IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

ROGER ALOFAIFO
of Vaitele-uta, EPC Linesman.
Plaintiff

AND

TAAU EKEROMA
of Maagiagi, Security Officer.
Defendant

Counsel: M Tuatagaloa for plaintiff
F Vaai-Hoglund for defendant

Hearing: 31 August 2004
Judgment: 31 August 2004

JUDGMENT OF SAPOLU CJ

By motion for a “writ of detinue”, the plaintiff is seeking an order to direct the defendant to release immediately to his custody or the custody of the Justice Department for safe-keeping until the final determination of this matter, the motor vehicle he had sold to the defendant. In effect what the motion is seeking is an interim order for the custody of the motor vehicle pending final determination of proceedings. The motion was filed ex parte but I made the order that it should be on notice to the defendant. An undertaking as to damages has been filed by the plaintiff since this matter was first called for hearing but there is still no statement of claim even though the motion makes reference to a statement of claim. There are several difficulties with the plaintiff’s motion as it will appear in the course of this judgment.

In the affidavit filed by the plaintiff in support of his motion, he says that the defendant wanted to buy his Mitsubishi Pajero motor vehicle registration no. 11109. He gave the price as $12,000 but the defendant asked for a discount. It was then agreed between them that if the defendant pays $10,000 within two months, the plaintiff will accept that in full satisfaction of the price otherwise the price goes back to $12,000. The plaintiff also says that the legal title in the vehicle was to remain with him until the purchase price has been paid in full. Possession of the vehicle was then handed over to the defendant. Two months has expired but the defendant has paid only $6,000 towards the purchase price of the vehicle. The plaintiff therefore says that the purchase price of the vehicle has gone back to $12,000 and the defendant now owes him $6,000. He has asked the defendant for the return of the vehicle but the defendant has refused unless he is given back the money he has paid. The plaintiff has therefore filed his motion for a writ of detinue to direct the defendant to hand over possession of the vehicle to his custody or the custody of the Justice Department for safe keeping pending final determination of this matter.

The defendant, on the other hand, says in his affidavit, filed in opposition to the plaintiff’s motion, that before he verbally agreed in March 2004 to buy the plaintiff’s vehicle, the plaintiff had borrowed from him $2,000 in February and then a further $3,000 later on, a total loan of $5,000. The defendant says that the verbal agreement he made with the plaintiff in March was that the price of the vehicle was $10,000. The $5,000 the plaintiff had borrowed from him was to be part of the purchase price and therefore he owed only $5,000. He denies that there was any agreement with the plaintiff that if he failed to pay the balance of the purchase price within two months the purchase price would go up to $12,000. He also denies that there was any agreement with the plaintiff that the legal title in the vehicle was to remain with the plaintiff until the purchase price had been paid in full. The defendant also says in his affidavit that since March he has paid another $1,000 towards the purchase price of the vehicle so that the total amount he has paid is $6,000 leaving a balance of $4,000 on the agreed purchase price of $10,000. He also says that he has expended $2,000 for obtaining a current warrant of fitness, an annual motor vehicle licence and repainting the vehicle.

From the affidavits filed by the plaintiff and the defendant, it is clear that the transaction between the two of them is one of sale of goods or contract of sale of goods with the plaintiff being the seller and the defendant being the buyer. The sale of the vehicle by the plaintiff to the defendant is the contract of sale. The vehicle which is the subject-matter of the transaction is a chattel personal and therefore falls within the definition of goods in s2(1) of the Sale of Goods Act 1975. According to the plaintiff, the defendant as buyer has failed to pay the full purchase price of the vehicle pursuant to the terms of the contract of sale they had made. However, they are in disagreement as to the terms of the contract with regard to the amount of the purchase price and the terms of payment. They are also in disagreement as to whether legal title in the vehicle was to remain with the plaintiff until the purchase price has been paid in full. These conflicts cannot be resolved on the basis of affidavits alone. They can only be resolved by calling oral testimony should this matter go to trial.

Rule 11(b) of the Supreme Court (Civil Procedure Rules) 1980 provides that every proceeding for the recovery of chattels shall be instituted by way of action. Rule 13 then provides that every action shall be commenced by filing a statement of claim setting forth, inter alia, the nature of the cause of action and the relief claimed. Rule 173 then provides that where a person is ordered by a judgment of the Court to deliver possession of chattels, the party to whom possession of the chattels is to be delivered, may issue a writ of possession. On the assumption that in this case it is open in law to the plaintiff to seek an order for the return to him of the vehicle he had sold to the defendant, he should have started proceedings by way of action to be commenced by filing a statement of claim setting forth the nature of his cause of action and the relief claimed. The plaintiff, however, has not filed a statement of claim setting forth a cause of action. So he has not instituted an action. What the plaintiff has done is to file a motion for a writ of detinue seeking an interim order for the custody of the vehicle pending the final determination of this matter. But a proceeding for recovery of chattels shall be by way of action to be commenced by filing a statement of claim. There is also no mention in the rules of a writ of detinue so that such a remedy, unless it means the same thing as a writ of possession provided in rule 173, does not exist under the rules. It is also clear from rule 173 that a writ of possession may only be issued pursuant to a judgment in which a person is ordered to deliver up possession of chattels. So it is not a pre-judgment remedy in terms of rule 173. The plaintiffs’ motion is seeking a pre-trial interim relief.

Still on the assumption that it is open in law for the plaintiff to seek an interim order for the custody of the vehicle he had sold to the defendant, pending final determination of this matter, counsel for the defendant pointed out that rule 71 which makes provision for applications for interim orders pending the hearing of any matter, makes no reference to a writ of detinue. Furthermore, rule 71 requires proof of the facts which render the making of an interim order immediately necessary prior to a hearing. However, all that the plaintiff says in his affidavit is that he is concerned about the safety of the vehicle and nothing more. That is not sufficient to show that it is immediately necessary to make an interim order for custody of the vehicle prior to trial.

Counsel for the defendant, on the other hand, submitted that the concern of the plaintiff for the safety of the vehicle is unfounded. The defendant has spent $6,000 on the purchase price of the vehicle; he has also spent $2,000 for obtaining a current warrant of fitness, an annual motor vehicle licence and repainting the vehicle. That is a total of $8,000 of the defendant’s own money. The defendant will not damage or destroy the vehicle for that will be tantamount to throwing away his $8,000 spent on the vehicle for nothing, while still being liable to the plaintiff for the balance of the purchase price which he is willing to pay. The defendant’s counsel further submitted that it is unjust for the plaintiff to seek return of the vehicle without paying back the money or part of it which the defendant has paid towards the purchase price. Allowance should also be made for the money the defendant has spent for obtaining the current warrant of fitness, the annual motor vehicle licence and repainting the vehicle. For the plaintiff to retake possession of the vehicle together with its current warrant of fitness, annual licence, the new painting and still retain the money the defendant has paid towards the purchase price, will be tantamount to the plaintiff being enriched at the expense of the defendant without any just reason for the plaintiff taking the enrichment. All these matters raised by counsel for the defendant are relevant to the exercise of the Court’s discretion whether to grant an order for interim custody of the vehicle pending final determination of this matter.

Counsel for the defendant further submitted that the plaintiff’s motion appears to be a motion for a pre-trial interim injunction. But even if the motion is treated as one for such an injunction, it should not be granted for the reasons set out by counsel in her submissions. Without intending any discourtesy to the well-prepared submissions by counsel for the defendant, I do not propose to go into detail on this part of her submissions as I do not intend to treat the plaintiff’s motion as one for a pre-trial interim injunction. There is, however, authority which shows that in an appropriate case, a pre-trial Mareva injunction may issue against a defendant for delivery up of chattels including a motor vehicle. See CBS United Kingdom v Lambert [1983] 1 Ch 37. But the circumstances of that case are quite different from those of the present case. In fact Lambert was not concerned with a contract of sale or a sale of goods transaction.

The other difficulty for the plaintiff is that his relationship with the defendant lies in contract, not tort. But the plaintiff’s motion is filed in detinue. Detinue, of course, is a tort. If the plaintiff is right that the title in the vehicle was to remain with him until the price has been paid in full, then it is arguable, but not certain at this stage, whether in equity he can seek specific restitution of the vehicle. I say this because if the plaintiff is right that the title in the vehicle was to remain with him and not to pass to the defendant until the purchase price is paid in full, then in terms of s18(1) of the Sale of Goods Act 1975 which provides that the property in goods under a contract of sale will be transferred to the buyer at the time the parties intend it to be transferred, the plaintiff, up to now, will still have the property in the vehicle. It may then be arguable that under s20 of the Act which provides that the reservation by the seller of a right of disposal, the plaintiff may seek an order for specific restitution. But even if it is assumed that in this case the plaintiff can seek such a remedy, it must be borne in mind that the defendant has paid a substantial sum of money towards the purchase price of the vehicle and for the current warrant of fitness, the annual licence and repainting of the vehicle. An order for specific restitution of a chattel is an equitable remedy. It is therefore discretionary.

If, on the other hand, the defendant is right that there was no agreement between himself and the plaintiff that the title in the vehicle was to remain with the plaintiff until the purchase price has been paid in full, then the appropriate remedy for the plaintiff is to bring a claim for the balance of the purchase price which is a claim in debt, not in damages. This is because s48(1) of the Sale of Goods Act 1975 provides that in a contract of sale, if the property in the goods has passed to the buyer and he wrongfully neglects or refuses to pay for them in accordance with the contract, the seller may bring an action for the price of the goods. In my view if the defendant is right, then in the circumstances as disclosed in his affidavit, the property in the vehicle must have passed to the defendant. Refer to s19 of the Act on the rules for determining when the property in goods under a contract of sale is to pass to the buyer, in particular rule 1.

In view of what has been said, the plaintiff’s motion for a writ of detinue should be struck out. It is struck out accordingly. Counsel to file submissions as to costs within 7 days if they wish to do so.

Leave is granted to the plaintiff to file a new motion within 21 days if he wishes to do so. Such a motion to be accompanied by a statement of claim and undertaking as to damages.

CHIEF JUSTICE

Solicitors:
Brunt Keli for plaintiff
Vaai Law Firm for defendant