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Leota-Vaai v Samoa Water Authority [2023] WSSC 62 (22 September 2023)

IN THE SUPREME COURT OF SAMOA
Leota-Vaai v SWA & Anor [2023] WSSC 62 (22 September 2023)


Case name:
Leota-Vaai v SWA & Anor


Citation:


Decision date:
22 September 2023


Parties:
SIMEAMATIVA LEOTA-VAAI (Applicant) v SAMOA WATER AUTHORITY (First Respondent) & THE MARIST FATHERS IN SAMOA INCORPORATED (Second Respondent)


Hearing date(s):
6th & 13th July 2023


File number(s):
MISC176/17


Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Niavā Mata K. Tuatagaloa


On appeal from:



Order:
The application to strike out is dismissed.


Representation:
K Koria for Applicant
V Leilua & F Sofe-Tuala for First Respondent
P Fepulea’i for Second Respondent


Catchwords:



Words and phrases:



Legislation cited:



Cases cited:



Summary of decision:

MISC 176/17


IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER:


a claim for Declaratory Orders and relief under the Declaratory Judgments Act 1988.


BETWEEN:


SIMEAMATIVA LEOTA-VAAI, of Palisi


Applicant


AND:


SAMOA WATER AUTHORITY, a statutory body continued by the Samoa Water Authority Act 2003.


First Respondent


AND:


THE MARIST FATHERS IN SAMOA INCORPORATED, an incorporated society pursuant to the Incorporated Societies Ordinance 1952.


Second Respondent


Counsels: K Koria for Applicant
V Leilua & F Sofe-Tuala for First Respondent
P Fepulea’i for Second Respondent


Hearing: 6th July & 13 July 2023


Reserved Judgment: 22nd September 2023


JUDGMENT OF JUSTICE TUATAGALOA
(MOTION TO STRIKE OUT BY SECOND RESPONDENT)

This is the reserved decision of the Court on the Application by the Second Respondent to Strike Out proceedings brought against them.

Proceedings

  1. The Second Respondent by Motion to Strike Out dated 17th October 2022 seeks to strike out the Applicant’s second amended Motion for declaratory orders dated 19th September 2022. The Applicant opposes the Application.
  2. The Second Respondent seeks to strike out the Applicant’s Motion for Declaratory Orders that it is statute barred (section 6(1)(a) of the Limitation Act 1975). The Applicant however contends that she was mistaken and therefore the commencement of the limitation period was postponed by virtue of section 26(c) of the Limitation Act 1975.
  3. Affidavit of Father Patolo Matiasi was filed in support of the application by the Second Respondent. Both the Second Respondent and Applicant filed written submissions in support of their contention.
  4. The First Respondent supports the application by the Second Respondent and also filed written submissions.

(i) The original Motion for Declaratory Orders: Applicant v Samoa Water Authority

  1. The Applicant originally by way of Motion (dated 21st July 2017,) filed on 4th September 2017; later amended on 27th November 2017 sought declaratory orders against the Samoa Water Authority (“SWA”) seeking compensation[1] for the existence of a water pipe traversing a portion of her property which had injuriously affected her property resulting in loss. The loss claim is to the current market value of the property due to damage to the property.
  2. The Applicant claims that she is entitled to compensation pursuant to section 22 of the Samoa Water Authority Act 2003 and section 25 of the Taking of Land Act 1964; and that no statutory compensation has ever been paid by Samoa Water Authority or its predecessor, the Public Works.

(ii) Application to Join

  1. On 5th September 2022 the Applicant pursuant to Rule 32 of the Supreme Court (Civil) Procedure Rules 1980 filed a Motion to join the Marist Brothers as a party. There was no opposition by the First Respondent; leave was granted and the Marist Brothers was joined as Second Respondent.

(iii) The Amended Motion for Declaratory Orders: Applicant v Samoa Water Authority & Marist Fathers

  1. On 19th September 2022 the Applicant further amended its Motion seeking in the alternative declaratory orders claiming that she is entitled to remedies against the Second Respondent upon the following grounds (summarised):
  2. As a result, the Second Respondent filed a Motion to Strike Out against the Applicant, the subject of these proceedings.

Background

  1. The Applicant and her grandmother (deceased) purchased land (Lot 960, Plan 5691) from the Second Respondents on 18 August 1994 and deed of conveyance was registered on 7 September 1994.
  2. From the pleadings and affidavits filed between the Applicant and First Respondent, the pipeline in question was laid sometime in 1986/1987. The pipeline is made of Ductile Iron pipe approximately 559 meters long and 400mm wide from the Tank going all the way down to Vaitele Street. The length of the pipeline that traverses a portion of the land sold to the Applicant is 26.5metres.
  3. The Reservoir Tank on Mt Vaea built in the 1970s or early 1980s through this pipeline supply water to the central town area extending west to Vaimoso and Pesega and to Moataa and Fagalii on the east.[2]
  4. A brief history of the land traversed by water pipes owned by SWA relevantly as follows:[3]

The Grounds of Strike Out

The Second Respondent

  1. The Second Respondents say they were not aware that the pipes went through their land as the pipes were buried underground when laid by the First Respondent in 1986. The Second Respondents’ land was subdivided in 1993 and land sale took place on 8 August 1994 with the land registered to the Applicant and her grandmother on 7 September 1994. It has almost been three decades since the Second Respondent had sold and conveyed the land to the Applicant. The Second Respondent says that the Applicant had ample time to reasonably discover the water pipes on her land and bring her action, but did not within the limitation period.
  2. The Second Respondent seeks to strike out the Applicant’s Motion upon the following grounds:
  3. Father Patolo Matiasi in his affidavit[4] on behalf of the Second Respondent notes the transfer of the said land by the Second Respondent to the Applicant and her grandmother, Tofaeono Anufesaina twenty-eight (28) years ago.

The First Respondent’s stance

  1. The First Respondent did not file a Motion to Strike Out. The First Respondent purports to support the Motion to Strike Out by the Second Respondent and filed submissions in support to having the matter struck out against the Second Respondent. The First Respondent on the same ground of statutory limitation advanced it to their benefit to have the Motion by the Applicant struck out against them. This is unacceptable. The Court will not consider the submissions by the First Respondent for the following reasons:
  2. Should the First Respondent want to pursue to have the Applicant’s Motion for Declaratory Orders against them struck out, they must file their own motion to strike out listing the specific grounds they wish to pursue. This will allow the Applicant to properly respond and address those grounds and for the court to adjudicate with just and fairness.

The Applicant’s submissions

  1. The Applicant opposes the application to strike out by the Second Respondent. She claims that she was not aware that any cause of action existed until 2014 when she discovered that her land was disturbed by the presence of the First Respondent’s water pipes. The Applicant seeks to overcome the problem that her claim against the Second Respondent is statute barred upon the following grounds:

(i) The applicable time limitation is postponed owing to a mistake pursuant to section 26(c) of the Limitation Act 1975.

19.1 The Applicant further claims that pursuant to section 26(c), the limitation period(s) under section 6(1)(a) and (3) did not begin to run until she became aware of her mistake in 2014. At present, the Applicant is claiming a mistake upon the deed of sale (s6(3)) whereby the limitation period is twelve years.

(ii) Pursuant to section 21 of the Limitation Act 1975 (“LA”), the breach is a continuing breach and has not been remedied or ceased as the water pipes continue to be on the land.

19.2 The Applicant also claims that the underlying default in relation to the water pipes is said to be a continuing breach and as long as the default is continuing the limitation period of twelve years to bring an action against the Second Respondent pursuant to section 21 has not yet begun.

19.3 Section 21 of LA 1975 where the first Proviso says that, “Where the act, neglect, or default is a continuing one, no cause of action in respect thereof is deemed to have accrued, for the purposes of this section, until the act, neglect, or default has ceased;”.

Discussion

(a) The Limitation Period for Claims and Accrual of Cause of Action

  1. The Applicant seeks remedies against the Second Respondents for breach of implied covenants pursuant to section 72(1)(a) & (b) of PLA 1952 upon a deed of sale. Section 72(1)(a) & (b) relevantly provides:
  2. The Applicant seemed to have framed her cause of action to include both a breach of contract of sale and deed of conveyance. The Second Respondent submits that such action or actions are statute barred pursuant to sections 6(1)(a) and (3) of the Limitation Act 1975 which relevantly provides:
  3. The effect of the Limitation Act 1975 is that the action must be brought within the period of six (6) years for action based on contract or twelve (12) years for action brought upon a deed. The Applicant refers to a breach of implied covenants pursuant to section 72(1)(a) & (b) of PLA 1952 of the deed of sale of land between the Applicant (purchaser) and Second Respondents (vendor) in 1994. No deed of sale was pleaded (or provided) by the Applicant. There is only a deed of conveyance annexed to the Affidavit of Filisita Heather[5] which deed refers to the sale of land between the Second Respondents and the Applicant as follows:
  4. The contract of sale of land was completed by payment of the purchase money. The assurance of freehold property to the purchaser is effected by deed, which deed has been registered to the Applicant and her grandmother since 7 September 1994.
  5. The implied covenants pursuant to section 72(1)(a) & (b) of the Property Law Act 1972 become part and parcel of the sale of land encompassed within the deed of conveyance. Accordingly, a cause of action for breach of contract accrues at the time of the breach while a cause of action for breach of the covenant for quiet enjoyment in a deed accrues not at the date of the deed but rather at the date of breach.[6] This is because covenant for quiet enjoyment is a future covenant that the cause of action only accrues when the purchaser is disturbed in her enjoyment of the land. This is supported by Halsbury’s Laws of England:[7]
  6. If the Applicant claims a breach of contract of sale for the Second Respondents not having given good title at the time of sale, then the cause of action accrued at the time of sale on 8 August 1994 and is therefore, statute barred. Where the Applicant claims a breach of covenant of quiet enjoyment, the cause of action accrues on the day the Applicant is disturbed in her enjoyment of her land. This, the Applicant claims to be when she discovered the water pipes on her land in 2014. If the accrual of action for breach of covenant was only discovered in 2014 the limitation period of twelve years, has not expired.
  7. The Second Respondent claims that they were not aware of any water pipes traversing the land at Palisi as they were laid underground. The Applicant claims that the Second Respondent knew or ought to have known about the water pipes. The affidavits before the Court filed between the Applicant and the First Respondent (before the Second Respondent was joined) provides the Court with sufficient factual foundation to form the view that the laying of the water pipes in 1986/1987 to supply water for most of the town area was a huge water project that would have required a period of time to complete. The ductile iron water pipe approximately 559 meters long and 400mm wide were laid underground which would mean a lot of earthworks involved. The supposition is that the owners of the lands involved if they were not made aware formally by notice, then they would have been made aware when the work was carried out at the time the pipes were laid.
  8. The knowledge of the Second Respondent at the time of the sale of land is crucial to the determination of accrual of cause of action claimed by the Applicant. There is difference in facts put forward by the parties that I am of the view is best left to be resolved or to be determined in the substantive hearing.
  9. I turn now to consider whether the limitation period is extended pursuant to section 26 upon a mistake or that the limitation period has not ceased pursuant to section 21 of a continuing breach.

(b) The Limitation Period and Mistake

  1. Similarly, the Applicant claims that the limitation period under section 6(1)(a) and (3) did not begin to run until she became aware of her mistake in 2014. Section 26(c) of the Limitation Act 1975 provides, as relevant to these proceedings, that where an action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the Plaintiff has discovered the mistake or could with reasonable diligence have discovered it.
  2. The case of McCarthy v Samoa National Provident Fund[8] is the only Samoan case to date on the question of the postponement of the limitation period in the case of mistake by virtue of section 26(c). Clarke J in McCarthy v Samoa National Provident Fund came across two identical provisions in s28(c) of the Limitation Act 1950 (NZ)(repealed) and s26(c) of the Limitation Act 1939 (UK). In view of the similarities between our Limitation Act 1975 and the Limitation Acts of New Zealand and the United Kingdom, New Zealand and English authorities are, therefore, persuasive.[9]
  3. The purpose of section 28(c) of the Limitation Act 1950 (NZ) is to recover back money paid under a mistake of fact or to a similar claim in equity for money paid under a mistake of fact or law.[10] This was apparent in Phillips-Higgins v Harper [1954][11] where Pearson J referring to the identical English s26(c) identified familiar mistakes when discussing the meaning of provision (c):[12]
  4. Phillips-Higgins v Harper (except where numbered reference appears) is the authority on the following propositions relevant to section 26(c) of Limitation Act 1975 (Samoa):
  5. According to Counsel for the Applicant, the ‘mistake’ claimed by the Applicant is to the state of the property at the time of the sale in 1994 that the land was free of any encumbrance. The Applicant submits that any perceived failure on her part to bring an action within the prescribed limitation period was the result of a mistake on her part. That is, the applicant was not aware that any cause of action existed until 2014, when she discovered that her land was disturbed by the presence of water pipes.
  6. The Second Respondent submits that the Applicant’s motion seeking declaratory orders against them is, simply, for breaching implied covenants under the Property Law Act 1952.[16] I agree. The Applicant’s motion is not one based on mistake (or fraud).
  7. Upon perusal of the Applicant’s Second Amended Motion, the Applicant has not pleaded mistake nor alluded to any mistake on her part as she now claims for purpose of section 26(c) nor pleaded the consequence of such mistake or the relief sought.
  8. The purpose of section 26(c) is to seek relief from the consequences of a mistake. The Applicant’s cause of action against the Second Respondent is a breach of a covenant in the deed of conveyance but not one in mistake. The ‘mistake’ now claimed by the Applicant is not an essential part or an ingredient of her claim against the Second Respondent, according Pearson J in Phillips- Higgins, the mistake now claimed by the Applicant has had no relevant consequences for the purpose of the section.
  9. Section 26(c) cannot be invoked by the Applicant to postpone the accrual of her cause of action.

(c) The Limitation Period and Continuing Breach

  1. The Applicant claims that the breach of implied covenant for quiet enjoyment is a continuing breach and the limitation period of twelve years has not ceased pursuant to section 21. Where there is a continuing breach, the cause of action only accrues upon the ceasing of the default. The first proviso to section 21 refers “where the act, neglect, or default is a continuing one, no cause of action in respect thereof is deemed to have accrued, for the purposes of this section, until the act, neglect, or default has ceased;”. Section 21 in so far as relevant provides:
  2. It is very clear that section 21 is for the protection of those persons (including government) acting in execution of statutory or other public duty. Section 21 provides that no action shall be brought against those persons unless they first comply with giving notice (s21(1)(a)) and the action must be brought within the time limitation of one year (s26(1)(b)) or six years upon application to Court (s26(2)) and where the consent of the prospective defendant is obtained the action must be brought within six years from the date on which the cause of action accrued.
  3. The Second Respondent is not a government entity, but is the Second Respondent a “public authority” within the purpose of section 21? The Applicant has not pleaded or provided any authority as to what is a “public authority” and whether the Second Respondent is a public authority. In any event, public authorities are corporate instruments of the State created under legislation to further public interests.[17] The First Respondent (from the intitulement) is itself an incorporated society established pursuant to the Incorporated Societies Ordinance 1952 not for the purpose of pecuniary gain.
  4. The protection afforded by section 21 does not extend to the Second Respondents.

The principles of strike out

  1. The principles applicable to strike out applications is well settled and can be summarised as follows:

Conclusion

  1. The jurisdiction is to be exercised sparingly, and only in clear cases where the Court is satisfied that it has both the material and the assistance from the parties required for a definite conclusion. This is not so with the present proceedings:
  2. In general, proceedings should not be struck out if it appears that what is lacking in the pleadings can be cured with adequate amendments. For the foregoing reasons, the application to strike out is dismissed.

JUSTICE TUATAGALOA


[1] Pursuant to section 22(10) of the Samoa Water Authority Act 2003 and section 25 of the Taking of Land Act 1964
[2] Affidavit of Jaime Saena (CEO of SWA), dated 10th December 2018
[3] This is obtained from the submissions of the First Respondent.
[4] Affidavit of Father Patolo Matiasi, dated 14 October 2022 filed in support of Motion to Strike Out.
[5] Affidavit of Filisita Heather, dated 5th December 2018 filed by the First Respondent in support of its Amended Notice of Opposition dated and filed on 13th June 2019.
[6] Civil Remedies in New Zealand, Brookers Ltd 2003, p.704, para 18.3.7
[7] 42 Halsbury’s Laws of England (4th ed, reissue) at para 352
[8] McCarthy v Samoa National Provident Fund [2020] WSSC 41
[9] The New Zealand Limitation Act 1950 is based on the United Kingdom Limitation Act 1939.
[10] 28 Halsbury’s Laws of England (4th ed reissue), para 1129
[11] Phillips-Higgins v Harper [1954] 1 All ER 116
[12] Referred to by Clarke J in McCarthy v Samoa National Provident Fund [2020] WSSC 41
[13] Rosenberg v AMP Services(NZ) Limited [2018] NZAR 1459
[14] Proposition supported by 28 Halsbury’s Laws of England (4th ed reissue), para 1129 and Vanvi Ltd v Dawson [1980] 1 NZLR 513 (CA)
[15] Trewin v Flower [1965] NZLR 8 is the authority for the proposition that s28(c) does not apply to an action brought to enforce payment of money due to the plaintiff but unpaid in consequence of a mistake.
[16] Second Amended Notice of Motion for Declaratory Orders, dated 19th September 2022 at paragraphs [8] -[11]
[17] see definition of ‘public body’ under Public Bodies (Performance and Accountability) Act 2001


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