IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

C.A. 6/2000

BETWEEN

SALEIMOA PLANTATION LIMITED
a duly incorporated
company having its registered office in Apia
Appellant

AND

THE SAMOA NATIONAL PROVIDENT FUND BOARD
a statutory corporation established under the Samoa National Provident Fund Act 1972
First Respondent

AND

THE DEVELOPMENT BANK OF SAMOA
a statutory corporation established under the Development Bank Act 1974
Second Respondent

Coram: The Rt Hon. The Lord Cooke of Thorndon, President
The Rt Hon. Sir Maurice Casey
The Rt Hon. Sir Gordon Bisson

Hearing: 17 August 2000

Counsel: P. Fepulea'i for Appellant
Potoa'e L. Tanielu for First Respondent
S. Samau for Second Respondent

Judgment: 18 August 2000

JUDGMENT OF THE COURT DELIVERED BY SIR MAURICE CASEY

The appellant seeks leave to appeal against an order made by Wilson J. on 25 July 2000 striking out its action against both respondents. Leave had been refused by the Chief Justice in the Supreme Court. Also before us is its notice of appeal against that order.

As the value of the amount in dispute is over $400, there was an appeal as of right under s 51 of the Judicature Ordinance 1961, but the leave of the Supreme Court was necessary under s 54, which provides that it shall be granted where the appellant is entitled to appeal as of right, subject to conditions about security for costs. Section 64 gives this Court a discretion to grant special leave to appeal against any final judgment of the Supreme Court and respondents' counsel accepted that such leave could be granted in this case. As we are satisfied that the appellant was entitled to appeal as of right, we granted leave subject to security for costs of $200, accepting counsel's undertaking to pay it into Court.

In its original statement of claim of 14 April 2000 the appellant sought orders of specific performance by both respondents of an agreement made on 29 December 1999 whereby the appellant was to convey separately to the respondents land sufficient to repay its debts to them. It also claimed damages totalling $600,000 against the first respondent. The first respondent filed a statement of defence and a motion dated 5 June 2000 to strike out the statement of claim on the grounds that there was no cause of action and that the proceedings were frivolous and vexatious and an abuse of court process. On 16 June, 2000 the second respondent also filed a motion that it be struck out of the proceedings on the ground that there was no reasonable cause of action, and that it should not have been named as a defendant, since an order for specific performance (the only claim against it) could not be complied with until the first respondent had settled its dispute with the appellant: and that there was no dispute between it and the appellant. Both these motions were supported by affidavits.

At the hearing before Wilson J. on 24 July, the appellant obtained leave to amend its statement of claim, filing an amended document later that day. After reciting its indebtedness of over $1 million to the respondents (which respectively held a first and second mortgage over its plantation property), it alleged in para. 13 that they proposed meeting on 29 December 1999 to discuss a full and final settlement by taking sufficient land to pay the appellant's debt. The amended statement of claim then proceeded as follows:

14. THAT on the 29th day of December 1999, the Plaintiff, the First and Second Defendants, after considering the proposal referred to in paragraph 13 herein together with a counter proposal by the Plaintiff, verbally agreed to a full and final settlement subject to the approval of the respective Boards of the First and Second Defendants amongst the parties which involve the Plaintiff conveying separately to the First and Second Defendants sufficient land to repay all the debts owing by the Plaintiff to the First and Second Defendants at the price of $15,000.00 per acre.

15. THAT by letter of 3 January 2000, the Plaintiff confirmed to the First and Second Defendants the agreement reached including the allocation of parcels which had been made known to the First and Second Defendants in or about December 1999.

16. THAT the Second Defendant accepted and confirmed by letter the agreement reached on 29 December 1999.

17. THAT the first Defendant confirmed the price of $15,000.00 and the debt owing to it for settlement but demanded an additional 40 acres to the number of acres which \vas sufficient to payoff the Plaintiffs total debit and it has refused to complete the settlement in accordance with the agreement reached.

18. THAT the Plaintiff and the Second Defendant on the other hand have agreed to settle according to the agreement reached.

19. THAT the parties had on or about the 18th January 2000 by letters entered into an enforceable contract which the First Defendant has now refused to honour.

20. THAT the refusal of the First Defendant to honour the agreement reached amounts to breach of contract causing substantial damages to the Plaintiff.

21. THAT the Second Defendant does not object to and consents to an order of specific performance made against it to complete the settlement of this matter.

22. THAT an order of specific performance is being sought to enforce compliance by the First Defendant to honour and perform the agreement reached.

(The bold type represents the amendments made to the original statement of claim.)

In his decision Wilson J. saw as fatal to the appellant's cause of action against the first respondent the fact that, as pleaded, the agreement of 29 December was subject to the approval of the respondents' respective Boards, but there was no allegation of approval by the first respondent's Board. Mr Fepulea'i attempted to overcome this difficulty by referring to the pleading in para. 19 that an enforceable contract had been made by letters on or about 18 January 2000. He took us to a letter of that date from the first respondent to the appellant making it clear that its Board required additional acreage beyond that needed to repay the appellant's indebtedness in order to cover the costs of the subdivision, and it sought further discussions. That letter cannot be construed as the contemplated approval by the Board of the agreement alleged in para. 14; nor can it constitute a fresh contract, since the appellant never agreed to it.

For these reasons we are satisfied that Wilson J. was right to strike out the proceedings against the first respondent. Mr Fepulea'i acknowledged that there could be nothing left of the claim for specific performance against the second respondent if the first respondent succeeded.

Result

The appeal is dismissed with costs of $400 to each respondent together with disbursements, to be fixed by the Registrar if the parties cannot agree.

Solicitors:
Fepulea'i & Schuster, Apia, for Appellant
Office Solicitor, Samoa National Provident Fund Board, Apia, for First Respondent
Office Solicitor, The Development Bank of Samoa, Apia, for Second Respondent