IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:

BETWEEN:

THE BOARD OF TRUSTEES OF THE CONGREGATIONAL CHRISTIAN CHURCH OF SAMOA a charitable trust pursuant to the Charitable Trusts Act 1965 having its registered office at Tamaligi, Apia.
Plaintiff

AND:

LE UNIVESITE O LE AMOSA O SAVAVAU an incorporated society having its registered office at Alafua.
Defendant

Counsel: T Leavai for plaintiff
 T F Aiono-Le Tagaloa for defendant 

Hearing: 3 November 2011

Submissions: 17 November 2011

Judgment: 20 December 2011

JUDGMENT OF SAPOLU CJ

Introduction

1.	The plaintiff is the Board of Trustees of the Congregational Christian Church of Samoa (the Church). It is the owner of the Ioane Viliamu six storey building at Tamaligi which is largely rented out to tenants. The defendant is the Le Univesite O Le Ậmosa O Savavau which is a private university (the university).

2.	The Church claims from the university unpaid rent for the period 2004 to 2006 pursuant to a written tenancy agreement alleged by the Church to have been concluded between the Church as landlord and the university as tenant. The Church claims that under the said agreement the university was required to pay an annual rent by quarterly payments but the university failed to honour its obligation under the agreement. The first issue in these proceedings is whether there was any tenancy agreement concluded between the parties. In fact this was the real issue in dispute at the trial. 

3.	At the conclusion of the evidence, counsel were given 14 days to prepare and file written submissions. This was duly done by both counsel. In the submissions by counsel for the plaintiff, she concedes that there was no tenancy agreement concluded between the Church and the university. She argues, however, that in the absence of a tenancy agreement, the university occupied the Church's building on the basis of an implied tenancy at will which ended when the university vacated the building in 2006. This is a complete shift from the position taken by the Church at the trial and as pleaded in its statement of claim. Counsel for the defendant in her written submissions leaves the matter to the decision of the Court. As the submissions by both counsel were filed on 17 November, it is likely that counsel for the defendant is not aware of the change in the position of the Church.

4.	The second issue is whether this case should be decided on the basis of the new position taken by the Church in the closing written submissions of its counsel which is different from the position taken by the Church at the trial and as pleaded in its statement of claim.

First issue: Was there a tenancy agreement between the Church and the university?

5.	As already mentioned, the Church in its statement of claim seeks unpaid rent from the university pursuant to a written tenancy agreement alleged by the Church to have been concluded between itself and the university. This is denied by the university in its statement of defence. According to the university there was no tenancy agreement as alleged by the Church in its statement of claim.

6.	At the trial, the Church maintained the same position as pleaded in its statement of claim and called evidence to show that a written tenancy agreement was concluded between itself and the university. A copy of the said agreement was produced. But it is undated and unsigned. On the other hand, evidence was called for the university to show that there was no written or oral tenancy agreement concluded between the parties. It was clear to me during the trial that there was no such agreement concluded between the Church and the university. The concession made by counsel for the Church in her closing written submissions that there was no tenancy agreement must therefore be accepted.

7.	I, therefore, conclude that there was no written or oral tenancy agreement between the Church and the university. Accordingly, I find for the university on the first issue.

Second issue: Should this case be decided on the new position taken by the Church in the closing written submissions of its counsel which is different from its cause of action pleaded in the statement of claim and from the position it took at the trial?

8.	The second issue in this case has come about in this way. The cause of action by the Church is pleaded in the statement of claim as breach by the university of the written tenancy agreement alleged to have been concluded between the parties. In response, the university in its statement of defence denies that there was any written or oral tenancy agreement between the Church and the university.

9.	At the trial the parties called evidence in support of their respective positions as pleaded. The case was thus contested at the trial on the basis of whether there was a tenancy agreement between the parties. I suggested to counsel for the plaintiff at the trial that if no tenancy agreement was concluded between the parties then to consider whether the occupation by the university of the Church's building was on the basis of a periodic tenancy such as a monthly tenancy. But this did not change the position of the Church and no amendment was sought to the statement of claim.

10.	It has therefore come as a surprise when counsel for the Church in her closing written submissions concedes that there was no tenancy agreement between the Church and the university and claims that the university had occupied the Church's building on the basis of an implied tenancy at will. A tenancy at will may become a periodic tenancy upon the payment of rent: Luteru v Accident Compensation Board [2003] WSSC 7. The period for which rent is paid, for example, weekly, monthly, or yearly will determine the character of the periodic tenancy whether it is a weekly, monthly, or an yearly tenancy.

11.	If I am to decide this case on the basis of the new position taken by the Church in the closing submissions by its counsel, that will be denial of natural justice or procedural fairness to the university. It will be a breach of the university's right to a fair trial. This is because the new position taken by the Church is different from what is pleaded in the statement of claim and the position taken by the Church at the trial. And the university had pleaded its defence and conducted its case at the trial on the basis of the pleadings by the Church and the position taken by the Church at the trial.

12.	I have, therefore, after much consideration, come to the following conclusions.

Conclusions

13.	The claim by the Church for unpaid rent on the basis of a written tenancy agreement alleged to have been concluded between the parties is dismissed.

14.	The Church may file a new statement of claim on the basis of an implied periodic tenancy subject to these conditions:

(a)	the Church must first pay the costs incurred by the university for the first trial;

(b)	counsel for the university to file a memorandum as to costs by 16 January 2012 when the Court re-opens; 

(c)	the Church to file and serve a new statement of claim by 30 January 2012 when this matter will be re-mentioned; and

(d)	any issues that may be raised by the university regarding the filing of a new statement of claim.

15.	If, however, the Church for any reason decides not to file a new statement of claim, it will still have to pay the costs awarded to the university.

CHIEF JUSTICE