IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of the Constitution of Samoa and the Standing Orders of Parliament.

BETWEEN

SAMOA DEMOCRATIC UNITED PARTY (SDUP)
a duly registered political party.
First Plaintiff

AND

ASIATA SALEIMOA VAAI of Siusega and Satupaitea,
AEAU PENIAMINA LEAVAI of Le Vili and Falealupo,
FUIMAONO NAOIA TEI of Falealili,
MULIPOLA OLIVA MULIPOLA of Manono Uta,
TUIA FUATOGI PUA LEOTA of Ululoloa and Safata,
LEVAOPOLO TALATONU of Vaitele Uta and Saleaula,
TAUA FARAIMO of Salailua, All Members of Parliament
Second Plaintiffs

AND

TOLOFUAIVALELEI FALEMOE LEIATAUA
of Leulumoega, Speaker of the Legislative Assembly.
Defendant

Counsel: L T Malifa for first and second plaintiffs
S Rimoni for defendant

Judgement: 12 March 2007

JUDGMENT OF SAPOLU CJ

Introduction

On 8 December 2006, the first plaintiff, the Samoa Democratic United P arty (SDUP), and the second plaintiffs who are/were its members filed an ex parte motion for an interim injunction. The purpose of the interim injunction sought in the plaintiffs' motion is to restrain the defendant, the Honourable Speaker of the Legislative Assembly, from not recognizing the first plaintiff as a political party in Parliament and the second plaintiffs as its members in Parliament pursuant to an announcement made by the Speaker in Parliament on 13 November 2006. Another motion was filed by the plaintiffs on 8 December 2006 for the enforcement of certain fundamental rights provided in the Constitution but that separate motion was not the subject of these proceedings which is for an interim injunction. The Court is therefore not concerned with the plaintiffs' motion for the enforcement of fundamental rights in these proceedings.

Even though the interim injunction sought in the plaintiffs motion to restrain the Speaker from not recognizing the SDUP as a party in Parliament would appear to be a prohibitory injunction, it is in effect a mandatory injunction in the sense that the effect of the order it seeks would be to compel the Speaker to recognize the SDUP as a party within Parliament. Generally, the Courts are more reluctant to grant mandatory interim injunctions than prohibitory interim injunctions and would require a high degree of assurance that it will be right to grant a mandatory interim injunction at a preliminary stage of proceedings. One of the reasons for this is that a mandatory interim injunction may have the effect of finally determining the issue between the plaintiff and the defendant before the defendant has had the opportunity for a full trial at the substantive hearing. In other words, the issue between the plaintiff and the defendant will be effectively determined in favour of the plaintiff at an interlocutory stage of proceedings before the substantive hearing where the defendant may exercise his right to a full trial.

Furthermore, to have granted the interim injunction sought on an ex parte basis by the plaintiffs would have meant ordering the Speaker to do what the plaintiffs want him to do without first giving the Speaker the opportunity to be heard. The Courts approach to motions or applications which call for judicial intervention in what is said or done within the walls of Parliament has always been one of cautious restraint.

On the basis of the motion and the supporting documents presented by the plaintiffs, I was not satisfied that this is a case for granting an interim injunction on an ex parte basis. Certainly, there was no element of urgency which required the Court to act immediately otherwise the plaintiffs will suffer serious or permanent injury which will be irreparable or too costly to be repaired. In consequence, I made the order on 14 December 2006 for the plaintiffs to serve their motion on the Speaker. At the same time, I set the plaintiffs motion down for mention on 19 December 2006. This was in order to find out whether the Speaker, having being served with the plaintiffs' motion, opposes the motion or not. On 19 December, counsel from the Attorney General’s Office, Miss Sarona Rimoni, appeared on behalf of the Speaker and informed the Court that the Speaker opposes the motion. In accordance with normal Court practice, the plaintiffs' motion was then adjourned to give the Speaker the opportunity to file an affidavit setting out the grounds on which he opposes the motion. As the following week was Christmas and the Courts will not reopen for normal business until 15 January 2007, this matter was adjourned to 22 January, the earliest available date, for the Speaker to file his affidavit setting out the grounds for his opposition to the plaintiffs' motion. That affidavit was filed on 19 January.

When this matter was called on 22 January, the affidavit by the Speaker was before the Court. Proceedings were then further adjourned to 29 January for both counsel to file written submissions for the Court’s consideration before a decision is made on the plaintiffs motion. On 28 January, I had to go to New Zealand. On my return, the Court file for this matter was given to me together with a letter dated 29 January 2007 which was received by the Registrar on 30 January. The letter is signed by Members of Parliament Fuimaono Tei and Aeau Peniamina Leavai, two of the second plaintiffs. In that letter, Fuimaono Tei and Aeau Peniamina Leavai inform the Registrar that they had never wanted to be parties to these proceedings. They also say in the letter that they were no longer members of the SDUP and would like their names to be withdrawn from these proceedings.

In view of that development and the nature of the written submissions from counsel for the plaintiffs, I asked the deputy registrar on Tuesday 6 February, to contact both counsel involved that I want to meet with them in chambers on Wednesday morning, 7 February. The deputy registrar accordingly contacted the Attorney-General’s Office and the office of counsel for the plaintiffs. On the following morning, 7 February, the office of counsel for the plaintiffs contacted the deputy registrar by phone that counsel for the plaintiffs was not available as he had to go to the hospital. Subsequently on the same day, the deputy registrar on my instruction again contacted the office of counsel for the plaintiffs and the Attorney-General’s Office that counsel involved in this matter were to meet with me in chambers the next morning, Thursday, 8 February. On the following morning, 8 February, counsel from the Attorney-General’s Office appeared but the office of counsel for the plaintiffs contacted the deputy registrar that counsel for the plaintiffs was again not able to appear because he had another engagement to go to. I then informed counsel from the Attorney-General’s Office in chambers that this matter was taken off from the Court’s list of cases and no further action will be taken on it until counsel for the plaintiffs was available. The deputy registrar then wrote to counsel for the plaintiffs to advise him of the decision the Court has made. The leader of the SDUP was also subsequently informed of the situation by letter from the deputy registrar on my instruction.

On Friday, 2 March, counsel for the plaintiffs appeared. Also appearing was Mr Kerslake from the Attorney-General’s Office. They met with me in chambers. I informed both counsel about the letter dated 29 January 2007 from Members of Parliament Fuimaono Tei and Aeau Peniamina Leavai, two of the second plaintiffs, in which they advise the Registrar that they were no longer members of the SDUP the first plaintiff, and would like to withdraw their names from these proceedings. The response by counsel for the plaintiffs was that he was not aware of the said letter and had not received any instructions from the plaintiffs about it. He would therefore like to have the opportunity to obtain instructions from his clients about the said letter.

I also asked counsel for the plaintiffs for case law to support his submissions. The response by counsel for the plaintiffs was that the matters referred to in the plaintiffs' motion and supporting documents do raise a serious question to be tried. Case law for the plaintiffs will be submitted when this matter proceeds to a substantive hearing.

This matter was then deferred to Tuesday, 6 March, to give counsel for the plaintiffs the opportunity to obtain instructions from the plaintiffs regarding the letter from Fuimaono Tei and Aeau Peniamina Leavai and, if possible, for counsel to provide any relevant case law. On Tuesday afternoon, 6 March, counsel for the plaintiffs filed a memorandum making further submissions to the effect that the plaintiffs proceedings raise a serious question to be tried and satisfy the requirement of balance of convenience to warrant the granting of the interim injunction sought. No relevant case law was filed. Accompanying the memorandum by counsel for the plaintiffs was a brief letter dated 2 March 2007 addressed to him from Asiata Saleimoa Vaai, the leader of the SDUP, and one of the second plaintiffs. That letter states that Members of Parliament Aeau Peniamina Leavai and Fuimaono Tei continue to be members of the SDUP.

Relevant factual background to the plaintiffs motion for an interim injunction

Standing Order 20 of the Standing Orders of the Samoan Parliament which governs the recognition of political parties in Parliament provides that any group of Members of Parliament of not less than eight shall be recgonised as a party in Parliament on its leader notifying the Speaker. If the membership of such party falls below eight Members of Parliament then it will lose its recognition as a party in Parliament. As Standing Order 20 is at the core of these proceedings, it will be helpful to set it out in full:

"20. Recognition of Parties: 

(1) At the commencement of each Parliament any group of members of not less than eight shall be recognised as a party in Parliament on its leader notifying the Speaker:

Provided that the party is registered as a party by the Electoral Commission pursuant to section 15A of the Electoral Act 1963.

(2) A party must inform the Speaker of:

(a) the name of the party

(b) the identify of the leader and deputy leader;

(c) its Parliamentary membership:

Provided that the matters specified in (1) and (2) of this Order are notified before the members take the Oath of Allegiance.

(3) The Speaker must be informed of any change in the matters specified in (2) of this Order.

(4) A coalition between two or more parties must be notified to the Speaker but each party to the coalition remains a separate party for the purposes of the Standing Orders.

(5) A party that has been recognised as a party in Parliament shall lose its recognition if its membership falls below eight Members of Parliament.

(6) For parliamentary purposes:

(a)	any member who takes the Oath of Allegiance before he is notified under a party as required by (2)(c) of this Order shall be recognised as an independent member for the duration of the parliamentary term;

(b)	any member who ceases to be a member of a party under which he was notified as required by (2)(c) shall be recognised as an independent member for the rest of the parliamentary term.

(7) In the period between a general election and the Assembly electing a Speaker, the matters specified in (1) and (2) of this Order may be notified to the Clerk."

Previously, under the Standing Orders as existed on 16 April 1997, the number of Members of Parliament required for a group of Members to be recognised as a party in Parliament was nine. When the membership of the party which formed the official opposition in Parliament at the time fell below nine to eight, the Standing Orders were amended on the 20 August 1997 to reduce the number of Members required for a group of Members of Parliament to be recognised as a party in Parliament from nine to eight. This is still the number of Members required for a political party to be recognised as a party in Parliament.

According to the affidavit dated 8 December 2006 of Asiata Saleimoa Vaai, which was filed in support of the plaintiffs' motion for an interim injunction, the SDUP was registered as a political party under the provisions of the Electoral Act 1963 in 2004. At the General Election held on 31 March 2006, the SDUP won ten of the seats in Parliament. I should add here that there are forty nine seats in Parliament. One of the members of the SDUP then lost his parliamentary seat in an election petition. That reduced the parliamentary membership of the SDUP from ten to nine. Then in September 2006, Asiata Saleimoa Vaai took over the leadership of the SDUP from Le Mamea Ropati. Following the change in leadership of the SDUP, Le Mamea Ropati, by letter dated 27 September 2006, informed the Speaker that he has resigned as leader of the SDUP and as a member of the SDUP but will continue in Parliament as Member for his constituency. Another parliamentary member of the SDUP, Sililoto Tolo, also by letter dated 28 September 2006 informed the Speaker that he has resigned from being a member of the SDUP and had informed the new leader of the SDUP of his resignation. He was to continue as an Independent Member of Parliament in accordance with the Standing Orders. The new leader of the SDUP, Asiata Saleimoa Vaai, states in his affidavit that his party still considers Le Mamea Ropati and Sililoto Tolo as members of the SDUP for the reasons stated in his affidavit. However, that does not deny or alter the fact that Le Mamea Ropati and Sililoto Tolo have informed the Speaker in writing of their resignations from the SDUP and their cessation as members of that party. The fact that Le Mamea and Sililoto are also not cited amongst the members of the SDUP who are the second plaintiffs in these proceedings suggest that they have actually ceased to be members of the SDUP. The effect of the resignations of Le Mamea and Sililoto was to further reduce the parliamentary membership of the SDUP from nine to seven.

At the sitting of Parliament on 13 November 2006, the Honourable Speaker informed the Legislative Assembly of the resignations of Le Mamea Ropati and Sililoto Tolo from the SDUP as well as the disqualification in an election petition of another parliamentary member of the SDUP. In consequence, the Speaker announced that the SDUP has lost its recognition as a party in Parliament since its parliamentary membership has fallen below eight to seven. The effect of this was that the SDUP could no longer be recognised as the official opposition in Parliament and its leader Asiata Saleimoa Vaai and deputy leader Aeau Peniamina Leavai could no longer be recognised as the Leader and the Deputy Leader of the Opposition.

On 8 December 2006, the present motion for an interim injunction to restrain the Speaker from not recognising the SDUP as a party in Parliament was filed. On 30 January 2007 by letter dated 29 January 2007, Fuimaono Tei and Aeau Peniamina Leavai, the deputy leader of the SDUP, informed the Registrar that they were no longer members of the SDUP and wanted to withdraw their names from these proceedings. In a brief letter dated 2 March 2007 by the new leader of the SDUP to counsel for the plaintiffs, he says that Members of Parliament Aeau Peniamina Leavai and Fuimaono Tei continue to be members of the SDUP. However, the Court has not received any notification from Aeau or Fuimaono that they wish to withdraw their letter of 29 January 2007 to the Registrar or anything said in it. That being so, the reasonable conclusion to take is that those two Members of Parliament have ceased to be members of the SDUP and want to withdraw their names from these proceedings. That means the parliamentary membership of the SDUP has been further reduced from seven to five.

Grounds in support of the plaintiffs motion for an interim injunction

The plaintiffs' motion for an interim injunction relies on six specified grounds and the affidavit of Asiata Saleimoa Vaai. The six specified grounds are:

(1)	The loss of recognition of the SDUP as a party in Parliament has negative political repercussions with the political community of Samoa which are seriously affecting the image of the first plaintiff as a political party, reputation and viable opposition.
(2)	The loss of recognition of the SDUP as a party in Parliament has disentitled the second plaintiff Asiata Saleimoa Vaai from being called the Leader of the Opposition and being paid the higher salary payable to the Leader of the Opposition.
(3)	The loss of recognition of the SDUP as a party in Parliament has disentitled the second plaintiff Aeau Peniamina Leavai from being called the Deputy Leader of the Opposition and being paid the higher salary payable to the Deputy Leader of the Opposition.
(4)	The loss of recognition of the SDUP as a party in Parliament has caused the Speaker to promote a motion for Parliament to approve the former leader of the SDUP retaining membership of parliamentary committees he had held as Leader of the Opposition.
(5)	The loss of recognition of the SDUP as a party in Parliament has disentitled the first plaintiff to a share of the funding for political parties.
(6)	Irreparable damage will be done to the plaintiffs' financial, political and social welfare if the interim injunction is not granted.

The affidavit of Asiata Saleimoa Vaai which is referred to as providing a further ground in support of the plaintiffs motion, contains no allegation that I need to re-mention here as I have covered the material allegations in that affidavit in what has already been said.

Discussion

The two requirements which the Court has to consider in determining whether to grant an interim injunction are, firstly, whether there is a serious question to be tried and, secondly, where the balance of convenience lies. This approach has been adopted and applied in a number of Samoan cases dealing with motions for interim or interlocutory injunctions. It is also the approach followed in other comparable common law jurisdictions in proceedings for interim or interlocutory injunctions.

A serious question to be tried in this context means an issue that is triable in law. An issue that is frivolous or vexatious will not qualify as a serious question to be tried by the Court. The expression "balance of convenience" means the balance of the risk of doing an injustice at a very early stage of proceedings when not all the evidence is before the Court. This requires the Court, in assessing where the balance lies, to weigh the respective risks that an injustice may result from its deciding one way rather than the other when not all the evidence is before it.

Is there a serious question to be tried or triable issue in law in these proceedings? On the basis of the plaintiffs' motion and its supporting grounds as well as the written submissions and memorandum of counsel for the plaintiffs, the answer must be in the negative. Here it should be noted that ground (3) of the plaintiffs' motion is no longer valid given the letter of 29 January 2007 wherein Aeau Peniamina Leavai informs the Registrar that he was no longer a member of the SDUP and wants to withdraw his name from these proceedings. That letter, as earlier mentioned, has not been withdrawn or revoked by any of the signatories.

The important matter to be noted is that the announcement by the Speaker in Parliament that the SDUP was no longer recognised as a party in Parliament because its parliamentary membership had fallen below eight was made pursuant to Standing Order 20. In other words, the Speaker was simply following what is provided in Standing Order 20. There is nothing in the plaintiffs' motion, the supporting affidavit of Asiata Saleimoa Vaai or the written submissions and memorandum of counsel for the plaintiffs which says that the announcement made by the Speaker was not in accordance with Standing Order 20. In fact there is no dispute whether the Speaker’s announcement was in accordance with Standing Order 20. The fact of the matter is that the Speaker was acting pursuant to and in accordance with Standing Order 20. So how can an interim injunction be issued against the Speaker for complying with the provisions of the Standing Orders which is his duty to uphold. To issue an interim injunction against the Speaker for complying with the requirements of Standing Order 20 will be improper. It follows that on the basis of the material adduced in support of the plaintiffs motion for an interim injunction there is no serious question to be tried, that is to say, there is no issue triable in law. It is therefore unnecessary to go on to consider the second question of where the balance of convenience lies.

There is another matter, which is very important, that I need to refer to. The injunction sought by the plaintiffs does bring into focus the special relationship between Parliament and the Courts. In respect of that special relationship, Lord Cooke in delivering the judgement of the Court of Appeal in Sua Rimoni Ah Chong v Legislative Assembly of Western Samoa [1996] WSCA 2 said:

"There is a well-settled principle that what is said or done within the walls of a legislative assembly cannot be questioned in the Courts. It is recognised that the respective constitutional roles of the Courts and Parliament normally require the Courts to refrain from intervening in Parliamentary proceedings. Conflicts between the judicial and legislative organs of the State are to be avoided as far as possible. Generally speaking, a body such as the Legislative Assembly of Western Samoa is left free to regulate and determine its own internal procedures from time to time.

This principle is accepted in all comparable jurisdictions…….

Of course, like all principles this one has its limits and they are not always easily discernible. One limit must be that a written Constitution such as that of Western Samoa may place upon the Courts some duty of scrutinizing Parliamentary proceedings for alleged breaches of constitutional requirements. Thus, while normally it is for the legislative assembly to determine the effect of its own orders and to depart from them if the Assembly sees fit, a Constitution may displace the presumption by making compliance with the standing orders a condition of the validity of the legislation or, no doubt, of the validity of other steps taken by the assembly. But we agree with Mclelland J in Namoi Shire Council v Attorney-General for New South Wales [1980] 2 NSWLR 639, 645s, that the Court would lean against such an interpretation".

It is clear from Sua Rimoni Ah Chong v Legislative Assembly of Western Samoa [1996] WSCA 2 that judicial intervention in what is said or done within the walls of Parliament is a step not to be lightly taken. But that would have happened if the plaintiffs' motion was granted ex parte as sought, without first giving the Speaker the opportunity to be heard by filing an affidavit if he opposes the motion.

On the basis of the material that has been placed before the Court in support of the plaintiffs motion, I am of the view that it will be contrary to the letter and spirit of the principle stated and explained by Lord Cooke in Sua Rimoni Ah Chong v Legislative Assembly of Western Samoa to grant the interim injunction sought by the plaintiffs.

Conclusions

For the foregoing reasons the plaintiffs motion for an interim injunction is refused.

The names of Members of Parliament Fuimaono Tei and Aeau Peniamina Leavai are to be removed from these proceedings as two of the second plaintiffs.

CHIEF JUSTICE

Solicitors
Sogi Law, for the first and second plaintiffs
Attorney General’s Office, Apia, for defendant