Aloaina v Ah Sam [2001] WSSC 14 (6 April 2001)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of the Electoral Act 1963.

AND

IN THE MATTER concerning the election of a Member of Parliament
for the Territorial Constituency of SALEGA.

BETWEEN

LEILUA FAALII ALOAINA
of Alamagoto in Samoa, a Candidate for the General Election 2001.

Petitioner

AND

TAPUAI TOESE AH SAM
of Sinamoga a Candidate for the General Election 2001.

First Respondent

AND

THE CHIEF ELECTORAL OFFICER.

Second Respondent

AND

THE REGISTRAR OF VOTERS.

Third Respondent

Coram: Sapolu CJ
Vaai J
Nelson J

Counsel: M Tuatagaloa for petitioner
TV Eti for first respondent
T Lawson for second and third respondents

Hearing: 4 April 2001
Reasons for Judgment: 6 April 2001

REASONS FOR JUDGMENT
The reasons for judgment of the Court were delivered by Sapolu CJ.

In these proceedings the Court is concerned with two applications. The first is an application on behalf of the petitioner for an extension of time to 4pm on 17 April 2001 to file and serve on all respondents an affidavit in reply to the counter petition filed by the first respondent in response to the petitioner’s election petition. The second application is made on behalf of the first respondent for an extension of time to effect service of documents on counsel for the petitioner.

For convenience, the Court will deal first with the second application and then with the first application. Pursuant to the pre-trial procedures set by the Court for the trial of election petitions, counsel for the first respondent filed with the Registrar the first respondent’s counter-petition and affidavits in reply to the petitioner’s petition within the deadline of 4pm on Monday, 2 April. However, he was not able to effect service of those documents on counsel for the petitioner within the same deadline. He only served the documents on counsel for the petitioner the next morning, 3 April, at about 10am. Service was accepted by counsel for the petitioner. The purpose of the present application is really to validate retrospectively the late service of documents that has already been effected and accepted.

The reason given by counsel for the first respondent for the delay in effecting service is that, he is involved as counsel in a number of election petitions and there are a large number of documents he has to prepare, file and serve, as required under the pre-trial procedures. He also said the processing of documents for filing with the Registrar took up to 5pm on Monday, 2 April. By that time the office of counsel for the petitioner was closed. It appears from this that counsel for the first respondent must have filed his documents very close to the deadline of 4pm on 2 April.

In our conclusions stated on 4 April, we granted the indulgence sought to extend time for service to 4pm on 3 April. This in effect validates retrospectively the service of documents that was effected and accepted by counsel for the petitioner at about 10am on 3 April. Our reasons for granting that indulgence to counsel for the first respondent may be briefly stated.

Even though the timetable stipulated in the pre-trial procedures must be complied with, the consequences which will follow from any non-compliance with that timetable is a matter within the discretion of the Court. In the exercise of that discretion in this case, we decided to grant the indulgence sought. The factors we took into account were that the non-compliance was relatively minor, the first respondent had already complied in part with the timetable by filing the necessary documents with the Registrar within time, counsel for the petitioner has already accepted service and she consents to the present application, and there will be no delay to the trial of the petition if the indulgence sought was granted.

As to the first application which is made on behalf of the petitioner, the Court was advised by counsel that the petitioner had to leave for overseas in the early hours of Tuesday 3 April, which was before the petitioner or his counsel was served with the first respondent’s counter petition at about 10am on 3 April. The petitioner must have assumed there was no counter petition against him when after the deadline of 4pm on Monday, 2 April, no counter petition was served on him or his counsel. Under the pre-trial procedures, the petitioner is required to file and serve a reply to the first respondent’s counter-petition by 4pm on Monday, 9 April. The petitioner is not due back in Samoa until 15 April which is Easter Sunday. The next day is Easter Monday and therefore a public holiday. Counsel for the first respondent consented to the application.

Even though the consent of opposing counsel to an application for extension of time will not necessarily lead to the automatic acceptance of the application, it is a factor to be taken into consideration in the exercise of the Court’s discretion. In the exercise of our discretion in relation to this application, we also took into account the circumstances at the time the petitioner left for overseas. We also note that there will be no delay to the trial of the petition in this case if we grant the indulgence sought.

For those reasons, we decided, as stated in our conclusions on 4 April, to grant the application by counsel for the petitioner and extend to 4pm on Tuesday, 17 April, the time for the petitioner to file and serve on all respondents a reply to the first respondent’s counter-petition.

No costs were sought. We make no order as to costs.

Solicitors:
Richard’s Law Firm for petitioner
TV Eti for first respondent
Attorney General’s Office for second and third respondents