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Lauano v Attorney General [2022] WSSC 25 (27 July 2022)

IN THE SUPREME COURT OF SAMOA
Lauano v Attorney General [2022] WSSC 25 (27 July 2022)


Case name:
Lauano v Attorney General


Citation:


Decision date:
27 July 2022


Parties:
SALA TOIAIVAO LAUANO, of Lotopa (Plaintiff) v ATTORNEY GENERAL, sued for an on behalf of the Ministry of Justice and Courts Administration, Government of Samoa (Defendant)


Hearing date(s):
05th July 2022


File number(s):



Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Leiataualesa Daryl Clarke


On appeal from:


Order:
For the foregoing reasons, I have concluded that:

(a) These proceedings brought by the Plaintiff against the Defendant are doomed to fail and should therefore be struck out. Accordingly, the Statement of Claim is struck out in its entirety; and
(b) Counsel are to agree as to costs, failing which, counsel are at liberty to file memoranda as to costs within 14 days.


Representation:
P. Chang for the Plaintiff
F. Sofe & V. Leilua for the Defendant


Catchwords:
Strike out motion


Words and phrases:
“delay in delivering judgment” – “rights to a fair trial”


Legislation cited:
Companies Act 2001, s. 8(2);
Constitution of the Independent State of Samoa 1960, Article 9(1);
Government Proceedings Act 1974, ss. 2; 6(1); 6(3);
Limitation Act 1975, s. 21;
Ministerial and Departmental Arrangements Act 2003, s. 4(2);
Supreme Court (Civil Procedure) Rules 1980, r. 70; 125.


Cases cited:
Enosa v Samoa Observer Company Ltd [2005] WSSC 6 (29 April 2005);
Halsbury’s Laws of England, 4th ed, para 550;
Hansell v Attorney General [2018] WSSC 74 (4 May 2018);
Hill v Hamilton Wentworth [2007] 3 SCR 129;
Land and Titles Court v Kalevini [2017] WSCA 8;
National Pacific Insurance Ltd v Vaivaimuli Corporation Ltd [2020] WSCA 3;
Sapolu v Saaga [2018] WSCA 9 (25 October 2018);
Tafililupetiamalie v Attorney General [2015] WSSC 62 (30 June 2015);
Woodroffe v Fisher [2017] WSCA 9 (15 September 2017);
Woodroffe v Mataia [2017] WSCA 5 (31 March 2017).


Summary of decision:

IN THE SUPREME COURT OF SAMOA


HELD AT MULINUU


BETWEEN:


SALA TOIAIVAO LAUANO of Lotopa.


Plaintiff


A N D:


ATTORNEY GENERAL, sued for and on behalf of the Ministry of Justice and Courts Administration, Government of Samoa.


Defendant


Counsel: P. Chang for the Plaintiff

F. Sofe and V. Leilua for Defendant
Hearing: 5th July 2022.
Judgment: 27th July 2022


JUDGMENT (MOTION TO STRIKE OUT)

A. INTRODUCTION

  1. This is a strike out application by the Defendant pursuant to rule 70 of the Supreme Court (Civil Procedure) Rules 1980 and/or the inherent jurisdiction of the Supreme Court.

B. BACKGROUND

  1. The Plaintiff pleads that he “was the owner and managing director of Lauano Construction Company Limited” [1] (“LCCL”). In or about June 2004, LCCL commenced legal proceedings against the Corporation of the Presiding Bishopric of the Church of the Latter Day Saints Church Education System (“LDS”). The Plaintiff pleads that the LCCL claim against the LDS proceeded to hearing before the Supreme Court on the 2nd December 2005, 17th and 18th January 2006, 16 and 17 July 2008 with closing submissions heard on the 6th February 2012. On 11 September 2019, judgment was delivered “in favour of the plaintiff” (LCCL) in the sum of $172,447.86 by late Chief Justice Sapolu.[2]
  2. In these proceedings, the Plaintiff complains that he “had to await for the decision to be delivered seven years after the proceeding was completed before the Court.”[3] During that time, the Plaintiff says he incurred debts “to cover the running operation costs of his business during this seven years whilst awaiting the decision.”[4] Consequently, the “plaintiff suffered in not having the use of these funds from this matter to carry out operation costs of his business as well as to service debts incurred already in performing the contract which is the subject of the claim against the LDS.”[5] The delay in delivering the judgment allegedly caused the Plaintiff to incur costs.[6]
  3. The Plaintiff sues the Defendant on the basis that Sapolu CJ “was a Judge and/or officer and/or employee of the Government of Samoa through/or under the Ministry of Justice and Court Administration.”[7] As a result of the delay in the delivery of judgment, the Court breached his right to a fair trial guaranteed by article 9 of the Constitution. Further, the Plaintiff alleges that the:
  4. The Plaintiff alleges that the Defendant is vicariously liable “for the actions” of Sapolu CJ for breach of his right to a fair trial and negligence. The Plaintiff claims:

C. THE BASIS OF THE DEFENDANTS STRIKE OUT MOTION

  1. By Strike Out Motion dated 14 December 2020, the Defendant applies to strike out the Plaintiff’s claim on the grounds that, in summary:
  2. When this matter proceeded to hearing, the Defendant advanced a further ground that the Plaintiff had failed to comply with the notice requirements of section 21 of the Limitation Act 1975. This ground was abandoned by the Defendant by Memorandum to the Court dated 6th July 2022.

D. THE LAW – STRIKE OUT

  1. The principles governing the exercise of the Court’s jurisdiction to strike out are well settled. There are two sources of the Supreme Court’s jurisdiction to strike out proceedings. These are rule 70 of the Supreme Court (Civil Procedure) Rules 1980 and the inherent jurisdiction of the Court on the basis that these proceedings are frivolous, vexatious and an abuse of the court process.
  2. In Woodroffe v Mataia [2017] WSCA 5 (31 March 2017), the Court of Appeal stated in terms of rule 70:
  3. Where strike out proceedings are brought in the Supreme Court’s inherent jurisdiction, Sapolu CJ in Enosa v Samoa Observer Company Ltd [2005] WSSC 6 (29 April 2005) stated:
  4. The facts pleaded are to be taken as capable of proof and if the claim “can be saved by amendment of the pleadings, or parties, this may be permitted since a litigant’s right of access to the court is not to be lightly denied. Only when a claim is doomed to fail should an order striking it out be made.”[9]

E. DISCUSSION

Locus Standi

  1. I will first deal with the Defendant’s ground for strike out that the Plaintiff has no standing to bring these proceedings in his personal capacity. Sapolu CJ entered judgment against the LDS in favour of LCCL. The Plaintiff was not a party to those proceedings. The Plaintiff pleads that he “was the owner and managing director” of LCCL. In her written submissions at paragraph 14, counsel for the Plaintiff further elaborates that:
  2. The Plaintiff claims that as a result of the delay in judgment, he incurred debt “to cover the running operation costs of his business during this seven years whilst awaiting the decision.”[10]
  3. I am satisfied that the Plaintiff has no standing to bring these proceedings in his personal capacity. If the Plaintiff had incurred personal costs to finance the continued operations of LCCL, that was a matter between the Plaintiff and LCCL. That he may have incurred those costs does not give the Plaintiff standing to bring this claim arising from the alleged breach of purported rights arising from a judgment in which he was not a party. Section 8(2) of the Companies Act 2001 recognizes a basic tenet of company law that a company possesses separate legal personality to its shareholders:
  4. To cure the problem with standing, the Plaintiff submits that an amendment to the Statement of Claim can be made to include LCCL as a party to these proceedings. If the Statement of Claim can be saved by an amendment, this may be permitted “since a litigant’s right of access to the court is not to be lightly denied.”[11]
  5. The Plaintiff’s Statement of Claim pleads that he “was the owner and managing director of Lauano Construction Company Limited.”[12] The Plaintiff pleads that LCCL “no longer exists”.[13] As an incorporated body that “no longer exists”, LCCL must have been removed from the Samoa Companies Register. As such, it cannot now be joined as a party to these proceedings. LCCL does not legally exist to be joined.
  6. In response to questions from the Court on standing and despite submissions referred to in paragraph 15 above, Plaintiff’s counsel from the bar table submitted that based on instructions that morning, LCCL may never have existed as a company and that the Plaintiff had operated the business as a sole trader. In effect, the gist was that the earlier proceedings in which judgment was delivered was brought in the name of LCCL in error instead of the Plaintiff personally. Counsel submitted that the Plaintiff’s standing could be cured by an amendment to the Plaintiff’s pleadings to reflect this.
  7. Given that the claim for damages in these proceedings relate to alleged delays in delivering judgment in proceedings between LCCL and the LDS, this submission does not assist the Plaintiff. The judgment was in favour of “Lauano Construction Company, a duly incorporated company having its registered office at Lotopa.” In this context, “[s]ubject to appeal and to being amended or set aside, a judgment is conclusive as between the parties and their privies, and is conclusive evidence against all the world of its existence, date and legal consequences.”[14]
  8. For the Plaintiff, this raises a number of hurdles. First, the judgment is conclusive, including as between the parties to those proceedings and their privies. To now claim that the judgment obtained by LCCL was in error does not assist the Plaintiff to establish standing to sue in his personal capacity for damages in these proceedings.
  9. Second, there are no proceedings to amend the judgment. Although the Court has a power to amend its own judgment, that power is also limited.[15]
  10. Third, if the judgment were to be set aside, there would be no basis upon which the Plaintiff could sue for delay as there would be no judgment to complain of.
  11. Fourth, the submission was made from the bar table on the hearing of the Defendant’s strike out motion in the absence of any supporting evidence.

Negligence, the Government Proceedings Act 1974 and Vicarious Liability

  1. The Plaintiff alleges that the Defendant owed him “a duty of care to ensure that judgment and/or proceedings in the claim against the LDS is completed or finalized for the finality” and that by the Defendant failing to observe this duty, was negligent in the excessive delay in completing the proceeding by delivering the judgment within a reasonable time.”[16] The Plaintiff submits that his cause of action against government based in negligence is an “accepted cause of action against the Government.” Accordingly, it should not be struck out.
  2. In support of this submission, the Court is referred to Hill v Hamilton Wentworth [2007] 3 SCR 129 and Hansell v Attorney General [2018] WSSC 74 (4 May 2018). These authorities relate to allegations of negligence against Police. They have no relevance to the present proceedings because there is no question under Samoan law that claims against government for negligence can be instituted. Tortious claims against Government are expressly provided for by section 6(1) of the Government Proceedings Act 1974 (“GPA 1974”) which provides:
  3. Tortious claims against “Government” however have limitations. These expressly exclude liability for the acts and/or omissions of Judges and judicial officers. “Government Department” or “Department” is defined under the GPA 1974 to mean “the Public Trustee and every other Department or instrument of the Executive Government of Samoa”.[17] Schedule 1 of the Ministerial and Departmental Arrangements Act 2003 sets out Government Ministries which are departments of the Government.[18] Government Department includes the Ministry of Justice and Courts Administration. Judicial officers however are not an officer of the Government nor part of a department of Government, which includes the Ministry of Justice and Courts Administration. This is because an “officer” in relation to the Government is defined as “includes a servant of the Government, and includes a Minister of the Government; but does not include ... any Judge, District Court Judge, Faamasino Fesoasoani, or other judicial officer.” (emphasis added)
  4. In these proceedings, the Plaintiff’s claim is brought against the “Ministry of Justice and Court Administration (sic), Government of Samoa”. As Judges and judicial officers are not officers of the Government nor are they part of a department of Government for the purposes of the GPA 1974, the “Government” (which includes the Ministry of Justice and Courts Administration) cannot be held liable for alleged tortious acts or omissions of Judges and judicial officers.[19]
  5. Further, section 6(3) of the GPA 1974 also expressly exempts Government from tortious liability for anything done or omitted to be done by judicial officers in the discharge of their judicial functions. Section 6(3) provides:
  6. In hearing and delivering judgment in Lauano Construction Company v Corporation of the Presiding Bishopric of the Church of the Latter Day Saints Church Education System, Sapolu CJ was discharging “responsibilities of a judicial nature” vested in him. As such, the Plaintiff’s claim in negligence against the Defendant on behalf of Sapolu CJ is also expressly barred by section 6(3) of the GPA 1974.
  7. Further, any general claim in negligence against Sapolu CJ arising from the proceedings between LCCL and LDS would also fail on the basis of judicial immunity.[20] As the Court of Appeal stated in relation to the scope of judicial immunity in Woodroffe v Fisher [2017] WSCA 9 (15 September 2017) at paragraph 25:
  8. In Sapolu v Saaga, the Court of Appeal stated that “[w]e conclude that if a District Court judge acts within his or her subject matter jurisdiction the immunity applies. Allegations of bad faith or gross negligence are irrelevant.” This applies equally to claims of negligence against Judges of the Supreme Court.
  9. The Plaintiff’s cause of action grounded in negligence is doomed to fail.

Breach of Constitution Article 9(1)

  1. The Plaintiff claims that due to the delay by Sapolu CJ in delivering his judgment, his article 9(1) rights guaranteed by the Constitution were breached. Article 9(1) of the Constitution relevantly provides:
  2. In National Pacific Insurance Ltd v Vaivaimuli Corporation Ltd [2020] WSCA 3, the Court of Appeal ruled that a judgment delivered by Sapolu CJ 22 years after the hearing was unsafe for a number of reasons, including due to the delay. As a result, the judgment was set aside by the Court of Appeal and consequently, the Plaintiff could not bring its claim against NPI to a finality.[21] The Court of Appeal relevantly stated that:
  3. Relying on National Pacific Insurance Ltd v Vaivaimuli Corporation Ltd, the Plaintiff through counsel submits that there “is clearly a cause of action arising from the delay in judgment and any further arguments in relation to the cause of action is to be discussed in the substantive hearing.”[22] This is to overstate the judgment. The judgment provides that liability to pay compensation for the delay in rendering judgments is arguable. The Court of Appeal did not recognize that where there is established delay in the rendering of a judgment by a Court, Government will be liable to pay compensation under article 9(1) of the Constitution.
  4. The key difficulty for the Plaintiff here is that he has no standing to bring an article 9(1) claim in terms of any alleged harm suffered due to any alleged delay by Sapolu CJ in delivering his judgment in the LCCL and LDS proceedings. Whilst it is arguable that “the right to a hearing within a reasonable time includes a right to have a judgment pronounced within a reasonable time” and consequently, the alleged delay by Sapolu CJ might constitute a breach of article 9(1) of the Constitution, the Plaintiff was not a party to those proceedings. The LCCL v LDS proceedings did not entail the determination of his civil rights and obligations, but those of LCCL. The Plaintiff’s claim for the alleged breach of his article 9(1) rights by the Defendant has no prospects of success.

Failure to Plead Sufficient and Specific Facts

  1. I do not need to address this specific aspect of the Defendant’s submissions in support of its strike out motion except only to repeat that if the claim can be saved by amendment, an amendment may be permitted to cure any deficiency in the pleadings. For the reasons that I have set out earlier, the Plaintiff’s proceedings cannot be saved.

F. RESULT

  1. For the foregoing reasons, I have concluded that:

JUSTICE CLARKE


[1] Paragraph 1, Statement of Claim (SoC).
[2] Paragraph 6, SoC.
[3] Paragraph 7, SoC.
[4] Paragraph 8, SoC.
[5] Paragraph 9, SoC.
[6] Paragraph 10, SoC.
[7] Paragraph 11, SoC.
[8] Paragraph 14, SoC.
[9] Woodroffe v Fisher [2017] WSCA 9 (15 September 2017).
[10] Paragraph 8, SoC.
[11] Woodroffe v Fisher, above n.9.
[12] Paragraph 1, SoC.
[13] Plaintiff’s Submissions Opposing Strike Out, 03 July 2022 at paragraph 14.
[14] 26 Halsbury’s Laws of England, 4th ed, para 550.
[15] See: rule 125, Supreme Court (Civil Procedure) Rules 1980.
[16] Paragraph 14, SoC.
[17] Section 2, Government Proceedings Act 1974. The Constitution also expressly differentiates the Executive arm of government (Part IV) from the Judicial Arm of government (Part VI).
[18] Section 4(2), Ministerial and Departmental Arrangements Act 2003.
[19] See also: Land and Titles Court v Kalevini [2017] WSCA 8, para 26.
[20] See generally the principles of judicial immunity discussed in: Tafililupetiamalie v Attorney General [2015] WSSC 62 (30 June 2015); Woodroffe v Fisher [2017] WSCA 9 (15 September 2017); Sapolu v Saaga [2018] WSCA 9 (25 October 2018).
[21] National Pacific Insurance Ltd v Vaivaimuli Corporation Ltd [2020] WSCA 3 at para 27.
[22] Plaintiff’s Submissions Opposing Strikeout, 3rd July 2022 at p.3.

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