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Congregational Christian Church of Samoa v Lamositele [2009] WSSC 108 (28 September 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE CONGREGATIONAL CHRISTIAN CHURCH OF SAMOA
a Charitable Trust established under the Charitable Trust Act 1972 suing for and on behalf
of the CONGREGATIONAL CHRISTIAN CHURCH OF SAMOA IN SALAILUA.
Plaintiff

AND:

DAVID LAMOSITELE and LEATA LAMOSITELE
of Moamoa, Business Proprietors and carrying on business at Apia under the style
of PACIFIC TILES.
Defendants

Counsels: A Roma for plaintiff
T Solomona for defendants

Hearing: 25 September 2009
Judgment: 28 September 2009

JUDGMENT OF THE COURT

Introduction

1. Before the court is an application by the defendant seeking orders to:

(a) set aside judgment entered against him by default on the 15th December 2008;

(b) to set aside the order on the judgment summons dated 16th March 2009;

(c) to set aside the warrant of committal executed on the 1st September 2009; and

(d) for costs.

The plaintiff opposes the application.

Background

2. In February 2008, the plaintiff sought and obtained from Pacific Tiles prices for costs to purchase and install ceramic tiles for its church building at Salailua Savaii. Written quotes were given after the defendant visited the project site to take measurements. A deposit of $50,000 required by Pacific Tiles before the order was placed with its overseas supplier was duly paid on the 29th February 2008 to the defendant at Salelologa, Savaii.

3. Pacific Tiles is an unincorporated entity engaged in the business of importing, retailing and laying of tiles under the business licence issued to Leata Lamositele ("Leata"), the wife of the defendant. A tiler by profession the defendant does not appear to have a separate business licence for his tiling career but work under the business licence veil issued to Leata.

4. The tiles were due to arrive either May or June 2008 but shipment did not arrive until about the 11th July. There is conflicting documentary evidence by way of affidavit as to what transpired between the plaintiff and Leata before the plaintiff finally cancelled its order with Pacific Tiles. But by letter dated the 14th July Reverend Roma for the plaintiff wrote to Leata to acknowledge her letter received at his home at Alafua on the 11th July and to demand a refund of the $50,000.

5. Leata’s undated letter to which Reverend Roma replied to on the 14th July explained the reasons for the delay and apologized for the delay beyond her control. At paragraph 3 of the same letter she also offered on behalf of the alii pule to reduce the labour costs for installing tiles to $14,000. She then signed the letter as the Tamaitai Pule.

Judgment by Default and Judgment Summons

6. The plaintiffs Statement of Claim and Summons were served personally on the defendant at Saleufi on the 3rd December 2008 with a return date of 15 December 2008. Judgment was entered by default on the 15th December when the defendant made no appearance.

7. On the 20th February 2009 Judgment Summons were served on the defendant to attend court on the 2nd March 2009 to show cause why he should not be committed to prison for failing to pay the amount due upon the judgment obtained against him. Counsel for the defendant appeared on the 2nd March 2009 and with the consent of counsel for the plaintiff the judgment summons application was adjourned to the 16th March for the defendant to fully brief his counsel.

8. On the 16th March counsel for the defendant appeared with her written application seeking leave to withdraw as counsel upon the grounds she could not continue to act for the defendant who has failed to honour two appointments. Leave was granted to counsel to withdraw and the court thereupon made the order for the defendant to pay the judgment debt of $50,197.57 in default 17 weeks imprisonment provided that the warrant of committal shall be suspended so long as the judgment debtor pays $2,000 per month, first payment to be made 7 days after service of the order.

9. Order on judgment summons was served on the defendant on the 21st May 2009.

Reasons for not responding to the Original and Judgment Summons

10. At paragraph 9 of his affidavit the defendant deposed:

"I do clearly recall that I was not served with the judgment summons application nor the judgment summons order."

This is a deliberate and dishonest attempt by the defendant to mislead the court as the events I have outlined in paragraphs 7 and 8 above tantamounts to the only conclusion that the defendant did personally receive the Judgment Summons application. Counsel appeared on the 16th March 2009 in response to the judgment summons served personally upon the defendant on the 20th February 2009.

11. Defendant also deposed at paragraph 9:

"I do not quite recall being served with the original summons and statement of claim."

It was suggested by counsel for the defendant that the signature of the defendant in his affidavit supporting this application differs significantly from the signatures alleged to be those of the defendant on the acknowledgment of service receipts for the original summons and judgment summons. I agree the signatures are vastly different. But I am also satisfied the defendant deliberately altered his signature in his affidavit in pursuit of his desperate, futile attempt to facilitate his application.

12. Two affidavits have been filed by the plaintiff to highlight that the signatures on the original and judgment summons receipt of delivery forms were indeed those of the defendant. Leota Raymond Schuster a senior lawyer prepared a Deed of Settlement in 2007 to settle a dispute between the defendant and Leata on one part and a Transport operating company of the other part. The signatures of both parties including that of the defendant was witnessed by the said Raymond Schuster. The signature of the defendant on that deed closely resembles the signature on the receipts of delivery forms for the original and judgment summons. There is also the affidavit of the process server who on prior occasions has served the same defendant with court documents from other law firms. The defendant and Leata were known personally to the process server.

The Law

13. Rule 140 (1) Supreme Court (Civil Procedure) Rules 1980 provide the court with the discretion to grant a rehearing and to set aside judgment upon an application by a defendant against whom judgment was entered in his or her absence.

Rule 141 (1) provides for a rehearing upon such terms as the court thinks reasonable and to stay proceedings provided that a rehearing shall not be granted on an application made more than fourteen days after the judgment or order, unless the court is satisfied that the application could not reasonably be made sooner.

14. Both counsels agree that to succeed in an application grounded on rules 140 and 141 the applicant must establish, following the Court of Appeal decision in Lauano v. Samoa National Provident Fund (unreported) 2009 WSCA 3 [1/5/09], that:

(a) there is a reasonable justification for the delay

(b) there is a substantial ground of defence.

(c) the plaintiff will not suffer irreparable harm if the judgment is set aside.

15. The events which I have outlined in paragraphs 6 to 9 differ from to what took place in Lauano v Samoa National Provident Fund (supra) where the defendant responded to the service upon him of the original summons and Statement of Claim and in fact instructed counsel who did appear and sought an adjournment to a specific date which was granted. Judgment was entered against the defendant however when his counsel did not appear on the specified date. Unlike the defendant in Lauano v Samoa National Provident Fund, the defendant in this case willfully and deliberately failed to respond to the summons, or to enter an appearance, or to file a defence to the plaintiffs claim, a factor which I consider, I should take into account and against his application.

Is there a reasonable justification for the delay?

16. When the judgment summons were served on the 20th February 2009, the defendant knew then that judgment has already been entered against him. He instructed counsel but did not bother to honour the appointments set to address the claim and judgment entered against him. His counsel submitted that the defendant was a victim of a motor accident on the 24th April 2009 was hospitalized as a result. The traffic accident is submitted as a reasonable justification for the delay which must be rejected as the accident occurred some two months after he had notice of judgment entered. According to his medical report he was discharged on the 6th May 2009 and Judgment Summons order was served on him fifteen days later on the 21st May. He filed this application on the 11th September only after the warrant of committal was executed on the 1st September 2009.

17. The defendant has offered no reasonable justification for the delay, a factor which is considered fatal to his application.

Substantial Ground of Defence

18. Counsel for the defendant submitted the defendant is a professional tiler and was not a party to the arrangement between the plaintiff and Leata for the supply of tiles. Affidavits by the defendant and Leata both deposed to the effect that Pacific Tiles is the business of Leata under whose name the business licence was issued.

19. Counsel has also filed a Statement of Defence and Counterclaim both for the defendant and for Leata notwithstanding that judgment was entered against the defendant on the 15th December 2008 and against Leata on the 6th July 2009. For this application I will disregard the Statement of Defence and Counterclaim and focus my determination of the application on the affidavits filed by the defendant in support and by the plaintiff to oppose the application, as well as all other documents on file prior to the filing of the application.

20. In paragraph 5 above I referred to a letter written by Leata to the plaintiff wherein she stated at paragraph 3 that the alii pule (my emphasis) has agreed to reduce the labour costs for laying the tiles to $14,000. The original labour costs quote was $17,580 for the main building, and $1,485 for the foyer. A total of $19,065. She then signed the letter as tamaitai pule (my emphasis). This letter has significance in two spheres. The first is that the defendant and Leata are portrayed bosses of Pacific Tiles. The second is that the letter suggests there was discussion between the defendant and Leata in an effort to keep and hold onto the plaintiffs project to the benefit of Pacific Tiles. It contradicts the affidavit evidence of the defendant that he knew nothing about the dialogue, correspondence and deals between Leata and the plaintiff after he took measurement of the plaintiffs project and after he was told by Leata in May that his labour work for installing tiles has been cancelled by the plaintiff. In fact it was not until July that the supply and installing of tiles was cancelled by the plaintiff.

21. There is probably substance in the assertion by counsel for the defendant that the plaintiff had no valid grounds for repudiating the contract of sale with Pacific Tiles as time was not of the essence in the contract and Pacific Tiles would therefore have a substantial defence. But the Statement of Claim was premised on the agreement by Pacific Tiles to refund the $50,000 deposit paid by the plaintiff to Pacific Tiles as deposit. Paragraph 25 of the affidavit by Leata specifically states that:

"I eventually agreed on the 3rd September to refund him but I would have to find some funds from somewhere. It was such a distressing period for me as Reverend Roma had also accused me of being a bad business person."

22. In any event, even if Pacific Tiles had a meritorious defence or at least a defence worthy of consideration the willful and deliberate failure of the defendant to file a defence or enter an appearance coupled by his deliberate dishonest attempt to mislead the court in this application warrants refusal by the court to grant the application.

Irreparable harm to the plaintiff

23. Since the inception of the plaintiffs claim by a Statement of Claim dated the 8th October 2008 culminating in the execution of the warrant of committal on the 1st September 2009, the defendant has elected to ignore claim or treat it as insignificant. To grant the application would tantamount to ordering the plaintiff to recommence a court journey which has already consumed almost twelve months. But whether it amounts to an irreparable harm or not, I have formed the view on other matters which I considered fatal to the application and accordingly warrants its dismissal.

Orders

(a) The application to set aside judgment entered by default and to grant a rehearing is dismissed.

(b) The application to set aside the Warrant of Committal is also dismissed.

(c) Defendant to pay cost of $600 to the plaintiff.

JUSTICE VAAI