Home | Databases | WorldLII | Search | Feedback Consolidated Acts of Samoa 1996

Commerce Act 1978

LAWS OF WESTERN SAMOA

COMMERCE

ANALYSIS

TITLE

-------------------------------------

COMMERCE ACT
1978, No. 2

AN ACT to consolidate and amend the law relating to the control of prices and to make provision with respect to certain trade practices and the stabilisation of prices

(30 January 1978

1. Short title - This Act may be cited as the Commerce Act 1978.

2. Interpretation - In this Act, unless the context otherwise requires:

"Board"' means the Commerce Board.

"Ex-Factory" in relation to a sale of goods, means the sale or supply of goods by the manufacturer of those goods to any other person.

"Goods" includes:

(a) Ships, aircraft, other vehicles and mechanical and non mechanical spare and replacement parts of motor vehicles;

(b) Animals, including fish,

(c) Minerals, trees and crops whether on, under, or attached to land or not; and

(d) Gas and electricity.

"Minister" means the Minister of Trade Commerce and Industry.

"Nominee" means any officer or employee of Treasury authorised by the Financial Secretary in writing to exercise the rights and powers conferred by the principal Act on the Financial Secretary.

"Prescribed" means prescribed by this Act or by regulations or notices for the time being in force under this Act.

"Price" when used in connection with the sale of any goods or the performance of any services, includes every valuable consideration whatsoever, whether direct or indirect.

"Retail" means the sale or supply of goods by any person other than a wholesaler, and in respect of the sale of any goods by a wholesaler, means the sale or supply of goods for any purpose other than resale.

"Service" includes any service supplied for hire or reward by any person engaged in trade or business.

"Trader" means any person who in connection with business carried on by him, sells or proposes to sell any goods; or who supplies or carries on any service.

"Wholesale" means the sale or supply of goods to a person for the purpose of resale.

PART II
ADMINISTRATION

3. Administration - (1) There is hereby constituted a Commerce section of the Department of Trade Commerce and Industry which shall be the successor to the Price Control Section of the same Department constituted under the Price Control Act 1971*, which shall be under the immediate control of an officer of the Public Service to be called the Commerce Officer.

(2) This Act and any regulations made thereunder shall be administered by the Commerce Section under the control of the Minister.

4. Appointment of other officers and employees - There may from time to time be appointed under the Samoa Amendment Act 1949, or any Act passed in substitution therefor, such other officers or employees of the Commerce Section as may be necessary.

5. Existing appointments deemed to be made under this Act - (1) The person holding office as Price Control Officer at the commencement of this Act shall be deemed to have been appointed as Commerce Officer under this Act.

(2) All other persons who at the commencement of this Act are officers or employees of the Price Control Section and have been so appointed under the Samoa Amendment Act 1949 shall be deemed to have been appointed under this Act.

6. Commerce Board - For the purposes of this Act there shall be a special board, to be known as the Commerce Board, consisting of the Minister (who shall be the chairman), the Secretary of Trade, Commerce and industry (who shall be the deputy chairman) the Financial Secretary or his nominee and 3 other members who shall be appointed by the Head of State acting on the advice of Cabinet; one of whom shall represent the Chamber of Commerce of Western Samoa, one shall be a small trader and one a farmer.

7. Terms of office of appointed members - (1) Every member appointed by the Head of State under section 6 shall hold office for a term of 3 years and shall be eligible for reappointment.

(2) An appointed member may at any time resign his office by notice in writing to the Board.

(3) The Head of State, acting on the advice of Cabinet, may remove at any time an appointed member:

(a) For disability, neglect of duty, misconduct, or bankruptcy; or

(b) If he is satisfied that the appointed member has left Western Samoa permanently; or

(c) If the appointed member is absent from 3 consecutive meetings of the Board without the permission of the Board.

(4) If an appointed member dies, or resigns, or is removed from office, the Head of State acting on the advice of Cabinet may appoint another person in place of that member to hold office until such first named person's term of office would have expired had he not ceased to be a member as aforesaid.

8. General powers and duties of the Board - The general powers and duties of the Board shall be:

(a) To make General and Special Price Orders for goods and services;

(b) To investigate any breach of the provisions of this Act;

(c) To keep under review the prices of goods and services and trade practices to institute or cause to be instituted proceedings for offences under this Act and to take all steps as may be necessary including the fixing of regions and districts and the boundaries thereof for the purposes of this Act;

(d) To direct, supervise, advise and assist the Commerce Officer in the execution of his duties under this Act;

(e) To receive and consider evidence and representations made to it by any person relating to prices for goods and services and trade practices;

(f) To maintain a survey of the prices of goods and services and to publish from time to time the findings of such surveys and the methods and principles in accordance with which any price order has been made.

9. Powers of investigation and inquiry - For the purposes of carrying out its duties and functions the Board shall have the same powers and authority to summon witnesses and receive evidence as are conferred upon Commissions of Inquiry by the Commissions of Inquiry Act 1964 and the provisions of that Act shall apply accordingly.

10. Meetings of Board - (1) Meetings of the Board shall be held at such times and places as the Board shall from time to time appoint.

(2) At all meetings of the Board 4 members shall constitute a quorum.

(3) The chairman shall preside at all meetings of the Board at which he is present, but in the event of his absence the deputy chairman shall preside.

(4) At any meeting of the Board the person presiding shall have a deliberative vote and in the case of an equality of votes he shall also have a casting vote.

(5) A decision of the majority of the members present at a meeting of the Board shall be a decision of the Board.

(6) The Board may regulate its procedure in such manner as it thinks fit, and may in its discretion conduct its meetings either in public or in private.

(7) The Commerce Officer shall act as the Secretary of the Board.

11. Remuneration of Board members - Members of the Board:

(a) Not being full time salaried employees of the Government of Western Samoa may be paid in respect of each day or part of a day of attendance at meetings of the Board such sums as Cabinet shall from time to time determine;

(b) May be paid for reasonable expenses necessarily incurred by them in respect of their attendance at meetings of the Board.

12. Secrecy - (1) Every member of the Board, the Commerce Officer, and every person engaged or employed in connection with the work of the Board and the Commerce Section shall:

(a) Maintain and aid in maintaining the secrecy of all matters which come to his knowledge, when carrying out his functions or duties under this Act, and shall not communicate any such matters to any person except for the purpose of carrying the Act into effect; and

(b) Before he begins to perform any official duty under this Act, take and subscribe to such oath of fidelity and secrecy as may be prescribed, which oath may be administered by any member of the Board or by any barrister or solicitor of the Supreme Court.

(2) Every person who wilfully acts in contravention of the true intent of that oath commits an offence against this Act, and is liable to imprisonment for a term not exceeding 3 months or to a fine not exceeding $500 or to both.

13. Delegation of powers - (1) With the written consent of the Minister, the Board may from time to time delegate to the Commerce Officer all or any of the powers exercisable by it under this Act including the powers to make price Orders and to institute proceedings.

(2) Any person affected by any order of the Commerce Officer acting pursuant to a delegation under this section may at any time appeal therefrom to the Board giving to the Minister a written notice of appeal.

(3) The Board may determine any appeal under this section in such manner as it thinks fit.

PART III
CONTROL AND STABILISATION OF PRICES

14. General Price Orders - (1) If the Board considers it expedient in the public interests to control the prices of any goods or services, it may make General Price Orders fixing the maximum or minimum or actual price of such goods or services, other than crops that have been grown in Western Samoa either generally throughout Western Samoa or in any specified part or parts of or place or places in Western Samoa.

(2) Any General Price Order may relate to the sale of goods at ex-factory, wholesale or retail prices or at any of these prices.

(3) Any General Price Order may contain such incidental and supplementary provisions as are necessary or expedient.

(4) The Board may at any time revoke or amend any General Price Order.

(5) Every General Price Order shall be published in the Samoan and English languages in one or more newspapers or published in such other manner as the Board shall consider sufficient, and no General Price Order shall come into force before it has been so published.

(6) It shall be the duty of every trader whose business includes the sale of any goods or the performance of any services to which a current General Price Order made under this Act applies, to keep displayed in a prominent position on the premises in which the sale of such goods or the performance of such services are offered, a list showing clearly for the information of the public price fixed in respect of such goods or services.

(7) The Commerce officer may cause list of prices to be printed in the Samoan or English languages or both and may require the trader to exhibit the same in the manner aforesaid.

(8) The Commerce Officer may with regard to any specified goods require that any retailer having such goods far sale shall cause the same to be legibly and conspicuously marked with the selling price thereof for the information of the public.

(9) Nothing in this section shall be construed to affect prices exercise by any person or authority having statutory powers to fix prices or charges under any other enactment.

15. Special Price Orders - (1) The Board may from time to time snake Special Price Orders fixing the maximum or minimum or actual price of any goods or services other than crops that have been grown in Western Samoa either generally throughout Western Samoa. or in any specified part or parts of or places in Western Samoa.

(2) Any Special Price Order may relate to the sale of goods at ex-fl, wholesale or retail prices or at all of these prices.

(3) Any Special Price Order may contain such incidental and supplementary provisions as are necessary or expedient

(4) A Special Price Order shall come into force at a date, which may be before or after the date of the Special Price Order, fixed by the Board and incorporated in the Special Price Order.

(5) A Special Price Order shall be deemed to be revoked when a subsequent General Price Order, incorporating the prices fixed by such Special Price Order, comes into force.

(6) The Board may publish any Special Price Order in such manner as it deems fit.

(7) The provisions of section 14 as to General Price Orders, other than the provisions contained in subsections (6), (7) and (8) thereof shall apply with respect to Special Price Orders.

16. Applications for increased prices - (1) Any manufacturer, packer, importer, wholesaler, retailer or other trader or seller or supplier of goods or services may, in respect of any goods or services which are sold or supplied by him and which are specified in a General Price Order or Special Price Order remaining in force in respect of those goods or services apply to the Board for an amendment to any such Price Order or as the case may be for a General Price Order or Special Price Order.

(2) Every such application shall be accompanied by such information as the Board may require, and the applicant shall also supply to the Board such additional information as may be required by regulations made under this Act.

(3) The Board may either approve an application in whole or in part or refuse it.

(4) The Board may, as a condition of the approval of any application, require the applicant to publish or communicate to buyers, in such manner as it thinks fit, such information relating to the decision as it requires.

17. Price stabilisation - The Board shall from time to time, after inquiry and investigation, make such recommendations to the Minister as it considers necessary in relation to the stabilisation of prices Western Samoa.

PART IV
TRADE PRACTICES

18. Conditional sales - (1) Every person commits an offence against this Act who, whether as principal or agent, and whether by himself or his agent, refuses to sell any goods or services except on the condition that other goods or services are also purchased from him or from any other person nominated by him or attempts to impose any such condition.

(2) Nothing in this section shall render unlawful any condition:

(a) Against the separate sale of any goods forming part of a single or composite article, or

(b) Imposed with the authority in writing of the Board: or

(c) Expressly authorised by any Act to be imposed.

19. Hoarding - Every person commits an offence against this Act who, being in possession of goods for mercantile purposes, destroys or hoards the goods, or refuses to sell the goods or to make them available for sale, if such destruction or hoarding or refusal raises, or tends to liaise; or is intended to raise the cost of other similar goods to the public.

20. Profiteering - (1) Every person commits an offence against this Act who, whether as principal or agent; and whether by himself or his agent, sells or agrees or offers to sell any goods at a price which is unreasonably high.

(2) For the purposes of this section the price of any goods shall be deemed to be unreasonably high if it produces, or is calculated to produce, more than a fair and reasonable rate of commercial profit to the person selling, or offering to sell, those goods, or to his principal:

PROVIDED THAT no price that has been fixed or approved by the Board shall be deemed for the purpose of this section to be unreasonably high.

(3) In determining, in the course of any proceedings for an offence against this section, whether or not the price of any goods is or was unreasonably high, no account shall be taken of the cost to the seller or, as the case may be, to his principal, that has been or that would be involved in replacing those goods for the purposes of his business, or of the cost price or the selling price of any other goods; sold by the seller or his principal.

(4) Subject to the foregoing provisions of this section, the Court, in any proceedings for an offence against this section, shall determine as a matter of fact and not of law whether or not any price is or was unreasonably high.

21. Changes in measure or composition - Every person commits an offence against this Act who, whether as principal or agent, and whether by himself or his agent, sells or agrees or offers to sell any goods the measure of which whether by weight or volume or the composition of which has been changed in such a way that:

(a) It would be construed as a breach of a General or Special Price Order in that the Order specifies the price by weight or volume or the price approved was based on a different composition; or

(b) An offence against section 20 of this Act would have been or would be committed.

22. Sales of goods of which prices are fixed together with other goods - While a General or Special Price Order in respect of any goods remains in force, every person commits an offence against this section who, whether as principal or agent and whether by himself or his agent, sells or agrees or offers to sell any goods to which the Order or approval relates together with any other goods of a different kind or class, unless the price demanded or received for the first-mentioned goods is specified separately, whether or not the other goods are subject to the same or any other General or Special Price Order:

PROVIDED THAT this section shall not apply with respect to any sale or agreement or offer to sell made or entered into with the authority in writing of the Board.

PART V
GENERAL

23. Obtaining information - (1) For the purposes of this Act, any, member of the Board, or the Commerce Officer, or any other officer lawfully by the Board, may,-

(a) Require any trader to supply him either orally or in writing with any information in his possession relating to goods or services;

(b) By notice published in a newspaper require any traders or specified class of traders to render returns setting forth such particulars regarding the sale of performance of services as may be specified in the notice;

(c) Require any trader to produce for inspection any records accounts or documents relating to the sale of goods or supply of services, and to furnish copies thereof;

(d) During business hours inspect all books of account and records of any trader, and make copies or extracts thereof;

(e) Take possession of any documents or papers which appear to him to constitute prima facie evidence of a breach of a Price Order.

(2) No person shall:

(a) Obstruct any officer or person in the lawful exercise of his powers under this section;

(b) Wilfully fail to give any information or to produce any record, account or document lawfully required of him under this section;

(c) Knowingly give any false information relating to goods and services to any such person.

(3) The Board may require from any trader a statutory declaration regarding the truth and accuracy of any information required to be supplied under this section.

24. Power to inspect stocks and take samples - (1) For the purpose of this Act, any person lawfully authorised by the Board may at any reasonable time enter upon and search any premises used or reasonably supposed to be used for the manufacture or storage of goods intended for sale, and may inspect and take records of any stocks of goods found thereon or therein, and may on payment or tender of a reasonable price, take samples of any such goods.

(2) Every person authorised as aforesaid shall produce evidence of his identity when so required by any person on whose premises he enters in the course of his duty.

(3) Every person who falsely represents himself to be a person authorised as aforesaid commits an offence against this Act.

25. Keeping of records - Every trader shall keep all such records and accounts, including stock and costing records, as are customary and proper in the type of business carried on by him, and shall retain such records and accounts for a period of 5 years after they came into being.

26. Offences - (1) Any person who sells or offers for sale any goods or services in breach of any relevant Price Order, or fails to comply with any of the provisions of this Act or any order, notice, direction or requirement lawfully made or given thereunder shall be guilty of an offence and shall on conviction be liable:

(a) In the case of a first offence, to a fine not exceeding $300 or to imprisonment for a terra not exceeding 2 months or to both,

(b) In the case of a second or subsequent offence, to a fine not exceeding $600 or to imprisonment for a term not exceeding 4 months, or to both.

(2) Where a company is charged with an offence under this Act, every person who at the time of the commission of the offence was a director or officer of the company may be charged jointly in the same proceedings ,with such company and where the company is convicted of the offence, every such director or officer shall be deemed to be guilty of that offence unless he satisfies the Court that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission or the offence.

(3) Proceedings against a director of a company pursuant to the preceding subsection shall not be instituted except on the directions of the Board.

27. Cancellation or suspension of business licences in certain cases - (1) Notwithstanding any provision in the Business Licences Ordinance 1960 where any person is convicted of an offence against this Act, the Board may, after giving such person the opportunity of being heard, transmit its findings to the Minister of Finance who may order the cancellation of the business licence held by that person, or the suspension of such licence for such period as he shall think fit.

(2) No order of cancellation or suspension shall be made under this section affecting a licence holder who has been convicted for the act or omission of an employee unless the Minister of Finance is satisfied that such licence holder was party to or connived at or permitted or encouraged the act or omission for which he was convicted.

28. Vicarious responsibility - Any, trader who engages any employee shall be answerable for the acts or omissions of his employee in so far as they concern the business of such trader, and if such employee commits any act or makes any omission which is an offence or would be an offence if made or committed by such employer, then and in such case both the employer and the employee or either of them may be charged with such offence.

29. Regulations - The Head of State, acting on the advice of Cabinet, may make regulations for the purpose of giving full effect to the provisions of this Act, including regulations for the stabilisation of prices in Western Samoa and the due administration thereof.

30. Offers to sell goods - For the purpose of this Act the publication or exhibition of a price list in respect of any goods or the furnishing of a quotation for any goods, or the exposure of any goods with a specification or an indication of the price thereof attached thereto or displayed in the vicinity thereof or in connection therewith; shall be deemed to constitute an offer to sell those goods at the price so specified or indicated.

31. Repeal - The Price Control Act 1971 is repealed.

NOTES

The Commerce Act 1978 appearing in this reprint comprises that Act with amendments as shown below:

Section 2: The definition of "Goods" has been amended to include mechanical and non-mechanical spare parts for motor vehicles as contained in section 2 of. the Commerce Amendment Act 1988; and the definition of "Minister" has been amended to read "Minister of Trade, Commerce and Industry" as provided in section 14 of the Trade Commerce and Industry Act 1990 and the word "Nominee" and its definition was added by 1992/93 No. 35.

Section 33(1):

The name of the Department has been amended to read "Department of Trade, Commerce and Industry".

Section 6:

Repealed by 1992/93 No. 35.

The amendments to sections 3 (1) and 6 above are as contained in the Trade Commerce and Industry Act; 1990; No. 16 Section 14.

The Commerce Act 1978 is administered in the Department of Trade, Commerce & Industry

---------------------------------------