Aiafi v Speaker of the Legislative Assembly [2009] WSSC 63 (24 June 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER:

of the Declaratory Judgments Act 1988 and
the Constitution of the Independent State of Samoa

AND:

IN THE MATTER:

of the Electoral Act 1963, and Standing Orders of the Parliament of Samoa.

BETWEEN:

LEALAILEPULE RIMONI AIAFI
Member of Parliament for Faleata i Sisifo,
PALUSALUE FAAPO II Member of Parliament for Safata,
AEAU PENIAMINA LEAVAI Member of Parliament for Falealupo,
LEVAOPOLO TALATONU Member of Parliament for Gagaeemauga No 2,
FUIMAONO NAO’IA TE’I Member of Parliament for Falealili,
MULIPOLA OLIVA Member of Parliament for Aiga i le Tai,
VAAI MAFASOLIA PAPU VAELUPE Member of Parliament for Vaisigano No 1,
MOTUOPUAA UIFAGASA AISOLI Member of Parliament Vaisigano No 2,
TOLUONO FETI Member of Parliament for Palauli.
Applicants

AND:

SPEAKER OF THE LEGISLATIVE ASSEMBLY
First Respondent

AND:

ELECTORAL COMMISSIONER
appointed pursuant to the Electoral Act 1963.
Second Respondent

Counsel: R V Papalii for applicants
M V Peteru for first respondent
D Kerslake for second respondent

Hearing: 24 June 2009
Ruling: 24 June 2009

RULING OF SAPOLU CJ

Proceedings

1. Before this matter was first called for mention before this Court at 10am on Monday, 22 June 2009, I called a meeting in chambers with counsel for the applicants and counsel for the first respondent pursuant to a written request dated 19 June 2009 by counsel for the applicants for such meeting.
   
2. In the discussion in chambers that followed, counsel for the applicants advised the Court that the applicants wish to file an amended motion seeking interim injunctions, an amended motion seeking declaratory orders, as well as a motion seeking leave to file an amended statement of claim, and a motion to join the Electoral Commissioner as a respondent to these proceedings.
   
3. Counsel for the applicants also requested in the chambers meeting a prompt hearing of the substantive issues raised in the applicants’ proposed amended motions for interim injunctions and declaratory orders for the reason that there is real urgency involved in this matter.
   
4. There was then discussion about a possible time-table for the applicants said motions to be filed and served, for the first respondent and the Electoral Commissioner to file and serve any responses, and for the hearing of the motions. Counsel for the first respondent requested two weeks for the first respondent to file and serve a response. Counsel for the applicants strongly objected. She said two weeks was too long given the urgency involved in this matter.
   
5. Counsel for the first respondent then said that the first respondent could file and serve a response to the applicants’ motions by Friday 26 June 2009.
   
6. This matter was then called in open Court the same morning in the civil mentions list. At that time, counsel for the applicants informed the Court that she has no objection to the proposed motions by the applicants. Presumably, this was insofar as those motions relate to the first respondent.
   
7. The Court then made the order that all the said motions by the applicants were to be filed and served the same day at 12:30pm. This was following the advice given by counsel for the applicants in chambers that that could be done on behalf of the applicants.
   
8. The matter was then adjourned to yesterday, Tuesday 23 June 2009 at 9am for the Electoral Commissioner to appear in relation to the motion seeking to join him as a respondent.
   
9. Mr Kerslake of the Office of the Attorney General appeared for the Electoral Commissioner when this matter was re-called yesterday. He properly consented to the motion to have the Electoral Commissioner joined as a respondent. In response to a question from the Court, Mr Kerslake also advised that the Electoral Commissioner was in a position to file and serve a response to the motions for interim injunctions and declaratory orders yesterday afternoon.
   
10. As the pleadings now stand following the amended motions, the Honourable Speaker of the Legislative Assembly is the first respondent/first defendant and the Electoral Commissioner is the second respondent/second defendant.
    
11. Counsel for the first respondent did not appear when this matter was called on Tuesday 23 June. However, she had advised the Court during the chambers meeting on Monday morning, 22 June 2009 that the first respondent could file and serve a response to the applicants’ motions for interim injunctions and declaratory orders by Friday this week, 26 June.
    
12. In the circumstances, including the advice given by counsel for the first respondent in chambers on 22 June, I made the following decision when this matter was re-called yesterday, 23 June:
    
    • (a) the applicants’ motion for an interim injunction in relation to the second respondent to be heard on Wednesday morning, 24 June 2009 at 8:30am;
      
    • (b) the first respondent will file and serve a response to the applicants’ motions for interim injunction and declaratory orders by 4pm Friday, 26 June 2009 on the basis of the advice given by his counsel to the Court in chambers; and
      
    • (c) the motions for interim injunction and declaratory orders in respect of the first respondent as well as the motion for declaratory orders in respect of the second respondent are adjourned for hearing to Monday, 29 June 2009 at 10am.
      

Determination of motion for Interim Injunction in respect of second respondent

13. Having heard submissions from both counsel for the applicants and for the second respondent, and given the urgency involved in this matter, I have decided to give my ruling now on the applicants’ motion for an interim injunction in relation to the second respondent.
    
14. I am not satisfied on the submissions by counsel for the applicants which were opposed by counsel for the second respondent that in terms of s.12 of the Government Proceedings Act 1974 and in view of s.3 of the Electoral Act 1963 the interim injunction sought by the applicants is available in law against the second respondent. The applicants may revisit this issue on Monday, 29 June when the motions in respect of the first respondent and the motion for declaratory orders in respect of the second respondent will be heard.
    
15. The question of costs is reserved.
    

CHIEF JUSTICE

Solicitors
Toa Law for applicants
M V Peteru Law Firm for first respondent
Attorney General’s Office, Apia for second respondent