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Barefoot Advertising Limited v The Samoa Ports Authority [2015] WSSC 102 (29 September 2015)

THE SUPREME COURT OF SAMOA
Barefoot Advertising Limited v The Samoa Ports Authority & Anor [2015] WSSC 102

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

BAREFOOT ADVERTISING LIMITED,
a duly incorporated company carrying on business of marketing and advertising, having its registered office situated at Motootua
Plaintiff

AND:

THE SAMOA PORTS AUTHORITY,
a State Owned Enterprise situated at Matautu
First Defendant

AND:

SAMOA SHIPPING CORPORATION,
a State Owned Enterprise situated at Matautu
Second Defendant

Counsel:
Mr Charlie Vaai for Plaintiff
Mr Travis Lamb for First Defendant
Leota Mr Raymond Schuster for Second Defendant

Hearing: 28 September 2015

Judgment: 29 September 2015

JUDGEMENT OF JUSTICE TUATAGALOA

Proceedings:

1. On 16 February 2015 the Statement of Claim dated 28 January 3015 by the Plaintiff against the First and Second Defendants was first mentioned and was adjourned to 2 March 2015 for the Second Defendant to file a Statement of Defence.
2. On 2 March 2015 the Second Defendant instead filed a Motion to Strike Out dated same date against the claim by the Plaintiff against them.
3. These proceedings are concerned with this Motion to Strike – Out filed by the Second Defendant.

Background:

4. I have taken the background to these proceedings from the pleadings in so far as they are not disputed.
5. The Plaintiff has a contract for four (4) years with the First Defendant (‘SPA’) dated 31 January 2012 giving the Plaintiff exclusive advertising rights to all land and buildings owned and managed by the First Defendant for an agreed fee.
6. By Cabinet Directive (FK(14)21) dated 18 June 2014 ownership of the Mulifanua and Salelologa wharves were given to the Second Defendant (‘SSC’). The Second Defendant took control on 1 July 2014.
7. In or around September 2014 the Plaintiff’s billboards at Mulifanua wharf were demolished or damaged by the Second Defendant through its agents or employees.

Statement of Claim:

8. The Plaintiff, Barefoot Advertising Limited is claiming:
   • (i) Breach of contract against Samoa Ports Authority, the First Defendant; and
   • (ii) Willful damage against Samoa Shipping Corporation, the Second Defendant or its agents of its billboards at Mulifanua wharf sometimes in July 2014 when the Samoa Shipping Corporation took over ownership of the Mulifanua wharf.
9. The Plaintiff also claims damage for loss of reputation and business opportunity against the Second Defendant (and First Defendant).

The Grounds of the Strike Out:

10. The Samoa Shipping Corporation with its motion to strike out relies on:
    • (i) Rule 70 saying that the Plaintiff does not plead nor has cause of action against them. The Second Defendant contended that they do not owe or has any obligation or are liable to the Plaintiff because they do not have a contractual agreement with them. The contractual agreement is between the Plaintiff and the First Defendant.
    • (ii) It then follows that the claim is also frivolous, vexatious and an abuse of process.

Strike out jurisdiction and approach to strike out application:

11. There are two sources of the Court’s jurisdiction for striking out a statement of claim which discloses no cause of action that is tenable in law. These are (i) the Court’s inherent jurisdiction, and (ii) Rule 70 of the Supreme Court (Civil Procedure) Rules 1980.^[1]
12. The approach which has been followed by the Samoan Courts when dealing with a motion to strike out a statement of claim as disclosing no reasonable cause of action is now well settled. A striking out application is dealt with on the footing that the pleaded facts can be proved.
13. It has been the practice of the Court with application to strike out, for the Court to take into account the contents of all relevant documents in the proceedings and not just the pleadings.^[2]
14. I am conscious that a litigant’s constitutional right of access to the court is not to be lightly denied, unless his or her claim is so plainly untenable that it cannot possibly succeed and is doomed to fail.
15. From the pleadings and Counsels submissions the Court is of the following view:
    • (i) Any obligation that may be owed by the First Defendant to the Plaintiff will be in contract;
    • (ii) Whilst any obligation that may be owed by the Second Defendant to the Plaintiff will be by way of tort.
16. I cannot say at this stage that the claim against the Second Defendant is plainly untenable. I agree with Counsel for the First Defendant that the Plaintiff had not correctly and fully pleaded the cause of action in tort against the Second Defendant that paragraph 5 of its Statement of Claim alluded to. Counsel for the Second Defendant in his submissions said that the Statement of Claim was not clear and uncertain of the cause of action against the Second Defendant. This can be cured by the Plaintiff amending its Statement of Claim.
17. There are also factual and legal disputes that this matter will be best dealt with by way of substantive hearing.

Conclusion:

18. For the foregoing reasons I am not prepared to strike out the Statement of Claim against the Second Defendant but will allow Counsel for the Plaintiff the opportunity to amend its Statement of Claim to fully and correctly plead the cause of action against the Second Defendant.
19. I dismiss the application to strike out by the Second Defendant.
    

..................................................
Justice Mata Keli Tuatagaloa

^[1] See AQM Ltd v Westfield Holdings Ltd [2009] WSSC 17, per Chief Justice
^[2] Ibid