IN THE COURT OF APPEAL OF SAMOA
Ponifasio v Attorney General & Ors [2021] WSCA 10 (14 December 2021)

Case name: 	Ponifasio v Attorney General & Ors	
		
Citation: 	[2021] WSCA 10	
		
Decision date: 	14 December 2021	
		
Parties: 	TUALA AUIMATAGI IOSEFO PONIFASIO (Appellant) v ATTORNEY GENERAL (First Respondent); TAULAMAGO SIMONE, ITUAU ENELE, TEVAGA SAMILOLO AND VA VEA (Second Respondents).	
		
Hearing date(s): 	07 December 2021 	
		
File number(s): 	CA 07/20	
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Court of Appeal of Samoa, Mulinuu	
		
Judge(s): 	Honourable Chief Justice Perese
Honourable Justice Hansen
Honourable Justice Harrison	
		
On appeal from:	Supreme Court of Samoa, Mulinuu	
		
Order:	The appeal is accordingly allowed.  The Judge’s order is quashed.  In its place we order the first and second respondents to pay the appellant costs of SAT$4,000.  The first respondent must pay the appellant costs on the appeal of SAT$1,500.	
		
Representation: 	S Ponifasio for the Appellant
FS Ainuu and CT Faatele for the First Respondent
No appearance for the Second Respondents	
		
Catchwords: 	Bribery – General Elections – conviction quashed – indemnity costs 	
		
Words and phrases:		
		
Legislation cited:	Attorney General Act 2017, s. 17; 
Criminal Procedure Act 2016 ss. 178; 188; 188(2); 
Judicial Ordinance s. 63	
		
Cases cited:		
		
Summary of decision:		

CA07/20

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

TUALA AUIMATAGI IOSEFO PONIFASIO, of Malifa, Samoa

Appellant

A  N  D:

ATTORNEY GENERAL

First Respondent

A N D:

TAULAMAGO SIMONE of Leauvaa, ITUAU ENELE of Leauvaa, TEVAGA SAMILOLO of Samalaeulu, VA VEA of Samalaeulu

Second Respondents

Coram:		Honourable Chief Justice Perese
		Honourable Justice Hansen
		Honourable Justice Harrison

Hearing:	07 December 2021

Counsel:	S Ponifasio for the Appellant
		FS Ainuu and CT Faatele for the First Respondent
		No appearance for the Second Respondent

Judgment:	14 December 2021

JUDGMENT OF THE COURT
Introduction
1. 	The appellant was convicted in the District Court of six charges of bribery arising out of the 2016 election following a private prosecution by the second respondents.  He was fined SAT$8,000.  On appeal against conviction and sentence, Tuala-Warren J upheld the appeal and quashed the convictions.
2. 	At the request of the second respondents, who were barred from appealing the decision by s 63 of the Judicial Ordinance (since repealed), the first respondent (the Attorney General) purported to delegate his right to appeal pursuant to s 178 of the Criminal Procedure Act 2016 to the second respondents.  The second respondents then applied for leave to appeal to this Court.    The appellant responded with an application for a declaration that the delegation was unlawful and of no effect.  After reconsidering his position, the Attorney General accepted that he had erred and revoked the delegation.  
3. 	The appellant applied for indemnity costs of SAT$10,530.55.  In her decision of 18 March 2020, Tuala-Warren J ordered the second respondents to pay SAT$3,000.
4. 	The appellant appeals against the decision.  He submits the Judge should have ordered indemnity costs against both the first and second respondents.  
Judgment under appeal
5. 	In her judgment, Tuala-Warren J determined that the Attorney General had no authority to delegate his right of appeal; that this was made clear to the respondents at an early stage; and that to continue with the appeal was “unnecessary, ill-advised and put [the appellant] to the expense of upholding his position.”  The Judge continued:
	“16.	I am inclined to accept [the appellant’s] submission that the actions by both [respondents] showed a total disregard for the relevant legislation and the ramifications of the unlawful actions relating to the purported delegation.”
6. 	However, the Judge decided she could not order costs against the Attorney General.  She referred to s 188(2) of the Criminal Procedure Act which provides:
	“(2)	If an information is withdrawn or dismissed, the Court may order the informant to pay to the defendant costs, as the Court thinks fit, just and reasonable, for fees for the defendant’s lawyer and expert witnesses if there was no evidence to support the information and no evidence to cause a reasonable person to suspect the defendant and not otherwise.”
7. 	Having regard to this provision she said:
	“19.	It is therefore very difficult for me to impose costs against the Attorney General as this situation is not captured within the ambit of s 188 CPA.  Section 188(2) CPA is worded to avoid costs being ordered against the Attorney General.”
8. 	The Judge’s decision to award costs of SAT$3,000 against the second respondents was, however, not explained.  She concluded simply:
	“21	Accordingly, I find that $3,000 are costs reasonably and properly incurred by [the appellant] in upholding and defending his position.  
	  22	[The second respondents] to pay costs of $3,000 to [the appellant].”
Appellant’s case
9. 	For the appellants, Mrs Ponifasio submitted the Judge erred in relying on s 188(2) of the Criminal Procedure Act to deny an order for costs against the Attorney General.  She submitted the costs related to a challenge to an invalid appeal which was not a criminal proceeding and the appellant, as the successful party, was entitled to an award of costs against both parties.  In her written submissions she argued for an award of indemnity costs.  However, in her oral argument she did not press for an order on that basis but for an award of party and party costs which was the apparent basis for the Judge’s decision.  
First respondent’s position
10. 	The Attorney General defended the Judge’s decision.  Mr Ainu’u submitted that s 188(2) of the Criminal Procedure Act applies as the appeal was brought by the informants albeit relying on delegated authority of the Attorney General.  Counsel characterised as disingenuous the argument that, by virtue of the appellant’s application for declaratory orders, the proceeding was civil in nature.
11. 	Counsel further argued that the Attorney General is protected from liability by s 17 of the Attorney General Act 2017 which provides:
	“17.	Exemption from personal liability – The Minister, the Attorney General or person appointed or seconded under this Act is not personally liable for carrying out or failing to carry out in good faith a constitutional, statutory or common law function.”
It was submitted that the Attorney General did not act unreasonably or behave badly or in bad faith in mistakenly delegating his authority to the second respondents.  Counsel pointed out that the delegation was revoked as soon as it became apparent to the Attorney General that he had acted in error.
12. 	As to quantum, it was submitted that the conditions which would warrant an order for indemnity or increased costs do not exist.  Alternatively, it was submitted that each party should bear their own costs as the proceeding involved a matter of public interest and was in the nature of a test case.
Discussion
13. 	We are satisfied that there is no basis for an order for costs under the Criminal Procedure Act.  The circumstances in which an order for costs may be made in favour of a defendant against an informant are strictly circumscribed by s188(2).  There is no suggestion that they have been satisfied in this case.  However, for the reasons that follow, we are satisfied that the Judge erred in deciding that s188(2) bars an order for costs against the Attorney General. 
14. 	As the Judge held, the Attorney General had no power to delegate his right of appeal to the second respondents.  In purporting to invoke his powers under the Attorney General Act 2013, he was plainly in error and the appellant was right to challenge his actions.  He did so by way of an application filed in the appeal proceeding.  But it was in substance and in fact an application to review the decision of the Attorney General and, accordingly, a process to which the rules governing costs in civil proceedings apply.  The appellant’s challenge was to an unlawful decision which rendered invalid the entire basis of the appeal.  The argument that s 188(2) could somehow apply to bar an order for costs against the Attorney General cannot possibly succeed.
15. 	Section 17 of the Attorney General Act does not apply to preclude an order for costs against the Attorney General.  It protects the Attorney General (and the responsible Minister) against personal liability for discharging his functions in good faith.  It does not operate to shield the Crown from liability for costs in cases to which the Attorney General is a party.  
16. 	We are accordingly satisfied that an award of costs may be made against both the Attorney General and the second respondents in relation to the unlawful attempt to circumvent the restricted right to appeal the Supreme Court’s decision.
17. 	The remaining question is whether the quantum of the award was inadequate.  Before Tuala-Warren J, the Attorney General took issue with the reasonableness of the total costs claimed.  Counsel submitted that costs and disbursements reasonably and properly incurred were SAT$6,367.55 and proposed that two thirds of that or SAT$4,245.03 would be a reasonable contribution to costs.  The Attorney General suggested a division on a 25/75 basis with the Attorney General contributing SAT$1,061.26 and the second respondents SAT$3,183.77.  We infer that the Judge accepted the Attorney General’s submission in relation to quantum and adopted his reasoning in ordering the second respondents to pay SAT$3,000.
18. 	As already noted, Mrs Ponifasio did not challenge the Judge’s approach to quantum. She was content for an award to reflect the approximately SAT$4,000 which the Judge impliedly found to be an appropriate contribution.  It is, however, a contribution which should be required of both the Attorney General and the Second Respondents.  There is no justification for an apportionment of the award.  Both parties were implicated in the misconceived application for leave to appeal and should be held responsible for their error and the costs the appellant incurred as a result.  
Costs of the appeal
19. 	We were told that the Attorney General made a late offer to resolve the appeal by a payment of $5,000.  On that basis, it was submitted that, though successful, the appellant should be required to pay the costs of the appeal.  However, Mrs Ponifasio explained that the appellant was prepared to accept the offer provided the Attorney General also paid SAT$1,500 towards the costs of the appeal.  The counteroffer was declined.  In all the circumstances, including the timing of the offer, we consider the Attorney General should pay the appellant costs on the appeal which we fix at SAT$1,500.
Result
20. 	The appeal is accordingly allowed.  The Judge’s order is quashed.  In its place we order the first and second respondents to pay the appellant costs of SAT$4,000.  The first respondent must pay the appellant costs on the appeal of SAT$1,500.
HONOURABLE CHIEF JUSTICE PERESE
HONOURABLE JUSTICE HANSEN
HONOURABLE JUSTICE HARRISON