Ale v Vaili [1995] WSCA 7; 07 1994 (8 August 1995)

IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 7/94
IN THE MATTER of the Constitution and the Electoral Act 1963
AND
IN THE MATTER of Part XVIII of the Supreme Court (Civil Procedure Rules) 1980
BETWEEN

LEOTA LEULUA'IALII ITUAU ALE

of Solosolo, Anoamaa-i-Sisifo Member of the Parliament
Applicant
AND

AFAMASAGA FATU VAILI

of Fasitoo-tai, Speaker of the Legislative Assembly of Western Samoa
Respondent

Coram: The Rt Hon. Sir Robin Cooke, President
The Rt. Hon. Sir Maurice Casey
The Rt Hon. Sir Gordon Bisson

Hearing: 8 August 1995

Counsel: T. Malifa for Appellant
Ruby Drake for Respondent

Judgment: 8 August 1995

JUDGMENT OF THE COURT DELIVERED BY SIR ROBIN COOKE

At the commencement of today's hearing, Mrs Drake informed the Court that the appellant had failed to provide security for the costs of the appeal in the sum of $200 as required by the order of the Chief Justice granting leave to appeal, made on 11 August 1994. Accordingly she contended that the appeal was deemed to be abandoned.

On the facts as then outlined to us by Mr Malifa, the Court intimated that special leave to appeal would be granted under s.64 of the Judicature Ordinance 1961, subject to the payment of security today. That intimation was given on the assumption that the Court had jurisdiction to grant special leave and in the absence of any argument for the respondent to the contrary. The order granting special leave, not having been sealed, is open to re-consideration. At that stage this Court had not been informed of the appellant's re-election for the relevant seat at a by-election. In the circumstances it was apparent that the issue raised by the would-be appeal may well be academic. Moreover, it appears that the appellant would wish to present a different argument from any placed before the Chief Justice. It is now suggested that the appellant had some form of continued or implied permission from the Speaker to be absent on the three relevant days in March 1994.

Having perused the written submissions for the appellant, we do not consider that they raise any prima facie case of error on the part of the Chief Justice. That is to say, they have raised in our minds no doubt about the correctness of his decision. In all the circumstances special leave to appeal is refused and the appeal is deemed to be abandoned.

The respondent is awarded costs in the sum of $500.

Solicitors:
Libra Law & Consultancy, Apia, for Appellant
Drake & Co., Apia, for Respondent