SUPREME COURT OF SAMOA
Laki v The Trust Board Congregational Christian Church in Samoa [2016] WSSC 212

Case name: 	Laki v The Trust Board Congregational Christian Church in Samoa	
		
Citation: 	[2016] WSSC	
		
Decision date: 	1 December 2016	
		
Parties: 	TAVITA LAKI of Moamoa, Pulenuu v THE TRUST BOARD OF THE CONGREGATIONAL CHRISTIAN CHURCH IN SAMOA AND
REVEREND TANOAOLEIA TUNUPOPO of Leusoalii, Minister

Hearing date(s): 	1 December 2016	
		
File number(s): 	CP 129/16	
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	CHIEF JUSTICE SAPOLU	
		
On appeal from:		
		
Order:	-	The first defendant is struck out from the plaintiff’s claim.
-	Costs of $600 are awarded to the first defendant against the plaintiff.
-	This matter is now referred to mediation and to report back to the Court in 40 days.

Representation: 		
		
Catchwords: 	Motion to strike out – tort – charitable trust – negligence – vicarious liability - 	
		
Words and phrases:		
		
Legislation cited:	Charitable Trusts Act 1965	
		
Cases cited:	Amosa v The Board of Trustees of the Congregational Christian Church in Samoa [1994] WSSC 2
Brady v Presbyterian Church of Aotearoa New Zealand [2012] NZHC 3526	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

TAVITA LAKI of Moamoa, Pulenuu

Plaintiff

AND

THE TRUST BOARD OF THE CONGREGATIONAL CHRISTIAN CHURCH IN SAMOA

First Defendant

AND

REVEREND TANOAOLEIA TUNUPOPO of Leusoalii, Minister

Second Defendant

Counsel:	
D Roma for plaintiff
S Leung Wai for first defendant
L R Schuster for second defendant

Hearing:	1 December 2016

Ruling:	1 December 2016

RULING OF THE COURT
Motion to strike out
1. 	In these proceedings, the Court is concerned with a motion to strike out the first defendant as a party on the ground that it has no standing to be sued by the plaintiff.
The plaintiffs’ claim
2. 	The plaintiffs’ claim arose out of a car collision that occurred at Maluafou on 6 March 2015.  This collision involved a vehicle owned by the plaintiff and a vehicle registered in the name of the Congregational Christian Church in Samoa (the Church).  At the material time, the vehicle was driven by the second defendant alleged to have been employed by the first defendant which is effectively the Board of Trustees of the Congregational Christian Church in Samoa. It is alleged by the plaintiff that the second defendant was negligent.  The plaintiff has therefore brought a claim in the tort of negligence for damages against the second defendant as the driver of the vehicle and against the first defendant on the basis of vicarious liability as employer of the second defendant.  
The first defendant 
3. 	The first defendant was incorporated as a charitable trust under the Charitable Trusts Act 1965 and registered on 12 July 1968 in the name of the Board of Trustees of the Congregational Christian Church in Samoa. Also see Amosa v The Board of Trustees of the Congregational Christian Church in Samoa [1994] WSSC 2.
4. 	Under that part of the Constitution of the Church which deals with General Purposes Committees, Article IV, 2, at p.26, provides that the Board of Trustees of the Congregational Christian Church in Samoa (the first defendant) is to act on behalf of the Church as signatories for the exchange, sale and purchase of properties and any other matters affecting the properties of the Church as approved by the Church.  So the powers of the first defendant relate only to the exchange, sale and purchase of properties of the Church.  It has no power to employ any person on behalf of the Church.  It is therefore inappropriate for the plaintiff to allege that the second defendant was at the material time employed by the first defendant in order to make the first defendant vicariously liable for the alleged negligence of the second defendant.  
5. 	In addition, the vehicle driven by the second defendant is registered in the name of the Church which must therefore be the registered owner.  It follows that the first defendant is not the registered owner of that vehicle.  It is therefore difficult to see how the second defendant could have been in the employment of the first defendant when he was driving a vehicle that belongs to some else, namely, the Church. 
The Church 
6. 	The Congregational Christian Church in Samoa (the Church) is an unincorporated association.  As an unincorporated body, it has no legal personality.  It is not a legal entity in other words.  
7. 	It is not clear from the plaintiffs’ claim whether the second defendant was employed by the Church.  But even if it is assumed that the second defendant was employed by the Church, the question remains whether the Church as an unincorporated body can be sued in tort as vicariously liable for the alleged negligence of the second defendant.  
Discussion
8. 	In the first place, the first defendant is an incorporated body registered as a charitable trust under the Charitable Trusts Act 1965.  Under the Constitution of the Church, its powers relate only to being signatories on behalf of the Church for the exchange, sale and purchase of Church properties and matters affecting Church properties.  There is no power given to the first defendant to employ any person such as the second defendant.  This is further supported by the fact that the registered owner of the vehicle driven by the second defendant is the Church and not the first defendant.  The first defendant therefore cannot be sued in tort as vicariously liable for the negligence alleged against the second defendant. 
9. 	 I have considered whether the name of the first defendant can be amended to that of the Congregational Christian Church in Samoa so that the Church can be sued in tort as vicariously liable for the alleged negligence of the second defendant.  The problem here is that the Church is an unincorporated body.  As such, it has no legal personality, that is to say, it is not a legal entity.  The Church therefore cannot sue or be sued.  See generally the discussion on this issue in Brady v Presbyterian Church of Aotearoa New Zealand [2012] NZHC 3526, paras [42] – [49].
10. 	So it will be pointless to amend the statement of claim in order to make the Church the first defendant because as an unincorporated body the Church cannot sue or be sued.  It would also be unrealistic to sue all the congregations in Samoa, America, Hawaii, New Zealand, Fiji and American Samoa and the committees of the General Assembly which all make up the Church for the vast majority of them would not be aware of the second defendant and had no say in the employment of the second defendant.  
Conclusions 
11. 	For the foregoing reasons, the first defendant is struck out from the plaintiff’s claim.
12. 	Costs of $600 are awarded to the first defendant against the plaintiff.
13. 	This matter is now referred to mediation and to report back to the Court in 40 days.
CHIEF JUSTICE