
	W v Public Trustee [1935] NZLR s.22; [1935] GLR 163 Excott v Thomas [1934] NZLR s.175; [1934] GLR 544 China Construction Realty Ltd v China International Club Ltd [2007] WSSC 52
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

TUILETUFUGA LE’APAI SIAOSA
Applicant

A N D

THE ELECTRIC POWER CORPORATION
Respondent

Counsel:
J Stowers-Fiu for the Applicant
T Lamb for the Respondent

Written Reasons: 3 November 2017

WRITTEN REASONS OF TUALA-WARREN J

1. This is an application by the Applicant for the issue of an interim injunction for orders;

Prohibiting and restraining the Respondent or any of its servants, representatives or agents from carrying out non consented works at Lelata.

2. The Application was made ex parte. On 13 October 2017, Clarke J made an order for the Applicant to serve proceedings on the Respondent and for the application to be heard inter partes.
3. The matter was then mentioned before me on 24 October 2017 and the Respondent was ordered to serve and file a response by 4pm Thursday 26 October 2017.
4. The matter proceeded to hearing on Friday 27 October 2017, at the end of which I made an oral ruling to decline the application for an interim injunction.
5. These are my written reasons.

Preliminary Comments

6. At the outset, there are several matters of concern which I raised with Counsel for the Applicant, which need to be reiterated for the benefit of future ex parte applications.
7. The first is the duty of a solicitor bringing an ex parte application. In ANZ Bank (Samoa) Ltd v Summit Cargo Group Samoa Ltd [2005] WSSC 44 (22 April 2005) Vaai J, cited the following case which dealt with this duty;

In United People’s Organisation (World Wide) Inc. v Rakino Farms Ltd (No.1) supra it was said by Gresson J at page 738:

“It is well settled that it is the duty of a solicitor certifying to an ex parte application to makefullest disclosure sure to the Court of all matters relevant to such an application, whether or not such solicitor considery sucter unimportant. He has a duty to disclose to the Court the defence to the actionction if h if he knows it, and the facts on which it is based, so that the court can judge for itself whether they are material or not. Failure to do so may in itself furnish ground for dissolving the injunction, W v Public Trustee [1935] NZLR s.22; [1935] GLR 163; Excott v Thomas [1934] NZLR s.175; [1934] GLR 544; Simpson v Murphy [1947] GLR 411.

“If on a motion to dissolve an ex parte interim injunction it appears that the plaintiff had misstated his case, either by misrepresentation or by the suppression of material facts, so that an injunction has been obtained which might have been refused if all the facts had been stated, that in itself is sufficient ground for dissolving the injunction. There was no want of good faith on the part of the solicitors for the plaintiff, as is admitted by counsel for the defendant, but in my view there was a failure to make full disclosure of all the relevant facts including the terms of cl 19 of the agreement. Had these facts been placed before the court there is room for the suspicion, which might later prove either well-founded or unwarranted, that the application for the interim injunction was filed merely to gain time while the plaintiff endeavoured to extricate itself from the consequences of its failure to meet the June instalment and to pay interest at the appropriate rate. This might have involved refusing the interim injunction altogether, or granting it on “terms””.

8. In AB v MN [2017] WSSC 79, Sapolu CJ said;

In China Construction Realty Ltd v China International Club Ltd [2007] WSSC 52, this Court referred to Equity and Trusts in Australia and New Zealand (2000) 2nd ed by Dal Pont and Chalmers where the learned authors said at p.813:

“In any ex parte application, the plaintiff must act bona fide and make a full and fair disclosure of all material facts, the importance of which can scarcely be overemphasised. An ex parte injunction obtained without such disclosure is liable to be dissolved so as to restore the defendant to her or his pre-injunction position (although the plaintiff may apply de novo for an injunction upon the merits). This is because it is no defence to the dissolution of an ex parte injunction that the plaintiff was unaware of the importance of certain undisclosed facts which the plaintiff should have known had he or she made proper inquiries. To this end, it has been said that the applicant should err on the side of excessive disclosure, such that if a matter is of uncertain relevance, it ought to be the Judge and not the applicant or her or his solicitors who determines relevance.

“Two riders must be added to the foregoing statements. First, an injunction granted ex parte will not be automatically discharged; rather ‘there needs to be a consideration of whether or not the materiality was sufficient to justify discharge without examination of the merits and of the circumstances generally. Whether the fact not disclosed is of sufficient materiality to justify or require the immediate dissolution of the order without examination of the merits depends on its importance to the issues which were to be decided by the Judge on the application. Where, for instance, the lack of disclosure does not stem from a deliberate lack of candour, and is not of a major character overall, such that the injunction would in any event have been granted, the Court may exercise its discretion to uphold it...

“Secondly, the disclosure obligation does not extend to facts outside of which the applicant knew or should have known. The extent of the requisite inquiries depends on the circumstances of each case, including the type and probable effect of the order on the defendants, the degree of legitimate urgency and the time available for the making of inquiries”.

9. His Honour Sapolu CJ concluded;

As it would appear from the above authorities, the duty or obligation to make full and fair disclosure is part of the overall duty to act in good faith. But not every non-disclosure will inevitably result in a without notice order or ex parte injunction being set aside. It is a matter of discretion.

10. In this case, there was a material non-disclosure in the Application which was discovered from the Respondent’s reply. Significantly it was a payment of $60,000 which was made to the Applicant in 2015 which was not disclosed in the application. Counsel for the Applicant confirmed this payment from the bar table. This is an obvious and material non-disclosure which cannot be blamed on oversight and I remind Counsel of this duty. The Applicant should err on the side of excessive disclosure.
    11. The grant of an interim injunction is a discretionary equitable remedy ( See: Eteuati v National Provident Fund[2005] WSSC 14 (31 August 2005), and Ah Kuoi v Ah Kuoi (22 May 2017)). The maxim "a person who comes to equity must come with clean h#8221; should beld be kept in mind when seeking equitable remedies.
    12. In this case, although the Court is entitled to dismiss the appe application on the basis of the non-disclosure of this material fact alone, I decided to proceed to hear from Counsel.
    13. The second matter which I must comment on is the Undertaking as to Damages.
    14. In Brezeale v Lam [ WS8] 64 (21 August 2008)2008) Sapolu CJ said;

The practice of the Court with regard to a motion for an in injun is quire the party (usually the plaintiff) who brings the motion to file aile an undn undertakertaking as to damages. The reason for this was explained by this Court in Board of Trustees of the Congregational Christian Church of Samoa v Pouvi [2003] WSSC 4 where it is said:

"As the authorities show, the correct procedure to be followed by the defendant who has sustained loss in consequence of an interlocutory injunction that was granted in error upon application by the plaintiff is to apply to the Court to enforce the plaintiff’s undertaking as to damages. It is therefore of significance to note the form of the undertaking as to damages that has been filed by the plaintiff. Without an undertaking the Court has no jurisdiction to award damages for loss sustained by the defendant in consequence of an injunction that was wrongly made. It is the undertaking that gives the Court jurisdiction. As a matter of practice, the Court usually requires an undertaking from the plaintiff who applies for an interlocutory injunction before an injunction is granted. This is mainly because if the injunction turns out to have been granted in error, the defendant who has suffered loss will be without a remedy if the plaintiff has not given an undertaking. In Equity and Trusts in Australia and New Zealand (2002) 2nd ed by Dal Pont and Chalmers, it is stated at p821:

"If damages would not provide an adequate remedy, the Court will consider whether, if the plaintiff fails, the defendant would be adequately compensated under the plaintiff’s undertaking in damages, in which case an interlocutory injunction may be granted. The practice of requiring an undertaking constitutes an implicit recognition that, without such undertaking, the defendant would be without remedy in the event of the injunction having been improperly ordered. Moreover, the undertaking functions to protect, not solely the defendant, but also the Court, from improper or indiscriminate applications for injunctions. The undertaking is given to the Court, not to the party enjoined. In the absence of such undertaking, the Court has no power to award damages for the harm suffered by the defendant from the order made in error. The Court’s jurisdiction in this context arises out of the plaintiff’s undertaking. So damages awarded under such an undertaking are of a different nature than those awarded at common law, having a special character deriving from their source in the plaintiff’s own voluntary undertaking, given as the price of obtaining an injunction. The damages in question are generally those which flow directly from the injunction and which could have been foreseen when the injunction was granted."

15. Sapolu CJ further said that the failure of a party seeking an interim injunction to give an undertaking as to damages may provide good ground in the exercise of the Court’s discretion to refuse an injunction. But the absence of an undertaking as to damages is not of itself sufficient ground for refusing an interim injunction or for discharging an order for an interim injunction: Equity and Trusts in Australia and New Zealand (200) 2nd ed by Dal Pont and Chalmers at pp821, 822.
16. The Applicant had filed an Undertaking as to Costs. Costs are, as a matter of law, different from damages. In the case of Brezeale v Lam, the Court dealt with a similar situation in which an Undertaking as to Costs accompanied the plaintiff’s motion for an interim injunction. In that case, Sapolu CJ said that this is not an undertaking as to damages. Costs and damages are two different things.
17. I decided to proceed in the absence of an Undertaking as to Damages, meaning that the risk to the Respondent is great. This is because without an undertaking the Court has no jurisdiction to award damages for loss sustained by the Respondent in consequence of an injunction wrongly made.
18. Counsel for the Respondent raised the issue of the bona fides of the Applicant. The question of whether the Applicant is ready, willing and able to pay any award of damages to the Respondent in the event that an interim injunction is granted causing damages and losses to the Respondent, is a fair question. Counsel for the Respondent submits that the Applicant has not provided any evidence whatsoever as to his ability to pay damages or costs to the respondent, even if we were to proceed on the basis that the Undertaking as to Costs filed by the Applicant is construed as an Undertaking as to Damages.
19. I agree with Counsel for the Respondent. Not only is an Undertaking as to Damages an important matter, but equally important is an undertaking given by an Applicant ready and able to pay an award of costs. Otherwise it is a futile exercise for the Court in exercising its jurisdiction to award damages which cannot be paid. It is encouraged that future undertakings as to damages are accompanied by an adequate affidavit about the means of the Applicant.

The Law

20. The law governing the grant of an interim injunction is found in Samoa Democratic United Party (SDUP) v Leiataua [2007] WSSC 15(12 March 2007) where Sapolu CJ stated;

The two requirements which the Court has to consider in determining whether to grant an interim injunction are, firstly, whether there is a serious question to be tried and, secondly, where the balance of convenience lies. This approach has been adopted and applied in a number of Samoan cases dealing with motions for interim or interlocutory injunctions. It is also the approach followed in other comparable common law jurisdictions in proceedings for interim or interlocutory injunctions.

A serious question to be tried in this context means an issue that is triable in law. An issue that is frivolous or vexatious will not qualify as a serious question to be tried by the Court. The expression "balance of convenience" means the balance of the risk of doing an injustice at a very early stage of proceedings when not all the evidence is before the Court. This requires the Court, in assessing where the balance lies, to weigh the respective risks that an injustice may result from its deciding one way rather than the other when not all the evidence is before it.

21. In Esera v National University ooa [2003] WSSC 12 (8 August 2003) Sapolu CJ spoke of the first requirement;

At the first stage the Court considers whether there is a serioestion to be tried. This is often referred to as the threshhreshold test. It must be stressed that this test is not simply whether there is a question to be tried, it is whether there is a serious question to be tried which would justify interim intervention by the Court. Sometimes, perhaps more often than it should have been, the word serious which qualifies the word question is either overlooked or not given due weight. To simply state that a question is a serious one without more is also not sufficient.

22. This is the approach which has been followed by the Courts when determining applications for interim injunctions.(See: Milford v Fidow [2008] WSSC 67( 7 August 2008))
23. It is now necessary to turn to the merits of this application in the light of the approach set out.

Discussion

24. The serious question to be tried according to the Applicant is premised on his contention that his customary lands have been taken by the Respondent, without compliance with the process for the taking of land pursuant to the Taking of Land Act 1964 (the Act).
25. There was no mention in his affidavit of $60,000 being paid to him by the Respondent on 3 November 2015 which was payment for land at Leufisa for access road.
26. The response by the Respondent is premised on their contention that although they have a clear intention to take the land, they have not taken the land yet, and the Applicant has pre-empted the process. They have made payment to the Applicant for the use of this access road.
27. I do not find that there is a serious question to be tried in this case. The question on which the Applicant seeks relief is premature. The Applicant accepts that the land will be taken by the Respondent pursuant to the Taking of Land Act 1964. Customary land may be taken for any public purpose (section 6 of the Act) provided the procedure for taking of the land is followed in Division 2 of Part 2 of the Act (ss14-19). The Applicant’s frustration which is really the issue here, is that the Respondent is taking so long to complete the process and he requires compensation. With respect to the Applicant, the issue of compensation is a given under Part 3 of the Act and a full and just compensation is required. If compensation is not agreed upon by the parties, then the Court shall determine compensation (s 26(3) of the Act). However the matter has not reached that stage. Unless and until the Respondent goes through the process as required under the Act, compensation does not become a live issue to be determined.
28. The parties are talking past each other. The Applicant has had history with the Respondent where there is no suggestion that the Respondent has been underhanded in its dealings with him. It is not disputed the parties have dealt with each other in 2011 on similar matters.
29. The next step is the "balance of convenience" which means the balance of the risk of doing an injustice at a very early stage of proceedings when not all the evidence is before the Court. This requires the Court, in assessing where the balance lies, to weigh the respective risks that an injustice may result from its deciding one way rather than the other when not all the evidence is before it.
30. In terms of balance of convenience, what I can garner from the Applicant’s affidavit is that the risk or inconvenience to him is the serious social and environmental impacts of the Respondent’s development on his family’s customary land. Social impacts are “exacerbating problems with peace and harmony amongst our family and the nearby village of Maagiagi”(para 10 of the Applicant’s affidavit). The Applicant mentions one recent incident “when some of my family members staying near the said road were involved in a fight with some drunk and disorderly people from the village of Maagiagi who used the new road for drinking sometime this year” (para 3 Affidavit of Applicant). There is no elaboration on the environmental impacts.
31. On the other hand, the Respondent is engaged in a rehabilitation project to rehabilitate its water pipes system which is connected to Hydro Power Stations Alaoa, Samasoni and Fale ole Fee which was extensively damaged by Cyclone Evan in 2012. As a result the Respondent has entered into a construction contract with a combined value of approximately USD$9.66 million. The respondent has engaged third party contractors at considerable costs to carry out the necessary works in order to provide a stable and regular supply of electricity for Samoa. The new target date for the completion of the project is February 2018(paras 4-7 Affidavit of W. Pogi).
32. In terms of risk and inconvenience, the Respondent says “the Respondent’s Project is a very significant piece of work and is vital for the country. If the project is delayed any further it is more than likely that the Respondent will incur considerable costs which are not quantifiable at this time” (para 21 affidavit of W. Pogi). This is because the Respondent has engaged third party contractors at considerable cost and has entered into a construction contract with a combined value of over $9 million USD.
33. In terms of assessing the balance of convenience, I assess the frustration of the Applicant and his concerns about peace and harmony arising from one incident, to the delay and costs of a project which is beneficial to Samoa and which will likely incur significant cost to the Respondent and ultimately to the consumers if stopped at this time.
34. I find the balance of convenience favours the refusal of the interim injunction.

Result

35. The Motion for an Interim Injunction is denied. An incidental order is made that any obstacles placed on the access road by the Applicant be removed forthwith.

The Way Forward

36. Counsel for the Respondent submitted that a Judicial Settlement Conference (JSC) would be appropriate to settle this matter. There was no objection from Counsel for the Applicant. I agree that a JSC is the proper course to take to settle this matter and have scheduled the JSC for 17 November 2017 before me. I direct both parties to attend.
37. The JSC will deal with some timelines for the Respondent to comply with in terms of taking the Applicant’s land pursuant to the Act. This is important as the Project is fast coming to an end.
38. More significantly, the payment for the access road will be discussed so that there is an understanding amongst the parties about the terms of this payment which are presently unclear.
39. Costs of these interim proceedings are reserved.
    

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN